
USCA1 Opinion

	




          November 15, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1739                                   JOSE L. RODRIGUEZ,                                     Petitioner,                                          v.                                     PETER PEPE,                                     Respondent.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                        Selya, Cyr and Boudin, Circuit Judges.                                               ______________                                 ____________________            Jose L. Rodriguez, pro se.            _________________            Scott  Harshbarger, Attorney  General,  and  William J.  Duensing,            __________________                           ____________________        Assistant Attorney General, for respondent.                                 ____________________                                 ____________________                 Per Curiam.  After  a searching and extensive  review of                 __________            the   issues  presented,  we   affirm  the  district  court's            dismissal  of Jose  Rodriguez's  petition for  habeas corpus.            The district court concluded that the pendency of a new trial            motion before  the state trial court  barred consideration of            petitioner's  federal habeas  corpus  claims.   We granted  a            certificate of probable cause in light of the state's lengthy            delay in  resolving either  petitioner's new trial  motion or            his  appeal and our difficulty  in discerning its  cause.  We            sought  from  the  government  a  memorandum  addressing  the            reasons--and justifications--for the delay.   Having reviewed            all  the submissions carefully, we find that the delay in the            state court proceedings does  not excuse petitioner's failure            to exhaust  his state remedies before  seeking federal habeas            corpus relief.  See 28 U.S.C.   2254(b).                            ___                 There is  no dispute  that petitioner has  not exhausted            his  state remedies;  petitioner claims  that his  failure to            exhaust is  excused because  of the  excessive  delay by  the            state in acting upon  either his appeal or new  trial motion.            See,  e.g., Hankins v. Fulcomer,  941 F.2d 246,  250 (3d Cir.            ___   ____  _______    ________            1991).   Petitioner's appeal  has been  pending for  over six            years, while his new  trial motion has been pending  for over            four years.  What was less clear at the outset but more clear            now is  that this delay is of petitioner's own making.  After            petitioner filed his appeal, a not uncommon problem developed                                         -2-                                         -2-            in  obtaining the  transcription of  the trial  court record.            The situation was exacerbated by the fact that petitioner did            not have counsel to aid him  in rectifying the problem, as he            had  fired his lawyer following sentencing and had not as yet            requested replacement  counsel.   The  transcription  problem            looked  as if it was about to resolve itself when petitioner,            acting pro se, filed a new trial motion with the trial  court                   ______            in May 1990.                  The  effect of  this filing  was to create  a procedural            logjam--the  lower court  record could  not be  assembled for            transmission to the appellate  court until the disposition of            the pending motion,  but the  new trial motion  would not  be            resolved until the appeal  was either withdrawn or concluded.            See Mass. R.  Crim. Proc. 30(b) (reporters'  notes); Mass. R.            ___            App.  Proc. 4(c),  9(a),  9(d).   By  seeking to  pursue  two            courses of action simultaneously, petitioner prevented either            course  from proceeding.  And since it has been and continues            to be within petitioner's power to cure this situation, i.e.,                                                                    ____            by  withdrawing his new trial motion or his appeal, the delay            in  the  resolution  of  the pending  matters  cannot  excuse            petitioner's  failure to  exhaust  his state  remedies.   See                                                                      ___            Deters v. Collins, 985  F.2d 789, 796 (5th Cir.  1993) (delay            ______    _______            does   not  excuse  failure   to  exhaust   where  petitioner            contributes to delay).                 Affirmed.                 ________                                         -3-                                         -3-
