                  Not For Publication in West's Federal Reporter
                 Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

            United States Court of Appeals
                          For the First Circuit

No. 03-2390

                                THOMAS BATES,

                          Petitioner, Appellant,

                                        v.

                                MICHAEL GRANT,

                           Respondent, Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Morris E. Lasker,* Senior U.S. District Judge]


                                     Before

                            Boudin, Chief Judge,

                       Cyr, Senior Circuit Judge,

                        and Howard, Circuit Judge.


     Harold Robertson with whom Harmon & Robertson, P.C. was on
brief for petitioner.
     Natalie S. Monroe, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief, for respondent.

                                  May 4, 2004




    *
        Of the Southern District of New York, sitting by designation.
          Per Curiam.      Thomas Bates appeals from the district

court’s order dismissing his petition for a writ of habeas corpus,

28 U.S.C. § 2244.   We affirm.

               I.    Factual and Procedural History

          In 1991, Bates was convicted by a Worcester Superior

Court jury on multiple charges of indecent assault and battery on

a child under the age of fourteen, indecent assault and battery on

a child over the age of fourteen, soliciting a child to pose in a

state of sexual conduct and soliciting a child to pose in a state

of nudity.   Bates’s victims were his five adopted children.

          Following an unsuccessful motion for new trial, Bates

appealed his conviction.   The Massachusetts Appeals Court affirmed

all but three of the charges against him, Commonwealth v. Bates, 37

Mass. App. Ct. 1114 (1994), and the Massachusetts Supreme Judicial

Court (the “SJC”) denied Bates’s application for further appellate

review.   Commonwealth v. Bates, 419 Mass. 1103 (1995).

          Bates then filed a pro se petition for a writ of habeas

corpus in the civil session of Worcester Superior Court. The court

dismissed Bates’s petition, noting that under Massachusetts law,

habeas corpus relief is only available when the “petition . . . is

based on grounds distinct from the issues at the indictment, trial,

conviction, or sentencing stage.”      Bates v. Marshall, CA No. 95-

1143-C, slip op. at 3 (Mass. Super. Ct. Nov. 16, 1995) (quoting In

re Averett, 404 Mass. 28, 30 (1989)).    Because the court concluded


                                 -2-
that all of Bates’s claims related directly to the indictment and

trial process, Bates was limited to relief available under Mass. R.

Crim. P. 30.1     Bates moved for reconsideration, the court affirmed,

and Bates appealed.

              Nearly three years passed, during which it appears that

the record of Bates’s appeal was not assembled.            Tired of waiting

for a decision from the Massachusetts Appeals Court, Bates sought

extraordinary relief from the Single Justice Session of the SJC

pursuant to Mass. Gen. Laws ch. 211, § 3.               He asked the court,

inter alia, to nullify his conviction and sentence.                A Single

Justice denied Bates’s petition, stating that extraordinary relief

“is not available where the petitioner has or had adequate and

effective avenues other than [Mass. Gen. Laws ch. 211, § 3], by

which    to    seek   and   obtain   the    requested   relief.”   Bates   v.

Commonwealth, No. SJ-99-0279, Mem. & Order at 1 (Dec. 29, 1999)

(quoting Hicks v. Comm’r of Corr., 425 Mass. 1014, 1014-15 (1997)).

              Bates subsequently appealed to the full bench of the SJC,

which affirmed.        Bates v. Commonwealth, 434 Mass. 1019, 1021

(2001).       The SJC agreed that Chapter 211 relief should not be

granted because Bates could have sought relief through a Rule 30

motion.   Id. at 1020.      It rejected Bates’s argument that requiring


     1
      In addition to providing a procedure for seeking a new trial,
Mass. R. Crim. P. 30 allows a prisoner to seek relief from unlawful
restraint by filing a motion with the trial judge requesting
release from custody or correction of his sentence. Mass. R. Crim.
P. 30(a).

                                      -3-
him to seek Rule 30 relief “would effectively send him into a

‘procedural maze,’” and deemed unfounded Bates’s concern that the

Commonwealth might argue that dismissal of his habeas petition

precludes his bringing a Rule 30 motion on the same issues.                Id.

(“The fact that Bates employed an improper means to seek review of

his claims would not by itself prevent him from now employing the

proper means.”).     The SJC directed Bates “to seek relief through

the appropriate vehicle.”       Id. at 1021.

            Rather than seek relief through Rule 30 as instructed by

the SJC, Bates brought his claims to federal court.                In August

2001, Bates filed a petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254.          Michael Grant, the respondent, moved to

dismiss on the grounds that the petition was time-barred and that

Bates had failed to exhaust his state court remedies.               On August

22, 2002,    the   district    court    denied   the   motion,   finding   the

petition timely, but concluded that it was a “mixed petition”

containing both exhausted and unexhausted claims.2               It dismissed

the unexhausted claims and stayed the petition to allow Bates an

opportunity to file within six weeks an amended petition containing

only exhausted claims.        Instead of filing a new petition, Bates

moved for reconsideration.       In June 2003 the district court denied



     2
      The court found that only Bates’s claim of ineffective
assistance of trial counsel, which had been presented in his
application for leave to obtain further appellate review, was
exhausted for the purposes of federal habeas proceedings.

                                       -4-
the motion.     Bates then moved for recusal of Judge Morris Lasker,

the presiding district court judge, in August 2003.     The district

court denied the recusal motion as moot and dismissed Bates’s

habeas petition on the ground that he had failed to file an amended

petition as instructed in the court’s August 2002 decision.     This

appeal followed.

                            II.   Analysis

A.        Dismissal of the Petition

          The gravamen of Bates’s appeal is his contention that the

district court erred in concluding that most of his habeas claims

were unexhausted.     He asserts that his numerous post-conviction

pleadings in the courts of Massachusetts satisfied the exhaustion

requirement.3    He faults the district court for failing to consider

the substance of the pleadings, and for focusing instead on how the

pleadings were labeled.

          Despite the twists and turns in the procedural history of

this case, we think the central issue is straightforward.         In

Massachusetts, one must use Rule 30 to seek post-conviction relief


     3
      Bates also contends that the state court system failed to
compile the record of his case during his appeal in the state
habeas corpus proceeding, causing an unjustifiable delay that
excused his failure to exhaust state remedies. Bates Br. at 14
(citing Hall v. DiPaolo, 986 F.2d 7 (1st Cir. 1993) (per curiam)).
Even if, on the basis of Bates’s bare allegations, we were to
conclude that the state court system caused a delay in review, this
would not affect our analysis. As Bates’s counsel conceded at oral
argument, the delay was caused in part by Bates’s failure to use
the proper procedural vehicle to seek relief. We do not conclude
that the delay was unjustifiable on these facts.

                                  -5-
pertaining to errors in an indictment, a trial, or other issues

typically       raised     in   a   habeas          corpus     petition     in   other

jurisdictions.4        We do not doubt that this could cause procedural

confusion for a petitioner, particularly one who seeks relief pro

se.       We   note,     however,   that       on   at   least      two   occasions   a

Massachusetts court informed Bates that the relief he sought could

only be obtained through a Rule 30 motion.                   Bates never filed such

a motion.      Instead, Bates turned to federal habeas proceedings for

relief. On these facts, there can be no question that the district

court properly dismissed the claims that the SJC had already

determined to be defective.           It is not for us to recast Bates’s

post-conviction        pleadings    in     a    manner       that   satisfies    state

exhaustion requirements when the highest court in Massachusetts

declined to do so.

               Bates fails to argue that the district court abused its

discretion in dismissing his petition because he failed to file an

amended petition.         Relying instead on a claim of actual innocence

and a purported “showing that he is entitled to habeas corpus

relief,” Bates urges us to find that the dismissal of the petition

was the culmination of a series of erroneous actions by the


      4
      With the passage of the Massachusetts Rules of Criminal
Procedure in 1979, Rule 30 became the “exclusive vehicle for
postconviction relief.” In re McCastle, 401 Mass. 105, 106 (1987).
The Commonwealth’s habeas corpus statute was amended to reflect
this change, and the remedies of writ of error and writ of habeas
corpus, once separate procedural mechanisms, were consolidated in
Rule 30 with the motion for new trial. See id. at 106-07.

                                         -6-
district court and was therefore incorrect.      We find no merit in

these arguments.    Nor do we discern any other error in the district

court’s dismissal of the petition.5

B.        Bates’s Other Claims

          Bates presents three other challenges to the district

court’s judgment.    We discuss each in turn.

          First, Bates contends that the district court abused its

discretion in allowing the respondent to file a belated motion to

dismiss. The respondent, represented by the Office of the Attorney

General of Massachusetts, filed his motion on April 11, 2002, more

than a month after the deadline set by the district court.    In the

interim, the court had granted Bates’s motion to bar any motion to

dismiss filed after March 16, 2002.        The respondent moved for

acceptance of the late filing, stating in an affidavit of counsel

that counsel’s voluminous case load prevented a timely filing in

this case.   The district court acknowledged that Bates had made a

strong argument that the delay was not a product of “excusable

neglect” under Fed. R. Civ. P. 6(b), but concluded that a failure

to deal with the merits of the respondent’s defense would be

irresponsible.     The court warned the respondent’s counsel that

future delays would be subject to sanctions.




     5
      Because we conclude that the petition was properly dismissed
on the grounds stated by the district court, we do not reach the
respondent’s argument that the petition was also time-barred.

                                 -7-
           Bates   alleges   that    accepting   the    late    filing     was

erroneous because the respondent made no showing of “unique or

unusual circumstances” justifying the delay.            But the excusable

neglect standard is not so unforgiving after Pioneer Investment

Services Co. v. Brunswick Associates Limited Partnership, 507 U.S.

380 (1993).    There, the Supreme Court found that courts may accept

late filings “caused by inadvertence, mistake, or carelessness, as

well as by intervening circumstances beyond the party’s control.”

Pioneer, 507 U.S. at 388; see also Graphic Communications Int’l

Union v. Quebecor Printing Providence, Inc., 270 F.3d 1, 5-6 (1st

Cir.   2001)   (acknowledging    Pioneer’s   shift     to   a   standard    of

excusable neglect that “encompasses not just unavoidable omissions,

but also negligent ones”).      Equitable considerations should inform

whether a lapse constitutes excusable neglect.          Among the factors

a court should consider are “the danger of prejudice to the [non-

moving party], the length of the delay and its potential impact on

judicial proceedings, the reason for the delay, including whether

it was within the reasonable control of the movant, and whether the

movant acted in good faith.”        Graphic Communications, 270 F.3d at

5 (quoting Pioneer, 507 U.S. at 395).         Although critical of the

respondent’s reasons for delay, Bates has not argued that any of

the other equitable factors tip the scales in his direction.                We

therefore find no basis for concluding that the district court

abused its discretion in allowing the late motion.          Cf. id. at 6-7



                                    -8-
(noting, in case where trial court found delay not to have been

caused by excusable neglect, “we will not meddle unless we are

persuaded that some exceptional justification exists”).

            Second, Bates contends that the presiding judge erred in

declining to recuse himself. In his motion for recusal Bates cited

28 U.S.C. § 455(a), a provision that requires a judge to disqualify

himself    “in    any   proceeding    in    which   his   impartiality   might

reasonably be questioned.”           The district court’s denial of his

motion will be sustained unless we find that it “cannot be defended

as a rational conclusion supported by [a] reasonable reading of the

record.”    United States v. Snyder, 235 F.3d 42, 46 (1st Cir. 2001)

(quoting In re United States, 158 F.3d 26, 30 (1st Cir. 1998)).

            Bates’s motion and supporting affidavit fall far short of

the mark.        Bates alleges that Judge Lasker had been negatively

influenced by the underlying allegations against Bates and that

this prejudice resulted in “extended confinement of an innocent

person.” But Bates’s affidavit relies on “unsupported accusations”

and “unfounded surmise,” United States, 158 F.3d at 30, and is

therefore patently insufficient.            None of the allegations in the

affidavit provides a reasonable basis for doubting Judge Lasker’s

impartiality.6      See In re United States, 666 F.2d 690, 695 (1st

     6
      Bates’s examples of Judge Lasker’s purported prejudice
included the court’s failure to identify “any set of facts or
circumstances to support the allegations” against Bates; its focus
on Bates’s procedural defaults despite “authority that procedural
bars are to be ignored upon a claim of actual and legal innocence”;
and its allowance of the respondent’s late motion to dismiss.

                                      -9-
Cir. 1991)(“Were less required, . . . a litigant could avoid

adverse decisions by alleging the slightest of factual bases for

bias.”).

             Finally, Bates alleges a catchall “global failure” of the

district court to “accomplish the purposes of habeas corpus” in

ruling on his petition.       But the only potential argument advanced

in this section of Bates’s brief is the unelaborated assertion that

the district court erred in deciding the petition “in favor of

procedural considerations” because Bates had asserted his actual

and legal innocence.         Giving Bates the benefit of a generous

reading of his brief, we conclude that he construes Schlup v. Delo,

513   U.S.   295   (1995),   to   stand   for   the    proposition   that   all

procedural defaults are to be ignored in the event one claims

actual innocence. This is too expansive a reading of Schlup, which

applied only to a “narrow class of cases.”            See 513 U.S. at 314-25.

And we cannot tell whether Bates’s actual innocence claim falls

within this class of cases because Bates has failed to brief it.

             Affirmed.




                                    -10-
