February 24, 1993

                  UNITED STATES COURT OF APPEALS
                      For The First Circuit

                                          

No. 92-1912

                         HERMAN HALL JR.,

                      Petitioner, Appellant,

                                v.

                 SUPERINTENDENT PAUL L. DiPAOLO,

                      Respondent, Appellee.

                                          

     The  opinion of this Court  issued on February  18, 1993, is
amended as follows:

     On the cover  sheet, in  the caption, insert  a comma  after
"HALL".

     Page 6, line 7, insert "of" between "notice appeal".

     Page 9, line 6, " a such" should read "such a".

February 18, 1993

                  UNITED STATES COURT OF APPEALS
                      For The First Circuit

                                          

No. 92-1912

                        HERMAN HALL, JR.,

                      Petitioner, Appellant,

                                v.

                 SUPERINTENDENT PAUL L. DiPAOLO,

                      Respondent, Appellee.

                                          

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

             [Hon. Mark L. Wolf, U.S. District Judge]
                                                    

                                          

                              Before

                    Torruella, Cyr and Stahl,
                         Circuit Judges.
                                       

                                          

     Herman H. Hall,  Jr., pro se on Application  for Certificate
                                 
of Probable Cause and brief.

                                          

                        February 18, 1993
                                          

     Per Curiam.  Pro se petitioner Herman Hall, a  Massachusetts
                        

inmate,  seeks a  certificate  of probable  cause  to appeal  the

dismissal of his second petition for habeas corpus.  The district

court  adopted  the  recommendation  of a  magistrate  judge  and

dismissed the habeas petition  on the ground that Hall  failed to

exhaust his state remedies.  In so doing, the court relied on the

fact that Hall  had previously  filed a  similar habeas  petition

that  was dismissed for nonexhaustion.  For the reasons discussed

below,  we grant the certificate of probable cause and vacate the

dismissal.   We remand  for  consideration of  the issue  whether

exhaustion has  obtained as  a result of  certain post-conviction

motions that Hall filed in state court.

                                I.

     On July 29, 1988,  Hall was convicted by a  Suffolk Superior

Court jury of  larceny of  a motor vehicle  and burning  personal

property.    The charges  arose from  Hall's  alleged theft  of a

Cadillac from  the  victims, Earl  Fisher  and his  mother,  Lula

Fisher,  between January  3-6, 1988.   The  Massachusetts Appeals

Court  affirmed   Hall's  conviction  on  direct   appeal  in  an

unpublished decision.   See Commonwealth v. Herman  H. Hall, Jr.,
                                                                

28  Mass.  App.  Ct.  1111  (1990).    On  March  28,  1990,  the

Massachusetts   Supreme  Judicial   Court  (SJC)   denied  Hall's

application for further 

appellate review. See 407  Mass. 1101 (1990).1   Hall then turned
                     

                    

     1We note that Hall, who was represented by appointed counsel
at   trial  and  on  appeal,   filed  pro  se   briefs  with  the
                                             
Massachusetts  Appeals Court  and Supreme  Judicial Court  (SJC).
The Appeals Court considered and rejected the arguments raised in
Hall's pro se brief in its decision  affirming Hall's conviction.
             

to federal court.

     Hall  filed his first  habeas corpus petition  in June 1990.

The  petition,  supplemented  by  multiple  filings,  raised five

claims:

     (1)    that  Hall's conviction  resulted  from evidence
     gained in an unconstitutional search and seizure (i.e.,
     the VX-829 registration);

     (2)   that Earl Fisher and another man conspired to "do
     an insurance job"  on the  car, and, with  the help  of
     officials  from  the  Boston  Fire  Department's  Arson
     Squad, framed Hall;

     (3)  that Hall was unlawfully arrested in Providence by
     Boston Arson Squad officers who, in addition to lacking
     probable  cause,  had  no territorial  jurisdiction  to
     arrest Hall;

     (4)  that  the district attorney tricked  the jury into
     believing  that Hall stole  the car and "re-registered"
     it in Rhode  Island when,  in fact, the  car was  never
     "re-registered."    Hall  alleged that  the  prosecutor
     deliberately  misrepresented  the facts  concerning the
     car's registrations.

     (5)  ineffective assistance of counsel based on defense
     counsel's failure  to (a)  move to suppress  the VX-829
     registration evidence, (b)  challenge the lawfulness of
     Hall's  arrest, (c)  call  certain witnesses,  and  (d)
     impeach Earl Fisher.  Hall also complained that defense
     counsel helped the district attorney cover-up the Arson
     Squad's misconduct.2

The respondent filed an  answer which raised nonexhaustion, inter
                                                                 

alia,  as an affirmative defense.   This defense was specifically
    

                    

The SJC did not consider Hall's pro se brief; rather, that  court
                                      
returned  Hall's brief  to him  while advising  Hall to  have his
counsel raise his claims.

     2In addition to the five claims  enumerated above, Hall also
alleged that the only  black juror was "terrorized" and  that the
prosecution unlawfully erased portions  of the tape recordings of
Hall's probable cause hearing.

                               -3-
                                3

predicated on the  assertion that  none of  Hall's habeas  claims

were raised in Hall's direct criminal appeal.  The district court

adopted the  recommendation of  a magistrate judge  and dismissed

Hall's habeas petition because none of his claims had been raised

in  Hall's application for further appellate review.  See Mele v.
                                                              

Fitchburg Dist. Court, 850 F.2d 817, 823 (1st  Cir. 1988)(holding
                     

"that  an  appealed issue  cannot  be considered  as  having been

fairly  presented to the  SJC for exhaustion  purposes unless the

applicant  has  raised  it   within  the  four  corners  of   the

[application  for further  appellate  review]").3   The  district

court granted Hall's request for a certificate of probable cause,

but  his  appeal  from  this dismissal  order  was  dismissed  as

untimely.  Undaunted,  Hall filed a  second habeas petition  with

the district court.   This second petition essentially reiterated

the five claims identified above, although the petitions  are not

identical twins.4     

       A  different  magistrate  judge  recommended  that  Hall's

second habeas  petition be summarily dismissed  because it raised

the same claims as his first and Hall still had failed to exhaust

                    

     3While   the  district   court  did   not  identify   Hall's
ineffective assistance of counsel claim, its finding that none of
Hall's habeas claims were  raised within the four corners  of his
application for further appellate review remains correct.    

     4Hall's second habeas petition did  not allege that the lone
black juror had  been terrorized,  nor that  the prosecution  had
erased any tapes.  The second habeas petition also challenged the
sufficiency of the evidence at Hall's trial, a claim that was not
presented in his first petition.    

                               -4-
                                4

his  state  remedies.       The   district  court  adopted   this

recommendation and  dismissed  the petition.5    Thereafter,  the

court denied Hall's  request for a certificate  of probable cause

on the same nonexhaustion ground.  Hall has filed a timely notice

of appeal and request for a certificate of probable cause.

                               II.

     In answering a habeas corpus petition under 28 U.S.C.  2254,

the respondent is required to  "state whether the petitioner  has

exhausted  his  state   remedies  including  any  post-conviction
                                                                 

remedies available to him under the  statutes or procedural rules
                                                                 

of the state and including also his right of appeal both from the
                                                                 

judgment  of conviction and from any adverse judgment or order in
                                                                 

the  post-conviction  proceeding."    See  Rule  5  of  the Rules
                                         

Governing  Section  2254  Cases  in the  United  States  District

Courts.  (emphasis supplied).    The record  indicates that  Hall

filed  two pro  se post-conviction  motions in  the Massachusetts
                  

superior  court before his direct appeal was resolved.  The first

of these raised an ineffective assistance of counsel claim, which

the trial court  denied on  the merits and  Hall did not  appeal.

Hall's  second post-conviction  motion  (titled  "Motion for  new

trial/newly discovered evidence") raised  Hall's unconstitutional

                    

     5This dismissal order  was entered before  Hall's objections
to  the magistrate  judge's  report were  filed.   However,  that
report gave Hall ten days from his receipt of the report in which
                                          
to  file his objections.   Hall filed his  objections on April 6,
1992,  within  the  requisite  ten days  (excluding  weekends  as
required by Fed. R. Civ.  P. 6(a)) of his alleged receipt  of the
report on March 25, 1992.

                               -5-
                                5

arrest  and  search  and  seizure  claims,  as  well  as  a  less

intelligible claim that Hall  could not show his evidence  to the

jury.6   This motion  also was  denied by the  trial judge.   The

record indicates  that Hall filed a pro  se notice of appeal from
                                           

this ruling, but no disposition of this appeal is recorded.  From

all that appears in the record, it may still be pending.   

     "'[I]n  determining  whether  a   remedy  for  a  particular

constitutional  claim  is  "available,"  the federal  courts  are

authorized,  indeed required,  to  assess the  likelihood that  a

state  court will accord the  habeas petitioner a  hearing on the

merits of his  claim.'" Carsetti  v. Maine, 932  F.2d 1007,  1012
                                          

(1st  Cir. 1991)  (quoting  Harris v.  Reed, 109  S. Ct.  at 1046
                                           

(O'Connor, J.,  concurring)).  Because the  respondent overlooked

Hall's post-conviction  motions in its original  answer to Hall's

first  habeas petition, the district court was not able to assess

the likelihood that exhaustion  has obtained through Hall's post-

conviction  motions.  Yet  it appears likely  that exhaustion has

obtained, if not through Hall's actual presentation of his habeas

claims to the  state courts,  then by a  procedural default.   We

explain.

     "[T]he exhaustion  doctrine requires that a  state defendant

seeking to overturn his conviction on federal grounds first  must

                    

     6Our descriptions of the substance of Hall's post-conviction
motions  are drawn  from his  habeas petitions.  Their procedural
history  in the  state  court is  disclosed by  the Massachusetts
superior court  docket sheet appended to  the government's answer
to Hall's first habeas petition.

                               -6-
                                6

give  the  state  courts 'a  fair  opportunity'  to consider  his

claims.  (citation omitted).   This means that  the habeas corpus

petitioner  must  have presented  the  substance  of his  federal

constitutional claim to  the state appellate  courts so that  the

state had the first chance  to correct the claimed constitutional

error."  Lanigan  v. Maloney, 853  F.2d 40,  42 (1st Cir.  1988),
                            

cert. denied, 488 U.S.  1007 (1989).  However, exhaustion  may be
            

found  even where the  habeas petitioner has  never presented his

federal claims to state court.  Such would be the case if, at the

time the habeas petition  was filed, there was no  longer a state

remedy available due to the petitioner's procedural default. 

     "[A] federal  habeas court need  not require that  a federal

claim be presented to a state court if it is clear that the state

court would hold the claim procedurally barred."  Harris v. Reed,
                                                                

489 U.S. 255,  263 n. 9  (1989).  Where  exhaustion has  obtained

through  a procedural  default, the  habeas petitioner  must show

cause for that default and prejudice arising therefrom before the

federal court may reach  the merits of  his habeas claims.   See,
                                                                

e.g., Teague v.  Lane, 489  U.S. 288, 298  (1989); cf. Church  v.
                                                             

Sullivan, 942 F.2d 1501, 1507 n.5 (10th Cir. 1991).  In the usual
        

case, victims of  a fundamental miscarriage of  justice will meet

the "cause plus prejudice" test.  See Murray v. Carrier, 477 U.S.
                                                       

478,  495-96 (1986).  However, in  those rare cases where that is

not so,  a  federal  habeas  court may  consider  a  procedurally

defaulted  claim absent a showing  of cause for  the default only

                               -7-
                                7

where the  petitioner demonstrates that his  is an "extraordinary

case, where  a constitutional violation has  probably resulted in

the conviction of one  who is actually innocent...." Id.  at 496;
                                                        

Thigpen v. Thigpen, 926 F.2d 1003, 1010 n. 17 (11th Cir. 1991). 
                  

     Assuming that  neither of Hall's post-conviction motions can

be fairly said to have raised his  federal habeas claims, Hall is

now in the  position of  having to file  a third  post-conviction

motion in  state  court.   Under  Massachusetts law,  a  criminal

defendant  may file  a motion  for post-conviction relief  at any

time,  however any grounds not raised in a defendant's first such

motion  are  waived unless  (a)  the  trial  judge exercises  his

discretion to allow said grounds to be heard on  their merits, or

(b)  the defendant  shows  that  the  new  grounds  raised  in  a

successive post-conviction  motion could not have  been raised in

his first motion.  See Massachusetts R.  Crim. P. 30.  As most of
                      

the  evidence Hall has submitted in support of his claims appears

to  have  been available  to him  when he  filed his  first post-

conviction motion, it appears likely that he will be held to have

waived  his habeas  claims upon  filing a  third motion  with the

superior court.   See,  e.g., Commonwealth v.  Deeran, 397  Mass.
                                                     

136,  139  (1986)("[A]  defendant   must  assert  all  reasonably

available grounds for post-conviction relief in his first rule 30

motion,  or those  claims  are lost....This  waiver rule  applies

equally to  constitutional claims  which could have  been raised,

but    were   not    raised,   in   the    defendant's   original

                               -8-
                                8

motion.")(internal  citations  omitted).   If the  district court

concludes  that the Massachusetts  courts are likely  to so hold,

state  review  on the  merits would  no  longer be  available and

exhaustion  could be found. See,  e.g., Engle v.  Isaac, 456 U.S.
                                                       

107, 125-26 n. 28 (1982).   If exhaustion obtains through such  a

procedural default, then Hall must show cause for his default and

prejudice arising  therefrom before the district  court may reach

the merits of  his claims.   Alternatively, he  must show that  a

constitutional  violation has resulted  in his conviction despite

his innocence.

     On  the  other  hand,  a  finding  that  Hall  has  actually

exhausted his  state remedies may  be warranted if  Hall's second

post-conviction motion  raised his  habeas claims and  his appeal

from  the denial of that  motion has remained  pending since 1988

without  justification.  See Dixon v. Florida, 388 F.2d 424, 425-
                                             

26  (5th Cir. 1968)(noting that  exhaustion may result from lapse

of  time where  state court  record disclosed  19 month  delay in

processing of habeas  petitioner's post-conviction motion).   Cf.
                                                                 

Odsen v. Moran, 445  F.2d 806, 807 (1st  Cir. 1971) (per  curiam)
              

(three  year delay  in processing  of habeas  petitioner's direct

criminal appeal  may justify setting comity  aside and fashioning

remedy according to circumstances).   Alternatively, we note that

Hall submitted pro  se briefs to the  Massachusetts Appeals Court
                      

(which considered  and rejected his  claims) and  to the  Supreme

Judicial Court (which apparently  did not consider Hall's claims,

                               -9-
                                9

but rather  mailed Hall's brief  back to him).   If  these briefs

were submitted  in connection  with Hall's appeal  on his  second

post-conviction motion and raised Hall's habeas claims, then Hall

could  be held to have exhausted his state remedies by submitting

a pro  se brief to the SJC.   See Mele v.  Fitchburg Dist. Court,
                                                                

850 F.2d at 820, (habeas petitioner "must  fairly present - or do
                                                                 

his  best to  present  -  "  habeas  claims  to  state's  highest
                     

court)(emphasis  supplied).    After  all,  exhaustion  does  not

require  that the  SJC have  addressed or decided  Hall's federal

claims. See Gagne v. Fair, 835 F.2d 6, 8 (1st Cir. 1987).   I   n
                         

summation,  where  the  district   court  did  not  consider  the

possibility  that  exhaustion  may have  obtained  through Hall's

post-conviction motions, a remand is required.  

     Accordingly, the  petitioner's request for a  certificate of
                                                                 

probable cause is granted. The judgment of dismissal  is vacated.
                                                                 

The case is remanded for further proceedings consistent with this
                                                                 

opinion.
        

                               -10-
                                10
