               Not for Publication in West's Federal Reporter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. 04-1799

                            DAVID A. PERRY,

                        Plaintiff, Appellant,

                                     v.

                       VIRGINIA C. BEECHER,
    DIRECTOR OF THE NEW HAMPSHIRE DIVISION OF MOTOR VEHICLES,

                        Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Steven J. McAuliffe, U.S. District Judge]


                                  Before

                    Torruella, Lynch and Lipez,
                          Circuit Judges.




     David A. Perry on brief pro se.
     Daniel J. Mullen, Associate Attorney General on brief for
appellee.



                             March 29, 2005
             Per Curiam.      Plaintiff-appellant David A. Perry has

appealed the district court's dismissal of his complaint. We can

affirm a district court's judgment on any ground supported by the

record.     Campagna v. Massachusetts Dep't of Envtl. Prot., 334

F.3d 150, 155 (1st Cir. 2003).         Upon our review, we conclude that

res     judicata    is   an     appropriate     ground   for    dismissal.

Accordingly, we affirm.1

             We reject Perry's contentions that there was no final

state court judgment on the merits and that he did not have a

full and fair opportunity to litigate his constitutional claims

in the state courts.          Perry argues that the August 2003 state

trial     court   decision    simply   ruled   that   neither   habeas   nor

mandamus were proper forms for relief.          However, the state court

described the legal standard it applied in testing the facts

alleged in the pleading and in finding dismissal appropriate,

i.e., where the plaintiff's allegations are not "reasonably

susceptible of a construction that would permit recovery" and

where "the facts as pled do not constitute a basis for legal

relief."     We believe this description sufficiently evidences the

court's conclusion that Perry's constitutional claims provided no

basis for any type of legal


      1
      Steel Co. v. Citizens for a Better Environment, 523 U.S. 83
(1998) is not a bar to our disposition. See Penobscot Nation v.
Georgia-Pacific Corp., 254 F.3d 317, 324-25 (1st Cir. 2001)
(bypassing the question of subject matter jurisdiction to conclude
that relief was foreclosed on res judicata grounds).

                                       -2-
relief and not simply that they lacked a basis for habeas or

mandamus relief.

            Moreover,       Perry     raised    his     complaint       about      the

decision's alleged inadequacy both on reconsideration before the

trial court and in what he termed a "Petition for Original

Jurisdiction"    to    the    state    supreme      court.       He    also     again

reiterated his constitutional claims and argued that, if neither

habeas nor mandamus relief were appropriate, the courts should

award any "alternative" form of relief.                The trial court denied

reconsideration       and    the    state    supreme    court,    treating         the

petition before it as an appeal, declined to hear the case.

These subsequent state court decisions reinforce our view that

the state courts have determined that Perry was not entitled to

any form of relief.

            Just as importantly, however, Perry ignores the fact

that he had earlier pursued and lost a challenge to the two year

license suspension for his refusal of the breathalyzer test.

Perry challenged the factual finding that he had refused the

breathalyzer    test.         He     lost    that     challenge       both    on    an

administrative appeal and subsequently in the state superior

court, the effect of which was to uphold the resulting imposition

of   the   consecutive      two     year    license    suspension.           The   New

Hampshire Supreme Court declined to hear his appeal and Perry did

not seek certiorari to the United States Supreme Court.                         Perry


                                       -3-
does       not   contest   the   district   court's   description   of   New

Hampshire's application of res judicata as including "matters

that could have been litigated in an earlier action between the

same parties for the same cause of action" and there is nothing

to suggest that, simultaneously with his challenge to the factual

finding that he had refused the breathalyzer test, Perry could

not have also raised his claims as to the constitutionality of

the    consecutive     two   year   license   suspension.    Accordingly,

Perry's current claims are foreclosed by res judicata.2

                 The judgment of the district court dismissing the

complaint is affirmed.




       2
      Perry contends that the defendant-appellee's motion to
dismiss was tardily filed and, thus, the affirmative defense of res
judicata was waived.      The irony is that Perry raises this
contention for the first time on appeal and seeks to excuse his own
forfeiture in order to assert this waiver bar against the
defendant-appellee. Perry proffers no justifiable ground for his
failure to allege untimeliness and waiver below. On plain error
review, we refuse Perry's request that we find waiver. Assuming
without deciding that the motion to dismiss was late, the district
court, by considering the motion to dismiss, at least implicitly
excused its alleged tardiness and we would not find an abuse of
discretion in its doing so.

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