               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit

No. 11-1149

                             KENNETH WARE,

                      Petitioner, Appellant,

                                    v.

                        THOMAS E. DICKHAUT,

                       Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]
                      _____________________

                                 Before

                  Boudin, Howard and Thompson,
                         Circuit Judges.




     Kenneth Ware on brief pro se.
     Amy L. Karangekis, Assistant Attorney General, and Martha
Coakley, Attorney General, on brief for appellee.



                          December 7, 2011
           Per Curiam. We have reviewed the record and the parties'

submissions, and we affirm.         We bypass the question of whether the

petitioner,     Kenneth    Ware    ("Ware"),     exhausted   his    federal   due

process claim in the state courts, see 28 U.S.C. § 2254(b)(2), and

we affirm the denial of his claim on the merits.

           Ware argues that there was insufficient evidence to

support   his    conviction       under    the   Massachusetts     Armed   Career

Criminal statute.         See Mass. Gen. Laws Ch. 269, § 10G(b).              He

contends that his prior drug conviction did not qualify as a

predicate offense because it was not a "serious drug felony" as

defined in Mass. Gen. Laws ch. 269, § 10G(e).                Subsection 10G(e)

defines a "serious drug felony" as "an offense under chapter 94C

involving the manufacture, distribution or possession with intent

to manufacture or distribute a controlled substance [] for which a

maximum term of ten years or more is prescribed by law."               Ware was

previously convicted under Mass. Gen. Laws ch. 94C, §32A(a) of

possession with intent to distribute a class B substance.                  But he

points to the fact that in that prior case, he was prosecuted in

the state district court, where the maximum sentence he faced was

only two and one-half years.          See Mass. Gen. Laws ch. 218, § 27.

If he had been prosecuted in the superior court, however, he would

have faced a potential maximum sentence of ten years.                 See Mass.

Gen. Laws ch. 94C, § 32A(a).




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          The Massachusetts Appeals Court, interpreting Mass. Gen.

Laws ch. 269, § 10G(e), concluded that under the state statute,

Ware's previous conviction under Mass. Gen. Laws ch. 94C, § 32A(a)

does qualify as a "serious drug felony" within the meaning of the

state armed career criminal act.       See Commonwealth v. Ware, 75

Mass. App. Ct. 220, 223-25, 913 N.E.2d 869, 872-74 (2009).     This

court is bound by that interpretation of the state statute.     See

Bradshaw v. Richey, 546 U.S. 74, 76 (2005) ("a state court's

interpretation of state law, including one announced on direct

appeal of the challenged conviction, binds a federal court sitting

in habeas corpus") (citing Estelle v. McGuire, 502 U.S. 62, 67-68

(1991); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975)); see also

Pulley v. Harris, 465 U.S. 37, 41 (1984) ("A federal court may not

issue the writ [of habeas corpus] on the basis of a perceived error

of state law.").   Given that Ware's prior drug dealing conviction

did qualify as a predicate offense under the state armed career

criminal statute – a conclusion which the federal courts must

respect – the evidence clearly was sufficient to support Ware's

conviction as an armed career criminal.       Thus, his federal due

process claim fails.

          Affirmed.    See 1st Cir. R. 27.0(c).




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