
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1912                                    ROBERT MAINS,                               Petitioner - Appellant,                                          v.                          TIMOTHY HALL AND LARRY E. DUBOIS,                               Respondents - Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Stahl, Circuit Judge,                                       _____________                           and Dom nguez,* District Judge.                                           ______________                                _____________________               Joan C. Stanley, by Appointment of the Court, for appellant.               _______________               Gregory  I.  Massing, Assistant  Attorney  General, Criminal               ____________________          Bureau, with whom Scott  Harshbarger, Attorney General, and Nancy                            __________________                        _____          W.  Geary,   Assistant  Attorney  General,  were   on  brief  for          _________          appellees.                                 ____________________                                   January 29, 1996                                 ____________________                                        ____________________          *  Of the District of Puerto Rico, sitting by designation.                    DOMINGUEZ,   District  Judge.     Petitioner-appellant,                    DOMINGUEZ,   District  Judge.                                 _______________          Robert Mains ("Mains") challenges  the district court's dismissal          of  the petition of  the writ of  habeas corpus  and requests the          same  to be vacated.   Mains further requests  the remand of this          case to the district court for  a determination as to whether his          claim is procedurally barred as successive and as an abuse of the          writ  under Sandstrom v. Montana, 442 U.S. 510 (1979), whether it                      _________    _______          is new  law with respect to Mains's claim, and if so, whether the          retroactive  application of said law is barred by Teague v. Lane,                                                            ______    ____          489 U.S. 288 (1989).                      We  hold that  the judgment  of the  district court  is          warranted.  Consequently, we affirm.                                     I. BACKGROUND                                    I. BACKGROUND                                    _____________                    On  January  17,  1994,  a Suffolk  County  Grand  Jury          indicted Mains in the  Superior Court of Massachusetts (Sullivan,          J.), for the  crimes of Murder in the First  Degree, in violation          of Mass.  Gen. L. ch.  265,    1, and for  unlawfully carrying  a          firearm, in violation of Mass.  Gen. L. ch. 269,   10.  Mains was          convicted on both charges and was sentenced to life  imprisonment          on the murder charge; the charge of carrying a firearm was placed          on file.  His conviction was upheld by the Supreme Judicial Court          of Massachusetts.1  See   Commonwealth v. Mains, 374  N.E.2d 576,                              ___   ____________    _____          577 (1978).                                        ____________________          1  Petitioner  filed two motions  for a new  trial denied by  the          court on April 22, 1977.  Mains then appealed the  conviction and          the  denial of both motions for a new trial; the Supreme Judicial          Court affirmed the judgment of the Superior Court.                                         -2-                    On May 31, 1978,  Mains filed his first petition  for a          writ  of habeas  corpus pursuant  to 28  U.S.C.    2254, claiming          inter  alia that  the prosecutor  failed to  disclose exculpatory          _____  ____          evidence  about a  key witness,  ineffective assistance  of trial          counsel, and that the  trial judge's instructions to the  jury on          the issue of the  "lawfulness" of the killing violated  his right          to  due process, by effectively  directing the jury  to find that          said element  of the crime was  proven.  On August  13, 1979, the          district court  (Freedman, J.) allowed the  petition, granted the          writ,  and ordered  a new  trial.   However, the  Commonwealth of          Massachusetts appealed,  and  this court  reversed  the  district          court's decision  and  dismissed  the  petition.   See  Mains  v.                                                             ___  _____          Butterworth,  619 F.2d  83, cert.  denied, 449  U.S.  864 (1980).          ___________                 _____  ______          Mains then filed a motion for rehearing wherein he raised, again,          the  issue of  the trial  court's instructions.   The  motion was          denied on March  27, 1980.  The decision stated  that (the court)          "has given this case particularly careful and close attention and          there  is  nothing  in  the  petition  that  was  not  previously          considered."                     On  February 11, 1983, Mains  filed a motion  for a new          trial pro se,  before the  state court, claiming  that the  trial                ___ __          court's instructions to the jury relieved the Commonwealth of its          burden  of proof  on  the  element  of  malice  in  violation  of          Sandstrom  v.  Montana, 442  U.S. 510  (1979).   This  motion was          _________      _______          denied.    Mains'  subsequent  application for  leave  to  appeal          pursuant to Mass. Gen.  L. ch. 278,   33E was  also denied by the                                         -3-          Single Justice of  the Supreme Judicial  Court (Wilkins, J.)  who          c   o   n   c   l   u   d   e   d               t   h   a   t   ,                      [a]rguably,   [the  petitioner's   claim]                      could   be   interpreted  as   either  an                      impermissible presumption,  raising a new                      issue under Sandstrom v.  Montana, supra,                                  _________     _______  _____                      or  a  change  in  the  burden  of proof,                      raising an old issue under In re Winship,                                                 _____________                      supra,  and Mullaney v. Wilbur, supra . .                      _____       ________    ______  _____                      . My inclination is to say that, if there                      is an error at  all, it involves an error                      that could have been raised before.                    On April  6, 1992,  Mains filed  a second petition  for          writ of  habeas corpus pursuant to 28 U.S.C.   2254, a motion for          appointment  of  counsel,  and  a  motion  to  proceed  in  forma                                                                  __  _____          pauperis.2   Respondents filed a motion to dismiss on the grounds          ________          that the  petition was successive and  an abuse of the  writ.  On          May 31, 1994, the district  court (Wolf, J.) granted respondents'          motion and  dismissed the petition.3  In  addition, a certificate          of  probable  cause to  appeal was  granted  on August  15, 1994,          pursuant to Fed. R. App. P. 22(b),4  and Counsel was appointed to          represent Mains on November 3, 1994.                                        ____________________          2   Petitioner  also filed  a motion  for a  show-cause order  on          December 4, 1992.   On June  14, 1993, the district  court (Wolf,          J.) denied appointment of  counsel, granted the motion  for leave          to  proceed in forma pauperis, and  ordered respondents to answer                      __ _____ ________          on or before July 30, 1993.           3   With regard to  respondents' motion to  dismiss, the district          court found, "[i]n essence,  the petitioner has reasserted claims          previously  rejected in  connection with his  original petition[]          and made a new  argument concerning the jury instructions  at his          trial which does not constitute a new claim and, in any event, is          an abuse of the writ."          4  See Barefoot v. Estelle, 463 U.S. 880 (1983); Lozada v. Deeds,             ___ ________    _______                       ______    _____          498 U.S. 430 (1991).                                          -4-                    The sole issue on appeal is whether the district  court          properly  dismissed as  successive and  as an  abuse of  the writ          Mains'  claim  that  the  trial court's  instructions  on  malice          violated his right to due process.5                        Mains's  first Habeas  petition  stems from  the  trial          court's   purportedly  improper  withholding  the  issue  of  the          lawfulness of the  killing from  the jury's  consideration.   The          trial  judge's instruction  stated  that "'there  is no  question          raised  here that there was  a homicide committed',  and that the          jury  must first  determine whether  the defendant  committed the          homicide."  See Commonwealth v. Mains, 374 N.E.2d at 577-578.  In                      ___ ____________    _____          his  petition Mains  asseverates  that the  Commonwealth has  the          burden  of proving  unlawfulness beyond  a reasonable  doubt, and          that there  is  sufficient evidence  which  raises the  issue  of          lawfulness (i.e. that the  alleged victim died with a  gun in his                      ____          hand,  that Mains testified to  having been shot,  and that Mains          was "jammed in" and "couldn't run").                    In  his second  petition Mains  argues that  the malice          instruction was unconstitutional because it shifted the burden of          proof  to Petitioner  and caused  the jury  to find  Mains guilty          unless  he controverted the evidence.   In addition, Mains argues          that  the  unlawful  presumption  or  implied  language,  further                                        ____________________          5  In addition, petitioner further raised that (1)the prosecution          failed to  disclose exculpatory evidence;  (2) he was  denied the          effective  assistance  of  counsel;  and (3)  the  trial  judge's          instructions  to  the jury  removed the  issue of  lawfulness, an          element of the offense,  from their consideration.  All  of these          claims were  dismissed as successive; petitioner  does not appeal          that portion of the district court's decision.                                         -5-          prevented the  jury from  considering manslaughter.   The averred          defective instruction reads as follows:                        "Malice  as  used  in   the  expression                      doesn't   necessarily   imply  ill   will                      towards   the   person   killed.      Any                      intentional  killing  of  a  human  being                      without   legal  justification,   without                      excuse,      with     no      extenuating                      circumstances,  is malicious.  That is to                      say,  it is done  with malice  within the                      meaning    of   that    expression   and,                      therefore,   is   murder,   and  is   not                      manslaughter.                        The   word    "aforethought"   in   the                      expression  malice  aforethought has  its                      ordinary meaning.    That means  to  say,                      "Thought of beforehand; forethought."  If                      the killing was intentional,  even though                      the act followed the  thought immediately                      without   time    for   deliberation   or                      reflection,  the  killing  was then  with                      malice aforethought within the meaning of                      that technical expression of the law, and                      is therefore a murder.                        A   killing   may   be  malicious   and                      consequently  murder,   even  though  the                      slayer didn't wish to cause it.  If a man                      intentionally    and    without     legal                      justification,  excuse   or  extenuation,                      uses upon  the body  of another  person a                      force, for example, a bullet from a  gun,                      that is  used to do grievous  bodily harm                      to  the other  person, or cause  death to                      the other person, and so used will create                      a  clear and  plain  likelihood that  the                      other person  could  or would  die  as  a                      result,  the act is then malicious within                      the meaning  of the law,  even though the                      doer  of the  act was  indifferent as  to                      whether  or  not death  would  result, or                      even if he  wished and  hoped that  death                      would not result, for  it still would  be                      malicious  within  the  meaning   of  the                      statute  concerning  itself with  murder,                      because the word "malice" as used in  the                      law  does not  necessarily mean  or imply                                         -6-                      hatred  or ill  will  toward  the  person                      killed,  but  includes  any intention  to                      inflict   upon  another   serious  injury                      without    justification    or    without                      palliation.  *  *  *                        "Malice aforethought  in the expression                      that  I  have  used  in  connection  with                      murder  in  the  second  degree  I repeat                      includes  every  unjustifiable,  unlawful                      motive,  and malice  can be  implied from                      any  deliberate  and  cruel  act  by  one                      person towards another."                    In  the instant case, even if the malice portion of the          instruction  is  deemed to  differ  from  the unlawfulness  issue          previously raised, said issue was accessible to Mains at the time          when the original  petition was filed.   Rule  9(b) of the  rules          governing  habeas corpus  proceedings,  28 U.S.C.  foll.    2254,          provides  for  dismissal  of  "successive"  petitions,  or  those          petitions which raise grounds that were available, but not relied          upon,  in a prior petition.6  Because Mains had already presented          the issue of whether  the trial court's instructions to  the jury          relieved  the   Commonwealth  of  its  burden   of  proving  each          individual  element of  the  murder offense  beyond a  reasonable                                        ____________________          6   See  Sawyer v.  Whitley,  505 U.S.  333 (1992);  Kuhlmann  v.              ___  ______     _______                          ________          Wilson, 477 U.S. 436,  444 n.6 (1986), quoting Sanders  v. United          ______                                 _______ _______     ______          States, 373 U.S. 1, 17  (1963).  See also Hudson v.  Whitley, 979          ______                           ________ ______     _______          F.2d 1058, 1063 n.10 (5th Cir. 1992).                                         -7-          doubt,7  respondents argue  that  the  district court  adequately          concluded that Mains' claim was precluded by Rule 9(b).8                      Furthermore,  respondents  assert  that the  burden  of          proof argument raised  by the malice instruction, as the argument          presented by  Mains relating to the  instruction on "lawfulness,"          was  available to  Mains  when he  filed  his original  petition.          Respondents  further  allege  that  Mains strives  to  avert  the          effects  of Rule  9(b)'s prohibition  of successive  petitions by          stating  that  said claim  was unavailable  to  him prior  to the          Supreme Court's decision in Sandstrom, as "cause" for failure  to                                      _________          present his claims in the original petition.                                        ____________________          7    In his  original petition,  Mains  claimed that  the judge's          instruction relieved  the Commonwealth  of its burden  of proving          beyond a reasonable doubt an "unlawful" killing with malice.  The          argument  in   Mains'  second   petition  is,  again,   that  the          Commonwealth obtained a conviction without proving  every element          of the offense beyond a reasonable doubt, but regarding the issue          of malice  in the judge's instructions,  Mains includes Sandstrom                                                                  _________          v.  Montana, 442 U.S. 510  (1979), arguing that  because the jury              _______          was told that some evidence of malice was sufficient to support a          conviction, the instruction relieved the Government of its burden          of proof.          8  Rule 9(b) of the rules governing habeas corpus proceedings, 28          U.S.C. foll.   2254 provides, in pertinent part, that "[a] second          or successive petition may  be dismissed if the judge  finds that          it fails to  allege new or  different grounds for relief  and the          prior  determination was on the  merits or, if  new and different          grounds  are alleged,  the judge  finds that  the failure  of the          petitioner  to   assert  those   grounds  in  a   prior  petition          constituted  an abuse of the  writ."  "Grounds",  for purposes of          this  rule, means  a  "sufficient legal  basis  for granting  the          relief sought."  See  Sanders v. United  States, 373 U.S. at  16;                           ___  _______    ______________          Collins v. Zant, 892 F.2d 1502, 1505 (11th Cir. 1990).   In order          _______    ____          to  avoid the preclusive effect of Rule 9(b), a habeas petitioner          must  present a  "new  or different  claim;  a new  or  different                                               _____          argument  (legal or  factual)  in support  of  a claim  that  has          ________          already been raised and  decided on the merits is  not sufficient          to prevent  dismissal of the  claim."  See  Collins, id. at  1505                                                 ___  _______  ___          (emphasis in original).                                          -8-                      Respondents  allege that  to  the  extent that  Mains          failed  to show "cause"9 for his failure  to present the claim in          the original petition, and because the Sandstrom case was decided                                                 _________          five months before the  Commonwealth of Massachusetts appealed to          this  court,10   the  district  court   properly  dismissed   the          petition as successive and as an abuse of the writ.                      In his second petition,  Mains avers that habeas relief          is  warranted because his claim  under Sandstrom is  a "new rule"                                                 _________          which meets the second exception presented in Teague v. Lane, 489                                                        ______    ____          U.S.  288  (1989).    Respondents  counter  by  stating  that the          Sandstrom holding  advanced those principles enumerated  in In re          _________                                                   _____          Winship,  397 U.S. 358 (1970),  and Mullaney v.  Wilbur, 421 U.S.          _______                             ________     ______          684   (1975),  to  presumptions  created  in  jury  instructions.          Respondents  correctly   allege  that  Sandstrom  was  a  "lineal                                                 _________          descendant of Winship; it  simply held that an instruction  which                        _______          creates a presumption of fact violates due process if it relieves                                        ____________________          9  The  abuse of the  writ defense was  raised by respondents  in          their motion to dismiss of  August 5, 1993.  In  their supporting          memorandum,   respondents   presented   the    "cause"   standard          articulated  in McCleskey  v.  Zant,  499  U.S. 467  (1991),  and                          _________      ____          Andiarena  v. United States, 967  F.2d 715, 718  (1st Cir. 1992).          _________     _____________          On   August  9,   1993,  petitioner   filed  his   opposition  to          respondents' motion.  Because  the district court determined that          the petitioner had not demonstrated "cause" sufficient to prevent          dismissal on the ground of  abuse of the writ, the court  did not          reach the issue  of whether the  petitioner had demonstrated  any          "prejudice" or that "a  fundamental miscarriage of justice" would          result if the court did not entertain his claim.           10    The Sandstrom  decision was  announced  in June  1979, five                    _________          months   before  Mains   filed  his   brief  responding   to  the          Commonwealth of Massachusetts' appeal  to this court in  Mains v.                                                                   _____          Butterworth,  supra.    Therefore,   Mains  could  have  employed          ___________   _____          Sandstrom  to   support  his  original  challenge   to  the  jury          _________          instructions during the federal appellate process.                                         -9-          the State of  its burden of  proving all of  the elements of  the          offense  charged beyond  a  reasonable doubt."    See Gilmore  v.                                                            ___ _______          Taylor,        U.S.      ,  113  S.  Ct.   2112,  2118  (1993).11          ______   ____        ____          Respondents conclude  that because Mains had  already argued that          the judge's instruction on lawfulness shifted the burden of proof          and relieved the Commonwealth  of its burden of proving  beyond a          reasonable doubt12 each element  of the offense, the  addition of          Sandstrom13 does  not constitute  a "new claim"  for purposes  of          _________          Teague v. Lane, 489 U.S. 288 (1989).14          ______    ____                    Mains has  failed to show cause or  prejudice to oppose          respondents'  abuse  of the  writ defense.15    The court  is not          persuaded that  in the instant  case Sandstrom constitutes  a new                                               _________                                        ____________________          11  See also Rose  v. Clark, 478 U.S. 570, 580  (1986) (Sandstrom              ________ ____     _____                             _________          was "a logical extension of the Court's holding in In re Winship,                                                             _____________          397 U.S. 358 (1970),  that the prosecution must prove  every fact          necessary  to constitute  a  crime from  which  the defendant  is          charged beyond a reasonable doubt.").          12  See Sandstrom, 442 U.S. at 513.              ___ _________          13    In  Sandstrom,  the  Supreme  Court  determined  that  jury                    _________          instructions which  created a  "mandatory presumption"  of malice          violated a defendant's due process rights.  Id. at 524.                                                      __          14   Mains  submits  as additional  grounds  for his  failure  to          present  his  Sandstrom  claim of  alleged  error  in the  malice                        _________          instruction in his first  habeas petition the fact that  he "only          raised  a challenge to  the lack of  self-defense instruction" in          state  court.  This assertion  also lacks merit.   As respondents          point out, Mains focused  this court's attention to the  issue of          burden  of proof as independent  and different from  the issue of          whether he was entitled  to an instruction on self-defense.   See                                                                        ___          Mains v.  Butterworth, respondents' Exhibit  I, p. 33,  n.19, and          _____     ___________          Mains petition for rehearing, respondents' Exhibit E, p. 2.          15  Because petitioner's claim of error in the malice instruction          is not a new "ground" for Rule 9(b) purposes, the case should not          be remanded.                                         -10-          development in  the law, or an external  factor16 affording Mains          sufficient  cause  for  his   failure  to  present  the  claim.17          Indeed, Mains could have reasonably employed Sandstrom during the                                                       _________          appeal  and subsequent  motion  for rehearing  that followed  his          original petition.   Furthermore, Mains already  made an argument          in his first petition  regarding the instruction, and invoked  In                                                                         __          re  Winship, 397 U.S. 358, 90 S.  Ct. 1068, 25 L.Ed.2d 368 (1970)          ___________          and Mullaney  v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L.Ed.2d              ________     ______          508 (1975), the precedents upon which Sandstrom is premised.                                                  _________                    In  this  regard  we  find that  petitioner's  argument          regarding the malice instruction and burden  shifting presumption          is not advanced and fails to constitute "new ground" for purposes          of  Rule 9(b).     Furthermore, because  the Sandstrom  claim was                                                       _________          reasonably  available to Mains  at the time of  his appeal of the          denial of his first   2254 petition, the same does not constitute          a   "new   rule"   qualifying   it  under   the   second   Teague                                                                     ______          exception.18                                        ____________________          16  See Reed v. Ross, 468 U.S.  1, 16, 104 S. Ct. 2901, 82  L.Ed.              ___ ____    ____          2d 1 (1984)  ("where a constitutional claim is so  novel that its          legal basis is not  reasonably available to counsel, a  defendant          has cause  for his failure to raise  the claim in accordance with          applicable ... procedures.")          17  To  the  extent  that  the  Sandstrom  claim  was  reasonably                                          _________          available to the petitioner,  no just cause has been shown.   See                                                                        ___          Boyer  v. United States, 55  F.3d 296 (7th  Cir. 1995) (plaintiff          _____     _____________          failed  to  offer sufficient  justification  for  not raising  an          additional   "reasonably   available"  claim   in   his  original          petition).           18   In  Teague the  court determined  when a  new rule  deserved                   ______          retroactive effect.   A  new  rule was  defined as  a rule  which          mandates a result "not dictated by precedent existing at the time          the defendant's conviction  became final".   See Teague v.  Lane,                                                       ___ ______     ____                                         -11-                    We need go no  further.  Mains has failed  to establish          sufficient "cause"  or "prejudice"  necessary to reach  the issue          presented in this  successive petition.19   Consequently,  Mains'          habeas  petition  remains  a   casualty  of  its  own  procedural          deficiency.                                    II. CONCLUSION                                    II. CONCLUSION                                    ______________                    For the  above-stated reasons,  we affirm the  district          court's judgment.                     Affirmed.                       ________                                        ____________________          id. at 310.          ___          19  See McCleskey, 111 S.  Ct. at 1470 ("application of the cause              ___ _________          and  prejudice standard in the abuse of the writ context does not          mitigate the force of Teague v. Lane").                                ______    ____                                         -12-
