November 29, 1993

                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 93-1716 

                       JERRY LARRIVEE,

                    Plaintiff, Appellant,

                              v.

                         MCC, SUPT.,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

           [Hon. Gene Carter, U.S. District Judge]
                                                 

                                         

                            Before

                     Breyer, Chief Judge,
                                        
             Torruella and Selya, Circuit Judges.
                                                

                                         

Jerry  Larrivee on  Memorandum of  Law  Seeking Probable  Cause to
               
Appeal.

                                         

                                         

          Per  Curiam.   Petitioner  Jerry  Larrivee seeks  a
                     

certificate of probable cause to  appeal the dismissal of his

28 U.S.C.   2254 habeas petition.  For  the reasons set forth

below, we deny his request.   Petitioner was convicted, after

a jury  trial, of burglary,  robbery, theft of a  firearm and

possession of  a firearm by  a felon.   This  was his  second

conviction;  both  convictions  arose  out  of  robberies  of

taxicab  drivers.    His conviction  was  affirmed  on direct

appeal.  See State v. Larrivee, 563 A.2d 1104 (Me. 1989).
                              

          Petitioner's habeas petition  contains four grounds

for   relief:    (1)   withholding  of  information   by  the

prosecutor;  (2) conviction obtained  by the use  of perjured

testimony of a witness; (3) conviction obtained by the use of

an   inadmissable  and   involuntary   confession;  and   (4)

conviction   obtained   by   an   unconstitutional   in-court

identification.  The district court referred the  matter to a

magistrate judge.   He  rejected grounds one  and two  on the

basis that they had been disposed of on the merits in a prior

habeas petition.

          As for grounds three and four, the magistrate judge

basically determined  that these claims had  been "exhausted"

in  the  sense  that  petitioner now  would  be  barred  from

pursuing any  state remedy.   However,  the magistrate  judge

went on, petitioner  failed to show cause for this procedural

default.  In addition, the  magistrate judge stated that  the

Fourth Amendment aspect of  the admissability of petitioner's

confession was  barred.  See  Stone v. Powell, 428  U.S. 465,
                                             

494 (1976) (where habeas petitioner had a full opportunity to

litigate  such a  matter  in state  court,  federal court  is

barred from considering it in a   2254 petition).

          We agree that petitioner may not pursue grounds one

and  two in  this habeas action.   In addition  to the reason

given by  the district court,  it is plain that  these claims

have been procedurally defaulted.   Petitioner presented both

of these  grounds in a Maine R. Crim.  P. 33 new trial motion

and in a  post-conviction review petition.   In rejecting the

claims in the  latter proceeding, the  state court held  that

the  issues  of  the  use   of  perjured  testimony  and  the

withholding  of evidence from the defense  were barred on the

basis that "[r]ather than relitigating [these] grounds in the

present proceeding, the proper procedure  for contesting [the

Rule 33] decision  is through direct appeal to  the Maine Law

Court."  Under  Coleman v. Thompson, 111 S.  Ct. 2546 (1991),
                                   

if  a "state court decline[s] to address a prisoner's federal

claims  because the  prisoner ha[s]  failed to  meet a  state

procedural  requirement," the  prisoner must  show cause  and

prejudice to  be entitled to  federal habeas review.   Id. at
                                                          

2554, 2565.  Petitioner has not made this showing.1

                    

1.  We also agree with the district court's reliance on Stone
                                                             
v. Powell to  dismiss the claim that  petitioner's confession
         
was obtained in violation of the Fourth Amendment; petitioner

                             -3-

          In relation to  grounds three and four,  it appears

from the State's  Response to the habeas  petition that there

is a  real question  whether  petitioner may  have, in  fact,

satisfied the exhaustion requirement.  Rather than remand the

matter, however, we  will assume exhaustion for  the purposes

of disposing  of petitioner's  request for  a certificate  of

probable cause on the merits.

          1.   Involuntary  Confession.   Petitioner  alleges
                                      

that the following events rendered his confession involuntary

and,  hence,  inadmissable.    After  his arrest,  petitioner

states that he  was interrogated by four  police officers for

two hours; one of the officers stood behind him at all times.

At some point, according to  petitioner, he was informed that

the  police had  in  their possession  a  statement from  two

persons  implicating  him  in  the  offense.    According  to

petitioner, there only  was a statement from  one individual.

Finally, upon  being promised that  if he confessed  he would

not  be  prosecuted,  petitioner narrated  a  statement.   He

asserts that  the only reason he  did so was because  of this
                      

promise.  He further alleges that he was not allowed  to read

over his statement in order to make changes.2  

                    

has not  alleged the denial  of an opportunity to  raise this
issue in state court.

2.  Petitioner's assertion that the state  trial court should
have held a  hearing on the question of  the voluntariness of
his confession  once petitioner  testified that  it was  made
under  "the use  of inducement"  is  without merit.   In  the

                             -4-

          To determine the question of voluntariness, we must

consider what effect the totality of the circumstances had on

petitioner's will.   See Schneckloth v. Bustamonte,  412 U.S.
                                                  

218,  226-27 (1973).    In  the context  of  a habeas  corpus

petition, petitioner has the burden of demonstrating that his

will was overborne  by police tactics and that,  as a result,

his confession was  the product of a  "`critically impaired'"

intellect.  See Jenner v. Smith, 982 F.2d 329, 333 (8th Cir.)
                               

(citation omitted), cert.  denied, 62  U.S.L.W. 3245  (1993);
                                 

see also United States v.  Lawrence, 889 F.2d 1187, 1189 (1st
                                   

Cir. 1989) (a showing that psychological or physical pressure

overrode a  defendant's will required).  A  confession is not

involuntary unless the police  overreached by using  coercive

tactics  to   elicit  an   incriminating  statement   from  a

defendant.  See  Colorado v. Connelly,  479 U.S. 157,  163-64
                                     

(1986).

          Here, there is nothing to indicate  that petitioner

was anything  else but of  normal intelligence.  He  does not

assert that  he was  illiterate or uneducated.   Further,  we

assume, because petitioner does not indicate to the contrary,

                    

absence of a motion to  suppress the statement prior to trial
or  an objection  to its  admission during trial,  there must
exist "alerting circumstances" before a court has the duty to
sua  sponte inquire into  the voluntariness of  a confession.
           
See United  States v. Santiago  Soto, 871 F.2d 200,  202 (1st
                                    
Cir.) (per  curiam), cert. denied,  493 U.S. 831 (1989).   No
                                 
such circumstances exist  here.  Id. (duty to  hold a hearing
                                    
if it appears  defendant is impaired physically  or mentally)
(citing cases).

                             -5-

that  he had  been advised  of  his Miranda  rights upon  his
                                           

arrest.  See Miranda  v. Arizona, 384 U.S. 436 (1966).  Thus,
                                

he was aware that any statement he made could be used against

him.  See  Evans v. Dowd, 932  F.2d 739, 742 (8th  Cir.) (per
                        

curiam)  (Where Miranda  warnings were  given,  "it would  be
                       

difficult  to conclude that the police coerced the confession

while at the  same time warning [defendant] that  he need not

say anything."), cert. denied, 112 S. Ct. 385 (1991).
                             

          Petitioner's most  serious allegation  is that  the

police  specifically promised that he would not be prosecuted

if he confessed.   In  Bram v.  United States,  168 U.S.  532
                                             

(1897), upon  which petitioner relies, the Court  held that a

confession  is  involuntary   if  it  was  obtained   by  any
                                                             

promises -- implied or direct, substantial or slight.  Id. at
                                                          

542-43.   However, Bram "has not been interpreted as a per se
                                                             

proscription against any promises made during interrogation."

Miller v. Fenton, 796 F.2d  598, 608 (3d Cir.), cert. denied,
                                                            

479 U.S. 989 (1986).  The question is whether the promise, by

overcoming  the will  of petitioner, induced  the confession;
                    

that is, "whether,  under the totality of  the circumstances,

the statement induced the confession, not whether it was,  on

its face, a promise."  Id.  at 609 n.10.
                          

          The  bare  statement  that  petitioner  decided  to

confess  because of  a police  promise that  he would  not be

prosecuted, standing  alone, does not  satisfy this  inquiry.

                             -6-

What  is  missing  are factual  allegations  of  any specific

behavior or  conversations.   See United  States v.  Santiago
                                                             

Soto, 871 F.2d 200, 202  (1st Cir.) (per curiam) (no coercion
    

where  allegation   that  defendant  was   afraid  of  postal

inspectors  not supported by  "a description of  any specific

behavior"),  cert. denied,  493 U.S.  831  (1989).   Further,
                         

there is no indication in any of  petitioner's pleadings that

he  was in  a weakened  state  of mind  due to  psychological

pressures or that, due to  the length of the questioning, the

use of  physical punishments,  or the threat  of violence  or

prolonged  incarceration, he was no longer rational.  Compare
                                                             

Davis  v. North  Carolina, 384 U.S.  737, 745-47,  752 (1966)
                         

(defendant held for sixteen days under repeated interrogation

without   being  told  of  rights;  confession  found  to  be

involuntary); Payne  v. Arkansas,  356 U.S.  560, 567  (1958)
                                

(confession  involuntary  where   defendant  not  advised  of

rights,  held incommunicado for  three days, denied  food for

long periods of time and threatened with violence).

          We only note  that courts have upheld  as voluntary

confessions given in circumstances more coercive than alleged

here.  See, e.g., Stein v. New York, 346 U.S. 156, 185 (1953)
                                   

(12-hour interrogation stretched out over 32-hour period, not

so "oppressive as to overwhelm powers of resistance"); United
                                                             

States  v.  Kiendra, 663  F.2d  349, 351-52  (1st  Cir. 1981)
                   

(confession held voluntary despite fact that defendant,  with

                             -7-

a ninth-grade education, held in solitary confinement for one

month before confession);  United States v. Parker,  549 F.2d
                                                  

1217,  1220-21  (9th  Cir.)  (confession  determined   to  be

voluntary even  though defendant interrogated  for four hours

and despite  existence of dispute  as to whether  agents used

promises of drugs and physical force), cert. denied, 430 U.S.
                                                   

971 (1977).  See generally Lawrence, 889 F.2d at 1190.
                                   

          2.     Unconstitutional  In-court   Identification.
                                                            

Although not entirely clear, petitioner apparently bases this

claim on his assertion that he did not resemble either of the

descriptions of the  perpetrators given to the  police by the

victim.  As a result, he asserts, the in-court identification

was impermissibly  "tainted."   Petitioner goes  on to  argue

that if the fact of the prior descriptions had been disclosed

to  the defense,  the  "misidentification"  never would  have

occurred.

          These  allegations do  not  state a  constitutional

claim.   This  is not  the case  where a  suggestive pretrial

identification procedure "tainted" an in-court identification

during trial.  See e.g., Stovall v. Denno, 388 U.S.  293, 302
                                         

(1967)  (individual  showup  in   hospital  room).    Rather,

petitioner's  concern appears  to be  evidentiary in  nature.

That is, he argues that if he had had,  at the time of trial,

the   information   concerning  the   victim's   description,

petitioner  could have  impeached  the victim's  credibility.

                             -8-

Because  petitioner  has  procedurally  defaulted  the  claim

concerning  the  failure  of  the   prosecution  to  disclose

exculpatory   material,  this  claim,   by  itself,   is  not

cognizable  under   2254.  See Neil v. Biggers, 409 U.S. 188,
                                              

196-201 (1972).

          The  request for a certificate of probable cause is

denied.  The motion to proceed in forma pauperis on appeal is
      

moot.
    

                             -9-
