
USCA1 Opinion

	




          March 3, 1993     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1864                                   THEODIS WATKINS,                                Petitioner, Appellant,                                          v.                                    JOSEPH PONTE,                                Respondent, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                _____________________               Joseph F. Shea, with  whom Nutter, McClennen & Fish,  was on               ______________             ________________________          brief for appellant.               Robert  N. Sikellis,  Assistant  Attorney General,  Criminal               ___________________          Bureau,  with whom  Scott Harshbarger,  Attorney General,  was on                              _________________          brief for appellee.                                 ____________________                                    March 3, 1993                                 ____________________                    TORRUELLA,  Circuit Judge.  Appellant, Theodis Watkins,                                _____________          appeals from the district court's dismissal of his petition under          28 U.S.C.   2254.  We affirm.                                        FACTS                                        FACTS                                        _____                    Watkins was  convicted of  first degree murder  on June          23, 1976 and sentenced to  life in prison.1  In 1979, he  filed a          pro  se petition for a  writ of habeas  corpus ("1979 Petition").          ___  __          The  1979 Petition was  "mixed"; it presented  both exhausted and          unexhausted  claims  for  relief.2   The  magistrate  recommended          dismissal of the  1979 Petition and  the district court  affirmed          after   appellant   failed   to   challenge    the   magistrate's          recommendations within  the prescribed  ten day period.   Watkins          sought a certificate of  probable cause for appeal, Fed.  R. App.          P. 22(b),  on the two claims that had been exhausted.  This court          denied the request and dismissed the appeal.                      Watkins unsuccessfully pursued  his unexhausted  claims          in state court during the  1980s.  In 1990, he filed  the current          petition  for writ  of habeas  corpus ("1990  Petition") alleging          three  grounds  that  were  not  raised  in  the  1979 Petition.3                                        ____________________          1   See Commonwealth v.  Watkins, 373 Mass.  849, 370 N.E.2d  701              ___ ____________     _______          (1977), for the facts underlying Watkins' conviction.          2  The 1979  Petition asserted the following grounds  for relief:          (1) failure  to sequester witnesses;  (2) inadequate instructions          on  manslaughter;  (3)  inadequate instructions  on  malice;  (4)          failure to direct a  verdict for Watkins based on  defective jury          charges that shifted the  burden of proof to the  petitioner; (5)          improper confinement  to the dock during  trial.  At the  time of          filing Watkins had only exhausted the first two grounds.          3   The amended  1990 Petition  sought  relief based  on (1)  the          inadequacy of the trial  court's instruction on reasonable doubt;          (2) the inadequacy of the  court's instruction on the distinction          between first and second degree murder; and (3) the inadequacy of          Relying  on  McCleskey  v. Zant,  111  S.  Ct.  1454 (1991),  the                       _________     ____          district court dismissed the first two grounds as an abuse of the          writ and ruled against Watkins on the third.  Watkins now appeals          only the  two arguments  dismissed for  abuse  of the  writ.   As          appellant  has failed  to raise  the third  ground on  appeal, we          treat it as waived.  Brown  v. Trustees of Boston Univ., 891 F.2d                               _____     ________________________          337, 352 (1st Cir. 1989), cert. denied, 496 U.S. 937 (1990).                                    ____  ______                                      DISCUSSION                                      DISCUSSION                                      __________                    In  McCleskey, the  Supreme Court  used the  cause-and-                        _________          prejudice  standard  applicable to  cases of  procedural default,          see, e.g., Wainwright  v. Sykes, 433 U.S.  72 (1977), as part  of          ___  ____  __________     _____          its analysis  of the  problems arising from  successive petitions          for habeas corpus.  The court stated,                       [t]o  excuse  his  failure  to  raise the                      claim  earlier,  he must  show  cause for                      failing   to   raise  it   and  prejudice                      therefrom  as  those  concepts have  been                      defined   in   our   procedural   default                      decisions.  . .  .  If  petitioner cannot                      show cause, the failure to rise the claim                      in an earlier petition may nonetheless be                      excused  if he  or  she can  show that  a                      fundamental miscarriage  of justice would                      result  from a  failure to  entertain the                      claim.          111 S. Ct. at 1470.  Earlier, in Rose v. Lundy, 455 U.S. 509, 510                                           ____    _____          (1982),  the  Supreme  Court  perceived  that  the  multitude  of          piecemeal habeas  petitions unduly burdened  the federal  courts.          Rose  sought  to  consolidate  the  issues  for  appeal  in   one          ____          proceeding  in  each  court  system by  establishing  the  "total                                        ____________________          the trial court's instruction on malice.                                         -3-          exhaustion"  rule.  But it also preserved immediate access to the          federal  courts  on  exhausted issues,  provided  the  petitioner          consciously  wished to  risk  losing an  opportunity for  federal          review of  other claims.  455  U.S. at 510.   Thus, Rose required                                                              ____          that district  courts entertaining mixed  habeas petitions  offer          petitioners an  explicit choice to proceed on exhausted claims or          delay federal review to bring all claims once exhausted.  Id.                                                                    ___                    The  Commonwealth contends that  Watkins' 1990 Petition          falls  squarely within  McCleskey  because back  in 1979  Watkins                                  _________          chose  to appeal only the  two exhausted claims  presented in the          1979 Petition, and, therefore, bore  the "risks [of] dismissal of          [his]  subsequent  federal petition[]"  for  abuse  of the  writ.          Rose, 455  U.S. at  510;  McCleskey, 111  S. Ct.  at  1467.   The          ____                      _________          Commonwealth  argues  further that  Watkins  abused  the writ  by          failing to  assert the  reasonable doubt  and  the second  degree          murder claims in the original 1979 Petition since Watkins did not          allege,  nor could  he, that  he lacked  a substantial  basis for          those claims in 1979.  See McCleskey, 111 S. Ct. at 1468.                                 ___ _________                    Watkins counters  that the merits of  the two exhausted          claims  in the 1979 Petition were never properly before the court          of appeals because Watkins was never presented the choice between          dismissal and  continuing only with exhausted  claims as required          by  Rose, 455 U.S.  at 510.   According to Watkins,  the district              ____          court  effectively made  the  choice for  him  by dismissing  the          petition  as mixed.   On appeal,  this court  refused to  issue a          certificate  of probable cause  and dismissed the  appeal.  Thus,                                         -4-          argues Watkins, there can  be no abuse because the  1990 Petition          is the first petition properly before the court.                    We  agree with  the Commonwealth  that we  reviewed the          merits  of two exhausted claims in the 1979 Petition.  Watkins v.                                                                 _______          Callahan, Misc.  No. 80-8063 (1st Cir.  Nov. 20, 1980).   When we          ________          decided that appeal, the  Supreme Court's "total exhaustion" rule          of Rose  had not  yet  been decided.    This Circuit,  and  seven             ____          others, did not  condition district court review of  mixed habeas          petitions on exhaustion of all state court claims.  See Rose, 455                                                              ___ ____          U.S. at 513 n.5 and cases cited therein; Miller v. Hall, 536 F.2d                                                   ______    ____          967, 969  (1st Cir. 1976); Katz  v. King, 627 F.2d  568, 574 (1st                                     ____     ____          Cir. 1980).   In Niziolek  v. Ashe, 694  F.2d 282, 287  (1st Cir.                           ________     ____          1982), we held that individuals "who filed mixed petitions before          Rose issued  should  not be  penalized  for having  followed  the          ____          procedure that prevailed at  the time."  That practice  permitted          the  court   to  rule  on  exhausted   claims,  while  dismissing          unexhausted claims,  because "it would be  indefensible to refuse          to consider a  meritorious claim  merely on the  grounds that  it          might eventually be mooted  by a favorable state court  ruling on          his  appeal of  unrelated  issues."   Miller,  536 F.2d  at  969.                                                ______          Providing prompt relief to  individuals who filed mixed petitions          obviously  did not  contemplate  summarily  rejecting  subsequent          petitions.                    We followed the pre-Rose  procedure with respect to the                                        ____          1979 Petition.  We  dismissed the merits of the  exhausted claims          and  reserved consideration  of  the unexhausted  claims.   Thus,                                         -5-          Watkins reasonably assumed that we would consider his unexhausted          claims  in a  subsequent  petition once  he  had exhausted  them.          Because  we considered the 1979 Petition  on the merits, however,          we  must use  it  as the  bench  mark for  the  abuse-of-the-writ          analysis.                    In   this   context,  McCleskey's   cause-and-prejudice                                          _________          standard plainly requires the  dismissal of claims raised  in the          1990  Petition  that   Watkins  failed  to  raise  in   the  1979          Petition.4   To justify the  failure to raise  a claim, appellant          must demonstrate  that some  "external impediment, whether  it be          government  interference or the  reasonable unavailability of the          factual  basis for  the  claim, must  have  prevented [him]  from          raising the claim."  McCleskey, 111 S. Ct. at 1472.  Watkins also                               _________          failed  to demonstrate that  he made  a "reasonable  and diligent          investigation aimed at including  all relevant claims and grounds          for relief in  the first federal habeas petition."   Id. at 1472.                                                               ___          This test forms the cause prong of the McCleskey test and Watkins                                                 _________          failed  to meet  it.    Although  Watkins' counsel  asserted that          Watkins could meet both prongs at the hearing before the district          court on  the 1990 Petition, he never  explained how.  On appeal,          Watkins  did  not  raise the  argument.    We  conclude that  the          reasonable  doubt  and  second-degree murder  challenges  to  his          conviction  were available  to Watkins  at the  time of  the 1979          Petition and  that he  has shown  no cause  for failing to  raise                                        ____________________          4   Despite the age of this case there is no problem as McCleskey                                                                  _________          applies retroactively.  Andiarena v. United States, 967 F.2d 715,                                  _________    _____________          717-18 (1st Cir. 1992).                                         -6-          them.                    Finally, Watkins' argues that even if the 1990 Petition          is an abuse, a "fundamental miscarriage of justice  would result"          from  refusing to  consider his  new claims.   This  exception to          McCleskey   is   narrow,  as   it   is   contemplated  only   for          _________          "extraordinary instances when a constitutional violation probably          has caused the conviction of one innocent of the crime."   Id. at                                                                     ___          1470.    In  describing   this  exception,  the  McCleskey  court                                                           _________          suggested that the petitioner  must supplement the constitutional          violation with  a "colorable showing of factual  innocence."  Id.                                                                        ___          at 1471 (quoting Kuhlmann  v. Wilson, 477 U.S. 436,  454 (1986));                           ________     ______          see also Wise v. Fulcomer, 958 F.2d 30, 34 (3d Cir. 1992).            ________ ____    ________                    Watkins'  case  falls  outside  this  narrow  exception          because he did not squarely raise the "fundamental miscarriage of          justice" issue before the  district court.  While he  claims that          the  argument  was  implicit  in  his Memorandum  in  Support  of          Petition  for Writ of Habeas Corpus, we find this insufficient in          light of the fact that Watkins did not argue the exception at the          hearing  before the district court  when it ruled  against him on          the basis of McCleskey.5                         _________                    "This circuit  religiously follows the rule that issues          not  presented to the district court cannot be raised on appeal."          Ouimette v. Moran,  942 F.2d 1, 12 (1st  Cir. 1991) (rule applied          ________    _____                                        ____________________          5   We note that Watkins  also failed to object  to the allegedly          infirm  instruction  at  the  original trial.    Commonwealth  v.                                                           ____________          Watkins, Crim. Action No.  95-794, slip op. at 3-4  (Superior Ct.          _______          July 7, 1989).                                          -7-          in  habeas context); Knight v.  United States, 611  F.2d 918, 920                               ______     _____________          n.2 (1st Cir. 1979)  (rule applied in habeas  context).  Only  in          cases in which "a  gross miscarriage of justice" would  occur and          in  which  "the new  ground [is]  so  compelling as  to virtually          insure appellant's  success" can we consider  arguments that were          not raised below.  Hern ndez-Hern ndez v. United States, 904 F.2d                             ___________________    _____________          758, 763 (1st Cir.  1990) (quoting Johnston v. Holiday  Inns, 595                                             ________    _____________          F.2d 890,  894 (1st Cir.  1979)).   To determine whether  a gross          miscarriage  of justice  would occur  if we  do not  consider the          McCleskey exception, we must look at appellant's claims.          _________                    Watkins   first  challenges  the   trial  court's  jury          instructions on reasonable doubt.  He claims that four aspects of          the   instructions,   when    taken   together,   derogate    the          Commonwealth's  burden of proof.   First, the  trial court stated          that  reasonable doubt  was  not "foolish"  or "fanciful"  doubt.          Second,  it suggested  that reasonable  doubt was  something less          than  a "mathematical  or an  artificial  certainty."   Third, it          presented its  instruction on essential  elements of a  crime, as          opposed to collateral  issues, in a  confusing manner.   Finally,          the  trial court  stated that  "the average  layman's version  of          'reasonable doubt' would  come pretty  close to what  the law  in          much more technical language says."                      While criminal defendants often  challenge instructions          on reasonable doubt, "our experience has been that even imperfect          formulations usually meet constitutional requirements when viewed          in  the context of the  entire charge."   Lanigan v. Maloney, 853                                                    _______    _______                                         -8-          F.2d 40, 45 (1st Cir. 1988), cert. denied, 488 U.S. 1007  (1989).                                       ____  ______          We  must "tolerate a reasonable range of expression, some or even          much of which may not  suit our fancy," unless we impose  pattern          jury instructions.  Bumpus v. Gunter, 635 F.2d 907, 910 (1st Cir.                              ______    ______          1980), cert.  denied, 450 U.S.  1003 (1981).   In this  case, the                 ____   ______          trial  judge's instruction  on  reasonable doubt  were less  than          perfect.   They were confusing in  parts, but do not  rise to the          level of constitutional infirmity.                      The trial  court's statement with respect  to "foolish"          or  "fanciful" doubt came close to the instruction we censured in          Dunn v. Perrin,  570 F.2d 21,  24 (1st  Cir.), cert. denied,  437          ____    ______                                 ____  ______          U.S. 910 (1978).  In Dunn,  the trial court erred by shifting the                               ____          burden to the  defendant.   It stated that  reasonable doubt  was          doubt  that could not "readily or easily [be] explained away, but          rather such  a strong  and abiding  conviction  as still  remains          after careful consideration of all the  facts and arguments . . .          ."  Id.    In this case, the trial court did not shift the burden              ___          to defendant.   It stated that reasonable doubt was "a doubt that          resides in the mind of a  reasonable man who is earnestly seeking          the truth.   It is not  a foolish doubt.   It  is not a  fanciful          doubt.  It is  not a doubt in the  mind of a juror who  is simply          seeking  an  excuse  to  acquit  a  defendant."    While  a  poor          formulation,  this instruction  essentially asked  the jurors  to          seriously pursue  the truth.   Appellant's  reliance  on Dunn  is                                                                   ____          misplaced.                       With  respect to the  other errors alleged,  it is true                                         -9-          that the trial judge indicated that a mathematical certainty  was          not possible.  The  trial judge nonetheless exhorted the  jury to          be  as  certain  as  humanly  possible  and  instructed that  the          Commonwealth  was  required  to   prove  each  element  beyond  a          reasonable doubt, if in a  somewhat convoluted manner.   Finally,          the  introductory comment  that the  layman's version  is "pretty          close" to  the law's  technical definition, even  when considered          along  side  the other  disputed  verbal  formulations, does  not          prevent us from finding that the challenged aspects of the charge          did not  "so infect the entire  charge and trial as  to cause the          jury to evaluate petitioner's guilt or innocence under a standard          less  than 'beyond a reasonable doubt'."  Lanigan v. Maloney, 853                                                    _______    _______          F.2d 40, 48 n.7 (1st Cir. 1988) (quoting Bumpus, 635 F.2d at 909,                                                   ______          for standard  required to reverse state  conviction on reasonable          doubt  instruction).     The  trial   court  did  not   commit  a          constitutional  error in  its instructions  on reasonable  doubt.          Thus,  we do not find his  arguments "so compelling" as to insure          success and,  consequently, there has been  no "gross miscarriage          of justice."  Hern ndez-Hern ndez, 904 F.2d at 763.                           ___________________                    Appellant also challenges the trial court's instruction          on the definition of  premeditated murder.  During deliberations,          the jury  requested further  instruction on  premeditated murder.          The trial judge answered their question by stating,                       [p]remeditated  murder  as  distinguished                      from murder  in the  second degree is  if                      [sic]  it  is planned  beforehand,  or to                      give  you  an alternative  definition, if                      there  is a  definite decision  to commit                      the act followed by the commission of the                                         -10-                      act, that would be premeditation.          None of the  Massachusetts Supreme Judicial Court  cases cited by          appellant  undermines  this  charge.   The  charge  accords  with          Commonwealth v. Ruci,  409 Mass.  94, 96, 564  N.E.2d 1000,  1002          ____________    ____          (1991), which requires that defendant reflect on  a resolution to          kill  the victim,  and with  Commonwealth v. Callahan,  401 Mass.                                       ____________    ________          627, 633, 519 N.E.2d 245,  249 (1988), which states that  the act          not be so  spontaneous as  to prevent reflection.   Neither  case          mandates  that  specific words  be  used.   Moreover,  the  court          indicated  in  Callahan that  the  judge's  added statement  that                         ________          premeditation  "excludes action which  is taken  so spontaneously          that there is no time to think," was appropriate only because the          judge   earlier  stated  that  premeditation  "may  occur  within          seconds."   The  trial judge  in  this case  did not  imply  that          premeditation  could be formed in seconds.  In this case, Watkins          argued with the victim in the hallway outside the apartment, went          to the  kitchen to get a knife, and returned to the hallway where          he fatally stabbed the victim.  Watkins had time to reflect.                    The jury focused on the critical distinction  necessary          to find guilt  beyond a reasonable  doubt of the  crime of  first          degree murder.   It chose to  convict Watkins.  Again,  we do not          find  Watkins'   arguments  compelling  and  discern   no  "gross          miscarriage of  justice."  Hern ndez-Hern ndez, 904  F.2d at 763.                                     ___________________          Thus, we  are not required to considered the McCleskey exception.                                                       _________          As a final matter, we note that Watkins has not made "a colorable          showing of  factual innocence," making the  likelihood of success                                         -11-          on the exception exceptionally slim.                    Because the district court properly  dismissed Watkins'          new arguments as an abuse of the writ, we affirm.                    Affirmed.                    ________                                         -12-
