March 8, 1994     UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 93-2105

                       THOMAS A. MAGEE,

                    Petitioner, Appellant,

                              v.

                  SCOTT HARSHBARGER, ET AL.,

                   Respondents, Appellees.

                                         

                         ERRATA SHEET

   The opinion  of this  COurt issued on  February 24,  1994 is
amended as follows:

   On cover sheet under list of counsel "Elizabeth J. Medvedow"
                                                              
should be corrected to read "Elisabeth J. Medvedow."
                                                

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 93-2105

                       THOMAS A. MAGEE,

                    Petitioner, Appellant,

                              v.

                  SCOTT HARSHBARGER, ET AL.,

                   Respondents, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Douglas P. Woodlock, U.S. District Judge]
                                                     

                                         

                            Before

                   Torruella, Circuit Judge,
                                           
                    Bownes, Senior Judge,
                                        
                  and Selya, Circuit Judge.
                                          

                                         

   Brownlow M.  Speer with  whom Committee  for Public  Counsel
                                                               
Services was on brief for appellant.
      
   Elisabeth J. Medvedow, Assistant Attorney General, with whom
                        
Scott Harshbarger, Attorney General, was on brief for appellees.
               

                                         

                      February 24, 1994
                                         

          BOWNES, Senior Circuit Judge.  Petitioner Thomas A.
          BOWNES, Senior Circuit Judge.
                                      

Magee appeals the district court's denial of his petition for

a  writ of habeas  corpus.    The  district court  ruled that

petitioner  failed to  satisfy  the "cause"  and  "prejudice"

requirement  which  must  be met  before  federal  courts can

collaterally  review  the  merits  of procedurally  defaulted

constitutional claims.  Because petitioner has failed to show

"cause" for his procedural default, we affirm.

                              I.

                          BACKGROUND
                                    

          We  recite the facts pertinent to the issues raised

on  this appeal.1   Petitioner was  tried in  a Massachusetts

state  court, along with  his co-defendant Patrick  Tracy, on

charges of armed robbery, carrying a firearm, and  receipt of

stolen property.   The  jury found  petitioner guilty of  the

first two offenses but acquitted him of the third.2

          During the  trial  the  Commonwealth  offered  into

evidence a "booking slip" that had been completed by a police

officer  shortly after petitioner's arrest.  The booking slip

contained biographical information such as petitioner's  age,

                    

1.  A  full recitation  of  the  facts can  be  found in  the
opinion  of the Massachusetts Appeals Court.  Commonwealth v.
                                                          
Tracy, 539 N.E.2d  1043 (Mass. App. Ct.  1989), review denied
                                                             
sub nom., Commonwealth v. Magee, 542 N.E.2d 602 (Mass. 1989).
                               

2.  Tracy, a Vietnam  veteran, was found not guilty  of armed
robbery by  reason of  insanity stemming from  post-traumatic
stress  disorder.   Tracy,  539  N.E.2d  at  1044.   He  was,
                         
however, convicted of the two other charges.  Id.
                                                 

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height and weight.  The lines directly below this information

were reserved for petitioner's offense.  Petitioner's offense

was  written in large  block letters  as "C.  265    17 ARMED

ROBBERY  WITH A  DANGEROUS WEAPON."   Just  after this  entry

appears  a  second,  smaller  notation:   "2  c.  265     18B

committing an offense while using a firearm (2nd offense)." 
                                                

          On the same  day that the prosecution  received the

booking  slip  from  the police,  it  offered  the  slip into

evidence.  Prior to the introduction of the booking slip into

evidence,   defense  counsel  had   a  brief  but  sufficient

opportunity  to  examine it.    Tracy,  539 N.E.2d  at  1047.
                                     

Defense counsel failed  to notice the "2nd  offense" notation

and  proceeded   to  cross-examine  the  police  officer  who

completed  the slip about  addresses on  it.   Id.   The only
                                                  

objection  raised  by  defense counsel  with  respect  to the

booking slip was that the  Commonwealth was in violation of a

pretrial discovery agreement.

          Three  days  after  the  jury  returned  its guilty

verdict defense  counsel  first  noticed  the  "2nd  offense"

notation, and moved  for a new  trial on the ground  that the

allegedly prejudicial  second offense  notation rendered  his

trial  fundamentally unfair.    The motion  was  denied.   On

direct  review the Appeals Court held that because petitioner

did not seek to exclude  the booking slip from evidence based

upon  the "2nd  offense" notation  at the  time the  slip was

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                              3

offered  by the government, he had procedurally defaulted his

booking slip objection.  Therefore,  under Massachusetts law,

petitioner's  conviction  would  be  upheld  unless he  could

demonstrate a "substantial risk of a miscarriage of justice."

Tracy, 539  N.E.2d at  1046.  Not  finding such,  the Appeals
     

Court affirmed petitioner's  conviction, and his  application

for  review before  the Supreme  Judicial  Court was  denied.

Commonwealth v. Tracy, 539 N.E.2d 1043 (Mass. App. Ct. 1989),
                     

review denied sub nom., Commonwealth v. Magee, 542 N.E.2d 602
                                             

(Mass. 1989).  Petitioner then sought a writ of habeas corpus

from the  United States  District Court  for the  District of

Massachusetts.    The  petition was  denied  and  this appeal

ensued.

                              II.

                          DISCUSSION
                                    

          Federal habeas review is generally precluded when a

state court reaches its decision  on the basis of an adequate

and independent state  ground.  Coleman  v. Thompson, 111  S.
                                                    

Ct. 2546, 2553-54  (1991); Harris v. Reed, 489  U.S. 255, 262
                                         

(1989); Wainwright v. Sykes, 433 U.S. 72, 81 (1977).  Where a
                           

state  court  decision  rests on  a  petitioner's  failure to

comply with a  contemporaneous objection rule at  the time of

trial, this constitutes  an adequate and independent  ground.

Wainright, 433 U.S. at 87.
         

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                              4

          Under  prevailing  habeas corpus  jurisprudence,  a

defendant's failure to comply with  a state's contemporaneous

objection  rule  at  trial  forecloses  judicial scrutiny  on

collateral  review   if  "1)   the  state   in  fact   has  a

`contemporaneous objection' rule;  2) the state  enforces and

does  not waive the rule; and  3) the defendant fails to show

both  `cause' for and  `prejudice' from, not  having complied

with  the rule."   McCown  v. Callahan,  726 F.2d  1, 3  (1st
                                      

Cir.), cert. denied, 469 U.S.  839 (1984); see also Puleio v.
                                                          

Vose, 830 F.2d 1197, 1199  (1st Cir. 1987), cert. denied, 485
                                                        

U.S.  990 (1988); Allen v. Commonwealth of Massachusetts, 926
                                                        

F.2d 74, 78 (1st Cir. 1991).3

          On  appeal,   petitioner  does  not   dispute  that

Massachusetts has such a contemporaneous objection rule, that

it   enforces  its  rule,  and   does  not  waive  the  rule.

Accordingly, our inquiry  focuses on  whether petitioner  can

show cause  for his procedural  default as well  as prejudice

from the alleged  violation.  Petitioner maintains  that "the

factual basis  for the  claim [that the  booking slip  should

have  been   excluded  because  it  contained  a  prejudicial

notation]  was not  reasonably  available  to [his]  counsel,

                    

3.  Although  an  exception  to   the  cause  plus  prejudice
requirement exists where failure to consider the claim on the
merits  would result in a fundamental miscarriage of justice,
Coleman v. Thompson, 111 S.  Ct. at 2564, petitioner does not
                   
contend  that this  exception  applies.   In  any event,  the
record does not support such a claim.

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                              5

because official misconduct (the prosecutor's introduction of

an irrelevant document as an  exhibit) made it likely that he

would not notice the prejudicial notation in the document  at

the time it was offered."  Brief for Petitioner at 26.

          In  order  to  establish  cause  for  the  default,

petitioner  must  demonstrate  "that  some  objective  factor

external to  the defense impeded [defense]  counsel's efforts

to  comply with  the  State's procedural  rule."   Murray  v.
                                                         

Carrier, 477 U.S. 478, 488 (1986).  Two objective impediments
       

identified by  the Court  as sufficient  to constitute  cause

under this standard  are (1) that the factual  or legal basis

for a claim was not reasonably available to defense  counsel,

or  (2)   that  interference  by  officials  made  compliance

impracticable.  Id.
                   

          As a preliminary  matter, the Commonwealth  argues,

and  our  review  of the  record  reveals,  that petitioner's

"cause" argument  has  undergone some  alterations since  the

district court denied his petition.  Below, petitioner argued

that "cause"  for  his  procedural  default  existed  because

defense counsel did  not have sufficient time  to examine the

booking slip.  Petitioner also argued that his attorney could

not have been  expected to examine the booking  slip prior to

trial  since  the  document  was  irrelevant.    There is  no

indication  in  the  record,  however,  that petitioner  ever

presented  the district  court  with its  present contention,

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                              6

i.e., that  the prosecutor knowingly proffered  an irrelevant
    

document in order  to introduce prejudicial information  into

evidence.    It  is  a  settled rule  in  this  circuit  that

"theories not raised squarely in the district court cannot be

surfaced  for   the  first  time   on  appeal."     McCoy  v.
                                                         

Massachusetts Inst. of  Technology, 950 F.2d 13, 22 (1st Cir.
                                  

1991), cert. denied, 112 S. Ct. 1939 (1992).
                   

          Nonetheless,  assuming  arguendo  that petitioner's
                                          

current "cause" theory is  properly before us, we  are unable

to find any "external impediments" to trial counsel's failure

to  timely  notice  the allegedly  prejudicial  entry  on the

booking slip.  The government's introduction into evidence of

an  irrelevant  document   containing  allegedly  prejudicial

information did not obviate defense counsel's  responsibility

nor in  any way impair  his ability to carefully  examine the

entire booking  slip.4   This  is  particularly true  in  the

instant  case,  where  defense  counsel  extensively   cross-

examined the  officer who  completed the  booking slip  about

other information  contained on  the slip.   Defense  counsel

even moved for a mistrial on the basis of that information.

          Moreover,  the factual basis for the claim was more

than reasonably  available to  defense counsel  prior to  the

                    

4.  Petitioner's  focus  on   the  booking  slip's   lack  of
relevance is long  past due.  Although the  Appeals Court did
note that the booking  slip was not relevant to  any issue at
trial, Tracy,  539 N.E.2d  at 1046,  defense counsel  did not
                                                             
object at trial to the slip's admission on this ground.

                             -7-
                              7

admission of the  booking slip into evidence.   The allegedly

prejudicial notation  was on the  face of the slip  which was

given to defense  counsel for examination prior  to admission

into evidence.  As the  Appeals Court noted, "counsel may not

have had much time to look  at the booking slip prior to  its

introduction," but he  "had ample time  to examine the  slip"

after it was offered.  Tracy, 539 N.E.2d at 1047.
                            

          As    for   petitioner's    implicit   charge    of

prosecutorial misconduct, the  Appeals Court  ruled that  the

prosecution  did not violate  any discovery agreement  by not

producing the booking  slip prior to trial, id.  at 1046, and
                                               

that  court assumed that the prosecution did not deliberately

conceal knowledge of the booking  slip or its contents at any

time.   Id. at  1047 n.7.   Petitioner has  not presented any
           

evidence  of   misconduct,  but   merely  alleges   that,  by

introducing  an   irrelevant  document  into   evidence,  the

government  was necessarily motivated  by an illicit purpose.

We do not find this reasoning persuasive.  

          We   can  perceive   no  external   impediments  to

petitioner's    compliance     with    the     Commonwealth's

contemporaneous  objection rule.    Petitioner  has tried  to

overcome his attorney's oversight by putting the blame on the

prosecutor.   This facade cannot cure petitioner's failure to

                             -8-
                              8

demonstrate cause for  his procedural default.5   Because the

cause and prejudice  requirement is conjunctive, we  need not

consider  the latter  element where the  former has  not been

satisfied.  Puleio v. Vose, 830 F.2d at 1202.
                          

          The judgment of the district court is Affirmed.
                                                Affirmed
                                                        

                    

5.  It  is well  settled  that  "[a]ttorney  error  short  of
ineffective assistance  of counsel . . .  does not constitute
cause and will not  excuse a procedural default."   McCleskey
                                                             
v. Zant, 499 U.S. 467,   , 111 S.  Ct. 1454, 1470 (1991).  As
       
the district court noted, petitioner has not alleged that his
representation  at  trial   was  constitutionally  deficient.
Magee  v. Harshbarger,  No. 92-13090-WD,  slip  op. at  8 (D.
                     
Mass.  July   7,  1993).     Moreover,   at  oral   argument,
petitioner's  counsel  specifically disclaimed  any  argument
along these lines.

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