
USCA1 Opinion

	




          May 5, 1994           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1270                                              DUON G. TOWNSEND,                                Plaintiff, Appellant,                                          v.                COMMISSIONER, N.H. DEPARTMENT OF CORRECTIONS, ET AL.,                               Respondents, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Joseph A. DiClerico, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                             Torruella, Selya and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Duon  G. Townsend, pro se, on Application for Certificate of               _________________          Probable Cause.                                  __________________                                  __________________                 Per  Curiam.     Petitioner  requests  a certificate  of                 ___________            probable cause  ("CPC") to  appeal from the  district court's            dismissal  without  prejudice  of  his  habeas  petition  for            failure  to exhaust  state remedies.   We  grant the  CPC and            dismiss  the  petition with  prejudice  on  the grounds  that            petitioner has  procedurally defaulted on his  federal habeas            claims  in state court and that there is not sufficient cause            to excuse the default.                       Petitioner's  failure to appeal  the denial  of his            state  habeas petition  to  the New  Hampshire Supreme  Court            constitutes  a procedural  default rather  than a  failure to            exhaust state  remedies.  The  time for appealing  the denial            has  expired.    See  New  Hampshire  Supreme  Court  Rule 7.                             ___            Therefore, petitioner is procedurally barred  from presenting            his claims to  the New  Hampshire Supreme Court  in order  to            meet the  exhaustion requirement.   See Coleman  v. Thompson,                                                ___ _______     ________            111 S. Ct. 2546, 2557 n.1 (1991).                        To  obtain federal  habeas  review of  procedurally            defaulted claims,  petitioner must demonstrate "cause for the            default and  actual  prejudice as  a  result of  the  alleged            violation  of federal  law,  or demonstrate  that failure  to            consider the claims will  result in a fundamental miscarriage            of justice."  Coleman v.  Thompson, 111 S. Ct. at 2565.   The                          _______     ________            cause  requirement is satisfied only by  a showing that "some            objective  factor external to the defense" impeded compliance                                         -2-            with  the state procedural rule.  Murray v. Carrier, 477 U.S.                                              ______    _______            478,   488  (1986).     This  standard  applies   to  pro  se                                                                  ___  __            petitioners.  See, e.g.,  Caswell v. Ryan, 953 F.2d  853, 862                          ___  ____   _______    ____            (3d Cir.), cert. denied, __ U.S. __, 112 S.Ct. 2283 (1992).                       ____________                 It  is  clear  that  petitioner cannot  meet  the  cause            requirement.  The record  does not contain even a hint  of an            "objective factor" that  caused the failure  to appeal.   Nor            can petitioner  claim ignorance  of the proper  procedure for            filing  an appeal.  The record demonstrates that he was aware            of his right to  appeal.  In fact, petitioner  filed a notice            of  appeal  with the  superior  court.    The superior  court            returned the notice  to him  with a note  instructing him  to            file  the appeal with the New Hampshire Supreme Court.  There            is no "cause" for petitioner's  failure to do so.  It  is not            necessary to  address the  prejudice prong of  the cause-and-            prejudice  test since  the cause  requirement is  clearly not            satisfied.  See Puleio v. Vose, 830 F.2d 1197, 1202 (1st Cir.                        ___ ______    ____            1987), cert. denied. 485 U.S. 990 (1988).                   ____________                      "[A]   federal  habeas   court   may   consider   a            procedurally defaulted  claim absent  a showing of  cause for            the default  only where the petitioner  demonstrates that his            is an 'extraordinary  case, where a constitutional  violation            has  probably  resulted  in  the conviction  of  one  who  is            actually innocent. .  . .'"  Hall v. DiPaolo,  986 F.2d 7, 10                                         ____    _______            (1st Cir. 1993) (quoting Murray v. Carrier, 477 U.S. at 496).                                     ______    _______                                         -3-            From  the record,  it  is clear  that  this  is not  such  an            "extraordinary case."  Petitioner  does not  claim  that  the            alleged   constitutional  violation   has  resulted   in  his            conviction despite  his innocence, only that  it has deprived            him of early release.                      Accordingly,   petitioner's   habeas  petition   is            dismissed with prejudice.                                                            -4-
