               Not For Publication in West's Federal Reporter
              Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

         United States Court of Appeals
                      For the First Circuit

No. 03-2684

                     MARIANO MALDONADO-PAGÁN,

                       Petitioner, Appellant,

                                     v.

       MR. MALAVÉ, WARDEN, BAYAMÓN CORRECTIONAL FACILITY,

                        Respondent, Appellee.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

      [Hon. Raymond L. Acosta, Senior U.S. District Judge]


                                  Before

                   Torruella, Selya and Lynch,
                         Circuit Judges.


     José R. Olmo-Rodríguez, on brief, for appellant.
     Yvonne M. Menéndez-Calero, with whom Quiñones & Sánchez,
P.S.C., was on brief, for appellee.



                             August 9, 2005
           Per Curiam. Appellant-petitioner Mariano Maldonado-Pagán

appeals a district court order dismissing his 28 U.S.C. § 2254

petition for failure to exhaust state remedies.       Finding no cause

and prejudice even assuming a procedural default, we affirm.

                                    I

           On March 6, 1992, Maldonado pled guilty to three counts

of first degree murder and grand arson for the killing and burning

of the bodies of his wife and two children.      He was convicted and

sentenced to more than 300 years imprisonment by the Superior Court

of the Commonwealth of Puerto Rico. Maldonado failed to appeal his

conviction or sentence.

           On April 21, 1997, Maldonado filed a pro se, state habeas

corpus petition before the Puerto Rico Supreme Court. Although the

Supreme   Court   denied   it   without   comment,   the   petition    was

improperly presented pursuant to § 1741 of the Puerto Rico Code of

Criminal Procedure, which requires petitioners to file a Rule 192.1

motion1 in the trial court prior to seeking habeas relief.            P.R.


1
    Rule 192.1 provides, in relevant part:

      Any person who is imprisoned by virtue of a judgment
      rendered by any Division of the Court of First Instance
      and who alleges the right to be released because . . .
      the sentence was imposed in violation of the Constitution
      or the laws of the Commonwealth of Puerto Rico or of the
      Constitution and laws of the United States, . . . may
      file a motion, in the part of the court which imposed the
      sentence, to vacate, set aside, or correct the judgment.

P.R. Laws Ann. tit. 34, App. II, R. 192.1 (1963). The Puerto Rico
Supreme Court describes Rule 192.1 as "harmoniz[ing] these

                                   -2-
Laws Ann. tit. 34, § 1741(c) ("No judge shall consider a writ of

habeas corpus prosecuted by an inmate imprisoned by virtue of a

final judgment which has not exhausted the remedy provided by Rule

192.1 of the Rules of Criminal Procedure, App. II of this title.").

          On May 22, 1998, Maldonado filed a pro se Rule 192.1

motion before the trial court.        The petition was denied, and

Maldonado did not appeal the denial in the commonwealth courts.

          Maldonado subsequently filed a federal § 2254 habeas

petition,2 arguing, as a basis for relief, ineffective assistance

of counsel.   On October 9, 2003, the district court dismissed the

claim for failure to exhaust state remedies because Maldonado had

not appealed the trial court's denial of his Rule 192.1 motion.

Maldonado-Pagán v. Malavé, No. 98-2383 (D.P.R. Oct. 9, 2003).

          This appeal follows.        We review a district court's

dismissal of a habeas petition de novo.    See, e.g., Saint Fort v.

Ashcroft, 329 F.3d 191, 202 (1st Cir. 2003).



procedures," -- i.e., the     appeal, the motion to set aside a
judgment, the writ of habeas corpus, and the writ of coram nobis --
by "providing a motion through which all the necessary elements of
judgment may be submitted to the Court, to allow the latter to
determine the validity of the conviction."      Pueblo v. González
Polidura, 18 P.R. Offic. Trans. 939, 953 n.5 (P.R. 1987) (quoting
the Senate Judiciary Committee report at 5 Servicio Legislativo de
P.R. 592-93 (1967)).
2
  28 U.S.C. § 2254, states, in relevant part: "An applicant shall
not be deemed to have exhausted the remedies available in the
courts of the State, within the meaning of this section, if he has
the right under the law of the State to raise, by any available
procedure, the question presented." 28 U.S.C. § 2254(c).

                                -3-
                                    II

           Maldonado argues that his claim is procedurally barred in

the commonwealth court, but should nonetheless be excused for

purposes of exhaustion since he can demonstrate cause for the

procedural default -- ineffective assistance of counsel -- and

prejudice resulting therefrom.       We are not convinced.

           At the outset, we note, and the government concedes as

much, that Maldonado's claim does not appear to be procedurally

barred and therefore state remedies have not been exhausted.

Maldonado contends that his failure to appeal within thirty days'

notice of the trial court's denial of his Rule 192.1 motion bars

subsequent state appeals, thus foreclosing the resolution of his

case by the commonwealth's highest tribunal. The government argues

otherwise, stating that Maldonado may still file a state habeas

appeal, as it is separate from a Rule 192.1 motion.                 See 34

L.P.R.A. §§ 1741-1781. Given that the commonwealth's highest court

has not had the opportunity to decide Maldonado's habeas claim on

its   merits,    the   government   argues,   his   claim   has   not   been

exhausted.      See García v. Ramírez, 337 F. Supp. 39 (D.P.R. 1971)

(no federal jurisdiction for lack of exhaustion since prisoner

failed to appeal the trial court's denial of his habeas petition to

the Puerto Rico Supreme Court).      It is, after all, up to "the state

court to decide whether the petitioner is procedurally barred

. . . ."   Rodríguez v. Warden, Escuela Indus. De Mujeres, Vega Alta


                                    -4-
Puerto Rico, 791 F. Supp. 41, 43 (D.P.R. 1992).            The government

even agreed during oral arguments to stipulate that it will not

oppose Maldonado's state habeas petition, should he choose to file

one, on the grounds that it is procedurally barred.

             In any event, even assuming, favorably to Maldonado, that

further state proceedings are procedurally barred, we find it

difficult to find cause and prejudice from the procedural default.

Generally, a state court's finding that a "defendant procedurally

defaulted a claim bars federal habeas corpus relief on that claim

unless that defendant as a petitioner shows either cause for the

default and prejudice from the claimed violation of federal law, or

that a fundamental miscarriage of justice will result if the claim

is not considered."       Gunter v. Maloney, 291 F.3d 74, 78 (1st Cir.

2002) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991))

(emphasis added).     To show "cause," "the prisoner must show 'that

some objective factor external to the defense impeded counsel's

efforts to comply with the State's procedural rule.'"             Id., 291

F.3d at 81 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).

One such factor is "ineffective assistance of counsel at a level

which violates the Sixth Amendment," id. (citing Coleman, 501 U.S.

at   752),   but   that   "ineffective    assistance   claim   must   itself

ordinarily be fairly presented to the state courts and exhausted,"

id. (citing Edwards v. Carpenter, 529 U.S. 446, 450-54 (2000)).




                                    -5-
          In the instant case, Maldonado cites as "cause" the lack

of legal assistance after his conviction and sentencing which

resulted in an alleged procedural default.       However, since it is

"established that there is no right to counsel in state collateral

proceedings," Coleman, 501 U.S. at 755 (citing Pennsylvania v.

Finley, 481 U.S. 551 (1987); Murray v. Giarratano, 492 U.S. 1

(1989)), appellant's lack of counsel could not constitute "cause"

to excuse a procedural default.    Id. at 757.

          We also reject Maldonado's claim that a fundamental

miscarriage of justice would occur if his claim is not considered,

on the theory that his lawyer's failure to raise his mental

condition resulted in a conviction of one who is innocent.        "To

show that a fundamental miscarriage of justice would occur in the

habeas context, 'petitioner must establish actual innocence.'"

Gunter, 291 F.3d at 83 (emphasis added).     This is indeed a narrow

exception, for "'[w]ithout any new evidence of innocence, even the

existence of a concededly meritorious constitutional violation is

not in itself sufficient to establish a miscarriage of justice that

would allow a habeas court to reach the merits of a barred claim.'"

Burks v. Dubois, 55 F.3d 712, 718 (1st Cir. 1995) (quoting Schlup

v. Delo, 513 U.S. 298, 316   (1995)).   Here, we find no new credible

evidence that Maldonado is actually innocent of the murders and

arson, and take note of the fact that Maldonado was in a general




                                  -6-
population facility -- not a mental facility -- during his alleged

procedural default.

          For   the   reasons   stated,   the   district   court's   order

dismissing Maldonado's habeas corpus petition is affirmed.

          Affirmed.




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