                   Not for Publication in West's Federal Reporter

             United States Court of Appeals
                          For the First Circuit

No. 07-2688

                                 LAJUAN MELTON,

                              Petitioner-Appellant,

                                        v.

                              LOIS RUSSO, et al.,

                          Respondents-Appellees.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. George A. O’Toole, Jr., U.S. District Judge]


                                     Before

                         Lynch, Chief Judge,
                          *
                  Farris and Boudin, Circuit Judges.


     Anne E. Gowen for appellant.
     Eva M. Badway, Assistant Attorney General, Criminal Bureau,
with whom Martha Coakley, Attorney General, was on brief for
appellee.


                                 April 23, 2009




     *
         Of the Ninth Circuit, sitting by designation.
              FARRIS,      Circuit    Judge.      Lajuan    Melton    appeals    the

district court’s denial of his petition for habeas corpus for

failure to exhaust a claim pursuant to 28 U.S.C. § 2254(b).                      We

have jurisdiction pursuant to 28 U.S.C. § 1291.                 We affirm.

              A claim that appears for the first time on discretionary

review      before   a     state’s    highest    court   does   not   satisfy    the

exhaustion requirement of § 2254(b). Castille v. Peoples, 489 U.S.

346, 351 (1989).           Melton argues that he first raised his Sixth

Amendment right to counsel claim on non-discretionary review before

the Massachusetts Appeals Court. This argument fails.                     Melton’s

brief    before      the    Appeals    Court    mentioned   neither     the   Sixth

Amendment nor the federal constitutional right to counsel.                       The

brief’s reference to a constitutional “right to closing argument”

did   not    present       Melton’s   Sixth     Amendment   claim     “face-up   and

squarely . . . .”          Martens v. Shannon, 836 F.2d 715, 717 (1st Cir.

1988).       At most, it was a “passing reference” insufficient to

preserve the claim for habeas review. Fortini v. Murphy, 257 F.3d

39, 44 (1st Cir. 2001) (quoting Martens, 836 F.2d at 717).                    Melton

was no more explicit regarding his Sixth Amendment claim in oral

argument before the Appeals Court than he was in his brief.                   He has

failed to exhaust the claim pursuant to § 2254(b).

AFFIRMED.




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