Mains v. Hall and DuBois

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________



          No. 94-1912



                                    ROBERT MAINS,



                               Petitioner - Appellant,



                                          v.



                          TIMOTHY HALL AND LARRY E. DUBOIS,



                               Respondents - Appellees.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                       [Hon. Mark L. Wolf, U.S. District Judge]
                                           ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge,
                                          ___________



                                Stahl, Circuit Judge,
                                       _____________



                           and Dom nguez,* District Judge.
                                           ______________



                                _____________________



               Joan C. Stanley, by Appointment of the Court, for appellant.
               _______________

               Gregory  I.  Massing, Assistant  Attorney  General, Criminal
               ____________________

          Bureau, with whom Scott  Harshbarger, Attorney General, and Nancy
                            __________________                        _____

          W.  Geary,   Assistant  Attorney  General,  were   on  brief  for
          _________

          appellees.


____________________



                                   January 29, 1996

                                 ____________________



                              
          ____________________



          *  Of the District of Puerto Rico, sitting by designation.



DOMINGUEZ,   District  Judge.     Petitioner-appellant,
                    DOMINGUEZ,   District  Judge.
                                 _______________



          Robert Mains ("Mains") challenges  the district court's dismissal



          of  the petition of  the writ of  habeas corpus  and requests the



          same  to be vacated.   Mains further requests  the remand of this



          case to the district court for  a determination as to whether his



          claim is procedurally barred as successive and as an abuse of the



          writ  under Sandstrom v. Montana, 442 U.S. 510 (1979), whether it
                      _________    _______



          is new  law with respect to Mains's claim, and if so, whether the



          retroactive  application of said law is barred by Teague v. Lane,
                                                            ______    ____



          489 U.S. 288 (1989).  



                    We  hold that  the judgment  of the  district court  is



          warranted.  Consequently, we affirm. 



                                    I. BACKGROUND
                                    I. BACKGROUND
                                    _____________



                    On  January  17,  1994,  a Suffolk  County  Grand  Jury



          indicted Mains in the  Superior Court of Massachusetts (Sullivan,



          J.), for the  crimes of Murder in the First  Degree, in violation



          of Mass.  Gen. L. ch.  265,    1, and for  unlawfully carrying  a



          firearm, in violation of Mass.  Gen. L. ch. 269,   10.  Mains was



          convicted on both charges and was sentenced to life  imprisonment



          on the murder charge; the charge of carrying a firearm was placed



          on file.  His conviction was upheld by the Supreme Judicial Court



          of Massachusetts.1  See   Commonwealth v. Mains, 374  N.E.2d 576,
                              ___   ____________    _____



          577 (1978).



                              
          ____________________



          1  Petitioner  filed two motions  for a new  trial denied by  the

          court on April 22, 1977.  Mains then appealed the  conviction and

          the  denial of both motions for a new trial; the Supreme Judicial

          Court affirmed the judgment of the Superior Court.



                                         -2-



On May 31, 1978,  Mains filed his first petition  for a



          writ  of habeas  corpus pursuant  to 28  U.S.C.    2254, claiming



          inter  alia that  the prosecutor  failed to  disclose exculpatory
          _____  ____



          evidence  about a  key witness,  ineffective assistance  of trial



          counsel, and that the  trial judge's instructions to the  jury on



          the issue of the  "lawfulness" of the killing violated  his right



          to  due process, by effectively  directing the jury  to find that



          said element  of the crime was  proven.  On August  13, 1979, the



          district court  (Freedman, J.) allowed the  petition, granted the



          writ,  and ordered  a new  trial.   However, the  Commonwealth of



          Massachusetts appealed,  and  this court  reversed  the  district



          court's decision  and  dismissed  the  petition.   See  Mains  v.
                                                             ___  _____



          Butterworth,  619 F.2d  83, cert.  denied, 449  U.S.  864 (1980).
          ___________                 _____  ______



          Mains then filed a motion for rehearing wherein he raised, again,



          the  issue of  the trial  court's instructions.   The  motion was



          denied on March  27, 1980.  The decision stated  that (the court)



          "has given this case particularly careful and close attention and



          there  is  nothing  in  the  petition  that  was  not  previously



          considered." 



                    On  February 11, 1983, Mains  filed a motion  for a new



          trial pro se,  before the  state court, claiming  that the  trial
                ___ __



          court's instructions to the jury relieved the Commonwealth of its



          burden  of proof  on  the  element  of  malice  in  violation  of



          Sandstrom  v.  Montana, 442  U.S. 510  (1979).   This  motion was
          _________      _______



          denied.    Mains'  subsequent  application for  leave  to  appeal



          pursuant to Mass. Gen.  L. ch. 278,   33E was  also denied by the


-3-



Single Justice of  the Supreme Judicial  Court (Wilkins, J.)  who



          c   o   n   c   l   u   d   e   d               t   h   a   t   ,



                      [a]rguably,   [the  petitioner's   claim]

                      could   be   interpreted  as   either  an

                      impermissible presumption,  raising a new

                      issue under Sandstrom v.  Montana, supra,
                                  _________     _______  _____

                      or  a  change  in  the  burden  of proof,

                      raising an old issue under In re Winship,
                                                 _____________

                      supra,  and Mullaney v. Wilbur, supra . .
                      _____       ________    ______  _____

                      . My inclination is to say that, if there

                      is an error at  all, it involves an error

                      that could have been raised before.



                    On April  6, 1992,  Mains filed  a second petition  for



          writ of  habeas corpus pursuant to 28 U.S.C.   2254, a motion for



          appointment  of  counsel,  and  a  motion  to  proceed  in  forma
                                                                  __  _____



          pauperis.2   Respondents filed a motion to dismiss on the grounds
          ________



          that the  petition was successive and  an abuse of the  writ.  On



          May 31, 1994, the district  court (Wolf, J.) granted respondents'



          motion and  dismissed the petition.3  In  addition, a certificate



          of  probable  cause to  appeal was  granted  on August  15, 1994,



          pursuant to Fed. R. App. P. 22(b),4  and Counsel was appointed to



          represent Mains on November 3, 1994.



                              
          ____________________



          2   Petitioner  also filed  a motion  for a  show-cause order  on

          December 4, 1992.   On June  14, 1993, the district  court (Wolf,

          J.) denied appointment of  counsel, granted the motion  for leave

          to  proceed in forma pauperis, and  ordered respondents to answer
                      __ _____ ________

          on or before July 30, 1993. 



          3   With regard to  respondents' motion to  dismiss, the district

          court found, "[i]n essence,  the petitioner has reasserted claims

          previously  rejected in  connection with his  original petition[]

          and made a new  argument concerning the jury instructions  at his

          trial which does not constitute a new claim and, in any event, is

          an abuse of the writ."



          4  See Barefoot v. Estelle, 463 U.S. 880 (1983); Lozada v. Deeds,
             ___ ________    _______                       ______    _____

          498 U.S. 430 (1991). 



                                         -4-



The sole issue on appeal is whether the district  court



          properly  dismissed as  successive and  as an  abuse of  the writ



          Mains'  claim  that  the  trial court's  instructions  on  malice



          violated his right to due process.5    



                    Mains's  first Habeas  petition  stems from  the  trial



          court's   purportedly  improper  withholding  the  issue  of  the



          lawfulness of the  killing from  the jury's  consideration.   The



          trial  judge's instruction  stated  that "'there  is no  question



          raised  here that there was  a homicide committed',  and that the



          jury  must first  determine whether  the defendant  committed the



          homicide."  See Commonwealth v. Mains, 374 N.E.2d at 577-578.  In
                      ___ ____________    _____



          his  petition Mains  asseverates  that the  Commonwealth has  the



          burden  of proving  unlawfulness beyond  a reasonable  doubt, and



          that there  is  sufficient evidence  which  raises the  issue  of



          lawfulness (i.e. that the  alleged victim died with a  gun in his
                      ____



          hand,  that Mains testified to  having been shot,  and that Mains



          was "jammed in" and "couldn't run").



                    In  his second  petition Mains  argues that  the malice



          instruction was unconstitutional because it shifted the burden of



          proof  to Petitioner  and caused  the jury  to find  Mains guilty



          unless  he controverted the evidence.   In addition, Mains argues



          that  the  unlawful  presumption  or  implied  language,  further

                              
          ____________________



          5  In addition, petitioner further raised that (1)the prosecution

          failed to  disclose exculpatory evidence;  (2) he was  denied the

          effective  assistance  of  counsel;  and (3)  the  trial  judge's

          instructions  to  the jury  removed the  issue of  lawfulness, an

          element of the offense,  from their consideration.  All  of these

          claims were  dismissed as successive; petitioner  does not appeal

          that portion of the district court's decision.



                                         -5-



prevented the  jury from  considering manslaughter.   The averred



          defective instruction reads as follows:


"Malice  as  used  in   the  expression

                      doesn't   necessarily   imply  ill   will

                      towards   the   person   killed.      Any

                      intentional  killing  of  a  human  being

                      without   legal  justification,   without

                      excuse,      with     no      extenuating

                      circumstances,  is malicious.  That is to

                      say,  it is done  with malice  within the

                      meaning    of   that    expression   and,

                      therefore,   is   murder,   and  is   not

                      manslaughter.



                        The   word    "aforethought"   in   the

                      expression  malice  aforethought has  its

                      ordinary meaning.    That means  to  say,

                      "Thought of beforehand; forethought."  If

                      the killing was intentional,  even though

                      the act followed the  thought immediately

                      without   time    for   deliberation   or

                      reflection,  the  killing  was then  with

                      malice aforethought within the meaning of

                      that technical expression of the law, and

                      is therefore a murder.



                        A   killing   may   be  malicious   and

                      consequently  murder,   even  though  the

                      slayer didn't wish to cause it.  If a man

                      intentionally    and    without     legal

                      justification,  excuse   or  extenuation,

                      uses upon  the body  of another  person a

                      force, for example, a bullet from a  gun,

                      that is  used to do grievous  bodily harm

                      to  the other  person, or cause  death to

                      the other person, and so used will create

                      a  clear and  plain  likelihood that  the

                      other person  could  or would  die  as  a

                      result,  the act is then malicious within

                      the meaning  of the law,  even though the

                      doer  of the  act was  indifferent as  to

                      whether  or  not death  would  result, or

                      even if he  wished and  hoped that  death

                      would not result, for  it still would  be

                      malicious  within  the  meaning   of  the

                      statute  concerning  itself with  murder,

                      because the word "malice" as used in  the

                      law  does not  necessarily mean  or imply



                                         -6-



hatred  or ill  will  toward  the  person

                      killed,  but  includes  any intention  to

                      inflict   upon  another   serious  injury

                      without    justification    or    without

                      palliation.  *  *  *



                        "Malice aforethought  in the expression

                      that  I  have  used  in  connection  with

                      murder  in  the  second  degree  I repeat

                      includes  every  unjustifiable,  unlawful

                      motive,  and malice  can be  implied from

                      any  deliberate  and  cruel  act  by  one

                      person towards another."



                    In  the instant case, even if the malice portion of the



          instruction  is  deemed to  differ  from  the unlawfulness  issue



          previously raised, said issue was accessible to Mains at the time



          when the original  petition was filed.   Rule  9(b) of the  rules



          governing  habeas corpus  proceedings,  28 U.S.C.  foll.    2254,



          provides  for  dismissal  of  "successive"  petitions,  or  those



          petitions which raise grounds that were available, but not relied



          upon,  in a prior petition.6  Because Mains had already presented



          the issue of whether  the trial court's instructions to  the jury



          relieved  the   Commonwealth  of  its  burden   of  proving  each



          individual  element of  the  murder offense  beyond a  reasonable


____________________



          6   See  Sawyer v.  Whitley,  505 U.S.  333 (1992);  Kuhlmann  v.
              ___  ______     _______                          ________

          Wilson, 477 U.S. 436,  444 n.6 (1986), quoting Sanders  v. United
          ______                                 _______ _______     ______

          States, 373 U.S. 1, 17  (1963).  See also Hudson v.  Whitley, 979
          ______                           ________ ______     _______

          F.2d 1058, 1063 n.10 (5th Cir. 1992).



                                         -7-



doubt,7  respondents argue  that  the  district court  adequately



          concluded that Mains' claim was precluded by Rule 9(b).8  



                    Furthermore,  respondents  assert  that the  burden  of



          proof argument raised  by the malice instruction, as the argument



          presented by  Mains relating to the  instruction on "lawfulness,"



          was  available to  Mains  when he  filed  his original  petition.



          Respondents  further  allege  that  Mains strives  to  avert  the



          effects  of Rule  9(b)'s prohibition  of successive  petitions by



          stating  that  said claim  was unavailable  to  him prior  to the



          Supreme Court's decision in Sandstrom, as "cause" for failure  to
                                      _________



          present his claims in the original petition.

                              
          ____________________



          7    In his  original petition,  Mains  claimed that  the judge's

          instruction relieved  the Commonwealth  of its burden  of proving

          beyond a reasonable doubt an "unlawful" killing with malice.  The

          argument  in   Mains'  second   petition  is,  again,   that  the

          Commonwealth obtained a conviction without proving  every element

          of the offense beyond a reasonable doubt, but regarding the issue

          of malice  in the judge's instructions,  Mains includes Sandstrom
                                                                  _________

          v.  Montana, 442 U.S. 510  (1979), arguing that  because the jury
              _______

          was told that some evidence of malice was sufficient to support a

          conviction, the instruction relieved the Government of its burden

          of proof.



          8  Rule 9(b) of the rules governing habeas corpus proceedings, 28

          U.S.C. foll.   2254 provides, in pertinent part, that "[a] second

          or successive petition may  be dismissed if the judge  finds that

          it fails to  allege new or  different grounds for relief  and the

          prior  determination was on the  merits or, if  new and different

          grounds  are alleged,  the judge  finds that  the failure  of the

          petitioner  to   assert  those   grounds  in  a   prior  petition

          constituted  an abuse of the  writ."  "Grounds",  for purposes of

          this  rule, means  a  "sufficient legal  basis  for granting  the

          relief sought."  See  Sanders v. United  States, 373 U.S. at  16;
                           ___  _______    ______________

          Collins v. Zant, 892 F.2d 1502, 1505 (11th Cir. 1990).   In order
          _______    ____

          to  avoid the preclusive effect of Rule 9(b), a habeas petitioner

          must  present a  "new  or different  claim;  a new  or  different
                                               _____

          argument  (legal or  factual)  in support  of  a claim  that  has
          ________

          already been raised and  decided on the merits is  not sufficient

          to prevent  dismissal of the  claim."  See  Collins, id. at  1505
                                                 ___  _______  ___

          (emphasis in original). 



                                         -8-



Respondents  allege that  to  the  extent that  Mains



          failed  to show "cause"9 for his failure  to present the claim in



          the original petition, and because the Sandstrom case was decided
                                                 _________



          five months before the  Commonwealth of Massachusetts appealed to



          this  court,10   the  district  court   properly  dismissed   the



          petition as successive and as an abuse of the writ.  



                    In his second petition,  Mains avers that habeas relief



          is  warranted because his claim  under Sandstrom is  a "new rule"
                                                 _________



          which meets the second exception presented in Teague v. Lane, 489
                                                        ______    ____



          U.S.  288  (1989).    Respondents  counter  by  stating  that the



          Sandstrom holding  advanced those principles enumerated  in In re
          _________                                                   _____



          Winship,  397 U.S. 358 (1970),  and Mullaney v.  Wilbur, 421 U.S.
          _______                             ________     ______



          684   (1975),  to  presumptions  created  in  jury  instructions.



          Respondents  correctly   allege  that  Sandstrom  was  a  "lineal
                                                 _________



          descendant of Winship; it  simply held that an instruction  which
                        _______



          creates a presumption of fact violates due process if it relieves

                              
          ____________________



          9  The  abuse of the  writ defense was  raised by respondents  in

          their motion to dismiss of  August 5, 1993.  In  their supporting

          memorandum,   respondents   presented   the    "cause"   standard

          articulated  in McCleskey  v.  Zant,  499  U.S. 467  (1991),  and
                          _________      ____

          Andiarena  v. United States, 967  F.2d 715, 718  (1st Cir. 1992).
          _________     _____________

          On   August  9,   1993,  petitioner   filed  his   opposition  to

          respondents' motion.  Because  the district court determined that

          the petitioner had not demonstrated "cause" sufficient to prevent

          dismissal on the ground of  abuse of the writ, the court  did not

          reach the issue  of whether the  petitioner had demonstrated  any

          "prejudice" or that "a  fundamental miscarriage of justice" would

          result if the court did not entertain his claim. 



          10    The Sandstrom  decision was  announced  in June  1979, five
                    _________

          months   before  Mains   filed  his   brief  responding   to  the

          Commonwealth of Massachusetts' appeal  to this court in  Mains v.
                                                                   _____

          Butterworth,  supra.    Therefore,   Mains  could  have  employed
          ___________   _____

          Sandstrom  to   support  his  original  challenge   to  the  jury
          _________

          instructions during the federal appellate process.



                                         -9-



the State of  its burden of  proving all of  the elements of  the



          offense  charged beyond  a  reasonable doubt."    See Gilmore  v.
                                                            ___ _______



          Taylor,        U.S.      ,  113  S.  Ct.   2112,  2118  (1993).11
          ______   ____        ____



          Respondents conclude  that because Mains had  already argued that



          the judge's instruction on lawfulness shifted the burden of proof



          and relieved the Commonwealth  of its burden of proving  beyond a



          reasonable doubt12 each element  of the offense, the  addition of



          Sandstrom13 does  not constitute  a "new claim"  for purposes  of
          _________



          Teague v. Lane, 489 U.S. 288 (1989).14
          ______    ____



                    Mains has  failed to show cause or  prejudice to oppose



          respondents'  abuse  of the  writ defense.15    The court  is not



          persuaded that  in the instant  case Sandstrom constitutes  a new
                                               _________



                              
          ____________________



          11  See also Rose  v. Clark, 478 U.S. 570, 580  (1986) (Sandstrom
              ________ ____     _____                             _________

          was "a logical extension of the Court's holding in In re Winship,
                                                             _____________

          397 U.S. 358 (1970),  that the prosecution must prove  every fact

          necessary  to constitute  a  crime from  which  the defendant  is

          charged beyond a reasonable doubt.").



          12  See Sandstrom, 442 U.S. at 513.
              ___ _________



          13    In  Sandstrom,  the  Supreme  Court  determined  that  jury
                    _________

          instructions which  created a  "mandatory presumption"  of malice

          violated a defendant's due process rights.  Id. at 524.
                                                      __



          14   Mains  submits  as additional  grounds  for his  failure  to

          present  his  Sandstrom  claim of  alleged  error  in the  malice
                        _________

          instruction in his first  habeas petition the fact that  he "only

          raised  a challenge to  the lack of  self-defense instruction" in

          state  court.  This assertion  also lacks merit.   As respondents

          point out, Mains focused  this court's attention to the  issue of

          burden  of proof as independent  and different from  the issue of

          whether he was entitled  to an instruction on self-defense.   See
                                                                        ___

          Mains v.  Butterworth, respondents' Exhibit  I, p. 33,  n.19, and
          _____     ___________

          Mains petition for rehearing, respondents' Exhibit E, p. 2.



          15  Because petitioner's claim of error in the malice instruction

          is not a new "ground" for Rule 9(b) purposes, the case should not

          be remanded.



                                         -10-



development in  the law, or an external  factor16 affording Mains



          sufficient  cause  for  his   failure  to  present  the  claim.17



          Indeed, Mains could have reasonably employed Sandstrom during the
                                                       _________



          appeal  and subsequent  motion  for rehearing  that followed  his



          original petition.   Furthermore, Mains already  made an argument



          in his first petition  regarding the instruction, and invoked  In
                                                                         __



          re  Winship, 397 U.S. 358, 90 S.  Ct. 1068, 25 L.Ed.2d 368 (1970)
          ___________



          and Mullaney  v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L.Ed.2d
              ________     ______



          508 (1975), the precedents upon which Sandstrom is premised.  
                                                _________



                    In  this  regard  we  find that  petitioner's  argument



          regarding the malice instruction and burden  shifting presumption



          is not advanced and fails to constitute "new ground" for purposes



          of  Rule 9(b).     Furthermore, because  the Sandstrom  claim was
                                                       _________



          reasonably  available to Mains  at the time of  his appeal of the



          denial of his first   2254 petition, the same does not constitute



          a   "new   rule"   qualifying   it  under   the   second   Teague
                                                                     ______



          exception.18

                              
          ____________________



          16  See Reed v. Ross, 468 U.S.  1, 16, 104 S. Ct. 2901, 82  L.Ed.
              ___ ____    ____

          2d 1 (1984)  ("where a constitutional claim is so  novel that its

          legal basis is not  reasonably available to counsel, a  defendant

          has cause  for his failure to raise  the claim in accordance with

          applicable ... procedures.")



          17  To  the  extent  that  the  Sandstrom  claim  was  reasonably
                                          _________

          available to the petitioner,  no just cause has been shown.   See
                                                                        ___

          Boyer  v. United States, 55  F.3d 296 (7th  Cir. 1995) (plaintiff
          _____     _____________

          failed  to  offer sufficient  justification  for  not raising  an

          additional   "reasonably   available"  claim   in   his  original

          petition). 



          18   In  Teague the  court determined  when a  new rule  deserved
                   ______

          retroactive effect.   A  new  rule was  defined as  a rule  which

          mandates a result "not dictated by precedent existing at the time

          the defendant's conviction  became final".   See Teague v.  Lane,
                                                       ___ ______     ____



                                         -11-



We need go no  further.  Mains has failed  to establish



          sufficient "cause"  or "prejudice"  necessary to reach  the issue



          presented in this  successive petition.19   Consequently,  Mains'



          habeas  petition  remains  a   casualty  of  its  own  procedural



          deficiency.



                                    II. CONCLUSION
                                    II. CONCLUSION
                                    ______________



                    For the  above-stated reasons,  we affirm the  district



          court's judgment. 



                    Affirmed.   
                    ________


____________________



          id. at 310.
          ___



          19  See McCleskey, 111 S.  Ct. at 1470 ("application of the cause
              ___ _________

          and  prejudice standard in the abuse of the writ context does not

          mitigate the force of Teague v. Lane").
                                ______    ____



                                         -12-