Perry v. Abdal-Khallaq

• Court: Court of Appeals for the First Circuit
• Decided: June 4, 1992
• Docket: 92-1072
• Status: Published

Opinion

USCA1 Opinion

June 4, 1992          [NOT FOR PUBLICATION]

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No. 92-1072

GENE L. PERRY,

                                      Plaintiff,

                                          v.

ABU HANIF ABDAL-KHALLAQ,

                                      Defendant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. A. David Mazzone, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                            Selya and Cyr, Circuit Judges.
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                                 ___________________

               Gene L. Perry on brief pro se.
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               Scott Harshbarger,  Attorney General and  Ladonna J. Hatton,
               _________________                         _________________
          Assistant Attorney General, on brief for appellee.

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                                 __________________ 

Per Curiam.  The appellant, Gene L. Perry, was convicted
                 __________

            of  arson and first-degree murder in a Massachusetts court in

            1980.   Perry  appealed his  conviction to  the Massachusetts

            Supreme  Judicial Court  (SJC),  which ruled  that the  trial

            court had omitted a necessary jury instruction concerning the

            effect that  Perry's intoxication at  the time of  the murder

            might have  had on  the jury's ability  to find  that he  had

            acted with "extreme atrocity  and cruelty."  Extreme atrocity

            and  cruelty   is   an  element   of   first-degree   murder;

            consequently, the SJC reduced Perry's homicide conviction  to

            second-degree murder.  Commonwealth  v. Perry, 385 Mass. 639,
                                   ____________     _____

            648-50 (1982).

                 Since his direct appeal,  Perry has shuttled between the

            Massachusetts  and federal  courts with  a series  of pro  se
                                                                  _______

            applications  for  post-conviction  relief.    He  filed  two

            motions for a new  trial in the Massachusetts courts,  one in

            1984 and  one in 1988; both  were denied.  He  has also filed

            three petitions in federal court for a writ of habeas corpus.

            The district court dismissed  the first two petitions because

            each contained claims as to which Perry had not exhausted his

            remedies in state court.   This appeal concerns the dismissal

            of Perry's third habeas petition.

                 The current  petition,  in Paragraphs  12A through  12J,

            makes  ten  claims.   We affirm  the  dismissal of  the eight

            claims  in   Paragraphs  12B,   and  12D  through   12J,  for

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essentially the reasons stated in the district court's order.

            With respect  to Paragraph  12B, we agree  with the  district

            court that  dismissal was  in order  because Perry  failed to

            allege  any facts  to support  a claim  that the  state trial

            court violated  his constitutional rights when  it denied his

            motion for a required finding of not guilty.  It is a rule of

            long standing  in  this  circuit that  "[w]e  do  not  accept

            'notice' pleading  in habeas  corpus proceedings."   Aubut v.
                                                                 _____

            Maine, 431 F.2d 688, 689  (1st Cir. 1970).  The rule  applies
            _____

            even to pro se  petitions.  See, e.g., Bernier  v. Moore, 441
                    ______              _________  _______     _____

            F.2d 395, 396 (1st Cir. 1971).

                 With  respect to  Paragraphs 12D  through 12J,  we agree

            with  the  district  court  that  Perry  is  barred  by   his

            procedural default in state  court from bringing these claims

            in federal  court.  An  adequate and  independent finding  of

            procedural default by  a state court "will bar federal habeas

            review of the federal claim, unless the habeas petitioner can

            show  'cause'  for the  default  and 'prejudice  attributable

            thereto,' or demonstrate that failure to consider the federal

            claim will result in a 'fundamental miscarriage of justice.'"

            Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted).
            ______    ____

                 In his second motion for a new trial, Perry asserted the

            same seven  claims contained  in Paragraphs 12D  through 12J.

            The  Superior Court judge who heard the motion refused to act

            on  it, and Perry applied  to the Massachusetts Appeals Court

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for  review.   The  Appeals  Court affirmed  the  decision to

            reject  the  motion  outright,  ruling  that   under  settled

            Massachusetts law the claims made  in the motion either "were

            .  .  .  issues  which  were  available  for  review  on  the

            defendant's  direct appeal, . .  . or were  matters which may

            not be raised on a motion  for a new trial."  Commonwealth v.
                                                          ____________

            Perry,  No.  88-P-629   (Mass.App.Ct.  November  14,   1988).
            _____

            Therefore, the claims were waived.

                 Although the  Appeals Court went on  to consider briefly

            the  merits of Perry's motion (and to find nothing that might

            entitle  him to  a new  trial), it  is clear  to us  that the

            decision rested independently  on Perry's procedural default.

            The Supreme  Court has said that the  procedural bar doctrine

            applies even if  a state court reaches the merits  of a claim

            in an  alternative  holding,  "as  long as  the  state  court

            explicitly invokes a  state procedural bar rule as a separate

            basis for decision."  Harris v. Reed, 489 U.S. at 264 n.10.  
                                  ______    ____

                 We think  it equally clear that the procedural rule used

            by  the Appeals  Court constituted  an "adequate"  ground for

            decision, inasmuch  as the rule has  been "consistently [and]

            regularly applied."  Dugger  v. Adams, 489 U.S. 401,  410 n.6
                                 ______     _____

            (1989).   Under Massachusetts law, "'a motion for a new trial

            may  not be  used as  a vehicle  to compel  a trial  judge to

            review and reconsider questions of law' on which  a defendant

            has  had his  day  in an  appellate  court, or  forgone  that

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opportunity."   Fogarty v.  Commonwealth, 406 Mass.  103, 107
                            _______     ____________

            (1989).     This   has  been   the  "unbroken   practice"  in

            Massachusetts for  many years.   Commonwealth v.  McLaughlin,
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            364  Mass.   211,  229   (1973)   (quoting  Commonwealth   v.
                                                        ____________

            Dascalakis,  246 Mass.  12,  24 (1923)).    It was  therefore
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            appropriate for  the district court,  in the  absence of  any

            showing of  "cause" or "prejudice," to  invoke the procedural

            default  to bar Perry's  attempt to  resurrect his  claims in

            federal court.  

                 Finally,  we  affirm  the  dismissal of  the  claims  in

            Paragraphs  12A and  12C, though  for reasons  different from

            those stated by the district court.  The district court found

            that  Perry  had  not  "exhausted" his  state  remedies  with

            respect to these  two claims,  see 28 U.S.C.    2254(b),  but
                                           ___

            ruled  that  it  could  nevertheless  consider  their  merits

            pursuant  to Granberry  v. Greer,  481 U.S.  129 (1987).   We
                         _________     _____

            conclude that the claims were exhausted.
                                     ____

                 Under  28  U.S.C.    2254(c),  a  habeas petitioner  has

            failed to exhaust his state remedies only if, with respect to

            a particular federal claim,  "he has the right under  the law

            of  the  state to  raise,  by  any available  procedure,  the
                                               _________

            question presented" (emphasis added).   If the federal habeas

            court finds that  the petitioner has forfeited  review of the

            claim  in state courts by virtue  of some procedural default,

            then  there is no "available"  state procedure and the claim,

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though  never  actually put  before the  state court,  can be

            deemed  exhausted. See Engle v. Isaac, 456 U.S. 107, 125 n.28
                               ___ _____    _____

            (1982)  (since petitioners  could have  raised constitutional

            challenge  at trial or on  direct appeal, "we  agree with the

            lower courts  that state collateral relief  is unavailable to

            respondents and,  therefore, that  they have  exhausted their

            state remedies with  respect to this claim"); Harris v. Reed,
                                                          ______    ____

            489 U.S.  at 268 (1989) (O'Connor,  J., concurring); Carsetti
                                                                 ________

            v.  Maine, 932 F.2d 1007,  1011 (1st Cir.  1991) ("Without an
                _____

            available  remedy   in  state  court,   petitioner  has  thus

            satisfied the exhaustion requirement").  This       principle

            applies to the  case at hand.  Were Perry  now to seek relief

            in  state court  for the  constitutional claims  contained in

            Paragraphs  12A  and  12C,  the  Massachusetts  courts  would

            declare him  in procedural default because  Perry could have,

            but did not, raise  these claims in his two  previous motions

            for  a  new trial.   Under  Mass. R.  Crim. P.  30(c)(2), any

            grounds not raised  in a  prisoner's first motion  for a  new

            trial "are waived unless the judge  in his discretion permits

            them  to be  raised in  a subsequent  motion, or  unless such

            grounds could not reasonably have been raised in the original

            or amended motion."

                 Nothing prevented  Perry  from raising  Paragraph  12A's

            equal  protection argument in either of his two motions for a

            new trial.  A  Massachusetts court might, it is  true, excuse

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Perry's failure to raise the claim contained in Paragraph 12C

            in his  first motion for a new trial because the claim "could

            not reasonably have been raised"  when Perry filed the motion

            in 1984.   It was not  until April 1985,  in Commonwealth  v.
                                                         ____________

            Henson,  394  Mass.  584,  593 (1985),  that  the  SJC  first
            ______

            suggested that  denying a criminal defendant  the opportunity

            to   rely  on  intoxication  as   a  defense  might  raise  a

            constitutional  due  process  issue.   However,  Perry  could

            reasonably have raised the  issue in his second motion  for a

            new  trial, filed in 1988, and the omission of the claim from

            that  motion was  a procedural  default under  Rule 30(c)(2).

            The claims, therefore, were exhausted.

                 To  say that  the  inevitable prospect  of a  procedural

            default in state court renders a claim exhausted, however, is

            not to say that  this form of compliance with  the exhaustion

            requirement opens the claim up to federal adjudication on the

            merits.     To  the   contrary,  a  prisoner   who  would  be

            "procedurally  barred from  raising a  federal constitutional

            claim in state court is also barred from raising the claim in

            a  federal habeas petition unless  he can show  cause for and

            actual prejudice from  making the default."   Toles v. Jones,
                                                          _____    _____

            888 F.2d 95, 98-9 (11th Cir. 1989).  See also Teague v. Lane,
                                                 ________ ______    ____

            489 U.S. 288,  297-99 (1989);  Engle v. Isaac,  456 U.S.  107
                                           _____    _____

            (1982); Church  v. Sullivan, 942  F.2d 1501,  1507 n.5  (10th
                    ______     ________

            Cir. 1991); Wright v. Nix, 928 F.2d 270, 272 (8th Cir. 1991);
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Thigpen  v.  Thigpen, 926  F.2d  1003, 1010  n.17  (11th Cir.
            _______      _______

            1991);  Reese v. Peters, 926  F.2d 668, 671  (7th Cir. 1991);
                    _____    ______

            Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990).
            ________    ________

                 The record here  contains not even  a glimmer of  cause.

            Because  he represented  himself in  the  Massachusetts post-

            conviction proceedings,  Perry cannot  pass the buck  for the

            default by claiming ineffective  assistance of counsel.1  Nor

            does the record demonstrate or even hint at (1) the existence

            of "some objective factor external to the defense" that might

            have  impeded  Perry's efforts  to  comply  with the  state's

            procedural  rules,  Murray  v.  Carrier, 477  U.S.  478,  488
                                ______      _______

            (1986),  or  (2) some  interference  by  officials that  made

            compliance impracticable.  Id.   As noted above,  the factual
                                       ___

            and  legal bases for both  claims were evident  no later than

            April 1985, three years before Perry filed his  second motion

            for a new trial.2

                 Affirmed.
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            1.  The fact that Perry appears pro se here, and appeared pro
                                            ______                    ___
            se in  the proceedings on his  motions for a new  trial, does
            __
            not excuse him  from compliance with  the rigorous cause  and
            prejudice standard.  See Barksdale v. Lane, 957 F.2d 379, 385
                                 ___ _________    ____
            n.12  (7th Cir. 1992); Alexander v. Dugger, 841 F.2d 371, 374
                                   _________    ______
            n.3  (11th  Cir.  1988);  Hughes  v.  Idaho  State  Board  of
                                      ______      _______________________
            Corrections, 800 F.2d 905, 908 (9th Cir. 1986).
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            2.  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
                                                 ______    ____
            1197, 1202 (1st Cir. 1987).

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