Watkins v. Ponte

• Court: Court of Appeals for the First Circuit
• Decided: March 3, 1993
• Docket: 92-1864
• Status: Published

Opinion

USCA1 Opinion

March 3, 1993     UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                 ____________________

          No. 92-1864

                                   THEODIS WATKINS,

                                Petitioner, Appellant,

                                          v.

                                    JOSEPH PONTE,

                                Respondent, Appellee.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. William G. Young, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                              Torruella, Circuit Judge,
                                         _____________

                            Bownes, Senior Circuit Judge,
                                    ____________________

                              and Stahl, Circuit Judge.
                                         _____________

                                _____________________

               Joseph F. Shea, with  whom Nutter, McClennen & Fish,  was on
               ______________             ________________________
          brief for appellant.
               Robert  N. Sikellis,  Assistant  Attorney General,  Criminal
               ___________________
          Bureau,  with whom  Scott Harshbarger,  Attorney General,  was on
                              _________________
          brief for appellee.

____________________

                                    March 3, 1993
                                 ____________________

TORRUELLA,  Circuit Judge.  Appellant, Theodis Watkins,
                                _____________

          appeals from the district court's dismissal of his petition under

          28 U.S.C.   2254.  We affirm.

                                        FACTS
                                        FACTS
                                        _____

                    Watkins was  convicted of  first degree murder  on June

          23, 1976 and sentenced to  life in prison.1  In 1979, he  filed a

          pro  se petition for a  writ of habeas  corpus ("1979 Petition").
          ___  __

          The  1979 Petition was  "mixed"; it presented  both exhausted and

          unexhausted  claims  for  relief.2   The  magistrate  recommended

          dismissal of the  1979 Petition and  the district court  affirmed

          after   appellant   failed   to   challenge    the   magistrate's

          recommendations within  the prescribed  ten day period.   Watkins

          sought a certificate of  probable cause for appeal, Fed.  R. App.

          P. 22(b),  on the two claims that had been exhausted.  This court

          denied the request and dismissed the appeal.  

                    Watkins unsuccessfully pursued  his unexhausted  claims

          in state court during the  1980s.  In 1990, he filed  the current

          petition  for writ  of habeas  corpus ("1990  Petition") alleging

          three  grounds  that  were  not  raised  in  the  1979 Petition.3
                              
          ____________________

          1   See Commonwealth v.  Watkins, 373 Mass.  849, 370 N.E.2d  701
              ___ ____________     _______
          (1977), for the facts underlying Watkins' conviction.

          2  The 1979  Petition asserted the following grounds  for relief:
          (1) failure  to sequester witnesses;  (2) inadequate instructions
          on  manslaughter;  (3)  inadequate instructions  on  malice;  (4)
          failure to direct a  verdict for Watkins based on  defective jury
          charges that shifted the  burden of proof to the  petitioner; (5)
          improper confinement  to the dock during  trial.  At the  time of
          filing Watkins had only exhausted the first two grounds.

          3   The amended  1990 Petition  sought  relief based  on (1)  the
          inadequacy of the trial  court's instruction on reasonable doubt;
          (2) the inadequacy of the  court's instruction on the distinction
          between first and second degree murder; and (3) the inadequacy of

Relying  on  McCleskey  v. Zant,  111  S.  Ct.  1454 (1991),  the
                       _________     ____

          district court dismissed the first two grounds as an abuse of the

          writ and ruled against Watkins on the third.  Watkins now appeals

          only the  two arguments  dismissed for  abuse  of the  writ.   As

          appellant  has failed  to raise  the third  ground on  appeal, we

          treat it as waived.  Brown  v. Trustees of Boston Univ., 891 F.2d
                               _____     ________________________

          337, 352 (1st Cir. 1989), cert. denied, 496 U.S. 937 (1990).
                                    ____  ______

                                      DISCUSSION
                                      DISCUSSION
                                      __________

                    In  McCleskey, the  Supreme Court  used the  cause-and-
                        _________

          prejudice  standard  applicable to  cases of  procedural default,

          see, e.g., Wainwright  v. Sykes, 433 U.S.  72 (1977), as part  of
          ___  ____  __________     _____

          its analysis  of the  problems arising from  successive petitions

          for habeas corpus.  The court stated, 

                      [t]o  excuse  his  failure  to  raise the
                      claim  earlier,  he must  show  cause for
                      failing   to   raise  it   and  prejudice
                      therefrom  as  those  concepts have  been
                      defined   in   our   procedural   default
                      decisions.  . .  .  If  petitioner cannot
                      show cause, the failure to rise the claim
                      in an earlier petition may nonetheless be
                      excused  if he  or  she can  show that  a
                      fundamental miscarriage  of justice would
                      result  from a  failure to  entertain the
                      claim.

          111 S. Ct. at 1470.  Earlier, in Rose v. Lundy, 455 U.S. 509, 510
                                           ____    _____

          (1982),  the  Supreme  Court  perceived  that  the  multitude  of

          piecemeal habeas  petitions unduly burdened  the federal  courts.

          Rose  sought  to  consolidate  the  issues  for  appeal  in   one
          ____

          proceeding  in  each  court  system by  establishing  the  "total

____________________

          the trial court's instruction on malice.

                                         -3-

exhaustion"  rule.  But it also preserved immediate access to the

          federal  courts  on  exhausted issues,  provided  the  petitioner

          consciously  wished to  risk  losing an  opportunity for  federal

          review of  other claims.  455  U.S. at 510.   Thus, Rose required
                                                              ____

          that district  courts entertaining mixed  habeas petitions  offer

          petitioners an  explicit choice to proceed on exhausted claims or

          delay federal review to bring all claims once exhausted.  Id.
                                                                    ___

                    The  Commonwealth contends that  Watkins' 1990 Petition

          falls  squarely within  McCleskey  because back  in 1979  Watkins
                                  _________

          chose  to appeal only the  two exhausted claims  presented in the

          1979 Petition, and, therefore, bore  the "risks [of] dismissal of

          [his]  subsequent  federal petition[]"  for  abuse  of the  writ.

          Rose, 455  U.S. at  510;  McCleskey, 111  S. Ct.  at  1467.   The
          ____                      _________

          Commonwealth  argues  further that  Watkins  abused  the writ  by

          failing to  assert the  reasonable doubt  and  the second  degree

          murder claims in the original 1979 Petition since Watkins did not

          allege,  nor could  he, that  he lacked  a substantial  basis for

          those claims in 1979.  See McCleskey, 111 S. Ct. at 1468.
                                 ___ _________

                    Watkins counters  that the merits of  the two exhausted

          claims  in the 1979 Petition were never properly before the court

          of appeals because Watkins was never presented the choice between

          dismissal and  continuing only with exhausted  claims as required

          by  Rose, 455 U.S.  at 510.   According to Watkins,  the district
              ____

          court  effectively made  the  choice for  him  by dismissing  the

          petition  as mixed.   On appeal,  this court  refused to  issue a

          certificate  of probable cause  and dismissed the  appeal.  Thus,

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argues Watkins, there can  be no abuse because the  1990 Petition

          is the first petition properly before the court.

                    We  agree with  the Commonwealth  that we  reviewed the

          merits  of two exhausted claims in the 1979 Petition.  Watkins v.
                                                                 _______

          Callahan, Misc.  No. 80-8063 (1st Cir.  Nov. 20, 1980).   When we
          ________

          decided that appeal, the  Supreme Court's "total exhaustion" rule

          of Rose  had not  yet  been decided.    This Circuit,  and  seven
             ____

          others, did not  condition district court review of  mixed habeas

          petitions on exhaustion of all state court claims.  See Rose, 455
                                                              ___ ____

          U.S. at 513 n.5 and cases cited therein; Miller v. Hall, 536 F.2d
                                                   ______    ____

          967, 969  (1st Cir. 1976); Katz  v. King, 627 F.2d  568, 574 (1st
                                     ____     ____

          Cir. 1980).   In Niziolek  v. Ashe, 694  F.2d 282, 287  (1st Cir.
                           ________     ____

          1982), we held that individuals "who filed mixed petitions before

          Rose issued  should  not be  penalized  for having  followed  the
          ____

          procedure that prevailed at  the time."  That practice  permitted

          the  court   to  rule  on  exhausted   claims,  while  dismissing

          unexhausted claims,  because "it would be  indefensible to refuse

          to consider a  meritorious claim  merely on the  grounds that  it

          might eventually be mooted  by a favorable state court  ruling on

          his  appeal of  unrelated  issues."   Miller,  536 F.2d  at  969.
                                                ______

          Providing prompt relief to  individuals who filed mixed petitions

          obviously  did not  contemplate  summarily  rejecting  subsequent

          petitions.

                    We followed the pre-Rose  procedure with respect to the
                                        ____

          1979 Petition.  We  dismissed the merits of the  exhausted claims

          and  reserved consideration  of  the unexhausted  claims.   Thus,

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Watkins reasonably assumed that we would consider his unexhausted

          claims  in a  subsequent  petition once  he  had exhausted  them.

          Because  we considered the 1979 Petition  on the merits, however,

          we  must use  it  as the  bench  mark for  the  abuse-of-the-writ

          analysis.

                    In   this   context,  McCleskey's   cause-and-prejudice
                                          _________

          standard plainly requires the  dismissal of claims raised  in the

          1990  Petition  that   Watkins  failed  to  raise  in   the  1979

          Petition.4   To justify the  failure to raise  a claim, appellant

          must demonstrate  that some  "external impediment, whether  it be

          government  interference or the  reasonable unavailability of the

          factual  basis for  the  claim, must  have  prevented [him]  from

          raising the claim."  McCleskey, 111 S. Ct. at 1472.  Watkins also
                               _________

          failed  to demonstrate that  he made  a "reasonable  and diligent

          investigation aimed at including  all relevant claims and grounds

          for relief in  the first federal habeas petition."   Id. at 1472.
                                                               ___

          This test forms the cause prong of the McCleskey test and Watkins
                                                 _________

          failed  to meet  it.    Although  Watkins' counsel  asserted that

          Watkins could meet both prongs at the hearing before the district

          court on  the 1990 Petition, he never  explained how.  On appeal,

          Watkins  did  not  raise the  argument.    We  conclude that  the

          reasonable  doubt  and  second-degree murder  challenges  to  his

          conviction  were available  to Watkins  at the  time of  the 1979

          Petition and  that he  has shown  no cause  for failing to  raise
                              
          ____________________

          4   Despite the age of this case there is no problem as McCleskey
                                                                  _________
          applies retroactively.  Andiarena v. United States, 967 F.2d 715,
                                  _________    _____________
          717-18 (1st Cir. 1992).

                                         -6-

them.

                    Finally, Watkins' argues that even if the 1990 Petition

          is an abuse, a "fundamental miscarriage of justice  would result"

          from  refusing to  consider his  new claims.   This  exception to

          McCleskey   is   narrow,  as   it   is   contemplated  only   for
          _________

          "extraordinary instances when a constitutional violation probably

          has caused the conviction of one innocent of the crime."   Id. at
                                                                     ___

          1470.    In  describing   this  exception,  the  McCleskey  court
                                                           _________

          suggested that the petitioner  must supplement the constitutional

          violation with  a "colorable showing of factual  innocence."  Id.
                                                                        ___

          at 1471 (quoting Kuhlmann  v. Wilson, 477 U.S. 436,  454 (1986));
                           ________     ______

          see also Wise v. Fulcomer, 958 F.2d 30, 34 (3d Cir. 1992).  
          ________ ____    ________

                    Watkins'  case  falls  outside  this  narrow  exception

          because he did not squarely raise the "fundamental miscarriage of

          justice" issue before the  district court.  While he  claims that

          the  argument  was  implicit  in  his Memorandum  in  Support  of

          Petition  for Writ of Habeas Corpus, we find this insufficient in

          light of the fact that Watkins did not argue the exception at the

          hearing  before the district court  when it ruled  against him on

          the basis of McCleskey.5  
                       _________

                    "This circuit  religiously follows the rule that issues

          not  presented to the district court cannot be raised on appeal."

          Ouimette v. Moran,  942 F.2d 1, 12 (1st  Cir. 1991) (rule applied
          ________    _____

____________________

          5   We note that Watkins  also failed to object  to the allegedly
          infirm  instruction  at  the  original trial.    Commonwealth  v.
                                                           ____________
          Watkins, Crim. Action No.  95-794, slip op. at 3-4  (Superior Ct.
          _______
          July 7, 1989). 

                                         -7-

in  habeas context); Knight v.  United States, 611  F.2d 918, 920
                               ______     _____________

          n.2 (1st Cir. 1979)  (rule applied in habeas  context).  Only  in

          cases in which "a  gross miscarriage of justice" would  occur and

          in  which  "the new  ground [is]  so  compelling as  to virtually

          insure appellant's  success" can we consider  arguments that were

          not raised below.  Hern ndez-Hern ndez v. United States, 904 F.2d
                             ___________________    _____________

          758, 763 (1st Cir.  1990) (quoting Johnston v. Holiday  Inns, 595
                                             ________    _____________

          F.2d 890,  894 (1st Cir.  1979)).   To determine whether  a gross

          miscarriage  of justice  would occur  if we  do not  consider the

          McCleskey exception, we must look at appellant's claims.
          _________

                    Watkins   first  challenges  the   trial  court's  jury

          instructions on reasonable doubt.  He claims that four aspects of

          the   instructions,   when    taken   together,   derogate    the

          Commonwealth's  burden of proof.   First, the  trial court stated

          that  reasonable doubt  was  not "foolish"  or "fanciful"  doubt.

          Second,  it suggested  that reasonable  doubt was  something less

          than  a "mathematical  or an  artificial  certainty."   Third, it

          presented its  instruction on essential  elements of a  crime, as

          opposed to collateral  issues, in a  confusing manner.   Finally,

          the  trial court  stated that  "the average  layman's version  of

          'reasonable doubt' would  come pretty  close to what  the law  in

          much more technical language says."  

                    While criminal defendants often  challenge instructions

          on reasonable doubt, "our experience has been that even imperfect

          formulations usually meet constitutional requirements when viewed

          in  the context of the  entire charge."   Lanigan v. Maloney, 853
                                                    _______    _______

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F.2d 40, 45 (1st Cir. 1988), cert. denied, 488 U.S. 1007  (1989).
                                       ____  ______

          We  must "tolerate a reasonable range of expression, some or even

          much of which may not  suit our fancy," unless we impose  pattern

          jury instructions.  Bumpus v. Gunter, 635 F.2d 907, 910 (1st Cir.
                              ______    ______

          1980), cert.  denied, 450 U.S.  1003 (1981).   In this  case, the
                 ____   ______

          trial  judge's instruction  on  reasonable doubt  were less  than

          perfect.   They were confusing in  parts, but do not  rise to the

          level of constitutional infirmity.  

                    The trial  court's statement with respect  to "foolish"

          or  "fanciful" doubt came close to the instruction we censured in

          Dunn v. Perrin,  570 F.2d 21,  24 (1st  Cir.), cert. denied,  437
          ____    ______                                 ____  ______

          U.S. 910 (1978).  In Dunn,  the trial court erred by shifting the
                               ____

          burden to the  defendant.   It stated that  reasonable doubt  was

          doubt  that could not "readily or easily [be] explained away, but

          rather such  a strong  and abiding  conviction  as still  remains

          after careful consideration of all the  facts and arguments . . .

          ."  Id.    In this case, the trial court did not shift the burden
              ___

          to defendant.   It stated that reasonable doubt was "a doubt that

          resides in the mind of a  reasonable man who is earnestly seeking

          the truth.   It is not  a foolish doubt.   It  is not a  fanciful

          doubt.  It is  not a doubt in the  mind of a juror who  is simply

          seeking  an  excuse  to  acquit  a  defendant."    While  a  poor

          formulation,  this instruction  essentially asked  the jurors  to

          seriously pursue  the truth.   Appellant's  reliance  on Dunn  is
                                                                   ____

          misplaced.   

                    With  respect to the  other errors alleged,  it is true

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that the trial judge indicated that a mathematical certainty  was

          not possible.  The  trial judge nonetheless exhorted the  jury to

          be  as  certain  as  humanly  possible  and  instructed that  the

          Commonwealth  was  required  to   prove  each  element  beyond  a

          reasonable doubt, if in a  somewhat convoluted manner.   Finally,

          the  introductory comment  that the  layman's version  is "pretty

          close" to  the law's  technical definition, even  when considered

          along  side  the other  disputed  verbal  formulations, does  not

          prevent us from finding that the challenged aspects of the charge

          did not  "so infect the entire  charge and trial as  to cause the

          jury to evaluate petitioner's guilt or innocence under a standard

          less  than 'beyond a reasonable doubt'."  Lanigan v. Maloney, 853
                                                    _______    _______

          F.2d 40, 48 n.7 (1st Cir. 1988) (quoting Bumpus, 635 F.2d at 909,
                                                   ______

          for standard  required to reverse state  conviction on reasonable

          doubt  instruction).     The  trial   court  did  not   commit  a

          constitutional  error in  its instructions  on reasonable  doubt.

          Thus,  we do not find his  arguments "so compelling" as to insure

          success and,  consequently, there has been  no "gross miscarriage

          of justice."  Hern ndez-Hern ndez, 904 F.2d at 763.   
                        ___________________

                    Appellant also challenges the trial court's instruction

          on the definition of  premeditated murder.  During deliberations,

          the jury  requested further  instruction on  premeditated murder.

          The trial judge answered their question by stating, 

                      [p]remeditated  murder  as  distinguished
                      from murder  in the  second degree is  if
                      [sic]  it  is planned  beforehand,  or to
                      give  you  an alternative  definition, if
                      there  is a  definite decision  to commit
                      the act followed by the commission of the

                                         -10-

act, that would be premeditation.

          None of the  Massachusetts Supreme Judicial Court  cases cited by

          appellant  undermines  this  charge.   The  charge  accords  with

          Commonwealth v. Ruci,  409 Mass.  94, 96, 564  N.E.2d 1000,  1002
          ____________    ____

          (1991), which requires that defendant reflect on  a resolution to

          kill  the victim,  and with  Commonwealth v. Callahan,  401 Mass.
                                       ____________    ________

          627, 633, 519 N.E.2d 245,  249 (1988), which states that  the act

          not be so  spontaneous as  to prevent reflection.   Neither  case

          mandates  that  specific words  be  used.   Moreover,  the  court

          indicated  in  Callahan that  the  judge's  added statement  that
                         ________

          premeditation  "excludes action which  is taken  so spontaneously

          that there is no time to think," was appropriate only because the

          judge   earlier  stated  that  premeditation  "may  occur  within

          seconds."   The  trial judge  in  this case  did not  imply  that

          premeditation  could be formed in seconds.  In this case, Watkins

          argued with the victim in the hallway outside the apartment, went

          to the  kitchen to get a knife, and returned to the hallway where

          he fatally stabbed the victim.  Watkins had time to reflect.

                    The jury focused on the critical distinction  necessary

          to find guilt  beyond a reasonable  doubt of the  crime of  first

          degree murder.   It chose to  convict Watkins.  Again,  we do not

          find  Watkins'   arguments  compelling  and  discern   no  "gross

          miscarriage of  justice."  Hern ndez-Hern ndez, 904  F.2d at 763.
                                     ___________________

          Thus, we  are not required to considered the McCleskey exception.
                                                       _________

          As a final matter, we note that Watkins has not made "a colorable

          showing of  factual innocence," making the  likelihood of success

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on the exception exceptionally slim.

                    Because the district court properly  dismissed Watkins'

          new arguments as an abuse of the writ, we affirm.

                    Affirmed.
                    ________

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