USCA1 Opinion

June 4, 1992

[NOT FOR PUBLICATION]

___________________
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,
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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.

__________________
__________________

Per Curiam.
__________
of

The appellant, Gene L. Perry, was convicted

arson and first-degree murder in a Massachusetts court in

1980.

Perry

Supreme

appealed his

Judicial Court

conviction to

(SJC),

which ruled

the Massachusetts
that the

trial

court had omitted a necessary jury instruction concerning the

effect that
might have

Perry's intoxication at
had on

the jury's ability

acted with "extreme atrocity

and

cruelty

is

the time of

an

to find

and cruelty."

element

of

the murder
that he

Extreme atrocity

first-degree

murder;

consequently, the SJC reduced Perry's homicide conviction

second-degree murder.

Commonwealth
____________

had

to

v. Perry, 385 Mass. 639,

_____

648-50 (1982).
Since his direct appeal,
Massachusetts
applications

and federal
for

courts with

post-conviction

motions for a new

1984 and

Perry has shuttled between the

a series

relief.

He

of pro se
_______
filed

trial in the Massachusetts courts,

one in 1988; both

were denied.

He

two

one in

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
makes

ten

claims

in

petition,

claims.

in Paragraphs

We affirm

Paragraphs

12B,

the
and

12A through

dismissal of
12D

through

12J,

the eight
12J,

for

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

With respect
court that

to Paragraph
dismissal was

12B, we agree
in order

with the

because Perry

district
failed to

allege

any facts

court violated

to support

a claim

that the

his constitutional rights when

state trial
it denied his

motion for a required finding of not guilty.

It is a rule of

long standing

do

in

'notice' pleading

this

circuit that

in habeas

Maine, 431 F.2d 688, 689

_____
even to pro se
______

"[w]e

corpus proceedings."

(1st Cir. 1970).

petitions.

not

The rule

See, e.g., Bernier

_________ _______

accept
Aubut v.
_____
applies

v. Moore, 441
_____

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

With
with

the

respect to
district

Paragraphs 12D
court

that

procedural default in state

in federal

court.

An

procedural default by

through 12J,

Perry

is

barred

we agree
by

his

court from bringing these claims

adequate and

independent finding

of

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
The
on

claims contained

in Paragraphs 12D

through 12J.

Superior Court judge who heard the motion refused to act

it, and Perry applied

to the Massachusetts Appeals Court

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for

review.

reject

the

The

Appeals

motion

Court affirmed

outright,

ruling

Massachusetts law the claims made

.

issues

defendant's

which

were

not be raised on a motion

Perry,
_____

No.

88-P-629

that

decision to

under

settled

in the motion either "were

available

direct appeal, . .

the

for

. or were

on

the

matters which may

for a new trial."

(Mass.App.Ct.

review

Commonwealth v.
____________

November

14,

1988).

Therefore, the claims were waived.

Although the
the

Appeals Court went on

to consider briefly

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

entitle

him to

a new

trial), it

decision rested independently

The Supreme

to us

procedural bar doctrine

a state court reaches the merits

alternative

holding,

that the

on Perry's procedural default.

Court has said that the

applies even if
in an

is clear

"as

long as

the

of a claim
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
by

the Appeals

it equally clear that the procedural rule used

Court constituted

decision, inasmuch

as the rule has

an "adequate"

ground for

been "consistently [and]

regularly applied."
(1989).
may

Dugger
______

v. Adams, 489 U.S. 401,

_____

Under Massachusetts law, "'a motion for a new trial

not be

used as

a vehicle

to compel

a trial

review and reconsider questions of law' on which

has

410 n.6

had his

day

in an

appellate

court, or

judge to

a defendant
forgone

that

-4-

opportunity."
(1989).

Fogarty v.
_______

This

has

Commonwealth, 406 Mass.

____________

been

the

Massachusetts for

many years.

364

229

Mass.

211,

Dascalakis,
__________

246 Mass.

appropriate for
showing of
default

(1973)
12,

"unbroken

24 (1923)).

the district court,

attempt to

in

McLaughlin,
__________

Commonwealth
____________
It was

in the

"cause" or "prejudice," to

to bar Perry's

practice"

Commonwealth v.
____________
(quoting

103, 107

v.

therefore

absence of

any

invoke the procedural

resurrect his

claims in

federal court.
Finally,

we

affirm

the

dismissal of

the

claims

in

Paragraphs

12A and

12C, though

for reasons

those stated by the district court.

that

Perry

had

not

respect to these
ruled

that

pursuant

it

could

to Granberry
_________

The district court found

"exhausted" his

two claims,

different from

state

remedies

see 28 U.S.C.
___

nevertheless
v. Greer,
_____

2254(b),

consider

481 U.S.

with

their

but

merits

129 (1987).

We

habeas petitioner

has

conclude that the claims were exhausted.

____
Under

28

U.S.C.

2254(c),

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

a particular federal claim,
of

the

state to

raise,

"he has the right under

by

any available
_________

question presented" (emphasis added).

court finds that
claim
then

there is no "available"

procedure,

the

If the federal habeas

the petitioner has forfeited

in state courts by virtue

the law

review of the

of some procedural default,

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

challenge

at trial or on

lower courts

direct appeal, "we

therefore, that

state remedies with

v.

in

state court

Paragraphs

12A

declare him

in

1011 (1st Cir.

state

case at hand.
for the
and

court,

for

new trial.

grounds not raised

petitioner
This

Were Perry

12C,

the

Under
in a

Mass. R.

to be

raised in

contained in
courts

would

Perry could have,

previous motions

Crim. P.

30(c)(2), any

prisoner's first motion

a subsequent

thus

now to seek relief

Massachusetts

these claims in his two

has

principle

constitutional claims

trial "are waived unless the judge

them

1991) ("Without an

in procedural default because

but did not, raise

exhausted their

J., concurring); Carsetti

________

satisfied the exhaustion requirement").

applies to the

is unavailable to

respect to this claim"); Harris v. Reed,

______
____

Maine, 932 F.2d 1007,

_____
remedy

agree with the

they have

at 268 (1989) (O'Connor,

available

raised constitutional

that state collateral relief

respondents and,

489 U.S.

could have

for a

new

in his discretion permits

motion, or

unless such

grounds could not reasonably have been raised in the original

or amended motion."
Nothing prevented
equal

Perry

from raising

Paragraph

12A's

protection argument in either of his two motions for a

new trial.

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"

in 1984.
Henson,
______

It was not
394

Mass.

suggested that
to

rely

on

until April 1985,

584,

intoxication
due

as

process

reasonably have raised the

that

593 (1985),

in Commonwealth
____________
that

denying a criminal defendant

constitutional

new

when Perry filed the motion

defense

issue.

the

SJC

v.

first

the opportunity
might

However,

raise

Perry

could

issue in his second motion

for a

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

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

"procedurally

the

contrary,

barred from

prisoner

raising a

who

would

be

federal constitutional

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

a

federal habeas petition unless

actual prejudice from

he can show

making the default."

888 F.2d 95, 98-9 (11th Cir. 1989).

489 U.S. 288,

297-99 (1989);

(1982); Church
______

Toles v. Jones,
_____
_____

See also Teague v. Lane,

________ ______
____

Engle v. Isaac,
_____
_____

v. Sullivan, 942
________

cause for and

F.2d 1501,

456 U.S.
1507 n.5

107
(10th

Cir. 1991); Wright v. Nix, 928 F.2d 270, 272 (8th Cir. 1991);
______
___

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Thigpen
_______
1991);

v.

Thigpen, 926
_______

F.2d

Reese v. Peters, 926

_____
______

1003, 1010

F.2d 668, 671

n.17

(11th Cir.

(7th Cir. 1991);

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

________
________
The record here
Because

contains not even

he represented

conviction proceedings,

himself in
Perry cannot

default by claiming ineffective

a glimmer of

the

cause.

Massachusetts post-

pass the buck

for the

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

procedural
(1986),

or

Perry's efforts

rules,

Murray
______

(2) some

v.

to

comply

with the

Carrier, 477
_______

interference

by

U.S.

state's
478,

officials that

made

compliance impracticable.

Id.
___

and

claims were evident

no later than

April 1985, three years before Perry filed his

second motion

legal bases for both

As noted above,

488

the factual

for a new trial.2

Affirmed.
________

____________________
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).
___________
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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