Perry v. Abdal-Khallaq
U.S. Court of Appeals for the First Circuit
Perry v. Abdal-Khallaq
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June 4, 1992 [NOT FOR PUBLICATION]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]
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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,
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Assistant Attorney General, on brief for appellee.
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Per Curiam. The appellant, Gene L. Perry, was convicted
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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,
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648-50 (1982).
Since his direct appeal, Perry has shuttled between the
Massachusetts and federal courts with a series of pro se
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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.
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Maine, 431 F.2d 688, 689 (1st Cir. 1970). The rule applies
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even to pro se petitions. See, e.g., Bernier v. Moore, 441
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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).
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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.
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Perry, No. 88-P-629 (Mass.App.Ct. November 14, 1988).
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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.
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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
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(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
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(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.
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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
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ruled that it could nevertheless consider their merits
pursuant to Granberry v. Greer, 481 U.S. 129 (1987). We
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conclude that the claims were exhausted.
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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
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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
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(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,
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489 U.S. at 268 (1989) (O'Connor, J., concurring); Carsetti
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v. Maine, 932 F.2d 1007, 1011 (1st Cir. 1991) ("Without an
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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.
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Henson, 394 Mass. 584, 593 (1985), that the SJC first
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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,
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888 F.2d 95, 98-9 (11th Cir. 1989). See also Teague v. Lane,
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489 U.S. 288, 297-99 (1989); Engle v. Isaac, 456 U.S. 107
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(1982); Church v. Sullivan, 942 F.2d 1501, 1507 n.5 (10th
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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.
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1991); Reese v. Peters, 926 F.2d 668, 671 (7th Cir. 1991);
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Bassette v. Thompson, 915 F.2d 932, 937 (4th Cir. 1990).
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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
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(1986), or (2) some interference by officials that made
compliance impracticable. Id. As noted above, the factual
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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
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se in the proceedings on his motions for a new trial, does
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not excuse him from compliance with the rigorous cause and
prejudice standard. See Barksdale v. Lane, 957 F.2d 379, 385
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n.12 (7th Cir. 1992); Alexander v. Dugger, 841 F.2d 371, 374
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n.3 (11th Cir. 1988); Hughes v. Idaho State Board of
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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
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1197, 1202 (1st Cir. 1987).
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