Watkins v. Ponte ( 1993 )

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
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
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.
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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).
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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).
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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
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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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