DocketNumber： 93-1739
Filed Date： 11/15/1994
Status： Precedential
Modified Date： 9/21/2015
November 15, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1739
JOSE L. RODRIGUEZ,
Petitioner,
v.
PETER PEPE,
Respondent.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge] ___________________
____________________
Before
Selya, Cyr and Boudin, Circuit Judges. ______________
____________________
Jose L. Rodriguez, pro se. _________________
Scott Harshbarger, Attorney General, and William J. Duensing, __________________ ____________________
Assistant Attorney General, for respondent.
____________________
____________________
Per Curiam. After a searching and extensive review of __________
the issues presented, we affirm the district court's
dismissal of Jose Rodriguez's petition for habeas corpus.
The district court concluded that the pendency of a new trial
motion before the state trial court barred consideration of
petitioner's federal habeas corpus claims. We granted a
certificate of probable cause in light of the state's lengthy
delay in resolving either petitioner's new trial motion or
his appeal and our difficulty in discerning its cause. We
sought from the government a memorandum addressing the
reasons--and justifications--for the delay. Having reviewed
all the submissions carefully, we find that the delay in the
state court proceedings does not excuse petitioner's failure
to exhaust his state remedies before seeking federal habeas
corpus relief. See 28 U.S.C. 2254(b). ___
There is no dispute that petitioner has not exhausted
his state remedies; petitioner claims that his failure to
exhaust is excused because of the excessive delay by the
state in acting upon either his appeal or new trial motion.
See, e.g., Hankins v. Fulcomer, 941 F.2d 246, 250 (3d Cir. ___ ____ _______ ________
1991). Petitioner's appeal has been pending for over six
years, while his new trial motion has been pending for over
four years. What was less clear at the outset but more clear
now is that this delay is of petitioner's own making. After
petitioner filed his appeal, a not uncommon problem developed
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in obtaining the transcription of the trial court record.
The situation was exacerbated by the fact that petitioner did
not have counsel to aid him in rectifying the problem, as he
had fired his lawyer following sentencing and had not as yet
requested replacement counsel. The transcription problem
looked as if it was about to resolve itself when petitioner,
acting pro se, filed a new trial motion with the trial court ______
in May 1990.
The effect of this filing was to create a procedural
logjam--the lower court record could not be assembled for
transmission to the appellate court until the disposition of
the pending motion, but the new trial motion would not be
resolved until the appeal was either withdrawn or concluded.
See Mass. R. Crim. Proc. 30(b) (reporters' notes); Mass. R. ___
App. Proc. 4(c), 9(a), 9(d). By seeking to pursue two
courses of action simultaneously, petitioner prevented either
course from proceeding. And since it has been and continues
to be within petitioner's power to cure this situation, i.e., ____
by withdrawing his new trial motion or his appeal, the delay
in the resolution of the pending matters cannot excuse
petitioner's failure to exhaust his state remedies. See ___
Deters v. Collins, 985 F.2d 789, 796 (5th Cir. 1993) (delay ______ _______
does not excuse failure to exhaust where petitioner
contributes to delay).
Affirmed. ________
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