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USCA1 Opinion

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT
____________________

No. 94-1912

ROBERT MAINS,

Petitioner - Appellant,

v.

TIMOTHY HALL AND LARRY E. DUBOIS,

Respondents - Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]


___________________

____________________

Before

Torruella, Chief Judge,


___________

Stahl, Circuit Judge,


_____________

and Dom nguez,* District Judge.


______________

_____________________

Joan C. Stanley, by Appointment of the Court, for appellant.


_______________
Gregory I. Massing, Assistant
____________________

Attorney

General, Criminal

Bureau, with whom Scott Harshbarger, Attorney General, and Nancy


__________________
_____
W. Geary,
_________

Assistant

Attorney

General,

were

on

brief

for

appellees.

____________________

January 29, 1996


____________________

____________________

Of the District of Puerto Rico, sitting by designation.

DOMINGUEZ,
DOMINGUEZ,

District Judge.
District Judge.
_______________

Petitioner-appellant,

Robert Mains ("Mains") challenges

of

the petition of

same

the writ of

to be vacated.

the district court's dismissal

habeas corpus

Mains further requests

case to the district court for

and requests the

the remand of this

a determination as to whether his

claim is procedurally barred as successive and as an abuse of the

writ

is new

under Sandstrom v. Montana, 442 U.S. 510 (1979), whether it


_________
_______

law with respect to Mains's claim, and if so, whether the

retroactive

application of said law is barred by Teague v. Lane,


______
____

489 U.S. 288 (1989).

We

warranted.

hold that

the judgment

Consequently, we affirm.

I. BACKGROUND
I. BACKGROUND
_____________

of the

district court

is

On

January

indicted Mains in the

J.), for the

of Mass.

17,

1994,

a Suffolk

Grand

Jury

Superior Court of Massachusetts (Sullivan,

crimes of Murder in the First

Gen. L. ch.

County

265,

1, and for

firearm, in violation of Mass.

Degree, in violation

unlawfully carrying

Gen. L. ch. 269,

10.

convicted on both charges and was sentenced to life

Mains was

imprisonment

on the murder charge; the charge of carrying a firearm was placed

on file.

His conviction was upheld by the Supreme Judicial Court

of Massachusetts.1

See
___

Commonwealth v. Mains, 374


____________
_____

N.E.2d 576,

577 (1978).

____________________

Petitioner

filed two motions

court on April 22, 1977.


the

for a new

trial denied by

Mains then appealed the

the

conviction and

denial of both motions for a new trial; the Supreme Judicial

Court affirmed the judgment of the Superior Court.

-2-

On May 31, 1978,

writ

inter
_____

of habeas

alia that
____

evidence

about a

corpus pursuant

the prosecutor

key witness,

counsel, and that the

the issue of the

Mains filed his first petition

to 28

U.S.C.

failed to

for a

2254, claiming

disclose exculpatory

ineffective assistance

trial judge's instructions to the

"lawfulness" of the killing violated

of trial

jury on

his right

to

due process, by effectively

said element

of the crime was

district court

writ,

proven.

a new

Massachusetts appealed,

court's decision

and

trial.

and

619 F.2d

83, cert.
_____

the

13, 1979, the

petition, granted the

However, the

this court

dismissed

to find that

On August

(Freedman, J.) allowed the

and ordered

Butterworth,
___________

directing the jury

Commonwealth of

reversed

petition.

denied, 449
______

the

See
___

U.S.

district

Mains
_____

v.

864 (1980).

Mains then filed a motion for rehearing wherein he raised, again,

the

issue of

denied on March

the trial

court's instructions.

27, 1980.

The decision stated

The

motion was

that (the court)

"has given this case particularly careful and close attention and

there

is

nothing

considered."

in

the

petition

that

was

not

previously

On

trial pro se,


___ __

February 11, 1983, Mains

before the

filed a motion

state court, claiming

for a new

that the

trial

court's instructions to the jury relieved the Commonwealth of its

burden

of proof

Sandstrom
_________

v.

denied.

Mains'

on

the

element

Montana, 442
_______

subsequent

pursuant to Mass. Gen.

of

U.S. 510

malice

in

violation

(1979).

This

application for

leave

L. ch. 278,

-3-

33E was

of

motion was

to

appeal

also denied by the

Single Justice of

the Supreme Judicial

[a]rguably,
could

be

[the

petitioner's

interpreted

as

impermissible presumption,
issue under Sandstrom v.
_________
or

change

in

Court (Wilkins, J.)

the

who

claim]

either

an

raising a new
Montana, supra,
_______ _____

burden

of proof,

raising an old issue under In re Winship,


_____________
supra,
_____

and Mullaney v. Wilbur, supra . .


________
______ _____

. My inclination is to say that, if there


is an error at

all, it involves an error

that could have been raised before.

On April

writ of

6, 1992,

Mains filed

a second petition

habeas corpus pursuant to 28 U.S.C.

appointment

of

counsel,

and

motion

to

for

2254, a motion for

proceed

in
__

forma
_____

pauperis.2
________

that the

Respondents filed a motion to dismiss on the grounds

petition was successive and

May 31, 1994, the district

motion and

of

cause to

writ.

On

court (Wolf, J.) granted respondents'

dismissed the petition.3

probable

an abuse of the

appeal was

pursuant to Fed. R. App. P. 22(b),4

In

addition, a certificate

granted

on August

15, 1994,

and Counsel was appointed to

represent Mains on November 3, 1994.

____________________

Petitioner

also filed

December 4, 1992.

On June

J.) denied appointment of


to

a motion

for a

show-cause order

14, 1993, the district

court (Wolf,

counsel, granted the motion

proceed in forma pauperis, and


__ _____ ________

on

for leave

ordered respondents to answer

on or before July 30, 1993.

With regard to

respondents' motion to

court found, "[i]n essence,


previously

rejected in

and made a new

dismiss, the district

the petitioner has reasserted claims

connection with his

original petition[]

argument concerning the jury instructions

at his

trial which does not constitute a new claim and, in any event, is
an abuse of the writ."

See Barefoot v. Estelle, 463 U.S. 880 (1983); Lozada v. Deeds,


___ ________
_______
______
_____

498 U.S. 430 (1991).

-4-

The sole issue on appeal is whether the district

properly

Mains'

dismissed as

claim

that

the

successive and

trial court's

as an

abuse of

instructions

court

the writ

on

malice

violated his right to due process.5

Mains's

court's

first Habeas

purportedly

lawfulness of the

trial

killing from

judge's instruction

raised

jury

here that there was

must first

homicide."

his

improper

stated

issue

trial

of

consideration.

that "'there

is no

a homicide committed',

is

asseverates

the defendant

that the

unlawfulness beyond

sufficient evidence

lawfulness (i.e. that the


____

hand,

the jury's

the

the

committed the

Commonwealth has

raises the

alleged victim died with a

that Mains testified to

having been shot,

The

and that the

a reasonable

which

the

question

See Commonwealth v. Mains, 374 N.E.2d at 577-578.


___ ____________
_____

of proving

that there

stems from

withholding

determine whether

petition Mains

burden

petition

In

the

doubt, and

issue

of

gun in his

and that Mains

was "jammed in" and "couldn't run").

In

his second

petition Mains

argues that

the malice

instruction was unconstitutional because it shifted the burden of

proof

unless

that

to Petitioner

and caused

the jury

he controverted the evidence.

the

unlawful

presumption

or

to find

Mains guilty

In addition, Mains argues

implied

language,

further

____________________

In addition, petitioner further raised that (1)the prosecution

failed to

disclose exculpatory evidence;

effective

assistance

instructions

to

counsel;

the jury

element of the offense,


claims were

of

(2) he was

and (3)

removed the

the

issue of

from their consideration.

dismissed as successive; petitioner

that portion of the district court's decision.

-5-

denied the

trial

judge's

lawfulness, an
All

of these

does not appeal

prevented the

jury from

considering manslaughter.

defective instruction reads as follows:

"Malice

as

used

doesn't

necessarily

towards

the

intentional
without

legal

it is done

meaning

of

therefore,

imply

ill

will

killed.
of

Any

human

being
without

no

extenuating

is malicious.

That is to

with malice

within the

that
is

expression

justification,

with

circumstances,
say,

the

person
killing

excuse,

in

expression

murder,

and

and,

is

not

in

the

manslaughter.

The

word

"aforethought"

The averred

expression

malice

aforethought has

ordinary meaning.

That means

its

to

say,

"Thought of beforehand; forethought."


the killing was intentional,
the act followed the
without

time

reflection,

even though

thought immediately

for

the

If

deliberation

killing

or

was then

with

malice aforethought within the meaning of


that technical expression of the law, and
is therefore a murder.

killing

may

consequently

be

murder,

malicious
even

though

slayer didn't wish to cause it.


intentionally

and

justification,

excuse

uses upon

the body

the

If a man

without
or

and

legal

extenuation,

of another

person a

force, for example, a bullet from a


that is
to

used to do grievous

the other

gun,

bodily harm

person, or cause

death to

the other person, and so used will create


a

clear and

plain

likelihood that

other person

could

or would

result,

of the

whether

as

the act is then malicious within

the meaning
doer

die

the

or

of the law,
act was
not death

even though the

indifferent as
would

to

result, or

even if he

wished and

hoped that

would not result, for


malicious
statute

within

it still would

the

concerning

death

meaning

itself with

of

does not

necessarily mean

the

murder,

because the word "malice" as used in


law

be

the

or imply

-6-

hatred

or ill

will

killed,

but

includes

inflict

upon

without
palliation.

toward

another

justification
*

the

person

any intention

to

serious

injury

or

without

"Malice aforethought
that

have

murder

in

includes
motive,
any

used

the
every

in

connection

second

with

degree

I repeat

unjustifiable,

unlawful

and malice

deliberate

in the expression

can be

and

implied from

cruel

act

by

one

person towards another."

In

instruction

the instant case, even if the malice portion of the

is

deemed to

differ

from

the unlawfulness

issue

previously raised, said issue was accessible to Mains at the time

when the original

governing

provides

petition was filed.

habeas corpus

for

dismissal

proceedings,

of

Rule

9(b) of the

28 U.S.C.

"successive"

foll.

petitions,

rules

2254,

or

those

petitions which raise grounds that were available, but not relied

upon,

in a prior petition.6

the issue of whether

relieved

the

Because Mains had already presented

the trial court's instructions to

Commonwealth

of

its

burden

of

the jury

proving

each

individual

element of

the

murder offense

beyond a

reasonable

____________________

See
___

Sawyer v.
______

Whitley,
_______

Wilson, 477 U.S. 436,


______
States, 373 U.S. 1, 17
______

505 U.S.

333 (1992);

Kuhlmann
________

444 n.6 (1986), quoting Sanders


_______ _______
(1963).

See also Hudson v.


________ ______

F.2d 1058, 1063 n.10 (5th Cir. 1992).

-7-

v.

v. United
______

Whitley, 979
_______

doubt,7

respondents argue

that

the

district court

adequately

concluded that Mains' claim was precluded by Rule 9(b).8

Furthermore,

proof argument raised

presented by

was

assert

Mains

further

effects

of Rule

stating

that

that the

burden

of

by the malice instruction, as the argument

Mains relating to the

available to

Respondents

respondents

when he

allege

instruction on "lawfulness,"

filed

that

9(b)'s prohibition

said claim

his original

Mains strives

of successive

was unavailable

to

to

petition.

avert

the

petitions by

him prior

to the

Supreme Court's decision in Sandstrom, as "cause" for failure


_________

to

present his claims in the original petition.


____________________

In his

original petition,

instruction relieved

Mains

the Commonwealth

claimed that

the judge's

of its burden

of proving

beyond a reasonable doubt an "unlawful" killing with malice.

The

argument

the

in

Mains'

second

petition

is,

again,

Commonwealth obtained a conviction without proving

that

every element

of the offense beyond a reasonable doubt, but regarding the issue


of malice
v.

in the judge's instructions,

Montana, 442 U.S. 510


_______

Mains includes Sandstrom


_________

(1979), arguing that

because the jury

was told that some evidence of malice was sufficient to support a

conviction, the instruction relieved the Government of its burden


of proof.

Rule 9(b) of the rules governing habeas corpus proceedings, 28

U.S.C. foll.

2254 provides, in pertinent part, that "[a] second

or successive petition may

be dismissed if the judge

it fails to

different grounds for relief

prior
grounds

allege new or

determination was on the


are alleged,

petitioner
constituted

to

assert

the judge
those

an abuse of the

merits or, if
finds that
grounds

writ."

in

finds that

and the

new and different


the failure
a

"Grounds",

prior

of the

petition

for purposes of

this

rule, means

relief sought."

a
See
___

"sufficient legal

basis

for granting

the

Sanders v. United States, 373 U.S. at


_______
______________

16;

Collins v. Zant, 892 F.2d 1502, 1505 (11th Cir. 1990).


_______
____
to
must

In order

avoid the preclusive effect of Rule 9(b), a habeas petitioner


present a

argument
________

"new

(legal or

or different
factual)

already been raised and


to prevent

claim;
_____

in support

a new
of

a claim

decided on the merits is

dismissal of the

claim."

(emphasis in original).

-8-

See
___

or

different
that

has

not sufficient

Collins, id. at
_______ ___

1505

Respondents

failed

allege that

to

the

to show "cause"9 for his failure

extent that

Mains

to present the claim in

the original petition, and because the Sandstrom case was decided
_________

five months before the

this

court,10

the

Commonwealth of Massachusetts appealed to

district

court

properly

dismissed

the

petition as successive and as an abuse of the writ.

In his second petition,

is

warranted because his claim

Mains avers that habeas relief

under Sandstrom is
_________

a "new rule"

which meets the second exception presented in Teague v. Lane, 489


______
____

U.S.

288

(1989).

Sandstrom holding
_________

Winship,
_______

684

Respondents

stating

that the

advanced those principles enumerated

in In re
_____

397 U.S. 358 (1970),

(1975),

to

presumptions

counter

by

and Mullaney v.
________

created

in

Wilbur, 421 U.S.


______

jury

instructions.

Respondents

correctly

allege

descendant of Winship; it
_______

that

Sandstrom
_________

was

"lineal

simply held that an instruction

which

creates a presumption of fact violates due process if it relieves


____________________

The

abuse of the

writ defense was

raised by respondents

their motion to dismiss of

August 5, 1993.

memorandum,

respondents

presented

articulated

in McCleskey
_________

Andiarena
_________
On

v.

Zant,
____

v. United States, 967


_____________

August

9,

1993,

respondents' motion.

the
499

their supporting
"cause"

U.S. 467

F.2d 715, 718

petitioner

Because

In

filed

in

his

standard

(1991),

and

(1st Cir. 1992).


opposition

to

the district court determined that

the petitioner had not demonstrated "cause" sufficient to prevent


dismissal on the ground of
reach the issue

abuse of the writ, the court

of whether the

"prejudice" or that "a

did not

petitioner had demonstrated

any

fundamental miscarriage of justice" would

result if the court did not entertain his claim.

10
months

The Sandstrom
_________

decision was

before

filed

Mains

announced

his

Commonwealth of Massachusetts' appeal

brief

in June
responding

to this court in

1979, five
to

the

Mains v.

_____
Butterworth,
___________
Sandstrom
_________

to

supra.
_____

Therefore,

support

his

Mains

original

could

challenge

have
to

employed
the

jury

instructions during the federal appellate process.

-9-

the State of

its burden of

offense

charged beyond

Taylor,
______

____

U.S.
____

proving all of

the elements of

reasonable doubt."

See Gilmore
___ _______

113

2118

S.

Ct.

2112,

the

v.

(1993).11

Respondents conclude

that because Mains had

already argued that

the judge's instruction on lawfulness shifted the burden of proof

and relieved the Commonwealth

of its burden of proving

reasonable doubt12 each element

Sandstrom13 does
_________

not constitute

of the offense, the

a "new claim"

beyond a

addition of

for purposes

of

Teague v. Lane, 489 U.S. 288 (1989).14


______
____

Mains has

respondents'

persuaded that

failed to show cause or

abuse

of the

writ defense.15

in the instant

prejudice to oppose

The court

case Sandstrom constitutes


_________

is not

a new

____________________

11

See also Rose


________ ____

v. Clark, 478 U.S. 570, 580


_____

(1986) (Sandstrom
_________

was "a logical extension of the Court's holding in In re Winship,


_____________
397 U.S. 358 (1970),
necessary

that the prosecution must prove

to constitute

crime from

which

every fact

the defendant

is

charged beyond a reasonable doubt.").

12

See Sandstrom, 442 U.S. at 513.


___ _________

13

In

Sandstrom,
_________

instructions which

the

Supreme

created a

Court

Mains

present

submits

his

as additional

Sandstrom
_________

instruction in his first


raised
state

a challenge to
court.

burden

grounds
alleged

the lack of

jury

of malice

Id. at 524.
__

for his
error

failure

in the

habeas petition the fact that

to

malice

he "only

self-defense instruction" in

also lacks merit.

As respondents

this court's attention to the

of proof as independent

whether he was entitled


Mains v.
_____

claim of

This assertion

point out, Mains focused

that

"mandatory presumption"

violated a defendant's due process rights.

14

determined

and different from

issue of

the issue of

to an instruction on self-defense.

Butterworth, respondents' Exhibit


___________

I, p. 33,

See
___

n.19, and

Mains petition for rehearing, respondents' Exhibit E, p. 2.

15

Because petitioner's claim of error in the malice instruction

is not a new "ground" for Rule 9(b) purposes, the case should not
be remanded.

-10-

development in

sufficient

the law, or an external

cause

for

his

failure

factor16 affording Mains

to

present

the

claim.17

Indeed, Mains could have reasonably employed Sandstrom during the


_________

appeal

and subsequent

original petition.

in his first petition

motion

for rehearing

Furthermore, Mains already

that followed

made an argument

regarding the instruction, and invoked

re Winship, 397 U.S. 358, 90 S.


___________

his

In
__

Ct. 1068, 25 L.Ed.2d 368 (1970)

and Mullaney
________

v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L.Ed.2d


______

508 (1975), the precedents upon which Sandstrom is premised.


_________

In

this

regard

we

find that

petitioner's

regarding the malice instruction and burden

argument

shifting presumption

is not advanced and fails to constitute "new ground" for purposes

of

Rule 9(b).

reasonably

Furthermore, because

available to Mains

denial of his first

"new

rule"

the Sandstrom
_________

at the time of

claim was

his appeal of the

2254 petition, the same does not constitute

qualifying

it

under

the

second

Teague
______

exception.18
____________________

16

See Reed v. Ross, 468 U.S.


___ ____
____

2d 1 (1984)

1, 16, 104 S. Ct. 2901, 82

("where a constitutional claim is so

L.Ed.

novel that its

legal basis is not


has cause

reasonably available to counsel, a

for his failure to raise

defendant

the claim in accordance with

applicable ... procedures.")

17

To

the

extent

that

the

available to the petitioner,


Boyer
_____

v. United States, 55
_____________

failed

to

additional

claim

was

reasonably

no just cause has been shown.


F.3d 296 (7th

offer sufficient
"reasonably

Sandstrom
_________

Cir. 1995) (plaintiff

justification

available"

See
___

for

not raising

an

claim

in

his

original

when a

new rule

deserved

petition).

18

In

Teague the
______

retroactive effect.

court determined
A

new

rule was

defined as

a rule

which

mandates a result "not dictated by precedent existing at the time


the defendant's conviction

became final".

-11-

See Teague v.
___ ______

Lane,
____

We need go no

sufficient "cause"

or "prejudice"

presented in this

habeas

petition

further.

Mains has failed

necessary to reach

successive petition.19

remains

to establish

casualty

the issue

Consequently,

of

its

own

Mains'

procedural

deficiency.

II. CONCLUSION
II. CONCLUSION
______________

For the

court's judgment.

Affirmed.
________

above-stated reasons,

we affirm the

district

____________________

id. at 310.
___

19
and

See McCleskey, 111 S.


___ _________

Ct. at 1470 ("application of the cause

prejudice standard in the abuse of the writ context does not

mitigate the force of Teague v. Lane").


______
____

-12-