November 15, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No. 93-1739 

                                  JOSE L. RODRIGUEZ,

                                     Petitioner,

                                          v.

                                     PETER PEPE,

                                     Respondent.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Robert E. Keeton, U.S. District Judge]
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                                        Before

                        Selya, Cyr and Boudin, Circuit Judges.
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            Jose L. Rodriguez, pro se.
            _________________
            Scott  Harshbarger, Attorney  General,  and  William J.  Duensing,
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        Assistant Attorney General, for respondent.

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                 Per Curiam.  After  a searching and extensive  review of
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            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
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            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.
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            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.,
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            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
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            Deters v. Collins, 985  F.2d 789, 796 (5th Cir.  1993) (delay
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            does   not  excuse  failure   to  exhaust   where  petitioner

            contributes to delay).

                 Affirmed.
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