USCA1 Opinion
May 5, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 94-1270
DUON G. TOWNSEND,
Plaintiff, Appellant,
v.
COMMISSIONER, N.H. DEPARTMENT OF CORRECTIONS, ET AL.,
Respondents, Appellees.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
___________________
___________________
Before
Torruella, Selya and Stahl,
Circuit Judges.
______________
___________________
Duon G. Townsend, pro se, on Application for Certificate of
_________________
Probable Cause.
__________________
__________________
Per Curiam. Petitioner requests a certificate of
___________
probable cause ("CPC") to appeal from the district court's
dismissal without prejudice of his habeas petition for
failure to exhaust state remedies. We grant the CPC and
dismiss the petition with prejudice on the grounds that
petitioner has procedurally defaulted on his federal habeas
claims in state court and that there is not sufficient cause
to excuse the default.
Petitioner's failure to appeal the denial of his
state habeas petition to the New Hampshire Supreme Court
constitutes a procedural default rather than a failure to
exhaust state remedies. The time for appealing the denial
has expired. See New Hampshire Supreme Court Rule 7.
___
Therefore, petitioner is procedurally barred from presenting
his claims to the New Hampshire Supreme Court in order to
meet the exhaustion requirement. See Coleman v. Thompson,
___ _______ ________
111 S. Ct. 2546, 2557 n.1 (1991).
To obtain federal habeas review of procedurally
defaulted claims, petitioner must demonstrate "cause for the
default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental miscarriage
of justice." Coleman v. Thompson, 111 S. Ct. at 2565. The
_______ ________
cause requirement is satisfied only by a showing that "some
objective factor external to the defense" impeded compliance
-2-
with the state procedural rule. Murray v. Carrier, 477 U.S.
______ _______
478, 488 (1986). This standard applies to pro se
___ __
petitioners. See, e.g., Caswell v. Ryan, 953 F.2d 853, 862
___ ____ _______ ____
(3d Cir.), cert. denied, __ U.S. __, 112 S. Ct. 2283 (1992).
____________
It is clear that petitioner cannot meet the cause
requirement. The record does not contain even a hint of an
"objective factor" that caused the failure to appeal. Nor
can petitioner claim ignorance of the proper procedure for
filing an appeal. The record demonstrates that he was aware
of his right to appeal. In fact, petitioner filed a notice
of appeal with the superior court. The superior court
returned the notice to him with a note instructing him to
file the appeal with the New Hampshire Supreme Court. There
is no "cause" for petitioner's failure to do so. It is not
necessary to address the prejudice prong of the cause-and-
prejudice test since the cause requirement is clearly not
satisfied. See Puleio v. Vose, 830 F.2d 1197, 1202 (1st Cir.
___ ______ ____
1987), cert. denied. 485 U.S. 990 (1988).
____________
"[A] federal habeas court may consider a
procedurally defaulted claim absent a showing of cause for
the default only where the petitioner demonstrates that his
is an 'extraordinary case, where a constitutional violation
has probably resulted in the conviction of one who is
actually innocent. . . .'" Hall v. DiPaolo, 986 F.2d 7, 10
____ _______
(1st Cir. 1993) (quoting Murray v. Carrier, 477 U.S. at 496).
______ _______
-3-
From the record, it is clear that this is not such an
"extraordinary case." Petitioner does not claim that the
alleged constitutional violation has resulted in his
conviction despite his innocence, only that it has deprived
him of early release.
Accordingly, petitioner's habeas petition is
dismissed with prejudice.
-4-
