USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1912
ROBERT MAINS,
Petitioner - Appellant,
v.
TIMOTHY HALL AND LARRY E. DUBOIS,
Respondents - Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Stahl, Circuit Judge,
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and Dom nguez,* District Judge.
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Joan C. Stanley, by Appointment of the Court, for appellant.
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Gregory I. Massing, Assistant Attorney General, Criminal
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Bureau, with whom Scott Harshbarger, Attorney General, and Nancy
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W. Geary, Assistant Attorney General, were on brief for
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appellees.
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January 29, 1996
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* Of the District of Puerto Rico, sitting by designation.
DOMINGUEZ, District Judge. Petitioner-appellant,
DOMINGUEZ, District Judge.
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Robert Mains ("Mains") challenges the district court's dismissal
of the petition of the writ of habeas corpus and requests the
same to be vacated. Mains further requests the remand of this
case to the district court for a determination as to whether his
claim is procedurally barred as successive and as an abuse of the
writ under Sandstrom v. Montana, 442 U.S. 510 (1979), whether it
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is new law with respect to Mains's claim, and if so, whether the
retroactive application of said law is barred by Teague v. Lane,
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489 U.S. 288 (1989).
We hold that the judgment of the district court is
warranted. Consequently, we affirm.
I. BACKGROUND
I. BACKGROUND
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On January 17, 1994, a Suffolk County Grand Jury
indicted Mains in the Superior Court of Massachusetts (Sullivan,
J.), for the crimes of Murder in the First Degree, in violation
of Mass. Gen. L. ch. 265, 1, and for unlawfully carrying a
firearm, in violation of Mass. Gen. L. ch. 269, 10. Mains was
convicted on both charges and was sentenced to life 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,
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577 (1978).
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1 Petitioner filed two motions for a new trial denied by the
court on April 22, 1977. Mains then appealed the conviction and
the denial of both motions for a new trial; the Supreme Judicial
Court affirmed the judgment of the Superior Court.
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On May 31, 1978, Mains filed his first petition for a
writ of habeas corpus pursuant to 28 U.S.C. 2254, claiming
inter alia that the prosecutor failed to disclose exculpatory
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evidence about a key witness, ineffective assistance of trial
counsel, and that the trial judge's instructions to the jury on
the issue of the "lawfulness" of the killing violated his right
to due process, by effectively directing the jury to find that
said element of the crime was proven. On August 13, 1979, the
district court (Freedman, J.) allowed the petition, granted the
writ, and ordered a new trial. However, the Commonwealth of
Massachusetts appealed, and this court reversed the district
court's decision and dismissed the petition. See Mains v.
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Butterworth, 619 F.2d 83, cert. denied, 449 U.S. 864 (1980).
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Mains then filed a motion for rehearing wherein he raised, again,
the issue of the trial court's instructions. The motion was
denied on March 27, 1980. The decision stated that (the court)
"has given this case particularly careful and close attention and
there is nothing in the petition that was not previously
considered."
On February 11, 1983, Mains filed a motion for a new
trial pro se, before the state court, claiming that the trial
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court's instructions to the jury relieved the Commonwealth of its
burden of proof on the element of malice in violation of
Sandstrom v. Montana, 442 U.S. 510 (1979). This motion was
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denied. Mains' subsequent application for leave to appeal
pursuant to Mass. Gen. L. ch. 278, 33E was also denied by the
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Single Justice of the Supreme Judicial Court (Wilkins, J.) who
c o n c l u d e d t h a t ,
[a]rguably, [the petitioner's claim]
could be interpreted as either an
impermissible presumption, raising a new
issue under Sandstrom v. Montana, supra,
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or a change in the burden of proof,
raising an old issue under In re Winship,
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supra, and Mullaney v. Wilbur, supra . .
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. 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 6, 1992, Mains filed a second petition for
writ of habeas corpus pursuant to 28 U.S.C. 2254, a motion for
appointment of counsel, and a motion to proceed in forma
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pauperis.2 Respondents filed a motion to dismiss on the grounds
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that the petition was successive and an abuse of the writ. On
May 31, 1994, the district court (Wolf, J.) granted respondents'
motion and dismissed the petition.3 In addition, a certificate
of probable cause to appeal was granted on August 15, 1994,
pursuant to Fed. R. App. P. 22(b),4 and Counsel was appointed to
represent Mains on November 3, 1994.
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2 Petitioner also filed a motion for a show-cause order on
December 4, 1992. On June 14, 1993, the district court (Wolf,
J.) denied appointment of counsel, granted the motion for leave
to proceed in forma pauperis, and ordered respondents to answer
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on or before July 30, 1993.
3 With regard to respondents' motion to dismiss, the district
court found, "[i]n essence, the petitioner has reasserted claims
previously rejected in connection with his original petition[]
and made a new 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."
4 See Barefoot v. Estelle, 463 U.S. 880 (1983); Lozada v. Deeds,
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498 U.S. 430 (1991).
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The sole issue on appeal is whether the district court
properly dismissed as successive and as an abuse of the writ
Mains' claim that the trial court's instructions on malice
violated his right to due process.5
Mains's first Habeas petition stems from the trial
court's purportedly improper withholding the issue of the
lawfulness of the killing from the jury's consideration. The
trial judge's instruction stated that "'there is no question
raised here that there was a homicide committed', and that the
jury must first determine whether the defendant committed the
homicide." See Commonwealth v. Mains, 374 N.E.2d at 577-578. In
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his petition Mains asseverates that the Commonwealth has the
burden of proving unlawfulness beyond a reasonable doubt, and
that there is sufficient evidence which raises the issue of
lawfulness (i.e. that the alleged victim died with a gun in his
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hand, that Mains testified to having been shot, 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 to Petitioner and caused the jury to find Mains guilty
unless he controverted the evidence. In addition, Mains argues
that the unlawful presumption or implied language, further
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5 In addition, petitioner further raised that (1)the prosecution
failed to disclose exculpatory evidence; (2) he was denied the
effective assistance of counsel; and (3) the trial judge's
instructions to the jury removed the issue of lawfulness, an
element of the offense, from their consideration. All of these
claims were dismissed as successive; petitioner does not appeal
that portion of the district court's decision.
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prevented the jury from considering manslaughter. The averred
defective instruction reads as follows:
"Malice as used in the expression
doesn't necessarily imply ill will
towards the person killed. Any
intentional killing of a human being
without legal justification, without
excuse, with no extenuating
circumstances, is malicious. That is to
say, it is done with malice within the
meaning of that expression and,
therefore, is murder, and is not
manslaughter.
The word "aforethought" in the
expression malice aforethought has its
ordinary meaning. That means to say,
"Thought of beforehand; forethought." If
the killing was intentional, even though
the act followed the thought immediately
without time for deliberation or
reflection, the killing was then with
malice aforethought within the meaning of
that technical expression of the law, and
is therefore a murder.
A killing may be malicious and
consequently murder, even though the
slayer didn't wish to cause it. If a man
intentionally and without legal
justification, excuse or extenuation,
uses upon the body of another person a
force, for example, a bullet from a gun,
that is used to do grievous bodily harm
to the other person, or cause death to
the other person, and so used will create
a clear and plain likelihood that the
other person could or would die as a
result, the act is then malicious within
the meaning of the law, even though the
doer of the act was indifferent as to
whether or not death would result, or
even if he wished and hoped that death
would not result, for it still would be
malicious within the meaning of the
statute concerning itself with murder,
because the word "malice" as used in the
law does not necessarily mean or imply
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hatred or ill will toward the person
killed, but includes any intention to
inflict upon another serious injury
without justification or without
palliation. * * *
"Malice aforethought in the expression
that I have used in connection with
murder in the second degree I repeat
includes every unjustifiable, unlawful
motive, and malice can be implied from
any deliberate and cruel act by one
person towards another."
In the instant case, even if the malice portion of the
instruction is deemed to differ from the unlawfulness issue
previously raised, said issue was accessible to Mains at the time
when the original petition was filed. Rule 9(b) of the rules
governing habeas corpus proceedings, 28 U.S.C. foll. 2254,
provides for dismissal of "successive" petitions, or those
petitions which raise grounds that were available, but not relied
upon, in a prior petition.6 Because Mains had already presented
the issue of whether the trial court's instructions to the jury
relieved the Commonwealth of its burden of proving each
individual element of the murder offense beyond a reasonable
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6 See Sawyer v. Whitley, 505 U.S. 333 (1992); Kuhlmann v.
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Wilson, 477 U.S. 436, 444 n.6 (1986), quoting Sanders v. United
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States, 373 U.S. 1, 17 (1963). See also Hudson v. Whitley, 979
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F.2d 1058, 1063 n.10 (5th Cir. 1992).
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doubt,7 respondents argue that the district court adequately
concluded that Mains' claim was precluded by Rule 9(b).8
Furthermore, respondents assert that the burden of
proof argument raised by the malice instruction, as the argument
presented by Mains relating to the instruction on "lawfulness,"
was available to Mains when he filed his original petition.
Respondents further allege that Mains strives to avert the
effects of Rule 9(b)'s prohibition of successive petitions by
stating that said claim was unavailable to him prior to the
Supreme Court's decision in Sandstrom, as "cause" for failure to
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present his claims in the original petition.
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7 In his original petition, Mains claimed that the judge's
instruction relieved the Commonwealth of its burden of proving
beyond a reasonable doubt an "unlawful" killing with malice. The
argument in Mains' second petition is, again, that the
Commonwealth obtained a conviction without proving every element
of the offense beyond a reasonable doubt, but regarding the issue
of malice in the judge's instructions, Mains includes Sandstrom
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v. Montana, 442 U.S. 510 (1979), arguing that because the jury
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was told that some evidence of malice was sufficient to support a
conviction, the instruction relieved the Government of its burden
of proof.
8 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 finds that
it fails to allege new or different grounds for relief and the
prior determination was on the merits or, if new and different
grounds are alleged, the judge finds that the failure of the
petitioner to assert those grounds in a prior petition
constituted an abuse of the writ." "Grounds", for purposes of
this rule, means a "sufficient legal basis for granting the
relief sought." See Sanders v. United States, 373 U.S. at 16;
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Collins v. Zant, 892 F.2d 1502, 1505 (11th Cir. 1990). In order
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to avoid the preclusive effect of Rule 9(b), a habeas petitioner
must present a "new or different claim; a new or different
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argument (legal or factual) in support of a claim that has
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already been raised and decided on the merits is not sufficient
to prevent dismissal of the claim." See Collins, id. at 1505
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(emphasis in original).
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Respondents allege that to the extent that Mains
failed to show "cause"9 for his failure to present the claim in
the original petition, and because the Sandstrom case was decided
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five months before the Commonwealth of Massachusetts appealed to
this court,10 the district court properly dismissed the
petition as successive and as an abuse of the writ.
In his second petition, Mains avers that habeas relief
is warranted because his claim under Sandstrom is a "new rule"
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which meets the second exception presented in Teague v. Lane, 489
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U.S. 288 (1989). Respondents counter by stating that the
Sandstrom holding advanced those principles enumerated in In re
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Winship, 397 U.S. 358 (1970), and Mullaney v. Wilbur, 421 U.S.
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684 (1975), to presumptions created in jury instructions.
Respondents correctly allege that Sandstrom was a "lineal
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descendant of Winship; it simply held that an instruction which
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creates a presumption of fact violates due process if it relieves
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9 The abuse of the writ defense was raised by respondents in
their motion to dismiss of August 5, 1993. In their supporting
memorandum, respondents presented the "cause" standard
articulated in McCleskey v. Zant, 499 U.S. 467 (1991), and
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Andiarena v. United States, 967 F.2d 715, 718 (1st Cir. 1992).
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On August 9, 1993, petitioner filed his opposition to
respondents' motion. Because the district court determined that
the petitioner had not demonstrated "cause" sufficient to prevent
dismissal on the ground of abuse of the writ, the court did not
reach the issue of whether the petitioner had demonstrated any
"prejudice" or that "a fundamental miscarriage of justice" would
result if the court did not entertain his claim.
10 The Sandstrom decision was announced in June 1979, five
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months before Mains filed his brief responding to the
Commonwealth of Massachusetts' appeal to this court in Mains v.
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Butterworth, supra. Therefore, Mains could have employed
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Sandstrom to support his original challenge to the jury
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instructions during the federal appellate process.
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the State of its burden of proving all of the elements of the
offense charged beyond a reasonable doubt." See Gilmore v.
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Taylor, U.S. , 113 S. Ct. 2112, 2118 (1993).11
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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 beyond a
reasonable doubt12 each element of the offense, the addition of
Sandstrom13 does not constitute a "new claim" for purposes of
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Teague v. Lane, 489 U.S. 288 (1989).14
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Mains has failed to show cause or prejudice to oppose
respondents' abuse of the writ defense.15 The court is not
persuaded that in the instant case Sandstrom constitutes a new
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11 See also Rose v. Clark, 478 U.S. 570, 580 (1986) (Sandstrom
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was "a logical extension of the Court's holding in In re Winship,
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397 U.S. 358 (1970), that the prosecution must prove every fact
necessary to constitute a crime from which the defendant is
charged beyond a reasonable doubt.").
12 See Sandstrom, 442 U.S. at 513.
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13 In Sandstrom, the Supreme Court determined that jury
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instructions which created a "mandatory presumption" of malice
violated a defendant's due process rights. Id. at 524.
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14 Mains submits as additional grounds for his failure to
present his Sandstrom claim of alleged error in the malice
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instruction in his first habeas petition the fact that he "only
raised a challenge to the lack of self-defense instruction" in
state court. This assertion also lacks merit. As respondents
point out, Mains focused this court's attention to the issue of
burden of proof as independent and different from the issue of
whether he was entitled to an instruction on self-defense. See
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Mains v. Butterworth, respondents' Exhibit I, p. 33, n.19, and
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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.
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development in the law, or an external factor16 affording Mains
sufficient cause for his failure to present the claim.17
Indeed, Mains could have reasonably employed Sandstrom during the
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appeal and subsequent motion for rehearing that followed his
original petition. Furthermore, Mains already made an argument
in his first petition regarding the instruction, and invoked In
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re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970)
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and Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L.Ed.2d
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508 (1975), the precedents upon which Sandstrom is premised.
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In this regard we find that petitioner's argument
regarding the malice instruction and burden shifting presumption
is not advanced and fails to constitute "new ground" for purposes
of Rule 9(b). Furthermore, because the Sandstrom claim was
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reasonably available to Mains at the time of his appeal of the
denial of his first 2254 petition, the same does not constitute
a "new rule" qualifying it under the second Teague
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exception.18
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16 See Reed v. Ross, 468 U.S. 1, 16, 104 S. Ct. 2901, 82 L.Ed.
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2d 1 (1984) ("where a constitutional claim is so novel that its
legal basis is not reasonably available to counsel, a defendant
has cause for his failure to raise the claim in accordance with
applicable ... procedures.")
17 To the extent that the Sandstrom claim was reasonably
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available to the petitioner, no just cause has been shown. See
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Boyer v. United States, 55 F.3d 296 (7th Cir. 1995) (plaintiff
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failed to offer sufficient justification for not raising an
additional "reasonably available" claim in his original
petition).
18 In Teague the court determined when a new rule deserved
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retroactive effect. 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". See Teague v. Lane,
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We need go no further. Mains has failed to establish
sufficient "cause" or "prejudice" necessary to reach the issue
presented in this successive petition.19 Consequently, Mains'
habeas petition remains a casualty of its own procedural
deficiency.
II. CONCLUSION
II. CONCLUSION
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For the above-stated reasons, we affirm the district
court's judgment.
Affirmed.
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id. at 310.
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19 See McCleskey, 111 S. Ct. at 1470 ("application of the cause
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and prejudice standard in the abuse of the writ context does not
mitigate the force of Teague v. Lane").
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