Professional Documents
Culture Documents
No. 94-1912
ROBERT MAINS,
Petitioner - Appellant,
v.
Respondents - Appellees.
____________________
____________________
Before
_____________________
Attorney
General, Criminal
Assistant
Attorney
General,
were
on
brief
for
appellees.
____________________
____________________
DOMINGUEZ,
DOMINGUEZ,
District Judge.
District Judge.
_______________
Petitioner-appellant,
of
the petition of
same
the writ of
to be vacated.
habeas corpus
writ
is new
retroactive
We
warranted.
hold that
the judgment
Consequently, we affirm.
I. BACKGROUND
I. BACKGROUND
_____________
of the
district court
is
On
January
of Mass.
17,
1994,
a Suffolk
Grand
Jury
Gen. L. ch.
County
265,
1, and for
Degree, in violation
unlawfully carrying
10.
Mains was
imprisonment
on file.
of Massachusetts.1
See
___
N.E.2d 576,
577 (1978).
____________________
Petitioner
for a new
trial denied by
the
conviction and
-2-
writ
inter
_____
of habeas
alia that
____
evidence
about a
corpus pursuant
the prosecutor
key witness,
to 28
U.S.C.
failed to
for a
2254, claiming
disclose exculpatory
ineffective assistance
of trial
jury on
his right
to
said element
district court
writ,
proven.
a new
Massachusetts appealed,
court's decision
and
trial.
and
619 F.2d
83, cert.
_____
the
However, the
this court
dismissed
to find that
On August
and ordered
Butterworth,
___________
Commonwealth of
reversed
petition.
denied, 449
______
the
See
___
U.S.
district
Mains
_____
v.
864 (1980).
the
issue of
denied on March
the trial
court's instructions.
27, 1980.
The
motion was
"has given this case particularly careful and close attention and
there
is
nothing
considered."
in
the
petition
that
was
not
previously
On
before the
filed a motion
for a new
that the
trial
burden
of proof
Sandstrom
_________
v.
denied.
Mains'
on
the
element
Montana, 442
_______
subsequent
of
U.S. 510
malice
in
violation
(1979).
This
application for
leave
L. ch. 278,
-3-
33E was
of
motion was
to
appeal
Single Justice of
[a]rguably,
could
be
[the
petitioner's
interpreted
as
impermissible presumption,
issue under Sandstrom v.
_________
or
change
in
the
who
claim]
either
an
raising a new
Montana, supra,
_______ _____
burden
of proof,
On April
writ of
6, 1992,
Mains filed
a second petition
appointment
of
counsel,
and
motion
to
for
proceed
in
__
forma
_____
pauperis.2
________
that the
motion and
of
cause to
writ.
On
probable
an abuse of the
appeal was
In
addition, a certificate
granted
on August
15, 1994,
____________________
Petitioner
also filed
December 4, 1992.
On June
a motion
for a
show-cause order
court (Wolf,
on
for leave
With regard to
respondents' motion to
rejected in
original petition[]
at his
trial which does not constitute a new claim and, in any event, is
an abuse of the writ."
-4-
properly
Mains'
dismissed as
claim
that
the
successive and
trial court's
as an
abuse of
instructions
court
the writ
on
malice
Mains's
court's
first Habeas
purportedly
lawfulness of the
trial
killing from
judge's instruction
raised
jury
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
hand,
the jury's
the
the
committed the
Commonwealth has
raises the
The
a reasonable
which
the
question
of proving
that there
stems from
withholding
determine whether
petition Mains
burden
petition
In
the
doubt, and
issue
of
gun in his
In
his second
petition Mains
argues that
the malice
proof
unless
that
to Petitioner
and caused
the jury
the
unlawful
presumption
or
to find
Mains guilty
implied
language,
further
____________________
failed to
effective
assistance
instructions
to
counsel;
the jury
of
(2) he was
and (3)
removed the
the
issue of
-5-
denied the
trial
judge's
lawfulness, an
All
of these
prevented the
jury from
considering manslaughter.
"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,
time
reflection,
even though
thought immediately
for
the
If
deliberation
killing
or
was then
with
killing
may
consequently
be
murder,
malicious
even
though
and
justification,
excuse
uses upon
the body
the
If a man
without
or
and
legal
extenuation,
of another
person a
used to do grievous
the other
gun,
bodily harm
person, or cause
death to
clear and
plain
likelihood that
other person
could
or would
result,
of the
whether
as
the meaning
doer
die
the
or
of the law,
act was
not death
indifferent as
would
to
result, or
even if he
wished and
hoped that
within
it still would
the
concerning
death
meaning
itself with
of
does not
necessarily mean
the
murder,
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
In
instruction
is
deemed to
differ
from
the unlawfulness
issue
governing
provides
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
relieved
the
Commonwealth
of
its
burden
of
the jury
proving
each
individual
element of
the
murder offense
beyond a
reasonable
____________________
See
___
Sawyer v.
______
Whitley,
_______
505 U.S.
333 (1992);
Kuhlmann
________
-7-
v.
v. United
______
Whitley, 979
_______
doubt,7
respondents argue
that
the
district court
adequately
Furthermore,
presented by
was
assert
Mains
further
effects
of Rule
stating
that
that the
burden
of
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
to
In his
original petition,
instruction relieved
Mains
the Commonwealth
claimed that
the judge's
of its burden
of proving
The
argument
the
in
Mains'
second
petition
is,
again,
that
every element
U.S.C. foll.
it fails to
prior
grounds
allege new or
petitioner
constituted
to
assert
the judge
those
an abuse of the
merits or, if
finds that
grounds
writ."
in
finds that
and the
"Grounds",
prior
of the
petition
for purposes of
this
rule, means
relief sought."
a
See
___
"sufficient legal
basis
for granting
the
16;
In order
argument
________
"new
(legal or
or different
factual)
claim;
_____
in support
a new
of
a claim
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
extent that
Mains
the original petition, and because the Sandstrom case was decided
_________
this
court,10
the
district
court
properly
dismissed
the
is
under Sandstrom is
_________
a "new rule"
U.S.
288
(1989).
Sandstrom holding
_________
Winship,
_______
684
Respondents
stating
that the
in In re
_____
(1975),
to
presumptions
counter
by
and Mullaney v.
________
created
in
jury
instructions.
Respondents
correctly
allege
descendant of Winship; it
_______
that
Sandstrom
_________
was
"lineal
which
The
abuse of the
raised by respondents
August 5, 1993.
memorandum,
respondents
presented
articulated
in McCleskey
_________
Andiarena
_________
On
v.
Zant,
____
August
9,
1993,
respondents' motion.
the
499
their supporting
"cause"
U.S. 467
petitioner
Because
In
filed
in
his
standard
(1991),
and
to
of whether the
did not
any
10
months
The Sandstrom
_________
decision was
before
filed
Mains
announced
his
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
-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
Sandstrom13 does
_________
not constitute
a "new claim"
beyond a
addition of
for purposes
of
Mains has
respondents'
persuaded that
abuse
of the
writ defense.15
in the instant
prejudice to oppose
The court
is not
a new
____________________
11
(1986) (Sandstrom
_________
to constitute
crime from
which
every fact
the defendant
is
12
13
In
Sandstrom,
_________
instructions which
the
Supreme
created a
Court
Mains
present
submits
his
as additional
Sandstrom
_________
a challenge to
court.
burden
grounds
alleged
the lack of
jury
of malice
Id. at 524.
__
for his
error
failure
in the
to
malice
he "only
self-defense instruction" in
As respondents
of proof as independent
claim of
This assertion
that
"mandatory presumption"
14
determined
issue of
the issue of
to an instruction on self-defense.
I, p. 33,
See
___
n.19, and
15
is not a new "ground" for Rule 9(b) purposes, the case should not
be remanded.
-10-
development in
sufficient
cause
for
his
failure
to
present
the
claim.17
appeal
and subsequent
original petition.
motion
for rehearing
that followed
made an argument
his
In
__
and Mullaney
________
In
this
regard
we
find that
petitioner's
argument
shifting presumption
of
Rule 9(b).
reasonably
Furthermore, because
available to Mains
"new
rule"
the Sandstrom
_________
at the time of
claim was
qualifying
it
under
the
second
Teague
______
exception.18
____________________
16
2d 1 (1984)
L.Ed.
defendant
17
To
the
extent
that
the
v. United States, 55
_____________
failed
to
additional
claim
was
reasonably
offer sufficient
"reasonably
Sandstrom
_________
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
became final".
-11-
See Teague v.
___ ______
Lane,
____
We need go no
sufficient "cause"
or "prejudice"
presented in this
habeas
petition
further.
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
-12-