Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-1887

DONALD S. GRAHAM,

Petitioner, Appellant,

v.

MICHAEL T. MALONEY,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

 Boudin, Chief Judge,

Lipez and Howard, Circuit Judges.

Donald S. Graham, Memorandum in Support of a Certificate of

Appealability pro se.

February 8, 2005
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Per Curiam. Donald S. Graham, who was convicted after a

jury trial in Massachusetts state court of murder in the first

degree on the theory of extreme atrocity and cruelty, seeks a

certificate of appealability (COA) to appeal from the district

court's denial of his petition pursuant to 28 U.S.C. § 2254. He

seeks a COA to pursue the four claims raised in his habeas

petition: 

1) ineffective assistance of counsel for

failure to move to dismiss his indictment on

the ground that his due process rights were

violated by the presentation of false evidence

to the grand jury; 

2) ineffective assistance of counsel for

failure to preserve an objection to the

exclusion of evidence of the victim's criminal

record; 

3) due process violation by the district

court's providing the jury with a taperecording of supplemental instructions,

without including a recording of the entire

instructions; and 

4) due process violation by the district

court's admission into evidence of four crossbows seized from defendant's home which were

unrelated to the crime charged. 

The district court denied the first two claims on the

merits and the other two on procedural grounds. As to the claims

which the district court denied on the merits, "petitioner must

demonstrate that reasonable jurists would find the district court's

assessment of the constitutional claim debatable or wrong." Slack

v. McDaniel, 529 US. 473, 484 (2000). As to the claims which the
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district court denied on procedural grounds, without reaching the

merits of the underlying constitutional claims,

a COA should issue when the prisoner shows, at

least, that jurists of reason would find it

debatable whether the petition states a valid

claim of the denial of a constitutional right

and that jurists of reason would find it

debatable whether the district court was wrong

in its procedural ruling.

Id. Because petitioner has not satisfied the applicable COA

standard as to any of the four claims, we deny his request for a

COA.

I. Ineffective Assistance Claims

Because this was a capital case, the Massachusetts

Supreme Judicial Court applied the "miscarriage of justice

standard" set forth in G.L.c. 278 § 33E to Graham's ineffective

assistance claims. See Commonwealth v. Graham, 431 Mass. 282, 289

(2000). The SJC has held that the "miscarriage of justice"

standard under § 33E is more favorable to defendant than the

federal standard set forth in Strickland v. Washington, 466 U.S.

668, 688 (1984). See Commonwealth v. Wright, 411 Mass. 678, 682

(1992). Therefore, the SJC's determinations that Graham had not

met the "miscarriage of justice" standard included within them

determinations that he had not met the Strickland standard.

See McCambridge v. Hall, 303 F.3d 24, 35 (1st Cir. 2002).

Graham's first ineffective assistance claim was based on

his attorney's failure to file a motion to dismiss the indictment
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on the ground that perjured testimony was presented to the grand

jury. He relied upon allegations that there were inconsistencies

between statements by a single witness which were presented and

those not presented to the grand jury. The SJC rejected the claim

on the reasoning that a motion to dismiss the indictment on such

basis would not have succeeded. Specifically, it found that "there

is nothing from which we could properly conclude that the

statements were false and deceptive and knowingly introduced to the

grand jury." Graham, 431 Mass. at 290. Graham's essential argument

in support of his COA request as to this claim is that the SJC's

finding in that regard was contrary to the evidence. The state

court's factual finding is subject to considerable deference,

however. On this record, reasonable jurists could not disagree

with the district court's determination that Graham did not meet

his burden of "rebutting the presumption of correctness by clear

and convincing evidence." 28 U.S.C. § 2254.

In his second ineffective assistance claim, Graham faults

his trial attorney for failing to lay a foundation for admission of

the evidence of the victim's criminal record, as he was invited to

do by the trial judge. The SJC ruled that there was no ineffective

assistance because the motion would not have succeeded, and the

district court found that the SJC's reasoning and conclusion was

not contrary to nor an unreasonable application of Strickland. 
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In support of his COA request as to this claim,

petitioner appears to contend that a motion to admit the evidence

would have succeeded if his attorney had argued that such evidence

was admissible to impeach allegedly perjured testimony presented to

the grand jury (a statement by the victim's passenger that the

victim had no criminal record of violence). In support of that

argument, Graham relies upon United States v. Augurs, 427 U.S. 97

(1976) and Mooney v. Holohan, 294 U.S. 103 (1935).

Reasonable jurists could not find debatable the district

court's conclusion that the SJC did not unreasonably apply

Strickland in light of the argument presented in this COA petition.

As discussed above, reasonable jurists could not find that Graham

met his burden of demonstrating by clear and convincing evidence

that the grand jury testimony was knowingly false and deceptive.

Moreover, petitioner has not claimed that the allegedly perjured

testimony presented to the grand jury was offered at trial.

Therefore, it could not have affected the jury's verdict, or

resulted in a due process violation under Agurs. 

II. Claims Dismissed on Procedural Grounds

The district court ruled that Graham's claim regarding

the tape-recorded jury instructions was procedurally defaulted and

that he had failed to satisfy the cause and prejudice or

"fundamental miscarriage of justice" standard. In support of his

request for a COA, Graham contests the finding by the SJC that the
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objection which counsel made to the tape-recorded jury instructions

"was not adequate to alert [the trial judge] to the requirement

that the tape recordings of jury instructions contain the whole

instructions." Graham, 431 Mass. at 287 n.10. Based upon our

review of the portion of the trial transcript on which Graham

relies, reasonable jurists could not find it debatable whether

counsel failed to raise in a contemporary objection the issue he

raised in his habeas petition. Nor could reasonable jurists debate

the district court's determination that the cause and prejudice and

miscarriage of justice standards were not satisfied and that,

therefore, Graham had failed to overcome the bar to habeas review

that was created by his procedural default.

Graham's final habeas claim (of a due process violation

resulting from the admission of cross bows seized from his

apartment but unrelated to the charged crime) was denied by the

district court on the ground that it was an unexhausted claim. "A

claim of non-exhaustion presents a purely legal question,

engendering de novo review." RaShad, 300 F.3d at 41. Petitioner

bears the burden of proving that he exhausted the remedies

available to him in state court by presenting this federal

constitutional claim in his appeal to the SJC. See Barresi v.

Maloney, 296 F.3d 48, 51 (1st Cir. 2002).

Having reviewed Graham's SJC brief, we conclude that

reasonable jurists could not find debatable the district court's
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conclusion that petitioner did not meet his burden of demonstrating

that he had exhausted state remedies with respect to this claim.

That the brief cited only Massachusetts precedent to support his

claim regarding the cross-bows is not necessarily fatal to his

attempt to establish exhaustion. See id. at 54. However, the state

cases cited by Graham do not address the federal due process issue

that he has raised in his habeas petition. Therefore, reasonable

jurists could not find it debatable that the citations to state

cases were insufficient to establish the requisite probability that

a reasonable jurist would have been alerted to the existence of the

federal due process claim. 

Graham's request for a COA is denied and the appeal is

terminated.