USCA1 Opinion

November 15, 1994

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1739
JOSE L. RODRIGUEZ,
Petitioner,
v.
PETER PEPE,
Respondent.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
___________________
____________________
Before
Selya, Cyr and Boudin, Circuit Judges.
______________
____________________
Jose L. Rodriguez, pro se.
_________________
Scott Harshbarger, Attorney
__________________

General,

and

William J. Duensi
__________________

Assistant Attorney General, for respondent.

____________________
____________________

Per Curiam.
__________
the

issues

dismissal

After

a searching and extensive

presented,

of Jose

we

affirm

Rodriguez's

the

review of

district

petition for

court's

habeas corpus.

The district court concluded that the pendency of a new trial

motion before
petitioner's

the state trial court

federal habeas

corpus

barred consideration of
claims.

We granted

certificate of probable cause in light of the state's lengthy

delay in
his

resolving either

petitioner's new trial

appeal and our difficulty

sought

from

the

government

in discerning its
a

memorandum

reasons--and justifications--for the delay.

motion or
cause.

addressing

We
the

Having reviewed

all

the submissions carefully, we find that the delay in the

state court proceedings does

to exhaust

his state remedies before

corpus relief.
There is
his

See 28 U.S.C.
___
no dispute

state remedies;

exhaust is

2254(b).

petitioner claims
of the

Petitioner's appeal

years, while his new

four years.
now is

excessive

941 F.2d 246,

has been

not exhausted

that his

either his appeal or new

e.g., Hankins v. Fulcomer,

____ _______
________

1991).

seeking federal habeas

that petitioner has

excused because

state in acting upon

See,
___

not excuse petitioner's failure

failure to

delay by

the

trial motion.
250 (3d Cir.

pending for

over six

trial motion has been pending

for over

What was less clear at the outset but more clear

that this delay is of petitioner's own making.

After

petitioner filed his appeal, a not uncommon problem developed

-2-2-

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
had

in rectifying the problem, as he

fired his lawyer following sentencing and had not as yet

requested replacement
looked

counsel.

The

transcription

problem

as if it was about to resolve itself when petitioner,

acting pro se, filed a new trial motion with the trial
______

court

in May 1990.
The

effect of

logjam--the

this filing

lower court

record could

transmission to the appellate

the pending motion,

but the

resolved until the appeal

See Mass. R.
___
App.

was to create
not be

9(a),

assembled for

court until the disposition of

new trial motion

would not

be

was either withdrawn or concluded.

Crim. Proc. 30(b) (reporters'

Proc. 4(c),

a procedural

9(d).

By

notes); Mass. R.

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.,

____
by

withdrawing his new trial motion or his appeal, the delay

in

the

resolution

petitioner's

of

failure to

Deters v. Collins, 985

______
_______
does

not

excuse

exhaust

matters

his state

cannot
remedies.

F.2d 789, 796 (5th Cir.

failure

contributes to delay).
Affirmed.
________

the pending

to

exhaust

where

excuse
See
___

1993) (delay
petitioner

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