June 19, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1634
RASHAD AKEEM RASHEED,
Petitioner,
v.
RONALD T. DUVAL, ET AL.,
Respondents.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Cyr, Boudin and Lynch, Circuit Judges.
Rashad Akeem Rasheed on Application for Certificate of Probable
Cause pro se.
Per Curiam. Petitioner Rashad Akeem Rasheed's
application for a certificate of probable cause to appeal is
denied, essentially for the reasons stated in the district
court's April 14, 1994, memorandum and order denying habeas
corpus relief under 28 U.S.C. 2254.1 In agreeing with the
district court that there is no basis to petitioner's claim
of constitutional error, we add the following comments.
I
I
Rasheed essentially argues that the district court erred
in concluding that his suppression and ineffective assistance
claims are procedurally barred. As an initial matter,
petitioner contends that lack of notice of the impending
denial of his petition was procedurally improper and deprived
him of due process. There is no merit to either claim.
Rasheed assumes that the Commonwealth's motion to dismiss was
treated as a motion for summary judgment because the district
court, in deciding the motion, relied on two of the exhibits
attached to the habeas petition: (1) the 1993 decision of the
Massachusetts Appeals Court upholding Rasheed's most recent
attempt in state court to secure postconviction relief, and
(2) an excerpt from the transcript of his jury trial in 1975.
However, a court may look to matters of public record in
ruling on a motion under Fed. R. Civ. P. 12(b)(6) without
converting the motion into one for summary judgment.
Watterson v. Page, 987 F.2d 1, 3-4 (1st Cir. 1993). Courts
1. Petitioner also seeks review of the denial of a motion
for relief from judgment under Fed. R. Civ. P. 60(b).
have routinely regarded documents from prior state court
cases as public records. See Henson v. CSC Credit Servs., 29
F.3d 280, 284 (7th Cir. 1994) (collecting cases); 5A Wright &
Miller, Federal Practice and Procedure 1364, at 475-80
(1990) (court judgments and orders, judicial notice of prior
pleadings, and transcripts of prior court proceedings, among
other evidence, may be taken into account in deciding a Rule
12(b)(6) motion). Here, the documents relied on by the
district court were submitted as habeas exhibits and were
utilized in framing the habeas petition. As such, they are
part of the pleadings. Watterson, 987 F.2d at 4.
In a similar vein, petitioner argues that he was
entitled to be given notice of the date the court planned to
take the dismissal motion under advisement. The court was
not required to give advance notice of its intent to rule on
the motion. See, e.g., Daniels v. Morris, 746 F.2d 271, 275-
76 (5th Cir. 1984). Under Rule 8(a), Rules Governing Habeas
Cases, once the district court reviews the record and
determines that an evidentiary hearing is not required, the
court is authorized to dispose of the petition "as justice
shall require." See also McBride v. Sharpe, 25 F.3d 962, 970
(11th Cir.), cert. denied, 115 S. Ct. 489 (1994). The
documents relied on by the district court provided a
sufficient basis upon which to make a ruling without an
evidentiary hearing. Moreover, petitioner had a reasonably
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sufficient opportunity to file an opposition; the district
court's disposition, nine weeks after the motion was filed,
was hardly premature. Rasheed's Rule 60(b) motion failed to
offer any indication that with additional notice he would
have done something different that would have likely defeated
the Commonwealth's claim of procedural default. Under these
circumstances, petitioner had a fair opportunity to meet the
Commonwealth's objections to the filing of his petition. See
Price v. Johnston, 334 U.S. 266, 292-93 (1948). There is no
merit in Rasheed's complaint that the district court's
failure to give notice that it intended to render a
disposition on the pending dismissal motion violated his due
process rights.
II
II
It is also clear that petitioner's habeas claims -- that
suppression of evidence by the prosecution violated his right
to due process under Brady v. Maryland, 373 U.S. 83, 87
(1963), and caused the ineffective assistance of his trial
counsel -- are barred by his procedural default in state
court. Petitioner attempted to assert the same claims in a
1991 amended motion for a new trial under Mass. R. Cr. P.
30(b), the third attempt since his conviction in 1975 to
secure such relief. The Massachusetts Appeals Court affirmed
the denial of a new trial, ruling that petitioner's claims
had been waived because they were not raised at trial, on
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direct appeal, or in petitioner's first Rule 30 motion.
Commonwealth v. Kines, No. 92-P-601 (Mass. App. Ct. Feb. 24,
1993). That decision, the "last reasoned opinion" by a
state court, Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991),
plainly relied upon an independent and adequate state ground.
Coleman v. Thompson, 501 U.S. 722, 739 (1991). The fact that
the Massachusetts Appeals Court briefly considered
petitioner's defaulted claims in concluding that a remand for
discretionary review under Rule 30(c)(2) would be
inappropriate, does not, as petitioner would have it, remove
the procedural bar for federal habeas purposes. See Tart v.
Massachusetts, 949 F.2d 490, 496-97 (1st Cir. 1991); see also
Allen v. Massachusetts, 926 F.2d 74, 78 (1st Cir. 1991);
Doucette v. Vose, 842 F.2d 538, 539-40 (1st Cir. 1988).
Despite that brief discussion, it is obvious that the Appeals
Court decision expressly rested on petitioner's procedural
default. Harris v. Reed, 489 U.S. 255, 264 n.10 (1991)
(adequate and independent state ground doctrine applies "as
long as the state decision explicitly invokes a state
procedural bar rule as a separate basis for decision"). And,
Massachusetts cases have consistently applied a state
procedural bar to claims not raised, as here, at trial, on
direct appeal, or on the first motion for postconviction
relief under Rule 30. See Commonwealth v. McLaughlin, 364
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Mass. 211, 229 (1973).2 Consequently, it was entirely
appropriate for the district court to find these habeas
claims barred in the absence of a showing by petitioner of
cause for defaulting them in state court and actual prejudice
resulting from that default, or that the refusal to consider
the federal claims would lead to a fundamental miscarriage of
justice. Harris, 489 U.S. at 262; Tart, 949 F.2d at 496.
Petitioner has made no attempt whatsoever to demonstrate
cause and prejudice that would excuse his noncompliance with
Massachusetts procedure, except to claim that his attorney
was ineffective. But, counsel's decision not to pursue
potential inconsistencies that might have come to light after
sought-after police journal reports were finally produced at
trial,3 a decision that suggests at worst inadvertence or at
best reasonable trial strategy, cannot constitute "cause" to
revive Rasheed's claims for federal habeas review. See Smith
v. Murray, 477 U.S. 527, 534 (1986) ("[A] deliberate,
tactical decision not to pursue a particular claim is the
very antithesis of the kind of circumstance that would
2. Federal courts are not forums in which to relitigate
state trials. Brecht v. Abrahamson, 113 S. Ct. 1710, 1719
(1993) (citing Barefoot v. Estelle, 463 U.S. 880, 887
(1983)); see also Singleton v. United States, 26 F.3d 233,
237 n.9 (1st Cir. 1994). The sole and limited concern of a
habeas court is to detect whether petitioner's incarceration
violated the Constitution, laws or treaties of the United
States. 28 U.S.C. 2241(c)(3).
3. The record clearly shows that defense counsel examined
the police journal at trial.
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warrant excusing a defendant's failure to adhere to a State's
legitimate rules for the fair and orderly disposition of
criminal cases."); see also Tart, 949 F.2d at 497.
Otherwise, the record fails even to hint that some factor
external to the defense caused the default much less that
interference by officials blocked petitioner's ability to
comply with the state's procedural rules. Murray v. Carrier,
477 U.S. 478, 487 (1986).4 Nor has Rasheed shown that
review of the merits of his claims under the "manifest
miscarriage of justice" exception noted in Smith, 477 U.S. at
537, is warranted. There simply is "no substantial claim
that the alleged error[s] undermined the accuracy of the
guilt . . . determination," id. at 539, or any indication
that this is the extraordinary case "where a constitutional
violation has probably resulted in the conviction of one who
is actually innocent." Carrier, 477 U.S. at 496.
III
III
Finally, to the extent that Rasheed is attempting to
complain that his habeas counsel was ineffective, no relief
on that ground is available. As there is no right to counsel
in 2254 proceedings, McCleskey v. Zant, 499 U.S. 467, 495
(1991), the Sixth Amendment right to effective assistance of
4. Petitioner's pro se status here and on two new trial
motions in state court does not excuse his compliance with
the rigors of the cause and prejudice standard. See
Barksdale v. Lane, 957 F.2d 379, 385 n.12 (7th Cir. 1992).
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habeas counsel does not apply. See Coleman, 501 U.S. at 752;
Bonin v. Vasquez, 999 F.2d 425, 430 (9th Cir. 1993). A
petitioner seeking a certificate of probable cause from this
court must affirmatively demonstrate that such cause in fact
exists. Glynn v. Donnelly, 485 F.2d 692, 693 (1st Cir.
1973), cert. denied, 416 U.S. 957 (1974). This means making
a substantial showing of the denial of a federal right, i.e.,
that the "issues are debatable among jurists of reason; that
a court could resolve the issues in a different manner; or
that the questions are adequate to deserve encouragement to
proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983) (punctuation and citations omitted). This has not
been done.
Petitioner's motions to proceed in forma pauperis; for
appointment of counsel; to correct, expand and exclude
materials from the record; and for summary reversal, are
denied as moot.
The certificate of probable cause is denied and the
appeal is terminated.
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