Rasheed v. Duval

USCA1 Opinion









June 19, 1995
[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT


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No. 94-1634


RASHAD AKEEM RASHEED,

Petitioner,

v.

RONALD T. DUVAL, ET AL.,

Respondents.


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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. ______________

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Rashad Akeem Rasheed on Application for Certificate of Probable _____________________
Cause pro se.



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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 _________ ____




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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

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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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