Rasheed v. Duval

Opinion

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                                [NOT FOR PUBLICATION]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]
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                                 ____________________



                                        Before



                        Cyr, Boudin and Lynch, Circuit Judges.
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                                 ____________________



            Rashad Akeem  Rasheed on Application  for Certificate of  Probable
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        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
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            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
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            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


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            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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