
USCA1 Opinion

	




          June 19, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                          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                                         -3-            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                                         -4-            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                                     ___ ____________     __________                                         -5-            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.                                         -6-            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).            _________    ____                                         -7-            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.            _____________________                                         -8-
