
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1021                                 ROBERT C. BEAUCHAMP,                                     Petitioner,                                          v.                PAUL MURPHY, SUPERINTENDENT, OLD COLONY CORR. CENTER,                                     Respondent.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Selya and Stahl, Circuit Judges.                                            ______________                                 ____________________            Robert Beauchamp on brief pro se.            ________________                                 ____________________                                    April 13, 1995                                 ____________________                      Per  Curiam.   Pro  se petitioner  Robert Beauchamp                      ___________    ___  __            seeks a certificate of probable cause to appeal the denial by            the  district  court  of  his  petition  for  habeas  corpus,            pursuant  to  28 U.S.C.     2254.   In  order to  justify the            issuance of  a certificate of probable  cause, Beauchamp must            "make  a 'substantial  showing  of the  denial  of a  federal            right.'"    Barefoot v.  Estelle,  463 U.S.  880,  893 (1983)                        ________     _______            (quoting Stewart v.  Beto, 454  F.2d 268, 270  n.2 (5th  Cir.                     _______     ____            1971), cert. denied, 406 U.S. 925 (1972)).  We have carefully                   ____  ______            reviewed the record, Beauchamp's memorandum, and the  opinion            of the  district  court.   We  conclude that  petitioner  has            failed to make  a substantial  showing that he  was denied  a            federal right.                      First,  Beauchamp  claims  he was  entitled  to  an            evidentiary hearing on his claim that he was denied effective            assistance  of counsel  because his  trial counsel  failed to            interview or call as  witnesses two men who had  indicated to            police  that they  had heard  the victim say  negative things            about Beauchamp.  At trial, Beauchamp argued that he slew the            victim  in  self-defense.     Under  Massachusetts  law,  the            adequacy of a claim of  self-defense rests on a determination            of the mental state and the  actions of the defendant "at the            time of the  alleged assault."  Commonwealth  v. Baseler, 419                                            ____________     _______            Mass. 500, 503 & n.3, 645 N.E.2d 1179 & n.3 (1995).  However,            "evidence  of  a  victim's  threats  of  violence  against  a                                         -2-            defendant"  is admissible  for showing  a defendant  acted in            self-defense.   Commonwealth v.  Fontes, 396 Mass.  733, 735,                            ____________     ______            488 N.E.2d 760, 762 (1986).                      While  the  statements of  the  potential witnesses            indicate they were aware  of some hostility between Beauchamp            and the  victim, their  statements concern events  too remote            from the time of the slaying to shed any light on Beauchamp's            mental state or action at the time of the killing.  Moreover,            neither statement contains anything which could  be construed            as a "threat of violence" against Beauchamp.  Since Beauchamp            has  not shown "a  reasonable probability that,  [but for his            counsel's failure to call these  as witnesses], the result of            the proceeding would have  been different," Beauchamp has not            made a  substantial showing  that he  was denied  his federal            right  to effective  assistance  of counsel.   See  Scarpa v.                                                           ___  ______            Dubois,  38  F.3d 1,  8  (1st Cir.  1994)  (habeas petitioner            ______            alleging ineffective  counsel in  state court must  show both            that counsel's performance  was below professional  norms and            that  petitioner  suffered  prejudice  as  result  of  error)            (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)),                     __________    __________            cert. denied,  115 S.Ct.  940 (1995).   Moreover,  since this            ____  ______            claim  could adequately  be  resolved  on  the basis  of  the            record, Beauchamp was not  entitled to an evidentiary hearing            on it.  See Perron  v. Perrin,  742 F.2d 669,  672 (1st  Cir.                    ___ ______     ______            1984).                                         -3-                      Beauchamp  also  asserts  that  his  constitutional            rights   were  violated  because   coercion  by  the  Central            Intelligence Agency prevented him from presenting a  truthful            account of the  killing at his  trial.  We have  reviewed the            record carefully, including Beauchamp's numerous submissions.            Like the  Massachusetts Superior  Court, we  find Beauchamp's            tale to consist of  "transparent implausibilities."  Order on            Defendant's  Motion in Aid  of Discovery;   see Machibroda v.                                                        ___ __________            United States,  368 U.S. 487, 495 (1962) (in reviewing habeas            _____________            petitions,  courts are  not  stripped of  "all discretion  to            exercise their  common sense"). The district  court was under            no  obligation  to  accord  an evidentiary  hearing  to  such            "inherently incredible"  allegations.  Neron v.  Tierney, 841                                                   _____     _______            F.2d  1197, 1202 n.6 (1st  Cir.), cert. denied,  488 U.S. 832                                              ____  ______            (1988).                      Finally, we are barred from considering Beauchamp's            claim that the trial court improperly instructed  the jury by            placing the burden of  proving self-defense on the defendant.            The  Massachusetts courts  found  these  claims  procedurally            barred  because they were  not raised during  the pendency of            Beauchamp's second  motion for a  new trial.1   Beauchamp has            not shown  that his failure  to raise  this issue was  due to                                            ____________________            1.  Since Beauchamp  had no  right to  counsel in  this post-            conviction   proceeding,  he   cannot   claim   he   received            constitutionally  ineffective  assistance  of counsel  during            this  proceeding.   Coleman v.  Thompson,  501 U.S.  722, 752                                _______     ________            (1991).                                         -4-            some factor external to  his defense. See Murray  v. Carrier,                                                  ___ ______     _______            477 U.S. 478, 488 (1986) (to establish adequate cause for his            procedural  default, petitioner  must show  it was  caused by            "some objective factor external to the defense").  Nor has he            brought  forth  credible  evidence   that  he  is   "actually            innocent" of the charge for which he is incarcerated.  Id. at                                                                   __            496  (federal  court  may   review  habeas  petition  despite            procedural default in state court  where it is probable  that            violation led to conviction of one "actually innocent" of the            crime).                      The petition for a certificate of probable cause is            denied.            ______                                         -5-
