Opinion
CIVIL ACTION NO. 87-1957-RGS.
December 30, 2004.
MEMORANDUM AND ORDER ON PETITIONER'S MOTION TO REOPEN AND VACATE JUDGMENT
On July 3, 2003, Rashad Rasheed filed a pro se motion to reopen and vacate a 1988 judgment dismissing a petition for writ of habeas corpus. Rasheed's instant motion is styled under Fed.R.Civ.P. 60(b), and cites two grounds allegedly warranting relief: (1) that an Assistant Attorney General procured the judgment of dismissal by committing a fraud on the court; and (2) that a change in controlling authority regarding the confinement of a defendant in the prisoner's dock during trial constitutes an "extraordinary circumstance" justifying relief under Rule 60(b)(6).
Rule 60(b) provides:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
BACKGROUND
On August 26, 1974, three teenage girls hitchhiking from the North End in Boston to Newton, Massachusetts, accepted a ride from a young black man driving a blue Econoline van with flowered curtains and orange license plates. After asking for directions to "Cabot Street," the driver locked the van doors, drew a pistol, and tied up the girls. He raped one of them and robbed another of two rings. He later left the girls on a street in the Roxbury section of Boston, blindfolded and tied together.
At trial, the three girls identified Rasheed as their assailant. One of the girls identified photographs of the van. (The van had been found abandoned by police two days after the incident. Evidence was offered at trial indicating that Rasheed had stolen the van six days before the rape and robbery.) A woman testified that she had been robbed of a diamond ring at gunpoint five days earlier by a black man driving a blue van with flowered curtains who had asked for directions to "Cabot Street." The woman and her daughter, who had witnessed the robbery, identified Rasheed as the thief. Finally, a pawnbroker identified Rasheed as the person who had sold him the woman's diamond ring a few hours after the robbery.
On September 12, 1975, Rasheed was convicted by a jury in the Suffolk Superior Court of rape, armed robbery, and three counts of kidnapping. He received concurrent sentences of life in prison, 25 to 40 years, and 7 to 10 years. The convictions were affirmed on direct appeal. Commonwealth v. Kines, 5 Mass. App. Ct. 632 (1977), further rev. denied, 373 Mass. 865 (1977),cert. denied sub nom. Kines v. Massachusetts, 434 U.S. 1076 (1978). Rasheed unsuccessfully sought federal habeas relief.Kines v. Butterworth, No. 78-1176-G (D. Mass. May 3, 1979),aff'd, 618 F.2d 93 (1st Cir. 1980), cert. denied, 447 U.S. 928 (1980). He then filed a motion in the state court for a new trial. The motion was denied after a hearing and the denial was affirmed on appeal. Commonwealth v. Kines, 14 Mass. App. Ct. 1007 (1982), further rev. denied, 388 Mass. 1101 (1983). In 1985, Rasheed's second petition for federal habeas relief was denied for failure to exhaust state remedies. Kines v. Ponte, No. 83-1054-N (D. Mass. August 6, 1985). A second state court motion for a new trial was also denied on December 19, 1985, and the denial was affirmed by the Appeals Court in an unpublished opinion. Commonwealth v. Kines, 24 Mass. App. Ct. 1104 (1987),further rev. denied, 400 Mass. 1103 (1987).
On August 4, 1987, Rasheed filed a third federal habeas petition in which he asserted nine grounds for relief, among them the alleged suppression by the prosecution of exculpatory evidence and his confinement by the trial judge in the prisoner's dock. Judge Mazzone determined that the petition presented no cognizable claim, and dismissed it on March 1, 1988. Rasheed v. Bender, No. 87-1957-MA (D. Mass. March 1, 1988), aff'd, 873 F.2d 1432 (1st Cir. 1989), cert. denied, 493 U.S. 840 (1989). It is from Judge Mazzone's dismissal that relief is now sought.
The claim that exculpatory evidence was suppressed is based on three police reports that Rasheed claims to have seen for the first time in 1991. According to Rasheed, these reports indicate that the initial descriptions given by the teenage victims of the assailant and the van were inconsistent with their testimony at trial. Rasheed also argues that one of the reports demonstrates that the prosecution misrepresented the photographic identification procedure used by the police. Rasheed maintains that the prosecutor in his case conspired with police to encourage the victims to testify falsely, both at his suppression hearing and at trial, and that the prosecutor "failed to correct known misleading testimony in violation of [Rasheed's] federal due process rights." Finally, Rasheed contends that the dismissal of his habeas petition was obtained by fraud when the Assistant Attorney General opposing the petition represented to the court that no exculpatory evidence had been withheld.
As for the second ground, Rasheed relies on the statement inMoore v. Pontes, 186 F.3d 26, 36 (1st Cir. 1999), that the holding of Young v. Callahan, 700 F.2d 32 (1st Cir. 1983), that the use of a prisoner's dock in the absence of legitimate security concerns violates a defendant's right to due process, was not a "new rule" of criminal procedure, but one foreshadowed by Supreme Court precedent dating from at least 1970. Consequently, Rasheed argues that the rule should be applied retroactively to his case.
During the habeas proceedings, the court determined that the record showed support for Rasheed's confinement in the dock because the trial judge had been informed that Rasheed had a history of attempted escapes and was a "troublesome" inmate. Moreover, no contemporaneous objection had been made to the use of the dock. Rasheed argues that the court mistakenly relied onBumpus v. Gunter, 635 F.2d 907 (1st Cir. 1980), in making its determination, and that the reliance constituted a "procedural defect in the procurement of the judgment," because Bumpus was overruled by Moore. Rasheed maintains that he was not a difficult prisoner while awaiting trial in the Suffolk County jail from 1974 through September of 1975, and that the sheriff misled the trial judge into punishing him in retaliation for a civil rights lawsuit that he had brought against the sheriff.
DISCUSSION
The threshold issue is whether Rasheed's motion seeking relief from judgment is properly styled as a Rule 60(b)(6) motion, or whether it constitutes a second or successive habeas petition for purposes of 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, §§ 101-107, 110 Stat. 1214, 1217-26 (2000). The rule of decision is as follows.
When the motion's factual predicate deals primarily with constitutionality of the underlying state conviction or sentence, then the motion should be treated as a second or successive habeas petition. This situation should be distinguished from one in which the motion's factual predicate deals primarily with some irregularity or procedural defect in the procurement of the judgment denying habeas relief. That is the classic function of a Rule 60(b) motion and such a motion should be treated within the usual confines of Rule 60(b).Rodwell v. Pepe, 324 F.3d 66, 69 (1st Cir. 2003).
Rasheed asserts in ground one that his federal due process right to a fair trial was violated when the prosecutor allegedly conspired with police to suborn perjury and "intentionally suppress[ed] specifically requested exculpatory evidence." (The allusion is to United States v. Agurs, 427 U.S. 97 (1976)). This argument is clearly an attack on the constitutional validity of Rasheed's state convictions. Rasheed attempts to circumventRodwell by making the same "ongoing deception" argument that the First Circuit rejected in that case.
In an effort to alter this conclusion, the petitioner argues that the evidence upon which he now relies was improperly withheld during earlier proceedings (including the original habeas proceeding), thus constituting an `ongoing fraud' that challenges the integrity of the habeas judgment itself. This argument is clever, but flawed. For one thing, it seeks to accomplish an end run around the strict limitations that the AEDPA imposes upon the filing of second or successive habeas petitions.Rodwell, 324 F.3d at 72.
Rasheed's second asserted ground for relief is more carefully couched as a procedural argument in an effort to skirtRodwell's formidable bar altogether. However, by invokingMoore, Rasheed is effectively asserting that his confinement in the prisoner's dock was a violation of his constitutional right to due process. The treatment of a motion does not "depend on the label affixed . . . but to its essence." Rodwell, 324 F.3d at 71. Stripped to its core, Rasheed's motion attacks the underlying conviction as constitutionally invalid and is thus in reality a second or successive habeas petition "parading as" a Rule 60(b) motion. Gonzales v. Crosby, 366 F.3d 1253, 1298 (11th Cir. 2004). The AEDPA provides that before a second or successive application for habeas relief is filed in the district court, an applicant must obtain an order from the Court of Appeals authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3)(A). See Libby v. Magnusson, 177 F.3d 43, 45 (1st Cir. 1999) (a second or successive habeas petition is not a matter of right). Because that Court of Appeals has not authorized Rasheed to file such a petition, this court lacks jurisdiction to entertain it on the merits.
ORDER
For the foregoing reasons, the claim for relief is DISMISSED for want of subject matter jurisdiction.SO ORDERED.