Kines v. Butterworth

Filing 67

Chief Judge Mark L. Wolf: MEMORANDUM ANDORDER entered denying 65 Motion for Certificate of Appealability.Accordingly, it is hereby ORDERED that:1. Petitioner's Application for Certificate of Probable Cause(Docket No. 65) is DENIED.2. A COA is DENIED as to all claims. (Hohler, Daniel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
RASHAD RASHEED,
Petitioner,

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v.
PETER ST. AMAND,
Respondent.

C.A. No. 78-01176-MLW

MEMORANDUM AND ORDER
WOLF, D.J.

May 3, 2011

Pursuant to 28 U.S.C. §2254, pro se petitioner Rashad Rasheed
has filed for, and been denied, habeas relief three times. He has
also

repeatedly

requested

and

been

denied

reconsideration,

reopening of his petitions, and relief from judgment. On January
21, 2011, the court denied Rasheed's most recent motion for relief,
as a successive habeas petition not authorized by the First
Circuit. See Libby v. Magnusson, 177 F.3d 43, 45 (1st Cir. 1999).
Pursuant to Rule 11(a) of the Rules Governing Section 2254
Proceedings, the court must "issue or deny a certificate of
appealability [("COA")] when it enters a final order adverse to the
applicant." Determining whether a COA should issue where the
petition is dismissed on procedural grounds includes two questions,
one directed at the underlying constitutional claims and one
directed at the district court's procedural holding. See Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000). A COA may be granted where
a supposed antecedent procedural bar prevented the district court
from reaching the constitutional claim if (1) the soundness of the
procedural ruling is debatable, and (2) the constitutional claim is

colorable. See Mateo v. United States, 310 F.3d 39, 40 (1st Cir.
2002). "[B]oth showings [must] be made before the Court of Appeals
may entertain an appeal." Slack, 529 U.S. at 485. Therefore, a COA
will not issue if either question is answered in the negative. See
id.
To meet both elements for a COA, the petitioner must show "at
least that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right, and that jurists of reason would find it debatable whether
the district court was correct in its procedural rulings." Id. at
478. An issue "can be debatable even though every jurist of reason
might agree, after the COA has been granted and the case has
received full consideration, that petitioner will not prevail."
Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). However, the
"issuance of a COA must not be pro forma or a matter of course"
because Congress has "confirmed the necessity and the requirement
of differential treatment for those appeals deserving of attention
from those that plainly do not." Id. at 337.
The question in this case can be disposed of properly by
looking only at the soundness of the court's procedural decision.
See Slack, 529 U.S. at 485; Mateo, 310 F.3d at 40. The court has
determined that Rasheed's petition is barred as a successive
petition not authorized by the First Circuit. No reasonable jurist
could find this conclusion to be debatable.

2

Therefore, a COA is

not being granted.
Because the court has denied a COA, Rasheed may seek a COA
from the court of appeals. See §2254 Rule 11(a).
Accordingly, it is hereby ORDERED that:
1. Petitioner's Application for Certificate of Probable Cause
(Docket No. 65) is DENIED.
2. A COA is DENIED as to all claims.

/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE

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