Rasheed v. Thompson

Filing 25

Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER. Respondents Motion to Dismiss [#14] is ALLOWED IN PART and DENIED IN PART. See attached Order. (MacDonald, Gail)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

RASHAD AKEEM RASHEED,
formerly known as BOBBY RAY KINES,
Petitioner,
v.
MICHAEL THOMPSON,
Respondent.

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Civil Action No. 14-cv-11885-IT

MEMORANDUM & ORDER
December 17, 2014
TALWANI, D.J.
I.

Introduction
Before this court are Petitioner Rashad Akeem Rasheed’s Petition Under 28 U.S.C. §

2254 for Writ of Habeas Corpus [#1], Respondent Michael Thompson’s Motion to Dismiss
[#14], and Rasheed’s Motion for Leave to File Supplemental Habeas Corpus Petition [#24].
Rasheed’s petition is the latest in a series of at least five § 2254 petitions challenging his 1975
convictions for rape, armed robbery, and kidnapping. Because Rasheed’s petition is a “second or
successive” habeas corpus application, this court lacks jurisdiction to consider the petition
without authorization from the United States Court of Appeals for the First Circuit. Accordingly,
and pursuant to First Circuit Rule 22.1(e) and 28 U.S.C. § 1631, the court transfers the petition to
the United States Court of Appeals for the First Circuit.

II.

Background1
On September 12, 1975, a jury in Suffolk Superior Court convicted Rasheed of rape,

armed robbery, and kidnapping. Pet. 1 [#1]. The Superior Court sentenced Rasheed to
concurrent terms of life, twenty-five-to-forty years, and seven-to-ten years in prison. Rasheed v.
Nolan, No. 87-1957-RGS, 2004 WL 3019348, *1 (D. Mass. Dec. 30, 2004). The Massachusetts
Court of Appeals affirmed Rasheed’s convictions on direct appeal. Commonwealth v. Kines,
367 N.E.2d 861 (Mass. App. Ct. 1977). Rasheed then unsuccessfully sought federal habeas
corpus relief for the first time. Kines v. Butterworth, No. 78-01176-G (D. Mass. May 3, 1979)
(order denying petition), aff’d, 618 F.2d 93 (1st Cir. 1980). In 1983, Rasheed filed a second
federal habeas petition, which the court denied for failure to exhaust state remedies. Rasheed,
2004 WL 3019348, at *1 (citing Kines v. Ponte, No. 83-1054-N (D. Mass. Aug. 6, 1985)).
On August 4, 1987, Rasheed filed a third federal habeas petition in which he raised nine
claims for relief, including claims for ineffective assistance of counsel and failure to disclose
exculpatory evidence. The court found that Rasheed’s petition presented “no cognizable claim
for relief” and dismissed the petition. Rasheed v. Bender, No. 87-1957-MA, 1988 WL 22506, at
*4 (D. Mass. Mar. 1, 1988), aff’d, 873 F.2d 1432 (1st Cir. 1989).
On July 3, 2003, Rasheed filed a motion to reopen proceedings related to his third federal
habeas petition under Federal Rule of Civil Procedure 60(b). As grounds for relief, Rasheed
alleged that the prosecutor intentionally suppressed exculpatory evidence and that Rasheed’s
confinement to the prisoner’s dock during trial violated his due process rights. The court held
that Rasheed’s Rule 60(b) motion constituted an unauthorized, successive habeas petition and
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The factual and procedural history of Rasheed’s convictions and subsequent proceedings are
more fully set forth in Rasheed v. Nolan, No. 87-1957-RGS, 2004 WL 3019348, *1-2 (D. Mass.
Dec. 30, 2004), and Rasheed v. Gelb, No. 12-11921-DJC, *1-4 (D. Mass Jan. 3, 2013) (report
and recommendation), adopted by, No. 12-11921-DJC (D. Mass. Feb. 5. 2013).
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dismissed the petition for lack of jurisdiction. Rasheed, 2004 WL 3019348, at *2-3, certificate
of appealability denied, No. 05-1346 (1st Cir. Nov. 21, 2005).
On May 31, 2007, Rasheed filed a motion to reopen proceedings related to his first
petition under Rule 60(b). The court denied Rasheed’s Rule 60(b) motion on the grounds that
the motion was identical to Rasheed’s prior Rule 60(b) motion and constituted “a second or
successive habeas petition that cannot be considered without leave of the Court of Appeals.”
Rasheed v. Marshall, No. 78-01176-MLW, at *4-5 (D. Mass. Aug. 6, 2007). Thereafter,
Rasheed filed, and the court denied, a series of motions to reconsider and reopen his first and
third habeas proceedings. See Rasheed v. Marshall, No. 78-01176-MLW (D. Mass. Aug. 17,
2007 through Aug. 16, 2010); Rasheed v. Bender, No. 87-01957-RGS (D. Mass. Jan. 11, 2005
through July 7, 2011).
On October 16, 2012, Rasheed filed another § 2254 petition, in which he alleged that the
prosecutor failed to disclose a chemist’s report and other crime scene evidence until 2011. The
court held that the petition constituted an unauthorized, successive habeas corpus application and
dismissed the petition for lack of jurisdiction. Rasheed v. Gelb, No. 12-11921-DJC (D. Mass.
Jan. 3, 2013) (report and recommendation), adopted by, No. 12-11921-DJC (D. Mass. Feb. 5,
2013), certificate of appealability denied, No. 13-1287 (1st Cir. June 24, 2013).
On March 15, 2013, Rasheed filed an application for leave to file a second or successive
habeas corpus petition in the United States Court of Appeals for the First Circuit. Rasheed
requested leave to assert a violation under Brady v. Maryland, 373 U.S. 83 (1963), based on the
prosecutor’s alleged failure to disclose a chemist’s report and other crime scene evidence. The
First Circuit denied Rasheed’s application. Rasheed v. Gelb, 13-1342 (1st Cir. May 1, 2013).
Finally, on April 16, 2014, Rasheed filed the instant § 2254 petition. In his petition,

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Rasheed asserts four grounds for relief: (1) the prosecutor failed to disclose exculpatory
evidence, (2) the prosecutor improperly introduced evidence of prior crimes, (3) the trial court
erroneously confined Rasheed to the prisoner’s dock during trial, and (4) trial and appellate
counsel were ineffective for failing to obtain exculpatory evidence. Pet. 5-10. On July 15, 2014,
Respondent filed a Motion to Dismiss [#14] on the ground that Rasheed’s petition constitutes an
unauthorized, successive habeas application. Rasheed opposed the motion. See Opp’n Resp’t’s
Mot. Dismiss [#20]. On November 17, 2014, Rasheed filed a Motion for Leave to File
Supplemental Habeas Corpus Petition [#24] based on newly discovered evidence that his DNA
does not match saliva samples found on two cigarettes retrieved from the crime scene.

III.

Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes strict

limitations on the power of federal courts to entertain “second or successive” habeas corpus
applications. See 28 U.S.C. § 2244(b). In particular, AEDPA’s gatekeeping provision requires a
petitioner to apply to the appropriate court of appeals for authorization to file a “second or
successive” § 2254 petition. Id. § 2244(b)(3)(A) (“Before a second or successive application
permitted by this section is filed in the district court, the applicant shall move in the appropriate
court of appeals for an order authorizing the district court to consider the application.”). The
First Circuit has interpreted this provision as “‘stripping the district court of jurisdiction over a
second or successive habeas petition unless and until the court of appeals has decreed that it may
go forward.’” Trenkler v. United States, 536 F.3d 85, 96 (1st Cir. 2008) (quoting Pratt v. United
States, 129 F.3d 54, 57 (1st Cir. 1997)); see also Pratt, 129 F.3d at 57 (“This statutory directive
means that a district court, faced with an unapproved second or successive habeas petition, must

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either dismiss it or transfer it to the appropriate court of appeals.” (internal citations omitted)).
Although AEDPA does not define the phrase “second or successive,” the First Circuit has
outlined several situations in which a numerically second petition is not considered “second or
successive” for AEDPA purposes. See Sustache-Rivera v. United States, 221 F.3d 8, 12-13 (1st
Cir. 2000); United States v. Barrett, 178 F.3d 34, 43-44 (1st Cir. 1999). These situations include:
(1) “where the later petition attacks a different criminal judgment,” (2) “where the earlier petition
terminated without a judgment on the merits,” (3) “where a state prisoner’s later petition raises
the same grounds as a previous petition that had been dismissed for failure to exhaust state
remedies,” and (4) “where the later petition raises the same grounds as a previous petition that
had been dismissed as premature.” See Sustache-Rivera, 221 F.3d at 12-13. Other circuits have
recognized at least two additional exceptions: (1) “where the earlier petition was rejected for
failure to pay a filing fee or for errors of form,” and (2) “where the earlier petition was
mislabeled as a § 2255 but was really a § 2241 petition challenging the execution, but not the
validity, of a sentence.” Sustache-Rivera, 221 F.3d at 13 n.7 (citing Barrett, 178 F.3d at 43).
Rasheed’s instant petition does not fit into any of the above exceptions. Rasheed’s
petition attacks the same criminal judgment as his 1987 petition. The court dismissed Rasheed’s
1987 petition on the merits and for reasons unrelated to exhaustion, maturity, payment of the
filing fee, or errors of form. Finally, Rasheed’s 1987 petition was properly construed as a § 2254
petition challenging the validity of his convictions and sentence. Accordingly, the court finds
that Rasheed’s instant petition is a “second or successive” application subject to AEDPA’s
gatekeeping requirements.2

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Although not raised by either party in this case, the court notes that the Ninth Circuit has
expressed some uncertainty as to the applicability of AEDPA’s gatekeeping requirements in the
context of Brady claims. Compare United States v. Lopez, 577 F.3d 1053, 1066-67 (9th Cir.
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Rasheed has not obtained an order from the Court of Appeals authorizing this court to
consider his successive petition. As a result, this court must either dismiss the petition or transfer
the petition to the Court of Appeals. See First Circuit Rule 22.1(e) (“If a second or successive §
2254 . . . petition is filed in a district court without the requisite authorization by the court of
appeals pursuant to 28 U.S.C. § 2244(b)(3), the district court will transfer the petition to the court
of appeals pursuant to 28 U.S.C. § 1631 or dismiss the petition.”); Barrett, 178 F.3d at 41 n.1
(“Several circuits have mandated transfer, pursuant to 28 U.S.C. § 1631, rather than dismissal.
We have not so mandated, but we note that transfer may be preferable in some situations in order
to deal with statute of limitations problems or certificate of appealability issues.” (internal
citations omitted)). Rather than require Rasheed to re-file, this court will transfer his petition to
the United States Court of Appeals for the First Circuit.

IV.

Conclusion
For the above-stated reasons, Respondent’s Motion to Dismiss [#14] is ALLOWED IN

PART and DENIED IN PART. Rasheed’s Petition [#1] and Motion for Leave to File
Supplemental Habeas Corpus Petition [#24] are hereby TRANSFERRED to the United States
Court of Appeals for the First Circuit for consideration of Rasheed’s implicit request for an order

2009) (“[W]e need not, and do not, resolve the more difficult question whether all second-intime Brady claims must satisfy AEDPA’s gatekeeping requirements . . . .”), with Tompkins v.
Sec’y Dep’t of Corr., 557 F.3d 1257, 1260 (11th Cir. 2009), and Evans v. Smith, 220 F.3d 306,
323-24 (4th Cir. 2000). Because the First Circuit has not recognized an exception to AEDPA’s
gatekeeping requirements for Brady claims—either in addressing Rasheed’s prior petitions or
otherwise, see, e.g., Rasheed v. Nolan, No. 87-1957-RGS, 2004 WL 3019348 (D. Mass. Dec. 30,
2004), certificate of appealability denied, No. 05-1346 (1st Cir. Nov. 21, 2005); Rasheed v. Gelb,
No. 12-11921-DJC (D. Mass Jan. 3, 2013) (report and recommendation), adopted by, No. 1211921-DJC (D. Mass. Feb. 5. 2013), certificate of appealability denied, No. 13-1287 (1st Cir.
June 24, 2013); Rasheed v. Gelb, No. 13-1342 (1st Cir. May 1, 2013) (denying request to file a
successive petition)—the court declines to do so here.
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authorizing this court to consider his § 2254 petition. The Clerk shall CLOSE this case, subject
to reopening in the event the Court of Appeals authorizes this court to consider the petition.
IT IS SO ORDERED.
Date: December 17, 2014

/s/ Indira Talwani
United States District Judge

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