USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1021
ROBERT C. BEAUCHAMP,
Petitioner,
v.
PAUL MURPHY, SUPERINTENDENT, OLD COLONY CORR. CENTER,
Respondent.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Selya and Stahl, Circuit Judges.
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Robert Beauchamp on brief pro se.
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April 13, 1995
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Per Curiam. Pro se petitioner Robert Beauchamp
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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)
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(quoting Stewart v. Beto, 454 F.2d 268, 270 n.2 (5th Cir.
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1971), cert. denied, 406 U.S. 925 (1972)). We have carefully
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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
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Mass. 500, 503 & n.3, 645 N.E.2d 1179 & n.3 (1995). However,
"evidence of a victim's threats of violence against a
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defendant" is admissible for showing a defendant acted in
self-defense. Commonwealth v. Fontes, 396 Mass. 733, 735,
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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.
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Dubois, 38 F.3d 1, 8 (1st Cir. 1994) (habeas petitioner
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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)),
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cert. denied, 115 S. Ct. 940 (1995). Moreover, since this
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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.
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1984).
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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.
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United States, 368 U.S. 487, 495 (1962) (in reviewing habeas
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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
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F.2d 1197, 1202 n.6 (1st Cir.), cert. denied, 488 U.S. 832
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(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
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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
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(1991).
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some factor external to his defense. See Murray v. Carrier,
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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
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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.
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