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Perry v. Gelb

United States District Court, D. Massachusetts

July 25, 2014

RICO PERRY, Petitioner,
v.
BRUCE GELB, Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION

GEORGE A. O'TOOLE, Jr., District Judge.

The magistrate judge to whom this matter was referred has recommended that the respondent's motion to dismiss be allowed in part and denied in part. Neither party has filed an objection to the Report and Recommendation. Having reviewed the relevant pleadings and submissions, I fully concur with the magistrate judge's recommendations and ADOPT those recommendations for the reasons expressed in the Report and Recommendation.

Accordingly, the respondent's Motion to Dismiss (dkt. no. 28) is GRANTED in part and DENIED in part. Mr. Perry's petition is deemed mixed, and claims 3, 5, and 6 are deemed unexhausted.

The petitioner has moved to voluntarily dismiss claims 3, 5, and 6 from his habeas petition. This motion (dkt. no. 38) is GRANTED. The respondent shall file a brief addressing the merits of the petitioner's remaining claims within 35 days of the entry of this Order. If the petitioner wishes to file a reply brief, it shall be limited to five pages in length and shall be submitted within 35 days of the filing of the respondent's brief.

It is SO ORDERED.

REPORT AND RECOMMENDATION ON RESPONDENT'S MOTION TO DISMISS (DOC. NO. 28) AND ORDER ON PETITIONER'S MOTION FOR LEAVE TO ADD EXHIBIT (DOC. NO. 34)

Petitioner Rico Perry, an inmate at the Souza Baranowski Correctional Center in Shirley, Massachusetts, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. The respondent has moved to dismiss the petition, arguing it presents two claims that Perry has not exhausted in state court. Doc. Nos. 28, 29.[1] Because the respondent is correct as to one of Perry's claims, and because two other claims also appear to be unexhausted, I recommend the motion be ALLOWED in part and DENIED in part, unless Perry elects to delete the unexhausted claims from his petition.

I. BACKGROUND

In February 2009, following a bench trial in Norfolk Superior Court, Perry was convicted of armed assault with intent to murder and other charges stemming from a theft from an electronics store in Boston, followed by a lengthy, high-speed car chase. Doc. No. 11 at 2-6; Doc. No. 29 at 2, 6-8. Perry was sentenced to consecutive terms of eight-to-ten years and one-to-two years imprisonment. Doc. No. 10 at 1. In his direct appeal, Perry challenged the sufficiency of evidence supporting his convictions. See Doc. No. 25 at 126-36.[2] The Massachusetts Appeals Court ("MAC") affirmed, and the Supreme Judicial Court ("SJC") denied review on April 27, 2011. See id. at 123-25.

Perry filed a pro se motion for a new trial on July 25, 2011, presenting the following claims: 1) insufficiency of evidence regarding the gun's barrel length (relevant to a firearms violation); 2) prosecutorial misconduct for misstating evidence and improperly vouching for a witness's credibility; 3) prosecutorial misconduct for using perjured testimony and withholding an exculpatory police report; 4) impairment of the grand jury process due to false testimony offered in support of certain charges; 5) ineffectiveness of trial counsel for coercing Perry to reject a guilty plea deal; 6) ineffectiveness of trial counsel for failure to investigate and present a defense witness; and 7) ineffectiveness of trial counsel for coercing Perry to waive his right to a jury trial. Id. at 316-44. Perry also asserted ineffectiveness of appellate counsel for failure to raise several of these claims on direct appeal. Id . The trial court promptly denied Perry's motion, and his timely appeal was stayed to permit the filing of an amended motion for a new trial. Doc. No. 10-1 at 1; Doc. No. 33 at 6.

On March 1, 2012, acting through counsel, Perry filed an amended motion in the trial court raising three claims: 1) ineffectiveness of trial counsel for advising Perry to reject a pretrial guilty plea offer; 2) ineffectiveness of trial counsel for advising Perry to proceed to a bench trial before the same judge who presided over a suppression hearing regarding damaging evidence that was excluded at trial by agreement of the parties; and 3) insufficiency of evidence regarding the gun's barrel length. Doc. No. 25 at 259-66. The trial court again denied Perry's request for relief, and Perry timely appealed. Doc. No. 10-1 at 1.

In his counseled brief filed with the MAC, Perry reiterated the three issues presented in his amended motion for a new trial and also pressed the following four claims: 1) ineffectiveness of trial counsel for failure to investigate and present a defense witness at trial; 2) abuse of discretion by the trial judge for failure to hold a hearing on Perry's motion for a new trial; 3) ineffectiveness of appellate counsel for failure to challenge certain counts in Perry's indictment based on false grand jury testimony; and 4) prosecutorial misconduct for offering false testimony at trial and withholding an exculpatory police report. Doc. No. 25 at 167-89. According to Perry, he also filed a pro se brief pursuant to Commonwealth v. Moffett , 418 N.E.2d 585 (Mass. 1981), which was docketed with the MAC and raised an additional prosecutorial misconduct claim stemming from alleged improprieties in the prosecutor's closing argument. Doc. No. 33 at 1-2; see id. at 7 (reflecting the filing of Perry's supplemental pro se brief).[3]

The MAC reversed Perry's firearms conviction, accepting his argument that the Commonwealth had not established barrel length as required, but rejected his remaining assertions and affirmed his conviction and sentence in all other respects. Doc. No. 10-1.

Perry sought review in the SJC, where his counseled application for leave to obtain further appellate review ("ALOFAR") raised only these issues: 1) ineffectiveness of trial counsel for advising Perry not to plead guilty and not to invoke his right to a jury trial; 2) error by the MAC in not setting aside Perry's armed assault conviction on the same basis that it reversed his firearms conviction; and 3) ineffectiveness of appellate counsel for not challenging portions of the indictment that were based on false grand jury testimony. Doc. No. 25 at 453-79. The SJC's docket does not reflect any ...


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