United States District Court, D. Massachusetts
Dana Dudley, Petitioner, Pro se, Shirley, MA.
For Superintendent Kelly Ryan, Respondent: Eva M. Badway, LEAD ATTORNEY, Attorney General's Office, Boston, MA.
ORDER ON REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
Richard G. Stearns, UNITED STATES DISTRICT JUDGE.
I agree with Magistrate Judge Kelley's Report and her conclusion that the state trial court's refusal to give an instruction on larceny from the person as a lesser included offense of unarmed robbery did not violate petitioner's due process rights (or any other right guaranteed by Federal law). See Niziolek v. Ashe, 694 F.2d 282, 290 (1st Cir. 1982). Given the presentation of the facts at trial, the judge offered the only two options on which a rational jury could have made a finding of guilt -- armed robbery or, as it found, unarmed robbery. The Recommendation of the Magistrate Judge is ADOPTED and the petition is DISMISSED with prejudice. The Clerk will enter judgment for the Respondent and close the case.
REPORT AND RECOMMENDATION ON PETITION UNDER 28 U.S.C. § 2254 FOR A WRIT OF HABEAS CORPUS (#1)
M. Page Kelley, United States Magistrate Judge.
Dana Dudley petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Dudley
was charged with armed robbery in violation of M.G.L. c. 265, § 15A (b). On September 23, 2011, a jury convicted Dudley of the lesser offense of unarmed robbery (M.G.L. c. 265, § 19(b)) and assault and battery. The petitioner was sentenced to a term of ten to twelve years, to be followed by three years of probation.
After his conviction, the petitioner appealed to the Massachusetts Court of Appeals. The Court of Appeals affirmed the petitioner's conviction. Commonwealth v. Dudley, 83 Mass.App.Ct. 1125, 985 N.E.2d 874 (Mass.App. Ct. 2013). The petitioner's application for further appellate review to the Massachusetts Supreme Judicial Court was denied on June 6, 2013. Commonwealth v. Dudley, 465 Mass. 1106, 989 ...