United States District Court, D. Massachusetts
Daniel Rosa, Petitioner: Stewart T. Graham, Jr., LEAD
ATTORNEY, Graham & Graham, Hampden, MA USA.
Bruce Gelb Superintendent Souza Baranowski Correctional
Center, Respondent: Jennifer K. Zalnasky, LEAD ATTORNEY,
Office of the Attorney General, Springfield, MA USA.
D. BURROUGHS, UNITED STATES DISTRICT JUDGE.
2, 2012, Daniel Rosa was convicted of first degree murder on
a theory of deliberate premeditation, and possession of a
firearm without a license. The convictions arose from a 2011
shooting in Springfield, Massachusetts involving Rosa and two
alleged coventurers. In May 2014, the Massachusetts Supreme
Judicial Court (" SJC" ) affirmed Rosa's
convictions, and on April 22, 2015, Rosa filed a petition for
a writ of habeas corpus with this Court, pursuant to 28
U.S.C. § 2254(d).
petition, Rosa contends that habeas relief should be granted
because: (1) the SJC decision affirming his convictions
violated due process by retroactively applying a substantive
change in the law (Ground One); (2) the monitoring,
recording, and use at trial of his phone calls from jail
violated his rights under the 1st, 4th, and 14th Amendments
to the U.S. Constitution (Ground Two); and (3) the jury
instructions at trial violated due process by failing to
require unanimity as to whether the murder verdict was based
on principal or accomplice liability (Ground Three). [ECF No.
before the Court is Respondent's Motion to Dismiss for
Failure to Exhaust State Remedies. [ECF No. 17]. The
Respondent claims that Rosa did not raise the first ground
for relief in state court, and therefore, his entire petition
should be dismissed for failure to exhaust state remedies.
For the reasons stated herein, the Court agrees that Rosa did
not exhaust Ground One in state court. Rosa must voluntarily
dismiss Ground One by January 15, 2016, or the Court will
dismiss Rosa's entire petition without prejudice.
federal court cannot grant habeas relief to a state prisoner
unless the prisoner has first exhausted his federal
constitutional claims in state court. 28 U.S.C. §
2254(b)(1)(A). " [T]he state prisoner must give the
state courts an opportunity to act on his claims before he
presents those claims to a federal court in a habeas
petition." O'Sullivan v. Boerckel, 526 U.S.
838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). A claim for
habeas relief is exhausted if it has been " fairly and
recognizably" presented in state court. Sanchez v.
Roden, 753 F.3d 279, 294 (1st Cir. 2014) (quoting
Casella v. Clemons, 207 F.3d 18, 20 (1st Cir.
2000)). In other words, " a petitioner must have
tendered his federal claim [in state court] in such a way as
to make it probable that a reasonable jurist would have been
alerted to the existence of the federal question."
Id. (quotations and citations omitted).
habeas petition contains both unexhausted and exhausted
claims, it must be dismissed. Rose v. Lundy, 455
U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). When a
petitioner submits such a " mixed" petition,
district courts have been instructed to first give the
petitioner an opportunity to dismiss the unexhausted claims
and then, if the petitioner declines to do so, to dismiss the
entire petition without prejudice. DeLong v.
Dickhaut, 715 F.3d 382, 386-387 (1st Cir. 2013).
Alternatively, under limited circumstances, the Court may
stay the petition and allow the petitioner to exhaust his
previously unexhausted claims in state court. Rhines v.
Weber, 544 U.S. 269, 278, 125 S.Ct. 1528, 161 L.Ed.2d
440 (2005). To be granted such a stay, a petitioner must show
that there is good cause excusing his failure to exhaust his
claims, that the unexhausted claims are not meritless, and
that he is not engaging in intentionally dilatory litigation
tactics. Clements v. Maloney, 485 F.3d 158, 169 (1st
Cir. 2007) (citing Rhines, 544 U.S. at 277). A
petitioner's inability to show any one of these three
factors precludes the court from granting a stay.
January 26, 2011, David Acevedo was killed by a single
gunshot wound to the back. Petitioner Rosa was subsequently
convicted of murder with deliberate premeditation in
connection with Acevedo's death. At trial, the
Commonwealth proceeded against Rosa on the alternative
theories of principal and joint venture liability, alleging
that Rosa and two acquaintances were involved with the
close of the Commonwealth's case, Rosa moved for a
required finding of not guilty. He argued that there was not
sufficient evidence to show that Rosa knew either of the two
coventurers were armed, which, according to Rosa, was a
required finding under the Commonwealth's joint venture
theory. [ECF No. 19 (" Addendum" ) at
94-95]. The Commonwealth countered that it did
not need to prove that Rosa knew that either of the
coventurers was armed. According to the Commonwealth, such
proof is necessary only where the use or possession of a
weapon is an element of the underlying crime, which was not
the case here. Id. at 107-108.
trial court ruled in favor of the Commonwealth and denied
Rosa's motion. Id. at 111. The subsequent jury
instructions on joint venture did not require the jury to
find that Rosa knew that either of the other coventurers was
armed. The jury was instructed that to find Rosa guilty on a
joint venture theory, there must be proof beyond a reasonable
doubt that Rosa (1) intentionally participated in some
fashion in committing the crime, and (2) had or shared the
intent required to commit the crime. Id. at 117.
state court appeal, Rosa argued, among other things, that his
motion for a required finding of not guilty should have been
granted and that the jury should not, therefore, have been
instructed on joint venture liability at all. Addendum at
23-81. Citing various SJC cases, Rosa argued that under a
theory of joint venture premeditated murder, the Commonwealth