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Rosa v. Gelb

United States District Court, D. Massachusetts

December 24, 2015

DANIEL ROSA, Petitioner,
v.
BRUCE GELB, Respondent

          For Daniel Rosa, Petitioner: Stewart T. Graham, Jr., LEAD ATTORNEY, Graham & Graham, Hampden, MA USA.

         For Bruce Gelb Superintendent Souza Baranowski Correctional Center, Respondent: Jennifer K. Zalnasky, LEAD ATTORNEY, Office of the Attorney General, Springfield, MA USA.

         MEMORANDUM AND ORDER

         ALLISON D. BURROUGHS, UNITED STATES DISTRICT JUDGE.

         On July 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).

         In his 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. 1].

         Presently 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.

         I. LEGAL STANDARD

         A 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).

         Where a 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. Id.

         II. DISCUSSION

         On 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 shooting.

         At 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].[1] 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.

         The 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.

         In his 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 ...


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