United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS U.S. DISTRICT COURT JUDGE.
October 2009, a Middlesex County Superior Court jury found
Shawn Lessieur guilty of first degree murder and of unlawful
possession of a firearm in connection with the 1994 shooting
of Mark Jones in Lowell, Massachusetts. Lessieur was
sentenced to a prison term of life on the murder conviction,
and a concurrent term of four to five years on the unlawful
possession conviction. After the trial judge denied
Lessieur’s motion for a new trial, Lessiuer appealed
both his conviction and the order denying his motion for a
new trial. On July 27, 2015, the Massachusetts Supreme
Judicial Court affirmed Lessieur’s convictions.
Commonwealth v. Lessieur, 472 Mass. 317 (2015),
cert. denied, 136 S.Ct. 418 (2015).
filed a petition for habeas corpus with this Court on May 3,
2016. [ECF No. 1]. Simultaneous with the filing of his
petition, Lessieur filed a motion to stay the habeas
proceedings to allow him time to exhaust, in state court,
unexhausted claims not included in this petition. [ECF No.
4]. Lessieur’s petition contains seven grounds for
relief, which Lessieur claims have been exhausted in state
court. According to Lessieur, the Innocence Project of
Massachusetts recently accepted his case, and he anticipates
that they will raise meritorious claims in state court that
were not raised by his previous counsel. On June 13, 2016,
the Respondent filed an answer to the petition as well as an
opposition to Lessieur’s motion for a stay. [ECF Nos.
10-11]. Lessieur filed a reply on June 21, 2016. [ECF No.
Rhines v. Weber, 544 U.S. 269 (2005), the Supreme
Court approved the “stay-and-abeyance” procedure
for habeas cases. This procedure can be appropriate where
petitioners file “mixed” habeas petitions, that
is petitions that contain both exhausted and unexhausted
claims. Id. at 217. Because the one-year statute of
limitations on federal habeas petitions is not stayed during
the pendency of a petition, “petitioners who come to
federal court with ‘mixed’ petitions run the risk
of forever losing their opportunity for any federal review of
their unexhausted claims.” Id. at 275.
Accordingly, the stay-and-abeyance procedure “allows
petitioners to exhaust state remedies and then return to
federal court without running afoul of [the Antiterrorism and
Effective Death Penalty Act’s] statute of
limitations.” Roman v. Ryan, No. CIV.A.
12-30160-TSH, 2014 WL 5112112, at *2 (D. Mass. Oct. 10, 2014)
(citing Rhines, 544 U.S. at 275). If awarded a stay,
a petitioner can present his unexhausted claims in state
court, and then return to federal court for review of a fully
obtain a stay of a mixed petition “the petitioner must
show that there was ‘good cause’ for failing to
exhaust the state remedies, the claims are potentially
meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory tactics.”
Josselyn v. Dennehy, 475 F.3d 1, 4 (1st Cir. 2007)
(citing Rhines, 544 U.S. at 278). All three
factors-good cause excusing the petitioner’s failure to
exhaust his claims, unexhausted claims that are not plainly
meritless, and an absence of intentionally dilatory
litigation tactics-must be satisfied for a district court to
grant a stay. Rhines, 544 U.S. at 277-278.
Therefore, a petitioner’s inability to show good cause,
by itself, precludes a stay. See, e.g.,
Roman, 2014 WL 5112112, at *3 (“[T]he facts
cited by Petitioner are insufficient to make a showing of
good cause under Rhines. Therefore, a stay and
abeyance is not appropriate.”); Womack v.
Saba, No. CIV.A. 11-40138-FDS, 2012 WL 685888, at *4 (D.
Mass. Mar. 1, 2012) (“Because petitioner has not
established good cause for failing to exhaust his state-court
remedies with respect to some of his potential grounds for
seeking relief under 28 U.S.C. § 2254, a stay of this
proceeding under Rhines is not warranted.”);
Smith v. Att’y Gen. of Mass., No. CIV.A.
11-10362-NMG, 2012 WL 462964, at *5 (D. Mass. Jan. 10, 2012)
(“Here, Smith has not demonstrated good cause for his
failure to present his unexhausted claims to the state court,
and a stay is not appropriate.”).
requests that the Court stay this habeas proceeding so that
he can exhaust several new claims in state court and then, if
necessary, amend his habeas petition to include those claims.
Typically, petitioners invoke stay and abeyance where they
have filed a mixed petition consisting of exhausted and
unexhausted claims. Here, the petition, at least according to
Lessieur, contains only exhausted claims. Nonetheless, as
other courts have done in similar circumstances, the Court
will evaluate Lessieur’s motion to stay under the
Rhines framework. See Roman, 2014 WL
5112112, at *2 (treating habeas petition as mixed where
petitioner indicated in motion to stay that he intended to
amend the petition later to add an unexhausted claim);
Womack, 2012 WL 685888, at *2 (“[T]his case
does not present the kind of ‘mixed’ petition,
consisting of both exhausted and unexhausted claims, that is
more typical of habeas proceedings under Section 2254.
Consideration of petitioner’s motion is nonetheless
analogous to that of a mixed petition, because its obvious
purpose is to allow for the amendment of the petition to
include the currently unexhausted claims.”). Because
Lessieur has not made the requisite showing of good cause to
warrant a stay, his motion is denied.
blames his trial and appellate counsel for not exhausting all
of his claims in state court. Lessieur states that,
“[f]aced with ineffective assistance of trial and
appellate counsel, the Innocence Project of Massachusetts is
raising meritorious claims that both counsel failed to
investigate and to exhaust in the State Court
proceedings.” [ECF No. 4 at 3]. It is somewhat
unsettled whether ineffective assistance of counsel can ever
constitute good cause. Compare Womack, 2012 WL
685888, at *4 (“[A] claim of ineffective assistance of
counsel alone does not present good cause for a stay and
abeyance.”), and Aviles v. Dickhaut, No.
12-CV-40017-FDS, 2013 WL 1629189, at *4 (D. Mass. Apr. 10,
2013) (“Neither ineffective assistance of appellate
counsel, nor a litigant’s pro se status, will
support a finding of good cause in the habeas
context.”), with Blake v. Baker, 745 F.3d 977
(9th Cir. 2014) (applying Strickland test to motion
to stay and finding good cause for a stay where appellate
counsel failed to adequately investigate the facts underlying
a potential ground for appeal), and Ortiz v. Brady,
538 F.Supp.2d 361, 366 (D. Mass. 2008) (applying
Strickland test to determine if counsel’s
conduct constituted good cause warranting a stay). The First
Circuit has held that a decision by an attorney to omit
claims from a state appeal “cannot amount to good
cause, ” Clements v. Maloney, 485 F.3d 158,
170 (1st Cir. 2007), and that an attorney’s
“[i]gnorance of the law does not constitute good
cause.” Josselyn, 475 F.3d at 5.
Lessieur’s undeveloped arguments regarding his
ineffective counsel do not warrant granting a stay in any
event. Lessieur essentially argues that because his new
counsel intends to file claims in state court that were not
raised by his trial and appellate counsel, these prior
counsels must have been ineffective. Such conclusory
statements do not support a good cause finding. Lessieur has
not made a sufficient showing that this case presents the
“limited circumstances” in which a stay is
appropriate. Rhines, 544 U.S. at 277; see also
Knight v. Spencer, 447 F.3d 6, 17 (1st Cir. 2006)
(“When counsel focuses on some issues to the exclusion
of others, there is a strong presumption that he did so for
tactical reasons rather than through sheer neglect.”)
(quoting Yarborough v. Gentry, 540 U.S. 1, 8
(2003)). Furthermore, because several months remain before
the one-year habeas statute of limitations expires,
Lessieur’s new counsel still has an opportunity to
raise post-conviction challenges in state court, thereby
tolling the habeas statute of limitations. See 28
U.S.C. 2244(d)(2) (“The time during which a properly
filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending shall not be counted toward any period of
limitation under this subsection.”). Accordingly,
Lessieur’s interest in obtaining a stay is less
compelling than in the typical stay-and-abeyance case.
See Barkmeyer v. Wall, No. C.A. 09-430-S, 2010 WL
2650461, at *2 (D.R.I. June 30, 2010) (“[T]he instant
case differs from Rhines in one critical aspect,
thereby rendering stay and abeyance unnecessary here-namely,
that the limitations period in which Barkmeyer may file his
habeas claims has not yet expired.”); Greer v.
Minnesota, No. CIV.08-4745, 2008 WL 4659449, at *6 n.2
(D. Minn. Oct. 20, 2008) (“[W]e find that a stay would
be inappropriate in these circumstances, since the statute of
limitations has not yet expired.”).
reasons stated above, Lessieur’s motion to stay is
denied, with leave to renew. Lessieur’s current motion
does not establish good cause for granting a stay, and any
renewed motion would need to contain additional evidentiary
the Court has denied the motion to stay, Lessieur has two
options: (1) his petition can be dismissed without prejudice
and Lessieur can refile a petition after exhausting the
unexhausted claims in state court (assuming the statute of
limitations does not expire); or (2) he can proceed with his
current petition. Should Lessieur elect the second option, he
will prohibited from filing an additional habeas petition in
the future, unless the petition falls within one of the
narrow exceptions to the ban on successive habeas petitions.
28 U.S.C. § 2244(b)(2).
Lessieur wishes to have his petition dismissed without
prejudice, he should notify the Court. If he wants to pursue
his petition, his memorandum of law will be due by September
15, 2016 and the government’s response by November 15,