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Kasenge v. Ryan

United States District Court, D. Massachusetts

August 8, 2016

JESSE JAMES KASENGE, formerly known as JESSE KASENGE, Petitioner,
KELLY RYAN, Respondent.


          Indira Talwani United States District Judge.

         Jesse James Kasenge’s (“Kasenge” or “Petitioner”) pro se Petition for Writ of Habeas Corpus [#1] pursuant to 28 U.S.C. § 2254 asserts several bases for relief. Specifically, Petitioner alleges that 1) at trial a prosecution witness gave false testimony, and 2) there was legally insufficient evidence to sustain a conviction.[1] For the reasons that follow, Kasenge’s Petition for Writ of Habeas Corpus [#1] is DENIED.

         I. Procedural History

         On October 5, 2011, after a three-day jury trial, Petitioner was convicted of two counts of cocaine distribution (second offense) and one count of distribution within a school zone. Commonwealth v. Kasenge, 985 N.E.2d 412 (Mass. App. Ct. 2013). Petitioner was sentenced to five years and one day in state prison for cocaine distribution, followed by a consecutive two-year term in a house of correction for the school zone distribution charge.

         Petitioner appealed his conviction on thirteen separate grounds. The Massachusetts Appeals Court rejected those claims on the merits. Id. Petitioner filed an application for further appellate review, and the Supreme Judicial Court denied that request. Commonwealth v. Kasenge, 989 N.E.2d 899 (Mass. 2013).

         II. Facts as Presented at Trial

         On December 8, 2009, Arlington Police Detective Brian Connerney (“Det. Connerney”) and Waltham Police Detective Robert Afienko (“Det. Afienko”) were working on an assignment with the Suburban Middlesex County Drug Task Force (“Task Force”). Trial Transcript (“TR”) at Respt.’s Suppl. App. (“S.A.”) 285, 421 [#25]. Det. Afienko, who was the case officer responsible for overseeing the investigation, provided Det. Connerney with a phone number to call and arrange for a purchase of crack cocaine. TR 287-288, 290, 414 [#25]. The call was not answered when Det. Connerney placed the call, but Det. Connerney shortly thereafter received a call from that same number. TR 288 [#25]. Det. Connerney told the individual that he wanted to buy four bags of crack cocaine. TR 288, 290 [#25]. The individual directed Det. Connerney to meet him at Walgreen’s Pharmacy in Waltham. TR 288 [#25].

         In preparation for the assignment, Det. Afienko provided Det. Connerney with $200 from the police safe, and informed the Task Force that they were going to be meeting a target who drove a 2006 Black Dodge Charger. TR 423, 426 [#25]. Det. Connerney, with Det. Afienko following in a separate, unmarked car, drove to the Walgreen’s Pharmacy in Waltham. TR 428 [#25]. At approximately 6:51 p.m., Det. Connerney parked in a space adjacent to the Walgreen’s Pharmacy. TR 290 [#25]. There were roughly eight other detectives already stationed throughout the parking lot. TR 291 [#25]. As Det. Afienko entered the parking lot, he saw an individual exit a Dodge Charger and walk across the parking lot. TR 431-32 [#25]. The individual then entered the front passenger’s seat of Det. Connerney’s car and told Det. Connerney to “just drive.” TR 293-94, 438 [#25]. Det. Connerney drove approximately thirty to fifty feet, at which point Petitioner told him to stop. TR 294 [#25]. Det. Connerney then gave the individual two hundred dollars in exchange for four bags of crack cocaine. TR 294 [#25]. After the money and drugs were exchanged, the individual exited the vehicle and left the area. TR 295, 439 [#25]. Det. Connerney and Det. Afienko each left the parking lot and returned to the office. TR 440 [#25].

         On December 14, 2009, Det. Afienko, Det. Connerney and the Task Force resumed their investigation. TR 444 [#25]. At approximately 6:30 p.m., Det. Connerney called the same number he had called on December 8. TR 296-97 [#25]. Again, no one answered the phone, but a short time later an individual returned Det. Connerney’s phone call. TR 297 [#25]. Det. Connerney asked for four $50 bags of cocaine. TR 298 [#25]. The individual on the phone directed Det. Connerney to the Kentucky Fried Chicken in Waltham. TR 298 [#25]. Det. Connerney drove to Kentucky Fried Chicken in Waltham and parked in the parking lot next to a black Dodge Charger. TR 299-300 [#25]. Other detectives were already scattered throughout the area, including Det. Afienko who was in an adjacent parking lot. TR 300, 448 [#25]. Det. Connerney observed a male and female inside a Dodge Charger. TR 300 [#25]. The male exited the Dodge Charger, and entered the front passenger’s seat of Det. Connerney’s car. TR 301 [#25]. Det. Connerney then exchanged $100 for two bags of cocaine. TR 301 [#25]. Det. Connerney confirmed that the individual who entered his car on December 14 was the same person who entered his car on December 8. TR 302 [#25].

         On February 23, 2010, Det. Afienko secured an arrest warrant for Petitioner. TR 454 [#25]. Thereafter he instructed Det. Connerney to call the same number he had used on the two prior occasions. TR 304, 454 [#25]. Det. Connerney and the person who answered arranged to meet at a public housing area in Waltham. TR 305 [#25]. Petitioner arrived on foot at the loop at the end of a dead end road and entered the front passenger’s seat of Det. Connerney’s car. TR 306 [#25]. Det. Connerney began to drive, but approximately ten seconds later, members of the Task Force, including Det. Afienko, approached the car, and after a brief struggle placed Petitioner in handcuffs. TR 307-09 [#25].

         At trial Det. Connerney identified Petitioner as the person who entered his car and sold him the drugs on December 8 and December 14. TR 302 [#25].

         III. Analysis

         A. Exhaustion

         Petitioner argues in Count 1 that his Fourteenth Amendment right to due process was violated when a prosecution witness gave perjured testimony “at the hands of the state” and that soliciting false evidence that allows a misleading and false impression to go uncorrected violates due process. Pet’r’s Mem. Supp. of Appl. For Writ for Habeas Corpus (“Pet’r’s Mem. Supp.”) 1-2 [#41]. The Government argues, however, that Petitioner’s claim is not exhausted as required by the Antiterrorism and Effective Death Penalty Act (“AEDPA”), and that the entire case must therefore be dismissed.

         An application for a writ of habeas corpus will not be granted on behalf of a person in custody pursuant to the judgment of a state court “unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). Exhaustion requires that a petitioner present, or do his best to present, the substance of a federal habeas claim “fairly and recognizably” to the state’s highest tribunal before seeking habeas relief. Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir. 1997); see Clements v. Maloney, 485 F.3d 158, 162 (1st Cir. 2007). Total exhaustion is required, and petitions may not proceed with both exhausted and unexhausted claims. See 28 U.S.C. § 2254(b)(1)(A); Rhines v. Weber, 544 U.S. 269, 274 (2005) (stating that “total exhaustion” was still required after enactment of AEDPA).

         Petitioner does not dispute that exhaustion is required. He contends, however, that he met his exhaustion requirement by submitting Count I to the Supreme Judicial Court (“SJC”) in his application for further appellate review (“ALOFAR”). Pet’r’s Mem. Supp. Opp’n Respt.’s Mot. Dismiss 1 [#32] (“ALOFAR brief referred to due process (S.A. 00173) violation and provided a citation to state court decision that was explicitly and prominently relied on U.S. SUPREME COURT case (in Re. Winshrip; Jackson v. virginia [sic.]) that would have alerted the state court to the alleged federal nature of the claim.”).

         Raising a claim for the first time on discretionary review is insufficient for exhaustion purposes. See Castille v. Peoples, 489 U.S. 346, 351 (1989) (“The Court of Appeals below held, and respondent contends here, that the submission of a new claim to a State’s highest court on discretionary review constitutes a fair presentation. We disagree.”); Melton v. Russo, 322 F. App’x. 3 (1st Cir. 2009) (unpublished) (“A claim that appears for the first time on discretionary review before a state’s highest court does not satisfy the exhaustion requirement of § 2254(b)”); Collins v. Roden, No. 08-400217, 2010 WL 1172433, at * 3 (D. Mass. Feb. 22, 2010) (“Only if the federal issue was presented in the courts below the SJC can petitioner’s claim be considered exhausted.”). In Massachusetts, review of an ALOFAR petition is discretionary, and thus raising a claim for the first time in an ALOFAR is insufficient for exhaustion. See Mass. R. App. P. 27.1 (Rule for Further Appellate Review states that “[s]uch application shall be founded upon substantial reasons affecting the public interest or the interests of justice.”); Castille, 489 U.S. at 351 (raising a claim for the first time “in a procedural context in ...

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