United States District Court, D. Massachusetts
JESSE JAMES KASENGE, formerly known as JESSE KASENGE, Petitioner,
KELLY RYAN, Respondent.
MEMORANDUM AND ORDER
Talwani United States District Judge.
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. For the reasons that follow,
Kasenge’s Petition for Writ of Habeas Corpus
[#1] is DENIED.
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.
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).
Facts as Presented at Trial
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].
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].
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].
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].
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].
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.
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
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.”).
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