United States District Court, D. Massachusetts
ORDER DENYING MOTION TO STAY
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
Kyle Watkins filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 on May 16, 2016. [ECF No.
1]. He was convicted of first-degree murder and unlawful
possession of a firearm by the Bedford Superior Court in
2005. He filed a motion for a new trial in that court in
2011, which was denied in 2013. His conviction was affirmed
by the Supreme Judicial Court on November 24, 2015. His
petition to this Court sets forth seven grounds for relief,
including failure to disclose exculpatory evidence,
prosecutorial misconduct, conflicts of interest, fraud on the
court, errors by defense counsel, and insufficient evidence.
In July 2016, Petitioner filed a motion to stay this case
[ECF No. 11] in order to address an unexhausted issue in
state court. The Court denied that motion with leave to renew
[ECF No. 13] because the motion did not address the legal
requirements necessary to obtain a stay. Now before the Court
is Petitioner's second motion to stay. [ECF No. 14].
Respondent opposes the motion. [ECF No. 18]. For the reasons
given below, the motion is denied.
habeas corpus petition contains some claims that have been
exhausted before the state court, but other claims that have
not, it is known as a “mixed” petition.
Josselyn v. Dennehy, 475 F.3d 1, 2 (1st Cir.
2007). Ordinarily, a federal court cannot
adjudicate a mixed petition, so the solution is to dismiss
the petition without prejudice, allowing the petitioner to
return to state court to exhaust the remainder of his claims.
Rhines v. Weber, 544 U.S. 269, 274 (2005). Such a
dismissal could prevent some petitioners from ever bringing
their claims to federal court, however, so district courts
are empowered to issue a stay in certain cases. Id.
at 274-76. This power must be used sparingly because it has
the potential to undermine the purposes of the Antiterrorism
and Effective Death Penalty Act of 1996. Id. at 277.
Thus, “to 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, 475 F.3d at 4 (citing Rhines at
case, Petitioner has failed to prove that his claims are
potentially meritorious. The unexhausted claims advanced by
Petitioner hinge on the Supreme Judicial Court's recent
decision in Commonwealth v. Gomes, 22 N.E.3d 897
(Mass. 2015). That decision determined that certain
principles concerning eyewitness identification are so
“generally accepted” within the scientific
community that they will be included in a revised model jury
instruction on the issue. Id. at 909-11. Petitioner
argues that the testimony of an eyewitness identification
expert would have made a difference in his case, and he
intends to move for a new trial in state court on this basis.
As the Commonwealth points out, however, the court in
Gomes explicitly declined to give the new
instruction retroactive effect, and in fact, even the
defendant in that case did not receive the benefit of the new
instruction. Id. at 904-905, 917.
points to a subsequent decision by the Worcester Superior
Court in Commonwealth v. Cosenza, which allowed a
motion for a new trial on the basis of “newly available
evidence” concerning the science of eyewitness
identification that became judicially accepted, as reflected
in Gomes, after the defendant's 2002 trial. [ECF
No. 14-1]. The defendant in Cosenza, however, had
attempted to introduce expert testimony on the science of
eyewitness identification at trial, which the judge did not
permit. Id. at 6. The same principles about which
the defendant's expert intended to testify were later
discussed in the report by the Supreme Judicial Court's
study group on eyewitness identification, id. at 8,
which was cited extensively in Gomes, 22 N.E.3d at
905, 909-16. Unlike the defendant in Cosenza,
Petitioner has not alleged that he made any effort to
introduce testimony concerning the science of eyewitness
identification at his trial. Nor has Petitioner pointed to
anything else in his case that would justify departing from
the statement in Gomes that the decision is not
retroactive. Thus, the Court cannot conclude that he is
likely to prevail on this basis.
Petitioner's second motion to stay [ECF No. 14] is
 Technically, the petition here is not
“mixed, ” because Petitioner did not include the
unexhausted claims in his petition. Both of his motions to
stay have invoked the stay procedure for mixed petitions,
however, and his second motion discusses relation back under
Federal Rule of Civil Procedure 15, which indicates that he
may intend to amend the petition to add the claims.
 In addition, as the Commonwealth
correctly points out, 28 U.S.C. § 2244(d)(2) tolls the
statute of limitations “during [the time] which a
properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or
claim is pending.” Petitioner had until February 22,
2017 (one year plus 90 days after judgment of the Supreme
Judicial Court) to file his habeas petition, but because he
recently filed a new trial motion in the state court, as he
informed this Court on December 8 [ECF No. 19], this will
toll the statute of limitations. 28 U.S.C. §
2244(d)(1)(A); U.S. Sup. Ct. R. 13.1 ...