United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON RESPONDENT'S MOTION TO
DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.
a pro se petition for a writ of habeas corpus made
pursuant to 28 U.S.C. § 2254. Petitioner Sahr Josiah was
convicted in Middlesex County Superior Court on charges of
armed robbery, armed assault on a person over the age of
sixty, armed assault with intent to murder, unlicensed
possession of a firearm, assault and battery with a dangerous
weapon, and two counts of assault with a dangerous weapon. He
is serving a term of imprisonment of life for those crimes.
has moved to dismiss the petition for failure to exhaust
state remedies. For the following reasons, because this is a
so-called “mixed petition, ” the motion will be
granted unless, within 30 days of the date of this order,
petitioner files a request to dismiss the unexhausted claims
in his petition and proceed on the merits of the exhausted
facts of the crime relevant to this petition are described in
detail in Commonwealth v. Josiah, 2015 WL 5009735
(Mass. App. Ct. 2015). The following brief summary sets forth
the facts that are relevant to the present motion.
April 14, 2009, Sahr Josiah, along with two accomplices,
called a taxicab to be dispatched to an address in
Framingham, Massachusetts. Id. at *1. When the
taxicab arrived, Josiah and the accomplices robbed the driver
at gunpoint, and then fled on foot. Id.
officers, responding to the driver's emergency call,
arrived at the scene and began pursuing the assailants.
Id. Officer Philip Hurton chased Josiah down a dark
alley, yelling for him to stop. Id. Josiah reversed
direction, came back around a corner, and shot Hurton in the
face, seriously-although not fatally-injuring him.
shooting Hurton, Josiah continued to flee with police
officers in pursuit. Id. at *2. Josiah fired
multiple shots at the officers, breaking the windshield of a
police cruiser. Id.
that night, Josiah was captured. Id. Police returned
to the scene the following day and discovered Josiah's
Glock .40 caliber pistol, live ammunition hidden near the
site of his arrest, and empty .40 caliber cartridges in the
areas where Josiah shot Hurton and fired at the other
jury trial that followed in Middlesex County Superior Court,
the state produced a ballistics expert who testified that the
empty cartridges retrieved from the crime scene matched
cartridge casings test-fired from Josiah's gun.
February 3, 2012, Josiah was convicted of armed robbery,
armed assault on a person over the age of sixty, armed
assault with intent to murder, unlicensed possession of a
firearm, assault and battery with a dangerous weapon, and two
counts of assault with a dangerous weapon. Id. He
was sentenced to a term of imprisonment of life. Pet. at 2.
August, 25, 2015, the Massachusetts Appeals Court affirmed
the conviction. Commonwealth v. Josiah, 2015 WL
5009735, at 4. Thereafter, Josiah filed an application for
leave to obtain further appellate review
(“ALOFAR”) to the Supreme Judicial Court.
Commonwealth v. Josiah, 4 ...