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Josiah v. Rodrigues

United States District Court, D. Massachusetts

March 27, 2017

SAHR JOSIAH, Petitioner,
v.
MICHAEL RODRIGUES, Respondent.

          MEMORANDUM AND ORDER ON RESPONDENT'S MOTION TO DISMISS

          F. DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.

         This is 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.

         Respondent 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 claims.

         I. Background

         A. Factual Background

         The 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.

         On 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.

         Police 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. Id.

         After 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.

         Later 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 officers. Id.

         At the 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. Id.

         On 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.

         B. Procedural Background

         On 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 ...


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