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Dorisca v. Marchilli

United States District Court, D. Massachusetts

July 18, 2017

JOSENER DORISCA, Petitioner,
v.
RAYMOND MARCHILLI, Respondent.

          MEMORANDUM AND ORDER ON MOTION TO DISMISS THE PETITION FOR A WRIT OF HABEAS CORPUS

          F. Dennis Saylor IV United States District Judge

         This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner Josener Dorisca is an inmate at the Massachusetts Correctional Institution at Shirley (“MCI-Shirley”). Petitioner was convicted of second-degree murder and sentenced to life in state prison with the opportunity of parole after fifteen years. He now seeks habeas relief pursuant to 28 U.S.C. § 2254.

         Respondent Raymond Marchilli has moved to dismiss the petition, contending that petitioner failed to exhaust his available state remedies as to one of the three claims contained in the petition. For the reasons set forth below, petitioner will be required either to dismiss the unexhausted claim without prejudice and proceed on the merits of the exhausted claim, or to accept dismissal of the entire petition.

         I. Background

         On June 8, 2008, Josener Dorisca attended a cookout on Turner Street in Brockton, Massachusetts. Joanne Jean-Pierre, who was not in attendance, had two children with Dorisca, but at the time of the incident was romantically involved with Bensney Toussaint. A physical altercation between Dorisca and Toussaint occurred outside of the cookout, which multiple witnesses testified Toussaint provoked. At some point during the altercation, Toussaint was shot multiple times in the face and chest. Toussaint was pronounced dead upon arrival at the hospital. Shortly thereafter, Dorisca left Massachusetts for Florida, where he remained for two and a half years. He was arrested on unrelated charges in Florida, and the outstanding warrant for his arrest in Massachusetts was discovered.

         Dorisca was charged with first-degree murder. Following a jury trial in the Plymouth County Superior Court, he was convicted of second-degree murder and sentenced to life with the opportunity of parole after fifteen years. Dorisca appealed to the Massachusetts Appeals Court, which affirmed the conviction on December 23, 2015. See Commonwealth v. Dorisca, 88 Mass.App.Ct. 776 (2015). On January 21, 2016, Dorisca filed an Application for Leave to Obtain Further Appellate Review (“ALOFAR”) with the Supreme Judicial Court of Massachusetts, which was denied on March 3, 2016.

         On March 7, 2017, Dorisca filed a petition for a writ of habeas corpus relief pursuant to 28 U.S.C. § 2254. He asserts three grounds for relief in his petition:

(1) violation of the right to confrontation by the admission of deposition testimony of a medical examiner without an adequate showing that she was unavailable to testify at trial;
(2) violation of due process by denying petitioner's motion for a mistrial in response to misstatements of evidence made during closing arguments; and
(3) violation of due process by allowing the admission of repetitious testimony concerning an investigation over objection. On May 25, 2017, respondent filed a motion to dismiss the petition on the basis that Dorisca failed to exhaust his state-court remedies.

         II. Analysis

         A. Exhaustion Requirement

         Before a court can evaluate the merits of a petitioner's constitutional claims, it must evaluate whether the claims were fairly presented to and exhausted in state court. 28 U.S.C. § 2254(b)(1)(A). “This exhaustion requirement . . . is born of the principle ‘that as a matter of comity, federal courts should not consider a claim in a habeas corpus petition until after the state courts have had an opportunity to act.'” Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011) (quoting Rose v. Lundy, 455 U.S. 509, 515 (1982)).

         In order to satisfy the exhaustion requirement, a petitioner must present both the factual and legal bases of his federal claim “fairly and recognizably” to the state courts. Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir. 1997). “To carry this burden, the petitioner must demonstrate that he tendered each claim ‘in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question.'” Id. (quoting Scarpa v. Dubois, 38 F.3d 1, 6 (1st Cir. 1994)). “The ground ...


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