United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION REGARDING PETITION FOR WRIT
OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 (Dkt. No.
L. CABELL, U.S.M.J.
10, 2011, a jury in the Massachusetts Superior Court for
Middlesex County convicted petitioner Brian Racine
(“Racine”) of indecent assault and battery on a
child under the age of 14. On June 16, 2011, Racine was also
convicted following a bench trial of being a subsequent
offender. Racine was sentenced to a term of 15 to 25 years in
state prison and is currently serving that sentence. Pending
before the court is his petition for habeas corpus pursuant
to 28 U.S.C. § 2254. The government argues that the
court should dismiss the petition because Racine has failed
to exhaust his state court remedies with respect to four of
the five grounds he advances in the petition. For the reasons
detailed below, the Court agrees that the petitioner has
failed to exhaust his state court remedies but does not agree
that dismissal is warranted. Rather, the Court recommends to
the District Judge to whom this case is assigned that the
petitioner be given 30 days from the District Judge's
ruling to drop his unexhausted claims. If he fails to do so,
the petition should be dismissed.
exhaustion of remedies requirement, 28 U.S.C. § 2254(b),
provides that state prisoners must exhaust their available
state court remedies before seeking a federal writ of habeas
corpus, thereby “giving the State the opportunity to
pass on and correct alleged violations of its prisoners'
federal rights.” Baldwin v. Reese, 541 U.S.
27, 29 (2004) (internal quotation marks omitted). A habeas
petitioner bears the “heavy burden” of
demonstrating compliance with the exhaustion requirement.
Barresi v. Maloney, 296 F.3d 48, 51 (1st Cir. 2002).
order to provide state courts with that necessary
opportunity, a petitioner must “fairly present”
his claim in each appropriate state court (including a state
supreme court with powers of discretionary review), thereby
alerting that court to the federal nature of the claim.
Baldwin, 541 U.S. at 29. Although a petitioner need
not present his federal claims in precisely the same terms in
both the state and federal courts, he must tender his federal
claim to the state's highest court “in such a way
as to make it probable that a reasonable jurist would have
been alerted to the existence of the federal question.”
Barresi, 296 F.3d at 51 (internal quotation marks
omitted). He also must present to the state court both the
factual and legal underpinnings of his claim, Nadworny v.
Fair, 872 F.2d 1093, 1096 (1st Cir. 1989), and must
“do more than scatter some makeshift needles in the
haystack of the state court record.” Martens v.
Shannon, 836 F.2d 715, 717 (1st Cir. 1988).
appealed his conviction, which the Supreme Judicial Court
(SJC) subsequently affirmed. See Commonwealth v.
Racine, 470 Mass. 1107, 26 N.E. 3d 747 (Table) (January
30, 2015). The petitioner must, however, do more than appeal
in order to exhaust his remedies; he must have “fairly
presented” to the SJC the issues he now seeks to raise
before this Court in order for it to entertain them on their
habeas petition advances five grounds for relief. Racine
argues that: (1) the trial court erred when it admitted
testimony of the defendant's demeanor during police
questioning; (2) the trial court improperly limited
impeachment evidence regarding a prosecution witness; (3) the
prosecution tainted the victim's testimony by improperly
soliciting promises from the victim on how the victim would
answer questions; (4) the court improperly amended the
indictment after the close of evidence when it changed the
phrase “On diverse dates…” to “On a
date between…”; and (5) he is actually innocent
of the charged offenses.
government acknowledges that Racine presented the argument
raised in Ground Four to the SJC, but contends that he did
not raise the arguments set forth in Grounds One, Two, Three
and Five of the petition. After reviewing the
petitioner's brief to the SJC, the Court agrees that the
petitioner sought appellate review on just one issue, the
claim set forth in Ground Four:
Whether the Appeals Court erred by concluding that amendment
of the indictment, after the close of evidence and over
objection, was not error which prejudiced the defendant in
the presentation of his alibi defense because the amendment
reduced the number of alleged assaults from multiple
incidents to a single assault.
(S.A. 00144). Accordingly, the claims raised in Grounds One,
Two, Three and Five were not presented to the SJC and thus
have not been exhausted.
Court is thus faced with a “mixed petition” for
habeas corpus, that is, a petition with both exhausted and
unexhausted claims. The government contends that the petition
should be dismissed in its entirety. See Rose v.
Lundy, 455 U.S. 509, 515 (1982). In the Court's
view, however, the remedy suggested by the government is
unwarranted in this case. A federal court confronted with a
habeas petition that contain both exhausted and unexhausted
claims may (1) dismiss the petition in its entirety, (2)
allow the petitioner to dismiss the unexhausted claims and
proceed with the exhausted claims, (3) stay the petition
until the petitioner returns to state court to exhaust his
previously unexhausted claims, or (4) deny the petition on
the merits if none of the petitioner's claims has any
merit. Rhines v. Weber, 544 U.S. 269, 278; 28 U.S.C.
should not dismiss a petition in its entirety if doing so
would “unreasonably impair the petitioner's right
to obtain federal relief, ” Rhines, 544 U.S.
at 278, and since the enactment of the Antiterrorism and
Effective Death Penalty Act, which put a one-year statute of
limitations on habeas petitions, courts have recognized that
dismissing a petition in its entirety often has the effect of
foreclosing a petitioner's right to federal habeas review
because it is unlikely that the petitioner will be able to
exhaust his state court remedies and re-file before the
limitations period expires. Id. at 275.
case, it appears that the limitations period has already run
and, therefore, if the petition were to be dismissed in its
entirety, the petitioner would have no further opportunity
for federal review. With respect to the third option, a court
may stay the action only when the petitioner has good cause
for his failure to exhaust his claims in state court and when
his unexhausted claims are not plainly meritless. Santana
v. Ryan, No. 14-cv-14097-ADB, 2015 U.S. Dist. LEXIS
99672 at *13 (D. Mass. July 30, 2015). Because nothing in the
record suggests that Racine had good cause for failing to
exhaust his claims below, there is no basis to stay the
action in order to afford the petitioner a chance to exhaust
those claims. And with respect to the fourth option, it is
not appropriate in the Court's view ...