United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON PETITION FOR WRIT OF HABEAS
DENNIS SAYLOR, IV UNITED STATES DISTRICT JUDGE.
a petition seeking a writ of habeas corpus pursuant to 28
U.S.C. § 2254(d). In October 1996, the body of Theresa
Stone was discovered by the side of a road in Fitchburg,
Massachusetts. Sixteen years later, on March 29, 2012,
petitioner Alex Scesny was convicted of murder and aggravated
rape in Massachusetts state court. He was sentenced to two
concurrent terms of life imprisonment without the possibility
of parole. On July 14, 2015, the Massachusetts Supreme
Judicial Court (“SJC”) affirmed the murder
conviction, although it reversed the rape conviction on the
ground that the evidence was insufficient to sustain the
asserts seven grounds for habeas relief: (1) constitutional
insufficiency of evidence; (2) improper admission of expert
testimony by an unqualified witness; (3) improper admission
of hearsay evidence in violation of the Sixth Amendment; (4)
improper admission of photograph and eyewitness testimony
occurring twelve years after the crime; (5) improper closing
arguments by the prosecutor that damaged his ability to
present a defense, misstated the law, and violated his
constitutional rights; (6) improper refusal to give his
proposed jury instruction on third-party culprit evidence;
and (7) the totality of the errors resulted in insufficient
evidence to support his conviction. Respondent's
subsequent filings, and this Court's preliminary rulings,
have treated grounds (1) and (7) as the same issue, and they
will continue to be treated as such here.
reasons set forth below, the petition will be denied.
facts of the crimes for which petitioner was convicted are
set out in detail in the decision by the SJC. See
Commonwealth v. Scesny, 472 Mass. 185 (2015). Briefly,
they are as follows:
The victim's daughter saw her leave home to buy groceries
on the evening of October 23, 1996. Id. at 187. She
stopped off at a bar for some drinks and talked for about an
hour with the bartender before leaving alone. Id.
When she returned to her apartment with groceries, she told
her daughter that she had received a ride from a man in a
black truck and that she did not want to go with him, but he
was waiting for her. Id. Between 9:30 and 10:30 p.m.
she left her apartment. She was never seen by her daughter
again. Id. On October 25, 1996, her body was
discovered on the side of the road in Fitchburg. A
post-mortem examination revealed, among other things, that
she had been strangled and that she had had anal intercourse
around the time of death. Id. at 187-88.
crime remained unsolved for twelve years. In 2008, the
petitioner's DNA profile was entered into a database and
found to match swabs taken from the victim's body.
Id. at 188. Petitioner was indicted, and the case
was brought to trial in March 2012.
trial, the prosecution presented evidence that suggested the
victim died during, or shortly after, intercourse.
Id. at 192. Petitioner conceded that he had had
intercourse with the victim, but maintained that it was
consensual and unrelated to the murder. Id. at 190.
McKillop, a criminalist employed by the State Police crime
laboratory, testified that after seminal fluid is deposited
in an orifice and a piece of cloth is placed over that
orifice, the fluid often drains and is transferred onto, or
absorbed by, the cloth. Id. at 189 n.10. Because
investigators found seminal fluid inside the victim's
rectum, but did not find any on her underwear, that evidence
suggested that the victim did not pull her pants and
underwear back up after the semen was deposited in her
rectum. Id. at 189. That evidence indicated that the
petitioner had intercourse with victim just before her death,
and that he was likely the person who strangled her.
Id. at 192.
jury convicted petitioner of first-degree murder and
aggravated rape on March 29, 2012. Id. at 191.
was sentenced to two terms of life imprisonment without the
possibility of parole, for aggravated rape and first-degree
murder, to be served concurrently. He filed a timely appeal
with SJC. See Mass. Gen. Laws ch. 278, § 33E.
On July 14, 2015, the SJC affirmed the murder conviction but
reversed the rape conviction on the grounds of insufficiency
of the evidence. Scesny, 472 Mass. at 207.
then timely filed this petition for a writ of habeas corpus
on March 1, 2016. He simultaneously filed a motion asking the
Court to stay the petition pursuant to Rose v.
Lundy, 455 U.S. 509 (1982), so that he could return to
state court and exhaust certain unexhausted claims. The Court
denied that petition on August 4, 2016, on the ground that
petitioner had not shown good cause for his failure to
exhaust his state claims.
November 17, 2017, petitioner filed a second motion to stay,
this time alleging “recently recognized”
Brady violations and the contemplation of further
post-conviction proceedings with the state court. On December
19, 2017, the Court denied the second motion to stay, again
finding a failure to show good cause why the claims had not
been exhausted, and further finding that petitioner had
failed to make a showing that (1) his new claim was
meritorious and (2) that the statute of limitations
established by 28 U.S.C. § 2244(d)(1) would allow
amendment of the petition.
Standard of Review
Exhaustion and Procedural Default
the Court can evaluate the likelihood of success on the
merits of a constitutional claim, it must evaluate whether
the claim was fairly presented to and exhausted in the state
courts. 28 U.S.C. § 2254(b)(1)(A). “This
exhaustion requirement, which codified preexisting law, 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. at 515). The petitioner bears a
“heavy burden” to show that he “fairly and
recognizably presented to the state courts the factual and
legal bases of [his] federal claim.” Id.
(alteration in original) (quoting Adelson v.
DiPaola, 131 F.3d 259 (1st Cir. 1997)).
addition, “federal habeas review is precluded, as a
general proposition, when a state court has reached its
decision on the basis of an adequate and independent
state-law ground.” Burks v. DuBois, 55 F.3d
712, 716 (1st Cir. 1995) (citing Coleman v.
Thompson,501 U.S. 722, 729 (1991)); see also
Lambrix v. Singletary, 520 U.S. 518, 522-23 (1997). This
rule extends to situations in which “a state court
declined to address a prisoner's federal claims because
the prisoner had failed to meet a state procedural
requirement.” Coleman, 501 U.S. at 729-30. A
state procedural rule is “adequate” if it is
regularly or consistently applied by the state courts.
Johnson v. Mississippi, 486 U.S. 578, 587 (1988)
(quoting Hathorn v. Lovorn,457 U.S. 255, 262-263
(1982)). The rule is “independent” if it does not
depend on a federal constitutional ruling. Foster v.