United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON THE PETITION FOR A WRIT OF
DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE
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”). He 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. He
asserts (1) a violation of his 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, and (2) a violation of due process by
denying his motion for a mistrial in response to
misstatements of evidence made during closing arguments.
reasons set forth below, the petition for a writ of habeas
corpus will be denied.
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. Commonwealth v.
Dorisca, 88 Mass.App.Ct. 776, 777-78 (2015). At some
point during the altercation, Toussaint was shot multiple
times in the chest. Toussaint was pronounced dead upon
arrival at the hospital. Id. at 778. Shortly
thereafter, Dorisca fled Massachusetts for Florida, where he
remained for two and a half years. He was arrested on
unrelated charges in Florida in 2011, and the outstanding
warrant for his arrest in Massachusetts was discovered.
Id. at 779. During the proceedings, Dorisca
maintained that his cousin Rodley Doriscat shot the victim to
defend him. Id. Rodley committed suicide three years
before the trial. Id.
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 (“MAC”), which
affirmed the conviction on December 23, 2015. See
Dorisca, 88 Mass.App.Ct. at 786. 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.
Commonwealth v. Dorisca, 473 Mass. 1111 (2016).
March 7, 2017, Dorisca filed a petition for a writ of habeas
corpus relief pursuant to 28 U.S.C. § 2254. He asserted
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
(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 the number of witnesses
interviewed during the investigation.
(Pet. at 6, 8-9).
25, 2017, respondent filed a motion to dismiss the petition
because petitioner had not exhausted his remedies as to
ground three. On July 18, 2017, this Court entered an order
stating that it would grant the motion to dismiss unless
petitioner moved to dismiss the unexhausted claim and proceed