United States District Court, D. Massachusetts
ORDER AND REPORT AND RECOMMENDATION
H. Hennessy United States Magistrate Judge
Robert Smith, a prisoner in Massachusetts state custody,
filed this habeas corpus petition against Respondent Colette
Goguen pursuant to 28 U.S.C. § 2254. Respondent has
moved to dismiss the petition, docket #18, and Petitioner has
moved for leave to file an amended petition, docket #34.
District Judge Hillman referred both motions to me, the
former for a report and recommendation, and the latter for a
ruling. See docket #36. Both motions have been fully
briefed and are ripe for adjudication. See docket
#19 (Respondent's memorandum supporting dismissal);
docket #28 (Petitioner's opposition to dismissal); docket
#33 (Respondent's supplemental memorandum supporting
dismissal); docket #35 (Respondent's opposition to
Petitioner's motion for leave to file an amended
reasons that follow, I RECOMMEND that Respondent's motion
to dismiss be GRANTED, and I ORDER that Petitioner's
motion for leave to file an amended petition is DENIED AS
January 18, 2013, Petitioner was convicted in Massachusetts
Superior Court of sexually abusing his son and daughter.
See Commonwealth v. Smith, 51 N.E.3d 511, 2016 WL
3366518, at *1 (Mass. App. Ct. 2016) (table). Specifically,
Petitioner was convicted of five counts of rape and abuse of
a child without force, three counts of rape and abuse of a
child aggravated by an age difference, two counts of
dissemination of obscene matter, and one count of sexual
intercourse by inducing a chaste minor. See id.;
docket #19-1 at 19-20. Petitioner's son and daughter
testified against him at trial. See Smith, 2016 WL
3366518, at *1.
January 24, 2013, Petitioner filed in the Superior Court a
notice of appeal from his conviction. See docket #19-1 at
20. He entered his direct appeal in the Massachusetts Appeals
Court on May 2, 2013. See id. at 1, 21. Petitioner
also filed, on February 24, 2014, three post-conviction
motions in the Superior Court: two motions for
post-conviction discovery, and a motion for a new trial.
See id. at 21; Smith, 2016 WL 3366518, at
*4. On March 25 and March 31, 2014, the Superior Court
allowed in part and denied in part the two motions for
post-conviction discovery. Docket #19-1 at 22. On October 2,
2014, the Superior Court denied the motion for a new trial.
See id. at 24.
November 18, 2014, Petitioner filed in the Superior Court a
notice of appeal from the denial of his motion for a new
trial. See id. On October 21, 2014, the Appeals
Court consolidated into one proceeding Petitioner's
direct appeal of his conviction and his collateral appeal of
the Superior Court's post-conviction
rulings. See id. at 3-4. On June 17, 2016,
the Appeals Court denied Petitioner's consolidated appeal
in an unpublished opinion. See generally Smith, 2016
Massachusetts Rule of Appellate Procedure 27.1(a), Petitioner
had twenty days from the date of the Appeals Court's
opinion in which to timely file in the Massachusetts Supreme
Judicial Court (the “SJC”) an application for
leave to obtain further appellate review (an
“ALOFAR”). See Mass. R. App. P. 27.1(a).
Petitioner did not do so, nor did he file a habeas corpus
petition in state court.
on June 8, 2017, almost one year after the Appeals Court
denied his consolidated appeal, Petitioner filed the instant
habeas corpus petition in this Court. See docket #1. The
petition pleads four grounds for relief: 1) the trial judge
improperly excluded certain evidence; 2) improper evidence
unfairly bolstered a complainant's credibility; 3) the
prosecutor's summation inappropriately appealed to the
jury's sympathy; and 4) the Superior Court erroneously
denied one of Petitioner's post-conviction motions for
discovery. See docket #1-1 at 1-5.
of filing a return, Respondent moved to dismiss. Docket #18.
Respondent argues that Petitioner failed to exhaust
state-court remedies by not seeking in the SJC discretionary
review of his appeal. See docket #19 at 3-4.
opposes dismissal. See docket #28. Along with his
opposition brief, Petitioner filed (among other things) a
notarized affidavit of his son. See docket #29 at
12-15. The affidavit purports to recant the son's trial
testimony. In substance, it avers that Petitioner's son
and daughter had an incestuous sexual relationship.
Id. at 12. It states that Petitioner did not
participate in that relationship. Id. at 13.
According to the affidavit, at one point, the daughter
incorrectly believed that her brother had gotten her
pregnant; in order to avoid getting in trouble for having sex
with her brother, she falsely accused Petitioner of having
sex with her. Id. 12-13. The daughter then pressured
the son to falsely tell the police that Petitioner had raped
her. Id. at 13. The son repeatedly tried to tell the
police the truth, “but they wouldn't accept it,
” so he told the police the false story of abuse that
“[the daughter] and I planned out.” Id.
The affidavit states that the son never has had sex with
Petitioner; that Petitioner never had group sex with the son
and daughter; that the son never saw Petitioner have sex with
the daughter; that the daughter told the son she had never
had sex with Petitioner; and that the daughter “made
the whole thing up.” Id.
October 13, 2017, after Respondent filed the instant motion
to dismiss, Petitioner filed in the SJC a motion for leave to
file a late ALOFAR. See docket #29 at 8; docket
#33-1 at 2. Later that day, the SJC granted Petitioner's
motion for leave to file. See docket #33-1 at 2. The
same day, Petitioner also filed the ALOFAR itself.
See docket #29 at 9; docket #33-1 at 2. On November
30, 2017, the SJC denied the ALOFAR. See id.
before the SJC denied the ALOFAR, Petitioner moved to stay
and abey the instant petition. Docket #27. Petitioner thereafter
withdrew that motion. See docket #30.
January 16, 2018, Petitioner moved for leave to file an
amended petition. Docket #34. Respondent opposes that motion.
See docket #35. Respondent does not take issue with
the substance of Petitioner's proposed amended petition,
but rather contends that the proposed amendments are futile
because they will not cure ...