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Smith v. Goguen

United States District Court, D. Massachusetts

August 31, 2018

ROBERT SMITH, Petitioner,
v.
COLETTE GOGUEN, Respondent.

          ORDER AND REPORT AND RECOMMENDATION

          David H. Hennessy United States Magistrate Judge

         Petitioner 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 petition).

         For the 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 MOOT.

         I. BACKGROUND

         On 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).[1] 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.

         On January 24, 2013, Petitioner filed in the Superior Court a notice of appeal from his conviction.[2] 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.

         On 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.[3] 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 WL 3366518.

         Under 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.

         Instead, 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.[4] 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.

         In lieu 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.[5] See docket #19 at 3-4.

         Petitioner 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.

         On 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.

         Shortly before the SJC denied the ALOFAR, Petitioner moved to stay and abey the instant petition.[6] Docket #27. Petitioner thereafter withdrew that motion. See docket #30.

         On 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 ...


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