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Enwonwu v. Commonwealth

United States District Court, D. Massachusetts

November 28, 2018

FRANCIS ENWONWU Petitioner,
v.
COMMONWEALTH, Respondent.

          MEMORANDUM AND ORDER

          ALLISON D. BURROUGHS UNITED STATES DISTRICT JUDGE

         For the reasons stated below, the respondent's motion to dismiss is hereby ALLOWED and the 28 U.S.C. § 2254 petition is hereby DISMISSED without prejudice for failure to exhaust the claims in the courts of the Commonwealth of Massachusetts. I. Background On December 16, 2010, following a jury trial in Middlesex Superior Court, Francis Enwonwu was convicted of armed assault with intent to rob, assault and battery causing serious bodily injury, possession of a firearm without a license, receiving a stolen motor vehicle, assault and battery by means of a dangerous weapon (shod foot), and assault and battery. Com. v. Enwenwu, 83 Mass.App.Ct. 1127 (2013); ECF No. 11-1, p. 7, Criminal Docket, Com. v. Enwonwu, 0981CR01192. Although the factual details of the underlying criminal action are not entirely clear, the charges stem from Enwonwu's participation in an armed robbery of a man named Mahdi Bezzate, and Enwonwu's physical abuse of a woman named Kaitlyn Niles.[1] On December 30, 2010, Enwonwu was sentenced to 7-10 years' incarceration, with 5 years' probation to follow. ECF No. 11-1, p. 7, Criminal Docket, Com. v. Enwonwu, 0981CR01192On September 14, 2011, Enwonwu filed a motion for new trial, which was denied on March 14, 2012. Id. at pp. 8-9.

         Enwonwu was very involved in his criminal appeal, as demonstrated by numerous correspondence he submitted to this Court in opposition to the motion to dismiss. It is evident that Enwonwu discussed with his appellate counsel, Jennifer O'Brien, Esq., issues relating to among other things, strategy and briefing of his appeal. ECF 19-1, pp. 32-37; ECF 24, pp. 17-19, 20-22, 41-43, and 54-55. Attorney O'Brien did not agree with several issues that Enwonwu wanted to present on his direct appeal, including many of those raised in the instant petition. ECF No. 24, pp. 17-19.

         Enwonwu, through Attorney O'Brien, ultimately brought six grounds for appeal arguing: (1) ineffective assistance of counsel for failing to move to sever the trial; (2) ineffective assistance of counsel for not requesting a missing witness instruction concerning the victim (Bezzate) who was unavailable at trial; (3) duplicative convictions for assault and battery and assault and battery by means of a dangerous weapon based on the assault and battery of Niles; (4) that Enwonwu was prejudiced by the prosecutor purportedly alluding to facts in her opening that never came into evidence due to Bezzate's absence from trial; (5) that the prosecutor's closing argument was improper because it referred to facts not in evidence to the effect that Bezzate was waiting for his brother when he was shot and Enwonwu was unemployed; and (6) sufficiency of the evidence concerning the admission of a 911 emergency call and the length of the barrel of a weapon. Com. v. Enwenwu, 83 Mass.App.Ct. 1127 (2013). Although not submitted to this Court, Enwonwu filed a Moffett brief.[2] Com. v. Enwenwu, 83 Mass.App.Ct. 1127 (2013).

         On May 2, 2013, the Massachusetts Appeals Court issued its decision on his consolidated direct appeal of his convictions and denial of motion for a new trial. Com. v. Enwenwu, 83 Mass.App.Ct. 1127 (2013). That court reversed the possession of a firearm without a license conviction because the length of the barrel had not been established; the remaining counts and denial of motion for new trial were affirmed. Id. The Appeals court found “no merit in …[Enwonwu's]…arguments made under Commonwealth v. Moffett, 383 Mass. 201 (1981).” Id. at n.9.

         On May 10, 2013, Enwonwu, through Attorney O'Brien, filed an application for leave for further appellate review by the Supreme Judicial Court (“AOLOFAR”) which raised the identical issues decided against Enwonwu on his direct appea1, except apparently those raised in the Moffett brief. ECF No. 26. Enwonwu's ALOFAR was summarily denied on June 6, 2013. Com. v. Enwonwu, 465 Mass. 1106 (2013).

         On June 13, 2013, Enwonwu filed a motion to revise and revoke his sentence. ECF No. ECF 11-1, p. 9, Criminal Docket, Com. v. Enwonwu, 0981CR01192, File Ref. Nbr. 76. That motion was denied on November 8, 2013. ECF 11-1, p. 9, Criminal Docket, Com. v. Enwonwu, 0981CR01192.

         On January 28, 2014, in response to Enwonwu's inquiry, the Massachusetts Committee for Public Counsel Services (“CPCS”) provided Enwonwu with an application to complete in order to have his case screened by the CPCS Innocence Project. ECF No. 1-1, p. 18, January 28, 2014 letter from Elly Kalfus to Enwonwu. The CPCS Innocence Project received the application materials on February 24, 2014. ECF No. 1-1, p. 19, January 28, 2014 letter from Elly Kalfus to Enwonwu. On May 6, 2014, the CPCS Innocence Project declined to take his case, and while careful not opine as to Enwonwu's guilt or innocence, indicated that Enwonwu might request that CPCS Appeals review his for a motion for new trial on a non-innocence-based basis. ECF No. 1-1, p. 22, May 6, 2014, letter from Lisa M. Kavanaugh to Enwonwu.

         On June 10, 2014, CPCS Senior Staff Counsel Terry Nagel, wrote to Enwonwu acknowledging his request for CPCS Appeals to review the matter. ECF No. 19-1, p. 9, June 10, 2014, letter from Terry Nagel to Enwonwu.

         On July 2, 2014, Enwonwu wrote to Terry Nagel, Esq., setting forth the bases of a motion for new trial mirroring, with some exceptions, what he now presents as issues in this petition. ECF No. 19-1, pp. 40-43, June 10, 2014 letter from Terry Nagel to Enwonwu.

         On July 14, 2014, Nagel forwarded the letter to appellate counsel O'Brien for further review. ECF No. 19-1, p. 10, July 14, 2014, letter from Terry Nagel to Jennifer O'Brien. On July 30, 2014, Enwonwu wrote to Nagel asking him to refer Enwonwu's case to other counsel, as he believed some of the issues concerned the ineffectiveness of Attorney O'Brien. ECF No. 19-1, p.47, July 30, 2014 letter from Enwonwu to Terry Nagel. Because no further motion was filed, the Court concludes that CPCS refused to assign counsel or to proceed further. On July 24, 2014, Enwonwu filed a pro se motion for appointment of counsel and supporting affidavit of indigency and actual innocence. See ECF No. 11-1, p. 10, Criminal Docket, Com. v. Enwonwu, 0981CR01192, File Ref. Nos. 84 and 85, ; ECF No. 1-1, pp. 15-17. The motion was denied on August 6, 2014. ECF No. 11-1, p. 10, Criminal Docket, Com. v. Enwonwu, 0981CR01192.

         From July 2014 through December 2014, Enwonwu unsuccessfully sought other counsel. ECF no. 19-1, pp. 47-53. Notably, Enwonwu was warned by an attorney (who did not accept his case) on August 6, 2014 that time was of the essence:

Thank you for contacting this office regarding your legal matter. Please be advised that his office will not be able to represent you regarding your matter. Please further be advised that all claims you may have must be filed in the applicable court within the applicable statute of limitations, or your claims will be lost forever. As a result, if you are going to act, you must do so now. As your matters are legally complex, I advise that you seek the advice of other counsel regarding these matters right away.

ECF No. 19-1, p. 49, August 6, 2014 letter from McKenzie J. Walters, Esq. to Enwonwu, . He apparently continued to seek counsel through ...


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