United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS UNITED STATES DISTRICT JUDGE
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. 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.
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.
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. Com. v. Enwenwu, 83
Mass.App.Ct. 1127 (2013).
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.
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).
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.
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.
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.
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.
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.
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
ECF No. 19-1, p. 49, August 6, 2014 letter from McKenzie J.
Walters, Esq. to Enwonwu, . He apparently continued to seek
counsel through ...