United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF
HABEAS CORPUS (#1).
Page Kelley, United States Magistrate Judge
petitioner John Murphy filed a petition for writ of habeas
corpus under 28 U.S.C. § 2254 against respondent Thomas
Turco, III, Commissioner of the Department of Corrections
(DOC), for relief from his May 2014 convictions of rape and
assault and battery charges. (#1.) Petitioner filed a
memorandum of law and respondent filed an opposition. (##19,
21.) Before this court is respondent's motion for
judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).
raised two issues in his petition, one concerning the
exclusion of evidence at his trial and one concerning first
complaint evidence. As further explained below, the first
issue was not exhausted in state court, and after the court
explained the matter to petitioner at a hearing, the
petitioner withdrew that issue. The remaining issue, which
was exhausted in state court, was considered on the merits by
the court and the court finds that it fails. Therefore, this
court recommends that respondent's motion for judgment on
the pleadings be allowed.
facts as found by the Massachusetts Appeals Court (MAC) are
as follows. On April 2009, petitioner began dating a single
mother with four children: Leo, who was sixteen years old;
Mark, who was six years old; and two daughters who were nine
and eleven. Commonwealth v. Murphy, 90
Mass.App. Ct.1105 (unpublished), 2016 WL 4869245, at *1
(Sept. 15, 2016).Eventually, petitioner moved in with the
family, financially contributed to the family, and took on an
authoritative role with the children. Id. Beginning
in June 2009, petitioner began to physically and sexually
abuse Leo regularly, until Leo moved out of the house in
April 2010. Id. After Leo moved out, petitioner
began to abuse Mark, and after petitioner moved out of the
family's home, Mark disclosed the abuse to his
fourth-grade teacher. Id.
one year later, Leo, while with his girlfriend Jenny, sent a
text message to his mother that petitioner had raped him, and
began to cry. Id. Leo showed the text message
to Jenny and told her the rape had occurred in Revere.
Id. Leo's mother did not respond to the text
message and at trial, testified that she did not recall ever
receiving it. Id. Accordingly, the Commonwealth
designated Jenny as the first complaint witness, who
testified that Leo had shown her the text message and told
her he was raped in Revere. Id.
was convicted of four counts of rape and one count of
indecent assault and battery with respect to Leo, and was
convicted of one count of indecent assault and battery on a
child and one count of assault and battery with respect to
Mark. 2016 WL 4869245, at *1 n.2.
appeal, petitioner asserted that Jenny should not have been
permitted to testify as the Commonwealth's first
complaint witness, because Leo had texted his mother before
telling Jenny about the alleged rape, and because the
complaint to Jenny referred to conduct that occurred in
Revere, which was not charged at trial. Id. at *1-2.
Petitioner also challenged the exclusion of evidence of
Leo's profile on the social networking web site MySpace,
which was www.myspace.com/im_gay_with_my_dad, because
petitioner contended that it supported his defense of
consent. Id. at *2. The MAC rejected these arguments
and affirmed his conviction. Id. at *2-3.
filed an application for leave to obtain further appellate
review (ALOFAR) on the issue concerning the first complaint
witness. (S.A. I at 171-191.) The SJC denied his application.
Commonwealth v. Murphy, 467 Mass. 1105, 65 N.E. 3d
661 (2016) (Table).
Standard of Review.
12(c) of the Federal Rules of Civil Procedure provides that a
party may move for judgment on the pleadings after the
pleadings have closed. Fed.R.Civ.P. 12. “A motion for
judgment on the pleadings is treated much like a Rule
12(b)(6) motion to dismiss.” Perez-Acevedo v.
Rivero-Cubano, 520 F.3d 26, 29 (1st Cir. 2008) (citing
Curran v. Cousins, 509 F.3d 36, 43-44 (1st Cir.
2007)). Motions for dismissal and judgment on the pleadings
are governed by the same standard. 4MVR, LLC v.
Hill, No. 12-cv-10674, 2015 WL 3884054, at *6 (D. Mass.
June 24, 2015). “A Rule 12(c) motion nonetheless
differs from a Rule 12(b)(6) motion because it implicates the
pleadings as a whole.” Santiago v. Bloise, 741
F.Supp.2d 357, 360 (D. Mass. 2010) (citation and internal
quotation mark omitted). Facts in the answer, however,
“are taken as true only where and to the extent that
they have not been denied or do not conflict with those of
the complaint.” Id. (citation omitted).
survive a Rule 12(c) motion, “a complaint must contain
factual allegations that ‘raise a right to relief above
the speculative level, on the assumption that all the
allegations in the complaint are true. . . .'”
Perez-Acevedo, 520 F.3d at 29 (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007)). The court must consider the
well-pleaded facts “in the light most favorable to the
non-moving party” and “draw[ ] all reasonable