Murphy v. Turco

          REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS (#1).

          M. Page Kelley, United States Magistrate Judge

         I. Introduction.

         Pro se 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). (#22.)

         Petitioner 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.

         II. Background.

         The 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.^[1] Commonwealth v. Murphy, 90 Mass.App. Ct.1105 (unpublished), 2016 WL 4869245, at *1 (Sept. 15, 2016).^[2]Eventually, petitioner moved in with the family, financially contributed to the family, and took on an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.

         About 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.^[3] 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.

         Petitioner 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.^[4]

         On 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.

         Petitioner 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.)^[5] The SJC denied his application. Commonwealth v. Murphy, 467 Mass. 1105, 65 N.E. 3d 661 (2016) (Table).

         III. Standard of Review.

         Rule 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).

         To 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 ...