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Sanchez v. Goguen

United States District Court, D. Massachusetts

January 10, 2019



          David H. Hennessy United States Magistrate Judge

         Petitioner Benjamin Sanchez, a prisoner in Massachusetts state custody, filed this habeas corpus petition under 28 U.S.C. § 2254 against Respondent Colette Goguen, Superintendent of the North Central Correctional Institution in Gardner, Massachusetts. Respondent has moved to dismiss the petition. Dkt. no. 12. This Report and Recommendation issues pursuant to a referral from District Judge Hillman respecting Respondent's motion, which is fully briefed and ripe for adjudication. Dkt. no. 17 (Order of reference); see also dkt. no. 12 (Respondent's motion to dismiss); dkt. no. 13 (Respondent's memorandum supporting dismissal); dkt. no. 27 (Petitioner's opposition).

         In consideration of the foregoing submissions and for the reasons that follow, the undersigned RECOMMENDS that Petitioner be given an opportunity to elect whether to dismiss his remaining unexhausted claim and proceed on the merits of the exhausted claims, or to accept dismissal of the entire petition.

         I. BACKGROUND

         In the early hours of July 12, 2009, the unresponsive body of Petitioner's estranged wife was found by members of a Springfield fire department rescue team on her living room floor. ADD 024.[1] She was transported to a hospital, where it was determined that she had been strangled and stabbed forty-five times. Id.; ADD 027. Parts of her body were burned. ADD 027. The ultimate cause of her death was determined to be a combination of sharp force injuries to her left lung and inhalation of soot and smoke. Id.

         A jury convicted Petitioner in Superior Court of murder in the first degree on theories of (i) deliberate premeditation and extreme atrocity or cruelty, (ii) arson of a dwelling house, and (iii) violating an abuse prevention order procured by the victim just a few months before her death. ADD 024; ADD 026.

         Petitioner appealed his conviction to the Supreme Judicial Court of Massachusetts (the “SJC”). ADD 016. In addition, Petitioner filed in the Superior Court a motion for a new trial, alleging that his counsel provided ineffective assistance by failing to seek a competency evaluation.[2] The Superior Court denied Petitioner's motion without an evidentiary hearing. ADD 453. Petitioner appealed the denial of the new trial motion to the SJC, claiming that the Superior Court erred in failing to hold an evidentiary hearing on the matter. ADD 016. The SJC affirmed both Petitioner's conviction and the order denying the new trial motion. ADD 025.

         On December 15, 2017, Petitioner filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, and a motion for appointment of counsel pursuant to 18 U.S.C. § 3006A(a)(2)(B).[3] Dkt. nos. 1, 3. This Court denied Petitioner's motion for counsel on February 6, 2018. Dkt. no. 5. On April 10, 2018, Petitioner again moved this Court for appointment of counsel. Dkt. no. 10. On June 7, 2018, Respondent moved to dismiss the petition on the ground that Petitioner failed to exhaust his state judicial remedies with respect to two of his four asserted grounds for relief. Dkt. no. 12. On August 9, 2018, this Court ordered Petitioner to submit an opposition to Respondent's motion by August 24, 2018, warning that the petition would be subject to a recommendation for dismissal if no opposition was received. Dkt. no. 18. Petitioner thereafter moved for several extensions of time to submit an opposition, all of which were granted. See dkt. nos. 19, 20, 22, 23. Then, on September 28, 2018, Petitioner filed a motion to voluntarily withdraw his habeas petition without prejudice. Dkt. no. 21.

         On November 13, 2018, the undersigned denied Petitioner's second motion for appointment of counsel. Dkt. no. 25. On the same day, Petitioner filed a third motion seeking the same relief.[4] Dkt. no. 26. Petitioner then submitted on November 23, 2018 an opposition to Respondent's motion to dismiss. Dkt. no. 27.

         On November 27, 2018, Judge Hillman denied without prejudice Petitioner's motion to voluntarily dismiss his petition without prejudice because any subsequent or successive petition “would almost certainly be deemed time-barred.” See dkt. no. 28, at p. 3; see also Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in various sections of 28 U.S.C.); 28 U.S.C. §2244(d) (setting one-year limitations period for requests for habeas corpus relief). The Court also denied Petitioner's third motion for appointment of counsel for the same reasons that his second motion seeking appointment of counsel was denied. Dkt. no. 28. Judge Hillman also ordered this matter stayed through December 31, 2018 to allow Petitioner time to obtain representation. Id.


         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) instructs that a federal court shall not grant a habeas corpus petition filed by a prisoner “in custody pursuant to the judgment of a State court . . . unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State . . . .” 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement “is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts . . . .” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Accordingly, this requirement must be satisfied before a federal habeas corpus petition is filed. See Woodford v. Ngo, 548 U.S. 81, 92 (2006) (“The habeas statute generally requires a state prisoner to exhaust state remedies before filing a habeas petition in federal court.” (citing 28 U.S.C. §§ 2254(b)(1), (c))); see also Domaingue v. Butterworth, 641 F.2d 8, 14 (1st Cir. 1981) (“Our practice has been to determine the question of exhaustion as of the time a habeas corpus petition was filed, not as of the time the case is heard on appeal, and to require a new petition to be filed if state remedies are subsequently exhausted.” (citing Belbin v. Picard, 454 F.2d 202, 204 (1st Cir. 1972))); Belbin, 454 F.2d at 204 (“It is the availability of state remedies at the time the application is filed . . . that is determinative of the question of exhaustion. Any other rule would only encourage prisoners to bring federal writs prematurely, counting on opportunity to amend later.” (citing Fay v. Noia, 372 U.S. 391, 399 (1963))). As a consequence, any unexhausted claim is subject to dismissal. See, e.g., Corliss v. Cummings, 277 F.Supp.3d 195, 198 (D. Mass. 2017) (“Because no Massachusetts court has had the opportunity to remedy any constitutional violations, this Court must grant respondent's motion to dismiss.”) (citing 28 U.S.C. § 2254(b)(1); Rose v. Lundy, 455 U.S. 509, 518 (1982)).

         In Massachusetts, a habeas corpus petitioner in state custody must present his claims to the Supreme Judicial Court before pursuing those claims in federal court. See, e.g., Clements v. Maloney, 485 F.3d 158, 162 (1st Cir. 2007) (“[The exhaustion] standard must be met, as a general rule, by ‘fairly present[ing]' a federal claim ‘within the four corners of the [Application for Leave to Obtain Further Appellate Review].'” (second alteration in original) (quoting Mele v. Fitchburg Dist. Ct., 850 F.2d 817, 823 (1st Cir. 1988))); Johnson v. Roden, No. 16-1419, 2017 WL 4773221, at *3 (1st Cir. Sept. 14, 2017) (“It is the law in this circuit that claims that were presented to the Appeals Court, but not mentioned in the ALOFAR, are not exhausted.” (citing Clements, 485 F.3d at 168)). The petitioner bears the burden of demonstrating exhaustion as to all claims. Barresi v. Maloney, 296 F.3d 48, 51 (1st Cir. 2002). To do so, the petitioner must show that the factual and legal bases of his federal claims were “fairly and recognizably presented to the state courts.” Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir. 1997) (citing Pickard v. Connor, 404 U.S. 270, 276-77 (1971)).

         “To establish fair presentation, the Court must determine whether the underlying claim before the state would alert a reasonable jurist to the existence of the federal question.” Faust v. Horgan, 12-cv-11089-FDS, 2013 WL 212621, at *2 (D. Mass. Jan. 17, 2013) (citing Scarpa v. DuBois, 38 F.3d 1, 6 (1st Cir. 1994)). The petitioner's claims must be the “substantial equivalent” to those claims raised before the state's highest court, and the federal issues raised must be plainly defined. Barresi, 296 F.3d at 52; Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988). This determination “is not a matter of guesswork.” Adelson, 131 F.3d at 262. “Rather, that calculation is informed ‘by trappings-specific constitutional language, constitutional ...

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