United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION
H. Hennessy United States Magistrate Judge
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).
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
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. 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.
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.
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. 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.
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). 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.
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. Dkt. no. 26. Petitioner then submitted on
November 23, 2018 an opposition to Respondent's motion to
dismiss. Dkt. no. 27.
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.
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)).
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)).
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