United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION
H. HENNESSY UNITED STATES MAGISTRATE JUDGE
George Johnson, a prisoner in Massachusetts state custody,
filed a petition for a writ of habeas corpus 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. 16. 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. 20 (Order of reference); see
also dkt. no. 16 (Respondent's motion to dismiss);
dkt. no. 17 (memorandum supporting dismissal); dkt. no. 19
(opposition to motion to dismiss).
consideration of the foregoing submissions and for the
reasons that follow, the undersigned RECOMMENDS that Johnson
be given an opportunity to elect whether to dismiss his
unexhausted claim and proceed on the merits of his exhausted
claims, or to accept dismissal of the entire petition.
24, 2012, a Hampden County grand jury returned a seven-count
indictment against Johnson, charging him with two counts of
forcible rape of a child in violation of Mass. Gen. Laws ch.
265, § 22A (Counts 1 and 2), three counts of indecent
assault and battery on a child under the age of fourteen in
violation of Mass. Gen. Laws ch. 265, § 13B (Counts 3,
4, and 5), one count of assault and battery in violation of
Mass. Gen. Laws ch. 265, § 13A (Count 6), and one count
of intimidation of a witness in violation of Mass. Gen. Laws
ch. 268, § 13B (Count 7). Brief for the
Appellant/Defendant at 10, Commonwealth v. Johnson,
103 N.E.3d 1237 (tbl.), 93 Mass.App.Ct. 1109 (May 4, 2018)
(No. 2017-P-0930), 2017 WL 10350549, at *10 [hereinafter
“Johnson Brief”]. Following the close of the
Commonwealth's case during a jury trial in August 2013,
the trial judge granted Johnson's motion for required
findings of not guilty as to Counts 2 and 5. Brief for the
Commonwealth on Appeal from a Judgment of Conviction by the
Hampden Div. of the Super. Ct. Dep't at 10-11,
Johnson, 2017 WL 10350548, at *10-11 [hereinafter
“Commonwealth Brief”]. The jury acquitted Johnson
of Count 4 and convicted on Counts 1, 3, 6, and 7. Johnson
Brief at *10; Commonwealth Brief at *11. Johnson was
sentenced to a term of eight to ten years of imprisonment on
Count 1, two to four years on Count 7 to run concurrently
with the Count 1 sentence, two years on Count 6 to run
concurrently with the Count 1 sentence, and three years of
probation on Count 3, to run consecutively to the Count 1
sentence. Commonwealth Brief at *11.
2015, Johnson filed a motion for a new trial, which was
allowed by the Superior Court on July 29, 2016. Johnson Brief
at *10. He executed a jury waiver on January 10, 2017, and
the retrial proceeded before Judge McDonough of the Superior
Court. Id. Johnson again was found guilty of Counts
1, 3, 6, and 7. Id. at 10-11. Judge McDonough
imposed sentences identical to those imposed following the
first trial. See id. at 11.
17, 2017, Defendant appealed his conviction to the
Massachusetts Appeals Court. Id. In his brief,
Johnson argued: (i) that the trial court erred in allowing
the victim's mother to testify as a first complaint
witness even though the Commonwealth had not established that
the actual first complaint witness was unavailable; (ii)
ineffective assistance of trial counsel for failure to
request rulings of law and provide sufficient support for
certain defenses; and (iii) that the Court allowed the
Commonwealth to make impermissible statements during its
closing argument. Johnson Brief at *21, 28-29, 41. In May
2018, the Appeals Court entered a summary decision and
affirmed the judgments of conviction. Commonwealth v.
Johnson, 103 N.E.3d 1237 (tbl.), 93 Mass.App.Ct. 1109
(unpublished table decision), 2018 WL 2074472, at *3 (May 4,
then filed an application for leave to obtain further
appellate review (“ALOFAR”). Dkt. no. 16-3. The
Supreme Judicial Court (“SJC”) denied the
application without decision. Commonwealth v.
Johnson, 104 N.E.3d 664 (tbl.), 480 Mass. 1102 (June 29,
2018). On August 6, 2018, Johnson filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. no.
1. On November 15, 2018, Respondent moved to dismiss the
petition due to Johnson's failure to exhaust state
judicial remedies with respect to two of his three asserted
grounds for relief. Dkt. no. 16. On December 26, 2018,
Johnson opposed Respondent's motion to dismiss. Dkt. no.
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). This 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, the 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 federal claims to the state's highest 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
ALOFAR.'” (second alteration in original) (quoting
Mele v. Fitchburg Dist. Ct., 850 F.2d 817, 823 (1st
Cir. 1988))); see also 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
citation, appropriate federal precedent, substantive
constitutional analogy, argument with no masking state-law
character, and the like.'” Id. (quoting
Nadworny v. Fair, 872 F.2d 1093, 1101 (1st Cir.
1989)). “The fewer the trappings that adorn a
petitioner's state-court filings, the less likely that we
will find his federal claim to have been exhausted.”
Adelson, 131 F.3d at 262.
petitioner files a “mixed petition”-one that
captures both exhausted and unexhausted claims-a federal
court may: (1) dismiss the petition in full; (2) allow the
petitioner to abandon and dismiss the unexhausted claims and
proceed with only the exhausted claims; or (3) stay the
petition while the petitioner returns to state court to
exhaust his previously unexhausted claims. See Neverson
v. Farquharson, 366 F.3d 32, 43 (1st Cir. 2004); see
also Rhines v. Weber, 544 U.S. 269, 275-76 (2005). The
third option should be utilized sparingly, and only when a
petitioner demonstrates that: (1) good cause exists for his
failure to exhaust; (2) ...