Johnson v. Goguen

          REPORT AND RECOMMENDATION

          DAVID H. HENNESSY UNITED STATES MAGISTRATE JUDGE

         Petitioner 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).

         In 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.

         I. BACKGROUND

         On July 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”].^[1] 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.

         In 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.

         On July 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, 2018).

         Johnson 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. 19.

         II. LEGAL STANDARD

         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). 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)).

         In 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)).

         “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 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.

         Where a 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) ...