United States District Court, D. Massachusetts
ORDER ON MOTION TO DISMISS (DOC. NO. 18)
Sorokin United States District Judge
Sullivan, an inmate at the Massachusetts Correctional
Institution in Shirley, Massachusetts, has filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The respondent has moved to dismiss the
petition, arguing it presents claims that Sullivan has not
exhausted in state court. Doc. Nos. 18, 19. For the reasons
that follow, the motion to dismiss is DENIED.
25, 2013, after a jury trial in Middlesex County Superior
Court, Sullivan was convicted of first-degree felony-murder,
armed home invasion, and related charges. Doc. No. 1 at 2;
Commonwealth v. Sullivan, 85 N.E.3d 934, 940 (Mass.
2017). The charges stemmed from the shooting of a father and
son in February 2011 during a nighttime robbery of their home
by two masked men. Sullivan, 85 N.E.3d at 938-39.
The son died; the father, miraculously, survived.
Id. Sullivan was identified as one of the
perpetrators based largely on DNA evidence tying him to
evidence recovered at the scene, including a mask, other
clothing, and items used by a victim to defend himself.
Id. He received a mandatory life sentence on the
murder charge. Doc. No. 1 at 1.
filed a timely appeal. S.A. at 12. Thereafter, the prosecutor
notified Sullivan's counsel that a crime laboratory
technician who had been involved in Sullivan's case had
failed various proficiency tests. Sullivan, 85
N.E.3d at 940. This revelation was fodder for a post-trial
motion in state court challenging Sullivan's conviction.
Id. The Supreme Judicial Court (“SJC”)
stayed Sullivan's appeal to permit litigation of the
post-conviction motion. Id. After a Superior Court
judge denied that motion in June 2016, the SJC consolidated
Sullivan's appeal from that denial with his direct
consolidated appeal, Sullivan presented the following
challenges: 1) “the evidence was insufficient to
support his convictions because the Commonwealth did not
prove that he was armed when he entered the victims'
apartment”; 2) “testimony that DNA taken from
items found at the crime scene matched his DNA profile in [a
national] database was inadmissible hearsay”; 3) the
same testimony violated “his right to
confrontation”; and 4) “the [Superior Court]
judge erred in denying his motion for a new trial on the
ground that evidence of a State police criminalist's
failure to meet proficiency standards was exculpatory,
” and Sullivan “was prejudiced by his inability
to challenge the criminalist's qualifications or to use
the evidence to bolster a Bowden
defense.” Id. at 940, 945; see
S.A. at 130, 228, 231. Sullivan also asked the SJC to
“exercise [its] extraordinary power” to
“order a new trial or reduce his murder conviction to
murder in the second degree.” Sullivan, 85
N.E.3d at 948-49; S.A. at 130.
finding errors in Sullivan's trial, the SJC found no
prejudice arising from them, and it rejected each of
Sullivan's claims in a November 16, 2017 decision.
Sullivan, 85 N.E.3d at 938. In his timely pro se
federal habeas petition, Sullivan identifies the following
grounds for relief: 1) the evidence was insufficient to prove
that he committed a qualifying felony as a predicate for the
felony-murder conviction; 2) the trial court erred in
admitting prejudicial hearsay testimony about a match between
DNA evidence collected at the crime scene and a profile
contained in a national DNA database; 3) Sullivan's
rights under the Confrontation Clause were violated by the
admission of the same testimony about the national DNA
database; 4) Sullivan's conviction should be reduced to
second-degree murder under a state statute; 5) evidence
withheld by the prosecution would have contradicted the
testimony of one of its experts about his qualifications; 6)
the withheld evidence was in the possession of the
prosecution team at the time of trial, rendering its
withholding a violation of Brady v. Maryland, 373
U.S. 83 (1983); 7) the withheld evidence was exculpatory and
would have supported a Bowden defense; 8) Sullivan
was prejudiced by the withholding of evidence about the
expert's qualifications; and 9) the withheld evidence
included exculpatory and material information about the
expert's documented errors in other cases. Doc. No. 1 at
8, 10-11, 13-20.
respondent moved to dismiss Sullivan's petition on the
basis that Grounds 5, 7, 8, and 9 above were not fairly
presented to the SJC and, thus, are unexhausted. Doc. No. 19
at 7-9. Sullivan has not opposed the motion, but that does
not absolve this Court of its duty to review the substance of
the respondent's request and consider whether the relief
sought is appropriate. It is to that task the Court now
prisoner is not entitled to habeas relief in federal court
unless he has first exhausted his available remedies in state
court. 28 U.S.C. § 2254(b); O'Sullivan v.
Boerkel, 526 U.S. 838, 839 (1999); Mele v. Fitchburg
Dist. Ct., 850 F.2d 817, 819 (1st Cir. 1988). To satisfy
this requirement, a petitioner must complete the state's
established appellate review process, thereby giving
“the state courts one full opportunity to resolve any
constitutional issues.” O'Sullivan, 526
U.S. at 839; accord Mele, 850 F.2d at 819. A habeas
petitioner must “show that he fairly and recognizably
presented to the state courts the factual and the legal bases
of [his] federal claim.” Adelson v. DiPaola,
131 F.3d 259, 262 (1st Cir. 1997).
Massachusetts, a petitioner must present his claims to the
SJC before asking a federal habeas court to consider them.
Mele, 850 F.2d at 820, 823. “[A]n appealed
issue cannot be considered as having been fairly presented to
the SJC for exhaustion purposes unless the applicant has
raised it within the four corners of” his brief to the
SJC. Id. at 823; see Silvia v. Hall, 193
F.Supp.2d 305, 311 (D. Mass. 2002) (finding issues were
fairly presented to the SJC where they were discussed in the
text of the fact and argument sections of the SJC petition,
though not listed among the “issues for further
“mixed petition, ” which pairs unexhausted claims
with other constitutional questions that have been fairly
presented to every level of the state courts, is subject to
dismissal unless the petitioner elects to abandon his
unexhausted claims. DeLong v. Dickhaut, 715 F.3d
382, 386 (1st Cir. 2013); accord Rose v. Lundy, 455
U.S. 509, 522 (1982).