Mitchell v. Silva

          REPORT AND RECOMMENDATION ON MOTION FOR A STAY OF THE HABEAS CORPUS PETITION [DOCKET NO. 29]

          JENNIFER C. BOAL, UNITED STATES MAGISTRATE JUDGE

         On September 19, 2017, Markeese Mitchell filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Docket No. 1 (the “Petition”).^[1] On December 12, 2018, Mitchell filed a motion seeking a stay of the Petition in order to exhaust one additional claim in state court. Docket No. 29. For the reasons set forth below, this Court recommends that the District Judge deny that motion.^[2]

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On May 24, 2010, a Suffolk County jury convicted Mitchell and three co-defendants of second-degree murder. Supplemental Answer (“S.A.”) 8. The trial judge sentenced Mitchell to life in prison. Id.

         Mitchell filed a timely notice of appeal on May 25, 2010. S.A. 8, 121. On December 3, 2012, Mitchell and his co-defendants filed a joint motion pursuant to Commonwealth v. Fidler, 377 Mass. 192 (1979), superseded by statute, Mass. R. Prof. C. 3.5, as recognized in Commonwealth v. Moore, 471 Mass. 541 (2015), in which they sought to question a juror about potential bias. S.A. 8; see also S.A. 158. On June 28, 2013, after an evidentiary hearing, the trial court denied the motion. S.A. 9, 158-67. The court specifically found that the movants had shown only that the juror did not divulge that she shared “a biological father with two individuals who had experience with the law, ” which the juror did not list on her questionnaire. S.A. 166. The movants failed to show, however, that the juror knew of these experiences or had a close relationship with her two half-siblings. Id. Accordingly, the court concluded that the movants had not demonstrated extraneous influence or bias and there was no basis to subject the juror to a post-verdict inquiry. Id.

         On January 28, 2016, the Massachusetts Appeals Court (“MAC”) affirmed Mitchell's conviction as well as the denial of the Fidler motion. S.A. 18; Commonwealth v. Mitchell, 89 Mass.App.Ct. 13 (2016). On February 18, 2016, Mitchell filed an application for further appellate review (“ALOFAR”) with the Massachusetts Supreme Judicial Court (“SJC”), which did not include a juror bias claim. S.A. 378-403. The SJC denied the ALOFAR on April 28, 2016. S.A. 18.^[3] He then filed a petition for a writ of certiorari with the U.S. Supreme Court, which was denied on October 3, 2016. Mitchell v. Massachusetts, 137 S.Ct. 232 (2016).

         Mitchell represents that, on June 29, 2017, one of his co-defendants filed a motion in state court based on newly discovered evidence that the juror posted on her social media accounts. Docket No. 30 at 3. On October 26, 2017, Mitchell himself filed a renewed Fidler motion based on the same information. S.A. 11; see Docket No. 30-1. On April 13, 2018, the trial court held an evidentiary hearing at which the juror testified. Docket No. 33-1 at 16; see also Docket No. 30-3. On or about June 6, 2018, Mitchell filed a motion for a new trial. Docket Nos. 33-1 at 16; 30-2. The trial court denied that motion on August 10, 2018 and found that the juror was not biased. Docket Nos. 33-1 at 17; 30-5. On August 22, 2018, Mitchell filed a notice of appeal. Docket No. 33-1 at 17.

         Mitchell timely filed the Petition on September 19, 2017. Docket No. 1. On December 12, 2018, Mitchell filed the instant motion seeking a stay and abeyance of the Petition to permit him to exhaust a claim of juror bias in the state courts. Docket No. 29. Respondent opposed the motion. Docket No. 33. This Court heard oral argument on May 15, 2019, after which it gave the parties additional time to brief a statute of limitations issue. Docket No. 37. Only Respondent filed a supplemental memorandum. Docket No. 38. Respondent argued that this Court should deny the motion for a stay because an exhausted juror bias claim would be time-barred under the applicable statute of limitations. Id.

         II. DISCUSSION

         A federal court may not consider a petition for a writ of habeas corpus filed under Section 2254 unless the petitioner has exhausted state court remedies for all claims raised in the petition. 28 U.S.C. § 2254(b)(1). Generally, a federal court presented with a “mixed” petition, i.e., one that includes both exhausted and unexhausted claims, must dismiss the petition or allow the petitioner to voluntarily dismiss the unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 515, 520 (1982). Under limited circumstances, however, a federal court may stay a mixed petition and hold it in abeyance while the petitioner exhausts remedies in state court. Rhines v. Weber, 544 U.S. 269, 278 (2005). Once unexhausted claims have become exhausted in state court, the petitioner may proceed again with the habeas petition in federal court. Id. This procedure allows petitioners to exhaust state remedies and then return to federal court without running afoul of the statute of limitations applicable to habeas petitions. Id. at 275.

         A stay, however, is “available only in limited circumstances, ” id. at 277, so as not to undermine Congress' design in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) to encourage finality in criminal proceedings and to streamline the federal habeas process. Josselyn v. Dennehy, 475 F.3d 1, 4 (1st Cir. 2007) (citing Rhines, 544 U.S. at 277). Therefore, a stay is only appropriate if the petitioner meets the three-part Rhines test, which requires him to show “that there was ‘good cause' for failing to exhaust the state remedies, the claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory tactics.” Id.

         It is undisputed that Mitchell has exhausted his state court remedies with respect to the grounds for relief asserted in the Petition. Mitchell's Petition, therefore, is not a typical “mixed” petition that includes both exhausted and unexhausted claims. Rather, Mitchell seeks to delay resolution of the instant Petition for the sole purpose of exhausting one additional claim (not included in the Petition) in state court. Courts in this district have treated similar petitions as mixed petitions for purposes of the Rhines analysis because their “obvious purpose is to allow for the amendment of the petition to include the currently unexhausted claim.” Womack v. Saba, No. 11-40138-FDS, 2012 WL 685888, at *2 (D. Mass. Mar. 1, 2012); see also Santana v. Ryan, No. 14-cv-14097-ADB, 2015 WL 4576913, at *3 (D. Mass. July 30, 2015); Roman v. Ryan, No. 12-30160-TSH, 2014 WL 5112112, at *2 (D. Mass. Oct. 10, 2014).

         Mitchell maintains that there is “good cause” for his failure to exhaust the juror bias claim; such claim is potentially meritorious; and he has not engaged in dilatory tactics. However, even if Mitchell has met the requirements for a stay, this Court finds that a stay is futile because any amendment to add the new claim would not relate back to the date of the Petition. Therefore, that claim would be barred by the statute of limitations. In any event, Mitchell has not demonstrated “good cause” for his failure to exhaust the juror bias claim.

         A. Fut ...