United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON MOTION FOR A STAY OF THE
HABEAS CORPUS PETITION [DOCKET NO. 29]
JENNIFER C. BOAL, UNITED STATES MAGISTRATE JUDGE
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”). 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
FACTUAL AND PROCEDURAL BACKGROUND
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.
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Mass. 192 (1979), superseded by statute, Mass.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.
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.
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).
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.
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.
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.
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.
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).
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.