United States District Court, D. Massachusetts
ERIC J. DURAND, Petitioner,
COLLETTE GOGUEN, Respondent.
AND MEMORANDUM ON PETITIONER'S REQUEST TO STAY THE HABEAS
CORPUS PROCEEDINGS PENDING APPEAL OR IN THE ALTERNATIVE
PETITIONER WILL VOLUNTARILY DISMISS CLAIMS FIVE THROUGH
TWELVE IN PETITIONER'S HABEAS CORPUS PETITION AND MOTION
TO AMEND THE COURT'S MEMORANDUM OF DECISION OF 6/28/2019
DENYING PETITIONER'S STAY TO CERTIFY THE DECISION FOR
INTERLOCUTORY REVIEW PURSUANT TO 28 U.S.C. § 1292(B) AND
GRANT PETITIONER'S REQUEST TO STAY PENDING APPEAL (DOCKET
NOS. 16 & 28)
TIMOTHY S. HILLMAN DISTRICT JUDGE.
September 21, 2018, Eric J. Durand (“Petitioner”)
moved to stay his Petition for a Writ of Habeas Corpus while
he pursued grounds five through twelve in state court.
(Docket Nos. 1 & 2). The Court denied the motion on June
28, 2019, finding that Petitioner had not shown good cause to
justify a stay under Rhines v. Weber, 544 U.S. 269
(2005) (the “June Order”). (Docket No. 14 at
7-8). But recognizing that some courts have reached an
opposite conclusion under similar circumstances, the Court
issued a certificate of appealability as to whether
representation by the same attorney at the trial and
appellate level creates good cause for the failure to exhaust
an ineffective assistance of counsel claim. (Docket No. 14 at
9-10). Petitioner now moves for the Court to certify the June
Order for interlocutory appeal and to stay his petition
pending resolution of any appeal. (Docket Nos. 16 & 28).
§ 1292(b), a district court may certify an order for
interlocutory appeal if the court is “of the opinion
that such order involves a controlling question of law as to
which there is substantial ground for difference of opinion
and that an immediate appeal from the order may materially
advance the ultimate termination of the litigation.”
Interlocutory appeals should be issued “sparingly and
only in exceptional circumstances.” Toxics Action
Ctr., Inc. v. Casella Waste Sys., Inc., 365 F.Supp.3d
212, 214 (D. Mass. 2019) (quoting McGillicuddy v.
Clements, 746 F.2d 76, 77 (1st Cir. 1984)). The Court
determines that this case does not present any
“exceptional circumstances” warranting the
issuance of an interlocutory appeal. (Docket No. 28).
the Court's decision does not rest on a controlling
question of law. “A controlling question of law usually
involves a question of the meaning of a statutory or
constitutional provision, regulation, or common law doctrine
rather than an application of law to the facts.”
Johansen v. Liberty Mut. Grp., Inc., No.
1:15-CV-12920-ADB, 2017 WL 937712, at *1 (D. Mass. Mar. 9,
2017) (internal quotation marks omitted). Here, whether
Petitioner has shown good cause involves the application of
law to the facts of his case. It has no bearing on the legal
standard which the Court will ultimately apply the merits of
the contention that an interlocutory appeal would materially
advance the termination of this litigation is mere
conjecture. See In re Zofran (Ondansetron) Prod. Liab.
Litig., 235 F.Supp.3d 317, 320 (D. Mass. 2017)
(declining to certify an interlocutory appeal where
defendant's contention that the appeal would materially
advance the termination of the litigation was conjecture).
Petitioner claims that allowing him to pursue an
interlocutory appeal will save time. (Docket No. 28 at 7).
But it will only save time if the Court denies his four
remaining claims and the appellate court reverses the finding
of no good cause, neither of which is certain at this
juncture. And in any event, the First Circuit has held that
“the fact that appreciable trial time may be saved is
not determinative.” Caraballo-Seda v. Municipality
Of Hormigueros, 395 F.3d 7, 9 (1st Cir. 2005) (internal
Petitioner has failed to establish two of the three
requirements for certifying an interlocutory appeal, the
Court denies his motion. (Docket
No. 28). And because the Court declines to find that an
interlocutory appeal without certification constitutes good
cause under Rhines,  the Court also
denies his request to stay his
petition pending resolution of the appeal. (Docket No. 16).
However, the Court grants
Petitioner's motion to dismiss grounds five through
twelve from his petition. (Docket No. 16). The June Order
instructed Petitioner “to advise this court whether he
intends to proceed based on his exhausted claims.”
(Docket No. 14). Because he timely informed the Court that he
intends to proceed based on his exhausted claims, Petitioner
may proceed with grounds one through four.
reasons stated above, the Court
denies Petitioner's Motion to
Amend the Court's June 28, 2019, Decision (Docket No.
28); and grants in part and
denies in part Petitioner's
Request to Stay the Habeas Corpus Proceedings Pending Appeal
or in the Alternative Petitioner Will Voluntarily Dismiss
Claims Five Through Twelve in Petitioner's Habeas Corpus
Petition (Docket No. 16). Claims five through twelve of the
petition are dismissed.
 Petitioner admits that, absent
certification from this Court, “it is debatable whether
the Court of Appeals has jurisdiction to hear