United States District Court, D. Massachusetts
ORDER AND MEMORANDUM ON RESPONDENT'S MOTION TO
DISMISS (DOCKET NO. 10)
TIMOTHY S. HILLMAN DISTRICT JUDGE.
8, 2018, Arthur Burnham (“Petitioner”) pleaded
guilty to throwing, secreting, or launching an explosive
device; malicious damage to a motor vehicle; and burning
property. (Docket No. 10-1 at 14-15). Three days later, the
trial court sentenced Petitioner to concurrent sentences
amounting to three years and one day in the house of
correction, suspended subject to compliance with certain
probation conditions. (Docket No. 10-1 at 15-16). On January
17, 2019, the probation department filed a Notice of
Surrender alleging Petitioner had violated these conditions.
(Docket No. 10-1 at 16). Following a hearing, the court
revoked probation and ordered Petitioner to serve eighteen
months in the house of correction. (Docket No. 10-1 at 18-
19). From March through June 2019, Petitioner filed three
petitions for extraordinary relief from a single justice of
the Massachusetts Supreme Judicial Court (“SJC”)
under M.G.L. c. 211 § 3, all of which were denied.
Petitioner also moved to vacate his guilty plea in state
court on May 30, 2019. (Docket No. 10-1 at 19). That motion
is still pending and has not been appealed to the SJC.
20, 2019, Petitioner filed a Petition for Writ of Habeas
Corpus with this Court raising 28 grounds of relief. (Docket
No. 1). Lewis G. Evangelidis (“Respondent”) now
moves to dismiss the petition for lack of exhaustion. (Docket
federal court may not consider a petition for habeas corpus
unless the petitioner has fully exhausted his state court
remedies. 28 U.S.C. § 2254(b)(1); see also Adelson
v. DiPaola, 131 F.3d 259, 261 (1st Cir. 1997). To
exhaust a claim, a petitioner must provide the highest state
court having jurisdiction over the claims “the
opportunity to pass upon and correct alleged violations of
its prisoners' federal rights.” Baldwin v.
Reese, 541 U.S. 27, 29 (2004) (internal quotation marks
omitted). In Massachusetts, the “decisive
pleading” is the application for leave to obtain
further appellate review from the SJC. Adelson, 131
F.3d at 263.
argues that he exhausted his claims because he filed appeals
with the SJC. (Docket No. 1 at 2, 5). The appeals to which
Petitioner refers appear to be his petitions for
extraordinary relief from a single justice of the SJC, not
any application for leave to obtain further appellate review
from the SJC. I find that these petitions “are not
sufficient to show that [Petitioner] ‘fairly
presented' the alleged violations to the highest state
court.” Kyricopoulos v. Gaffney, No. CV
17-11778-FDS, 2018 WL 889223, at *3 (D. Mass. Feb. 13, 2018),
appeal filed, No. 18-1245; see also Rodriguez v.
Spencer, 412 F.3d 29, 34 (1st Cir. 2005) (declining to
“take the absolutist position that a ch. 211, § 3
petition can never be an application for collateral review,
” but noting that “[a] ch. 211, § 3 petition
is not to be used as a substitute for normal appellate
review, and relief is not ordinarily available when the
petitioning party has or had adequate and effective avenues
other than [ch. 211, § 3], by which to seek and obtain
the requested relief” (internal quotation marks
omitted) (alteration in original)). Petitioner does not deny
that he had access to other post-conviction remedies when he
filed his petition for extraordinary relief. Indeed, he filed
a motion for a new trial just ten days after filing his
petition with Court. (Docket Nos. 1 at 6-43, 21 at 12-49).
Because he seems to have used these petitions “as a
substitute for normal appellate review” in
contravention of guidance from the First Circuit, see
Rodriguez, 412 F.3d at 34, I decline to hold that he has
exhausted his state court remedies.
alternatively suggests that he had good cause for failing to
exhaust his state court remedies because state officials
interfered with his efforts to appeal. (Docket No. 17 at 2,
5). Section 2254 provides for two scenarios in which the
exhaustion requirement does not bar federal review: (1)
“there is an absence of available State corrective
process” or (2) “circumstances exist that render
such process ineffective to protect the rights of the
applicant.” Petitioner has not shown that either
scenario applies to his case. He still has state court
remedies available-indeed, he is currently making use of his
ability to move for a new trial-and he has not provided any
details or supporting documentation for his contention that
the state courts failed to file his appeals or provide a
recording of any court proceeding.
Petitioner bears the burden of showing that he “fairly
and recognizably presented to the state courts the factual
and legal bases of [his] federal claim, ”
Coningford v. Rhode Island, 640 F.3d 478, 482 (1st
Cir. 2011) (quoting Adelson, 131 F.3d at 262), and
he has not met that burden here, I
grant Respondent's motion to
dismiss (Docket No. 10).
reasons stated above, I grant
Respondent's motion to dismiss (Docket No. 10).
statute governing appeals of final orders in habeas corpus
proceedings provides that an appeal is not permitted
“[u]nless a circuit justice or judge issues a
certificate of appealability.” 28 U.S.C. §
2253(c)(1). A certificate of appealability may issue
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make a “substantial showing,
” a petitioner must demonstrate that “reasonable
jurists could debate whether . . . the petition should have
been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473,
484, 120 S.Ct. 1595 (2000) (internal quotation marks
omitted). This is a low bar; a claim can be considered
“debatable” even if every reasonable jurist would
agree that the petitioner will not prevail. Miller-El v.
Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029 (2003). In
ruling on an application for a certificate of appealability,
a district court must indicate which specific issues satisfy
the “substantial showing” standard. 28 U.S.C.
a certificate of appealability with respect to dismissal of
the Petition because I find that Petitioner cannot
demonstrate that reasonable jurists could debate whether his
claims were exhausted or good cause existed to excuse the
lack of exhaustion.