Watt v. Marchilli (217 F. Supp. 3d 434, 2016)

MEMORANDUM OF DECISION AND ORDER

Hillman, District Judge

Background

Francis Watt (“Watt” or “Petitioner”) has filed a petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (“Petition”) alleging the following grounds for relief:

Ground One: Petitioner was denied his constitutional right to effective assistance of counsel when his attorney failed to present mitigating factors to the sentencing court, such as his age, health and medical issues, resulting in him receiving an unjustly harsh sentence; and the case against him was based on circumstantial evidence and was weak and therefore, the trial court erred by denying Petitioner’s motions for a required finding of not guilty.

Ground Two: Petitioner’s sentence was defective: the sentencing guideline range should have been considered and mitigating factors should have been applied.

Ground Three: Petitioner has obtained newly discovered evidence which would have impeached the alleged victim’s credibility and changed the outcome of the trial.

Ground Four: The trial court erred by denying his motion to dismiss the indictment and he received ineffective assistance of counsel as the result of his attorney’s failure to effectively argue for dismissal of the indictment and as the result of his appellate attorney’s failure to raise the issue on appeal.

This Memorandum of Order and Decision addresses Respondent’s Motion to Dismiss For Failure To Exhaust state Court Remedies (Docket No. 16) and Petitioner’s Motion To Hold Habeas Corpus Petition In Abeyance (Docket No. 18). More specifically, Respondent asserts that the Petition should be dismissed because Watt has failed to exhaust his state court judicial remedies with respect to all asserted grounds for relief. In turn, Watt has filed a motion requesting that the Court stay this proceeding to permit him to return to state court and exhaust his claims. For the reasons set forth below, Respondent’s motion to dismiss is allowed, and Petitioner’s motion to stay is denied.

Facts

Watt was convicted by a jury of aggravated rape of a child, assault with intent to rape a child, and indecent assault and battery on a child under the age of fourteen years old. He filed a direct appeal of his conviction to the Massachusetts Appeals Court (“MAC”) asserting that the trial judge erred by denying his motion for a directed finding of not guilty because there was insufficient evidence to support his convictions for aggravated rape and indecent assault and battery on a child under fourteen years of age. On May 20, 2015, the MAC affirmed Watt’s conviction after finding that the verdicts were supported by an abundance of evidence, both direct and circumstantial. See Commonwealth v. Watt, 87 Mass.App.Ct. 1122, 31 N.E.3d 76 (2015)(unpublished opinion). Watt filed an Application For Leave To Obtain Further Appellate Review (“ALOFAR”) with the Massachusetts Supreme Judicial Court (“SJC”) asserting the following grounds for relief: (1) whether it was error to deny Watt’s motion for a required finding of not guilty for the offense of aggravated rape where there was insufficient evidence to sustain the conviction; and (2) whether it was error to deny Watt’s motion for a required finding of not guilty for the offense of indecent assault and battery on a child under fourteen years of age, where there was insufficient evidence to sustain the conviction. On June 26, 2015, the SJC denied Jimenez’s ALOFAR. See Commonwealth v. Watt, 472 Mass. 1103, 35 N.E.3d 721 (2015) (Table).

Discussion

Whether Petitioner’s Claims are Exhausted

“[A] federal court will not entertain an application for habeas relief unless the petitioner first has fully exhausted his state remedies in respect to each and every claim contained within the application”. See Adelson v. DiPaola, 131 F.3d 259, 261 (1st Cir. 1997). “This exhaustion requirement ... embodies principles of federal-state comity and is designed to provide state courts with an initial ‘opportunity to pass upon and correct alleged violations of [their] prisoners’ federal rights’ ”. Barresi v. Maloney, 296 F.3d 48, 51 (1st Cir. 2002)(quoting Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971))(alteration in original). Furthermore, while “[a] petitioner need not express his federal claims in precisely the same terms in both state and federal courts,” the claims presented in the petitioner’s federal habeas petition must be substantially equivalent to the claims he presented to the state court. Id., at 51-52 (citing Picard, 404 U.S. at 277-78, 92 S.Ct. at 513).

A claim is fairly presented so long as it is made in such a way that ‘a reasonable jurist’ would have recognized ‘the existence of the federal question.’ Where, as here, a state’s highest court offers discretionary review, a petitioner must present that court with the opportunity to review the federal claim to have exhausted available state remedies

The SJC has the power of discretionary review over decisions of the [MAC], An unsuccessful party before the [MAC] seeks discretionary review from the SJC by filing an ALOFAR. The ALOFAR must include ‘a statement of the points with respect to which further appellate review of the decision of the appeals court is sought.’

Josselyn v. Dennehy, 475 F.3d 1, 2-3 (1st Cir. 2007)(internal citations and citations to quoted authorities omitted).

I agree with the Respondent that it is clear on the face of the ALOFAR that Watt did not present his second, third and fourth grounds for relief to the state courts prior to filing his Petition. Moreover, to the extent that in ground one he is asserting a claim for ineffective assistance of counsel as the result of his attorney’s failure to raise mitigating factors at his sentencing hearing, that claim was also not presented to the state courts. I do find that Watt at least raised with the state courts the claim asserted in ground one that it was error for the trial court to deny his motions for a required finding of not guilty for the offenses of aggravated rape and indecent assault and battery on a child under fourteen years of age. However, it is not enough that Watt presented the factual underpinnings of his claim to the state courts—Watt must have alerted the state courts as to existence of a federal question.

Neither party has provided the Court with copies of brief which Watt filed in his direct appeal to the MAC. In its decision denying Watt’s appeal, the MAC cited only to Massachusetts case law. However, the First Circuit has found that the sufficiency of the evidence test under Massachusetts state law is “functionally identical to the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard the Supreme Court applies in sufficiency challenges.” Logan v. Gelb, 790 F.3d 65, 71 (1st Cir. 2015). Therefore, I will assume that Watt alerted the MAC as to the federal nature of his claim. After the MAC denied his appeal, Watt filed an ALOFAR in which he presented two issues for SJC review: (1) whether it was error to deny his motion for a required finding of not guilty for the offense of aggravated rape where there was insufficient evidence to sustain the conviction; and (2) whether it was error to deny his motion for a required finding of not guilty for the offense of indecent assault and battery on a child under fourteen years of age where there was insufficient evidence to sustain the conviction. In support, Watt asserted that his convictions should not stand because there was insufficient evidence to support all of the essential elements of the offenses for which he was convicted. However, he did not expressly raise a claim for violation of his federal constitutional rights, cite to the federal constitution or cite to any cases discussing federal constitutional law. Moreover, nothing in his legal arguments would have alerted the SJC as to the presence of a federal claim for violation of his due process rights. Therefore, I find that Watt has also failed to -exhaust this claim. Watt presumed that he had presented the Court with a so-called mixed petition—that is, a petition containing both exhausted and unexhausted claims. He has filed a motion requesting that rather than dismiss his Petition, the Court stay the proceedings and permit him to return to state Court to exhaust his remedies. I will first address whether this stay and abeyance procedure, approved by the Supreme Court in Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), applies to habeas petitions that contain only unexhausted claims. If I find that the Rhines’ stay and abeyance procedure applies in such cases, I must then determine whether Watt has established good cause for entry of a stay.

Whether Petitioner is Entitled to a Stay

In Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the Supreme Court held that a federal district court could not adjudicate a mixed habeas corpus petition, that is a habeas petition containing both exhausted and unexhaust-ed claims. Instead, a petitioner was given the option