Johnson v. Rodin

926 F.Supp.2d 394

William JOHNSON, Petitioner

v.Gary RODIN, Respondent.

C.A. No. 11–cv–30174–MAP.

United States District Court, D. Massachusetts.

Feb. 28, 2013.

Kevin L. Barron, Attorney at Law, Boston, MA, for Petitioner.

Amy L. Karangekis, Attorney General's Office, Springfield, MA, for Respondent.

MEMORANDUM AND ORDER REGARDING RESPONDENT'S RENEWED MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AND PETITIONER'S MOTION TO STAY (Dkt. Nos. 26 & 28)

PONSOR, District Judge.

I. INTRODUCTION

On April 25, 2007, Petitioner William Johnson was indicted in state court for home invasion, assault with a dangerous weapon, breaking and entering, threatening to commit a crime, and malicious injury to property. After a jury-waived trial in Massachusetts Superior Court, Petitioner was found guilty on all counts.

On October 28, 2008, Petitioner filed a timely notice of appeal on his convictions to the Massachusetts Appeals Court. On June 23, 2009, the Appeals Court stayed the application to allow Petitioner to pursue a motion for new trial, which the trial judge thereafter denied without an evidentiary hearing. On October 27, 2009, Petitioner filed a timely notice of appeal from the denial of the motion for new trial. The Appeals Court consolidated the two applications and, on November 5, 2010, 78 Mass.App.Ct. 1107, 2010 WL 4366149, affirmed the convictions—except for the felony malicious injury to property ¹—as well as the trial court's order denying the motion for new trial.

On February 28, 2011, Petitioner (through counsel) filed an Application for Further Appellate Review (ALOFAR) to the Supreme Judicial Court (SJC). On April 1, 2011, the SJC denied review. On June 24, 2011, Petitioner filed a pro se habeas corpus petition in this court, setting forth two grounds for review. On August 18, 2011, Respondent Gary Roden, Superintendent of MCI–Norfolk, moved to dismiss the petition for failure to exhaust the state-court remedies. (Dkt. No. 9.) After Petitioner filed a pro se objection to the motion, the court appointed counsel for Petitioner. On March 28, 2012, the court denied without prejudice Respondent's motion to dismiss in order to permit Petitioner, now represented by counsel, to file an amended petition. On June 8, 2012, Petitioner (through counsel this time) filed a revised petition for habeas corpus. (Dkt. No. 23.)

Now before the court is Respondent's renewed motion to dismiss the petition, again for failure to exhaust the state-court remedies. (Dkt. No. 26.) In addition to opposing Respondent's motion to dismiss (Dkt. No. 31), Petitioner has filed a cross-motion to stay the petition to permit him to exhaust his claims in state court. (Dkt. No. 28.) Respondent opposes the motion to stay. (Dkt. No. 35.) For the reasons stated below, the court will deny Petitioner's motion to stay and allow Respondent's motion to dismiss unless Petitioner files another amended petition deleting the unexhausted claims on or before April 5, 2013.

II. BACKGROUND

After sentencing in state court, Petitioner filed a timely notice of appeal to the Massachusetts Appeals Court, raising two issues:

1. Whether trial counsel provided ineffective assistance by failing to move the judge to recuse herself from presiding at trial where her questions during the jury waiver colloquy exceeded the scope and depth necessary to demonstrate that [Petitioner] freely and intelligently waived the jury and required him to testify about the core issue at trial, his mental health.

2. Whether the Commonwealth introduced sufficient evidence at trial regarding the reasonable cost of repair of the injured property to support [Petitioner's] conviction on the felony malicious injury to property indictment.

(Dkt. No. 13, Ex. 2 at ADD–22.)

After receiving this appeal, the Appeals Court, as noted above, stayed review to permit Petitioner to file a motion for new trial and for an evidentiary hearing. After the trial judge denied the motion and took no action on the motion for a hearing, Petitioner filed another notice of appeal, which the Appeals Court consolidated with the first appeal. This second appeal raised the following claims:

1. Whether [Petitioner] established that trial counsel provided ineffective assistance of counsel in failing to properly investigate the facts and circumstances of the case, which precluded him from providing a factual basis to support the expert witness' opinion and the defense theory, and the trial judge abused her discretion in denying the motion [for new trial].

2. Whether [Petitioner] raised a substantial issue in his claim of ineffective assistance of counsel and supported it with a substantial showing that counsel failed to communicate with, inform and counsel [Petitioner] and failed to investigate the facts and circumstances of the case and the trial judge abused her discretion in denying [Petitioner's] motion [for new trial] without holding an evidentiary hearing.

(Dkt. No. 13, Ex. 3 at ADD–80.) On November 5, 2010, the Appeals Court affirmed the trial court's denial of the motion for new trial as well as all of Petitioner's convictions except the felony malicious injury to property, which, as noted, the court reduced to misdemeanor malicious injury to property.

On February 28, 2011, Petitioner filed an ALOFAR with the SJC, in which he raised three points:

1. The Appeals Court and the trial judge denied [Petitioner] due process in not meaningfully reviewing his case.

2. Contrary to the Appeals Court's finding that he had not, [Petitioner] raised a substantial issue meriting an evidentiary hearing.

3. The Appeals Court erred in not remanding the case for an evidentiary hearing and the trial judge abused her discretion in taking no action on [Petitioner's] motion for an evidentiary hearing.

(Dkt. No. 13, Ex. 9 at ADD–369.) The SJC denied Petitioner's ALOFAR without comment. Commonwealth v. William Johnson, 459 Mass. 1109, 944 N.E.2d 1044 (2011) (table). On June 8, 2012, Petitioner, through counsel, filed a revised petition for writ of habeas corpus in this court, raising four issues.

As to the first ground for relief, Petitioner claims that the state court decision “was based on an unreasonable determination of the facts in light of the evidence presented in the state-court proceeding,” relying on 28 U.S.C. § 2254(d)(2).² The factual foundation offered in support of this claim is, in substance, that all the evidence demonstrated that Petitioner was not criminally responsible, because, at the time of the offense on March 2, 2007, he was suffering from an untreated schizoaffective disorder. As a result, he “was unable to conform his behavior to the requirements of the law due to a need for treatment of his mental illness” as described in the opinion of the court's designated forensic psychologist. According to Petitioner, “[t]here [was] clear and convincing evidence to rebut any presumption of correctness afforded the state court's determination of this factual issue.” (Dkt. No. 23, Pet. for Writ of Habeas Corpus, at 6.)

As to the second ground for relief, Petitioner claims actual innocence. The factual foundation offered in support of this claim is, in substance, that Petitioner's unmedicated schizophrenic or schizoaffective disorder prevented him from conforming his conduct to the requirements of the law, thus rendering his state of mind such that he could not be guilty of the crimes for which he was convicted. Evidence from the field of forensic psychiatry that was not used at the time of trial, Petitioner claims, shows that the Petitioner's mental state made him unable to conform his actions to the law. Accordingly, Petitioner is actually innocent. ( Id. at 8.)

As to the third ground for relief, Petitioner claims ineffective assistance of counsel for failure to investigate and put on evidence regarding Johnson's mental illness and state of mind. The factual foundation offered in support of this claim is that, under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), Petitioner's counsel's performance was constitutionally deficient when he failed to investigate and develop the factual record at trial regarding Petitioner's two-decade-old mental history, including the fact that Petitioner was without medication at the time of the charged conduct. The failure to investigate evidence critical to Petitioner's mental state defense fell below constitutional standards.

As to the fourth ground for relief, Petitioner claims ineffective assistance of counsel for failure to object on self-incrimination grounds to the trial court's pretrial examination of Petitioner. The factual foundation of this ground is trial counsel's failure to object to the trial court's examination of Petitioner in connection with his waiver of a jury trial, resulting in the judge obtaining evidence against Petitioner. ( Id. at 11.) Finally, Petitioner asks this court to provide him an evidentiary hearing and to vacate the state court judgments. ( Id. at 16.)

III. DISCUSSION

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a petitioner must file his habeas petition within a one-year limitations period. 28 U.S.C. § 2244; Drew v. MacEachern, 620 F.3d 16, 20 (1st Cir.2010) (calculating the start of “the clock for the AEDPA's limitations period” as the day on which a petitioner's time to seek U.S. Supreme Court review of the final state court's decision expired). Moreover, for a federal court to hear a petition for writ of habeas corpus, the petitioner must first “fully exhaust[ ] his state remedies in respect to each and every claim contained within the application.” Adelson v. DiPaola, 131 F.3d 259, 261 (1st Cir.1997) (citing Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)); 28 U.S.C. § 2254(b)(1)(A) (requiring an applicant for a writ of habeas corpus to exhaust the remedies available in state courts). For a claim to be deemed exhausted, it must have...