Sullivan v. Saba

840 F.Supp.2d 429

James SULLIVAN, Petitioner

v.James SABA, Respondent.

C.A. No. 10–cv–30194–MAP.

United States District Court, D. Massachusetts.

Jan. 5, 2012.

Alan J. Black, Alan Black, Attorney at Law, Northampton, MA, Amy L. Karangekis, Attorney General's Office, Springfield, MA, for Respondent.

MEMORANDUM AND ORDER REGARDING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AND PETITIONER'S MOTION FOR STAY AND ABEYANCE OF PROCEEDINGS TO BRING FURTHER ACTION IN THE STATE COURT FOR PURPOSES OF EXHAUSTION OF STATE REMEDIES

(Dkt. Nos. 7 and 25)

PONSOR, District Judge.

I. INTRODUCTION

Petitioner, James Sullivan, was indicted in the Hampden County Superior Court on January 12, 2007, on two counts of distribution of cocaine as a subsequent offender in violation of Mass. Gen. Laws ch. 94C, § 32A(c) and (d). After a jury trial, he was found guilty on both counts. He then pled guilty to the second and subsequent portion of the offenses. Petitioner was sentenced on September 6, 2007, to eight years in prison on each count, to be served concurrently. After unsuccessfully appealing his conviction in the Massachusetts Appeals Court (“Appeals Court”) and Supreme Judicial Court (“SJC”), Petitioner filed a petition for a writ of habeas corpus (Dkt. No. 1).

Now before the court is Respondent's motion to dismiss the petition on the grounds that Petitioner has not exhausted his state court remedies. (Dkt. No. 7.) Instead of opposing the motion to dismiss, Petitioner has filed a motion to stay the proceedings to allow him to exhaust his state court remedies. (Dkt. No. 25.) Respondent opposes Petitioner's motion for a stay. (Dkt. No. 27.) For the reasons stated below, the court will allow Respondent'smotion to dismiss unless Petitioner files an amended petition deleting his unexhausted claims on or before February 10, 2012. The court will deny Petitioner's motion for a stay.

II. BACKGROUND

After the imposition of his sentence, Petitioner filed a timely notice of appeal in the Massachusetts Appeals Court. His appeal raised the following claims:

(1) The testimony of Trooper Geiger and Agent Dillon that Charles Smith became a government informant only after satisfying a criminal background check and after his veracity was corroborated gives rise to reversible error where this testimony constitutes impermissible vouching.

(2) It was prejudicial error for the trial judge to admit over objection, subject to a limiting instruction, Mr. Smith's testimony that he had purchased cocaine from the defendant prior to February 17, 2006 and February 28, 2006.

(3) The trial court committed reversible error in permitting extraneous references to a gang investigation which was immaterial to those matters before the jury.

(4) Defendant's Sixth Amendment right to confrontation was violated where the trial court erroneously admitted as evidence drug certificates in opposition to Crawford v. Washington, 541 U.S. 36[, 124 S.Ct. 1354, 158 L.Ed.2d 177] (2004).

(5) Trial counsel's failure to object to the introduction of the vouching testimony detailed in Argument I, the testimony pertaining to the gang investigation detailed in Argument III and the introduction of the drug certification detailed in Argument IV was manifestly unreasonable such that Defendant was denied his right to counsel pursuant to the Sixth and Fourteenth Amendments to the United States Constitution and Article Twelve of the Massachusetts Declaration of Rights.

(6) The combined effect of the errors detailed in Arguments I–III mandates reversal of Defendant's convictions.

(Manually Filed Exhibit, App. to Resp't's Mot. to Dismiss (“APP”), at 40, 47, 54, 59, 64, and 66.) The Appeals Court affirmed Petitioner's convictions on June 4, 2010. See Commonwealth v. Sullivan, 76 Mass.App.Ct. 864, 927 N.E.2d 519 (2010).

On June 25, 2010, Petitioner filed an application for further appellate review (“ALOFAR”) in the SJC. Petitioner argued that review of the Appeals Court decision was necessary “to clarify the state of the law in Massachusetts” (APP at 184) on the following issues:

(1) Whether, under Massachusetts law, police testimony which detailed that they verified the reliability of an individual so that they could use him as a paid informant was impermissible vouching.

(2) Whether, under Massachusetts law, it was overly prejudicial to introduce Smith's testimony which detailed his prior purchase of drugs from Mr. Sullivan.

(3) Whether, under Massachusetts law, repeated extraneous testimony that Mr. Sullivan's arrest resulted from a gang related investigation denied Mr. Sullivan a fair trial.

(4) Whether, under Massachusetts law, the introduction of two drug certificates, without an opportunity to cross-examine the chemist, constituted harmless error.

( Id. at 188, 192, 193, and 195.) The SJC denied Petitioner's ALOFAR on August 3, 2010. See Commonwealth v. Sullivan, 457 Mass. 1108, 931 N.E.2d 469 (2010).

Petitioner filed a pro se petition for a writ of habeas corpus in this court on September 29, 2010, raising four issues:

(1) Ground 1: Petitioner's Confrontation Rights 4 were violated under Crawford v. Washington, [541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ], and Melendez–Diaz v. Massachusetts, [557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) ].

Supporting Facts: State Appeals Court conceded that Trial Court erroneously admitted as evidence drug certificates. The Appeals Court deemed the error harmless in light of Informant and Officer testimony that the purported substance appeared to be cocaine.... Field Testing Officer admitted he did not have training as a Chemist, or Drug Analysis. The Officer also conceded that the field test was not intended to substitute for a laboratory test....

(2) Ground Two: Denied Full and Fair Direct Appellate Review. Process Ineffective to protect the rights of the petitioner.

Supporting Facts: It is the position of the petitioner that The Appellate Court's decision is nothing more than an attempt to circumvent established Federal Law by misconstruing the facts relevant to petitioner's Confrontation Claim[s] and State law claims.

(3) Ground Three: State Trial Court committed reversible error by allowing Impermissible Vouching, also allowed introduction of prior bad acts.

Supporting Facts: State Trooper and FBI Agent were allowed to vouch for credibility of Informant which induced the jury to trust the governments judgment, rather than its own view of the evidence. Limiting jury instruction did not void prejudicial effect of prior bad act testimony.

(4) Ground Four: Petitioner subject to Ineffective Assistance of Counsel.

Supporting Facts: Trial Counsel failed to object to irrelevant and prejudicial introduction of Vouching Testimony, introduction of testimony of gang investigation, introduction of drug certificates, which was manifestly unreasonable.

(Dkt. No. 1, Pet. for Writ of Habeas Corpus, at 5–6.)

III. DISCUSSION

A federal court cannot hear a petition for habeas corpus unless the petitioner has fully exhausted his state court remedies for every claim in the petition. 28 U.S.C. § 2254(b)(1)-(2); Rose v. Lundy, 455 U.S. 509, 518–19, 102 S.Ct. 1198, 1203–04, 71 L.Ed.2d 379 (1982). If a petition contains both exhausted and unexhausted claims, the petition must generally be dismissed. Rose, 455 U.S. at 522, 102 S.Ct. at 1205. The court also has the discretion to deny, but not grant, a mixed petition. 28 U.S.C. § 2254(b)(1)-(2). In some circumstances, a petitioner may delete his unexhausted claims and proceed only on his exhausted claims. Rhines v. Weber, 544 U.S. 269, 278, 125 S.Ct. 1528, 1535, 161 L.Ed.2d 440 (2005).

In this case, Respondent argues that none of Petitioner's four claims are exhausted, while Petitioner contends that the petition contains both exhausted and unexhausted claims. Petitioner further argues that he is entitled to a stay of his petition under Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), which allows stays under limited circumstances for mixed petitions only, while he exhausts his unexhausted claims in state court.

The court agrees with Petitioner that, despite the absence of any explicit reference to federal law in his ALOFAR, some of his federal claims have been exhausted in state court. Nevertheless, a stay is inappropriate under the factors outlined in Rhines. Because dismissing the entire petition would unfairly prevent Petitioner from obtaining any federal relief on his potentially meritorious exhausted claims, the court will allow Petitioner, if he wishes, to delete the unexhausted claims from the petition and proceed on his exhausted claims only. If Petitioner chooses not to do so, the court will dismiss the entire petition.

A. Exhaustion.

To satisfy the exhaustion requirement, a petitioner must “fairly present” his federal claim to the state court before seeking habeas review. Clements v. Maloney, 485 F.3d 158, 162 (1st Cir.2007). A claim is fairly presented when the petitioner has “tendered his federal claim ‘in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question.’ ” Id. (internal citation omitted). To do so, the petitioner must present both the facts and legal theory underlying his federal claim to the state court. Gagne v. Fair, 835 F.2d 6, 7 (1st Cir.1987).

However, in order to exhaust a federal claim, it is not always necessary to refer explicitly to a federal constitutional or statutory provision, or to any specific federal precedent. On the contrary, courts must focus on the substance rather than the form of the claims presented in state court when determining whether a claim has been exhausted. Nadworny v. Fair, 872 F.2d 1093, 1101 (1st Cir.1989). The relevant inquiry is “the likelihood that the presentation in state court alerted that tribunal to the claim's federal quality and approximate contours.” Id. at 1098 (emphasis in original).

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