Mandeville v. Thompson

Filing 58

Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER 1. Petitioner's Notice to Reopen Petition for a Writ of Habeas Corpus (Docket No. 49) is ALLOWED. 2. Petitioner's Petition to Reopen Petition for a Writ of Habeas Corpus II (Docket No . 56) is DENIED as MOOT. 3. Respondent's Motion for an Enlargement of Time Within Which to File Response (Docket No. 52) is ALLOWED. 4. The Petition for a Writ of Habeas Corpus (Docket No. 2) is DENIED. 5. A COA is DENIED for all claims.(Hohler, Daniel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
R.H. MANDEVILLE,
Petitioner,

)
)
)
)
)
)
)
)

v.
MICHAEL A. THOMPSON,
Superintendent,
Respondent.

C.A. No. 05-11969-MLW

MEMORANDUM AND ORDER
WOLF, D.J.
I.

March 31, 2014

INTRODUCTION
On

September

22,

2005,

petitioner

Rae

Herman

Mandeville

("Mandeville"), proceeding pro se, initiated this habeas corpus
proceeding pursuant to 28 U.S.C. §2254.

Mandeville asserts three

grounds for relief: (1) that the trial court's charge to the jury
was an improper "call to arms"; (2) that he was denied counsel to
present his claims to the Supreme Judicial Court of Massachusetts
(the "SJC"); and (3) that he expects respondent's counsel will seek
to confuse the court, though he recognizes that this claim is
"wa[i]ved" if respondent's counsel does not act in such a manner.
This case was originally assigned to Judge Nancy Gertner, who
stayed the case in 2006 to allow Mandeville to exhaust his claims
in state court. Following Judge Gertner's retirement, the case was
transferred to this court in 2012.

Mandeville now seeks to reopen

this case and have his claims resolved on the merits.
respondent agrees with this request.
reopening this case.

The

The court is, therefore,

However, because at least one of Mandeville's claims remains
unexhausted despite his having numerous opportunities to present it
in state court, the petition is being dismissed as required by
Rhines v. Weber, 544 U.S. 269, 273 (2005).
II.

PROCEDURAL HISTORY
A.

Conviction and Direct Appeal

On June 15, 1977, following a jury trial in Suffolk County
Superior Court before Justice James P. McGuire, Mandeville was
found guilty of murder in the first degree and armed assault with
intent to murder.

Mandeville was subsequently sentenced to a term

of life imprisonment for murder and a concurrent term of eighteen
to twenty years in prison for armed assault.
The SJC, in its opinion affirming the trial court judgments,
summarized the trial proceedings:
The evidence at trial tended to show that at
approximately 10:30 P.M., on February 14, 1976, the
defendant entered the apartment of his girl friend, Emily
Kincaid, found her in bed with another woman, and shot
them both. Emily was killed, and the other woman, Donna
Lucas, was seriously wounded. Donna Lucas testified at
trial but could only give a general description of the
assailant, who was apparently masked, and could not
identify the defendant.
Among the witnesses for the
Commonwealth was Charles St. Jean, a neighbor of the
defendant. He testified that at 9 P.M., on February 14
the defendant came to St. Jean's apartment and asked to
borrow St. Jean's .22 caliber derringer. The defendant
took the gun and eight bullets, and before leaving fired
one shot into the wall. The spent projectile recovered
from the wall of St. Jean's apartment had markings that
were similar to those found on the projectiles recovered
from Emily Kincaid's body. St. Jean also testified that
the following day the defendant came to his apartment
2

with the gun looking "white and really jumpy," and told
him that "(h)e blew his girl friend away, and a guy that
was with her in bed." St. Jean then told the defendant
to take the gun and the bullets and leave. The gun was
never recovered.
Mr. Paul Conley, an attorney who was employed as a staff
psychologist at the Dimock Community Health Center, and
who was an acquaintance of the defendant, also testified
for the Commonwealth. Mr. Conley testified that on the
afternoon of February 15, 1976 (the day after the
murder), the defendant telephoned him at his home and
said that he was thinking of committing suicide by taking
an overdose of drugs. When asked why he was planning to
kill himself, the defendant indicated to Mr. Conley that
he had found his girl friend in bed with another woman
and that he had killed them both.
At Mr. Conley's
suggestion, the defendant went that evening to Mr.
Conley's home to talk. There the defendant again told
Mr. Conley that he had shot his girl friend and another
woman, and said that the shooting had occurred on the
previous evening at 10:15 P.M. After they discussed the
situation for several hours, the defendant returned to
his apartment, and a few hours later he swallowed
approximately seventy antihistamine pills. The following
morning the defendant again called Mr. Conley, and Mr.
Conley arranged to have the defendant go to the Harvard
Community Health Center. From there he was transferred
to Glenside Hospital for psychiatric treatment. A mental
health worker at the hospital, John Schafer, testified
that during the defendant's stay at the hospital the
defendant told him "he had killed his girl friend and her
friend was a vegetable." There was also testimony given
by an emergency medical technician, Thomas Seeley, who
accompanied the defendant to Glenside Hospital. Seeley
testified that, when the defendant was asked why he was
going to the hospital, he replied, "I am going to beat
it," and that the defendant asked him whether if he "told
a shrink that he had committed a crime, would the shrink
in turn have to notify the police department."
The defendant took the stand and denied that he had shot
Emily Kincaid or Donna Lucas.
He stated that on the
evening of the murder, he went to a drugstore to look at
magazines, took a walk, and went to bed.
The next
morning he went to Emily Kincaid's apartment, saw the
bodies of the two women, and left. He admitted to having
a key to the apartment at the time. He testified that he
3

then went to St. Jean's apartment in order to borrow a
gun to kill someone; however, he left without the gun.
The defendant admitted talking to St. Jean, Mr. Conley,
the emergency medical technician, and the mental health
worker, but he denied making the admissions that they
attributed to him.
Commonwealth v. Mandeville, 436 N.E.2d 912, 915-16 (Mass. 1982)
(footnote omitted).
On direct appeal to the SJC, Mandeville raised six separate
claims:
(1) the exclusion of evidence which allegedly tended to
implicate another person in the murder; (2) the exclusion
of the defendant's proffered explanation of a statement
elicited from him on cross-examination; (3) the admission
in evidence of statements made by the defendant to the
police following his arrest; (4) the reading to the
deliberating jury of the stenographer's notes of the
testimony of three prosecution witnesses; (5) the jury
instructions on the elements of malice and intent; and
(6)
the
admission
of
allegedly
confidential
communications between the defendant and a psychologist.
In addition, the defendant ask[ed the SJC] to order a new
trial or reduce the verdict pursuant to G.L. c. 278,
§33E, on the grounds that there was improper argument by
the prosecutor and that there was substantial evidence of
the defendant's mental impairment.
Id. at 914-15. The SJC examined and rejected each of these claims,
and affirmed Mandeville's conviction.

See id. at 925.

Mandeville

does not challenge any part of this decision in his present
petition.
B.

Motions for a New Trial

Following the SJC's affirmance of his conviction on direct
appeal, Mandeville filed motions for a new trial in the Suffolk
County Superior Court on August 5, 1982 (denied October 19, 1982);

4

September 13, 1991 (denied November 21, 1991); January 15, 1993
(denied June 4, 1996); and December 19, 1995 (denied May 3, 1996).1
See Super. Ct. Docket No. 1976-99597; Super. Ct. Docket No. 197699598; see also Resp't's Memo. in Supp. of Mot. to Dismiss at 3-5.
Mandeville also filed numerous motions to amend those motions for
a new trial.
SJC

until

Mandeville did not appeal any of these denials to the
November

29,

2001.

See

Docket,

Commonwealth

v.

Mandeville, SJ-2001-0558 (Docket No. 54-1, at 11-12).
C.

First Habeas Petition

On December 8, 1995, Mandeville filed a petition for a writ of
habeas corpus from this court, in a case captioned Mandeville v.
Dubois, C.A. No. 95-12115-MLW. In that petition, Mandeville stated
four grounds for relief, none of which are presented in the instant
petition. Due to a procedural error, the respondent was not served
until after the court issued an order on December 14, 1998, when
the court ordered the respondent to filed documents concerning
whether Mandeville had exhausted his available state remedies. See
Dec. 14, 1998 Memo. & Order, Mandeville v. Dubois, C.A. No. 9512115-MLW, ECF No. 9.
Mandeville conceded that he had not presented any of his

1

Mandeville also claims to have filed additional motions
for a new trial on February 1, 1993, and February 9, 1993, but as
this court has previously found, there is no record of these
motions on the state-court dockets. See May 2, 2000 Memo. &
Order at 4, Mandeville v. Dubois, C.A. No. 95-12115-MLW, ECF No.
40.
5

claims to the SJC, but he argued that his petition fell within an
exception to the exhaustion requirement because the state appeals
courts had allegedly failed to review the Suffolk Superior Court's
denials of his motions for a new trial, some of which did not
appear on either the Superior Court of Appeals Court dockets.

On

May 2, 2000, the court issued a Memorandum and Order in which it
dismissed

Mandeville's

petition

without

prejudice

to

resubmitting the petition after exhaustion of state remedies.

his
The

court wrote that:
Mandeville must promptly pursue his remedies under M.G.L.
c. 211, §3 and seek orders or writs from the Supreme
Judicial Court compelling the Massachusetts Appeals Court
to act on his notice of appeal and, if appropriate,
directing the Suffolk Superior Court to address the
motions for a new trial Mandeville claims are pending.
May 2, 2000 Memo. & Order at 10, Mandeville v. Dubois, ECF No. 40.
The court subsequently issued a certificate of appealability
on the grounds that "Mandeville has suffered substantial delay in
having

his

appeals

notwithstanding

the

heard
fact

by

the

that

he

Massachusetts
has

not

state

yet

courts,

sought

the

intervention of the Supreme Judicial Court pursuant to M.G.L. c.
211, § 3."

Sept. 8, 2000 Memo. & Order at 7, Mandeville v. Dubois,

ECF No. 46.
On September 25, 2000, Mandeville moved to reopen the case,
arguing that he had filed a petition with the SJC, but that it had
gone unanswered.

Before the court could rule on the motion to

reopen, the case was stayed pending the First Circuit's ruling on
6

appeal. See Feb. 19, 2001 Order, Mandeville v. Dubois, ECF No. 60.
On June 19, 2001, the First Circuit affirmed this court's
dismissal of the petition, concluding that "[t]he record reveals
that Mandeville has failed to complete one full round through the
state courts with respect to any of [his] claims," and that
"[u]nder the circumstances, we think that he is responsible for
much of the delay."

Mandeville v. Mahoney, No. 00-1736 (1st Cir.

June 19, 2001).
On September 17, 2001, the court denied without prejudice
Mandeville's motion to reopen the case.

The court concluded that,

based on the absence of any entry on the SJC's docket indicating
that Mandeville had filed an appeal with the SJC, he had "failed to
demonstrate that he has properly filed and served his appeal
documents."

See Sept. 17, 2001 Order at 7, Mandeville v. Dubois,

ECF No. 64.
D.

Second Habeas Petition

Mandeville returned again to federal court on September 22,
2005, when he commenced the present habeas action by filing a
motion for leave to proceed in forma pauperis and a motion to
appoint counsel.

On September 29, 2005, he filed his petition and

identified three grounds for relief.
First, Mandeville argues that the trial judge gave the jury a
"call to arms charge," in alleged violation of Cage v. Louisiana,
498 U.S. 39 (1990) and Commonwealth v. Pinckney, 644 N.E.2d 973

7

(Mass. 1995). Pet. ¶12(A). Mandeville claims that the "charge was
actuall [sic] inbetween [sic] 'Call to arms[,]' however, Petitioner
says it was enough to prejudice the jury into returning a guilty
verdict."

Id.

Second, Mandeville argues that he was "denied

counsel to prosecute an appeal to the high court," in violation of
Articles XI and XII of the Massachusetts Declaration of Rights.
See id. ¶12(B).

Third, Mandeville argues that the prosecution had

engaged in "artful pleading designed to confuse the courts," and
that he expects the same from the respondent in this case.
¶12(C).

Id.

However, Mandeville states that "[g]round three will be

currently waved [sic] by the Petitioner unless counsil [sic] for
the Suffolk County District Attorney/Attorney General's [sic]
begin" such artful pleading.

Id.

The petition did not indicate

that these three grounds for relief had not been presented in other
courts.

See id. ¶13.

Judge Gertner, to whom the case was originally assigned,
denied the petition to proceed in forma pauperis and ordered the
respondent, identified as Michael A. Thompson, the Superintendent
of M.C.I. Shirley, to file an answer or other responsive pleading
to the habeas petition.

See Oct. 6, 2005 Order at 2-3.

The respondent moved to dismiss Mandeville's petition.
Mot. to Dismiss.

See

In support of the motion to dismiss, the

respondent advanced two main arguments.

First, the respondent

argued that the petition was time barred under 28 U.S.C. §2244(d),

8

which imposes a one-year period of limitation on applications for
a writ of habeas corpus.

The respondent argued that this one-year

period started on October 25, 1996, the effective deadline for
Mandeville to file his notice of appeal from his December 19, 1995
Motion for a New Trial, which was decided on June 4, 1996.

See

Memo. in Supp. of Mot. to Dismiss at 10 (citing Mass. R. App. P.
4(b)-(c)).

The respondent argued that the period of limitations

had not been tolled and that, because the instant habeas petition
had been filed in September 2005, the one-year period had long
elapsed.

See id. at 11.

Second, the respondent argued that the petition should be
dismissed because Mandeville had failed to exhaust his state court
remedies, as is required by 28 U.S.C. §2254(b)(1). Explaining that
"a petitioner will not be found to have satisfied the exhaustion
requirement unless each and every claim in his petition has been
exhausted," id. at 13 (citing Rose v. Lundy, 455 U.S. 509, 510,
518-20 (1982)), the respondent said that neither of Mandeville's
two substantive claims2 had been presented in state court.
With
respondent

respect

to

Mandeville's

acknowledged

that

"call

to

Mandeville's

2

arms"

claim,

November

29,

the
2001

Because Mandeville had stated that his third ground for
relief would be waived unless otherwise indicated, see Pet.
¶12(C), the respondent did not consider whether this argument had
been presented in state court, see Memo. in Supp. of Mot. to
Dismiss at 14 n.8.
9

gatekeeper petition to a single justice of the SJC3 did cite Cage
and Pinckney, but argued that those cases had been offered in
support of an argument that "merely challenged the trial court's
instructions

regarding

the

standards

of

proof

required

for

conviction and the definition of reasonable doubt" and did not
discuss a "call to arms" to any degree.

Id. at 14.

With respect

to Mandeville's second claim, the respondent asserted that although
Mandeville "did raise the issue of the court's failure to provide
him with appellate counsel in his Gatekeeper Petition," he failed
to

advance

any

arguments

under

the

federal

constitution

or

otherwise alert the state courts to any federal basis for that
claim.

Id. at 16 (citing Scarpa v. DuBois, 38 F.3d 1, 6 (1st Cir.

1994)).

The

respondent

also

argued

that,

given

the

clear

availability of state collateral procedures, Mandeville's "failure
to

exhaust

was

not

excused

alternative to exhaustion."

by

application

of

any

statutory

Id.

In his response to the motion to dismiss, Mandeville alleged
that his legal actions have been impeded by "sabotage by the
courts."

Pet.'s Resp. to Mot. to Dismiss at 2.

With respect to

the period of limitations, Mandeville argued that the clock started
not in 1996, but with the denial of his SJC petition on February
10, 2005.

3

At the time the instant habeas petition was first filed,
this was the only petition to the SJC that Mandeville had filed.
10

Mandeville also did not appear to grasp the function of the
exhaustion requirement.

Although his response is difficult to

parse, it seems to imply a belief that the presentation of any
claim in state court is sufficient for the exhaustion of all
claims.

See id. at 10 ("[T]o apply for federal relief, the

Petitioner

need

only

reach

the

'Gatekeeper'

and

receive

the

'Gatekeeper's' review/judgment."). Mandeville did not contend that
the two unwaived claims in his petition had been presented in state
court, and at times Mandeville seemed to regard such a showing as
unnecessary.

For example, he indicated that the respondent was

advancing the exhaustion argument to distract the court from the
merits of his claims, saying that the motion to dismiss "is a
classic case of 'Artful Pleading' where the Respondent says the
Petitioner did not present an issue.

In fact and in reality, the

Respondent failed to present an argument which show the jury was
not influenced and effected [sic] by the ['call to arms' in the
jury instructions]." Id. at 11. With respect to the exhaustion of
his

second

claim,

regarding

his

right

to

appellate

counsel,

Mandeville argued that "the Petitioner is 'Not' required in a state
court to present a 'Federal' claim, especially to the SJC." Id. at
12.
On January 30, 2006, Judge Gertner denied respondent's motion
to dismiss and stayed the case:
The government quite properly challenges the petition on
the grounds that it was not filed within the applicable
11

statute of limitations and further, that petitioner has
failed to exhaust his state remedies on certain of his
claims. I will defer consideration of the statute of
limitations issues and any questions concerning whether
those deadlines were equitably tolled because of the
unusual history of this case. Instead, I will STAY this
action until the Petitioner has exhausted his state
remedies. Petitioner is to report on the status of his
state claims on March 31, 2006.
Jan. 30, 2006 Elec. Order.

During the pendency of the stay,

Mandeville filed a status report regarding his state court claims
every ninety days after Judge Gertner's Order, missing only one
filing in 2011.

As indicated earlier, on July 9, 2012, following

Judge Gertner's retirement, the case was reassigned to this court.
E.

The Motion to Reopen

On September 18, 2012, Mandeville filed a Notice to Reopen
Petition for a Writ of Habeas Corpus (the "Motion to Reopen").
Mandeville seeks to reopen this habeas case and add additional
arguments, at least some of which he admits have not been addressed
by the state courts.

As grounds for the Notice to Reopen,

Mandeville states that on August 30, 2012, the SJC denied his
petition for leave to appeal the denial of his motion for a new
trial.

Mandeville maintains that the SJC's August 30, 2012 Order

shows that he has no further recourse in the state courts.
On March 22, 2013, the court ordered Mandeville to file a
report stating whether the particular claims in his habeas petition
were presented to and/or decided by the state courts. See Mar. 22,
2013 Order at 3.

The respondent was ordered to respond to

12

petitioner's Motion to Reopen, and address the issue of exhaustion.
See id. at 4.
In his response to the March 22, 2013 Order, Mandeville
evinced a persistent misunderstanding of the exhaustion requirement
and the rationale behind Judge Gertner's stay of the case:
The dismissal of Feb. 2005 left the defendant to
understand why a review of the Defendant's new issues
were denied, and in essence, they were not reviewed.
Only two were and they are in the U.S. Courts.
Pet.'s Resp. to Mar. 22, 2013 Order Ex. 1 at 9. Accordingly,
Mandeville appears to believe that the stay was granted so that he
could exhaust claims other than those presented in his original
petition.

The response also indicated that on October 4, 2012,

Mandeville had filed yet another §33E petition, a copy of which he
included.

See id. Ex. 1.

That petition discussed several other

alleged trial errors, including faulty ballistics evidence and
violation

of

the

attorney-client

privilege.

Id.

at

6-7.

Mandeville's petition noted that "[h]aving some experience with the
Federal Courts, the Defendant herein tried to anticipate what issue
the U.S. Courts - may send the Defendant back to the SJC."
7.

Id. at

In essence, this §33E petition indicates that Mandeville was

attempting to exhaust all of his other potential claims, not those
raised in the instant habeas petition.
The respondent filed a motion for an extension of time to file
a response to the March 22, 2013 Order, seeking additional time to
investigate Mandeville's claim that he had filed an additional
13

petition for leave to appeal the denial of his motion for a new
trial.

Because the court finds that there was good cause for an

extension of time for the respondent's filing, the respondent's
motion is being allowed.
In his response to the March 22, 2013 Order, the respondent
largely repeated the arguments he first advanced in 2006 in support
of his motion to dismiss.

First, the respondent argued that

Mandeville's claims, as presented in his original habeas petition,
remain unexhausted.

The respondent noted that Mandeville's July

13, 2012 §33E petition "did not advance any claim resembling either
of the two in his [habeas] Petition," Resp't's Resp. to Order of
Mar. 22, 2013 at 3. The respondent also reported that Mandeville's
October 4, 2012 §33E petition did not appear on the SJC docket "or
any other state appellate court docket bearing the Petitioner's
name."

Id. at 4.

Accordingly, the respondent urged the court to

allow Mandeville's motion to reopen the petition and to dismiss the
case.

See id. at 6.

Finally, the respondent reiterated his

earlier argument that Mandeville's petition is time-barred.

See

id.
Mandeville

then

submitted

a

confusing

reply

to

the

respondent's filing, in which he argued that "[a]ny problems with
papers not being marked or docketed . . . seem to be more on the
pert [sic] of Court Personal [sic]."

Pet'r's Resp. to Resp't's

Resp. at 6. On August 14, 2013, Mandeville filed another motion to

14

reopen the case, devoting much of his motion to the discussion of
legal arguments not addressed to issues raised in his habeas
petition.

Aug. 14, 2013 Mot. to Reopen Case at 6-12.

III. DISCUSSION
A.

The Exhaustion Requirement

This court's review of the Mandeville's petition is governed
by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 110
Stat. 1214 (1996), codified at 28 U.S.C. §2254.
In circumscribing the scope of habeas relief, AEDPA provides
that:
The Supreme Court, a Justice thereof, a circuit judge, or
a district court shall entertain an application for a
writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.
28 U.S.C. §2254(a).

Accordingly, habeas review is available only

for federal claims, and does not extend to alleged errors of state
law.

See Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011).
AEDPA also provides that before a petitioner may challenge his

custody under federal law, his federal claims must have been
presented in state court:
An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted unless it appears that —
(A)

the applicant has exhausted the remedies
available in the courts of the State; or

(B) (i)

there is an absence of available State
15

corrective process; or
(ii)

circumstances exist that render such
process ineffective to protect the rights
of the applicant.

28 U.S.C. §2254(b)(1).

Furthermore, "[a]n applicant shall not be

deemed to have exhausted the remedies available in the courts of
the State, within the meaning of this section, if he has the right
under the law of the State to raise, by any available procedure,
the question presented."

Id. §2254(c).

This exhaustion requirement gives state courts an opportunity
to consider and correct alleged violations of its prisoner's
federal rights.
"To

provide

the

See Picard v. Connor, 404 U.S. 270, 275 (1971).
State

with

the

necessary

'opportunity,'

the

prisoner must 'fairly present' his claim in each appropriate state
court (including a state supreme court with powers of discretionary
review), thereby alerting that court to the federal nature of the
claim."

Baldwin v. Reese, 541 U.S. 27, 29 (2004).

A fairly

presented claim will make it probable that a reasonable jurist
would have been alerted to the existence of the federal question.
See Nadworny v. Fair, 872 F.2d 1093, 1101 (1st Cir. 1989).

The

burden of proving that a federal claim has been exhausted at the
state court level is on the petitioner.
"is a heavy one."

Id. at 1098.

This burden

Id.

"[O]rdinarily a state prisoner does not 'fairly present' a
claim to a state court if that court must read beyond a petition or

16

a brief (or a similar document) . . . in order to find material,
such as a lower court opinion in the case, that does so."
v. Reese, 541 U.S. 27, 32 (2004).

Baldwin

This general rule means that "an

appealed issue cannot be considered as having been fairly presented
to the SJC for exhaustion purpose unless the applicant has raised
it within the four corners of [his petition to the state's highest
court]."

Mele v. Fitchburg Dist. Ct., 850 F.2d 817, 823 (1st Cir.

1988).
The exhaustion requirement does not permit courts to excise
unexhausted claims from habeas petitions in order to decide claims
that have been exhausted.

Instead, "federal district courts may

not adjudicate mixed petitions for habeas corpus, that is petitions
containing both exhausted and unexhausted claims. . . . [T]he
interests of comity and federalism dictate that state courts must
have the first opportunity to decide a petitioner's claims."
Rhines, 544 U.S. at 273 (citing Rose, 455 U.S. at 518-19).

The

Supreme Court has held that, in order to prevent a petitioner from
forfeiting claims due to AEDPA's one-year period of limitations,
district courts may grant a stay to permit the
exhaust his remedies in state court.

petitioner to

See id. at 275-76.

However,

"[e]ven where stay and abeyance is appropriate, the district
court's discretion in structuring the stay is limited by the
timeliness concerns reflected in AEDPA.

A mixed petition should

not be stayed indefinitely."

As the First Circuit has

Id. at 277.

17

explained the Supreme Court's decision in Rhines:
"[S]tay and abeyance is only appropriate when the
district court determines there was good cause for the
petitioner's failure to exhaust" and even so, it would be
an abuse of discretion for the district court to grant a
stay when the "unexhausted claims are plainly meritless."
DeLong v. Dickhaut, 715 F.3d 382, 387 (1st Cir. 2013) (citing
Rhines, 544 U.S. at 277).
B.
In

Analysis
this

case,

there

are

multiple

theories

on

which

Mandeville's petition could be evaluated. As AEDPA provides, "[a]n
application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State."

Id. §2255(b)(2).

Moreover, as Judge Gertner recognized, the instant petition is
arguably time barred. However, in prior stages of this litigation,
the parties and the court have focused primarily on the application
of the exhaustion requirement.

It is, therefore, appropriate to

begin, and end, with this requirement.
1.

Exhaustion of Petitioner's Claims

As the record reveals, Mandeville has not presented one of the
two

remaining

claims

in

his

petition,

framed

as

an

alleged

violation of federal law, in state court.
In order to satisfy the exhaustion requirement, Mandeville
must show that he presented his arguments to the SJC, not simply to
lower state courts.

As the First Circuit has explained:

18

Exhaustion obligations mandate that a habeas petitioner
present, or do his best to present, his federal claim to
the state's highest tribunal. Accordingly, the decisive
pleading is the application for further appellate review,
and we must determine whether the petitioner fairly
presented the federal claim to the SJC within "the four
corners" of that application.
Adelson v. DiPaola, 131 F.3d 259, 263 (1st Cir. 1997) (citations
omitted). The state-court record reveals that Mandeville has filed
only two petitions in the SJC, both of which were "Gatekeeper
Petitions"

under

Massachusetts

General

Laws

ch.

278

§33E.4

Accordingly, if the claims raised in Mandeville's habeas petition
do not appear "within the four corners" of those §33E petitions,
they have not been exhausted.
Examining these petitions, the court finds that although
Mandeville has arguably exhausted his "call to arms" claim, he has
not exhausted his claim regarding the right to appellate counsel.
a.

Ground One: "Call to Arms"

Mandeville's first gatekeeper petition was filed on November
29, 2001, and was denied on February 10, 2005.

See Docket,

Commonwealth v. Mandeville, SJ-2001-0558 (Docket No. 54-1, at 1112).

That petition consisted of a short cover memorandum, which

summarized the procedural history as Mandeville characterized it,

4

Section 33E provides that where a motion for a new trial
is filed in the Superior Court after the SJC has issued its final
decision on direct appeal, "no appeal shall lie from the decision
of that court upon such motion unless the appeal is allowed by a
single justice of the supreme judicial court on the ground that
it presents a new and substantial question which ought to be
determined by the full court." Mass. Gen. Laws ch. 278, §33E.
19

and attached copies of Mandeville's previous motions for a new
trial.

See Def.'s Pet. to the Single Justice (Resp't's App'x Ex.

F, Docket No. 11).

Rather than recapitulating the arguments he

made in those motions, Mandeville's petition simply requested that
"[t]he SJC hear and make determination[s] on his four (4) attached
motion[s] for a new trial [and] over turn the Defendant[']s
convictions and grant his new trial."

Id. at 3.

One of the decisions Mandeville challenged in that petition
was the denial of December 19, 1995 motion for a new trial, in
which he argued that the trial judge's use of the phrase "moral
certainty" had lowered the Commonwealth's burden of proof, in
violation of Cage, 498 U.S. 39, and Pinckney, 644 N.E.2d 973.

See

Def.'s Pet. to the Single Justice Ex. F.
Justice Francis X. Spina, serving as the §33E gatekeeper,
denied the petition, concluding that it did not present a "new and
substantial question" that would entitle Mandeville to appeal
before the full SJC. The only argument that Justice Spina examined
in

any

depth

instructions.

was

Mandeville's

claim

regarding

the

jury

Justice Spina concluded that Mandeville had waived

the argument by not presenting it earlier.

See Memo. & Order at 3,

Commonwealth v. Mandeville, No. SJ-2001-0558 (Mass. Feb. 10, 2005).
Furthermore, Justice Spina concluded that "[e]ven if there were no
waiver, the defendant would not be entitled to relief," primarily
because the trial judge used the phrase "moral certainty" together

20

with other "language that emphasized the high degree of certainty
required to convict the defendant."

Id. at 4.

As explained earlier, Mandeville's first habeas claim is that
the trial judge made a "call to arms" to the jury in violation of
Cage, 498 U.S. 39, and Pinckney, 644 N.E.2d 973.

Pet. ¶12(A).

Again, Mandeville cited these cases in his §33E petition in support
his argument that the trial judge had lowered the burden of proof
necessary for a conviction, and Justice Spina also cited those
cases in his denial of Mandeville's petition.
In his habeas petition and other submissions, Mandeville has
not clearly articulated his view of the "call to arms."
of

federal

court

decisions

reveals

that

this

phrase

A review
has

no

significance in the jurisprudence surrounding jury instructions.
However, Mandeville's own description of his §33E petition sheds
some light on what he believes the "call to arms" argument to be.
In his habeas petition, Mandeville is explicit that his 2001 §33E
petition raised the issue of whether "[t]he instructions to the
jury were in essence in between the 'Call to arms' Comm V Pickeny
[sic], 419 Mass. 341, and other cases such as Cage V Louisianna
[sic], 498 U.S. 39 and others."

Pet. ¶9(e)(4).

Accordingly, the

phrasing of the habeas petition implies that Mandeville believes
the "call to arms" argument to be identical to his argument in
state

court

that

the

trial

judge

Commonwealth's burden of proof.

impermissibly

lowered

the

Therefore, the court finds that

21

Mandeville's habeas claim was presented to the SJC in his 2001 §33E
petition and is, therefore, exhausted for purposes of habeas
review.
b.

Ground Two: Right to Counsel

Mandeville's other remaining habeas claim is that "he was
denied counsel to prosecute an appeal to the high court."
¶12(B).

Pet.

The record reveals that Mandeville was represented by

William J. Leahy, Esq., during his direct appeal.

See Def.'s

Brief, Commonwealth v. Mandeville, Case No. SJC-01961 (Mass. 1981)
(Resp't's Suppl. App'x Ex. A, Docket No. 16).

Accordingly,

Mandeville is evidently referring to the denial of counsel for his
collateral challenges to his conviction.

Although Mandeville's

habeas petition cites only the Massachusetts Declaration of Rights,
his other submissions to this court indicate that he also conceives
of

this

right-to-counsel

constitution.
Order

at

6-7

claim

as

arising

under

the

federal

See Pet.'s Resp. to Resp't's Resp. to Mar. 22, 2013
(citing

First,

Fifth,

Sixth,

and

Fourteenth

Amendments); Pet.'s Second Mot. to Reopen at 4 (citing Fourteenth
Amendment).
In his habeas petition, Mandeville claims that this claim was
raised in a motion for appointment of counsel that accompanied his
2001 §33E petition.

See Pet. ¶11(b).

"move[d]

to

the

court

appoint

legal

In that motion, Mandeville
repersentation

[sic]

to

repersent [sic] the Defendant on his four (4) motions for a new

22

trial appeal."

Def.'s Mot. for Appointment of Legal Counsil [sic]

(State Court R. at 18, Docket No. 4).

The SJC docket shows that

this motion was denied without a hearing on May 2, 2002.

See SJC

Docket (Resp't's App'x Ex. C, Docket No. 11).
In support of this motion, Mandeville cited only Articles XI
and XII of the Massachusetts Declaration of Rights, and did not
articulate any arguments based on federal law.

See Def.'s Mot.

for Appointment of Legal Counsil. Although both the Massachusetts
and federal constitutions recognize the right to counsel on direct
appeal, the federal constitution does not provide "any right to
counsel in state collateral proceedings after exhaustion of direct
appellate review."
(citing

Coleman v. Thompson, 501 U.S. 722, 756 (1991)

Pennsylvania

v.

Finley,

481

U.S.

551,

556

(1987)).

Accordingly, Mandeville did not present this claim "in such a way
as to make it probable that a reasonable jurist would have been
alerted to the existence of a federal question."
DuBois, 38 F.3d 1, 6 (1st Cir. 1994).
would

have

understood

that

no

Scarpa v.

Rather, a reasonable jurist

such

federal

right

existed.

Accordingly, Mandeville did not exhaust this claim in his 2001
§33E petition.
Nor did Mandeville exhaust this claim in any subsequent
petition or motion to the SJC.

The second gatekeeper petition,

which came after the commencement of the stay in this case, was
filed on July 13, 2012.

See SJC Docket (Resp. to Mar. 22, 2013

23

Order App'x at 10, Docket No. 54-1).

That petition contains a

variety of arguments, primarily related to ineffective assistance
of counsel.

The petition does not contain any discussion of

Mandeville's current claim regarding denial of access to counsel.
Mandeville, in his response to the March 22, 2013 Order,
claims that he submitted a second §33E gatekeeper petition on
October 4, 2012.

He also included a copy of this alleged petition

with his filing, see Pet.'s Resp. Ex. 1 at 3 ("Defendant's
Petition to the Single Justice II"), as well as a Motion for the
Appointment of Counsel that he claims was filed with his petition,
see id. Ex. 1 at 1.

The SJC docket does not indicate that this

petition or the motion were ever filed.

See SJC Docket (Resp. to

Mar. 22, 2013 Order App'x at 10, Docket No. 54-1).

However, even

if they had been filed, they do not mention Mandeville's current
federal claim regarding denial of counsel.
1 at 1.

See Pet.'s Resp. Ex.

As with Mandeville's 2002 motion for appointment of

counsel, this motion cites only the Massachusetts Declaration of
Rights and makes no claims under federal law.
Having examined all of Mandeville's filings to the SJC, the
court concludes that Mandeville did not present the SJC with any
claims under federal law resembling the second ground presented in
his habeas petition.
2.

Therefore, this ground remains unexhausted.

Continuing the Stay Would Be an Abuse of Discretion
and, In Any Event, is Unjustified

As explained earlier, a stay of proceedings to permit a
24

petitioner to exhaust state remedies is not permissible if the
petitioner has failed to show good cause for his failure to
exhaust or if the "unexhausted claims are plainly meritless."
DeLong,

715

F.3d

at

387

(quoting

Rhines,

(internal quotation marks omitted).

U.S.

at

277)

Under this standard, the

continuance of this stay is unjustified.
inappropriate.

544

See

In any event, it is

Therefore, the petition is being denied.

First, Mandeville has not shown good cause for his failure to
satisfy the exhaustion requirement with respect to the second
claim

presented

demonstrated

a

in

his

habeas

persistent

petition.

misunderstanding

Instead,
of

the

he

has

exhaustion

requirement, despite it being described in this court's dismissal
of his first habeas petition, and his being provided a stay of
more

than

six

years

in

this

case

to

exhaust

his

claims.

Mandeville has argued that "the Petitioner is 'Not' required in a
state court to present a 'Federal' claim, especially to the SJC."
Pet.'s Resp. to Mot. to Dismiss at 12.

This is not correct.

See

Clements v. Maloney, 485 F.3d 158, 162 (1st Cir. 2007) ("In order
to exhaust a claim, the petitioner must 'present the federal claim
fairly and recognizably' to the state courts . . . ." (quoting
Casella v. Clemons, 207 F.3d 18, 20 (1st Cir. 2000)).
Second,
meritless."

Mandeville's

unexhausted

claim

is

"plainly

As explained earlier, a defendant has no right to

counsel under the federal constitution once state courts have

25

concluded direct appellate review of a conviction.
501 U.S. at 756.

See Coleman,

To the extent that Mandeville raises a claim

under the Massachusetts Declaration of Rights, federal courts are
not authorized to issue writs of habeas corpus based upon errors
of state law.

See 28 U.S.C. §2254(a).

Continuing the stay in this case would "frustrate[] AEDPA's
objective of encouraging finality by allowing [the] petition to
delay the resolution of the federal proceedings."
U.S.

at 277.

Rhines, 544

Accordingly, in accordance with the requests of

both the petitioner and the respondent, the stay is being lifted.
A district court, in the absence of a stay, is compelled to
dismiss such a mixed petition.

See Rose, 455 U.S. at 510.

Therefore, the petition is also being dismissed.
IV.

CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing Section 2254

Proceedings, the court must "issue or deny a certificate of
appealability [("COA")] when it enters a final order adverse to
the applicant."

To receive a COA, Mandeville must make "a

substantial showing of a denial of a constitutional right."
28 U.S.C. §2253(c)(3).

See

In other words, a petitioner must "show[]

that reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different
manner or that the issues presented were 'adequate to deserve
encouragement to proceed further.'"
26

Slack v. McDaniel, 529 U.S.

473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893
(1983)).

"[A] claim can be debatable even though every jurist of

reason might agree, after the COA has been granted and the case
has

received

prevail."

full

consideration,

that

petitioner

will

not

Miller-El v. Cockrell, 537 U.S. 322, 338 (2003).

As explained earlier, Mandeville has never presented his
right-to-counsel claim, articulated under federal law, in state
court.

Furthermore, Mandeville has expressly denied that he has

any obligation to make such a presentation.

Given that this

unexhausted claim is "clearly meritless" and that Mandeville has
not shown good cause for his failure to exhaust, continuing the
stay of proceedings would be an abuse of discretion.
715 F.3d at 387 (citing Rhines, 544 U.S. at 277).

See DeLong,
Furthermore,

the continued inclusion of Mandeville's unexhausted claim mandates
dismissal of his petition in its entirety.

See Rose, 455 U.S. at

510.
Under these circumstances, the court does not find 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.'"
893).

Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S. at

Therefore, a COA is being denied for all claims.

27

V.

ORDER
Accordingly, it is hereby ORDERED that:
1.

Petitioner's Notice to Reopen Petition for a Writ of

Habeas Corpus (Docket No. 49) is ALLOWED.
2.

Petitioner's Petition to Reopen Petition for a Writ of

Habeas Corpus II (Docket No. 56) is DENIED as MOOT.
3.

Respondent's Motion for an Enlargement of Time Within

Which to File Response (Docket No. 52) is ALLOWED.
4.

The Petition for a Writ of Habeas Corpus (Docket No. 2)

is DENIED.
5.

A COA is DENIED for all claims.

/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE

28