Mercado v. Roden

Filing 21

Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER denying 16 Petitioner's Motion to Stay. However, the court shall stay this action for 90 days to determine if counsel can be located to represent the petitioner in connection with the pending habeas petition. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

JOSE M. MERCADO, JR.,
Petitioner,
v.
GARY RODEN,
Respondent.

)
)
)
)
)
)
)
)

CIVIL ACTION
NO. 11-10321-JGD

MEMORANDUM OF DECISION AND ORDER ON
PETITIONER’S MOTION TO STAY PROCEEDINGS
October 4, 2012
DEIN, U.S.M.J.
I. INTRODUCTION
The petitioner, Jose M. Mercado, Jr. (“Mercado” or the “defendant”), is presently
serving a life sentence following his state court conviction on December 16, 2005 for
first-degree murder and unlawful possession of a firearm. He filed a timely petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254, which is pending.
This matter is presently before the court on Petitioner’s Motion to Stay Proceedings pursuant to which Mercado is seeking to stay these habeas proceedings so that he
can pursue several unexhausted claims in state court. These claims are based on trial
counsel’s alleged failure to present the testimony of three witnesses at trial, the alleged
wrongful exclusion of family members from the courtroom during jury selection, and the

alleged failure of counsel to present certain mental health issues and records to the court
during trial.
After a careful review of the record, this court finds that Mercado has failed to
establish good cause for having failed to exhaust these claims. Therefore, and for the
reasons detailed more fully herein, the Motion to Stay (Docket No. 16) is DENIED.
However, the court shall stay this action for 90 days and attempt to locate counsel to
represent the petitioner in connection with the pending habeas petition.
II. STATEMENT OF FACTS1
The Underlying Crime
Since the events relating to the underlying crime are not relevant to the instant
motion, they will be discussed only briefly. As described by the Massachusetts Supreme
Judicial Court in connection with its review of his conviction,2 the jury could have found
that Mercado engaged in an altercation with the victim on June 21, 2002 in the parking
lot of a liquor store in Brockton, Massachusetts. Commonwealth v. Mercado, 456 Mass.
198, 199-200, 922 N.E.2d 140, 143 (2010). The dispute was a continuation of a running
argument about the defendant’s failure to pay for a car, which he had bought from the
victim and which had broken down. Id. at 200, 922 N.E.2d at 143. There were many

1

The record below is included in the Supplemental Answer (“SA”) found at Docket

No. 13.
2

The facts as found by the state courts are entitled to a presumption of correctness under
28 U.S.C. § 2254(e)(1).

-2-

people in the immediate vicinity, including children and one Nelly Corea, who had set up
a chair in the parking lot to braid hair for money. Id. at 199, 922 N.E.2d at 143. The
argument became heated and the two men were “chest butting” before the defendant left
for a period of time. Id. at 200, 922 N.E.2d at 143-44. When the defendant returned, the
victim was having his hair braided by Corea. Id. at 201, 922 N.E.2d at 144. The defendant had a gun and he shot the victim once, fatally, in the chest. Id. The defendant
subsequently confessed. Id. at 201-02, 922 N.E.2d at 144-45.
Procedural Background - State Court Proceedings
Mercado was convicted by a Plymouth County jury on December 16, 2005 of first
degree murder on a theory of deliberate premeditation and unlawful possession of a
firearm. (SA 8). He was sentenced to life imprisonment with a concurrent sentence of
one year to one year and one day on the firearms charge. (Id.). Mercado filed a timely
appeal to the Massachusetts Supreme Judicial Court (“SJC”) wherein he raised the
following claims: (1) that the trial judge impermissibly restricted his cross-examination of
Corea, a Commonwealth witness; (2) that trial counsel failed to object to the trial judge’s
refusal to instruct the jury on self-defense; (3) that trial counsel failed to object to the
judge’s instruction on mental impairment; and (4) that the trial judge failed to give a
curative instruction concerning the prosecutor’s repetitive mocking of the defendant’s
family during his summation. (SA 21-22). He also requested that the SJC exercise its
powers under Mass. Gen. Laws ch. 278, § 33E and either grant him a new trial or reverse

-3-

the verdict. (SA 22). In an opinion dated March 3, 2010, the SJC affirmed his convictions. Commonwealth v. Mercado, 456 Mass. 198, 922 N.E.2d 140 (2010).
On September 13, 2010, Mercado filed a pro se motion for a new trial. (SA 9,
135). Therein he argued to the trial court, inter alia, that he had been wrongfully
precluded from putting in evidence relating to self-defense; he had not knowingly,
intelligently and voluntarily waived his right to testify since he was being medicated with
antipsychotic drugs and had been misled by the court’s erroneous ruling excluding
evidence of the victim’s reputation, which should have been admissible under Commonwealth v. Adjutant, 443 Mass. 649, 824 N.E.2d 1 (2005); that he had been wrongfully
precluded from testifying on his own behalf; and that trial and appellate counsel had
provided ineffective assistance of counsel. (SA 135-138). The motion for a new trial
was denied on November 3, 2010. (SA 156).
On December 9, 2010, Mercado applied to a single justice of the SJC for leave to
appeal the denial of his motion for a new trial. (SA 13, 143-55). The single justice
concluded that Mercado “has not presented ‘a new and substantial question which ought
to be determined by the full court.’ G.L. c. 278, § 33E.” (SA 207). Therefore the
application for leave to appeal was denied on February 3, 2011. (SA 13, 207-08).
The Federal Habeas Petition
Mercado’s habeas petition was filed on February 17, 2011. Therein he raised the
following seven grounds: (1) the trial judge violated his Sixth Amendment right to
confront his accusers by limiting the cross-examination of a Commonwealth witness;
-4-

(2) the trial judge provided improper jury instructions regarding mental impairment in
violation of due process; (3) the trial judge failed to instruct the jury on self-defense in
violation of due process; (4) the prosecutor committed misconduct during closing by
smirking at family members, and the trial judge failed to give a curative instruction to the
jury; (5) the trial judge violated his Sixth Amendment right to confront his accusers by
permitting a medical examiner to provide testimony regarding an autopsy report written
by another medical examiner; (6) the petitioner was unfairly prevented from raising
issues relating to the victim’s prior conduct in support of the claim of self-defense, as
permitted by Commonwealth v. Adjutant; and (7) the petitioner did not knowingly waive
his right to testify and was misled at trial by the judge’s instructions. (Docket No. 1).
The Commonwealth does not contend that any of these issues have not been exhausted.
As detailed above, the petitioner moved on October 29, 2011 to stay the habeas
proceedings so that he can exhaust his state remedies. He seeks to pursue relief in the
state court relating to three witnesses who had not testified at trial, but who would
allegedly support a manslaughter or self-defense instruction; the alleged closure of the
courtroom during jury voir dire; and mental health records that were not submitted to the
state court. As detailed below, in the absence of good cause for having failed to assert
these claims before, the motion to stay must be denied.

-5-

III. ANALYSIS
A.

Standard of Review for a Stay

“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust
available state remedies, 28 U.S.C. § 2254(b)(1), thus giving the state the first ‘opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.’”
Josselyn v. Dennehy, 475 F.3d 1, 2-3 (1st Cir. 2007) (quoting Duncan v. Henry, 513 U.S.
364, 365, 115 S. Ct. 887, 888, 130 L. Ed. 2d 865 (1995)). In the instant case, the
previously asserted grounds for habeas relief have been exhausted, while the newly
proposed grounds have not been exhausted. Thus, the situation is analogous to a “mixed
petition,” which includes both exhausted and unexhausted claims, because the “obvious
purpose” of the motion to stay “is to allow for the amendment of the Petition to include
the currently unexhausted claim[s].” Gambora v. Saba, No. 11-40169-TSH, 2012 WL
4469113, at *3 (D. Mass. Sept. 25, 2012).
“While courts must generally dismiss habeas petitions that are not fully exhausted,
under some ‘limited circumstances’ a district court may stay a mixed petition that contains both exhausted and unexhausted claims while the petitioner exhausts his remedies in
state court.” Sullivan v. Saba, 840 F. Supp. 2d 429, 436 (D. Mass. 2012). Under this
“stay and abeyance procedure” set forth by the United States Supreme Court in Rhines v.
Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005), a district court may
stay a mixed petition and hold it in abeyance while the petitioner returns to state court to
pursue the unexhausted claims. Id. at 275, 125 S. Ct. at 1534. However, as the Supreme
-6-

Court has recognized, “[b]ecause granting a stay effectively excuses a petitioner’s failure
to present his claims first to the state courts, stay and abeyance is only appropriate when
the district court determines there was good cause for the petitioner’s failure to exhaust
his claims first in state court.” Id. at 277, 125 S. Ct. at 1535. Moreover, even if there is
“good cause” for the failure to exhaust, the petitioner must also establish that “his
unexhausted claims are potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278, 125 S. Ct. at
1535. “The requirement to show good cause may be applied more loosely with pro se
prisoners.” Womack v. Saba, No. 11-40138-FDS, 2012 WL 685888, at *3 (D. Mass.
Mar. 1, 2012).
In the instant case, even applying a liberal standard, Mercado has not established
good cause for failure to exhaust his new claims. While he argues that his counsel was
ineffective in failing to bring these claims, “the First Circuit does not recognize
ineffective assistance of counsel or strategic decisions of counsel as good cause in this
context.” Sullivan, 840 F. Supp. 2d at 437, and cases cited. Similarly, the fact that
Mercado has been proceeding pro se does not constitute good cause either. Id., and cases
cited. See also Gambora, 2012 WL 4469113, at *3 (“pro se status during federal habeas
proceedings, without more, does not constitute good cause warranting a stay and
abeyance. That is particularly true where, as here, the Petitioner was represented by
counsel throughout the state-court proceedings.”); Womack, 2012 WL 685888, at *3 (fact
that petitioner was proceeding pro se and claim that counsel was ineffective do not
-7-

constitute good cause to support a stay); Reyes v. Pepe, No. 10-10323-GAO, 2011 WL
740755, at *1 (D. Mass. Feb. 24, 2011) (allegations of ineffective assistance of counsel
do not constitute good cause to warrant a stay).
Finally, a review of the proposed claims does not support a finding of good cause
for failure to pursue them previously. According to the petitioner, the witnesses were
known at the time of trial, the fact that the courtroom was allegedly closed was apparent
from the transcript which had been provided to counsel, and his medical records existed
as of the time of trial. (See Mot. (Docket No. 16) at ¶¶ 3-6, 9-11). Since Mercado has
failed to establish good cause for having failed to exhaust these new claims, the motion to
stay must be denied.
B.

Appointment of Counsel

Mercado filed a motion for appointment of counsel which this court denied
without prejudice pending review of the responsive pleading. (05/17/2011 Electronic
Order). In light of the fact that the respondent has not moved to dismiss the petition, and
the petition will be addressed on the merits, this court concludes that it will be beneficial
to have counsel appointed to address the merits of the petition. Therefore, this matter
will be stayed for 90 days during which time the court will seek to locate counsel to
represent Mercado. If counsel cannot be located within that period, the matter will be
reevaluated.
IV. ORDER

-8-

For the reasons detailed herein, the Petitioner’s Motion to Stay (Docket No. 16) is
DENIED. However, the court shall stay this action for 90 days to determine if counsel
can be located to represent the petitioner in connection with the pending habeas petition.
IT IS SO ORDERED.
/ s / Judith Gail Dein
Judith Gail Dein
U.S. Magistrate Judge

-9-