Wood v. Ryan

Filing 64

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERFor the foregoing reasons, the motion by petitioner William Wood to stay hishabeas petition and to hold it in abeyance (Docket No. 54) is DENIED. So ordered.(Caruso, Stephanie)

United States District Court
District of Massachusetts

William Wood
Petitioner,
v.
Kelly Ryan
Respondent.

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Civil Action No.
15-13081-NMG

MEMORANDUM & ORDER
GORTON, J.
William Wood (“Wood” or “petitioner”) was convicted of
first-degree murder in Massachusetts Superior Court in 2009.

He

timely appealed that conviction to the Massachusetts Supreme
Judicial Court (“SJC”).

The appeal consisted of nine claims,

including, inter alia, use of perjured testimony, sleeping
juror, prosecutor's press release influenced the jury, use of
hearsay testimony and an inconsistent verdict.

The SJC affirmed

Wood’s convictions in August, 2014. Commonwealth v. Wood, 469
Mass. 266, 269 (2014).

Wood filed this petition for habeas

corpus in August, 2015, seeking federal relief from his state
court conviction.
I.

Background
Wood and co-defendant Quincy Butler (“Butler”) were tried

and convicted by a jury for the murder of Betsy Tripp.

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Among

several convictions returned relating to the incident, Wood was
convicted of first-degree murder and Butler of second-degree
murder.
As a capital offense, Wood’s first-degree murder conviction
was reviewed by the SJC on direct appeal. See M.G.L. c. 278
§ 33E.

The SJC issued a decision in Wood’s appeal in August,

2014. Wood, 469 Mass. at 266 (2014).

Wood then timely filed his

petition for writ of habeas corpus, pro se, in this Court in
August, 2015.
At trial, Wood and Butler purportedly challenged six
peremptory juror strikes made by the government under Batson.
See Batson v. Kentucky, 476 U.S. 79, 139 (1986).

Wood alleges

that the trial judge did not follow the proper procedure for
Batson challenges because he did not require the government to
provide a neutral explanation for those strikes.

Although those

claims were properly preserved at trial, Wood did not raise his
Batson claims in his appeal before the SJC. Wood, 469 Mass. at
269 (2014).
Because second-degree murder is not a capital offense in
Massachusetts, see M.G.L. c. 278 § 33E, Butler’s direct appeal
followed standard appellate procedure and was decided in
November, 2016, more than two years after Wood’s appeal was
filed. Commonwealth v. Butler, 90 Mass. App. Ct. 599, 599

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(2016).

Butler’s appellate brief tracked Wood’s brief in large

part but included the Batson claims.
The Massachusetts Appeals Court affirmed Butler’s
conviction but the three-judge panel was split, with each judge
writing a separate opinion. Id. at 599, 608, 612.

Judge Rubin

criticized the ruling of the Court and opined that Butler was
“entitled at least to a remand to the trial court to allow the
Commonwealth to explain its challenges.” Id. at 617 (Rubin, J.,
dissenting).

Concurring “with the majority opinion in every

respect” but writing to add procedural context, Judge Trainor
found it “inexplicabl[e]” that Wood did not include the Batson
claims in his appellate brief to the SJC. Id. at 609, 610
(Trainor, J., concurring).
Based on the limited success of his co-defendant, Wood
seeks to move for a new trial.

He moves for this Court to stay

his petition and hold it in abeyance pending the disposition of
his motion for a new trial.

If that motion is successful, his

habeas petition would become moot.

If it is unsuccessful,

however, he plans to file a motion to amend his habeas petition
to include his claims based upon Batson and ineffective
assistance of counsel.

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I.

Motion for Stay and Abeyance
A.

Legal Standard

An individual who petitions for habeas corpus relief is
generally required to exhaust all claims in state court before
seeking federal relief. Rose v. Lundy, 455 U.S. 509, 518–19
(1982).

When a petition contains a mixture of exhausted and

unexhausted claims, however, a court may exercise its discretion
to stay the petition and hold it in abeyance until all claims
are exhausted. Rhines v. Weber, 544 U.S. 269, 277–78 (2005).
For a United States District Court to grant a stay, the
petitioner must demonstrate that there was good cause for
failing to exhaust state remedies, the claims are potentially
meritorious and he is not intentionally engaging in dilatory
tactics. Josselyn v. Dennehy, 475 F.3d 1, 4 (1st Cir. 2007)
(citing Rhines, 544 U.S. at 278).

All three factors must be

established to justify a stay of the petition. Rhines, 544 U.S.
at 277-78.
When a petition does not present unexhausted claims but a
petitioner plans to amend his the petition, it may be treated as
analogous to a mixed petition under the Rhines framework. See
Lessieur v. Ryan, No. 16-CV-10831, 2016 WL 3561877, at *1 (D.
Mass. June 27, 2016)(treating a motion to stay a habeas petition
to allow future amendment like a mixed petition) ; Roman v. Ryan,
No. 12-30160-TSH, 2014 WL 5112112, at *2 (D. Mass. Oct. 10,

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2014)(recognizing that a petitioner seeking further state review
of an otherwise exhausted habeas petition is analogous to a
mixed petition).
B.

Analysis

Wood contends that the alleged ineffective assistance of
his appellate counsel in failing to raise a Batson claim
constitutes good cause that warrants a stay and abeyance.

The

First Circuit Court of Appeals (“First Circuit”) offers “little
authority on what constitutes ‘good cause’ for failing to
exhaust state remedies.” Watt v. Marchilli, 217 F. Supp. 3d 434,
440 (D. Mass. 2016).

Judges in the United States Court for the

District of Massachusetts generally have not allowed a stay for
ineffective assistance of counsel. See, e.g., id.; Roman v.
Ryan, No. 12-30160-TSH, 2014 WL 5112112, at *3 (D. Mass. Oct.
10, 2014); Ortiz v. Brady, 538 F. Supp. 2d 361, 367 (D. Mass.
2008).
Other courts have found that ineffective assistance of
counsel may constitute good cause. See Dixon v. Baker, 847 F.3d
714, 721 (9th Cir. 2017) (“[I]neffective assistance of postconviction counsel could constitute good cause for a Rhines stay
. . . .”); Blake v. Baker, 745 F.3d 977, 983 (9th Cir. 2014)
(“[Ineffective assistance of counsel] by post-conviction counsel
can be good cause for a Rhines stay . . . .”).

For the purpose

of this motion, this Court will presume that a showing of

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ineffective assistance of counsel would establish good cause for
a stay under Rhines.
Based upon that assumption, the next step is to evaluate
whether good cause, that is, ineffective assistance of counsel,
exists in this case.

To prevail on a claim of ineffective

assistance of counsel under the Sixth Amendment, the petitioner
must show that his representation by counsel 1) “fell below an
objective standard of reasonableness” and 2) “but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland v. Washington, 466 U.S. 668, 687–88
(1984).

That test is difficult to satisfy because

[j]udicial scrutiny of counsel's performance must be highly
deferential . . . . [and] counsel is strongly presumed to
have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment.
Id. at 689–90; see also Knight v. Spencer, 447 F.3d 6, 15 (1st
Cir.2006) (noting that petitioner must show that his “counsel's
choice was so patently unreasonable that no competent attorney
would have made it”) (internal citation omitted).
Wood’s appellate counsel submitted a 50-page brief to the
SJC with arguments developed on nine distinct issues.

Counsel

did not raise a Batson claim but “[a]ppellate counsel is not
required to raise every non-frivolous claim . . . .” See
Lattimore v. Dubois, 311 F.3d 46, 57 (1st Cir. 2002)(citing
Smith v. Robbins, 528 U.S. 259, 288 (2000)).

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“Applying a heavy

measure of deference to counsel's judgments” this Court must
presume that Wood’s counsel made a strategic choice to omit the
Batson claim. See Strickland, 466 U.S. at 691.
Tactical decisions, whether wise or unwise, successful or
unsuccessful, cannot ordinarily form the basis of a claim
of ineffective assistance.
See Murchu v. United States, 926 F.2d 50, 58 (1st Cir.1991)
(quoting United States v. Ortiz Oliveras, 717 F.2d 1, 3 (1st
Cir.1983)).
Wood makes colorable contentions that the Batson claim
might have been successful in his appeal in light of the
opinions generated in Butler, 90 Mass. App. Ct. at 608, 612, but
“courts should avoid second-guessing counsel's performance with
the use of hindsight.” Knight, 447 F.3d at 15 (citing
Strickland, 466 U.S. at 689).

Furthermore, although Butler’s

appeal included the Batson claim, his conviction was affirmed.
Thus even with the advantage of hindsight it cannot be said that
the omission of the Batson claim was “so patently unreasonable
that no competent attorney would have made it”. See id.
Giving deference to counsel, as this Court must, the
decision to omit the Batson claim appears to fall “within the
wide range of reasonable professional assistance”. See
Strickland, 466 U.S. at 691.

Accordingly, Wood has not

demonstrated that his representation fell below an objective
standard of reasonableness and fails to establish the first

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prong of Strickland. See id. at 669.

Therefore, the Court need

not address the second prong.
Because Wood has not met his burden under the first prong
of Strickland, he cannot demonstrate ineffective assistance of
appellate counsel.

Consequently, Wood has failed to show good

cause for failure to exhaust his remedies and is not, therefore,
entitled to a stay and abeyance.
ORDER
For the foregoing reasons, the motion by petitioner William
Wood to stay his habeas petition and to hold it in abeyance
(Docket No. 54) is DENIED.

So ordered.

/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated August 7, 2017

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