Tavares v. Russo
Filing
17
Judge George A. OToole, Jr: ORDER entered denying 9 Motion ( Copy of Order mailed out to Petitioner on 9/30/16) (Lyness, Paul)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-13188-GAO
DARYL TAVARES,
Petitioner,
v.
LOIS RUSSO,
Respondent.
ORDER
September 30, 2016
O’TOOLE, D.J.
On August 17, 2015, Daryl Tavares filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. Several weeks later, he filed a motion seeking a stay and abeyance of the petition
to permit him to exhaust two purportedly unexhausted claims related to prosecutorial misconduct
(Ground Seven) and ineffective assistance of counsel (Ground Eight) in state court. For the reasons
set forth below, the motion is DENIED.
A federal court may not consider a § 2254 petition unless the petitioner has exhausted state
court remedies for all claims raised in the petition. 28 U.S.C. § 2254(b)(1). Generally, if a petitioner
files a petition containing both exhausted and unexhausted claims (i.e., one that is “mixed”), a
federal court may (1) dismiss the petition in its entirety; (2) permit the petitioner to dismiss the
unexhausted claims and proceed only with the exhausted claims; or (3) in some “limited
circumstances” stay the petition and hold the petition in abeyance while the petitioner returns to
state court to exhaust his previously unexhausted claims. See Rhines v. Weber, 544 U.S. 269, 275–
76, 277–78 (2005); Rose v. Lundy, 455 U.S. 509, 515 (1982). The third option, a stay of
proceedings, is appropriate only if the petitioner “had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278.
Assuming arguendo that the two claims at issue are unexhausted, the petitioner fails to
establish good cause for a stay.1 See id. He argues only that counsel was ineffective for refusing
to raise the claims in a motion for new trial pursuant to Rule 30 of the Massachusetts Rules of
Criminal Procedure prior to the petitioner’s direct appeal. But whether the decision was strategic
or inadvertent, appellant counsel’s failure does not constitute good cause.2 See Womack v. Saba,
No. CIV.A. 11-40138-FDS, 2012 WL 685888, at *4 (D. Mass. Mar. 1, 2012) (citations omitted);
see also Gaouette v. O’Brien, No. 07-12202-MLW, 2010 WL 5376849, at *1 (D. Mass. Dec. 20,
2010) (citations omitted).
Because the petitioner has not established good cause, a stay of this proceeding under
Rhines is unwarranted. The petitioner shall file a memorandum of law in support of his petition on
or before November 4, 2016. The respondent shall file his memorandum of law in opposition to
the petition on or before December 9, 2016.
It is SO ORDERED.
/s/ George A. O’Toole, Jr.
United States District Judge
1
The Court notes that although the government “denies that grounds coextensive” with all claims
advanced by the petitioner “were presented to the highest state court having jurisdiction” and
pleads non-exhaustion as an affirmative defense, it has not moved to dismiss any claims in the
petition as unexhausted. (Answer at 4–7, 10 (dkt. no. 12).) Further, in its opposition to the
petitioner’s motion to stay, it assumed for the sake of argument that the claims were unexhausted,
but did not actually take that position. (Resp’t Opp’n to Mot. to Stay Proceedings at 4–5 (dkt. no.
14).)
2
Here, on direct appeal, appellant counsel appears to have raised the two claims at issue but
disassociated himself from them, (see Resp’t Supp. Answer Ex. D at 29 (dkt. no. 16)), suggesting
that counsel’s declination was a strategic determination on his part.
2
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