Carrierre, Jr v. Medeiros

Filing 37

Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER on Amended Petition for Writ of Habeas Corpus. (FDS, law4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
________________________________________
EDMOND J. CARRIERE, JR.,
Petitioner,
v.
SUPERINTENDENT SEAN MEDEIROS,
Respondent.

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Civil Action No.
15-13496-FDS

MEMORANDUM AND ORDER
ON AMENDED PETITION FOR A WRIT OF HABEAS CORPUS
SAYLOR, J.
This is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner Edmond Carriere, Jr. is an inmate at the Massachusetts Correctional Institution at
Norfolk. 1
I.

Background
On January 3, 1980, Edmond Carriere’s estranged wife Frances was murdered in her

home in Bourne, Massachusetts. An intruder engaged Frances in a struggle, during which she
fell to the floor, hit her head on a radiator, and was rendered unconscious. The assailant then
stabbed her multiple times in the chest.
Carriere was tried in Barnstable County Superior Court 32 years later. In substance, the
evidence showed that he devised the contract killing of his wife. Carriere reached out to a local

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error.

This case was incorrectly docketed using the name Carrierre, which appears to reflect a typographical

drug dealer and acquaintance, Richard Grebauski, and asked him to murder Frances for pay.
Grebauski agreed to take the job and recruited Steven Stewart to kill Frances, as Stewart was
indebted to him for $500 for the purchase of cocaine. At the time of the murder, Carriere was in
Florida with his daughters, which the Commonwealth maintained was a premeditated alibi.
Witness testimony further showed that during his contentious divorce from Frances, Carriere had
asked friends on more than one occasion whether they would be willing to kill Frances for
money.
The prosecution case relied heavily on testimony from Stewart concerning the joint
venture between Carriere, Grebauski, and himself. Stewart was originally convicted of Frances’s
murder in June 2005. However, that conviction was overturned on appeal. Shortly thereafter,
Stewart entered into a plea agreement with the government, in which he agreed to testify against
Carriere in exchange for a sentence of time served.
The jury convicted Carriere of murder in the first degree, on theories of deliberate
premeditation and extreme atrocity or cruelty. He was sentenced to a mandatory term of life
imprisonment without parole. Carriere appealed directly to the Supreme Judicial Court of
Massachusetts, which affirmed the conviction in a lengthy and detailed opinion. See
Commonwealth v. Carriere, 470 Mass. 1 (Mass. 2014).
On October 1, 2015, Carriere filed a petition for a writ of habeas corpus relief pursuant to
28 U.S.C. § 2254, which was amended on October 11, 2016. It appears that he asserts four
grounds for relief in his amended pro se petition:
(1) denial of the right to a fair trial and to confrontation by the admission of certain
hearsay statements;
(2) denial of the right to a fair trial by the admission of various statements that were more

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prejudicial than probative;
(3) denial of the right to a fair trial because the trial judge prohibited him from entering
specific testimony from a government witness that supported his defense; and
(4) denial of the right to a fair trial because of the prosecutor’s inflammatory closing
argument, which contained misstatements of law.
Among other things, respondent contends that Carriere has failed to exhaust his statecourt remedies.
II.

Analysis
A.

Exhaustion Requirement

Before a court can evaluate the merits of a petitioner’s constitutional claims, it must
evaluate whether the claims were fairly presented to and exhausted in state court. 28 U.S.C. §
2254(b)(1)(A). “This exhaustion requirement . . . is born of the principle ‘that as a matter of
comity, federal courts should not consider a claim in a habeas corpus petition until after the state
courts have had an opportunity to act.’” Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir.
2011) (quoting Rose v. Lundy, 455 U.S. 509 (1982)).
In order to satisfy the exhaustion requirement, a petitioner must present both the factual
and legal bases of his federal claim “fairly and recognizably” to the state courts. Adelson v.
DiPaola, 131 F.3d 259, 262 (1st Cir. 1997). “To carry this burden, the petitioner must
demonstrate that he tendered each 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. (quoting Scarpa v.
Dubois, 38 F.3d 1, 6 (1st Cir. 1994)). “The ground relied upon must be presented face-up and
squarely; the federal question must be plainly defined.” Martens v. Shannon, 836 F.2d 715, 717
(1st Cir. 1988).

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The First Circuit has identified at least five ways to satisfy the “fair presentment”
requirement: (1) reliance on a specific provision of the Constitution, (2) substantive and
conspicuous presentation of a federal constitutional claim, (3) on-point citation to federal
constitutional precedents, (4) identification of a particular right specifically guaranteed by the
Constitution, and (5) assertion of a state-law claim that is functionally identical to a federal
constitutional claim. See Coningford, 640 F.3d at 482. These five methods of showing fair
presentment are not exhaustive: the focus should center on the “likelihood that the presentation
in state court alerted that tribunal to the claim’s federal quality and approximate contours.” Id.
(quoting Nadworny v. Fair, 872 F.2d 1093, 1098 (1st Cir. 1989)).
B.

Petitioner’s Brief to the SJC

Respondent contends that the federal claim set out in Ground Two of the habeas petition
was not fairly presented to the SJC on appeal. See Adelson, 131 F.3d at 263 (stating that
“[e]xhaustion obligations mandate that a habeas petitioner present, or do his best to present, his
federal claim to the state's highest tribunal”). In petitioner’s brief to the SJC, he presented a
similar claim, citing Massachusetts common-law cases concerning the admission of evidence. In
his habeas petition, he cites federal constitutional precedent that discusses when the admission of
inflammatory evidence constitutes a due-process violation. While the facts supporting
petitioner’s claim remain the same, his legal theory has changed. See Gagne v. Fair, 835 F.2d 6,
7 (1st Cir. 1987) (concluding that the same substantive legal theory in support of a claim must be
used in state and federal court to meet the requirement of fair presentation).
The determination as to whether a reasonable court could identify the federal nature of a
claim in petitioner’s state-court filings “is not a matter of guesswork. Rather, that calculation is
informed by ‘trappings-specific constitutional language, constitutional citation, appropriate

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federal precedent, substantive constitutional analogy, argument with no masking state-law
character, and the like.’” Adelson, 131 F.3d at 262 (quoting Nadworny, 872 F.2d at 1101)). Put
simply, “[t]he fewer the [federal] trappings” throughout the state-court filings, “the less likely” it
becomes the court will determine the federal claim was properly exhausted. Id.
Although Ground Two is based on federal constitutional principles, petitioner’s brief to
the SJC on the same matter was not presented in constitutional terms. See Coningford, 640 F.3d
at 483. In his state-court brief, petitioner “made no mention of the Fourteenth Amendment, and
eschewed all references to the concept of due process.” See Adelson, 131 F.3d at 263. While he
does cite a single Supreme Court case, at the end of a footnote, that case speaks to ineffective
assistance of counsel, which is unrelated to his claim that the trial court admitted statements that
were more prejudicial than probative. A single unfocused citation alone is insufficient to
demonstrate the existence of a constitutional dimension to petitioner’s claim. See Clements v.
Maloney, 485 F.3d 158, 168 (1st Cir. 2007) (finding it “doubtful” that a single citation, even to a
related Supreme Court case, would be sufficient to satisfy the fair presentation requirement).
Furthermore, while the caption of petitioner’s claim in his brief to the SJC does assert his
“right to a fair trial” had been violated, that vague reference, absent any further federal support in
the accompanying analysis, is insufficient to raise his claim to one of constitutional stature. See
Adelson, 131 F.3d at 263 (stating that the “mere incantation of constitutional buzzwords,
unaccompanied by any federal constitutional analysis, does not suffice to carry the burden of
demonstrating fair presentment of a federal claim”). Even if petitioner had employed the phrase
“due process right to a fair trial,” as he did in some of his other claim captions, the effort would
still have fallen short, as an “oblique” invocation of the phrase “due process” remains
insufficient to satisfy the exhaustion requirement. Gagne, 835 F.2d at 7; see also Coningford,

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640 F.3d at 483 (quoting Dougan v. Ponte, 727 F.2d 199, 201 (1st Cir. 1984) (“Alleging lack of
a fair trial does not convert every complaint about evidence . . . into a federal due process
claim”)).2
Petitioner’s brief to the SJC relied on Massachusetts evidentiary rules, Massachusetts
common-law cases elaborating on those rules, and general allegations of unfairness. See
Coningford, 640 F.3d at 483. While it is true that “deployment of federal authority sometimes is
not a prerequisite to adequate presentation of a federal claim to the state courts . . . such
occasions will be few and far between” and when present, they will typically involve “a suitable
surrogate” such as “state cases or an analysis of state law that adopts or parallels federal
constitutional analysis.” Adelson, 131 F.3d at 263. In light of petitioner’s choice to construct his
claim in state court using purely evidentiary arguments, even “the most meticulous search on the
part of the state court would have turned up nothing suggesting that petitioner was making a
federal due process argument.” Gagne, 835 F.2d at 8 (quoting Dougan v. Ponte, 727 F.2d 199,
202 (1st Cir. 1984)).
Therefore, petitioner’s claim did not “face-up and squarely” present a federal question,
rendering his petition unexhausted as to Ground Two. Martens, 836 F.2d at 717.
Respondent has not argued that any of the other claims in the petition are unexhausted.
Thus, the petition will be considered a mixed petition.
C.

Requirements for Mixed Petitions

Generally, if a petitioner files a “mixed petition” that includes both exhausted and
unexhausted claims, a federal court may (1) dismiss the petition in its entirety, (2) allow the

The fair presentation problem with petitioner’s claim is not just that he opted to caption it using the phrase
“right to a fair trial,” as opposed to other claim captions in the same brief where he writes out “due process right to a
fair trial” in full. Rather, Ground Two falls short of fairly presenting a federal claim because of its accompanying
analysis, which lacks any federal argumentation.
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petitioner to dismiss the unexhausted claims and proceed with the exhausted claims, or (3) stay
the petition until the petitioner returns to state court to exhaust his previously unexhausted
claims. See Rhines v. Weber, 544 U.S. 269, 275–76 (2005); see also Rose, 455 U.S. at 522;
Neverson v. Farquharson, 366 F.3d 32, 43 (1st Cir. 2004). A court may exercise the third option
to stay resolution of the exhausted claims and hold the petition in abeyance only “in limited
circumstances.” Rhines, 544 U.S. at 277. Specifically, a court may do so 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.”
Id. at 278; see also Clements, 485 F.3d at 169–71.
A petitioner's intentional decision to argue a claim on state grounds does not establish
good cause. See Clements, 485 F.3d at 171. Similarly, neither ineffective assistance of appellate
counsel, nor a litigant's pro se status, will support a finding of good cause in the habeas context.
See Sullivan v. Saba, 840 F. Supp. 2d 429, 437 (D. Mass. 2012). Pro se status alone proves
insufficient to establish good cause particularly in cases where, as here, the petitioner was
represented by counsel throughout his or her state-court proceedings. See Biggs v. Dennehy,
2006 WL 6499321 at *2 (D. Mass. March 6, 2006) (finding no showing of good cause where
petitioner was represented by counsel at all stages of state-court proceedings and had ample
opportunity to bring unexhausted claims before state court).
Petitioner has not requested a stay of his petition, provided any reason why a stay would
be appropriate, or demonstrated good cause for his failure to exhaust. See Rhines, 544 U.S. at
278. Accordingly, the petition will not be stayed.
Petitioner may elect to dismiss the unexhausted evidentiary claim (Ground Two) and
proceed with the remainder of his claims, or accept dismissal of the entire petition. The petition

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will be denied unless, within 60 days of the date of this order, petitioner files a request to dismiss
the unexhausted claim and proceed on the merits of the exhausted claims.
III.

Conclusion
For the foregoing reasons, the amended habeas petition will be denied unless, within 60

days of the date of this order, petitioner files a request to dismiss the unexhausted claim in the
petition and proceed on the merits of the exhausted claims.
So Ordered.

/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: June 22, 2017

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