Racine v. Medeiros

Filing 40

Chief Judge Patti B. Saris: ENDORSED ORDER entered " I adopt the report and recommendation without objection. If the unexhausted claims are not dropped by April 5, 2018 the petition will be dismissed. " re 37 Report and Recommendations. (Attachments: # 1 Report and Recommendations) (Coppola, Katelyn)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

BRIAN RACINE,
Petitioner,
No. 15-cv-14165-PBS
v.
SEAN MEDEIROS,
Respondent.

REPORT AND RECOMMENDATION REGARDING PETITION FOR WRIT
OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 (Dkt. No. 1)

Cabell, U.S.M.J.
I.

INTRODUCTION

On June 10, 2011, a jury in the Massachusetts Superior Court
for Middlesex County convicted petitioner Brian Racine (“Racine”)
of indecent assault and battery on a child under the age of 14.
On June 16, 2011, Racine was also convicted following a bench trial
of being a subsequent offender.

Racine was sentenced to a term of

15 to 25 years in state prison and is currently serving that
sentence.

Pending before the court is his petition for habeas

corpus pursuant to 28 U.S.C. § 2254.

The government argues that

the court should dismiss the petition because Racine has failed to
exhaust his state court remedies with respect to four of the five
grounds he advances in the petition.

For the reasons detailed

below, the Court agrees that the petitioner has failed to exhaust
his state court remedies but does not agree that dismissal is
warranted.

Rather, the Court recommends to the District Judge to

whom this case is assigned that the petitioner be given 30 days
from the District Judge’s ruling to drop his unexhausted claims.
If he fails to do so, the petition should be dismissed.
II.

DISCUSSION

The exhaustion of remedies requirement, 28 U.S.C. § 2254(b),
provides that state prisoners must exhaust their available state
court remedies before seeking a federal writ of habeas corpus,
thereby “giving the State the opportunity to pass on and correct
alleged violations of its prisoners' federal rights.”

Baldwin v.

Reese, 541 U.S. 27, 29 (2004) (internal quotation marks omitted).
A habeas petitioner bears the “heavy burden” of demonstrating
compliance with the exhaustion requirement.

Barresi v. Maloney,

296 F.3d 48, 51 (1st Cir. 2002).
In

order

to

provide

state

courts

with

that

necessary

opportunity, a petitioner 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, 541 U.S. at 29. Although
a petitioner need not present his federal claims in precisely the
same terms in both the state and federal courts, he must tender
his federal claim to the state's highest court “in such a way as
2

to make it probable that a reasonable jurist would have been
alerted to the existence of the federal question.”
F.3d at 51 (internal quotation marks omitted).

Barresi, 296
He also must

present to the state court both the factual and legal underpinnings
of his claim, Nadworny v. Fair, 872 F.2d 1093, 1096 (1st Cir.
1989), and must “do more than scatter some makeshift needles in
the haystack of the state court record.”

Martens v. Shannon, 836

F.2d 715, 717 (1st Cir. 1988).
Racine appealed his conviction, which the Supreme Judicial
Court (SJC) subsequently affirmed.

See Commonwealth v. Racine,

470 Mass. 1107, 26 N.E. 3d 747 (Table) (January 30, 2015).

The

petitioner must, however, do more than appeal in order to exhaust
his remedies; he must have “fairly presented” to the SJC the issues
he now seeks to raise before this Court in order for it to entertain
them on their merits.
The habeas petition advances five grounds for relief.
argues that:

Racine

(1) the trial court erred when it admitted testimony

of the defendant’s demeanor during police questioning; (2) the
trial court improperly limited impeachment evidence regarding a
prosecution witness; (3) the prosecution tainted the victim’s
testimony by improperly soliciting promises from the victim on how
the victim would answer questions; (4) the court improperly amended
the indictment after the close of evidence when it changed the

3

phrase “On diverse dates…” to “On a date between…”; and (5) he is
actually innocent of the charged offenses.
The

government

acknowledges

that

Racine

presented

the

argument raised in Ground Four to the SJC, but contends that he
did not raise the arguments set forth in Grounds One, Two, Three
and Five of the petition.

After reviewing the petitioner’s brief

to the SJC, the Court agrees that the petitioner sought appellate
review on just one issue, the claim set forth in Ground Four:
Whether the Appeals Court erred by concluding that
amendment of the indictment, after the close of evidence
and over objection, was not error which prejudiced the
defendant in the presentation of his alibi defense
because the amendment reduced the number of alleged
assaults from multiple incidents to a single assault.
(S.A. 00144).

Accordingly, the claims raised in Grounds One, Two,

Three and Five were not presented to the SJC and thus have not
been exhausted. 1
This Court is thus faced with a “mixed petition” for habeas
corpus, that is, a petition with both exhausted and unexhausted
claims.

The government contends that the petition should be

dismissed in its entirety.
(1982).

See Rose v. Lundy, 455 U.S. 509, 515

In the Court’s view, however, the remedy suggested by the

government is unwarranted in this case. A federal court confronted

To be
in the
to the
Racine
raises

clear, the record reflects that Racine raised Grounds One through Four
Appeals Court but abandoned Grounds One through Three in his application
SJC for leave for further appellate review. With respect to Ground Five,
did not present that claim to either the Appeals Court or the SJC and he
it for the first time in his habeas petition.

4

with a habeas petition that contain both exhausted and unexhausted
claims may (1) dismiss the petition in its entirety, (2) allow the
petitioner to dismiss the unexhausted claims and proceed with the
exhausted claims, (3) stay the petition until the petitioner
returns to state court to exhaust his previously unexhausted
claims, or (4) deny the petition on the merits if none of the
petitioner’s claims has any merit. Rhines v. Weber, 544 U.S. 269,
278; 28 U.S.C. § 2254(b).
A court should not dismiss a petition in its entirety if doing
so would “unreasonably impair the petitioner's right to obtain
federal relief,” Rhines, 544 U.S. at 278, and since the enactment
of the Antiterrorism and Effective Death Penalty Act, which put a
one-year statute of limitations on habeas petitions, courts have
recognized that dismissing a petition in its entirety often has
the effect of foreclosing a petitioner's right to federal habeas
review because it is unlikely that the petitioner will be able to
exhaust his state court remedies and re-file before the limitations
period expires. Id. at 275.
In this case, it appears that the limitations period has
already run and, therefore, if the petition were to be dismissed
in its entirety, the petitioner would have no further opportunity
for federal review.

With respect to the third option, a court may

stay the action only when the petitioner has good cause for his
failure

to

exhaust

his

claims
5

in

state

court

and

when

his

unexhausted claims are not plainly meritless.

Santana v. Ryan,

No. 14-cv-14097-ADB, 2015 U.S. Dist. LEXIS 99672 at *13 (D. Mass.
July 30, 2015). Because nothing in the record suggests that Racine
had good cause for failing to exhaust his claims below, there is
no basis to stay the action in order to afford the petitioner a
chance to exhaust those claims.

And with respect to the fourth

option, it is not appropriate in the Court’s view to reach the
petitioner’s claims on the merits where the government has not
addressed the merits of the claims in its opposition and it is not
self-evident to the court that none of the claims has any merit.
The remaining option, allowing the petitioner to dismiss the
unexhausted claims and to proceed with his exhausted claims, is
the most appropriate option in this case.

DeLong v. Dickhaut, 715

F.3d 382, 387 (1st Cir. 2013)(“When faced with a mixed petition,
‘the best practice is for the district court to give the petitioner
an

opportunity

Accordingly,

the

to

dismiss

petitioner

the

should

unexhausted
be

given

claims.’”).

the

option

of

voluntarily dismissing the unexhausted claims, i.e., the claims
raised in Grounds One, Two, Three and Five.

If he were to do so,

those claims would then be dismissed without prejudice and the
remainder

of

the

petition,

considered on the merits.

that

is,

Ground

Four,

could

be

If the petitioner were to fail to

dismiss voluntarily the unexhausted claims within 30 days of the

6

entry of the District Judge’s Order, the entire petition should be
dismissed.
III. CONCLUSION
In light of the foregoing, this court recommends to the
District Judge that Racine be given the option of dismissing all
claims except for the one exhausted claim he presented to the SJC,
that is, the claim raised in Ground Four.

The Court recommends

that Racine be given 30 days from the District Judge’s ruling to
drop the unexhausted claims in Grounds One, Two, Three and Five.
If he fails to do so, the petition should be dismissed. 2

/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED:

February 15, 2018

The parties are hereby advised that under the provisions of Federal Rule of
Civil Procedure 72(b), any party who objects to this recommendation must file
specific written objections thereto with the Clerk of this Court within 14 days
of the party's receipt of this Report and Recommendation. The written objections
must
specifically
identify
the
portion
of
the
proposed
findings,
recommendations, or report to which objection is made and the basis for such
objections. The parties are further advised that the United States Court of
Appeals for this Circuit has repeatedly indicated that failure to comply with
Rule 72(b) will preclude further appellate review of the District Court's order
based on this Report and Recommendation. See Keating v. Secretary of Health and
Human Servs., 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano ValenciaCopete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co.,
616 F.2d 603 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-379 (1st
Cir. 1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); See also Thomas
v. Arn, 474 U.S. 140 (1985).

7