Josiah v. Rodrigues

Filing 17

Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER on Motion to Dismiss. (Zaleski, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
________________________________________
SAHR JOSIAH,
Petitioner,
v.
MICHAEL RODRIGUES,
Respondent.

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Civil Action No.
16-11986-FDS

MEMORANDUM AND ORDER ON
RESPONDENT’S MOTION TO DISMISS
SAYLOR, J.
This is a pro se petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254.
Petitioner Sahr Josiah was convicted in Middlesex County Superior Court on charges of armed
robbery, armed assault on a person over the age of sixty, armed assault with intent to murder,
unlicensed possession of a firearm, assault and battery with a dangerous weapon, and two counts
of assault with a dangerous weapon. He is serving a term of imprisonment of life for those
crimes.
Respondent has moved to dismiss the petition for failure to exhaust state remedies. For
the following reasons, because this is a so-called “mixed petition,” the motion will be granted
unless, within 30 days of the date of this order, petitioner files a request to dismiss the
unexhausted claims in his petition and proceed on the merits of the exhausted claims.

I.

Background
A.

Factual Background

The facts of the crime relevant to this petition are described in detail in Commonwealth v.
Josiah, 2015 WL 5009735 (Mass. App. Ct. 2015). The following brief summary sets forth the
facts that are relevant to the present motion.
On April 14, 2009, Sahr Josiah, along with two accomplices, called a taxicab to be
dispatched to an address in Framingham, Massachusetts. Id. at *1. When the taxicab arrived,
Josiah and the accomplices robbed the driver at gunpoint, and then fled on foot. Id.
Police officers, responding to the driver’s emergency call, arrived at the scene and began
pursuing the assailants. Id. Officer Philip Hurton chased Josiah down a dark alley, yelling for
him to stop. Id. Josiah reversed direction, came back around a corner, and shot Hurton in the
face, seriously—although not fatally—injuring him. Id.
After shooting Hurton, Josiah continued to flee with police officers in pursuit. Id. at *2.
Josiah fired multiple shots at the officers, breaking the windshield of a police cruiser. Id.
Later that night, Josiah was captured. Id. Police returned to the scene the following day
and discovered Josiah’s Glock .40 caliber pistol, live ammunition hidden near the site of his
arrest, and empty .40 caliber cartridges in the areas where Josiah shot Hurton and fired at the
other officers. Id.
At the jury trial that followed in Middlesex County Superior Court, the state produced a
ballistics expert who testified that the empty cartridges retrieved from the crime scene matched
cartridge casings test-fired from Josiah’s gun. Id.
On February 3, 2012, Josiah was convicted of armed robbery, armed assault on a person
over the age of sixty, armed assault with intent to murder, unlicensed possession of a firearm,

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assault and battery with a dangerous weapon, and two counts of assault with a dangerous
weapon. Id. He was sentenced to a term of imprisonment of life. Pet. at 2.
B.

Procedural Background

On August, 25, 2015, the Massachusetts Appeals Court affirmed the conviction.
Commonwealth v. Josiah, 2015 WL 5009735, at 4. Thereafter, Josiah filed an application for
leave to obtain further appellate review (“ALOFAR”) to the Supreme Judicial Court.
Commonwealth v. Josiah, 473 Mass. 1102 (2015). On October 2, 2015, the SJC denied that
application. Id.
On October 3, 2016, Josiah filed the current petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition for failure to exhaust state
remedies.
II.

Analysis
A.

Exhaustion of Claims

Respondent contends that the petition should be dismissed because it contains at least
one claim that was not exhausted in state court. Petitioner has not filed an opposition to
respondent’s motion to dismiss.
A federal court may not consider a petition for a writ of habeas corpus filed by a person
in state custody unless the petitioner has exhausted his state remedies with respect to all claims
raised in his application. See 28 U.S.C. § 2254(b)(1); see also Rose v. Lundy, 455 U.S. 509, 518
(1982). In order to satisfy the exhaustion requirement, a petitioner bears a “heavy burden” to
show that both the factual and legal bases of his federal claim were “fairly and recognizably
presented to the state courts.” Fusi v. O’Brien, 621 F.3d 1, 6 (1st Cir. 2010) (quoting Adelson v.
DiPaola, 131 F.3d 259, 261 (1st Cir. 1997)). Put another way, “[t]he ground relied upon must be

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presented face-up and squarely; the federal question must be plainly defined.” Martens v.
Shannon, 836 F.2d 715, 717 (1st Cir. 1988). Although a petitioner need not present his federal
claims in precisely the same manner in both state and federal court, the claims raised by the
habeas petitioner must be the “substantial equivalent” to those raised before the state's highest
court. Barresi v. Maloney, 296 F.3d 48, 52 (1st Cir. 2002) (citing Picard v. Connor, 404 U.S.
270, 277–78 (1971)). In petitions arising from Massachusetts state-court decisions, a petitioner
must raise an appealed issue to the Supreme Judicial Court within “the four corners of the
ALOFAR” in order for the issue to be “fairly presented” for exhaustion purposes. Mele v.
Fitchburg, 850 F.2d 817, 823 (1st Cir. 1988).
In addition to raising the factual basis for a claim before a state court, a petitioner “must
show that he tendered his federal 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.” Clements v. Maloney,
485 F.3d 158, 162 (1st Cir. 2007) (quoting Casella v. Clemons, 207 F.3d 18, 20 (1st Cir. 2000)).
The First Circuit has identified at least five ways that a petitioner may show that he fairly
presented the federal question contained in the petition to the state court: “[(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.” Coningford v.
Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011). Those five methods are not exhaustive: the
essential question is whether “the presentation in state court alerted that tribunal to the claim's
federal quality and approximate contours.” Id.

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Respondent contends that although the factual basis for the claim asserted in Ground One
of the petition was raised in the ALOFAR, petitioner did not fairly present the federal question
concerning that claim. Ground One of the petition states that “the trial court abused its discretion
in allowing expert opinion testimony [concerning ballistics] . . . despite the lack of adequate
documentation on [the expert’s] findings and observations in support of the opinion.” Pet. ¶ 12.
Petitioner raised a similar argument in his ALOFAR, contending that the trial court abused its
discretion in allowing expert testimony concerning ballistics in the absence of adequate
documentation supporting the expert’s findings. ALOFAR, Resp. Ex. A at 6.
In his ALOFAR, petitioner contended that the trial court failed to follow proper
evidentiary procedures under Massachusetts common law for admitting expert testimony
concerning ballistics. That argument relied heavily on Commonwealth v. Pytou Heang, 458
Mass. 827, 846–847 (2011), which provides Massachusetts state courts with guidelines “to
ensure that expert forensic ballistics testimony appropriately assists the jury in finding the facts
but does not mislead by reaching beyond its scientific grasp.” That argument, based entirely on
Massachusetts common law and evidentiary rules, did not fairly present a federal question. The
ALOFAR did cite to one federal case, United States v. Green, 405 F. Supp. 2d 104, 106–09 (D.
Mass. 2005). However, that case addressed the admissibility of ballistics evidence under the
Federal Rules of Evidence, and made no mention of federal constitutional rights. Therefore, the
ALOFAR contained no suggestion of a federal question concerning the claim that the trial court
erred in admitting expert testimony concerning ballistics.
Accordingly, Ground One of the petition has not been exhausted. Respondent has not
argued that any of the other claims in the petition are unexhausted. Thus, the petition will be
considered a mixed petition.

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B.

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
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. Rhines v. Weber, 544 U.S. 269, 278 (2005); see also Rose, 455 U.S. at 514, 520–21;
Neverson v. Farquharson, 366 F.3d 32, 43 (1st Cir. 2004). A court may exercise the 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; see also Clements, 485 F.3d at 169. Neither ineffective assistance of appellate counsel, nor a
litigant's pro se status, will support a finding of good cause in the habeas context. Sullivan v.
Saba, 840 F. Supp. 2d 429, 437 (D. Mass. 2012).
Petitioner has not responded to the motion to dismiss, has not requested that the Court
stay the proceeding, and therefore has not demonstrated good cause for his failure to exhaust.
Rhines, 544 U.S. at 278. Accordingly, the petition is not eligible for a stay.
Instead, petitioner may elect to dismiss his unexhausted claim in Ground One, concerning
the admissibility of ballistics evidence, and proceed with the exhausted claims. Respondent's
motion to dismiss the petition will be granted unless, within 30 days of the date of this order,
petitioner files a request to dismiss the unexhausted claims and proceed on the merits of the
exhausted claims.

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The Court further advises petitioner that should he elect to proceed he is ordered to bring
only exhausted claims upon his return to federal court. Failure to comply with this order is
grounds for dismissal with prejudice. See Slack v. McDaniel, 529 U.S. 473, 489 (2000).
III.

Conclusion
For the foregoing reasons, respondent's motion to dismiss the petition will be granted

unless, within 30 days of the date of this order, petitioner files a request to dismiss the
unexhausted claims in his 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: March 27, 2017

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