Josiah v. Rodrigues

Filing 24

Judge F. Dennis Saylor, IV: ORDER entered granting in part and denying in part 21 Motion for Reconsideration. (Zaleski, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
________________________________________
)
SAHR JOSIAH,
)
)
Petitioner,
)
)
v.
)
Civil Action No.
)
16-11986-FDS
MICHAEL RODRIGUES,
)
)
Respondent.
)
)

ORDER ON MOTION FOR RECONSIDERATION
SAYLOR, J.
On October 3, 2016, petitioner Sahr Josiah filed this action for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. On March 27, 2017, the Court issued a memorandum and order
finding that the petition was a so-called “mixed petition,” and further finding that respondent’s
motion to dismiss would be granted unless “within 30 days of the date of th[e] order, petitioner
file[d] a request to dismiss the unexhausted claims in his petition and proceed on the merits of
the exhausted claims.” Mem. and Order on Mot. to Dismiss, Docket No. 17. Plaintiff did not
file such a request within the prescribed time. Accordingly, on April 27, 2017, the Court issued
an order of dismissal.
Petitioner has moved for reconsideration of that order and for reinstatement of the
petition pursuant to Fed. R. Civ. P. 60(b). Petitioner contends that he did not receive a copy of
the Court’s March 27 order, and therefore failed to respond as directed. By his motion,
petitioner seeks two forms of relief.

First, petitioner requests that the petition be stayed in order to allow him an opportunity
to exhaust his unexhausted claims in state court. However, the motion for reconsideration
presents no evidence or argument not previously considered to support a finding of good cause
for petitioner’s failure to exhaust the claims in his petition. See Rhines v. Weber, 544 U.S. 269,
278 (2005). 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). Therefore, petitioner’s motion will be denied insofar as it seeks a stay
of the petition.
Second, petitioner seeks the opportunity to delete the unexhausted claims in the petition
and proceed on the merits of the exhausted claims. Respondent does not object to petitioner
being given that opportunity. Accordingly, the motion will be granted insofar as it seeks to allow
petitioner to delete the unexhausted claims and proceed on the merits of the exhausted claims.
For the foregoing reasons, petitioner’s motion for reconsideration is GRANTED in part
and DENIED in part. The April 27, 2017 order of dismissal is hereby VACATED. Petitioner
may, within 45 days of the date of this order, file an amended petition deleting the unexhausted
claims in his petition and bringing only exhausted claims. Failure to do so may result in the
dismissal of the petition.

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

Dated: June 19, 2017

2