Scesny v. Ryan
Filing
49
Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER. Petitioner's Motion to Stay 47 is DENIED.(FDS, law2)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
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ALEX SCENSY,
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Petitioner,
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v.
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KELLY RYAN,
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Respondent.
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_______________________________________)
Civil Action No.
16-cv-40024
MEMORANDUM AND ORDER ON PETITIONER’S SECOND MOTION TO STAY
SAYLOR, J.
This is an action by a state prisoner for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner Alex Scensy has filed a motion to stay the proceedings. For the reasons given
below, that motion will be denied.
I.
Background
The petition for a writ of habeas corpus in this case was filed on March 1, 2016, along
with a first motion to stay in order to exhaust state remedies. The Court denied that motion to
stay on August 4, 2016, because petitioner had not shown good cause for his failure to exhaust
all of his state remedies.
Petitioner filed his brief in support of the petition on November 16, 2016. Respondent
Kelly Ryan filed her brief on May 5, 2017. Petitioner has not filed any reply, which, including
extensions of time, was due December 14, 2017.
On November 17, 2017, petitioner filed a motion to stay the proceedings. That motion
states that he recently discovered that the Commonwealth failed to provide what he believes are
six items of exculpatory evidence, see Brady v. Maryland, 373 U.S. 83 (1963), namely:
1) The original [Massachusetts] State Police Laboratory’s Criminalistics Reports
from the Theresa Stone investigation; 1996 reports [sic].
2) The original [Massachusetts State Police] Crime Lab[oratory]’s 1996-2001
DNA-STR Reports and findings.
3) The original October 25th 1996 Crime Scene Unit’s Evidence Recovery Log.
4) The complete Chain of Custody Report from 1996-2017.
5) The [Massachusetts State Police] Report from October 25th 1996 Scene at the
Chief Medical Examiners Office (post-crime scene, pre-autopsy).
6) The complete November 5th 1996 application of search warrant[,] which
includes affidavit, addendums, and Clerk Magistrate[] David W. Bishop’s
signature.
(Mot. to Stay at 2). He states that he seeks a stay so that a Committee for Public Counsel
Services attorney can determine whether his claim has enough merit to warrant a further motion
for a new trial in state court. (Id.).
II.
Legal Standard
The Supreme Court has explained that “stay and abeyance should be available only in
limited circumstances.” Rhines v. Weber, 544 U.S. 269, 277 (2005).1 A stay is appropriate when
“(1) ‘the district court determines there was good cause for the petitioner’s failure to exhaust his
claims first in state court,’ (2) the ‘unexhausted claims are potentially meritorious,’ and (3) ‘there
is no indication that the petitioner engaged in intentionally dilatory litigation tactics.’” Clements
1
While petitioner does not specifically seek an abeyance here, it appears from his motion that, were the
CPCS attorney to recommend litigating his Brady claim, he would seek to amend his petition to include that
unexhausted state claim, making his petition a mixed petition, and then seek a stay and abeyance to pursue it.
2
v. Maloney, 485 F.3d 158, 168 (1st Cir. 2007) (quoting Rhines, 544 U.S. at 278) (citations
omitted). The First Circuit has described those considerations as “three prerequisites” for a stay.
Id.
III.
Analysis
Petition has not established that a stay is appropriate for at least three reasons.
First, petitioner has not established good cause for his failure to exhaust a potential Brady
claim. He states that he “[r]ecently recognized” that this evidence was not provided, but does not
provide any detail as to when he recognized the gap in government’s production, or, more
importantly, when the materials from which he concluded that there was a gap in the
government’s production were provided to him.
Second, petitioner has not offered any basis for the Court to conclude that his potential
Brady claim is meritorious. Rather, he explains that he wants the stay so that an attorney can
evaluate whether or not it is meritorious. That is not sufficient to show that a stay is warranted.
Third, it does not appear that petitioner could successfully amend his habeas petition to
include this unexhausted state claim. 28 U.S.C. § 2244(d)(1) provides for a one-year limitations
period for filing for habeas relief that begins to run from the latest of four dates:
(A)
the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B)
the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action;
(C)
the date on which the constitutional right asserted was initially recognized
by the Supreme Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral
review; or
(D)
the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
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28 U.S.C. § 2244(d)(1). Of those possible dates, the latest date the Court can presently ascertain
is the date his state conviction became final, October 12, 2015. Commonwealth v. Scesny, 472
Mass. 185 (2015) (affirming petitioner’s conviction on July 14, 2015); Voravongsa v. Wall, 349
F.3d 1, 2 (1st Cir. 2003) (ruling that a state conviction is final when the ninety-day period to file
a petition for certiorari with the U.S. Supreme Court has expired); see Brady, 373 U.S. 83
(recognizing the constitutional right in 1963). Using that date, the one-year limitations period for
petitioner to file for habeas relief expired on October 12, 2016. Petitioner, in his motion, has not
provided any information from which the Court could conclude that any unconstitutional state
action created an impediment that persisted beyond October 12, 2015, or that petitioner could not
have discovered the factual predicate of this claim until after that date. Nor does it appear that
the potential Brady claim would relate back to claims in his original petition, which seeks relief
on the grounds that the evidence was insufficient, that the trial court erred in admitting certain
testimony and failing to give a particular jury instruction, and that the prosecutor’s closing
argument was improper. See Mayle v. Felix, 545 U.S. 644, 655-64 (2005) (expounding on the
application of relation-back doctrine to habeas claims); 28 U.S.C. § 2242 (allowing petitions to
be “amended or supplemented as provided in the rules of procedure applicable to civil actions);
Fed. R. Civ. P. 15(c)(1) (explaining when an amendment relates back); Pet. for Writ of Habeas
Corpus. Therefore, in addition to failing to explain why the Brady claim could succeed on its
merits, petitioner has failed to allege facts from which the Court could conclude that such an
amendment would be timely.
Because petitioner has not established (1) good cause for his failure to pursue his
potential Brady claim in state court or (2) that his new claim is potentially meritorious, the
motion to stay will be denied.
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IV.
Conclusion
For the foregoing reasons, petitioner’s motion to stay is DENIED.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor, IV
United States District Judge
Dated: December 19, 2017
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