Brightman v. Marchilli
Judge Richard G. Stearns: ORDER entered granting 12 Motion to Dismiss; adopting Report and Recommendations re 16 Report and Recommendations. (Zierk, Marsha)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 17-10364-RGS
ORDER ON REPORT AND RECOMMENDATION
OF THE MAGISTRATE JUDGE
August 8, 2017
I agree with Magistrate Judge Boal in her determination that Ground
1 of the petition is clearly barred by Stone v. Powell, 428 U.S. 465 (1976). 1
Ground 2 is slightly more complicated, but as the Magistrate Judge points
out, it attempts to recast the failed Fourth Amendment claim as an equal
protection argument. The alleged denial of equal protection, however, was
never raised in the state’s highest court (or the Massachusetts Court of
While the Stone doctrine allows an exception where a petitioner was
given no realistic opportunity to litigate his Fourth Amendment claims in the
state courts, the exception clearly does not apply here. Brightman’s search
and seizure claim had the full attention of the state trial court as well as the
Massachusetts Appeals Court.
Appeals), and therefore fails the exhaustion requirement.
See Mele v.
Fitchburg Court, 850 F.2d 817, 829 (1st Cir. 1988). While Rhines v. Weber,
544 U.S. 269 (2005), counsels in many circumstances the option of granting
a petitioner the opportunity to dismiss an unexhausted claim and proceed on
what remains, Magistrate Judge Boal is surely correct in her observation that
where, as here, the unexhausted claim is devoid of any merit, the option
would be futile. Consequently, her Recommendation is ADOPTED and the
petition is DISMISSED with prejudice. 2 Any request for the issuance of a
Certificate of Appealability pursuant to 28 U.S.C. ' 2253 is DENIED, the
court seeing no meritorious or substantial basis supporting an appeal. The
Clerk is instructed to close the case.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE
Brightman has not filed an Objection to the Report, but has filed a
letter with the court expressing his disagreement with the Stone doctrine.
He also cites a motion to suppress decided by this court which he believes
suggests that he might have fared better had he been able to press is Fourth
Amendment claim originally in the federal district court.
argument is beyond the ability of this court to entertain, while the second
rests on pure speculation.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?