Enwonwu v. Commonwealth of Massachusetts

Filing 28

Judge Allison D. Burroughs: ORDER entered. MEMORANDUM AND ORDER(PSSA, 5)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
FRANCIS ENWONWU
)
)
Petitioner,
)
)
Civil Action No.
v.
)
18-10517-ADB
)
COMMONWEALTH,
)
)
Respondent.
)
__________________________________________)
MEMORANDUM AND ORDER
BURROUGHS, D.J.
For the reasons stated below, the respondent’s motion to dismiss is hereby ALLOWED
and the 28 U.S.C. § 2254 petition is hereby DISMISSED without prejudice for failure to exhaust
the claims in the courts of the Commonwealth of Massachusetts.
I.

Background
On December 16, 2010, following a jury trial in Middlesex Superior Court, Francis

Enwonwu was convicted of armed assault with intent to rob, assault and battery causing serious
bodily injury, possession of a firearm without a license, receiving a stolen motor vehicle, assault
and battery by means of a dangerous weapon (shod foot), and assault and battery. Com. v.
Enwenwu, 83 Mass. App. Ct. 1127 (2013); ECF No. 11-1, p. 7, Criminal Docket, Com. v.
Enwonwu, 0981CR01192. Although the factual details of the underlying criminal action are not
entirely clear, the charges stem from Enwonwu’s participation in an armed robbery of a man
named Mahdi Bezzate, and Enwonwu’s physical abuse of a woman named Kaitlyn Niles.1  On

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As set forth in petitioner’s Application for Leave for Further Appellate Review, Statement of
Facts, “The Commonwealth alleged that on August 25, 2009,…[Enwonwu]…was a joint
venturer in a shooting, which resulted in life threatening injuries to [Mahdi Bezzate]. It was also

December 30, 2010, Enwonwu was sentenced to 7-10 years’ incarceration, with 5 years’
probation to follow. ECF No. 11-1, p. 7, Criminal Docket, Com. v. Enwonwu, 0981CR01192On
September 14, 2011, Enwonwu filed a motion for new trial, which was denied on March 14,
2012. Id. at pp. 8-9.
Enwonwu was very involved in his criminal appeal, as demonstrated by numerous
correspondence he submitted to this Court in opposition to the motion to dismiss. It is evident
that Enwonwu discussed with his appellate counsel, Jennifer O’Brien, Esq., issues relating to
among other things, strategy and briefing of his appeal. ECF 19-1, pp. 32-37; ECF 24, pp. 17-19,
20-22, 41-43, and 54-55. Attorney O’Brien did not agree with several issues that Enwonwu
wanted to present on his direct appeal, including many of those raised in the instant petition. ECF
No. 24, pp. 17-19.
Enwonwu, through Attorney O’Brien, ultimately brought six grounds for appeal arguing:
(1) ineffective assistance of counsel for failing to move to sever the trial; (2) ineffective
assistance of counsel for not requesting a missing witness instruction concerning the victim
(Bezzate) who was unavailable at trial ; (3) duplicative convictions for assault and battery and
assault and battery by means of a dangerous weapon based on the assault and battery of Niles;
(4) that Enwonwu was prejudiced by the prosecutor purportedly alluding to facts in her opening
that never came into evidence due to Bezzate’s absence from trial; (5) that the prosecutor’s
closing argument was improper because it referred to facts not in evidence to the effect that
Bezzate was waiting for his brother when he was shot and Enwonwu was unemployed; and (6)

alleged that between August 10, 2009 and August 25, 2009,…[Enwonwu]…beat a second
unrelated victim [Kaitlyn Niles]. Although…[Enwonwu]…admitted to being present at the
scene of the shooting, he denied having knowledge of his codefendants’ intentions. He also
denied beating the second victim [Niles].” ECF No. 26, p.6.
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sufficiency of the evidence concerning the admission of a 911 emergency call and the length of
the barrel of a weapon. Com. v. Enwenwu, 83 Mass. App. Ct. 1127 (2013). Although not
submitted to this Court, Enwonwu filed a Moffett brief.2 Com. v. Enwenwu, 83 Mass. App. Ct.
1127 (2013).
On May 2, 2013, the Massachusetts Appeals Court issued its decision on his consolidated
direct appeal of his convictions and denial of motion for a new trial. Com. v. Enwenwu, 83
Mass. App. Ct. 1127 (2013). That court reversed the possession of a firearm without a license
conviction because the length of the barrel had not been established; the remaining counts and
denial of motion for new trial were affirmed. Id. The Appeals court found “no merit in
…[Enwonwu’s]…arguments made under Commonwealth v. Moffett, 383 Mass. 201 (1981).” Id.
at n.9.
On May 10, 2013, Enwonwu, through Attorney O’Brien, filed an application for leave for
further appellate review by the Supreme Judicial Court (“AOLOFAR”) which raised the identical
issues decided against Enwonwu on his direct appea1, except apparently those raised in the
Moffett brief. ECF No. 26. Enwonwu’s ALOFAR was summarily denied on June 6, 2013. Com.
v. Enwonwu, 465 Mass. 1106 (2013).
On June 13, 2013, Enwonwu filed a motion to revise and revoke his sentence. ECF No.
ECF 11-1, p. 9, Criminal Docket, Com. v. Enwonwu, 0981CR01192, File Ref. Nbr. 76. That
motion was denied on November 8, 2013. ECF 11-1, p. 9, Criminal Docket, Com. v. Enwonwu,
0981CR01192.

2
 “A ‘Moffett Brief’ allows an indigent defendant to supplement his appointed counsel's brief

with arguments counsel did not feel were warranted on the record.” Avila v. Clarke, 938 F. Supp.
2d 151, 174 (D. Mass. 2013) (citing Commonwealth v. Moffett, 383 Mass. 201, 208–09 (1981)).

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On January 28, 2014, in response to Enwonwu’s inquiry, the Massachusetts Committee
for Public Counsel Services (“CPCS”) provided Enwonwu with an application to complete in
order to have his case screened by the CPCS Innocence Project. ECF No. 1-1, p. 18, January 28,
2014 letter from Elly Kalfus to Enwonwu. The CPCS Innocence Project received the application
materials on February 24, 2014. ECF No. 1-1, p. 19, January 28, 2014 letter from Elly Kalfus to
Enwonwu. On May 6, 2014, the CPCS Innocence Project declined to take his case, and while
careful not opine as to Enwonwu’s guilt or innocence, indicated that Enwonwu might request
that CPCS Appeals review his for a motion for new trial on a non-innocence-based basis. ECF
No. 1-1, p. 22, May 6, 2014, letter from Lisa M. Kavanaugh to Enwonwu.
On June 10, 2014, CPCS Senior Staff Counsel Terry Nagel, wrote to Enwonwu
acknowledging his request for CPCS Appeals to review the matter. ECF No. 19-1, p. 9, June 10,
2014, letter from Terry Nagel to Enwonwu.
On July 2, 2014, Enwonwu wrote to Terry Nagel, Esq., setting forth the bases of a
motion for new trial mirroring, with some exceptions, what he now presents as issues in this
petition. ECF No. 19-1, pp. 40-43, June 10, 2014 letter from Terry Nagel to Enwonwu.
On July 14, 2014, Nagel forwarded the letter to appellate counsel O’Brien for further
review. ECF No. 19-1, p. 10, July 14, 2014, letter from Terry Nagel to Jennifer O’Brien. On
July 30, 2014, Enwonwu wrote to Nagel asking him to refer Enwonwu’s case to other counsel, as
he believed some of the issues concerned the ineffectiveness of Attorney O’Brien. ECF No. 191, p.47, July 30, 2014 letter from Enwonwu to Terry Nagel. Because no further motion was filed,
the Court concludes that CPCS refused to assign counsel or to proceed further. On July 24, 2014,
Enwonwu filed a pro se motion for appointment of counsel and supporting affidavit of indigency
and actual innocence. See ECF No. 11-1, p. 10, Criminal Docket, Com. v. Enwonwu,

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0981CR01192, File Ref. Nos. 84 and 85,; ECF No. 1-1, pp. 15-17. The motion was denied on
August 6, 2014. ECF No. 11-1, p. 10, Criminal Docket, Com. v. Enwonwu, 0981CR01192.
From July 2014 through December 2014, Enwonwu unsuccessfully sought other counsel.
ECF no. 19-1, pp. 47-53. Notably, Enwonwu was warned by an attorney (who did not accept his
case) on August 6, 2014 that time was of the essence:
Thank you for contacting this office regarding your legal matter.
Please be advised that his office will not be able to represent you
regarding your matter. Please further be advised that all claims
you may have must be filed in the applicable court within the
applicable statute of limitations, or your claims will be lost
forever. As a result, if you are going to act, you must do so now.
As your matters are legally complex, I advise that you seek the
advice of other counsel regarding these matters right away.
ECF No. 19-1, p. 49, August 6, 2014 letter from McKenzie J. Walters, Esq. to Enwonwu,. He
apparently continued to seek counsel through December 2014. ECF No. 19-1, pp. 50-52.
On April 21, 2015, Enwonwu again moved pro se for appointment of counsel. ECF No.
1-1, pp. 8-11, seeking discovery of the cell phone seized and related cell phone records. This
motion was denied on April 30, 2015. ECF No. 11-1, p. 10, Criminal Docket, Com. v. Enwonwu,
0981CR01192.
Almost three years later, on March 19, 2018, petitioner filed the instant petition under 28
U.S.C. §2254, raising four grounds: (1) that the Commonwealth withheld Brady material at
petitioner’s criminal trial, (2) ineffective assistance of counsel for failing to secure a witness and
failure to prepare a motion to suppress Enwonwu’s inculpatory statements made to police, (3)
that in light of new evidence, no juror would have voted to find petitioner guilty beyond a
reasonable doubt; and (4) the dismissal of a black juror prejudiced Enwonwu’s trial. See Petition,
ECF No. 1, pp. 5-8. None of these claims were raised in Enwonwu’s direct appeal (except
perhaps in the Moffett brief) or his ALOFAR. ECF No. 26.
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potentially meritorious, and that petitioner has not engaged in dilatory
tactics. Id.

Order, ECF No. 14. On September 17, 2018, Enwonwu filed his memorandum. ECF No. 19. In
Enwonwu’s rambling, repetitive and confusing memorandum, he requested an extension of time
because of a clerical error that resulted in the order being provided to Enwonwu late. ECF No.
19, p. 11. Although the request was not set forth in a separate motion, it now appears moot
because Enwonwu supplemented his filing on September 20, 2018 (ECF No. 20), September 28,
2018 (ECF No. 21), and on November 8, 2018 (ECF No. 24) without seeking a further extension
of time. Respondent filed a reply on October 18, 2018. ECF No. 22. Enwonwu filed what
appears3 to be a response to the reply on November 8, 2018. ECF No. 24. On November 8,
2018, the Court ordered that respondent provide a copy of the ALOFAR. ECF No. 23. On
November 13, 2018, respondent filed a copy of the ALOFAR with the Court.
II.

Discussion

“[A]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted unless it appears that…the applicant has exhausted
the remedies available in the courts of the State…” 28 U.S.C. §2254(b)(1)(A). “Generally
speaking, a petitioner's failure to exhaust all state remedies is ‘fatal to the prosecution of a
federal habeas case.’” Sanchez v. Roden, 753 F.3d 279, 294 (1st Cir. 2014) (quoting Coningford

3
 On November 23, 2018, Enwonwu wrote to the Court notifying it of a change of address to

Bristol County Jail and House of Correction and requesting copies of documents filed in October
2018 to date, claiming he did not receive filings from some point in October 2018 through
November 2018. It is not clear whether he is claiming that he did not receive the October 18,
2018 filing as he claims to be responding to an “October 18, 2018” document (the as-filed date
of the response to Enwonwu’s filing, even though the deadline was October 19, 2018). Other
than the Court’s order for respondent to provide the ALOFAR, and the respondent’s filing of the
ALOFAR, no further filings by respondent have been made in this action during the time period
during which he claims not to have received mail. The Court needs no further briefing on the
ALOFAR, as it speaks for itself.
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v. Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011). “[A] habeas petitioner bears a heavy burden
to show that he fairly and recognizably presented to the state courts the factual and legal bases of
this federal claim.” Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir. 1997). “To carry this burden,
the petitioner must demonstrate that he tendered each 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.’” Id.
(quoting Scarpa v. Dubois, 38 F.3d 1, 6 (1st Cir.1994)). “Exhaustion obligations mandate that a
habeas petitioner present, or do his best to present, his federal claim to the state's highest
tribunal.” Adelson v. DiPaola, 131 F.3d 259, 263 (1st Cir. 1997). This standard must be met, as
a general rule, by “fairly present[ing]” a federal claim “within the four corners of the ALOFAR.”
Mele v. Fitchburg Dist. Ct., 850 F.2d 817, 823 (1st Cir.1988).
Here, the Court agrees with the respondent that Enwonwu has failed to exhaust his claims
in the courts of the Commonwealth of Massachusetts. Enwonwu appears to have twice begun
the process of seeking review of the issues raised in this petition with motions for appointment of
counsel in the state court (which were denied), and apparently unsuccessfully sought counsel
himself to assist him. But Enwonwu ultimately abandoned pursuit of the claims in 2015, opting
instead to pursue his claims in federal court three years later. Enwonwu’s recourse is first to the
courts of the Commonwealth, not this Court, when the claims of the petition are unexhausted.
While it is unclear whether a totally unexhausted petition may be stayed, as opposed to
dismissed, there is authority that the Court may do so pending the exhaustion of the claims in state
court. Watt v. Marchilli, 217 F. Supp. 3d 434, 440 (D. Mass. 2016). To obtain a stay, rather than
dismissal, Enwonwu must demonstrate, as he was previously ordered to do, that good cause exists
for failing to exhaust his state remedies, the claims are potentially meritorious, and that Enwonwu
did not engage in dilatory tactics.

8

The bar to establish good cause is high. Watt v. Marchilli, 217 F. Supp. 3d 434, 440 (D.
Mass. 2016). Here, “good cause” is not shown because none of the claims have been presented
to the Supreme Judicial Court and no showing has been made as to why those claims cannot, and
should not, be brought in state court in the first instance. Until they are brought there, and
rejected, good cause cannot be shown. See Scesny v. Ryan, No. CV 16-40024-FDS, 2016 WL
4148225, at *4 (D. Mass. Aug. 4, 2016).
Dilatory litigation tactics are also a concern here. Although stated in the context of his
purported “justified delay” in failing to timely proceed under the statute of limitations, Enwonwu
seemingly intentionally delayed the presentation of these new state claims and now mistakenly
blames his delay on the Massachusetts Superior Court for failing to act on his July 24, 2014
motion for appointment of counsel:
The petitioner now reveals prove to this Honorable Court that
his timeliness of his petition stamps from him waiting for the
Superior Court Judge to rule on the motions that he filed before
his bench, since 2014 to which until today, has been left
unattended to…On Massachusetts Trial Court Docket sheet, under
the case#0981CR01192, Commonwealth v. Enwonwu, Francis –
Docket date 7/24/2014 MOTION by Deft: First G.L.c, 278A, 5
Motion for Appointment of Counsel to prepare and litigate his first
G.L. c 278, 3 (C) and 7(c) Postconviction discovery for items and
information for replicate testing of all crime scene evidence (sent up
to Judge Henry in Courtroom 430). – On 07/24/2014, Affidavit of
Indigency and Factual Innocence (sent up to Judge Henry in
Courtroom 430) see Docket text on page 10-11 that the disposition
of the Superior Court Judge on the matter was not heard or
ruled on, which is a probable reason that petitioner has shown
cause regarding the Government’s assertion that the petitioner
is not within his habeas filing limitations, while the Middlesex
Superior Court lack of Judgment on the petitioner’s referenced
motions filed above, [see marked exhibit as defendants Docket
Entry print out, dated 5/31/2018, page 1 of 11] reflects that, The
Constitutional violation “has probably resulted in conviction of one
who is actually innocent [of the offense which has been convicted].

9

ECF No. 21, pp. 5-6 (emphasis supplied, punctuation in original). Enwonwu’s allegation, that
the motion has not been decided is false however; a review of the docket sheet that he submitted
and apparently4 highlighted, reveals both the motion (July 24, 2014) and its timely denial
(August 6, 2014) by the Superior Court:

ECF No. 31-1, p.10. His specious attempt to now blame the Superior Court for his wholly selfimposed—and now at best unexplained—failure to exhaust demonstrates bad faith. Moreover,
Enwonwu filed a later motion for appointment of counsel on April 21, 2015 that was timely
denied on April 30, 2015. ECF 13-1, p. 10, cutting against his argument that he was somehow
“waiting” for the Court to decide the 2014 motion.
On this record, it appears that Enwonwu abandoned his claims in 2015, only to revive
them in conjunction with a recently filed 28 U.S.C. §2241 petition for habeas corpus relating to
his immigration detention. His state criminal conviction at issue in this petition is apparently the

4

It appears that Enwonwu highlighted the docket provided to him as part of respondent’s motion
to dismiss months before making the representation that he was waiting for the Superior Court to
act. Compare ECF No. 11-1, p.10 with ECF No. 13-1. Even without the highlight, it is obvious
that the motion was denied, and Enwonwu’s presentation of his argument is negligent at best,
and likely an intentional misstatement of fact. While the Court is concerned about any litigant
playing fast and loose with the facts, it is ultimately not necessary to inquire further where the
reason for the delay is conclusively unsupported by the record.
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basis of his order of removal.5 In fact, Enwonwu cites his “risk of deportation and denial of
naturalization” in his petition. Where Enwonwu misrepresents the reason for the delay in
bringing his claim and the timing of the claim is brought in conjunction with a pending 28 U.S.C.
§2241 petition concerning his immigration status, Enwonwu has not met his burden to show a
lack of dilatory conduct.
The Court need not, and does not, reach the element of whether the claims are
meritorious where the petition is unexhausted in its entirety, and Enwonwu has not met his
burden to warrant a stay of dismissal of the petition.
III.

Conclusion and Order
Respondent’s motion to dismiss (ECF No. 11) is hereby ALLOWED in part, but only to

the extent that the petition is DISMISSED without prejudice for failure to exhaust claims under
28 U.S.C. §2254(b)(1)(A). Because the action is dismissed for failure to exhaust, the Court does
not reach the issue of whether the petition is time barred under the statute of limitations set forth
in 28 U.S.C. 2244(d), and all other motions (ECF Nos. 16, 17, and 18) are DENIED as MOOT.
Petitioner is advised that any request for the issuance of a Certificate of Appealability of this
Order pursuant to 28 U.S.C. § 2253 and Rule 11(a) of the Rules Governing Section 2254 Cases
in the United States District Courts is DENIED, the Court seeing no meritorious or substantial

5

See Enwonwu v. Moniz, 17-12555-IT. That immigration habeas petition under 28 U.S.C.
§2241 was filed on December 28, 2017. It appears from a review of that docket that Enwonwu
had called the Clerk’s office several times regarding the filing of a 28 U.S.C. §2255 petition that
he believes was received on January 2, 2018. Enwonwu also filed a letter with the Court on
February 22, 2018. Enwonwu v. Moniz, 17-12555-IT, ECF No. 11. The Court apparently never
located the filing, and he was sent a 28 U.S.C. §2254 form on or about March 6, 2018.
Presumably, Enwonwu used this form when he filed his petition in the instant action on March
19, 2018.
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basis supporting an appeal, and the applicant having failed to make a substantial showing of
denial of a constitutional right. The Clerk is directed to enter an order of dismissal.

So Ordered.
/s/ Allison D. Burroughs_______
ALLISON D. BURROUGHS
UNITED STATES DISTRICT JUDGE

Dated: November 28, 2018

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