Monteiro v. Commonwealth of Massachusetts

Filing 20

Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER - For the foregoing reasons, the Court will ALLOW the motion to dismiss the Petition, D. 15, and the Court will dismiss the Petition in its entirety unless on or before September 30, 2024, Monteiro files notice with this Court voluntarily dismissing the unexhausted claims (Grounds One and Four) and seeking to proceed with the remaining, exhausted claims (Grounds Two and Three). (Hourihan, Lisa) (Main Document 20 replaced on 8/30/2024) (Hourihan, Lisa).

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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KEON MONTEIRO,
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Petitioner,
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v.
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Case No. 23-cv-11609-DJC
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COMMONWEALTH OF MASSACHUSETTS, )
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Respondent.
)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.

August 30, 2024

Introduction
Petitioner Keon Monteiro (“Monteiro”), proceeding pro se, has filed a petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254 alleging four grounds for relief (the “Petition”). D. 1.
Respondent Commonwealth of Massachusetts (the “Commonwealth”) moves to dismiss the
Petition and argues that Monteiro has failed to exhaust his state-court remedies as to two of the
four grounds for relief. D. 15. For the reasons discussed below, the Court ALLOWS the
Commonwealth’s motion to dismiss, D. 15, but gives Monteiro an opportunity to dismiss his
unexhausted grounds and proceed with the Petition on the two remaining grounds.
II.

Standard of Review
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), federal courts may

review petitions for habeas petitions that have resulted in either a decision that was “contrary to,
or involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court” or “based on an unreasonable determination of the facts in light of the evidence
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presented in the State court proceeding.” 28 U.S.C. § 2254(d). As an initial matter, a petitioner
must show that he has exhausted all of his state court remedies. Id. To carry the burden of proving
exhaustion, Monteiro must demonstrate that he has “fairly and recognizably” presented his claim
to the state’s highest court, the Supreme Judicial Court in this case. Casella v. Clemons, 207 F.3d
18, 20 (1st Cir. 2000). The Court must determine whether the petitioner fairly presented the federal
claim to the Supreme Judicial Court within the four corners of his application for further appellate
review (“ALOFAR”). Adelson v. DiPaola, 131 F.3d 259, 263 (1st Cir. 1997) (noting that the
ALOFAR is the “decisive pleading” to show exhaustion).
III.

Relevant Factual and Procedural Background
The following facts are primarily drawn from the Suffolk Superior Court’s ruling on

Monteiro’s second motion for a new trial and the Massachusetts Appeals Court’s opinion on the
related appeal of his conviction and this motion.
On December 4, 2015, a jury found Monteiro guilty of two counts of murder in the second
degree and unlawful possession of a firearm and the trial court sentenced him to concurrent terms
of life imprisonment on the murder convictions (and four to five years on the firearm conviction).
D. 15-2 at 1. The original trial judge (Roach, J.) was replaced during the course of the trial, with
the assent of the parties, by another judge (Locke, J.). Id. On January 5, 2016, Monteiro filed his
first motion for a new trial, arguing that a juror discussed his case during a prayer service prior to
deliberations in violation of the court’s instructions not to discuss the trial. Id. at 2. The court
denied the motion on April 12, 2017, without an evidentiary hearing. Id. Monteiro did not appeal
this denial. See D. 15-3 at 1; Commonwealth v. Monteiro, No. 19-P-1280, 2022 WL 2674229, at
*1 (Mass. App. Ct. July 12, 2022) (unpublished).

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On July 17, 2017, Monteiro filed his second motion for a new trial, arguing that the court
erred in admitting evidence of Monteiro’s alias, “Killa,” witness testimony concerning evidence
of consciousness of guilt and that his trial counsel was ineffective. D. 15-2 at 2, 11-14, 15-21.
Prior to the hearing on the motion, Monteiro moved to have the case transferred back to the original
trial judge. See D. 2 at 12-13; D. 15-1 at 20. Judge Locke denied the motion. D. 15-1 at 20. The
trial court held an evidentiary hearing on November 16, 2018, and December 14, 2018, and
subsequently denied the second motion for a new trial, reasoning that the trial court properly
exercised its discretion in allowing evidence of the nickname, “Killa” and witness testimony
concerning consciousness of guilt. D. 15-2 at 12-14; D. 15-1 at 20-21. The court further reasoned
that Monteiro did not satisfy the standard of ineffective assistance of counsel because, among other
reasons, there was no evidence that his trial strategy was “manifestly unreasonable” to warrant a
basis for a new trial. See D. 15-2 at 14-22.
In a consolidated appeal from Monteiro’s convictions and second motion for a new trial,
the Massachusetts Appeals Court affirmed the Superior Court’s ruling. D. 1-3 at 1; D. 15-3 at 1;
Monteiro, 2022 WL 2674229, at *1. The appellate court noted that Monteiro did not appeal his
first motion for a new trial and, therefore, the issues considered as to a motion for a new trial by
the court only included whether the trial court erred by admitting evidence of Monteiro’s
nickname, “Killa,” and consciousness of guilt, and whether trial counsel was ineffective. D. 1-3
at 1-2; D. 15-3 at 1; Monteiro, 2022 WL 2674229, at *1.
On August 1, 2022, Monteiro submitted an ALOFAR to the Supreme Judicial Court.
D. 15-4 at 1, 24. In a section entitled “Statement of Prior Proceedings,” the ALOFAR noted that
Monteiro had filed a motion for a new trial “based on information that a juror had discussed the
case at a prayer meeting” and that the motion was denied. Id. at 6. In a section entitled “Statement

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Of The Issues With Respect To Which Monteiro Seeks Further Appellate Review,” Monteiro
urged the Supreme Judicial Court, first, to consider whether the decision to admit evidence of
Monteiro’s nickname “Killa” unfairly prejudiced Monteiro, second, to consider whether the trial
judge properly admitted evidence of consciousness of guilty through threatening witnesses, and
third, whether Monteiro’s trial counsel’s strategy was “manifestly unreasonable and
counterproductive, costing Monteiro a chance of acquittal.” Id. at 12-13. On September 12, 2022,
the SJC denied the ALOFAR.1 See D. 2 at 5; Commonwealth v. Monteiro, 490 Mass. 1105, 1105
(2022).
On July 17, 2023, Monteiro filed this Petition asserting four grounds for relief: (1) the trial
court failed to properly investigate the allegations of juror misconduct; (2) the trial court erred by
admitting evidence of the use of Monteiro’s alias, “Killa,” during trial; (3) trial counsel was
ineffective by failing to assert a “third party culprit” defense; and (4) Monteiro’s appellate counsel
provided ineffective assistance by failing to move to recuse Judge Locke. D. 2 at 7-14. The
Commonwealth has moved to dismiss the Petition for failure to exhaust two of the claims in state
court unless Monteiro voluntarily withdraws the two unexhausted claims. D. 16 at 1.
IV.

Discussion
A.

Failure to Exhaust Grounds One and Four

The Commonwealth argues that the Petition should be dismissed because Monteiro did not
exhaust Grounds One and Four as these claims were not fairly presented in the ALOFAR. D. 16
at 4-9. Monteiro concedes that Ground Four is not exhausted but maintains that Ground One is
exhausted. D. 19 at 3, 10-11.

1

Monteiro cites the date of the SJC’s denial of his ALOFAR as August 12, 2022, but it appears
that the correct date is September 12, 2022. See Monteiro, 490 Mass. at 1105.
4

“In recognition of the state court's important role in protecting constitutional rights. . . a
federal court will not entertain an application for habeas relief unless the petitioner has fully
exhausted his state remedies in respect to each and every claim [in the Petition].” Adelson, 131
F.3d at 261. To satisfy the exhaustion requirement, “[i]t is not enough merely to raise an issue
before an intermediate court; one who seeks to invoke the federal habeas power must fairly present
– or do his best to present – the issue to the state's highest tribunal.” Mele v. Fitchburg Dist. Ct.,
850 F.2d 817, 820 (1st Cir. 1988). “A claim is fairly presented when the petitioner has 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.” Sullivan v. Saba, 840 F. Supp. 2d 429, 434 (D.
Mass. 2012) (internal quotations omitted) (citing Clements v. Maloney, 485 F.3d 158, 162 (1st
Cir. 2007)). To exhaust federal claims in state court, the federal nature of the claims must be
indicated by:

“(1) citing a provision of the federal constitution; (2) presenting a federal

constitutional claim in a manner that fairly alerts the state court to the federal nature of the claim;
(3) citing federal constitutional precedents; or (4) claiming violation of a right specifically
protected in the federal constitution.” Clements, 485 F.3d at 162. If a habeas petition includes
both exhausted and unexhausted claims, a federal court generally must dismiss the petition.
Johnson v. Rodin, 926 F. Supp. 2d 394, 399 (D. Mass. 2013). However, “[i]n some circumstances,
a petitioner may delete his unexhausted claims and proceed only on his exhausted claims.” Id.
(internal citation and quotation marks omitted).
Here, Monteiro has not properly exhausted Ground One for relief. Monteiro raised the
issue of juror communication in his first motion for a new trial and never appealed the denial of

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that decision. 2 See D. 1-3 at 1; D. 15-3 at 1; Monteiro, 2022 WL 2674229, at *1. In his ALOFAR
to the Supreme Judicial Court, Monteiro only included a single mention to the jury communication
issue in the background section under the title of “Statement of Prior Proceedings,” but otherwise
made no mention of the juror communication issue and did not include the issue under “Statement
Of The Issues With Respect To Which Monteiro Seeks Further Appellate Review.” D. 15-4 at 56, 12-13. Monteiro’s presentation of the issue as a single sentence in the procedural background
does not indicate that the issue was “fairly presented” to the Supreme Judicial Court. See Mele,
850 F.2d at 822 (reasoning that “an issue cannot be said to have been ‘fairly presented’ if the court
is not given an opportunity to consider arguments on both sides of it”). As Monteiro was
represented by counsel when he filed his ALOFAR and the ALOFAR explicitly included three
grounds upon which he sought further review, Monteiro may not raise an issue in a prior motion
for a new trial, decline to pursue the appeal, “abandon it in his ALOFAR, and then raise it again
in his habeas petition; rather, in order to survive the exhaustion requirement, an issue must be
raised ‘within the four corners of the ALOFAR.’” See Gonsalves v. Thompson, 396 F. Supp. 2d
36, 40-41 (D. Mass. 2005) (internal citation omitted); see also Mele, 850 F.2d at 822 (reasoning
that a claim is not “fairly presented” in an ALOFAR that has not been appealed because an
“appellate court is entitled to assume that the parties are content with rulings to which no objection
is timely noted and preserved”). Accordingly, Ground One is not exhausted. 3

2

It appears that Monteiro believes that he did raise Ground One in his subsequent appeal and the
Massachusetts Appeals Court considered this ground in its July 12, 2022 decision, see D. 1 at 5-6,
but the record belies same. Massachusetts Appeals Court only acknowledged that Monteiro had
filed an initial motion for a new trial and “did not appeal from that order” but instead “filed a
second motion for a new trial, based on ineffective assistance of counsel.” See D. 15-3 at 1;
Monteiro, 2022 WL 2674229, at *1.
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The Commonwealth further argues that even if Monteiro had exhausted Ground One, that claim
is not cognizable on habeas review to the extent it is based on violations of state law. D. 16 at 76

Monteiro’s Ground Four fares no better. Monteiro concedes that he did not include Ground
Four in his ALOFAR or otherwise present the claim in state court but claims that he did not become
aware of the issue until after his direct appeal had already been denied. See D. 1 at 10. However,
it is well-established that claims presented for the first time in a habeas petition and “claims omitted
from an ALOFAR (or similar petition) are unexhausted.” See Clements, 485 F.3d at 168 (holding
that claims that were omitted from the ALOFAR were not exhausted); Sanabria v. Medeiros, No.
17-cv-12130-PBS, 2018 WL 4268892, at *2 (D. Mass. Sept. 5, 2018) (holding that claim for
ineffective assistance of counsel presented for the first time in petitioner’s habeas petition was
unexhausted because petitioner “was obliged to bring it before the SJC” to preserve habeas
review). Monteiro does not explain why he could not have exhausted this claim by filing a motion
for new trial on this basis before this Petition. Gunter v. Maloney, 291 F.3d 74, 82 (1st Cir. 2002)
(concluding that there was no exhaustion of an ineffective assistance of counsel claim “where the
clam has not been fairly presented on direct appeal, as happened here, it should be fairly presented
to the state court through a motion for collateral relief”).

Given this record and Monteiro’s

acknowledgement that this ground was not exhausted, D. 19 at 10-11, the Court holds that Ground
Four is not exhausted.
B.

Stay and Abeyance

Although Monteiro has not requested a stay, the Commonwealth has also argued that
Monteiro is not entitled to a stay to return to state court to exhaust these two claims. D. 16 at 1, 911. A court should only stay resolution of exhausted claims and hold a petition in abeyance “in
limited circumstances.” Rhines v. Weber, 544 U.S. 269, 277 (2005). “[T]o obtain a stay of a

8. Given the Court’s holding that Ground One is not exhausted, the Court does not address the
Commonwealth’s alternative argument.
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mixed petition, the petitioner must show that there was good cause for failing to exhaust the state
remedies, the claims are potentially meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory tactics.” Josselyn v. Dennehy, 475 F.3d 1, 4 (1st Cir. 2007)
(internal quotation marks omitted) (citing Rhines, 544 U.S. at 278).
The Court agrees that a stay is not appropriate because Monteiro cannot meet even the first
requirement of good cause. Monteiro appears to argue that his pro se status in the habeas
proceedings meets the good cause requirement for a stay. D. 19 at 9-10. A “petitioner’s pro se
status, as well as his attributes, skill sets, and circumstances” must factor into the good-cause
determination, but a petitioner’s pro se status in filing his habeas petition, in and of itself, cannot
establish good cause. See Sena v. Kenneway, 997 F.3d 378, 387 (1st Cir. 2021) (concluding that
a stay was inappropriate to exhaust an ineffective assistance of appellate counsel claim because
pro se petitioner’s delay in seeking state court relief did not demonstrate good cause); Sullivan,
840 F. Supp. 2d at 437 (reasoning that petitioner’s pro se status when he filed the habeas petition
does not constitute good cause and does not excuse petitioner from the exhaustion requirement).
The Court notes that the application of a more lenient good cause standard to a pro se petitioner is
also not implicated here because Monteiro was represented by counsel in his state court
proceedings. See Josselyn, 475 F.3d at 5 n.3; Womack v. Saba, No. 11-cv-40138-FDS, 2012 WL
685888, *3 (D. Mass. Mar. 1, 2012) (holding that petitioners “pro se status during federal habeas
proceedings, without more, does not constitute good cause warranting a stay and abeyance” where
petitioner was represented by counsel during state court proceedings).
Moreover, as to Ground One, Monteiro does not provide any basis to substantiate good
cause for not pursuing this claim on appeal. The First Circuit has held that “the intentional decision
to omit some claims from the ALOFAR cannot amount to good cause.” Clements, 485 F.3d at

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170 (affirming denial of stay for claims that were intentionally omitted from the ALOFAR);
Sullivan, 840 F. Supp. 2d at 437 (reasoning that an appellant attorney’s decision to omit certain
claims from an ALOFAR whether the product of strategic decision making, ignorance or mistake,
does not constitute good cause). Accordingly, Monteiro cannot establish good cause as to Ground
One.
As to Ground Four, Monteiro asserts that he did not exhaust this claim because did not
learn of the basis for the claim until after his ALOFAR was denied. D. 1 at 10. “The discovery
of new information following direct appeal will not always constitute good cause.” Wilkerson v.
Massachusetts, 605 F. Supp. 3d 178, 197 (D. Mass. 2022). Also, this is not a case where Monteiro
had the same counsel for his second motion for a new trial (represented by Attorneys Bailey and
Lanza, D. 15-1 at 2, 19), for which he complains of ineffective assistance of counsel, and his
ALOFAR (filed by Attorney Billowitz), where one could expect appellate counsel not to raise his
own ineffectiveness. See Durand v. Goguen, 388 F. Supp. 3d 54, 60 (D. Mass. 2019). Even so,
the issue about potential grounds for recusal of Judge Locke were raised on the first day of the
hearing on Monteiro’s second motion for new trial on November 16, 2018. See D. 1-4 ¶ 19; D.
15-1 at 20. About four years later on August 1, 2022, he filed the ALOFAR through different
counsel, and then almost another year lapsed before he filed this Petition in July 2023. See D. 1;
D. 2 at 5; D. 15-4. Monteiro does not provide any basis for why he could not have discovered
Ground Four earlier, as it was stated on the record and knowable by the end of 2018, and why he
could not have returned to state court to exhaust his ineffectiveness of counsel claim before filing
this Petition.4 See Durand, 388 F. Supp. 3d at 60-61 (reasoning that a stay was inappropriate

4

Wilkerson v. Massachusetts, 605 F. Supp. 3d at 195-97, cited by Monteiro, does not compel a
different result. In Wilkerson, the court reasoned that a pro se petitioner’s diligence in attempting
to obtain counsel to present his claims for exhaustion indicated good cause for a stay to allow the
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because petitioner could not show good cause for failing to exhaust ineffective appellate counsel
claims); Watt v. Marchilli, 217 F. Supp. 3d 434, 440-41 (D. Mass. 2016) (reasoning that petitioner
did not have good cause for not timely presenting his claims in state court because the information
that he claims was new were previously known or knowable to him). Accordingly, Monteiro
cannot show good cause and a stay is, therefore, unwarranted.
A Court may not move forward on a “mixed petition,” that is, where like here, a petition
includes both exhausted and unexhausted claims.

See Sullivan, 840 F. Supp. 2d at 433

(recognizing that a court “has the discretion to deny, but not grant, a mixed petition”). Even where
a Court finds that such stay and abeyance is inappropriate, the Court may allow a petitioner to
dismiss unexhausted claims from the Petition and proceed with the exhausted claims. Martinez v.
Ryan, 346 F. Supp. 3d 203, 210-11 (D. Mass. 2018) (citing Rhines, 544 U.S. at 278). Accordingly,
Monteiro may choose to dismiss Grounds One and Four, which are not exhausted, and proceed
with the remainder of his claims (Grounds Two and Three). The entire Petition, therefore, will be
dismissed unless Monteiro voluntarily dismisses the unexhausted claims (Grounds One and Four)
and indicates that he seeks to proceed with the remaining claims by September 30, 2024.
V.

Conclusion
For the foregoing reasons, the Court will ALLOW the motion to dismiss the Petition, D.

15, and the Court will dismiss the Petition in its entirety unless on or before September 30, 2024,

petitioner to exhaust his ineffective assistance of counsel claims based on newly discovered
evidence. See Wilkerson, 605 F. Supp. 3d at 195-97. Unlike Wilkerson where the petitioner had
moved to stay to exhaust his claims, already filed a motion for a new trial prior to filing his habeas
petition, had actively tried to obtain further counsel to exhaust his claims and had demonstrated
that he lacked the information, legal skills and resources to exhaust his claims, id. at 194-97, the
record here does not reflect similar efforts or circumstances.
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Monteiro files notice with this Court voluntarily dismissing the unexhausted claims (Grounds One
and Four) and seeking to proceed with the remaining, exhausted claims (Grounds Two and Three).
So Ordered.
/s Denise J. Casper
United States District Judge

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