Aviles v. Dickhaut

Filing 16

Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered denying 2 Motion to Stay. Inlight of his pro se status, petitioner will be given additional time to dismiss his unexhausted claims. The petition for a writ of habeas corpus will be dismissed without prejudice unless, within 21 days of the date of this Order, petitioner files a request to dismiss the unexhausted claims in his petition and proceed on the merits of the exhausted claims. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ANGEL AVILES,
Petitioner,
v.
THOMAS DICKHAUT,
Respondent.

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Civil Action No.
12-40017-FDS

ORDER DENYING PETITIONER’S
MOTION TO STAY
SAYLOR, J.
Petitioner Angel Aviles was convicted in Massachusetts Superior Court on May 14,
2007, of statutory rape of a child and indecent assault and battery on a child under fourteen.
After his conviction was affirmed by the Supreme Judicial Court, he filed a petition for habeas
relief pursuant to 28 U.S.C. § 2254. The petition states two grounds for relief, and petitioner has
exhausted his state-court remedies with respect to both. However, concurrently with the filing of
his petition, he filed a motion to stay and hold the case in abeyance while he exhausts his statecourt remedies with respect to other claims that were not addressed in his state-court appeals but
that he has raised in a subsequent motion submitted to the trial court. On May 3, 2012, the Court
issued an order instructing petitioner to state the nature of his unexhausted claims and show good
cause for his failure to exhaust those claims prior to the filing of his habeas petition.
On June 19, 2012, petitioner filed his response to the Court’s order. He states that he is
in the process of preparing a motion for a new trial in Superior Court, and that he intends to raise
the following claims: (1) violation of his right to a fair trial; (2) ineffective assistance of both

trial and appellate counsel; (3) violation of his right to a public trial; (4) prosecutorial
misconduct; and (5) other related matters. He contends that the delay in filing the motion is due
to his limited English proficiency and legal knowledge, and that he is dependent on the
assistance of another prisoner who was unavailable until recently.
Petitioner’s reasons do not constitute good cause, within the meaning of the law, for his
failure to exhaust his state-court remedies. The requirement to show good cause may be applied
more loosely with pro se petitioners. Josselyn v. Dennehy, 475 F.3d 1, 5 n.3 (1st Cir. 2007).
However, language problems, lack of legal knowledge, or illiteracy, without more, do not
constitute good cause. See Promoter v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010) (holding that
the fact that petitioner spoke Spanish and was not literate in English did not constitute good
cause); Rossell v. McFadden, 5 F.3d 539, at *2 (9th Cir.1993) (unpublished table decision)
(holding that “illiteracy and ignorance of the law on the part of a pro se petitioner does not
establish cause”); Vasquez v. Lockhart, 867 F.2d 1056, 1058 (8th Cir. 1988) (holding that “pro
se status and lack of familiarity with the American language and court system do not constitute
cause”). Petitioner’s claim of ineffective assistance of counsel cannot serve as cause for a
procedural default until the ineffectiveness claim is first exhausted in state court. Murray v.
Carrier, 477 U.S. 478, 488-89 (1986). In short, petitioner has not shown good cause for his
failure to exhaust state court remedies that would merit a stay.
For the foregoing reasons, petitioner’s motion to stay the proceedings is DENIED. In
light of his pro se status, petitioner will be given additional time to dismiss his unexhausted
claims. The petition for a writ of habeas corpus will be dismissed without prejudice unless,
within 21 days of the date of this Order, petitioner files a request to dismiss the unexhausted

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claims in his petition and proceed on the merits of the exhausted claims.
So Ordered.

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

Dated: June 22, 2012

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