Smith v. Gogeun

Filing 22

District Judge Timothy S. Hillman: ORDER entered denying 3 Motion to hold habeas corpus petition in abeyance. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
______________________________
)
JOSEPH SMITH,
)
Petitioner,
)
)
)
v.
)
)
COLLETTE M. GOGUEN,
)
Respondent,
)
______________________________)

CIVIL ACTION
NO. 16-11785-TSH

ORDER
September 25, 2017
HILLMAN, D.J.
Background
Joseph Smith (“Smith” or “Petitioner”) has filed a petition under 28 U.S.C. ' 2254 for Writ
of Habeas Corpus by a Person in State Custody (“Petition”). Petitioner contemporaneously filed
a Motion To Hold Habeas Corpus Petition In Abeyance (Docket No. 3). For the reasons forth
below, that motion is denied, without prejudice.
Discussion
In Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198 (1982), the Supreme Court held
that a federal district court could not adjudicate a mixed habeas corpus petition, that is a habeas
petition containing both exhausted and unexhausted claims. Instead, a petitioner was given the
option of deleting the unexhausted claims, or voluntarily dismissing the petition and returning to
state court to fully exhaust his claims. Once all claims were exhausted, the petitioner could refile
his petition in the federal court. However, as part of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEPDA”), Congress adopted a one-year statute of limitations for the filing
of fully-exhausted claims in a federal habeas petition and did not provide for the tolling of the
limitations period while a habeas petition was pending in federal court. See Duncan v. Walker,
533 U.S. 167, 181-82, 121 S.Ct. 2120 (2001). Consequently, petitioners who come to federal court
with a mixed petition run the risk of forever losing their opportunity for any federal review of their
unexhausted claims. This is because dismissal of a timely filed federal habeas petition containing
unexhausted claims after the limitations period has expired will likely mean the termination of any
federal review. This is also true where the district court dismisses the petition close to the end of
the one-year period because at that point, it is unlikely the petitioner will be able to exhaust his
claims in state court before the limitations periods runs. To remedy this problem, the Supreme
Court, in Rhines, approved a “stay and abeyance” procedure whereby rather than dismissing a
mixed petition, a district court can stay the petition and hold it in abeyance while the petitioner
prosecutes the unexhausted claims. Once all of the claims have been exhausted, the district court
can lift the stay and adjudicate the petition.
Smith has filed a motion seeking a stay and abeyance in which he states that he has filed
a motion for new trial pursuant to Mass.R.Crim.P. 30(b) in Massachusetts State Court raising
four additional grounds for relief. He requests that this Court stay these proceedings to allow him
to exhaust these new grounds for relief: If the state court denies his motion for new trial, he will
seek to amend his Petition to include the four new grounds for relief.
In Rhines v. Weber, 544 U.S. 269, 277, 125 S.Ct. 1528 (2005), the Supreme Court
recognized that applying the “stay and abeyance” procedure too frequently could undermine
Congress’ intent under the AEDPA to encourage finality in criminal proceedings and to streamline
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the federal habeas process. Thus, to obtain a stay of a 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.
Id. at 278, 125 S.Ct. 1528. There is little authority on what constitutes “good cause” for failing
to exhaust state remedies. Relevant cases from the First Circuit make clear the bar for petitioners
is high. See Josselyn, 475 F.3d at 5 (1st Cir. 2007)(finding that appellate attorney’s erroneous belief
that claims had already been exhausted was insufficient to show good cause for a stay). A
petitioner’s pro se status, in and of itself, cannot establish good cause. See Sullivan v. Saba, 840
F.Supp.2d 429, 437 (D.Mass. 2012).
Smith’s bare bone’s motion does not address whether there is good cause for his failure to
timely exhaust these claims in state court. Additionally, Smith has not included the factual or legal
underpinnings of his new claims and for that reason, the Court cannot evaluate whether he has
been dilatory with respect to pursuing them in State court, or whether they are meritorious. For
these reasons, Smith’s motion for a stay is denied, without prejudice.1
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Part 12 of the Petition instructs the Petitioner to: “state every ground on which you claim that you are
being held in violation of the Constitution, laws or treaties of the United States. Attach additional pages if you have
more than four grounds. State the facts supporting each ground.” See Petition, at ¶12. Part 12 also contains a
warning concerning the filing of claims which have not been exhausted in state court and for failing to include all
claims. Rather than stating the grounds on which he seeks relief, Petition has incorporated a copy of a brief which he
attached to the Petition; it is not clear what the brief is in support of, nor in what court it was originally filed
(Respondent states that the brief was filed in support of Petitioner’s appeal to the Massachusetts Appeals Court).
The Respondent has filed a Motion For A More Definite Statement, Or In The Alternative, For A Dismissal Of The
Petition (Docket No. 15). I have granted Petitioner’s request for an extension of time to respond to this motion.
As pointed out by the Respondent in her memorandum in support of her motion, Petitioner has not
complied with the instructions contained in Part 12 of the Petition, which makes it difficult for her and the Court to
determine whether Petitioner’s claims have been exhausted. Moreover, the Petition does not include the four
additional claims referenced by the Petitioner in his motion for stay and abeyance and therefore, it is impossible to
determine if the Petition is premature. Therefore, Petitioner should be aware that I am inclined to grant the
Respondent’s motion, at least to the extent that it requests that he clarify his Petition. Therefore, in his response to
the motion, Petitioner should, at the very least, provide a more definite statement as to Part 12 of his Petition by
stating with specificity: (1) each ground for relief for which he alleges he is being held in violation of the U.S.

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Conclusion
The Motion To Hold Habeas Corpus Petition In Abeyance (Docket No. 3) is denied,
without prejudice.

/s/ Timothy S. Hillman______________
TIMOTHY S. HILLMAN
U.S. DISTRICT JUDGE

Constitution; and (2) the facts and supporting each such ground. Petitioner is on notice that if he does not address the
concerns raised by the Respondent in her pending motion, the Court will consider dismissing his Petition.

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