Watt v. Marchilli

Filing 20

District Judge Timothy S Hillman: MEMORANDUM OF DECISION AND ORDER entered granting 16 Motion to Dismiss and denying 18 Motion to Stay. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
______________________________
)
FRANCIS WATT,
)
Petitioner,
)
)
)
vs.
)
)
RAYMOND MARCHILLI,
)
Respondent,
)
______________________________)

CIVIL ACTION
NO. 16-40045-TSH

MEMORANDUM OF DECISION AND ORDER
November 10, 2016
HILLMAN, D.J.
Background
Francis Watt (“Watt” or “Petitioner”) has filed a petition under 28 U.S.C. ' 2254 for Writ
of Habeas Corpus by a Person in State Custody (“Petition”) alleging the following grounds for
relief:
Ground One: Petitioner was denied his constitutional right to effective assistance
of counsel when his attorney failed to present mitigating factors to the sentencing
court, such as his age, health and medical issues, resulting in him receiving an
unjustly harsh sentence; and the case against him was based on circumstantial
evidence and was weak and therefore, the trial court erred by denying Petitioner’s
motions for a required finding of not guilty.1
Ground Two: Petitioner’s sentence was defective: the sentencing guideline range
should have been considered and mitigating factors should have been applied.

1

Respondent takes the position that the only claim asserted in Ground One of the Petition is for ineffective
assistance of counsel for failing to present mitigating factors to the court at the sentencing hearing. I agree with the
Respondent that Ground One of the Petition, which asserts multiple claims, is vague and ambiguous. However, Watt
is proceeding pro se and for that reason, his pleadings will be construed liberally. See Ashmont v. Rosenblatt, 118
F.3d 886, 890 (1st Cir. 1997). Interpreting the Petition liberally, I find that in Ground One, Watt is also asserting a
claim that the trial judge erred by denying his motions for a required finding of not guilty. Watt has not identified
the federal constitutional right which was allegedly violated with respect to this claim, however, again, construing
the claim liberally, I will assume that he is raising a federal constitutional due process challenge to the sufficiency of
the evidence.

Ground Three: Petitioner has obtained newly discovered evidence which would
have impeached the alleged victim’s credibility and changed the outcome of the
trial.
Ground Four: The trial court erred by denying his motion to dismiss the indictment
and he received ineffective assistance of counsel as the result of his attorney’s
failure to effectively argue for dismissal of the indictment and as the result of his
appellate attorney’s failure to raise the issue on appeal.
This Memorandum of Order and Decision addresses Respondent’s Motion to Dismiss For
Failure To Exhaust state Court Remedies (Docket No. 16) and Petitioner’s Motion To Hold Habeas
Corpus Petition In Abeyance (Docket No. 18). More specifically, Respondent asserts that the
Petition should be dismissed because Watt has failed to exhaust his state court judicial remedies
with respect to all asserted grounds for relief. In turn, Watt has filed a motion requesting that the
Court stay this proceeding to permit him to return to state court and exhaust his claims. For the
reasons set forth below, Respondent’s motion to dismiss is allowed and Petitioner’s motion to stay
is denied.
Facts
Watt was convicted by a jury of aggravated rape of a child, assault with intent to rape a
child, and indecent assault and battery on a child under the age of fourteen years old. He filed a
direct appeal of his conviction to the Massachusetts Appeals Court (“MAC”) asserting that the
trial judge erred by denying his motion for a directed finding of not guilty because there was
insufficient evidence to support his convictions for aggravated rape and indecent assault and
battery on a child under fourteen years of age. On May 20, 2015, the MAC affirmed Watt’s
conviction after finding that the verdicts were supported by an abundance of evidence, both
direct and circumstantial. See Commonwealth v, Watt, 87 Mass.App.Ct. 1122

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(2015)(unpublished opinion). Watt filed an Application For Leave To Obtain Further Appellate
Review (“ALOFAR”) with the Massachusetts Supreme Judicial Court (“SJC”) asserting the
following grounds for relief: (1) whether it was error to deny Watt’s motion for a required
finding of not guilty for the offense of aggravated rape where there was insufficient evidence to
sustain the conviction; and (2) whether it was error to deny Watt’s motion for a required finding
of not guilty for the offense of indecent assault and battery on a child under fourteen years of
age, where there was insufficient evidence to sustain the conviction. On June 26, 2015, the SJC
denied Jimenez’s ALOFAR. See Commonwealth v. Watt, 472 Mass. 1103 (2015) (Table).
Discussion
Whether Petitioner’s Claims are Exhausted
“[A] federal court will not entertain an application for habeas relief unless the petitioner
first has fully exhausted his state remedies in respect to each and every claim contained within the
application”. See Adelson v. DiPaola, 131 F.3d 259, 261 (1st Cir. 1997). “This exhaustion
requirement … embodies principles of federal-state comity and is designed to provide state courts
with an initial ‘opportunity to pass upon and correct alleged violations of [their] prisoners’ federal
rights’”. Barresi v. Maloney, 296 F.3d 48, 51 (1st Cir. 2002)(quoting Picard v. Connor, 404 U.S.
270, 275, 92 S.Ct. 509, 512 (1971))(alteration in original). Furthermore, while “[a] petitioner
need not express his federal claims in precisely the same terms in both state and federal courts,”
the claims presented in the petitioner’s federal habeas petition must be substantially equivalent to
the claims he presented to the state court. Id., at 51-52 (citing Picard, 404 U.S. at 277-78, 92 S.Ct.
at 513).

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A claim is fairly presented so long as it is made in such a way that ‘a
reasonable jurist’ would have recognized ‘the existence of the federal question.’
Where, as here, a state’s highest court offers discretionary review, a petitioner must
present that court with the opportunity to review the federal claim to have exhausted
available state remedies … .
The SJC has the power of discretionary review over decisions of the
[MAC]. An unsuccessful party before the [MAC] seeks discretionary review from
the SJC by filing an ALOFAR. The ALOFAR must include ‘a statement of the
points with respect to which further appellate review of the decision of the appeals
court is sought.’
Josselyn v. Dennehy, 475 F.3d 1, 2-3 (1st Cir. 2007)(internal citations and citations to quoted
authorities omitted).
I agree with the Respondent that it is clear on the face of the ALOFAR that Watt did not
present his second, third and fourth grounds for relief to the state courts prior to filing his Petition.
Moreover, to the extent that in ground one he is asserting a claim for ineffective assistance of
counsel as the result of his attorney’s failure to raise mitigating factors at his sentencing hearing,
that claim was also not presented to the state courts. I do find that Watt at least raised with the state
courts the claim asserted in ground one that it was error for the trial court to deny his motions for
a required finding of not guilty for the offenses of aggravated rape and indecent assault and battery
on a child under fourteen years of age. However, it is not enough that Watt presented the factual
underpinnings of his claim to the state courts— Watt must have alerted the state courts as to
existence of a federal question.
Neither party has provided the Court with copies of brief which Watt filed in his direct
appeal to the MAC. In its decision denying Watt’s appeal, the MAC cited only to Massachusetts
case law. However, the First Circuit has found that the sufficiency of the evidence test under
Massachusetts state law is “functionally identical to the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
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2781 (1979) standard the Supreme Court applies in sufficiency challenges.” Logan v. Gelb, 790
F.3d 65, 71 (1st Cir. 2015)2. Therefore, I will assume that Watt alerted the MAC as to the federal
nature of his claim. After the MAC denied his appeal, Watt filed an ALOFAR in which he
presented two issues for SJC review: (1) whether it was error to deny his motion for a required
finding of not guilty for the offense of aggravated rape where there was insufficient evidence to
sustain the conviction; and (2) whether it was error to deny his motion for a required finding of
not guilty for the offense of indecent assault and battery on a child under fourteen years of age
where there was insufficient evidence to sustain the conviction. In support, Watt asserted that his
convictions should not stand because there was insufficient evidence to support all of the essential
elements of the offenses for which he was convicted. However, he did not expressly raise a claim
for violation of his federal constitutional rights, cite to the federal constitution or cite to any cases
discussing federal constitutional law. Moreover, nothing in his legal arguments would have alerted
the SJC as to the presence of a federal claim for violation of his due process rights. Therefore, I
find that Watt has also failed to exhaust this claim. Watt presumed that he had presented the Court
with a so-called mixed petition— that is, a petition containing both exhausted and unexhausted
claims. He has filed a motion requesting that rather than dismiss his Petition, the Court stay the
proceedings and permit him to return to state Court to exhaust his remedies. I will first address
whether this stay and abeyance procedure, approved by the Supreme Court in Rhines v. Weber,
544 U.S. 269, 125 S.Ct. 1528 (2005), applies to habeas petitions that contain only unexhausted

2

“The operative question for determining sufficiency of the evidence is whether, ‘after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’ ” Logan, 790 F.3d at 71 (internal citation marks and citation to
quoted case omitted).

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claims. If I find that the Rhines’ stay and abeyance procedure applies in such cases, I must then
determine whether Watt has established good cause for entry of a stay.
Whether Petitioner is Entitled to a Stay
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 ran 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

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exhausts the unexhausted claims. Once all of the claims have been exhausted, the district court
can lift the stay and adjudicate the petition.
Watt has presented the Court with a totally unexhausted Petition. While in Rhines the
Supreme Court held that a federal court can stay a mixed petition, it has not addressed whether a
federal court can stay a completely unexhausted Petition. Although the First Circuit has yet to
address this issue, several circuit courts that have done so have held that the Rhines’ stay and
abeyance procedure applies where a petition raises only unexhausted claims. See Mena v. Long,
813 F.3d 907 (9th Cir. 2016) and cases cited therein (noting that the Third, Seventh and Tenth
Circuits have so held). Moreover, a judge in this District recently found that the Rhines’ stay and
abeyance procedure applies to totally unexhausted petitions. See Marchetti v. O’Brien, Civ. Act.
No. 15-14151-GAP, 2016 WL 5660412 (D.Mass. Sep. 29, 2016)(adopting Report and
Recommendation of Cabell, U.S.M.J). I find that if presented with the issue, the First Circuit is
likely to align itself with those circuits that have held that federal courts have the authority to
stay petitions containing only unexhausted claims. The question now becomes whether Watt has
established the requisite good cause to be granted a stay under Rhines.
In Rhines, 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 the federal habeas process. Rhines. 544 U.S. at 277, 125
S.Ct. 1528. 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
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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). This is especially true where, as here, the petitioner was represented by counsel
during state appellate proceedings. Womack v. Saba, No. 11-40138-FDS, 2012 WL 685888, 3
(D.Mass. Mar. 1, 2012). A decision by an attorney “to omit some claims [in state appellate
proceedings] cannot amount to good cause” for a stay. Clements v. Maloney, 485 F.3d 158, 170
(1st Cir. 2007). Nor does “ignorance of the law” excuse a failure to exhaust state remedies.
Josselyn, 475 F.3d at 5. Further, “a claim for ineffective assistance of counsel alone does not
present good cause for a stay and abeyance.” Womack, 2012 WL 685888 at *4.
The record does not support a finding of good cause for Watt’s failure to timely exhaust
his claims in state court. In support of his request for stay, Watt asserts that while preparing to
file his Petition, he discovered issues that could warrant a new trial and rather than await a response
from an attorney reviewing the potential new claims, he opted to file his Petition prior to
exhausting such claims. However, all of the claims asserted by Petitioner, other than his claim for
newly discovered evidence asserted in ground three, were known to him at the time he filed his
direct appeal. Watt has not offered any explanation as to why he did not include these claims in
his direct appeal and his failure to have done so has likely resulted in their being procedurally
defaulted (with the possible exception of his ineffective assistance of counsel claim, which is

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generally raised on collateral review3). See Logan v. Gelb, 52 F.Supp3d 122, 129-30 (1st Cir.
2014)(failure to raise on direct appeal issue that was knowable at time of appeal constitutes waiver
which is procedural default for purpose of habeas petition). Watt has not included the factual
underpinnings of his newly discovered evidence claim in his Petition and for that reason, the Court
cannot evaluate whether he has been dilatory with respect to pursuing this claim in state court. Put
another way, Watt has failed to establish that the evidence is in fact new or that he could not have
discovered it earlier. Watt has also failed to establish that any of his claims have merit. For these
reasons, Watt’s motion for a stay is denied.4
Conclusion
1.

Respondent’s Motion to Dismiss For Failure To Exhaust State Court Remedies

(Docket No. 16) is allowed; and
2.

Petitioner’s Motion To Hold Habeas Corpus Petition In Abeyance (Docket No.

18) is denied.
/s/ Timothy S. Hillman______________
TIMOTHY S. HILLMAN
U.S. DISTRICT JUDGE
3
The general rule in Massachusetts is that claims of ineffective assistance of counsel are raised in a motion
for new trial. Commonwealth v. Zinser, 446 Mass. 807, 10, 847 N.E.2d 1095 (2006). However, where the factual
underpinnings of the claim appear indisputably on the trial record, the ineffective assistance of counsel claim must
be raised on direct appeal. Id. Based on how Petitioner has framed his ineffective assistance of counsel claim, it very
well may be one that should have been raised on direct appeal.
4
The Court is mindful of the fact that outright dismissal of Watt’s Petition may statutorily bar him from
obtaining federal habeas relief in this Court because at this point, AEDPA’s one-year statute of limitations has likely
either run or is close to running out. At the same time, Watt chose to proceed with the filing of his federal habeas
petition before filing his motion for new trial in the state court. At the time he filed his Petition, he had ample time
remaining under the statute of limitations; the filing of a timely motion for new trial in the state court would have
tolled the running of the statute of limitations under the AEDPA. If Watt filed a motion for new trial with the state
court during the pendency of this proceeding, then it is possible the running of the one-year limitations period has
been tolled and he would have time to seek federal habeas review after exhausting his state court remedies.

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