Dame v. Coguen
Filing
16
District Judge Timothy S. Hillman: MEMORANDUM OF DECISION AND ORDER entered granting in part and denying in part 12 Motion to Dismiss. Petitioner shall have until October 19, 2018 to file an amended petition which complieswith this Order, or his petition will be subject to dismissal in its entirety. (Castles, Martin)
Case 4:17-cv-40131-TSH Document 16 Filed 09/18/18 Page 1 of 9
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
______________________________
)
RONALD DAME,
)
Petitioner,
)
)
)
vs.
)
)
COLETTE GOGUEN,
)
Respondent.
)
______________________________)
CIVIL ACTION
NO. 17-40131-TSH
MEMORANDUM OF DECISION AND ORDER
September 18, 2018
HILLMAN, D.J.
Background
Ronald Dame (“Dame” 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
relief1:
Ground One: Prejudicial pre-Indictment delay during which Petitioner’s alibi
witness died and subsequent denial of admission of hearsay statement of that alibi
witness.
Ground Two: Admission of evidence illegally obtained during a motor vehicle
search was not harmless error.
Ground Three: It was error to deny Petitioner to present a third party culprit defense.
Ground Four: Petitioner should have been granted relief based on the accumulation
of “substantially interrelated errors.”
1
Dame 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).
Case 4:17-cv-40131-TSH Document 16 Filed 09/18/18 Page 2 of 9
The Respondent has filed a motion to dismiss on the following grounds: (1) Ground Two
of the Petition is barred because Petitioner’s Fourth Amendment violations are not cognizable on
federal habeas review; (2) Ground Three of the Petition, challenging the exclusion of third party
culprit evidence, is unexhausted; (3) Ground Four fails to state a federal basis for relief; and (4)
Ground One, asserting prejudicial delay, is subject to dismissal if Petitioner fails to dismiss the
unexhausted claim asserted in Ground Three. See Resp’s Mot. To Dismiss (Docket No. 12) and
Resp’s Mem. In Supp. Of Mot. To Dismiss Pet. For Writ of Habeas Corpus (Docket No. 13).
Petitioner has not filed an opposition to the motion to dismiss.
Facts
On February 24, 2012, Dame was convicted by a jury of first degree murder in the killing
of Clara Provost on January 6, 1974. Dame file a direct appeal of his conviction to the
Massachusetts Supreme Judicial Court (“SJC”) raising the following grounds for relief:
(1) the trial court should have dismissed the indictment because the
Commonwealth’s alleged improper delay in seeking indictment prejudiced his
defense; (2) the trial court should have allowed his motion to suppress a paper
towel that police seized from his car on January 7, 1974; (3) introduction of the
paper towel into evidence was prejudicial and was not harmless beyond a
reasonable doubt; and (4) the SJC should exercise its extraordinary powers under
Mass. Gen. Law. ch. 278, §33E to grant him a new trial.
See Commonwealth v. Dame, 473 Mass. 524, 526 (2016). The SJC affirmed Dame’s conviction
on February 3, 2016. In its decision, the SJC found that the paper towel obtained from the
Petitioner’s vehicle pursuant to a warrantless search should have been excluded at trial, because
there were no facts connecting the crime to the vehicle and therefore, the police lacked probable
cause to conduct the search. The SJC, however, found that admission of the evidence was
harmless beyond a reasonable doubt given the other evidence tying Petitioner to the crime Id., at
2
Case 4:17-cv-40131-TSH Document 16 Filed 09/18/18 Page 3 of 9
536-38. As to Petitioner’s claim that he was prejudiced because of the pre-indictment delay of
thirty-two years, the SJC found that Petitioner had not established that he was substantially
actually prejudiced or that the delay was intentionally or recklessly caused by the
Commonwealth. Id, at 530-535. The SJC then summarily denied Petitioner’s claim that the
single justice erred by denying his motion to stay the execution of his sentence and his claim for
extraordinary relief under Mass.Gen.L. ch. 278, §33E. As to the latter claim, the SCJ stated that
that it would not exercise its power to grant a new trial or reduce the degree of guilt, because,
although his trial was not error free, there was “no miscarriage of justice requiring a new trial.”
Id. at 538.
Discussion
Whether Grounds Two and Four should be dismissed on the Merits
Ground Two
In Ground Two, Petitioner’s challenges the admission at trial of evidence illegally
obtained during a motor vehicle search conducted without probable cause. More
specifically, the trial court admitted the evidence after finding that the search of the vehicle
by the police did not violate Petitioner’s rights. However, the SJC determined that the
search of the vehicle was unlawful and the evidence (a paper towel) should have been
excluded. The SJC went on to find that given the evidence against Petitioner, admission of
the paper towel was harmless beyond a reasonable doubt. Having prevailed on appeal
regarding his suppression argument, Petitioner now challenges the SJC’s finding that
admission of the tainted evidence was harmless error. Respondent argues that federal
habeas review of this claim is barred because the Supreme Court has held that where the
3
Case 4:17-cv-40131-TSH Document 16 Filed 09/18/18 Page 4 of 9
state has provided an opportunity for full and fair litigation of a Fourth Amendment claim,
a state prisoner may not be granted federal habeas corpus relief on the ground that evidence
obtained in an unconstitutional search or seizure was introduced at his trial. See Stone v.
Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 3053 (1976)(footnotes omitted).
“A full and fair opportunity to litigate means that the state has made available to
defendants a set of procedures suitably crafted to test for possible Fourth Amendment
Violations. So long as a state prisoner has had an opportunity to litigate his Fourth
Amendment claims by means of such a set of procedures, a federal habeas court lacks the
authority, under Stone, to second-guess the accuracy of the state court’s resolution of those
claims”. See Sanna v. DiPaolo, 265 F.3d 1, 9 (1st Cir. 2001)(internal citation omitted). This
Court’s inquiry is, therefore, limited to whether the Petitioner had a “realistic opportunity
to litigate his Fourth Amendment claim fully and fairly in the state system.” Id., at 8. In
this case, there can be no question that Petitioner had a full and fair opportunity to litigate
his Fourth Amendment claim in the trial court and then on appeal to the SJC. Indeed, the
SJC determined that the evidence was unlawfully obtained and should have been excluded,
but that failure to do so was harmless error. It is the SJC’s harmless error finding that
Petitioner seeks to challenge. However, this Court’s review of the SJC’s harmless error
finding “implicitly involves a request for habeas relief on the basis of the trial court’s
failure to exclude evidence,” which is barred by Stone. See Bastardo v. Marshall,
Civ.Act.No. 93-40099-NMG, 1997 WL 667785 (D.Mass. Oct. 16, 1997)(review of state
court’s finding of harmless error where underlying error involves Fourth Amendment is
equivalent of reviewing claimed Fourth Amendment violation); see also McCambridge v.
4
Case 4:17-cv-40131-TSH Document 16 Filed 09/18/18 Page 5 of 9
Hall, 68 F.Supp.2d 1 (D.Mass. 1999)(same). Accordingly, Petitioner’s Fourth Amendment
claim asserted in Ground Two of his Petition must be dismissed.
Ground Four
In Ground Four, Petitioner asserts that the SJC erred when it denied relief under
Mass.Gen.L. ch. 278, §33E as the result of cumulative errors committed by the trial court.
Federal courts reviewing a state prisoner’s habeas petition are “limited to deciding whether
a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v.
McGuire, 502 U.S. 62, 68, 112 S.Ct. 475 (1991). “[F]ederal habeas corpus relief does not
lie for errors of state law” and “it is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions.” Id. at 67-68, 112 S.Ct. 475. Error, if
any, by the SJC in denying Petitioner’s request for extraordinary relief under section 33E
is based on state law and does not provide grounds for federal habeas relief. See LeBeau v.
Roden, 806 F.Supp.2d 384 (D.Mass. 2011) and cases cited therein; see also Molina v.
Roden, Civ. Act. No. 09-12190-DPW, 2012 WL 1866195 (D.Mass. May 21, 2012).
Whether Ground Three is Exhausted
In Ground Three of his Petition, Dame asserts that a potential third party culprit was
identified by the Commonwealth during the course of its investigation, however, none of the
evidence regarding this person’s potential involvement in the murder was allowed in at trial. In his
Petition, Dame asserts that he raised this issue in his direct appeal to the SJC. However, the
Respondent asserts that he did not raise the claim and therefore, it is unexhausted. The Respondent
has included a copy of Dame’s brief to the SJC in support of his direct appeal. Dame’s brief
mentions that in 1983, law enforcement had investigated a woman’s accusation that her ex5
Case 4:17-cv-40131-TSH Document 16 Filed 09/18/18 Page 6 of 9
husband, George Dunton, was the murderer; Dunton had also been interviewed shortly after the
murder. However, the issue is mentioned in the discussion of whether the Commonwealth
intentionally or recklessly delayed the bringing of the indictment— Dame did not raise an
independent claim on appeal that the trial court erred by not allowing in evidence that Dunton was
at one time accused of the crime. Additionally, while the SJC discussed Dunton in the same
context, i.e., Dame’s claim that the indictment should have been dismissed due to prejudicial delay,
it did not address as an independent ground for relief whether it was error for the trial court to
refuse to admit evidence that he was a suspect. See generally Dame, 473 Mass. 524.
“[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).
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.
6
Case 4:17-cv-40131-TSH Document 16 Filed 09/18/18 Page 7 of 9
Josselyn v. Dennehy, 475 F.3d 1 (1st Cir. 2007)(internal citations and citations to quoted authorities
omitted).
In this case, it is clear that Dame never raised his “third party culprit” claim to the SJC.
Therefore, the Court is faced with a so-called “mixed-petition,” i.e. a habeas petition which
includes both exhausted and unexhausted claims. Generally, habeas petitions that are not fully
exhausted must be dismissed and the petitioner given the opportunity to resubmit a petition
containing only fully exhausted claims, or to return to state court and exhaust the remaining claims.
See Rose v. Lundy, 455 U.S. 509, 520, 522, 102 S.Ct. 1198 (1982). The First Circuit, however,
has “held that where a petition is deemed mixed, the best practice is for the district court to give
the petitioner an opportunity to dismiss the unexhausted claims. And then, if the petitioner declines
to dismiss the unexhausted claims, ‘the district court should dismiss the entire petition without
prejudice.’” DeLong v. Dickhaut, 715 F.3d 382, 387 (2013). A district court may also stay a
mixed petition to permit the petitioner to return to state court to address the unexhausted claims,
and then lift the stay and proceed to address the petition once all claims are exhausted. However,
stay and abeyance is only appropriate when the petitioner can establish “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, 475 F.3d at 4.2
2
Effective April 24, 1996, as part of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Congress amended the statutes governing habeas corpus petitions to impose a one year statute of
limitations period on the filing of all non-capital habeas petitions in federal courts. See 28 U.S.C. ''2244(d)(1). In
general, for prisoners in state custody, the limitations period begins to run on “the date which the judgment becomes
final by conclusion of direct review or the expiration of the time for such review”. 28 U.S.C. '2244(d)(1)(a).
Because the filing of a federal habeas petition does not toll the running of the statute of limitations, after the AEDPA
amendments, a petitioner who opted to return to state court to exhaust his claims often risked losing the opportunity
for federal courts to review any of his claims. This is because by the time the petition was resubmitted to in the
7
Case 4:17-cv-40131-TSH Document 16 Filed 09/18/18 Page 8 of 9
In this case, there is no indication that Dame has engaged in “intentionally dilatory tactics.”
However, the record does not support a finding of good cause for Dame’s failure to exhaust—
indeed, it does not appear that to date, he has attempted to raise this issue in state court.
Additionally, returning to state court to exhaust his state court remedies with respect to this claim
would likely amount to an exercise in futility because in all likelihood, the state court would find
that the claim is procedurally defaulted. Under the circumstances of this case, I find it appropriate
to permit Dame to delete the unexhausted claim from his Petition (Ground Three) and proceed
with his exhausted claim (Ground One). Thus, on or before October 19, 2018, Dame may file an
amended petition deleting his unexhausted claim. If Dame fails to delete his unexhausted claim,
the Respondent should renew its motion to dismiss, which the Court will allow in its entirety.
Conclusion
Resp’s Mot. To Dismiss (Docket No. 12) is allowed, in part, and, for the present, denied,
in part. Petitioner shall have until October 19, 2018 to file an amended petition which complies
with this Order, or his petition will be subject to dismissal in its entirety.
/s/ Timothy S. Hillman______________
TIMOTHY S. HILLMAN
U.S. DISTRICT JUDGE
federal court, the one year statute of limitations would likely have run. To address this problem, the Supreme Court
approved the so-called “stay and abeyance” procedure, whereby rather than the petition being dismissed, it is stayed
pending the petitioner’s return to state court to exhaust the unexhausted claims. See Rhines v. Weber, 544 U.S. 269,
274, 125 S.Ct. 1528 (2005). Because over a year has passed since Dame’s judgment became final under the
AEDPA, if he wanted to return to state court to exhaust Ground Three of his Petition, he would have to utilize the
stay and abeyance procedure or lose the opportunity to obtain federal review of any of his claims. Therefore, while
Dame has not expressly requested a stay, I will assume that he intends to do so.
8
Case 4:17-cv-40131-TSH Document 16 Filed 09/18/18 Page 9 of 9
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?