Rosario v. Goguen
District Judge Timothy S. Hillman: ORDER AND MEMORANDUM entered denying 22 Motion to hold habeas corpus petition in abeyance. (Castles, Martin)
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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ORDER AND MEMORANDUM ON PETITIONER’S MOTION TO HOLD HABEAS
CORPUS PETITION IN ABEYANCE (Docket No. 22)
October 7, 2019
Jose Rosario (“Petitioner”) filed a Petition for a Writ of Habeas Corpus with this Court in
accordance with 28 U.S.C. § 2254. (Docket No. 1). Petitioner now moves to hold his habeas
corpus petition in abeyance while he exhausts additional claims in state court. For the reasons set
forth below, the Court denies Petitioner’s motion.
In August 2016, a jury found Petitioner guilty of one count of rape of a child, five counts
of indecent assault and battery on a child under fourteen, one count of disseminating matter
harmful to a minor, and one count of witness intimidation. (Docket No. 23 at 2). On appeal,
Petitioner argued that the trial court should have specifically instructed the jury on how to assess
the testimony of a child witness. Commonwealth v. Rosario, 93 Mass. App. Ct. 1119 (2018).
The Appeals Court of Massachusetts rejected this contention, id., and on September 13, 2018,
the Massachusetts Supreme Judicial Court (“SJC”) denied Petitioner’s application for appellate
Case 4:18-cv-40180-TSH Document 26 Filed 10/07/19 Page 2 of 3
review, see Commonwealth v. Rosario, 480 Mass. 1108 (2018). Petitioner subsequently filed a
habeas corpus petition with this Court based on his exhausted jury instruction claim. (Docket
No. 1). On July 5, 2019, Petitioner moved to hold the habeas proceedings in abeyance while he
exhausted additional grounds of relief in state court. (Docket No. 22).
A federal court may not consider a petition for habeas corpus unless the petitioner has
fully exhausted his state court remedies. 28 U.S.C. § 2254(b)(1); see also Adelson v. DiPaola,
131 F.3d 259, 261 (1st Cir. 1997). To exhaust a claim, a petitioner must provide the highest state
court having jurisdiction over the claims “the opportunity to pass upon and correct alleged
violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004). In
Massachusetts, the “decisive pleading” is the application for leave to obtain further appellate
review from the SJC. Adelson, 131 F.3d at 263.
The parties do not dispute that Petitioner exhausted the single claim he raised in his initial
petition. Petitioner wishes, however, to amend his petition to allege additional claims for relief.
Because Petitioner has not presented these claims to the SJC, Petitioner seeks a stay while he
exhausts his state court remedies. Under limited circumstances, a federal court may stay a
petition and hold it in abeyance while the petitioner exhausts his claims in state court. Rhines v.
Weber, 544 U.S. 269, 278 (2005). Because a stay frustrates the goals of encouraging finality in
state court convictions and streamlining federal habeas proceedings, however, the First Circuit
has cautioned that it should only be issued where the petitioner shows “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) (citing Rhines, 544 U.S. at 278).
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Petitioner alleges that he had good cause for not exhausting his claims in state court
“because the Petitioner was not fully aware of the issues due to his lack of legal understanding of
the law.” (Docket No. 22 at 1). Yet, Petitioner was represented by counsel at both the trial and
appellate levels. His lack of legal understanding thus has no bearing on the question of good
cause. And to the extent he contends that his counsel lacked knowledge of the law, the First
Circuit has held that “[i]gnorance of the law does not constitute good cause.” Josselyn, 475 F.3d
at 1. In the absence of any justification for a stay, the Court denies Petitioner’s motion.
For the reasons stated above, the Court denies Petitioner’s motion. (Docket No. 22).
/s/ Timothy S. Hillman
TIMOTHY S. HILLMAN
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