727 F.2d 199 (1st Cir. 1984), 83-1297, Dougan v. Ponte

Docket Nº:83-1297.
Citation:727 F.2d 199
Party Name:Warren W. DOUGAN, Petitioner, Appellant, v. Joseph PONTE, Respondent, Appellee.
Case Date:February 14, 1984
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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727 F.2d 199 (1st Cir. 1984)

Warren W. DOUGAN, Petitioner, Appellant,

v.

Joseph PONTE, Respondent, Appellee.

No. 83-1297.

United States Court of Appeals, First Circuit

February 14, 1984

Argued Oct. 4, 1983.

Owen S. Walker, Boston, Mass., for petitioner, appellant.

Warren W. Dougan on brief, pro se.

William D. Luzier, Jr., Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., Frederick W. Riley, Asst. Atty. Gen., Chief, Crim. Bureau, and Barbara A.H. Smith, Asst. Atty. Gen., Chief, Crim. Appellate Div., Boston, Mass., were on brief, for respondent, appellee.

Before COFFIN, Circuit Judge, TIMBERS, [*] Senior Circuit Judge, and BREYER, Circuit Judge.

COFFIN, Circuit Judge.

The petitioner, Warren Dougan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. Dougan, who was convicted by a Massachusetts state court of rape, kidnapping, armed robbery, and committing an unnatural act, alleges that his constitutional rights were violated during his state trial. The United States District Court for the District of Massachusetts dismissed

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petitioner's claims on the merits. Because we conclude that petitioner failed to exhaust two of his three claims before bringing this petition in federal court, we do not reach the merits of his claim. We therefore affirm the district court's dismissal on a different ground.

The facts supporting Dougan's conviction are reported in the opinion of the Massachusetts Supreme Court, 377 Mass. 303, 386 N.E.2d 1 (1979) and 377 Mass. 303, 386 N.E.2d 1 (1979); we will summarize them briefly. In the early evening of March 29, 1974, James Lopes returned from work to the home he shared with his girlfriend, Maryanne Connolly, and her infant son. When he reached his home, Lopes was met by two men known to him through their mutual membership in a motorcycle club. After the three men and Ms. Connolly had spoken amiably for several minutes, the two men suddenly produced guns, pistol-whipped Lopes, and took him at gunpoint by car to an apartment. There the two men telephoned Dougan, who had known Lopes since 1961 and had sponsored Lopes for membership in the motorcycle club. Dougan came to the apartment, accused Lopes of having made telephone calls to Dougan's girlfriend, and struck Lopes when Lopes denied having made the calls. Lopes was then taken back to his own home where he was gagged, tied, and hit in the chest with a spiked dog collar. Thereafter Dougan (and another) forced Ms. Connolly to engage in sexual intercourse and to perform fellatio in the presence of her son and Lopes. Before leaving, the three assailants beat Lopes into unconsciousness and warned Ms. Connolly not to call the police.

Neither Lopes nor Connolly immediately reported the incident. At Dougan's trial Lopes testified that he had delayed reporting the incident to police because he had been hiding from his assailants. He said that in the weeks after the March 29 incident his house had been robbed, he had been forced off the road by a car while riding his motorcycle, and a car had raced by him while he was...

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