Aviles v. Dickhaut, Civil Action No. 12-cv-40017-FDS

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Writing for the Court: F. Dennis Saylor IV
• Parties: ANGEL AVILES, Petitioner, v. THOMAS DICKHAUT, Respondent.
• Docket Number: Civil Action No. 12-cv-40017-FDS
• Decision Date: 10 April 2013

ANGEL AVILES, Petitioner,
v.
THOMAS DICKHAUT, Respondent.

Civil Action No. 12-cv-40017-FDS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

Dated: April 10, 2013

MEMORANDUM AND ORDER ON RESPONDENT'S MOTION TO DISMISS

SAYLOR, J.

This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 by a person in state custody. Petitioner Angel Aviles was convicted of rape of a child and indecent assault and battery on a child under the age of 14. Both the Massachusetts Appeals Court and the Massachusetts Supreme Judicial Court affirmed the convictions. Aviles is currently serving a term of imprisonment of twelve to fifteen years at the Massachusetts Correctional Institute-Cedar Junction. He now seeks habeas relief pursuant to 28 U.S.C. § 2254.

Respondent Thomas Dickhaut has moved to dismiss the petition, contending that Aviles failed to exhaust his available state remedies as to the Sixth Amendment claims contained in the petition. For the reasons set forth below, Aviles will be allowed to elect whether to dismiss the unexhausted claims without prejudice and proceed on the merits of the exhausted claims, or to accept dismissal of the entire petition.

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I. Factual Background

A. State Court Proceedings

On May 14, 2007, Angel Aviles was convicted after a jury trial of rape of a child and indecent assault and battery on a child under the age of 14. The facts surrounding the crime that led to his conviction are set out in the decision of the SJC. See Commonwealth v. Aviles, 461 Mass. 60 (2011). Only the facts that are relevant to this opinion bear repetition.

In 2002, the victim, eight-year-old Marie, her mother, and her younger sister moved into Aviles's apartment.¹ In lieu of rent, Marie's mother provided health care to Aviles's ill mother, who also lived with them. The apartment had two bedrooms, a living room, a bathroom, and a kitchen. Aviles's mother slept in one bedroom, while Aviles, Marie's mother, Marie, and Marie's sister slept in the other. Marie and her sister slept on an air mattress, while Aviles and Marie's mother slept in a bed together.

On four or five occasions over a period of several months, Aviles climbed onto the air mattress, pinned Marie down with his legs, and touched Marie's buttocks over her clothing. On at least one occasion he touched the clothing covering her vagina.

One night, Marie awoke to Aviles attempting to remove her jeans. Marie ran into the nearby bathroom and attempted to lock the door. Aviles followed her into the bathroom and anally penetrated her. Afterwards, Aviles threatened Marie that if she told her mother he would harm her mother. When Marie returned to the bedroom, her mother asked her what was wrong, and Marie answered "nothing."

A few days after the incident, Marie began crying when her mother told her it was time to

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go to bed. She revealed, for the first time, that Aviles had "touched" her, but did not disclose the rape. Both Marie's mother, and Aviles's mother, who had overheard the conversation, immediately confronted Aviles. Aviles denied touching Marie. Marie and her family soon moved out of Aviles's apartment and returned to her maternal grandmother's home, where they had been staying prior to moving in with Aviles.

Much later, in 2005, Marie saw Aviles's photograph on television.² After seeing him, Marie told her grandmother that Aviles had raped her in the bathroom of his apartment. After Marie's grandmother informed Marie's mother of that conversation, they went to the police. Aviles was then arrested and indicted.

At the trial, the Commonwealth called only Marie and her mother. Marie testified that Aviles had touched her several times on the air mattress, described the bathroom rape, and revealed that she had disclosed the rape to her grandmother after seeing Aviles's face on television. She did not provide any details about the content of the conversation with her grandmother. Marie's mother testified that Marie had informed her she had been touched, but did not provide further detail. Marie's mother also testified that she went to the police because she had learned additional information.

Aviles did not take the stand. Instead, his strategy was to draw out inconsistencies from Marie's earlier statements. Aviles called a court reporter from the grand jury testimony who testified that Marie stated at one point that Aviles did not touch her buttocks over her pants. The Commonwealth, under the doctrine of verbal completeness, cross-examined the court reporter to put additional testimony into the record that Aviles had touched Marie's vaginal area.

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The jury found Aviles guilty of both rape of a child and indecent assault and battery on a child under the age of 14. Aviles filed a direct appeal with the Massachusetts Appeals Court, which affirmed the convictions. See Commonwealth v. Aviles, 77 Mass. App. Ct. 389 (2010). He then filed an Application for Leave to Obtain Further Appellate Review (ALOFAR), which the SJC granted. In his ALOFAR, Aviles challenged (1) the admission of testimony concerning an alleged "second complaint" made by the victim under the first complaint doctrine,³ (2) the admission of the second complaint on any other evidentiary basis, and (3) whether the objection to its admission was properly preserved for review by defense counsel at trial. (S.A., Vol. I, No. 9 at 16). He subsequently filed a supplemental brief to buttress his ALOFAR, in which he contended that the first complaint doctrine should be abolished and the admissibility of such complaints should be governed by the ordinary rules of evidence. (S.A., Vol. I., No. 12 at 1).

On December 6, 2011, the SJC affirmed the conviction. The SJC found that although the testimony regarding Marie's conversation with her grandmother was not admissible as first complaint evidence, it was harmless error because the testimony was admissible to rebut the defense's accusation of fabrication. Aviles, 461 Mass. at 46-47.

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B. Federal Proceedings

On February 8, 2012, Aviles, proceeding pro se, filed a petition with this Court for habeas corpus relief. The petition challenged the necessity and application of the first complaint doctrine. Aviles filed a motion to stay in which he also included an additional claim that his constitutional rights were infringed because of ineffective assistance of counsel. He alleged that he was filing...