Clements v. Maloney

• Decision Date: 10 March 2005
• Docket Number: No. CIV.A. 03-10377-GAO.,CIV.A. 03-10377-GAO.
• Parties: Jason CLEMENTS, Petitioner, v. Michael MALONEY, Respondent.
• Court: U.S. District Court — District of Massachusetts

359 F.Supp.2d 2

Jason CLEMENTS, Petitioner, v. Michael MALONEY, Respondent.

No. CIV.A. 03-10377-GAO.

United States District Court, D. Massachusetts.

March 10, 2005.

COPYRIGHT MATERIAL OMITTED

Rosemary C. Scapicchio, Law Office of Rosemary C. Scapicchio, Boston, MA, for Jason Clements, Petitioner.

Susanne G. Reardon, Attorney General's Office, Boston, MA, for Michael T. Maloney, Respondent.

MEMORANDUM AND ORDER

O'TOOLE, District Judge.

The respondent has moved to dismiss the petition for a writ of habeas corpus brought under 28 U.S.C. § 2254 for the reason that the petitioner failed to exhaust his available state remedies as to all of the claims in the petition. See id., § 2254(b), (c). The petitioner contends that he has indeed exhausted his state remedies as to all the claims in the petition, but further asks, if it is the judgment of the Court that he has not, that the proceedings on the petition be stayed to afford him the opportunity to present the unexhausted claims to the state courts so that, if he fails to obtain relief there, he may then properly pursue those claims by means of the present petition.

For the reasons set forth below, I conclude that the petition contains only one exhausted and several unexhausted claims; that the petitioner's request for a stay of proceedings should be denied; and that the petitioner should be given the choice either to accept dismissal of the entire petition without prejudice as a "mixed" petition, see Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), or to voluntarily dismiss the unexhausted claims without prejudice and proceed to examination of the merits of the exhausted one.

Exhaustion of State Remedies

After a trial in the Massachusetts Superior Court, the petitioner was convicted by a jury of murder in the second degree as a joint venturer, armed assault with intent to murder as a principal, and illegal possession of a firearm. His post-trial motions for a required finding of not guilty and for a new trial were denied by the trial judge. The petitioner then pursued a consolidated appeal from the verdict and the denial of the post-trial motions.

In his argument to the Massachusetts Appeals Court, the petitioner made nine claims of error that I summarize as follows:

(1) the trial court improperly coerced a verdict when it ordered jurors to continue deliberating after they had twice indicated they were deadlocked;

(2) the trial court erred in continuing to question jurors during deliberations after it became apparent that such questioning would invade the autonomy of the deliberations;

(3) the trial court's questions to deliberating jurors invaded the jury's province and violated the petitioner's right to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution, as well as under the Massachusetts Declaration of Rights;

(4) the trial court violated the petitioner's rights under the Sixth and Fourteenth Amendments as well as the Massachusetts Declaration of Rights by permitting the prosecution to read portions of a witness's grand jury testimony and permitting the jury to consider it as substantive evidence;

(5) the trial court violated the petitioner's Sixth Amendment right to confront and cross-examine witnesses by admitting the witness's grand jury testimony after the witness had been excused from the stand;

(6) the trial court erred in permitting the verdict of guilty by joint venture to stand where it was inconsistent with the jury's verdict acquitting the petitioner's co-defendant and alleged co-venturer;

(7) the trial court violated the petitioner's right under the Sixth and Fourteenth Amendments to be present at all stages of the trial when it excluded him from the court's questioning of deliberating jurors;

(8) the trial court erred in permitting the prosecution to offer evidence that the petitioner had sold drugs in the area where the murder occurred; and

(9) the petitioner would have been entitled to a required verdict of acquittal if the evidence that should have been excluded had in fact been excluded.

See Supplemental Answer, Ex. 2, Appellant's Br.

In his brief to the Appeals Court, the petitioner argued the first ground — that the trial judge coerced a verdict — on state law grounds only. Specifically, the petitioner argued that the trial judge's refusal to declare a mistrial violated a state statute, Mass. Gen. Laws ch. 234, § 34, which forbids a judge from ordering a jury to continue to deliberate after the jury has twice reported an inability to agree. Id. at 29-36. Although the brief contains a citation to a single federal appellate decision and a general reference to the petitioner's constitutional rights, fairly understood in context the argument was focused on the judge's failure to meet the requirements of the state statute. There was no developed state or federal constitutional argument.

Similarly, the argument of the second ground — that the judge's questioning invaded the autonomy of the jury — was also supported almost entirely by citations to Massachusetts cases and was couched in general terms, without specific constitutional assertions. Two federal cases were among the dozen or so case citations, but there was neither any identification of a federal constitutional issue or developed constitutional argument. Id. at 36-38.

The third ground presented — that the trial judge's questions suggested that the jurors should ignore the opinion of a holdout juror and thus invaded the province of the jury in violation of provisions of both the federal and state constitutions — was framed and argued with reference to both federal and state legal authorities, including the Sixth and Fourteenth Amendments to the United States Constitution. Id. at 38-41.

The fourth ground — that the trial court erred when it permitted the prosecution to introduce as substantive evidence a witness's grand jury testimony that was inconsistent with his trial testimony — was phrased in the heading of the relevant section of the brief in terms of both federal and state constitutional principles, but it was argued in the body of the brief entirely in terms of state law. Id. at 41-45.

The fifth ground — that the admission of the grand jury testimony after the witness had been excused from the stand violated the petitioner's right to confront witnesses — was argued explicitly in both federal and state constitutional terms. Id. at 46-47.

The sixth ground — the combined argument that the petitioner could not be convicted as a joint venturer where the jury acquitted the alleged principal and that such verdicts were inconsistent — was presented in state law terms with no reference to federal constitutional principles. The petitioner cited two federal cases for their logic, not for their authority concerning federal constitutional issues. Id. at 47-52.

The seventh ground — that the petitioner's right to be present at every stage of the trial was violated when the judge questioned jurors in his absence — was presented and argued in both federal and state constitutional terms. Id. at 52-55.

The eighth ground — that the trial judge improperly admitted evidence of the petitioner's prior drug activity — was framed and argued as an issue of state evidence law. No federal constitutional argument was framed or made. Id. at 55-59.

The ninth ground — that without the disputed grand jury testimony the petitioner would have been entitled to a directed finding of not guilty — was presented and argued entirely in state law terms. No federal constitutional issue was identified or argued. Id. at 59-61.

In sum, the petitioner made an argument that his federal constitutional rights had been violated only with respect to grounds 3, 5, and 7 presented in his brief to the Massachusetts Appeals Court.

The Appeals Court affirmed the petitioner's convictions and the denial of his post-trial motions. Commonwealth v. Clements, 51 Mass.App.Ct. 508, 747 N.E.2d 682 (2001) ("Clements I"). The petitioner then filed an Application for Further Appellate Review ("ALOFAR") with the Massachusetts Supreme Judicial Court ("SJC"). Such an application for further review is granted or denied in the discretion of the SJC, generally similar to a petition for a writ of certiorari addressed to the United States Supreme Court. In his ALOFAR, the petitioner, represented by the same appellate counsel who had taken his appeal to the Appeals Court (and who continues to represent him in his present habeas petition), sought review of three issues, phrased by the petitioner as follows:

A. Whether the Appeals Court's decision holding that inconsistent, recanted extrajudicial statements of identification constituting the sole evidence of guilt is sufficient to convict pursuant to Commonwealth v. Daye, 393 Mass. 55, 469 N.E.2d 483 (1984)?

B. Whether the jury's special verdict, finding the defendant guilty as a joint venturer but not as the princip[al] of the crime of second degree murder was supported by sufficient evidence to convict?

C. Whether the Appeals Court failed to address Clements' claim that instructions to deliberating jurors to ignore the opinion of the lone holdout invaded the province of the jury and violated Clements' right to a fair trial pursuant to the Sixth and Fourteenth Amendments to the United States Constitution as well as Article XII of the Massachusetts Declaration of Rights?

See Supplemental Answer, Ex. 5, Def's Application for Further Appellate Review ("ALOFAR"), at 1.

The SJC granted the ALOFAR as to the issue denominated "A" above and, after further briefing, affirmed the petitioner's conviction, concluding that the prior inconsistent grand jury testimony was not the sole evidence supporting the guilty verdict and that it, along with other evidence, was sufficient to support the verdict. Commonwealth v. Clements, 436 Mass. 190, 763 N.E.2d 55, 59-60 (2002) ("Clements II").

This first issue was the same as the argument...