Gonsalves v. Thompson

• Decision Date: 25 October 2005
• Docket Number: No. CIV.A. 05-10618-RCL.,CIV.A. 05-10618-RCL.
• Citation: 396 F.Supp.2d 36
• Parties: Raul GONSALVES, Petitioner v. Michael THOMPSON, Respondent.
• Court: U.S. District Court — District of Massachusetts

396 F.Supp.2d 36

Raul GONSALVES, Petitioner v. Michael THOMPSON, Respondent.

No. CIV.A. 05-10618-RCL.

United States District Court, D. Massachusetts.

October 25, 2005.

COPYRIGHT MATERIAL OMITTED

Eva M. Badway, Attorney General's Office, Boston, MA, for Michael Thompson, Respondent.

MEMORANDUM AND ORDER ON RESPONDENT'S MOTION TO DISMISS AND PETITIONER'S MOTION FOR RECONSIDERATION

LINDSAY, District Judge.

I. Introduction

Before the court is a motion to dismiss a petition for a writ of habeas corpus. Raul Gonsalves ("Petitioner"), currently is incarcerated at the Massachusetts Correctional Institution — Shirley ("MCI — Shirley"). Acting pro se, he filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising three issues: (1) the Commonwealth's failure to preserve exculpatory evidence for defense inspection; (2) ineffective assistance of counsel; and (3) unconstitutional vagueness of Massachusetts General Laws ch. 266, § 28 as applied by the Massachusetts state courts. (Pet. Under 28 U.S.C. § 2254 for Writ of Habeas Corpus ("Habeas Pet.") 5-6) Respondent Michael Thompson ("Respondent"), the Superintendent of MCI — Shirley, has filed a motion to dismiss the petition pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that claims one and three have not been exhausted. He does not challenge claim two on exhaustion grounds. Petitioner, for his part, has filed a Motion for Reconsideration of the Procedural Order to Name Only Michael Thompson as Respondent. For the following reasons, I GRANT Respondent's motion to dismiss, subject to the conditions described below; and I DENY Petitioner's motion for reconsideration.

II. Facts and Procedural History

On May 11, 1999, Petitioner was indicted for receiving a stolen motor vehicle in violation of Mass. Gen. Laws ch. 266, § 28.¹ (Case Summary, Criminal Docket, Commonwealth v. Gonsalves, No. BACR1999-48336 (Mass.Sup.Ct.1999)) The vehicle in question was a four-wheel, all-terrain vehicle ("ATV") used for off-road recreation. The trial judge granted Petitioner's pretrial motion to inspect the ATV, but the police mistakenly released it to a salvage company before Petitioner's investigator had an opportunity to examine it. Petitioner's motion to dismiss the indictment due to the Commonwealth's loss or destruction of evidence was denied because photographs of the ATV were available. Petitioner was convicted by a Superior Court jury of one count of receiving a stolen motor vehicle and was sentenced to a minimum of four years and a maximum of five years incarceration. Upon completion of his sentence, the Petitioner expects to be deported to Portugal. (Petr.'s Mem. Supp. Habeas Pet. 41)

After his conviction, Petitioner timely filed an appeal, arguing, inter alia, that the ATV in question was not a "motor vehicle" as defined in Mass. Gen. Laws ch. 266, § 28. He argued that he should have been prosecuted under Mass. Gen. Laws ch. 266, § 60, which proscribes the receipt of stolen property, and contains a maximum penalty of five years, as opposed to the fifteen year maximum under section 28. The Massachusetts Appeals Court ("Appeals Court") affirmed his conviction, holding that an ATV "fairly may be deemed a motor vehicle for the purposes of G.L. c. 266, § 28." Commonwealth v. Gonsalves, 56 Mass.App.Ct. 506, 508, 778 N.E.2d 997 (2002).

Petitioner then filed his first application for leave to obtain further appellate review ("ALOFAR") in the Massachusetts Supreme Judicial Court ("SJC"), (Application of Def.-Appellant for Leave to Obtain Further Appellate Review, Dec. 11, 2002). The SJC denied the petition. Commonwealth v. Gonsalves, 438 Mass. 1105, 782 N.E.2d 515 (2003). Until this point, Petitioner had been represented by counsel. After the denial of his first ALOFAR, he proceeded pro se.

Next, Petitioner filed a motion for a new trial in the Barnstable Superior Court on June 9, 2003. The motion was denied; Petitioner timely appealed; and the Appeals Court affirmed denial of the motion for a new trial. (Case Summary, Criminal Docket, Commonwealth v. Gonsalves, No. BACR1999-48336 (Mass.Sup.Ct.1999))

On August 11, 2003, Petitioner filed a petition for relief in the SJC pursuant to Mass. Gen. Laws ch. 211, § 3, challenging the Appeals Court's decision that an off-road vehicle is a "motor vehicle" under Mass. Gen. Laws. ch. 266, § 28. (Pet. Pursuant to Mass. Gen. Laws ch. 211, § 3 ("Ch. 211, § 3 Pet.")) The petition was denied by a single justice, and Petitioner's appeal was subsequently denied by the full bench of the SJC. Gonsalves v. Commonwealth, 442 Mass. 1016, 812 N.E.2d 262 (2004).

Petitioner filed a second ALOFAR on November 15, 2004. (Application of Def.-Appellant for Leave to Obtain Further Appellate Review, Nov. 15, 2004) The SJC denied his petition, Commonwealth v. Gonsalves, 443 Mass. 1105, 823 N.E.2d 782 (2005), and Petitioner subsequently filed the current petition for a writ of habeas corpus on March 14, 2005.

III. Discussion

A. Respondent's Motion to Dismiss

Respondent argues that Petitioner has not exhausted state remedies with respect to the first and third claims of his petition for a writ of habeas corpus. Petitioner contends that he has exhausted both claims, and that even if the claims are unexhausted, this court should reach the merits of his petition.

It is clearly settled that a petitioner who seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 must first exhaust available remedies in state court. See 28 U.S.C. § 2254(b)(1) ("An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State....").

1. Standard for Meeting Exhaustion Requirement — Fair Presentment

In order to satisfy the exhaustion requirement of section 2254(b)(1), the petitioner "must fairly present — or do his best to present — the issue to the state's highest tribunal." Mele v. Fitchburg Dist. Court, 850 F.2d 817, 820 (1st Cir.1988). A claim has been "fairly presented" if it has been "presented in such a way as to make it probable that a reasonable jurist would have been alerted to the existence of the federal question." Scarpa v. DuBois, 38 F.3d 1, 6 (1st Cir.1994), cert denied, 513 U.S. 1129, 115 S.Ct. 940, 130 L.Ed.2d 885 (1995). There are several ways to satisfy the requirement of "fair presentment," including: citing a specific provision of the Constitution, presenting the substance of a constitutional claim in a way that likely will alert the court to the presence of a federal claim, relying on federal precedent, claiming a particular right guaranteed by the Constitution, and asserting a state law claim that is functionally identical to a federal claim. Scarpa, 38 F.3d at 6.

The typical path to habeas corpus in Massachusetts begins with an appeal to the Appeals Court by the person who ultimately becomes the habeas petitioner. If the Appeals Court resolves the appeal against the petitioner, the party may seek review in the SJC by means of an ALOFAR. See Mele, 850 F.2d at 820 (citing Mass. R.App. P. 27.1(b)). If a petitioner follows this path, and the ALOFAR is denied, the ALOFAR is "the decisive pleading" for purposes of determining whether the petitioner has satisfied the exhaustion requirement.² Adelson v. DiPaola, 131 F.3d 259, 263 (1st Cir.1997). The petitioner, however, may not raise an issue before the Appeals Court, abandon it in his ALOFAR, and then raise it again in his habeas petition; rather, in order to survive the exhaustion requirement, an issue must be raised "within the four corners of the ALOFAR." Mele, 850 F.2d at 823. However, if a petitioner has "consistently asserted" a particular claim, but it is unclear whether he is making a state or federal claim in his ALOFAR, the court may read his ALOFAR against the backdrop of his earlier appeals in order to determine whether he has "sufficiently alerted the state courts to the substance of the constitutional claim." Scarpa, 38 F.3d at 7 (holding that a petitioner who consistently asserted an ineffective assistance of counsel claim had satisfied the exhaustion requirement even though his ALOFAR did not specifically refer to the federal Constitution or federal cases). See also Barresi v. Maloney, 296 F.3d 48, 52 n. 1 (1st Cir.2002); Clements v. Maloney, 359 F.Supp.2d 2, 8-9 (D.Mass.2005) ("[A]mbiguous phrasing in the statement of an issue in the ALOFAR may lead to uncertainty about whether the argument is intended to be advanced under state or federal law. Consulting the manner in which the same issue was framed in prior pleadings may resolve the ambiguity.").

The ALOFAR, however, is not the exclusive method for presenting a federal claim to the SJC. Massachusetts General Laws ch. 211, § 3, provides a separate opportunity for presenting an issue to the Commonwealth's highest court, stating, inter alia, "The supreme judicial court shall have general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided...." Mass. Gen. Laws ch. 211, § 3. Although the typical habeas petitioner utilizes the ALOFAR to present his claims to the SJC, the ALOFAR is not a necessary step in the process of exhausting state remedies. A petitioner need not pursue every possible avenue of state review or file repetitive petitions, O'Sullivan v. Boerckel, 526 U.S. 838, 844, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); rather, he is only "at risk to present the state courts with a fair opportunity to confront and correct an alleged infirmity," Mele, 850 F.2d at 820. A petition pursuant to Mass. Gen. Laws ch. 211, § 3 provides just such an opportunity. See Gonzalez v. Justices of Mun. Court of Boston, No. Civ.A. 0310859GAO, 2003 WL 22937727, at *3 (D.Mass. Nov. 25, 2003) (holding that the petitioner's arguments in his Opposition to the...