Omosefunmi v. Attorney General of Com. of Mass.

• Citation: 152 F.Supp.2d 42
• Decision Date: 31 May 2001
• Docket Number: No. CIV.A. 99-CV-12495-RGS.,CIV.A. 99-CV-12495-RGS.
• Parties: Samson OMOSEFUNMI, Petitioner, v. The ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, Respondent.
• Court: U.S. District Court — District of Massachusetts

152 F.Supp.2d 42

Samson OMOSEFUNMI, Petitioner, v. The ATTORNEY GENERAL OF THE COMMONWEALTH OF MASSACHUSETTS, Respondent.

No. CIV.A. 99-CV-12495-RGS.

United States District Court, D. Massachusetts.

May 31, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Samson Omosefunmi, Batavia, NY, petitioner pro se.

Elizabeth K. Frumkin, Assistant Attorney General, Criminal Bureau, Boston, MA, for Commonwealth of Mass, respondent.

ORDER

STEARNS, District Judge.

On April 30, 2001, Magistrate Judge Bowler submitted a Report recommending that Samson Omosefunmi's petition for writ of habeas corpus be dismissed. On May 14, 2001, the Massachusetts Attorney General filed a limited objection to the Report. After review of the Report and the objection, I will ADOPT the Magistrate Judge's Recommendation. The petition is hereby DISMISSED.

SO ORDERED.

REPORT AND RECOMMENDATION RE: MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS (DOCKET ENTRY # 16)

BOWLER, United States Magistrate Judge.

Pending before this court is a motion to dismiss (Docket Entry # 16) filed by respondent the Attorney General for the Commonwealth of Massachusetts ("respondent"). Respondent moves to dismiss the above styled petition for writ of habeas corpus filed pro se by petitioner Samson Omosefunmi ("petitioner") because: (1) petitioner is not "in custody" within the meaning of 28 U.S.C. § 2241(c)(3) and section 2254; (2) petitioner fails to exhaust state court remedies and, in particular, fails to present federal constitutional claims to the Massachusetts Supreme Judicial Court ("SJC"); and (3) certain claims in the petition do not raise a federal or constitutional issue.¹

Even if an evidentiary hearing is not barred under 28 U.S.C. § 2254(e)(2) ("section 2254(e)(2)") of the Antiterrorism and Effective Death Penalty Act of 1996 ("the AEDPA"),² at the present time petitioner has no right to an evidentiary hearing on the issues raised by respondent under the pre-AEDPA standard, assuming, arguendo, its applicability after the AEDPA's enactment. See Edwards v. Murphy, 96 F.Supp.2d 31, 49-50 (D.Mass. 2000) (setting forth relevant standards and recognizing dispute as to whether standard for conducting evidentiary hearing set forth in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), as modified by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992), remains applicable after AEDPA's enactment); see also Fryar v. Bissonnette, 113 F.Supp.2d 175, 179-180 (D.Mass.2000) (the petitioner did not negligently fail to develop record under section 2254(e)(2) and could, therefore, only obtain hearing if he satisfied Townsend standard); Marshall v. Hendricks, 103 F.Supp.2d 749, 770 (D.N.J.2000) (same).

The facts regarding exhaustion and the character of the arguments presented to the state courts are contained in the state court records. The only dispute, which would not change the result of the exhaustion analysis, involves whether petitioner filed a notice of appeal on October 23, 1992. Petitioner submits that he filed such an appeal. He also contends that, after the appellate court dismissed the appeal for want of prosecution, he filed a motion for reconsideration of the dismissal which, after requiring additional filings, the appellate court allowed on January 6, 1997.³

Respondent submits that petitioner only filed an appeal of the trial court's denial of the motion to withdraw the guilty plea. Respondent notes that the appellate court permitted petitioner to reinstate this appeal on February 20, 1998.

A close examination of the state court records in the file demonstrates that petitioner filed a notice of appeal dated October 23, 1992, but not with respect to indictment 30070. Rather, petitioner filed an appeal of indictments 30069 and 30287 to 30290. The incomplete copy of the appellate court docket sheet for the appeal (No. 94-P-001714) reflects the filing of the appeal, the February 1995 dismissal of the appeal, petitioner's November 1995 motion for reconsideration of the dismissal and the appellate court's December 1, 1995 direction to file additional papers detailing why the brief was not timely filed. In addition to petitioner's motion for reconsideration, the record contains: (1) petitioner's motion to reinstate the appeal dated December 6, 1996, in compliance with the appellate court's instructions; and (2) a file stamped copy of petitioner's motion to amend the appeal to include indictment 30070 filed in the trial court in February 1997 and allowed on March 21, 1997.

Consequently, petitioner's factual scenario appears more accurate than respondent's. In any event, the record contains only one appellate brief filed in No. 94-P-001714 with the date stamp November 18, 1998, and one application for further appellate review filed in No. 94-P-001714 with a date of August 15, 1999. As discussed infra, these are the critical papers for purposes of analyzing respondent's failure to exhaust state court remedies argument. Hence, an evidentiary hearing is not necessary to resolve the immaterial factual discrepancy with respect to exhaustion.

The facts with respect to petitioner's "in custody" status, including respondent's April 27, 2001 submission, are also contained in the record. The motion to dismiss (Docket Entry # 16) is therefore ripe for review.

BACKGROUND

As presented in the petition,⁴ petitioner challenges his October 1992 conviction, after a plea of guilty, of four counts of larceny in violation of section 30 of Massachusetts General Laws chapter 266 (Indictment 30070).⁵ He seeks habeas relief on the basis that: (1) he made an involuntary guilty plea without knowledge of the nature of the charges because he was not informed of the facts and circumstances surrounding his arrest, indictment and crimes, particularly the failure of the grand jury minutes to name or charge him with a crime;⁶ (2) trial counsel rendered ineffective assistance of counsel⁷ because he failed to alert petitioner that the grand jury minutes did not name or charge him with a crime;⁸ (3) the grand jury minutes were defective because they failed to name or charge petitioner with a crime as to warrant indictment and conviction;⁹ and (4) the conviction was obtained in violation of the privilege against self-incrimination because petitioner questioned the relevance of introducing certain items of evidence and the Commonwealth based its evidence "on information from liars and crooks."¹⁰

On February 25, 1992, the grand jury heard testimony from a present or former conciliator of the Massachusetts Department of Industrial Accidents. A conciliator meets with employees who file workmen's compensation claims, their attorneys and representatives of the insurance carrier to resolve claims before referring them to a state court judge. The conciliator testified about two individuals, Festus Omosefumni,¹¹ a male, and Olutoyin Friday, a female. Under various names, these individuals met with the conciliator at different times posing as injured employees of various businesses. The conciliator testified about the amount of workmen's compensation payments these individuals received and how the male, under various names, always used the same address. The conciliator did not, however, identify the male as Samson Omosefunmi. Similarly, the heading of the grand jury minutes names "John Doe" as opposed to Samson Omosefunmi.

On the same day, the grand jury indicted Samson A. Omosefumni¹² for four counts of larceny (Indictment 30070) and four counts of false representations (Indictment 30069). On October 8, 1992, with the assistance of counsel, petitioner pled guilty to these charges.

At the October 8, 1992 guilty plea hearing, petitioner swore under oath to the accuracy of the facts presented by the Commonwealth except for his ownership of certain motor vehicles. The Commonwealth identified Olutoyin Friday as the mother of petitioner's children. Petitioner was identified as holding excess assets, owning a home and also owning a business while receiving federal assistance. For example, petitioner held joint bank accounts with Friday with assets and five figure deposits during the relevant time period. Petitioner nevertheless reported no income or assets. He also admitted that he "cheated welfare."

Before accepting the pleas, the trial judge informed petitioner that, by pleading guilty, he was giving "up [his] absolute right to have a fair and impartial trial with or without a jury to determine [his] guilt or innocence." (Docket Entry # 18, Tr. 5-6). The trial judge also advised petitioner that by pleading guilty he was giving up the right to face his accusers and to question them and to introduce evidence on his behalf. In response to questions, petitioner denied being under the influence of drugs, medication or alcohol. Petitioner replied affirmatively to the trial judge's question about whether he had enough time to fully discuss the case and the consequences of pleading guilty with his attorney. Petitioner agreed that trial counsel had acted in his best interest and had fairly represented him. As required under state law, the trial judge also informed petitioner of the indirect deportation consequences of his plea.

In written factual findings, the trial judge found that petitioner's plea of guilty was made voluntarily of his own free will and with full knowledge of the consequences.¹³ Accordingly, the trial judge accepted the plea.

The trial judge then sentenced petitioner to a term of three to five years on the larceny counts, each count to run concurrently. He suspended the sentence and placed petitioner on probation for the five year term with an order of restitution in the amount of $29,322.29.

Petitioner submitted a notice of appeal dated October 23, 1992. After the appellate court dismissed the appeal for want of prosecution, petitioner moved for reconsideration of the dismissal. After requiring additional filings, the appellate...