Powers v. O'Brien
| Decision Date | 15 July 2008 |
| Docket Number | Civil Action No. 07-11591-JLT. |
| Citation | 571 F.Supp.2d 230 |
| Parties | William POWERS, Petitioner, v. Steven O'BRIEN, Superintendent of Old Colony Correctional Center, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
Susanne G. Reardon, Office of the Attorney General, Boston, MA, for Steven O'Brien.
William Powers, Bridgewater, MA, pro se.
This court ACCEPTS and ADOPTS the June 16, 2008 Report and Recommendation ("Report and Recommendation") of Magistrate Judge Dein. For the reasons set forth in the Report and Recommendation, this court orders that: (1) Respondent's Motion to Dismiss is DENIED. (2) Petitioner's Motion to Stay is DENIED. (3) Petitioner has thirty days (August 14, 2008) from the date of this Order to drop his unexhausted claims from his Petition for Writ of Habeas Corpus. If Petitioner fails to do so, Respondent may file a renewed Motion to Dismiss.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION ON RESPONDENT'S MOTION TO DISMISS AND PETITIONER'S REQUEST FOR STAY
Following his conviction by a Suffolk County jury, the petitioner William Powers ("Powers" or the "defendant"), was sentenced on March 25, 2003 to seventeen to twenty years in prison for manslaughter (Mass.Gen.Laws. ch. 265, § 13), a consecutive term of five to eight years in prison on one count of operating a motor vehicle under the influence of alcohol and causing bodily injury (Mass. Gen. Laws ch. 90, § 24L) and a consecutive term of four to five years in prison on another count of OUI causing injury.1 His motion for a new trial was denied on September 8, 2005 and his direct appeal was consolidated with the appeal from the denial of his motion for a new trial. The denial of his motion for a new-trial and his convictions were affirmed by the Massachusetts Appeals Court in an unpublished opinion. Commonwealth v. Powers, 67 Mass.App.Ct. 1105, 853 N.E.2d 220, 2006 WL 2472911 (Mass.App.Ct. Aug. 28, 2006).2 Powers then filed an application for leave to obtain further appellate review ("ALOFAR") with the Massachusetts Supreme Judicial Court ("SJC"). (SA Ex. 6). The application was denied without opinion on November 2, 2006. Commonwealth v. Powers, 447 Mass. 1112, 856 N.E.2d 182 (2006) (table) (SA Ex. 7).
Powers filed a timely pro se3 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging (1) that his due process rights were violated by the introduction of eleven autopsy photographs which were "unduly prejudicial and inflammatory to the jury," and (2) that trial counsel undertook seven actions which allegedly constituted ineffective assistance of counsel throughout the investigation, trial and sentencing phases of this case. (See Petition (Docket No. 1) at ¶¶ 12(A) and (B)(a-g)). This matter is presently before the Court on Respondent's "Motion to Dismiss for Failure to Exhaust State Court Remedies." (Docket No. 8). Therein, the Respondent contends that Powers has presented the court with a "mixed petition" by his failure to exhaust several claims contained therein, and requests that the entire habeas petition be dismissed. In response, Powers challenges the characterization of three of his claims as unexhausted, but admits that he has presented a mixed petition. Powers opposes the motion to dismiss, and has moved to stay the proceedings pending the exhaustion of the unexhausted claims. (Powers' Opposition to Motion to Dismiss and Request to Stay Pending Exhaustion of Certain Claims ("Powers Opp.") (Docket No. 14)).
For the reasons detailed herein, this court finds that the three claims in dispute were not exhausted. In addition, this court concludes that dismissal is not warranted in light of the existence of exhausted claims, and that a stay is not warranted because Powers has not shown "good cause" for failing to exhaust his claims. Therefore, this court recommends to the District Judge to whom this case is assigned that both motions be DENIED. In addition, this court recommends that Powers be given thirty (30) days from the District Judge's ruling to drop his unexhausted claims. If he fails to do so, the Respondent should be allowed to renew his motion to dismiss.
Powers' conviction arises out of a serious car accident which took place during the early morning hours of August 12, 2001 in South Boston. The Appeals Court summarized the relevant facts as follows4:
This case arose as a result of a serious automobile accident in which the defendant, driving while intoxicated at a speed of approximately seventy miles per hour, collided with a vehicle driven by Lily Paquette, with passengers Gennes Seaton, Linda Stevens, Amber Seaton, and the decedent Sean Waters also in the vehicle. Numerous witnesses testified to hearing the vehicle the defendant was driving approach, to seeing it drive by at an extremely high rate of speed, and to hearing the collision.
The parties involved in the collision were taken to various hospitals; Waters did not survive. The defendant was interviewed twice by police, and the second interview was recorded on audio tape. The statements of the defendant, including his admission that he had been the driver of the car, were admitted at trial.
Powers, 2006 WL 2472911, at *1. Additional facts will be provided below where appropriate.5
Following his conviction, Powers filed a timely motion for a new trial pursuant to Mass. R.Crim. P. 30, which was denied on September 1, 2005, 2005 WL 6066638. Powers' appeal from the denial of this motion was consolidated with his direct appeal to the Massachusetts Appeals Court. (See SA Ex. 2—Defendant's Brief to Appeals Court). On appeal, Powers alleged that (1) the denial of his motion to suppress statements he had made violated his constitutional rights; (2) he had been denied his federal and state constitutional rights to effective assistance of counsel; and (3) "the trial judge abused his discretion in allowing into evidence eleven autopsy photographs" over objection. (SA Ex. 2 at 1). Specifically, with respect to his claim of ineffective assistance of counsel Powers challenged (a) counsel's failure to test bleached hair collected from the interior of the driver's side door and to otherwise challenge that Powers was the driver at the time of the accident; (b) counsel's failure to object to the playing of an audio tape of the defendant's statement, his failure to request a "humane practice" instruction, and his failure to object to the results of blood tests taken shortly after the accident when Powers was hospitalized; (c) counsel's failure to object to questions posed by the trial judge to a defense expert in front of the jury about the expert's educational background; (d) counsel's failure to object to the judge's instructions concerning the use of blood alcohol testing; and (e) counsel's failure to make a persuasive argument at sentencing, including failing to file a sentencing memorandum. (See SA Ex. 2 at 32-43). Powers' conviction was affirmed by the Appeals Court in an unpublished opinion on August 28, 2006, which addressed all of his claims. (SA Ex. 5).
Powers then filed a timely ALOFAR with the SJC. (SA Ex. 6). The issues raised were (1) "Did trial counsel's substandard performance infect his trial with prejudicial, constitutional error?" (2) "Was there error in the trial judge's denial of the defendant's Motion for New Trial?" and (3) "Did the trial judge abuse his discretion in allowing into evidence photographs of the autopsy over the defendant's objection?" (SA Ex. 6 at 4). In particular, with respect to his ineffective assistance of counsel claim, Powers challenged (a) his trial counsel's performance at sentencing, including his failure to file a sentencing memorandum with the court, and (b) his trial counsel's failure to object to the judge's questioning of a defense expert with respect to his credentials in front of the jury. (Id. at 4-5). The SJC denied Powers' petition without opinion. (SA Ex 7). Powers' timely habeas petition followed.
The Respondent has moved to dismiss Powers' habeas petition on the grounds that some of the claims raised therein are unexhausted. In particular, with respect to Ground One, the introduction of the autopsy photographs, Respondent contends that the constitutional nature of the claim was not presented to the state courts, and that, therefore, it is not exhausted. As detailed below, this court agrees that this claim is not exhausted.
With respect to Ground Two of the habeas petition, Powers' claim of ineffective assistance of counsel, the parties disagree as to whether points (a) (failure to test bleached hair) and (b) (conceding that Powers was the driver) were exhausted. Powers contends that they were exhausted because they were detailed in the Memorandum of Decision denying his motion for a new trial, which was attached to his ALOFAR, along with a copy of the Appeals Court decision. (SA Ex. 6 at 1). As detailed below, this court finds that these claims were not exhausted.
With respect to points (c) (failure to object to audio tape or to request "humane practice" instruction), (e) (failure to object to admission of blood evidence), and (f) (failure to object to blood alcohol test instruction), Powers admits that they were not presented in the ALOFAR but requests that the matter be stayed so that he can pursue these claims, since they had been raised in his direct appeal.
Finally, the parties agree that points (d) (trial judge's examination of defense witness without objection) and (g) (failure to submit sentencing memorandum or present substantial evidence in connection with the sentencing) were presented in the ALOFAR and are exhausted.
The Respondent contends that Ground One of the habeas petition, that the trial judge...
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...requires presenting the claims asserted in the federal habeas petition to the Supreme Judicial Court. See Powers v. O'Brien, 571 F. Supp. 2d 230, 235 (D. Mass. 2008). To qualify as exhausted, the claims the petitioner raises in the federal habeas petition must have been "fairly presented" t......