Sena v. Kenneway

• Decision Date: 12 May 2021
• Docket Number: No. 20-1471,20-1471
• Citation: 997 F.3d 378
• Parties: Dennis SENA, Petitioner, Appellant, v. Steven KENNEWAY, Superintendent, MCI-Shirley, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

997 F.3d 378

Dennis SENA, Petitioner, Appellant,

v.Steven KENNEWAY, Superintendent, MCI-Shirley, Respondent, Appellee.

No. 20-1471

United States Court of Appeals, First Circuit.

May 12, 2021

Elizabeth Prevett, Cambridge, MA, with whom Jonathan Scott Lauer was on brief, for appellant.

Gabriel Thornton, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellee.

Before Lynch, Selya, and Kayatta, Circuit Judges.

SELYA, Circuit Judge.

Federal habeas review for state prisoners is subject to a one-year limitations period, which generally runs either from the conclusion of direct review or the expiration of the time allotted for seeking direct review. See 28 U.S.C. § 2244(d)(1)(A). The Supreme Court has recognized, though, that this one-year period sometimes may not provide a sufficient interval for the exhaustion of a state prisoner's claims in state court. See Rhines v. Weber, 544 U.S. 269, 275, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). To guard against injustice, the Court has approved a procedure — commonly known as a motion for a stay and abeyance — through which a state prisoner may file his federal habeas petition and seek additional time, subject to certain preconditions, to exhaust his state remedies. See id. at 277-78, 125 S.Ct. 1528. One such precondition requires the petitioner to show good cause for his failure to have exhausted a particular claim or claims in state court. See id. at 277, 125 S.Ct. 1528.

In this case, the district court, rejecting a magistrate judge's recommendation, held that petitioner-appellant Dennis Sena, a state prisoner, had not satisfied the good cause requirement.¹ The court proceeded to deny the petitioner's motion for a stay in abeyance and dismissed his habeas petition. See Sena v. Kenneway, No. 19-10254, 2020 WL 1429849, at *2-3 (D. Mass. Mar. 24, 2020). The petitioner appeals. Concluding, as we do, that the district court acted within the wide margins of its discretion, we affirm.

I. BACKGROUND

We sketch the relevant facts and travel of the case. Our tale begins at a convenience store in Boston, Massachusetts, where a brawl erupted in the early hours of May 19, 2012. One participant, Zachary Fritz-Kill, sustained knife wounds, and an individual who attempted to intervene was rewarded by having his tires slashed.

When the police arrived at the scene, at least one eyewitness identified the petitioner as the knife-wielding perpetrator. Fritz-Kill, who had consumed a heady mix of drugs and alcohol in the hours preceding the brawl, was taken to a nearby hospital. Although Fritz-Kill had previously been diagnosed as having a bipolar disorder, he attributed his erratic behavior at the convenience store to his use of cocaine.

The petitioner was subsequently indicted by a Massachusetts grand jury, which charged him with assault and battery with a dangerous weapon, see Mass. Gen. Laws ch. 265, § 15A(b) ; assault and battery with a dangerous weapon, causing serious bodily injury, see id. ch. 265, § 15A(c)(i) ; and malicious destruction of property, see id. ch. 266, § 127. All three counts were coupled with a charge that the petitioner was an "habitual criminal," having been convicted and sentenced to terms of immurement of more than three years on at least two earlier occasions.² Id. ch. 279, § 25(a).

The "habitual criminal" designation paved the way for the imposition of statutory maximum sentences should the petitioner be convicted of the felonies charged in the indictment. See id.

Maintaining his innocence, the petitioner proceeded to trial in Suffolk County Superior Court in March of 2015. The Commonwealth relied on witness and victim testimony (including the testimony of Fritz-Kill, who identified the petitioner as his attacker). The defense tried to discredit Fritz-Kill's testimony by emphasizing how mind-altering substances may have affected his recollection. But when the defense attempted to introduce expert testimony to this effect, the trial court rejected the proffer — which it variously characterized as conjectural, irrelevant, and untimely.

The first trial proved indecisive: the jury deadlocked, and the trial court declared a mistrial. A second trial ensued, and the trial court (in the person of the same trial justice) again excluded the petitioner's proffered expert testimony. The second jury acquitted the petitioner on the property-destruction count but found him guilty on the other two counts. The petitioner waived his right to have a jury adjudicate his "habitual criminal" status; the trial court found the designation apt; and the court sentenced the petitioner to the statutory maximum for each offense of conviction — ten years for assault and battery with a dangerous weapon and fifteen years for assault and battery with a dangerous weapon, causing serious bodily injury — to run concurrently.

The petitioner appealed to the Massachusetts Appeals Court (the MAC) on diverse grounds. As relevant here, he maintained that the trial court abused its discretion in excluding his proffered expert witness. In formulating this claim, though, the petitioner's appellate counsel challenged only the trial court's determination that the testimony was not relevant. No challenge was advanced as to the concurrent finding that the proffer was untimely, notwithstanding that the trial court had cited timeliness as a separate (and independently sufficient) ground for its exclusion of the evidence.

The MAC treated this omission as "essentially conced[ing] that the evidence was not timely" and deemed the claim waived. Commonwealth v. Senna, 2017 WL 4856593, at *2 (Mass. App. Ct. 2017) (unpublished table decision). The Supreme Judicial Court (the SJC) denied the petitioner's application for leave to seek further appellate review (ALOFAR) on December 21, 2017, see Commonwealth v. Senna, 94 N.E.3d 853 (Mass. 2017) (table decision), thus leaving the MAC decision as the final state-court decision.

Undaunted by the SJC's denial of his ALOFAR, the petitioner requested that the Massachusetts public defender agency, the Committee for Public Counsel Services (CPCS), provide him with new counsel to file a motion for a new trial under Rule 30 of the Massachusetts Rules of Criminal Procedure.³ This rule authorizes the granting of a new trial to persons confined in derogation of either federal or state law, see Rodriguez v. Spencer, 412 F.3d 29, 33-34 (1st Cir. 2005), and represents the "exclusive vehicle for postconviction relief" in the Massachusetts state courts after direct review has been exhausted, id. at 34 (quoting Leaster v. Commonwealth, 385 Mass. 547, 432 N.E.2d 708, 709 (1982) ). CPCS declined the petitioner's request and notified him on June 18, 2018, that he would have to proceed pro se. The agency apparently based this decision on input from the petitioner's erstwhile appellate counsel, who advised it that a Rule 30 motion was not warranted because she already had raised the expert testimony issue on direct appeal. She failed to mention, however, that incomplete argumentation — the failure to challenge the timeliness of the proffer — led the MAC to dismiss the claim as waived.

The petitioner responded by filing a complaint against his former appellate counsel with the Massachusetts Board of Bar Overseers (the Board). At the same time, he beseeched CPCS to reconsider. On February 6, 2019, CPCS yielded to the petitioner's importunings and assigned him state post-conviction counsel. His new lawyer determined that the petitioner could raise potentially meritorious issues in a Rule 30 motion, including a claim that his former appellate counsel rendered ineffective assistance by causing the unintentional forfeiture of a potentially viable ground for appeal (the trial court's exclusion of the proffered expert testimony).

Two days after the appointment of his new state postconviction counsel, the petitioner, acting pro se, filed a habeas petition in the United States District Court for the District of Massachusetts. See 28 U.S.C. § 2254. This petition, submitted approximately six weeks before the expiration of the one-year federal limitations period, named the superintendent of the correctional institution in which the petitioner was incarcerated as the respondent and asserted eight distinct grounds for relief. Simultaneous with this submission, the petitioner moved to stay the habeas petition and hold it in abeyance. This request stemmed from what the petitioner deemed to be the "mixed" nature of his petition, which in his view included both exhausted and unexhausted claims (his ineffective assistance of appellate counsel claim being among the latter).⁴ See Neverson v. Bissonnette, 261 F.3d 120, 123 (1st Cir. 2001) (citing Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) ).

We pause at this juncture to put the significance of the "mixed" nature of the petition into perspective. Federal law incorporates the doctrine that a federal habeas court will entertain a state prisoner's petition for habeas relief "only after all state remedies available [for the claim] have been exhausted." Ex parte Hawk, 321 U.S. 114, 117, 64 S.Ct. 448, 88 L.Ed. 572 (1944) (per curiam). Although Congress codified this doctrine in 1948, see Act of June 25, 1948, ch. 646, § 1, 62 Stat. 869, 967 (current version at 28 U.S.C. § 2254(b) - (c) ), it remained uncertain whether a federal habeas court could adjudicate petitions that contained a mix of both exhausted and unexhausted claims. The Supreme Court resolved this uncertainty in Lundy. See 455 U.S. at 522, 102 S.Ct. 1198. The Lundy Court construed the exhaustion principle as "[r]equiring [the] dismissal" of mixed petitions. Id. at 519, 102 S.Ct. 1198.

Withal, the Court did not demand that federal habeas courts dismiss such mixed filings wholesale. As an alternative, a district court could allow the petitioner to withdraw unexhausted claims. See id. at 520, 102 S.Ct. 1198. Those petitioners who opted for...