Opinion
Civil Action No. 02-10359-DPW
March 20, 2003
MEMORANDUM AND ORDER
Petitioner David W. Rosado seeks habeas corpus relief from his Massachusetts state court first degree murder conviction as to which he is serving a life sentence without the possibility of parole. Rosado contends that his conviction was obtained in violation of the Sixth and Fourteenth Amendments and bases his claim on what appear to be as many as ten separate grounds. Respondent contends that two of those grounds were not exhausted in the state courts and accordingly moves to dismiss Rosado's petition.
I. BACKGROUND
On September 23, 1996, a jury convicted petitioner Rosado of first degree murder on a theory of extreme atrocity or cruelty. During the trial, the Commonwealth presented evidence showing that on the night of January 14, 1995, Rosado and Kevin Babbitt, both vocal proponents of white supremacy, inflicted a brutal beating on an African-American neighbor who had asked them to turn down the volume of the music in their motel room. After kicking and punching the victim in his motel room, Rosado and Babbitt continued to beat the victim in the cement parking lot outside the motel before returning the him to his motel room, where he languished for several days. A few days later, Babbitt, Rosado, and Steven Richard went to victim's room and found him lying on his bed, naked, unable to move, and foaming at the mouth. Instead of calling for medical help, Rosado and Richard stood by as Babbitt suffocated the victim. The trio then carried the victim's body and buried it in a shallow grave behind the motel. In March 1995, after the victim's body was recovered by the police, a medical examiner determined that blunt trauma to the head caused the death.
The facts underlying Rosado's conviction are set forth in Commonwealth v. Rosado, 434 Mass. 197, 198-99 (2001) and are presumed to be correct under 28 U.S.C. § 2254(e)(1). See Gunter v. Maloney, 291 F.3d 74 (1st Cir. 2002).
In a separate trial, a jury convicted Babbitt of murder in the first degree of the same victim. See Commonwealth v. Babbitt, 430 Mass. 700 (2000).
Richard was charged as an accessory after the fact to the murder of Greene. Commonwealth v. Babbitt, 430 Mass. at 702 n. 2.
At trial, Rosado acknowledged his participation in the initial beating but asserted that Babbitt's suffocation of the victim was an independent, intervening event that released him from culpability in the murder. Commonwealth v. Rosado, 434 Mass. 197, 199 (2001). The jury, however, apparently accepted the Commonwealth's theory that Rosado and Babbitt engaged in a joint enterprise spanning from the initial beating to the suffocation and on September 23, 1996 returned a guilty verdict of first degree murder by extreme cruelty or atrocity. Rosado filed a notice of appeal the next day.
On March 16, 1999, Rosado filed a motion for a new trial on the grounds of ineffective assistance of counsel and errors in jury instructions. He also filed a motion for funds so he could prosecute his motion for a new trial. On June 1, 1999, Judge Hely in the Superior Court issued a memorandum and order denying both of Rosado's motions. Specifically, Judge Hely found that Rosado's attorney demonstrated a high level of competence in defending Rosado.
Rosado appealed the denial of the motions to the Supreme Judicial Court and asked the SJC to consolidate the direct appeal of his conviction with the appeals of his denied motions. On May 18, 2001, the SJC affirmed both Rosado's conviction for murder and the order denying his motions. Rosado, 434 Mass. at 198. Rosado immediately filed a petition for rehearing that was denied by the SJC on June 27, 2001. On February 22, 2002 Rosado filed this habeas petition.
II. DISCUSSION
The parties dispute whether two of the grounds asserted by the petitioner in the instant habeas corpus petition were exhausted in the state courts. I will address the principles of exhaustion before turning to the two disputed grounds: purported failures to instruct adequately (a) on mental impairment and (b) on proximate cause.
The designation of the disputed grounds in the parties submissions is somewhat confused. In paragraphs 9(d) and 12 of his petition, the petitioner designates the mental impairment issue as respectively "(2)" and "Ground two" and the proximate cause issue as respectively "(3)" and "Ground three." In the narrative "Presentation of the Grounds to the Motion for New Trial Judgment and later to the Supreme Judicial Court," the petitioner designates the mental impairment issue as "Ground three," Petition at 24-25, and the proximate cause issue as "Ground four." Id. at 25-27. The respondent in its memorandum apparently adopts petitioner's narrative designation treating the mental impairment issue as "Ground three" and the proximate cause issue as "Ground Four." The petitioner in his Opposition to the Motion to Dismiss also employs the ground three and ground four designation for the issues. In the text, in order to avoid further confusion, I will refer to the issues by their respective topics: "mental impairment" and "proximate cause."
A. Exhaustion
Under the exhaustion doctrine, a federal court will not entertain an application for habeas relief unless the petitioner has first fully exhausted his state remedies with respect to each and every claim contained within the application. 28 U.S.C. § 2254(b)(1)(A); Adelson v. DiPaola, 131 F.3d 259, 261 (1st Cir. 1997) (citing Rose v. Lundy, 455 U.S. 509, 518-19 (1982)). To have exhausted state remedies for a federal claim, a habeas petitioner must have presented the state court with the factual and legal underpinnings of the claim. Scarpa v. Dubois, 38 F.3d 1, 6 (1st Cir. 1994). The claim must have been presented in such a way that a reasonable jurist would be "alerted to the existence of the federal question." Id. at 6; see Casella v. Clemons, 207 F.3d 18, 21 (1st Cir. 2000).The First Circuit has catalogued five ways in which a petitioner may satisfy the fair presentment requirement:
(1) citing a specific provision of the Constitution; (2) presenting the substance of a federal constitutional claim in such a manner that it likely alerted the state court to the claim's federal nature; (3) reliance on federal constitutional precedents; and (4) claiming a right specifically guaranteed by the Constitution; [and (5)] assert[ing a] state law claim that is functionally identical to a federal claim.
Scarpa v. Dubois, 38 F.3d at 6. As a general rule, "fair presentation requires that the constitutional analysis necessary to resolve the ultimate question posed in the habeas petition and in the state court proceedings, respectively, be substantially the same." Id.
Exhaustion further requires that the "petitioner present, or do his best to present, his federal claim to the state's highest tribunal," here, the SJC. Adelson, 131 F.3d at 262; Mele v. Fitchburg Dist. Court, 850 F.2d 817, 820 (1st Cir. 1988). The decisive pleading, therefore, is Rosado's brief to the SJC, to which I now turn.
B. Rosado's Presentation of Claims to the Supreme Judicial Court
In his brief to SJC, Rosado presented topical claims almost identical to the mental impairment and proximate cause grounds in his petition for habeas corpus. In both documents, Rosado argues, inter alia, that he was deprived of a fair trial because the trial judge "failed to adequately instruct the jury" 1) on the defendant's mental state, as required by Commonwealth v. Gould, 380 Mass. 672, 685-86 (1980), and 2) on "the proximate cause of death." Closer analysis of the presentation to the SJC, however, demonstrates that neither ground was presented as a federal issue.
1. Mental State Instruction
In the portion of his brief entitled "Error by the trial judge in failing to adequately instruct on the Commonwealth v. Gould impairment principle," Rosado does not cite to the U.S. Constitution or any federal caselaw. None of the state cases to which he cites discusses federal constitutional law. At the end of the section, Rosado does refer to two "Law Statements" appended to the brief, which provide passing citations to federal caselaw regarding harmless error in the context of jury instructions.
2. Proximate Cause Instruction
In the section of his SJC brief regarding the instruction on proximate cause, Rosado again fails to reference the U.S. Constitution or federal caselaw. None of the state caselaw to which Rosado cites analyzes jury instructions on proximate cause from the perspective of federal constitutional law. Neither of the two "Law Statements" cited to in this section discusses federal law. In Law Statement 2, Rosado quotes from one case that implicates the government's constitutional obligation to establish guilt beyond a reasonable doubt, Commonwealth v. Pickles, 393 Mass. 775 (1985), but the quotation Rosado selects from Pickles references two Massachusetts state cases only, neither of which rely on federal constitutional precedents. See Commonwealth v. Roberts, 378 Mass. 116, 130 (1979); Commonwealth v. Greenberg, 339 Mass. 557, 584 (1959).
3. General Instructions Argument
To be sure, at one point in his SJC brief, in the short Section III, Rosado states:
In all of the issues herein based on jury instruction errors, defendant also argues the following: each lack of instruction or faulty instruction had the effect of diminishing the Commonwealth's burden of proof beyond a reasonable doubt as to all facts-elements necessary to convict, i.e., proximate cause in I-B(4), Cunneen factor in I-B(6), and one or more mental state elements in the others; his protection against that effect under the United States Constitution's Fourteenth Amendment Due Process Clause and under cognate provisions in art. 12 of the Massachusetts Declaration of Rights were violated. See [Law Statement] 11.
This citation to the Due Process Clause is in the generalized context of jury instructions, but the substance of Rosado's concerns here are each covered in a separate and specific ground of his habeas petition. Law Statement 11 specifically cites to and discusses the Due Process Clause, but only in terms of whether the jury instructions had the effect of relieving the prosecution of the burden of proof, which is also covered in a separate ground of Rosado's habeas petition. This is not sufficient to raise a federal claim as to the more particular "mental impairment" and "proximate cause" grounds.
Passing reference to federal law will not preserve a claim for federal habeas review. Fortini v. Murphy, 257 F.3d 38, 44 (1st Cir. 2001). With respect to the mental impairment and proximate cause grounds of his petition, the best that can be said of Rosado's use of federal law in his SJC brief is that it resembles that "isolated federal law bloom in a garden thick with state law references" the First Circuit has held cannot alone serve to put a reasonable jurist on notice to the federal nature of the claim. Casella, 207 F.3d at 21. Any "federal quality" to the "mental impairment" and "proximate cause" grounds is not "readily apparent" from his cursory reference of federal law.
Because Rosado's habeas petition thus contains both exhausted and unexhausted claims, I will grant Rosado leave to amend his habeas petition to present only exhausted claims to this court. See Rose v. Lundy, 455 U.S. 509, 510 (1982); Nowaczyk v. Warden, N.H. State Prison, 299 F.3d 69, 75-76 (1st Cir. 2002). Cf. Neverson v. Bissonnette, 261 F.3d 120, 126 (1st Cir. 2001).
The petitioner in an alternate prayer to his opposition to the respondent's motion seeks "to hold the petition in abeyance pending exhaustion of state (sic) remedies." I decline to do so. There is no indication that the petitioner, despite notice through the motion to dismiss that aspects of his petition faced substantial exhaustion challenges, has made any effort to seek exhaustion of his federal claims in state court. Whether, if he does so, equitable tolling of — or some other relief from — the one-year statute of limitations, 28 U.S.C. § 2244(d), see generally Testa v. Bissonnette, 2002 WL 31194869 (D.Mass. Sept. 27, 2002), will be available is a question I decline to reach at this point. I note only that neither the mental impairment ground nor the proximate cause ground appears to be the stuff of a federal claim, based as each is on questions of state substantive criminal law. See generally Sanna v. DiPaolo, 265 F.3d 1, 12-15 (1st Cir. 2001).