REPORT AND RECOMMENDATION ON RESPONDENT'S MOTION TO DISMISS (DOC. NO. 28) AND ORDER ON PETITIONER'S MOTION FOR LEAVE TO ADD EXHIBIT (DOC. NO. 34)

LEO T. SOROKIN, Chief Magistrate Judge.

Petitioner Rico Perry, an inmate at the Souza Baranowski Correctional Center in Shirley, Massachusetts, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent has moved to dismiss the petition, arguing it presents two claims that Perry has not exhausted in state court. Doc. Nos. 28, 29.1 Because the respondent is correct as to one of Perry's claims, and because two other claims also appear to be unexhausted, I recommend the motion be ALLOWED in part and DENIED in part, unless Perry elects to delete the unexhausted claims from his petition.

I. BACKGROUND

In February 2009, following a bench trial in Norfolk Superior Court, Perry was convicted of armed assault with intent to murder and other charges stemming from a theft from an electronics store in Boston, followed by a lengthy, high-speed car chase. Doc. No. 11 at 2-6; Doc. No. 29 at 2, 6-8. Perry was sentenced to consecutive terms of eight-to-ten years and oneto-two years imprisonment. Doc. No. 10 at 1. In his direct appeal, Perry challenged the sufficiency of evidence supporting his convictions. See Doc. No. 25 at 126-36.2 The Massachusetts Appeals Court ("MAC") affirmed, and the Supreme Judicial Court ("SJC") denied review on April 27, 2011. See id. at 123-25.

Perry filed a pro se motion for a new trial on July 25, 2011, presenting the following claims: 1) insufficiency of evidence regarding the gun's barrel length (relevant to a firearms violation); 2) prosecutorial misconduct for misstating evidence and improperly vouching for a witness's credibility; 3) prosecutorial misconduct for using perjured testimony and withholding an exculpatory police report; 4) impairment of the grand jury process due to false testimony offered in support of certain charges; 5) ineffectiveness of trial counsel for coercing Perry to reject a guilty plea deal; 6) ineffectiveness of trial counsel for failure to investigate and present a defense witness; and 7) ineffectiveness of trial counsel for coercing Perry to waive his right to a jury trial. Id. at 316-44. Perry also asserted ineffectiveness of appellate counsel for failure to raise several of these claims on direct appeal. Id. The trial court promptly denied Perry's motion, and his timely appeal was stayed to permit the filing of an amended motion for a new trial. Doc. No. 10-1 at 1; Doc. No. 33 at 6.

On March 1, 2012, acting through counsel, Perry filed an amended motion in the trial court raising three claims: 1) ineffectiveness of trial counsel for advising Perry to reject a pretrial guilty plea offer; 2) ineffectiveness of trial counsel for advising Perry to proceed to a bench trial before the same judge who presided over a suppression hearing regarding damaging evidence that was excluded at trial by agreement of the parties; and 3) insufficiency of evidence regarding the gun's barrel length. Doc. No. 25 at 259-66. The trial court again denied Perry's request for relief, and Perry timely appealed. Doc. No. 10-1 at 1.

In his counseled brief filed with the MAC, Perry reiterated the three issues presented in his amended motion for a new trial and also pressed the following four claims: 1) ineffectiveness of trial counsel for failure to investigate and present a defense witness at trial; 2) abuse of discretion by the trial judge for failure to hold a hearing on Perry's motion for a new trial; 3) ineffectiveness of appellate counsel for failure to challenge certain counts in Perry's indictment based on false grand jury testimony; and 4) prosecutorial misconduct for offering false testimony at trial and withholding an exculpatory police report. Doc. No. 25 at 167-89. According to Perry, he also filed a pro se brief pursuant to Commonwealth v. Moffett, 418 N.E.2d 585 (Mass. 1981), which was docketed with the MAC and raised an additional prosecutorial misconduct claim stemming from alleged improprieties in the prosecutor's closing argument. Doc. No. 33 at 1-2; see id. at 7 (reflecting the filing of Perry's supplemental pro se brief).3

The MAC reversed Perry's firearms conviction, accepting his argument that the Commonwealth had not established barrel length as required, but rejected his remaining assertions and affirmed his conviction and sentence in all other respects. Doc. No. 10-1.

Perry sought review in the SJC, where his counseled application for leave to obtain further appellate review ("ALOFAR") raised only these issues: 1) ineffectiveness of trial counsel for advising Perry not to plead guilty and not to invoke his right to a jury trial; 2) error by the MAC in not setting aside Perry's armed assault conviction on the same basis that it reversed his firearms conviction; and 3) ineffectiveness of appellate counsel for not challenging portions of the indictment that were based on false grand jury testimony. Doc. No. 25 at 453-79. The SJC's docket does not reflect any additional pro se filings by Perry aimed at supplementing the issues presented for review there. See id. at 452. On June 27, 2013, the SJC denied review. Id.

Perry mailed his original pro se habeas petition on August 11, 2013, and later amended it (with the Court's permission) to present the following eight constitutional claims:

Doc. No. 10 at 6-14.

The respondent has moved to dismiss Perry's petition, arguing that claims 6 and 7 were not exhausted in state court as required by 28 U.S.C. § 2254, Doc. No. 28, and Perry has opposed the motion, Doc. No. 33.

II. LEGAL STANDARD

A state prisoner is not entitled to habeas relief in federal court unless he has first exhausted his available remedies in state court. 28 U.S.C. § 2254(b); see O'Sullivan v. Boerkel, 526 U.S. 838, 839 (1999); Mele v. Fitchburg Dist. Court, 850 F.2d 817, 819 (1st Cir. 1988). A petitioner "shall not be deemed to have exhausted the remedies available . . . if he has the right under the law of the State to raise, by any available procedure, the question presented." § 2254(c). To satisfy this exhaustion requirement, which is grounded in principles of comity, a petitioner must complete the state's established appellate review process, thereby giving "the state courts one full opportunity to resolve any constitutional issues." O'Sullivan, 526 U.S. at 839; accord Mele, 850 F.2d at 819.

In Massachusetts, the exhaustion requirement obligates a petitioner to present his claims to the SJC before asking a federal habeas court to consider them. Mele, 850 F.2d at 820, 823. It is not enough for a petitioner to litigate his constitutional claims in a motion before the state trial court and a subsequent appeal to the MAC. Id. "[A]n appealed issue cannot be considered as having been fairly presented to the SJC for exhaustion purposes unless the applicant has raised it within the four corners of the ALOFAR." Id. at 823; see Fusi v. O'Brien, 621 F.3d 1, 6 (1st Cir. 2010) (calling the ALOFAR the "decisive pleading" for exhaustion purposes); cf. Silvia v. Hall, 193 F.Supp.2d 305, 311 (D. Mass. 2002) (finding issues were fairly presented to the SJC where they were discussed in the text of the fact and argument sections of the ALOFAR, although not identified separately among the "issues for further appellate review").

Furthermore, a petitioner may not escape the exhaustion doctrine by pairing unexhausted claims with other constitutional questions that have been fairly presented to every level of the state courts. Such a "mixed petition" is subject to dismissal unless the petitioner elects to abandon his unexhausted claims. DeLong v. Dickhaut, 715 F.3d 382, 386 (1st Cir. 2013); see Rose v. Lundy, 455 U.S. 509, 522 (1982); Clements v. Maloney, 485 F.3d 158, 168-69 (1st Cir. 2007). Although federal courts have discretion to stay mixed petitions and hold them in abeyance while the petitioner returns to state court in an effort to exhaust any unexhausted claims, such discretion is appropriately exercised only in cases where there is good cause for the failure to exhaust, and the unexhausted claims are potentially meritorious. DeLong, 715 F.3d at 387; see Rhines v. Weber, 544 U.S. 269, 275-76 (2005).

III. DISCUSSION

The respondent's motion is based on an assertion that Perry has not properly exhausted two of the eight claims presented in his habeas petition. A review of the history of Perry's statecourt proceedings reveals that the respondent is correct, in part.

A. Claim 6

Perry seeks to pursue a due process challenge to the prosecutor's closing argument which, Perry suggests, included misstatements of the evidence, argued facts not in evidence, and vouched for the credibility of a trial witness. Doc. No. 10 at 13. The respondent argues Perry failed to present this particular prosecutorial misconduct claim to the SJC when he requested review there.7 Doc. No. 29 at 11. Perry summarily disagrees, stating — without citation to any supporting document — that he presented the claim "in his FAR Petition." Doc. No. 33 at 1.

A review of the state court record demonstrates that the respondent is correct. Perry's ALOFAR neither lists the relevant prosecutorial misconduct claim among the "points for which further appellate review is sought," Doc. No. 25 at 463-64, nor incorporates the claim into the factual or procedural recitations or the substantive legal argument, id. at 456-63, 465-74. The SJC's docket contains no entry suggesting that any other document was submitted on Perry's behalf in connection with his ALOFAR. See id. at 452. Under these circumstances, Perry cannot satisfy the exhaustion requirement with respect to claim 6, and he may not obtain review thereof in federal court.

B. Claim 7

The respondent levies an identical challenge to the seventh claim in Perry's habeas petition. Doc. No. 29 at 11. Here, however, the respondent's argument ignores the true nature of the "claim." As Perry explains in his opposition brief — and as was apparent to the Court upon a review of the substance of "ground seven" — this "claim" is not a standalone constitutional claim at all. Doc. No. 33 at 2-3. Rather, it is a procedural argument as to why this Court should review on the merits any of Perry's claims which the MAC deemed waived. See Doc. No. 10 at 14 (arguing that any failure to present a claim on direct appeal was due to counsel's ineffectiveness, and that such ineffectiveness excuses any waiver, or is cause for any default, under recent Supreme Court precedent). Although this argument would have been more appropriately set forth in subsection (b) of the form habeas petition under each ground to which it applies, see, e.g., Doc. No. 10 at 11 (containing space for an explanation of why state remedies were not exhausted as to each individual constitutional claim), pro se petitioners are not expected to make flawlessly organized submissions, see Estelle v. Gamble, 429 U.S. 97, 106 (1976) (noting pro se petitions are to be liberally construed). Moreover, Perry's articulation of this procedural point is more than sufficiently clear to place the respondent and the Court on notice of the nature of his argument.

Because Perry's attempt to avoid procedural bars to a review of his federal claims on the merits is not a separate constitutional claim, the exhaustion doctrine does not require that he present it to the state courts before advancing it here.

C. Other Claims

Perry's habeas petition raises six claims besides those the respondent has identified as unexhausted. The respondent apparently believes these other six claims would be ripe for federal review, were they not included in a mixed petition. See Doc. No. 29 at 1 (seeking dismissal "because two of the petitioner's claims have not been exhausted"). This is plainly true as to four of them (claims 1, 2, 4, and 8), all of which were contained within Perry's appeal to the MAC and his subsequent ALOFAR in the context of his collateral review in state court. The record, however — as well as the recitation of the relevant procedural history set forth in the respondent's brief — suggests that the two remaining claims are unexhausted as well.

Neither the third claim (ineffectiveness of trial counsel for failure to investigate and present a defense witness) nor the fifth claim (prosecutorial misconduct for offering false testimony and withholding a police report) were presented to the SJC in either of Perry's ALOFARs. See Doc. No. 25 at 126-36 (ALOFAR on direct appeal); id. at 453-79 (ALOFAR on collateral review). Although these claims seem identical in procedural posture to the unexhausted prosecutorial misconduct claim discussed above, the respondent has not sought dismissal based on these claims, nor has Perry explained why they should be viewed as exhausted.8 Nonetheless, the state court record support a finding that these issues were properly exhausted. See id. at 452 (showing no submissions to the SJC on Perry's behalf except his ALOFAR petition, which does not include these claims).

As such, unless Perry demonstrates otherwise in his objections to this Report and Recommendation, the Court should treat claims 3 and 5 as unexhausted as well, precluding substantive review of their merits.

IV. CONCLUSION

For the foregoing reasons, I respectfully recommend that the Court deem Perry's petition mixed; conclude that claims 3, 5, and 6 are unexhausted; and provide Perry with the option of either abandoning the three unexhausted claims or having his entire petition dismissed without prejudice.9 To accomplish this, the Court should enter an order setting the following deadlines: