Opinion
Civil Action No. 05-11931-RWZ.
August 16, 2006
MEMORANDUM OF DECISION
Petitioner Arthur D'Amario, III, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he claims entitlement to relief for an equal protection violation (Ground 1), an involuntary plea (Ground 2), and ineffective assistance of counsel (Ground 3). In December 1998, petitioner pled guilty in Attleboro District Court to violating a protective order. He claims that the sentence for his Attleboro conviction expired on June 11, 2001, and since that time he has been serving consecutive sentences imposed by other courts. He is currently in federal custody, but seeks relief on the basis of the initial sentence he received in Attleboro District Court. Respondent Paul Walsh, Jr., now moves to dismiss. The motion is allowed.
"To petition a federal court for habeas corpus relief from a state-court conviction, the applicant must be `in custody in violation of the Constitution or laws or treaties of the United States.'" Garlotte v. Fordice, 515 U.S. 39, 40 (1995) (quoting 28 U.S.C. § 2254(a)). Respondent contends that because the sentence of which petitioner complains (i.e., his sentence in Attleboro District Court for violating a protective order) had fully expired well before he filed his present petition, his application is barred. Petitioner argues, however, that he has been serving consecutive sentences since that time and citesGarlotte and Peyton v. Rowe, 391 U.S. 54, 67 (1968). In those cases, the Supreme Court held that a prisoner could challenge the conviction underlying a sentence imposed consecutively to the sentence he was currently serving. Nothing in the record, however, supports petitioner's assertion that his current federal sentence was imposed consecutively. Moreover, petitioner concedes that his Attleboro sentence fully expired on June 11, 2001. At least one court has concluded that a prisoner who sues on a "state sentence that has been fully served" cannot be deemed "in custody" if he is currently serving a federal sentence. See Brown v. Warden, 315 F.3d 1268, 1270 n. 1 (10th Cir. 2003). If petitioner is not "in custody," then this court lacks jurisdiction to consider the petition.
Dismissal is also appropriate because petitioner has not exhausted his state-court remedies, as required under 28 U.S.C. § 2254(b)(1), (c). A prisoner who fails to properly exhaust his claims through one complete round of state appellate review is barred from pursuing habeas relief. See Woodford v. Ngo, 126 S. Ct. 2378, 2386-87 (2006). Petitioner offers no reason for his failure to pursue the state appellate review process, except to assert that "the court will not transmit my case to the Appeals Court." (See Pet. 3; see also id. at 2 (claiming that "appeals never docketed"); id. at 3 (claiming that "[t]he Supreme Judicial Court won't docket my petitions"); id. at 4 (claiming "[t]he state courts won't docket anything with my name on it"). "Petitioner has the burden of satisfying the exhaustion requirement," Jones v. Thompson, 397 F. Supp. 2d 181, 188 (D. Mass. 2005), and such unsupported assertions fail to satisfy that burden and certainly do not qualify as one of the rare circumstances in which unexhausted or procedurally defaulted claims are allowed to proceed, see House v. Bell, 126 S. Ct. 2064, 2076 (2006). Accordingly, dismissal for failure to exhaust is also required.
Respondent states that the Appeals Court in fact denied the appeal. The record is silent as to any action by the Supreme Judicial Court.
Finally, respondent seeks dismissal on grounds that Paul Walsh, Jr., the named respondent, is the District Attorney of Bristol County, and therefore not the proper respondent under 28 U.S.C. § 2243, under which the proper custodian would be the warden of the federal facility where petitioner is currently incarcerated. Petitioner concedes that this is true, but cites Bridges v. Chambers, 425 F.3d 1048, 1050 (7th Cir. 2005), for the proposition that he may name both the state attorney general and the federal warden as respondents. Bridges, however, does not help petitioner, since it explicitly states that "when the petitioner is in federal rather than state custody, the petitioner's immediate custodian — the warden of the prison or other facility in which the petitioner is confined — is the only proper respondent." Id. at 1050 (emphasis in original). Accordingly, dismissal is appropriate because the named respondent is not the proper party and for lack of personal jurisdiction over petitioner's custodian.
An exhibit to respondent's memorandum points out that petitioner is imprisoned at United States Medical Center for Federal Prisoners in Springfield, Missouri.
Respondent's motion to dismiss (Docket #11) is allowed.