Cavanagh v. State of Rhode Island, No. 1:2019cv00543 - Document 9 (D.R.I. 2020)

Court Description: MEMORANDUM AND ORDER denying and dismissing 1 Petition for Writ of Habeas Corpus - New Case filed by John J. Cavanagh, and granting 4 Motion to Dismiss filed by State of Rhode Island. So Ordered by District Judge William E. Smith on 5/1/2020. (Jackson, Ryan)
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Cavanagh v. State of Rhode Island Doc. 9 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND ___________________________________ ) JOHN CAVANAGH ) ) Petitioner, ) ) ) v. ) C.A. No. 19-543 WES ) STATE OF RHODE ISLAND, ) ) Respondent. ) __________________________________ ) MEMORANDUM AND ORDER WILLIAM E. SMITH, District Judge. Before the Court is John Cavanagh’s Petition for Writ of Habeas Corpus by a Person in State Custody (“Oct. 2019 Habeas Pet.”), ECF No. 1. 1 The State of Rhode Island has filed a Motion to Dismiss (“Dec. 2019 Mot. to Dismiss”), ECF No. 4. For the reasons set forth below, the Motion is GRANTED and the Petition is DENIED and DISMISSED. I. Background On November 19, 2014, a Kent County Superior Court jury convicted Cavanagh of one count of first-degree sexual assault and four counts of second-degree child molestation. Feb. 26, 1 The petitioner’s last name is inconsistently spelled throughout state and federal court filings, appearing sometimes as “Cavanaugh” and other times as “Cavanagh.” The Court here uses the latter spelling in conformity with the caption. 2019 Mem. in Supp. of State’s Mot. to Dismiss (“Feb. 2019 Mem.”) 1, ECF No. 4-1. He received a life sentence for the count of sexual assault and concurrent ten-year sentences, suspended with probation, for the counts of child molestation. Cavanagh appealed See his conviction State v. to Cavanaugh, Id. at 1-2. the 158 Rhode A.3d Island Supreme Court. 268 (R.I. 2017). He contended that the trial justice erred by allowing the prosecutor to inquire on cross-examination into Cavanagh’s failure to produce his wife and son as exculpatory witnesses, and then to reference this failure in closing arguments, thus shifting the burden of evidence production. Cavanagh denied further his maintained two insufficiently Id. at 271-72. motions curative that to the pass cautionary Id. at 274, 276-77. trial the justice case instructions wrongly and to issued the jury. Next, Cavanagh argued that the trial justice abused his discretion under Rhode Island Rules of Evidence 402, 403, and 404(b) by permitting the complainant to testify that she once saw Cavanagh sexually assault another girl, whom the prosecution could not locate. Id. at 279. Finally, Cavanagh asserted that the trial justice improperly denied his motion for acquittal on two counts of child molestation because the victim’s testimony did not expressly substantiate the “sexual contact” element of the crime. Supreme Court rejected Id. at 282. Cavanagh’s 2 arguments The Rhode Island and affirmed his convictions on April 28, 2017. On for post-conviction relief (“PCR”) under R.I. Gen. Laws § 10-9.1-1. 2 Feb. 2019 Mem. 2. November 1, 2017, Id. at 283. Cavanagh filed Cavanagh reiterated several of the issues raised on direct appeal: admission of prior bad act testimony, the prosecutor’s statements about his wife and child, and insufficiently curative jury instructions; he also brought forth two new arguments: ineffective assistance of counsel and “bolstering” on the part of a testifying detective. See generally State’s App., Mem. in Supp. of Appl. for Post-Conviction Relief (“PCR Mem.”), ECF No. 6-2. In January 2019, Cavanagh filed with the Court a pro se application for a writ of habeas corpus. See Jan. 2019 Pet. for Writ of Habeas Corpus, No. 19-cv-00011-WES-LDA, ECF No. 3. The State moved to dismiss, arguing that Cavanagh had not exhausted his state court remedies, as required by 28 U.S.C. § 2254(b)(1)(A), either because he had not taken his claims to the state’s highest court, or because he had not forthrightly presented the federal question. Feb. 2019 Mem. at 2-6. The Court determined that Cavanagh had not exhausted his state court 2 Excepting Cavanagh’s appellate brief, all his postconviction filings — the PCR application and supporting memorandum, the January 2019 application for habeas corpus, and the instant application for habeas corpus — were composed and submitted pro se. These handwritten documents are construed liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 3 remedies; therefore, August 15, 2019. his habeas application was dismissed on See Aug. 15, 2019 Text Order, No. 19-00011- WES-LDA. The Rhode Island Superior application on June 12, 2019. Court denied Cavanagh’s PCR Dec. 4, 2019 Mem. in Supp. of State’s Mot. to Dismiss (“Dec. 2019 Mem.”) 2, ECF No. 4. Some four months later, on October 16, 2019, Cavanagh filed with the Court the instant habeas petition. 3 Cavanagh argues: first, that the trial justice abused his discretion by admitting prior bad act testimony from the complaining witness; second, that the prosecutor impermissibly told the jury that Cavanagh had instructed his wife and son not to testify, and that such instruction was not indicative of innocence; third, that the trial justice issued inadequate cautionary instructions concerning the prosecutor’s supposedly prejudicial questions and statements; and fourth, that assistance ineffective. Oct. 2019 Habeas Pet. 6-11. of counsel was The State has moved to dismiss Cavanagh’s new petition, arguing that Cavanagh has yet to exhaust his state court remedies because he can still petition the Rhode Island Supreme 3 28 U.S.C. § 2244(b)(1) requires that a “second or successive” application be dismissed. However, where, as here, a prior application is dismissed for failure to exhaust state remedies, and not on the merits, the application is not treated second or successive. See Pratt v. United States, 129 F.3d 54, 60 (1st Cir. 1997). 4 Court to review the Superior Court’s denial application, per R.I. Gen Laws § 10-9.1-9. of his PCR Dec. 2019 Mem. at 2- 3. 4 II. Discussion The writ of habeas corpus is a “vital instrument for the protection of individual liberty.” 723, 743 (2008). Boumediene v. Bush, 553 U.S. However, the exercise of this privilege by state prisoners in a federal forum is not a given. Under our federal a system, “it would be unseemly . . . for federal district court to upset a state court conviction without opportunity violation.” to the Rose state v. courts Lundy, to 455 correct U.S. a an constitutional 509, 518 (1982). Therefore, the ability of state prisoners to enjoy habeas relief in federal court requires that the petitioner first “exhaust[] the remedies available in the courts of the State.” 5 28 U.S.C. § 4 The State also argues that Cavanagh’s claims are meritless. Dec. 2019 Mem. at 3. However, the Court prescinds from an analysis of the merits because the petition must be dismissed for failure to exhaust state court remedies, as will be explained below. 5 To avoid unnecessarily disturbing the decisions of state courts, and thus impugning the authority of those tribunals, the exhaustion doctrine is disregarded only in “exceptional circumstances,” Barresi v. Maloney, 296 F.3d 48, 51 (1st Cir. 2002), where state remedies are “unavailable or seriously inadequate,” Ex parte Hawk, 321 U.S. 114, 118 (1944). There is no suggestion that such exceptional circumstances are at play 5 2254(b)(1)(A). State court remedies are not exhausted so long as the petitioner “has the right under the law of the State to raise, by any available procedure, the question presented.” § 2254(c). 28 U.S.C. Simply put, state courts are entitled to “one full opportunity to resolve any constitutional issues,” meaning that individuals must run through “one complete round of the State’s established appellate review process” before seeking recourse in federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Furthermore, exhaustion requires that a claim be “fairly presented to the state courts.” Josselyn v. Dennehy, 475 F.3d 1, 3 (1st Cir. 2007) (quoting Baldwin v. Reese, 541 U.S. 27, 29 (2004)). that a A petitioner fairly presents a claim by framing it so “reasonable jurist” would apprehend that the issue implicates the laws, treaties, or Constitution of the United States. Jaynes v. Mitchell, 824 F.3d 187, 192 (1st Cir. 2016) (quoting Sanchez v. Roden, 753 F.3d 279, 294 (1st Cir. 2014)). A petitioner can meet this requirement by, among other things, citing the advancing Constitution, a state law identifying claim a tantamount constitutional to a right, constitutional claim, or referencing state decisions rooted in federal law. here. Thus, the question is simply exhausted his state court remedies. 6 whether Cavanagh has Id. (citing Sanchez, 753 F.3d at 294). In there is short, a state court procedural remedies deficiency are because not the exhausted where petitioner has failed to run the full course of the normal appellate process, or where there is a formal deficiency because the petitioner has failed to express claims so as to unambiguously invoke the laws, treaties, or Constitution of the United States. A. Ineffective Assistance of Counsel Unlike Rhode Island his other Supreme claims, Court which on direct were brought appeal, before Cavanagh the first raised the issue of ineffective assistance of counsel in his PCR application. See generally PCR Mem. Although Rhode Island Superior Court has denied Cavanagh’s application for PCR, he has yet to ask the Rhode Island Supreme Court for review via a petition for writ of certiorari. Cavanagh Dec. 2019 Mem. 3. can still appeal the denial of Since his PCR application under R.I. Gen. Laws § 10-9.1-9, he has not exhausted his state court remedies as to these claims. See O’Sullivan, 526 U.S. at 845 (holding exhaustion requires pursuing “discretionary review in the State’s highest court”). B. Evidentiary Rulings and Prosecutor’s Statements Although the other claims in the petition were presented to the Rhode Island Supreme Court on direct appeal, they were not framed so as to expressly signal a controversy concerning the 7 law, treaties, or Constitution of the United States. See Martens v. Shannon, 836 F.2d 715, 717 (1st Cir. 1988) (“[T]he federal question must be plainly defined.”). Cavanagh’s claim that the trial justice abused his discretion by refusing to exclude prior bad act testimony was predicated on state related caselaw. evidentiary rules, primarily 404(b), and See State’s App., Br. Of Def.-Appellant to R.I. Supreme Ct. (“Pet.’s R.I. Supreme Ct. Br.”) 23-32, ECF No. 6-3. The fact that these rules have close analogues in the Federal Rules of Evidence does not mean that Cavanagh presented a recognizable question of federal law. See Coningford v. Rhode Island, 640 F.3d 478, 483 (1st Cir. 2011). His brief to the Rhode Island Supreme Court offered no forthright and deliberate constitutional argumentation, but rather articulated the issue as an abuse of discretion, citing state court decisions concerned with evidentiary law, not federal constitutional law. 6 See Pet.’s R.I. Supreme Ct. Br. at 24-32. Therefore, Cavanagh has not exhausted his state court remedies as to this claim. See Coningford, 640 F.3d at 483 (finding no fair presentation of a federal claim where claim concerning evidence admitted under 6 Granted, Cavanagh declared opportunity to subject his other of cross-examination.” Pet.’s However, such a bare assertion Confrontation Clause analysis. 8 that he had been deprived of an alleged victim to the “crucible R.I. Supreme Ct. Br. at 29. falls short of a fleshed-out 404(b) described as abuse of discretion rather than violation of Fifth, Sixth, and Fourteenth Amendments); see also Adelson v. DiPaola, 131 F.3d 259, 263 (1st Cir. 1997) (holding petitioner did not exhaust his remedies because he “relied only upon [state] case law and debated the assignment of error exclusively in state-law terms”). As for the claims pertaining to the prosecutor’s questions and statements about Cavanagh’s wife and son, Cavanagh’s brief to the Rhode Island Supreme Court mentioned that his attorney at trial had raised their “constitutional dimensions.” Supreme Ct. Br. 11 n.4. 7 Pet.’s R.I. However, “‘passing reference’ to a constitutional issue will not preserve it for habeas review.” Fortini v. Murphy, 257 F.3d 39, 44 (1st Cir. 2001) (quoting Martens, 836 F.3d at 717); see also Adelson, 131 F.3d at 263 (“mere incantation[s] of constitutional buzzwords, unaccompanied by any federal constitutional analysis, [do] not suffice to carry the burden of demonstrating fair presentment of a federal claim”). 7 For example, Cavanagh asserted in his Brief to the Rhode Island Supreme Court that “during the hearing of Mr. Cavanaugh’s Motion for a New Trial, defense counsel asked the trial court to reexamine his ruling on the state’s cross-examination questions concerning both Mr. Cavanaugh’s son and wife . . . [H]e contended[] the error was one with constitutional dimensions.” Pet.’s R.I. Supreme Ct. Br. 11. n.4; see also id. at 12 (quoting assertion of trial attorney at side bar that “burden shifting is unconstitutional.”). 9 Cavanagh’s conclusory, allusions and to ultimately the Constitution peripheral to the were thrust vague, of his argument before the Rhode Island Supreme Court. He “cited no specific federal constitutional claim, precedent.” and provision, relied on tendered no Coningford, 640 F.3d no federal at 482. substantive constitutional Furthermore, the relevant portions of the state court decisions Cavanagh leaned upon were not constitutional in focus. 8 The exhaustion requirement is not satisfied by mere identity between those facts referenced on direct appeal and those facts referenced in the habeas application; there also must be identity of legal theory in state and federal courts. See Gagne v. Fair, 835 F.2d 6, 7 (1st Cir. 1987). Here, Cavanagh did not present on direct appeal any federal questions “face-up and squarely.” Martens, 836 F.2d at 717. Therefore, the petitioner has not exhausted his state court remedies as to the claims concerning the admission of prior bad act and the prosecutor’s purportedly prejudicial statements. 9 8 For example, Jefferson v. State, 353 A.2d 190 (R.I. 1976), touches directly on constitutional matters only as to a defendant’s right to testimonial silence. State v. Taylor, 425 A.2d 1231 (R.I. 1981), on which Cavanagh heavily depended, contains no utterances concerning the Constitution. 9 Even if the Court determined that Cavanagh had properly exhausted his state court remedies on every claim but ineffective assistance of counsel, his petition would still be 10 III. CONCLUSION For the foregoing reasons, the Court GRANTS the State’s Motion to Dismiss, ECF No. 4, and DENIES and DISMISSES Cavanagh’s Petition for Writ of Habeas Corpus, ECF No. 1. IT IS SO ORDERED. William E. Smith District Judge Date: May 1, 2020 mixed, and therefore subject to dismissal. See Rose, 455 U.S. at 522; see also Rhines v. Weber, 544 U.S. 269, 275 (2005) (holding that a district court may “stay the petition and hold it in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claims,” but such a dispensation is appropriate only when petitioner shows “good cause,” id. at 277). Good cause has not been shown here. 11