The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
)
ANTHONY BROWN, )
)
Petitioner, )
) Civil Action No.
v. ) 17-12503-FDS
)
SEAN MEDEIROS, )
)
Respondent. )
____________________________________)
ORDER ON MOTION TO REOPEN AND MOTION TO
VOLUNTARILY DISMISS HABEAS PETITION WITHOUT PREJUDICE
SAYLOR, J.
On February 27, 2018, the Court issued an order directing petitioner to file a
memorandum of law in support of his petition by April 26, 2018. Petitioner did not file a
memorandum by that date, and instead moved that the petition be held in abeyance in light of his
current defense counsel’s efforts to secure the dismissal of certain habitual-offender indictments
in Norfolk Superior Court. On May 1, 2018, the Court denied that motion, noting that the
dismissal of those indictments were irrelevant to the issues raised in his habeas petition. That
same day, the Court directed petitioner to file a memorandum in support of his petition by May
22, 2018. The Court warned that failure to file a memorandum by that date could result in
dismissal of the petition. Petitioner failed to file a memorandum by May 22, and on May 30,
2018, the petition was dismissed for failure to prosecute.
On June 13, 2018, the Court received two documents from petitioner. The first, dated
May 16, 2018, merely reiterates the argument petitioner made in his motion to hold his petition
in abeyance. The second, dated June 7, 2018, requests that the Court reopen this petition to
determine whether his petition should be dismissed without prejudice.
Orders dismissing habeas petitions without prejudice are normally limited to situations
where the petitioner failed to exhaust state remedies. See Slack v. McDaniel, 529 U.S. 473, 479
(2000). Here, the state court docket for the convictions underlying the present habeas petition
appears to show that petitioner in fact exhausted his state remedies. The Appeals Court affirmed
his conviction on October 5, 2017. See Commonwealth v. Brown, 92 Mass. App. Ct. 1107
(2017), 2017 WL 441377. The SJC denied his application for leave to obtain further appellate
review on November 6, 2017. See Commonwealth v. Brown, 478 Mass. 1103 (2017).
Accordingly, the May 30, 2018 order of dismissal for failure to prosecute was proper.
Nevertheless, because respondent did not file a timely opposition to petitioner’s latest
motions, and in light of petitioner’s pro se status, the Court will grant petitioner an opportunity to
show cause why the petition should be dismissed without prejudice. Petitioner shall have until
August 3, 2018, to file a memorandum making such a showing. Failure to file a memorandum
by that date will result in dismissal of the petition with prejudice.
Accordingly, the motion to reopen this matter is GRANTED to the extent set forth above.
The motion to dismiss the petition without prejudice is DENIED as moot.
So Ordered.
/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Dated: June 29, 2018 United States District Judge