Wilkerson v. Alves

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

WILLIE K. WILKERSON, )

)

Petitioner, )

)

v. ) CIVIL ACTION NO.

) 21-11503-DPW

COMMONWEALTH OF MASSACHUSETTS,)

)

Respondent. )

MEMORANDUM AND ORDER

May 20, 2022

This petition for a writ of habeas corpus under 28 U.S.C.

§ 2254 challenges 2015 state court convictions of Willie K.

Wilkerson for first-degree murder, MASS. GEN. LAWS ch. 265, § 1,

and attempt to suborn perjury, MASS. GEN. LAWS ch. 268, § 3.

Mr. Wilkerson was convicted on June 23, 2015 after a jury

trial and took a direct appeal. In April of 2017, he filed a

motion for new trial in Massachusetts Superior Court, which was

denied, a denial he also appealed. The Supreme Judicial Court

consolidated Mr. Wilkerson’s appeals. On November 4, 2020, the

SJC in a comprehensive opinion affirmed Mr. Wilkerson’s

convictions and the denial of his new trial motion.

Commonwealth v. Wilkerson, 156 N.E.3d 754 (Mass. 2020).

Mr. Wilkerson filed this petition pro se before me on

September 13, 2021. He now raises four new claims for habeas

relief: 1) that he received ineffective assistance of trial and

appellate counsel in the investigation of key witnesses and

facts in his case; 2) that the evidence presented at trial was

insufficient to support his first-degree murder conviction; 3)

that defense counsel’s failure to share exculpatory evidence

with him deprived him of the opportunity to present a defense;

and 4) that evidence newly made known to him suggests that his

acquitted co-defendant may have been willing to aid in his

defense at trial, but trial counsel failed to consider him as a

potential witness.

Mr. Wilkerson has also filed what is, in substance if not

in name, a motion for stay and abeyance of his habeas petition

so that he may fully exhaust his new claims in state court.

[Dkt. No. 12.] The Respondent, the person responsible for Mr.

Wilkerson’s custody,1 opposes Mr. Wilkerson’s motion to stay

1 Mr. Wilkerson’s petition was docketed by the clerk with the

Commonwealth of Massachusetts as the named Respondent. Congress

specified in 28 U.S.C. § 2243 that the proper Respondent in a

petition for habeas corpus under 28 U.S.C. § 2254 is “the person

having custody of” the petitioner (emphasis added).

The “proper custodian for purposes of habeas review is the

warden of the facility where [Mr. Wilkerson] is being held.”

Hernandez v. Commonwealth, 234 F. Supp. 3d 316, 322 (D. Mass.

2017). For Mr. Wilkerson, apparently in custody at

Massachusetts Correctional Institution, Norfolk, the proper

Respondent to his habeas petition would presumptively be MCI

Norfolk’s Superintendent, Nelson Alves. Although the

Commonwealth of Massachusetts is not the correct Respondent in

this case, I nonetheless consider Mr. Wilkerson’s petition and

motion to stay these proceedings as presented. Here, the

Superintendent of MCI Norfolk (or any other Massachusetts

criminal custodian) “is within the jurisdiction of this court,

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these habeas proceedings and moves for judgment on the

pleadings.

Mr. Wilkerson’s case raises questions as to 1) what a state

habeas petitioner must do to present his claims fairly to the

state courts in the first instance and 2) what circumstances may

excuse a pro se petitioner’s failure to exhaust his claims in

the state courts sufficient to justify staying his timely

commenced federal habeas corpus proceeding. For the reasons

discussed herein, I will grant Mr. Wilkerson a stay and abeyance

for a reasonable time to pursue his new claims fully in the

Massachusetts state courts.

I. BACKGROUND

I recite the facts relevant to Mr. Wilkerson’s petition as

narrated by the Supreme Judicial Court in its decision in

the nominal respondent would be represented by the Massachusetts

Attorney General’s Office which argues the merits in the instant

motion to dismiss, and the petition may only be amended to

remedy the error in identifying the nominal respondent.”

Hernandez, 234 F. Supp. 3d at 322. To delay or avoid addressing

Mr. Wilkerson’s motion to stay in this case until this nominal

correction is undertaken, would be “improvident” and inefficient

under the circumstances. Id. I also note that the Respondent

need not wait for the pro se petitioner to amend the petition to

correct identification of the nominal respondent. The

Massachusetts Attorney General’s Office is fully capable — and

in the present setting, best situated — to file a motion to

correct the nominal Respondent at any time, though it has

neglected to do so as yet here. See Morin v. Kenneway, No. 19-

30075-FDS, 2020 WL 1939701, at *1 (D. Mass. Apr. 22, 2020). I

will order Respondent’s counsel to do so in this case by June 1,

2022.

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Commonwealth v. Wilkerson, 156 N.E.3d 754 (Mass. 2020),

supplementing that narrative with facts in the record consistent

with the SJC’s opinion. See O'Laughlin v. O'Brien, 568 F.3d

287, 290 (1st Cir. 2009). I do so under direction that “[a]ny

state court factual findings are presumed to be correct” unless

the petitioner rebuts that presumption with clear and convincing

evidence of error. Clements v. Clarke, 592 F.3d 45, 47 (1st

Cir. 2010) (citing 28 U.S.C. § 2254(e)(1)).

A. Factual Background

1. Mr. Wilkerson’s Connection to the Decedent

Mr. Wilkerson’s relationship to the decedent, Kristopher

Rosa, stems from Mr. Wilkerson’s friendship with Rhandisyn

Lawrence. Mr. Wilkerson befriended Mr. Lawrence while the two

were in high school. Wilkerson, 156 N.E.3d at 762. Around this

time, Mr. Lawrence in turn developed a hostile relationship with

Mr. Rosa. Id. Mr. Lawrence dated another classmate, Davina

Mendes, on and off throughout their school years, until Ms.

Mendes “settled into a relationship” with Mr. Rosa. Id. Mr.

Rosa and Ms. Mendes continued dating after high school and had a

child together. Id.

Even after leaving school, Mr. Lawrence and Mr. Rosa bore

one another significant animosity; that animosity culminated in

a series of violent exchanges in the months and days leading up

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to Mr. Rosa’s shooting death on September 19, 2011. Id. In

April of 2011, Mr. Rosa, Ms. Mendes, and a friend drove to Mr.

Lawrence’s home, where an altercation took place. Mr. Rosa

entered the home and when he and Mr. Lawrence came outside a

half hour later, Mr. Lawrence’s face was bloodied and his jaw

broken. Id. at 762-63. On September 13, 2011, six days before

the shooting, Mr. Rosa “threw a rock through the rear window of

Lawrence’s gray Volvo” in response to Mr. Lawrence’s “unpleasant

exchanges” with Ms. Mendes. Id. at 763.

Shortly before the shooting, Mr. Lawrence visited his

friend, the petitioner, and told him of the beating Mr. Lawrence

had suffered at Mr. Rosa’s hands. According to testimony from

Mr. Wilkerson’s girlfriend, Ms. Burgess, Mr. Lawrence told Mr.

Wilkerson that they “needed to take care of what they needed to

take care of and handle it.” Id. at 772.

2. The Fatal Shooting and Homicide Investigation

On September 19, 2011 around 9:30 P.M., Mr. Rosa suffered

multiple gunshot wounds while driving in Avon, Massachusetts; he

died shortly thereafter. Wilkerson, 156 N.E.3d at 763.

Around 9:15 that evening, Mr. Rosa and Ms. Mendes departed

Mr. Rosa’s home to attend dinner at his mother’s house. Id. As

the pair approached their car in the driveway, Mr. Rosa observed

a gray Volvo belonging to Mr. Lawrence driving toward the

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driveway. Mr. Rosa demanded the keys from Ms. Mendes and urged

her into the passenger seat. Id.

Mr. Rosa drove in pursuit of Mr. Lawrence’s car; when Mr.

Lawrence made a U-turn, Mr. Rosa followed. Mr. Rosa and Ms.

Mendes eventually spotted Mr. Lawrence in his gray Volvo, parked

in a driveway. Mr. Rosa “made another U-turn and parked

diagonally, facing Lawrence’s vehicle.” Id. Mr. Lawrence then

pulled out in front of Mr. Rosa and Ms. Mendes so that their car

was again trailing Mr. Lawrence’s Volvo. Id.

Moments later, Mr. Rosa and Ms. Mendes heard gunshots from

behind their car. Id. The first round of bullets shattered

their rear window. Ms. Mendes ducked into the seat while Mr.

Rosa searched for the shooter in the rearview mirror. The

gunshots resumed “this time from the driver’s side of the

vehicle.” Id. Bullets struck Mr. Rosa; Ms. Mendes saw him

bleeding from the mouth and climbed into the driver’s seat. Ms.

Mendes was able to prevent their car from colliding with Mr.

Lawrence’s Volvo, which had stopped in front of them. Ms.

Mendes then drove Mr. Rosa to Good Samaritan Hospital, where he

was pronounced dead. Id.

The morning after the shooting, police interviewed Mr.

Lawrence. Id. Mr. Lawrence gave police permission to review

his cell phone call history, which revealed that he had

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exchanged calls with Mr. Wilkerson around 8 P.M. and just after

9 P.M. on the night of the shooting. Id. That evening,

Massachusetts State Troopers John Banick and Brian Brooks

interviewed Mr. Wilkerson in his Taunton apartment. Id. [Dkt.

No. 14-10 at 13.] Mr. Wilkerson told the Troopers that Mr.

Lawrence was a friend of Mr. Wilkerson and his brother Keith.

Both Mr. Lawrence and Keith, he said, visited his home the night

before around 8:30 P.M. but left shortly thereafter. [Dkt. No.

14-10 at 17.] When asked where he was on the night of the

shooting, Mr. Wilkerson told the Troopers he was home

babysitting his girlfriend’s son. Id. Mr. Wilkerson said that

his girlfriend, Amanda Burgess, arrived home from work around

9:20 P.M. and they both stayed in the apartment that night. Mr.

Wilkerson denied having been in Avon the previous evening.

[Dkt. No. 14-10 at 18.]

In her first statement to police, Ms. Burgess corroborated

Mr. Wilkerson’s statement. Id. Her account changed, however,

after she received a subpoena to appear before the grand jury in

this case. Id. at 763-64. Officers “confronted [her] with

records from her cellular telephone service provider tending to

show [Mr. Wilkerson] had left their apartment on the evening of

the shooting, and Burgess conceded to the police, and to the

grand jury, that she and Mr. Wilkerson had not been together

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throughout the evening.” Id. at 764. Ms. Burgess told

investigators that she originally gave her false account because

Mr. Wilkerson instructed her to “say we were together all night”

if anyone asked her about the shooting. Id. [Dkt. No. 14-8 at

131.]

3. Ms. Burgess’s Immunity Agreement

On the basis of her recanted initial statements, Ms.

Burgess was charged in December 2012 with misleading the police.

More than six-months pregnant and unable to make bail, Ms.

Burgess remained incarcerated for over two months. By the time

she was released, she and Mr. Wilkerson had ended their

relationship. In July of 2013, Ms. Burgess signed an immunity

agreement, with the understanding that the charges against her

would be dismissed in exchange for her testimony. See id. at

764. [Dkt. No. 14-9 at 12, 99.]

4. Trial and Conviction

The Commonwealth pursued its first-degree murder charge

against Mr. Wilkerson on a theory of deliberate premeditation.

Ms. Burgess’s testimony was the cornerstone of the

Commonwealth’s case. The SJC summarized the key details of her

testimony in its decision:

Lawrence began visiting [Mr. Wilkerson]'s and her

apartment more frequently shortly before the shooting.

On September 19, 2011, the night of the shooting, [Mr.

Wilkerson] told her that he could not pick her up from

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work as planned, because he had to go with Lawrence “to

take care of something.” Her coworker, Heather Farris,

drove her to the defendant's mother's house, where [Mr.

Wilkerson] had left her son. She was driving home with

Farris, while talking on the telephone with [Mr.

Wilkerson], when [she] saw him drive by in the front

passenger seat of a gray Volvo going the opposite

direction. Lawrence was driving. She believed that

they “beeped” at them as the Volvo continued in the

opposite direction, towards Avon.

After she picked up her son, Burgess repeatedly tried to

call [Mr. Wilkerson]; sometimes she spoke with him, and

some of her calls went unanswered. When she reached

[Mr. Wilkerson] at some point after 9:30 P.M., he told

her that “he took care of what he had to take care of”

and “did what he had to do.” [Mr. Wilkerson]'s sister

drove Burgess home; as Burgess arrived at her apartment,

she saw [Mr. Wilkerson] sitting on the front stairs and

Lawrence's Volvo being driven away. After [Mr.

Wilkerson]'s sister left, she saw [Mr. Wilkerson] take

a black gun from his waistband and put it under the

mattress. He said again that he “did what [he] had to

do.” Sometime later, he told her that he “wasn't sure

if he killed [Mr. Rosa] or not because the car was still

rolling” after he approached it and shot through the

rear and side windows.

The next morning, Burgess noticed [Mr. Wilkerson]

searching the Internet for news about a shooting in Avon.

Forensic analysis of the laptop computer later revealed

searches for “Avon shooting,” and “Avon man dead.”

Burgess called her aunt, who brought a vehicle and

dropped off [Mr. Wilkerson] at his father's home in the

Dorchester section of Boston. Before [Mr. Wilkerson]

left, Burgess saw him retrieve the gun from under the

mattress and place it in a backpack, which he took with

him. Burgess never saw the gun again. When [Mr.

Wilkerson] returned from his father's home later that

night, he had changed clothes. He explained that he had

changed because he got gasoline on his shirt, which “gets

rid of the gunpowder.” He told Burgess to tell anyone

who asked that they had been together all evening on the

evening [Mr. Rosa] was killed.

Wilkerson, 156 N.E.3d at 764. Ms. Burgess also recounted Mr.

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Lawrence’s statements to Mr. Wilkerson, shortly before the

shooting, that they “needed to take care of what they needed to

take care of and handle it.”2 Id. at 772.

In addition to Ms. Burgess’s testimony, the Commonwealth

presented cell site location information (CSLI) from Mr.

Wilkerson’s cell phone for a three-hour period between 8 P.M.

and 11 P.M. on the night of the shooting.3 Id. at 764-65. The

jury could have found that CSLI data to be “consistent with a

round trip drive from the defendant’s apartment in Taunton to

the scene of the shooting in Avon – at the time of the shooting

– and back to Taunton.” Id. at 765. The jury was also

presented with CSLI data from Mr. Lawrence’s cell phone which

was “consistent with a round trip drive from Taunton to Avon and

back.” Id.

2 The trial court admitted the statements as non-hearsay

statements by Mr. Wilkerson’s alleged coventurer. The court

instructed the jury before the admission of Ms. Burgess’s

testimony that they were not to consider Mr. Lawrence’s

statements unless they first found the statements were made in

furtherance of an existing conspiracy between Mr. Lawrence and

Mr. Wilkerson. Wilkerson, 156 N.E.3d at 772. [Dkt. No. 14-9 at

22.]

3 The Commonwealth originally obtained forty-eight hours of cell

site location data for Mr. Wilkerson’s cell phone pursuant to 18

U.S.C. § 2703(d). The trial judge suppressed all CSLI data,

except for the three-hour period immediately before and after

the time of the shooting, as evidence obtained in violation of

Mr. Wilkerson’s Fourth Amendment right to a reasonable

expectation of privacy. See generally Carpenter v. United

States, 138 S.Ct. 2206, 2221 (2018).

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The Commonwealth argued that Mr. Wilkerson and Mr. Lawrence

planned to take care of Mr. Rosa by ambushing him on the street

in Avon. Mr. Lawrence allegedly lured Mr. Rosa to where Mr.

Wilkerson was waiting to shoot at his car from behind. [Dkt.

No. 14-11 at 111-113.] The Commonwealth argued, based on Ms.

Burgess’s testimony, that Mr. Wilkerson then attempted to

prevent her from telling investigators and the grand jury the

truth about his whereabouts on the night of the shooting. [Dkt.

No. 14-11 at 119.]

5. The Defense Case at Trial

Defense counsel pointed to what he characterized as the

many “gaps” in the Commonwealth’s case including the

Commonwealth’s failure to present forensic evidence, eye-witness

testimony, or evidence of a motive tying Mr. Wilkerson to the

shooting. [Dkt. No. 14-11 at 102-104.] Ms. Burgess’s testimony

alone, defense counsel argued, implicated Mr. Wilkerson, and Ms.

Burgess had every reason to fabricate her account. On cross-

examination, defense counsel elicited testimony from Ms. Burgess

that:

 Ms. Burgess separated from Mr. Wilkerson after the shooting

because she believed him to be cheating. When Ms. Burgess

was arrested in 2012 and could not make bail, she told her

cousin that she was desperate to be released from jail but

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she didn’t have anything to give to the police to bargain

for a dismissal of her case. [Dkt. No. 14-9 at 86.]

 One week before Ms. Burgess provided key information to the

Commonwealth and signed an immunity agreement, Ms. Burgess

sent Mr. Wilkerson a series of hostile messages on social

media, one of which said “I’m going to have you arrested

and go to jail for a long time, so enjoy life while you

can.” [Id. at 89.]

 Ms. Burgess came forward with the most inculpatory details

of her account when she bargained for an immunity agreement

in July of 2013. [Dkt. No. 14-11 at 93.]

The Commonwealth’s CSLI evidence, the defense contended,

could not be relied upon to place Mr. Wilkerson in the vicinity

of the shooting. The Commonwealth could produce “no scientific

evidence from a qualified engineer” to show that CSLI data could

place someone with “any degree of certainty.” [Dkt. No. 14-11

at 99.]

On June 23, 2015, the jury found Mr. Wilkerson guilty of

first-degree murder on a theory of deliberate premeditation, and

of attempting to suborn perjury by inciting or procuring Ms.

Burgess to commit perjury. Wilkerson, 156 N.E.3d at 765-66.

Mr. Wilkerson received a sentence of life without the

possibility of parole on his murder conviction and a concurrent

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sentence of three years on his conviction for suborning a

perjury. [Dkt. No. 14-15 at 8.]

B. Travel of the Case

1. Completed Appeals to the SJC

Mr. Wilkerson timely appealed his convictions to the

Supreme Judicial Court. Mr. Wilkerson thereafter filed a motion

for a new trial in the SJC, which was remanded to the Superior

Court on December 2, 2016. [Dkt. No. 14 at 12.] The Superior

Court denied Mr. Wilkerson’s motion for new trial,4 finding “no

credible reason to doubt the fairness of the trial.” See

Commonwealth v. Wilkerson, No. 1382CR00775, Paper 96 (Norfolk

Super. May 9, 2017). Mr. Wilkerson appealed the denial of his

4 Mr. Wilkerson raised the following six arguments in support of

his motion for new trial: 1) that he was denied the right to be

present in court during the discussion of a jury’s question and

that counsel was ineffective for failing to ensure his presence;

2) that defense counsel should have requested a continuance due

to the delayed disclosure of Trooper Banik’s notes from Mr.

Wilkerson’s police interview; 3) that the court erred in

instructing the jury on immunized witnesses during Ms. Burgess’s

direct testimony as opposed to before her testimony; 4) that

defense counsel was ineffective for failing to call Mr.

Lawrence’s girlfriend, Nivalda Barros, to testify that he told

her that he was with Keith Wilkerson on the night of the

shooting; 5) that misjoinder of Mr. Wilkerson’s perjury and

murder charges prejudiced Mr. Wilkerson; and 6) that he was

denied his public trial rights. See Commonwealth v. Wilkerson,

No. 1382CR00775, Paper 96 (Norfolk Super. May 9, 2017).

Judge Wilkins, the trial and motion judge, found that none of

Mr. Wilkerson’s claims warranted a new trial, given the evidence

presented against him at the original trial. Id.

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new trial motion and his convictions to the Supreme Judicial

Court. [Dkt. No. 14 at 13.]

a. Mr. Wilkerson’s Appellate Arguments

Before the SJC, Mr. Wilkerson raised seven issues he argued

required reversal of his convictions: 1) that the court erred in

admitting the three hours of his CSLI data; 2) that the court

erroneously admitted hearsay statements of Mr. Lawrence as

statements of a coconspirator; 3) that the charges of murder and

suborning perjury were misjoined; 4) that he was entitled to a

missing witness instruction and an instruction that the jury

could consider the police’s failure to take certain

investigative steps; 5) that the court erred in preventing the

jury from learning that Mr. Lawrence was acquitted of Mr. Rosa’s

murder5; 6) that the prosecutor made prejudicial improper

statements in closing argument; and 7) that the ends of justice

would be served by granting him a new trial “due to the

cumulative errors and the insufficiency of the evidence.” [Dkt.

No. 14 at 23.]

b. The Supreme Judicial Court’s Decision

The Supreme Judicial Court affirmed Mr. Wilkerson’s

convictions and the Superior Court’s denial of his new trial

5 Mr. Lawrence was tried to an acquittal before the start of Mr.

Wilkerson’s trial. Wilkerson, 156 N.E.3d at 766 n.6.

14

motion on November 4, 2020. Wilkerson, 156 N.E.3d at 778. It

found none of Mr. Wilkerson’s seven claims warranted the

reversal of his convictions.6 Relevant to Mr. Wilkerson’s

current petition, the SJC reviewed, pursuant to MASS. GEN. LAWS ch.

278, § 33E, Mr. Wilkerson’s case in its entirety for any factual

issue or legal error that would raise a substantial likelihood

of a miscarriage of justice. Only in the context of its Section

33E analysis did the SJC appear to consider the sufficiency of

the evidence presented at trial. The SJC ultimately found “no

reason to order a new trial or reduce the verdict.” Wilkerson,

156 N.E.3d at 778.

2. Subsequent State Challenge to the Convictions

a. Mr. Wilkerson’s Efforts to Obtain Post-Conviction

Counsel

On August 6, 2021, Mr. Wilkerson filed a motion in Superior

Court for the appointment of post-conviction counsel from the

Committee for Public Counsel Services. [Dkt. No. 14 at 11.]

Mr. Wilkerson sought counsel to litigate “issues surrounding the

6 Only one of Mr. Wilkerson’s claims on appeal is even arguably

repeated in the habeas petition before me. I will not restate

at this point the SJC’s reasons for rejecting Mr. Wilkerson’s

several appellate arguments. I note, however, that I have

carefully, albeit preliminarily, reviewed the SJC’s analysis as

to each of them and find no basis for concluding that the SJC’s

decision was objectively unreasonable given the factual record

and clearly established Federal law. See generally Williams v.

Taylor, 529 U.S. 362, 409 (2000); Harrington v. Richter, 562

U.S. 86, 98 (2011).

15

ineffective assistance of counsel and Newly Discovered evidence

not previously known to him.”7 Motion To Appoint Counsel,

Wilkerson, No. 1382CR00775, Paper 117 (Norfolk Super. Aug. 8,

2021). On August 23, 2021, the Superior Court Judge denied the

motion without prejudice, indicating he would allow Mr.

Wilkerson to refile his motion with a more detailed explanation

of his claims. Mr. Wilkerson, however, did not refile his

motion to appoint counsel. See generally Wilkerson, No.

1382CR00775, Paper 117 (Norfolk Super. Aug. 23, 2021).

b. Mr. Wilkerson’s Petition for a Federal Writ of

Habeas Corpus

Mr. Wilkerson, proceeding pro se, then filed his petition

for habeas corpus pursuant to 28 U.S.C. § 2254 in this court on

September 12, 2021.

Mr. Wilkerson raises four grounds for relief in the instant

petition. First, he asserts trial and appellate counsel

provided constitutionally ineffective assistance by failing to

investigate and interview potential witnesses, including Mr.

Lawrence. Second, Mr. Wilkerson contends that the evidence

7 I consider Mr. Wilkerson’s filings in Superior Court as

essential documents upon which his motion to stay these habeas

proceedings is premised and consequently I take judicial notice

of them. Womack v. Saba, No. CIV.A. 11-40138-FDS, 2012 WL

685888, at *2 (ECF No. 23) (D. Mass. Mar. 1, 2012) (“Petitioner

. . . has filed motions in state court asserting his unexhausted

claims. The Court will take notice of the filings as public

records.”).

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presented at trial was insufficient to support his first-degree

murder conviction. Given the lack of evidence tying him to the

shooting, Mr. Wilkerson claims, the jury would have had to rely

on impermissible inferences to find each element of the offense

beyond a reasonable doubt. Third, Mr. Wilkerson asserts that he

was deprived of the opportunity to raise a full defense because

his counsel failed to supply him with his full case file and

withheld evidence. Fourth, Mr. Wilkerson raises the similar and

perhaps related claim that he only recently discovered the

exculpatory contents of an affidavit submitted to counsel by his

acquitted co-defendant, Mr. Lawrence, and was therefore unable

to raise claims related to the affidavit on appeal.

The Commonwealth moves for judgment on the pleadings.

Asserting Mr. Wilkerson failed to exhaust his claims in the

state courts, as required by 28 U.S.C. § 2254(b), the

Commonwealth contends he is barred from federal habeas review in

district court.

Since filing his petition before me, Mr. Wilkerson has

filed a pro se “Motion for Leave to Stay State Court

Proceeding.” [Dkt. No. 12.] Though perhaps misleading in its

title, Mr. Wilkerson’s motion, in substance, requests that I

stay proceedings and hold in abeyance the instant federal habeas

petition while he works to exhaust his claims in the state

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courts. Since filing his motion to stay in this court, Mr.

Wilkerson has filed a Motion for New Trial pursuant to MASS. R.

CRIM. P. 30(b) in Superior Court, raising in somewhat greater

detail the same claims now raised before me. See Motion for New

Trial, Wilkerson, No. 1382CR00775, Paper 118 (Norfolk Super.

Dec. 15, 2021).

On March 21, 2022, Judge Wilkins, who continued to preside

over the case in the Superior Court, denied Mr. Wilkerson’s

motion without an evidentiary hearing, finding Mr. Wilkerson’s

claims did not raise a substantial issue that could merit a new

trial. Wilkerson, No. 1382CR00775, Paper 127 (Norfolk Super.

Mar. 21, 2022). It appears from the state court dockets that

Mr. Wilkerson has not, as of yet, sought leave to appeal the

denial of his Motion for New Trial from the Supreme Judicial

Court. As further discussed supra, he must do so in order to

exhaust his claims fully in the state courts.

II. STANDARD OF REVIEW

Section 2254, as amended by the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), imposes a demanding burden on

a petitioner who seeks federal habeas corpus relief from his

state convictions. Under Section 2254(d), a petitioner may

obtain relief only if he demonstrates that the state court’s

adjudication of his claims:

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(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States; or (2) resulted in a decision

that was based on an unreasonable determination of the

facts in light of the evidence presented in the State

court proceeding.

28 U.S.C. § 2254(d)(1)-(2).

It is well-established that a state court’s error in

deciding a factual or legal issue, alone, does not merit habeas

relief under AEDPA. Instead, the petitioner must show the state

court’s decision was “objectively unreasonable” given the

factual record and clearly established Federal law. Williams v.

Taylor, 529 U.S. 362, 409 (2000). The district court’s task is

to determine “whether a state court's decision resulted from an

unreasonable legal or factual conclusion.” Harrington v.

Richter, 562 U.S. 86, 98 (2011).

Mr. Wilkerson filed his petition for habeas corpus and

motion to stay without the benefit of counsel. I therefore

construe his pleadings liberally and hold them to “less

stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 93 (2007)(per curiam); Hobson

v. Corsini, 133 F. Supp. 3d 297, 304 (D. Mass. 2015).

III. DISCUSSION

A. The Exhaustion Requirement

Section 2554 makes clear that “a habeas petitioner

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challenging a state conviction must first attempt to present his

claim in state court.” Harrington, 562 U.S. at 103 (citing 28

U.S.C. § 2254(b)). The petitioner’s duty to exhaust his state

appellate remedies before seeking relief from the federal courts

“ensure[s] that state proceedings are the central process, not

just a preliminary step for a later federal habeas proceeding.”

Id. In accordance with principles of federalism, “the state

courts have the obligation, and must be trusted, to take first

cognizance of a defendant's claim of federal right. . . . While

exhaustion is not a jurisdictional bar, only in rare cases will

federal courts reach an unexhausted claim.” Nadworny v. Fair,

872 F.2d 1093, 1096 (1st Cir. 1989) (citations omitted).

A petitioner exhausts his claims sufficiently to satisfy §

2254(b)’s requirements when he fairly presents “factual and

legal underpinnings” of his federal claims to the state’s high

court. Jackson v. Coalter, 337 F.3d 74, 86 (1st Cir. 2003)

(quoting Nadworny, 872 F.2d at 1096). A claim is fairly

presented when the petitioner articulates it “in such a way as

to make it probable that a reasonable jurist would have been

alerted to the existence of the federal question.” Scarpa v.

Dubois, 38 F.3d 1, 6 (1st Cir. 1994). To satisfy this

exhaustion requirement, a petitioner must do more than “simply

present [his] claims to the state trial court; [he] must

20

‘invoke[ ] one complete round of the State's established

appellate review process.’” Currie v. Matesanz, 281 F.3d 261,

267 (1st Cir. 2002) (quoting O'Sullivan v. Boerckel, 526 U.S.

838, 845 (1999)). As to the claims raised and denied in the

Superior Court, a petitioner has exhausted them only upon “the

final disposition of a timely appeal or request for allowance of

appeal.” Currie, 281 F.3d at 267.

I now consider whether Mr. Wilkerson fulfilled his

obligation to raise and exhaust each of his newly asserted

claims before the state courts.

1. Mr. Wilkerson Failed to Exhaust his Ineffective

Assistance Claim, Withheld Evidence Claim, and Newly

Discovered Evidence Claim

It is clear that Mr. Wilkerson failed to exhaust in the

state courts three of his four newly asserted grounds for habeas

relief. Mr. Wilkerson acknowledges his claim that counsel was

ineffective for failing to interview and investigate key

witnesses is raised before me in this pending federal habeas

petition without full state court adjudication. I find Mr.

Wilkerson also raises before me — without first exhausting his

state appellate remedies — that counsel withheld evidence from

his trial file and that Mr. Wilkerson was thereby deprived of

the opportunity to mount a full defense.

These claims have not been presented to or considered by

21

the SJC in any fashion. Mr. Wilkerson did present these issues

pro se to the Superior Court in his most recent Motion for New

Trial, but he has yet to begin the process of seeking the SJC’s

review of the recent adverse determination in the Superior Court

by undertaking appeal of the denial of that motion.

A capital defendant who receives plenary review of his

conviction on direct appeal may file subsequent motions for new

trial in Superior Court but cannot appeal the denial of those

new trial motions without first obtaining leave from the

SJC. Drew v. MacEachern, 620 F.3d 16, 17 (1st Cir. 2010); Lee

v. Corsini, 777 F.3d 46, 55 (1st Cir. 2015). A defendant

seeking to appeal must file a “gatekeeper” petition to a Single

Justice of the SJC under MASS. GEN. LAWS ch. 278, 33E, explaining

why his new trial motion raises a new and substantial question

that merits consideration by the full court. Lee, 777 F.3d at

55. Mr. Wilkerson apparently has not filed a gatekeeper

petition seeking leave to appeal the Superior Court’s denial of

his post-conviction claims.8

8 The text of Section 33E does not specify the time by which a

defendant must file a gatekeeper petition with the Single

Justice in order for his petition to be timely. The Supreme

Judicial Court did hold in Mains v. Commonwealth, 739 N.E.2d

1125, 1131 n.10 (Mass. 2000), that a gatekeeper petition should

be filed within thirty days of the denial of the defendant’s new

trial motion. See Mandeville v. Gaffney, 167 N.E.3d 416, 418

(Mass. 2021). I note that under this holding Mr. Wilkerson’s

thirty-day-period to file a gatekeeper petition has elapsed. An

22

Because these three claims have not been resolved with

finality by the SJC, I may not at this point consider them as

potential grounds for federal habeas relief. Nadworny, 872 F.2d

at 1096. I observe by contrast, however, Mr. Wilkerson’s

insufficiency claim was at least arguably included in his

appellate brief in his direct appeal and requires further

discussion.9

2. Mr. Wilkerson’s Insufficiency Claim, Although

Mentioned, was Not Fairly Presented to the SJC on

Appeal and is Unexhausted

In his appellate brief to the SJC, Mr. Wilkerson asserted

untimely petition is not necessarily doomed to fail, however,

because a Single Justice may yet determine that the petition

raises new and substantial issues that the full court should

consider on appeal. See Drew v. MacEachern, 620 F.3d 16, 21 n.2

(1st Cir. 2010)(citing Commonwealth v. Nassar, 908 N.E.2d 371,

372-73 n.2 (Mass. 2009)). Until Mr. Wilkerson has actually

filed a gatekeeper petition and has received a decision, either

from the Single Justice denying his petition or from the full

court considering an appeal of his motion, he will not have

exhausted his state remedies as required by § 2254(b). See id.

at 21 (denial of gatekeeper is a “final resolution through

[Massachusetts’s] post-conviction procedures” (quoting Carey v.

Saffold, 536 U.S. 214, 220 (2002)).

9 The Commonwealth contends Mr. Wilkerson “admits” in his

petition that he failed to exhaust his claims by answering “all

of them?” to the question whether any of his asserted grounds

had not been presented in state or federal court. [Dkt. Nos. 16

at 3, 1 at 11.] I review Mr. Wilkeron’s pro se petition

liberally and assign no weight in my exhaustion analysis to this

so-called “admission” by a pro se litigant. As will appear in

the next sub-section, however, I find without reference to Mr.

Wilkerson’s purported “admission” that he has not fully

exhausted his newly articulated federal claims in the state

courts.

23

that the evidence presented to the jury, particularly what he

treated as the incredible testimony of the immunized witness,

Ms. Burgess, was insufficient to convict him of first-degree

murder. I find that although Mr. Wilkerson mentioned in passing

that the evidence against him was insufficient, this was

presented as a state law claim. Any federal insufficiency claim

remains unexhausted.

In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme

Court articulated the federal constitutional standard of

evidentiary sufficiency required to support a conviction: viewed

in the light most favorable to the prosecution, the evidence

must have been sufficient to allow a “rational trier of fact

[to] have found the essential elements of the crime beyond a

reasonable doubt.” Id. at 319. Mr. Wilkerson’s seventh

argument on appeal to the SJC was that, pursuant to MASS. GEN. LAWS

ch. 278, § 33E, “justice will be served by granting a new trial

due to the cumulative errors and the insufficiency of the

evidence.” Mr. Wilkerson summarized the confluence of factors

that necessitated a new trial as the circumstance that: 1) his

conviction was supported only by uncorroborated, immunized

witness testimony of Ms. Burgess, an outcome prohibited by MASS.

GEN. LAWS ch. 233, § 20I; 2) the lack of corroboration of Ms.

Burgess’s “compromised and impeached testimony,” cast serious

24

doubt on the integrity of his conviction; 3) evidence

contradicting the Commonwealth’s theory of the shooting

undermined the evidence of his guilt; and 4) the lack of

evidence of Mr. Wilkerson’s motive to commit the murder, along

with the lack of other evidence, all of which was said to

suggest justice may not have been done. [Dkt. No. 14 at 79-80.]

Mr. Wilkerson’s SJC brief does mention the phrase “the

insufficiency of the evidence,” but he neither stated a federal

insufficiency claim under Jackson v. Virginia, nor raised the

analogous state law argument under Commonwealth v. Latimore, 393

N.E.2d 370, 375 (Mass. 1979). Mr. Wilkerson’s claim was, in

essence, a request for discretionary relief under MASS. GEN. LAWS

ch. 278, § 33E, not an assertion that no reasonable jury could

have found him guilty based on the evidence presented at trial.

The promise of Section 33E review does not relieve a petitioner

of his obligation separately to present fairly and recognizably

a federal insufficiency claim to the SJC. To the extent that

Mr. Wilkerson raised a federal claim on appeal, his claim was

“mask[ed by its] state-law character.” Nadworny, 872 F.2d at

1101. Mr. Wilkerson’s brief, with its focus on state court

discretionary process, would be unlikely to “alert a reasonable

jurist to the existence of the federal question.” Id.

25

3. Treatment of the Newly Asserted but Unexhausted Claims

at this Point in this Court

Because I find none of Mr. Wilkerson’s claims have been

presented to the SJC, I will not consider their merits at this

time. Nadworny, 872 F.2d at 1096 n.2. Mr. Wilkerson’s failure

to exhaust his claims is not necessarily fatal to his petition,

however. I turn to Mr. Wilkerson’s request for what is, in

essence, a stay and abeyance of those claims to provide him an

opportunity to exhaust his claims in the SJC and then return to

federal court.

B. Motion for Stay and Abeyance

A state petitioner for federal habeas corpus relief who has

failed to exhaust any of his federal claims for habeas relief

may seek a stay and abeyance of his petition to afford him the

chance to litigate his claims for the first time in the state

courts. Rhines v. Weber, 544 U.S. 269, 278 (2005); Sena v.

Kenneway, 997 F.3d 378, 381 (1st Cir. 2021). The Supreme Court

explained the need for this stay and abeyance procedure in

Rhines as a way to provide a petitioner a means to seek federal

habeas review within AEDPA’s one-year limitations period while

he works diligently to present any unexhausted claims in the

state courts. 544 U.S. at 275 (noting that petitioners who rush

to file timely habeas petitions within a year of a final

decision by the state court, as required by AEDPA, “run the risk

26

of forever losing their opportunity for any federal review of

[any] unexhausted claims.”). See also Sena, 997 F.3d at 381.

To make use of this stay and abeyance procedure, Rhines

held, the petitioner must meet three requirements by showing he

“had good cause for his failure to exhaust, his unexhausted

claims are potentially meritorious, and there is no indication

that the petitioner engaged in intentionally dilatory litigation

tactics.” 544 U.S. at 278. I assess Mr. Wilkerson’s motion to

stay proceedings in light of those three prerequisites.10

10 The Rhines Court described a stay and abeyance procedure

available to petitioners who bring a “mixed” petition including

exhausted and unexhausted claims. Rhines v. Weber, 544 U.S.

269, 278 (2005). Though the First Circuit has yet to address

whether this procedure is also available to petitioners

belatedly bringing only unexhausted claims, the Ninth, Third,

Seventh, and Tenth Circuits have answered that question in the

affirmative. Mena v. Long, 813 F.3d 907, 908 (9th Cir. 2016);

Heleva v. Brooks, 581 F.3d 187, 191 (3d Cir. 2009); Dolis v.

Chambers, 454 F.3d 721, 724 (7th Cir. 2006); Doe v. Jones, 762

F.3d 1174, 1178 (10th Cir. 2014). Several district courts in

the First Circuit have also applied the Rhines framework to

fully unexhausted petitions. Watt v. Marchilli, 217 F. Supp. 3d

434, 440 (D. Mass. 2016) (Hillman, J.); Marchetti v. O'Brien,

No. CV 15–14161–GAO, 2016 WL 5660412, at *4 (ECF No. 32) (D.

Mass. Sep. 29, 2016) (O’Toole, J.); see also Sánchez-Burgos v.

Vega-Aponte, No. 18-1031-PAD, slip op. at 4 n.5 (D.P.R. Apr. 27,

2021)(Delgado-Hernández, J.). I agree with Judge Hillman’s

prediction in Watt v. Marchilli, that “if presented with the

issue, the First Circuit is likely to align itself with those

circuits that have held that federal courts have the authority

to stay petitions containing only unexhausted claims.” 217 F.

Supp. 3d at 440. At this point, I will apply the Rhines

framework to Mr. Wilkerson’s motion to stay despite his failure

to exhaust any of his claims.

27

1. Mr. Wilkerson Meets the Rhines Requirements for a Stay

and Abeyance

a. Potentially Meritorious Claims

First, Mr. Wilkerson’s grounds for federal habeas relief

are not plainly meritless. Rhines, 544 U.S. at 277. Though not

developed in detail in his habeas petition, Mr. Wilkerson’s

claims do raise potentially meritorious issues regarding the

quality of counsel’s efforts to interview and obtain exculpatory

evidence from Mr. Wilkerson’s acquitted co-defendant Mr.

Lawrence. Further, to the extent that Mr. Wilkerson’s third and

fourth grounds for habeas relief are based on Mr. Lawrence, they

are also not plainly meritless.11 Mr. Wilkerson’s insufficiency

claim is also plausibly viable, given the quality of the

evidence presented at trial.

b. Abusive Litigation Tactics

I find no evidence in the record that Mr. Wilkerson has

engaged in abusive litigation tactics that would make him

ineligible for a stay and abeyance.

11 Mr. Lawrence does appear to have submitted a signed, notarized

statement to defense counsel at some point stating that “On

September 19th, 2011 during my drive back from Taunton I was not

with Willie Wilkerson.” Although not entirely clear from his

statement, it appears that Mr. Lawrence may also have been

willing to appear on Mr. Wilkerson’s behalf at trial. Affidavit

ISO Motion for New Trial, Wilkerson, No. 1382CR00775, Paper 119

(Norfolk Super. Dec. 15, 2021).

28

c. Good Cause

Mr. Wilkerson provides only a limited explanation as to why

each of his claims was not presented on direct appeal.12 What

Mr. Wilkerson does clearly articulate, however, is that he did

not understand how to exhaust any of his claims without the

assistance of counsel. [Dkt. No. 1 at 11.] The Commonwealth

contends that Mr. Wilkerson’s pro se status, along with his

other explanations for his failure to present his claims, cannot

excuse his procedural misstep. This is a question requiring

further development in the state courts. For present purposes,

I find that Mr. Wilkerson makes an adequate showing of good

cause to excuse his failure to exhaust his claims in state

court.

The Supreme Court has offered little guidance since Rhines

regarding what constitutes “good cause” to justify a stay and

12 As to his claim of ineffective assistance for counsel’s

failure to investigate and interview witnesses, Mr. Wilkerson

states that his post-conviction appellate counsel was unwilling

to investigate the issue and filed his direct appellate brief

without notifying him. [Dkt. No. 1 at 6.] Mr. Wilkerson did

not raise his insufficiency claim because he “didn’t know how to

and [his] appointed attorney was confused.” [Dkt. No. 1 at 7.]

Mr. Wilkerson asserts his appellate attorney did not want to

raise his claim that his trial attorney withheld evidence from

him, although he does not explain clearly why his attorney

refused to do so. Mr. Wilkerson explains that he failed to

exhaust his claim based on Mr. Lawrence’s affidavit because he

learned of its contents too late to do so. [Dkt. No. 1 at 9.]

29

abeyance. See Sena, 997 F.3d at 385-86. Until recently, First

Circuit courts have attempted to define good cause primarily by

deciding categorically what it is not. See id.; see, e.g.,

Clements v. Maloney, 485 F.3d 158, 170 (1st Cir. 2007)

(counsel’s intentional decision to omit a claim is not good

cause); Josselyn v. Dennehy, 475 F.3d 1, 5 (1st Cir. 2007)

(“Ignorance of the law does not constitute good cause”);

Sullivan v. Saba, 840 F. Supp. 2d 429, 437 (D. Mass. 2012) (“the

First Circuit does not recognize ineffective assistance of

counsel or strategic decisions of counsel as good cause in this

context.”). In particular, several district courts applying the

Rhines framework have emphasized that a petitioner’s pro se

status also cannot constitute good cause. See Sullivan, 840 F.

Supp. 2d at 437 (“Petitioner's pro se status does not constitute

good cause”); Watt v. Marchilli, 217 F. Supp. 3d 434, 440 (D.

Mass. 2016) (“A petitioner's pro se status, in and of itself,

cannot establish good cause.”)

In its recent decision in Sena v. Kenneway, however, the

First Circuit emphasized that good cause analysis “is inherently

[a] fact-sensitive” one. 997 F.3d at 389. The district court

is directed to conduct an individualized assessment based on

each petitioner’s 1) ability to self-advocate, id. at 387; 2)

diligence in attempting to present his claims, id. at 386 (“a

30

movant's diligence or lack of diligence often serves as the

dominant criterion in a good cause analysis” (internal citations

and quotations omitted)); 3) efforts to navigate the procedural

obstacles of exhaustion, see Rhines, 544 U.S. at 279 (Stevens,

J., concurring) (the good cause requirement should not allow

complex and inflexible exhaustion requirements to “trap the

unwary pro se prisoner” (internal citations and quotations

omitted)); and 4) the substantive character of the federal

claims. See Jackson v. Marshall, 634 F. Supp. 2d 146, 163 (D.

Mass. 2009).

In particular, the First Circuit instructs that in the case

of a pro se petitioner the district court “must factor a habeas

petitioner's pro se status, as well as his attributes, skill

sets, and circumstances, into its decisional calculus” and

consider the impact of the petitioner’s pro se status on his

ability to exhaust his claims. Sena, 997 F.3d at 387.

i. Ability to Self-Advocate

In Sena, the First Circuit decided the “close” question of

whether the district court abused its discretion by finding a

petitioner’s extensive efforts to obtain post-conviction counsel

to help him exhaust his ineffective assistance of counsel claim

did not constitute good cause. Id. at 384, 389. The First

Circuit found the district court’s decision to be “within the

31

wide margins of [the district court’s] discretion” because the

petitioner was fully capable of filing an effective pro se

motion to exhaust his claims but delayed initiating state court

proceedings for six months after learning he would not be

appointed counsel. Critical to the First Circuit’s decision to

uphold the district court’s ruling was that the court

“supportably found that the petitioner was capable of acting to

his own behoof at all times,” and yet still made no effort to

exhaust his claims pro se until it was too late. Id. at 387.

Here, Mr. Wilkerson demonstrated repeatedly that he lacked

the information, legal skills, and resources to exhaust his

claims before filing the instant petition. Mr. Wilkerson’s pro

se filings, unlike the “well-crafted” pleadings in Sena, id. at

388, do not evidence an ability to litigate complex claims of

ineffective assistance of counsel and newly discovered

evidence.13 See also McCowen v. Mendosa, No. CIV.A. 11-12216-

FDS, 2012 WL 5875597, at *3 (ECF No. 13)(D. Mass. Nov. 19, 2012)

13 The court in Sena considered a pro se petitioner who

demonstrated his ability to self-advocate with what it

characterized as “well-crafted” pleadings. See id. at 388; Sena

v. Kenneway, No. CV 19-10254-NMG, 2020 WL 1429849, at *2 (ECF

No. 59) (D. Mass. Mar. 24, 2020). I have reviewed Mr. Sena’s

comprehensive and detailed filings in support of his petition

for habeas corpus and motion to stay. They are far more

sophisticated than Mr. Wilkerson’s petition and motion before

me. By contrast to Mr. Sena, Mr. Wilkerson struggles to

articulate the factual and legal bases for his arguments in the

hand-written petition he has submitted in this case.

32

(finding good cause due to the pro se petitioner’s “limited

literacy and legal skills,” when “dismissing the petitioner

would almost certainly preclude him from returning to federal

court.”) I find that Mr. Wilkerson’s pro se status

significantly impeded his ability to exhaust his claims before

filing his habeas petition, particularly because his claims seem

to require careful investigation and nuanced legal arguments

regarding trial and appellate counsel’s decision-making.

ii. Diligence

Mr. Wilkerson has made sufficiently diligent efforts thus

far to obtain counsel and present his claims to the Superior

Court. Mr. Wilkerson filed a motion in Superior Court for the

appointment of counsel to represent him in filing a motion

pursuant to MASS. R. CRIM. P. 25(b)(2) in August of 2021, over a

month before filing his habeas petition before me. He sought

funds to order the transcripts of Mr. Lawrence’s trial and

recently sought an order for the production of those transcripts

so that he could investigate discrepancies in the facts

presented in the two trials. Since filing his motion to stay,

Mr. Wilkerson filed a Motion for New Trial pursuant to MASS. R.

CRIM. P. 30(b), along with an affidavit in support of the motion

and a copy of Mr. Lawrence’s affidavit. The Superior Court has

now denied his motion for a new trial. I am prepared to give

33

Mr. Wilkerson the opportunity to continue to demonstrate

diligent efforts to exhaust his claims by filing a gatekeeper

petition with the SJC by July 1, 2022.

iii. Efforts to Navigate Exhaustion Procedure

Mr. Wilkerson attempted to obtain counsel specifically to

allow him to “pursue remedies that will be considered exhausted

or failed to exhaust before his federal habeas is due.” Motion

to Appoint Counsel, Wilkerson, No. 1382CR00775, Paper 117

(Norfolk Super. Aug. 8, 2021). When his attempts to obtain

counsel were unsuccessful, Mr. Wilkerson timely filed his habeas

petition and, before filing a supporting memorandum or any

additional documents, alerted this court to his failure to

exhaust his claims, accordingly seeking a stay. His affidavit

filed in support of his motion to stay suggests that he also

sought alternative means of obtaining counsel including a

screening from the Boston College Innocence Program. [Dkt. No.

12-1.]

Mr. Wilkerson has already initiated the state court

proceedings necessary to exhaust his claims by filing a Rule

30(b) motion in Superior Court. If he pursues that recently

denied motion for new trial to a final resolution by filing

promptly a gatekeeper petition to appeal to the SJC, he will

34

have demonstrated sufficient efforts to exhaust his claims to

justify a stay of his federal habeas matter.

iv. Substantiality of Federal Claims

I note that Mr. Wilkerson’s ineffective assistance of

counsel claims, withheld evidence claim, and newly discovered

evidence claims seem to be predicated upon his discovery of Mr.

Lawrence’s willingness to aid in his defense, a discovery he

asserts occurred after the SJC decided his case. Mr. Wilkerson

has already presented Mr. Lawrence’s affidavit to the Superior

Court in his efforts to exhaust these claims.

The discovery of new information following direct appeal

will not always constitute good cause. Here, however, Mr.

Wilkerson presents at least some evidence that his acquitted co-

defendant, with whom he was alleged to have conspired to commit

murder, was willing to support his defense with testimony and

yet was not called by trial counsel. Mr. Wilkerson should have

an opportunity to litigate these issues fully in the state

courts and seek federal habeas review of his claims if he takes

the steps necessary to exhaust them.14

14 I understand that the Superior Court rejected Mr. Wilkerson’s

claims predicated on Mr. Lawrence’s affidavit and “[i]t’s

certainly possible that all of this is for naught, as a

gatekeeper justice may conclude that the information [Mr.

Wilkerson raises] . . . is not new” or of sufficient substance

to warrant an appeal to the full SJC. Jackson v. Marshall, 634

F. Supp. 2d 146, 163 (D. Mass 2009). “That decision, however,

35

I now conclude that Mr. Wilkerson has demonstrated

sufficiently that good cause exists to excuse his failure, to

this point, to exhaust his claims in state court. Accordingly,

I will grant his motion for a stay and abeyance.

IV. CONCLUSION

For the reasons set forth above, I GRANT Mr. Wilkerson’s

inartfully captioned motion [Dkt. No. 12] for a stay of these

proceedings. Mr. Wilkerson will not, however, be afforded

unlimited time to exhaust his claims. This stay is conditioned

on Mr. Wilkerson continuing to pursue his state court remedies

diligently. If Mr. Wilkerson hopes to pursue his federal habeas

petition in this court, he must now file a petition with the SJC

Single Justice under MASS. GEN. LAWS ch. 278, § 33E, explaining why

he believes his Motion for New Trial raises new and substantial

issues that should be considered in an appeal to the full SJC.

Mr. Wilkerson must submit this gatekeeper petition to the SJC no

later than July 1, 2022. Mr. Wilkerson must then return to

this court with a motion to reopen within thirty days after his

current state motion for a new trial is finally decided. See

Rhines, 544 U.S. at 278.

is for the Commonwealth courts, not this one.” Id. Mr.

Wilkerson must file his gatekeeper petition with the SJC to give

that court the opportunity to make such a decision before he can

litigate any of his claims in this federal court.

36

The Commonwealth-Respondent will be responsible for keeping

this court apprised of the progress of Mr. Wilkerson’s attempts

to obtain post-conviction relief in the Massachusetts courts.

Accordingly, it is ORDERED that the Commonwealth shall file a

status report to this court within one week of the filing of a

gatekeeper petition in the SJC, a decision of the Single

Justice, and, if an appeal is granted, the filing of an appeal

with the full court of the SJC.

The Commonwealth will also be responsible for filing a

status report informing this court when this federal matter is

ripe for resolution, in accordance with this Memorandum’s

discussion of Mr. Wilkerson’s duty to exhaust his state court

remedies.

It is further ORDERED that the Commonwealth shall, by June

1, 2022, file a motion to correct the identification of the

nominal Respondent in this matter by reporting the name of the

current institution with custody of Mr. Wilkerson and that

institution’s responsible custodian for Mr. Wilkerson. See

supra note 1.

/s/ Douglas P. Woodlock_______

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE

37