Evariste v. COMMONWEALTH OF MASSACHUSETTS

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

EMMANUEL EVARISTE, )

)

Petitioner, )

)

v. ) CIVIL ACTION NO.

) 20-10151-DPW

COMMONWEALTH OF MASSACHUSETTS, )

)

Respondent. )

MEMORANDUM AND ORDER

May 23, 2022

Petitioner Emmanuel Evariste, appearing pro se, seeks a

writ of federal habeas corpus pursuant to 28 U.S.C. § 2254 to

challenge six drug convictions in Boston Municipal Court. The

convictions at issue were based on separate plea agreements into

which Mr. Evariste entered respectively on August 9, 2017 and

September 27, 2018.

Following his September 2018 convictions, Mr. Evariste,

acting pro se, pursued six motions for post-conviction relief in

Boston Municipal Court. Each motion separately sought to

withdraw one of his 2017 and 2018 guilty pleas, all of which he

asserted were neither knowing nor voluntary. The motions were

denied in the Boston Municipal Court on July 24, 2019. In

November of 2020, Mr. Evariste took an expedited appeal of his

post-conviction motions to the Massachusetts Appeals Court.

The Appeals Court on January 29, 2021, affirmed the denial

of Mr. Evariste’s motions to withdraw his pleas. [Mass. App.

Ct. Dkt. No. 2020-P-1347] See Commonwealth v. Evariste, 162

N.E.3d 100 (Table), 2021 WL 303434, at *1 (Mass. App. Ct. 2021)

(unpublished disposition). Mr. Evariste then filed multiple

iterations of a motion for reconsideration in the Appeals Court,

all of which were also denied. Thereafter, he sought and was

denied leave to obtain further appellate review by the Supreme

Judicial Court in February of 2021. [SJC Dkt. FAR-28080.] The

Appeals Court issued a notice to Mr. Evariste on March 3, 2021,

informing him that the matter was closed.

Meanwhile, Mr. Evariste had filed the instant petition for

federal habeas corpus on January 23, 2020, before appealing the

denial of his post-conviction motions in state court. Mr.

Evariste here challenges his six felony convictions on several

grounds, grounds which he did not raise legibly in his state

court appeal and were not addressed on their merits by the state

courts.

Upon threshold review,1 I will dismiss Mr. Evariste’s

petition because the record establishes he failed to exhaust the

1 Pursuant to Rule 4 of the Rules Governing Habeas Corpus Cases

under Section 2254, when a preliminary review of a habeas

petition on its face reveals that the petitioner is not entitled

to federal habeas relief, the district court may, in its

discretion, dismiss his petition before serving the would-be

Respondent. See 28 U.S.C. § 2243; see also Rule 1(b) of the

Rules Governing Habeas Corpus Cases Under Section 2254 (the

district court may apply Rule 4 in its discretion).

claims he now asserts before me in state court. Moreover, to

the extent Mr. Evariste could be said to have raised any of the

claims he now presses here and thereafter somehow to have

exhausted them in state court, they are claims that do not merit

federal habeas relief.

I. BACKGROUND

On August 9, 2017, Mr. Evariste pled guilty to two counts,

a charge of distribution of a class B controlled substance and a

charge of possession with intent to distribute a class B

controlled substance, in violation of MASS. GEN. LAWS ch. 94C

§ 32A(a).2 See generally Commonwealth v. Evariste, No.

1701CR001418 (Bos. Mun. Ct. Aug. 9, 2017). On the same date, he

pled guilty to violations of the same two felony provisions in a

separate matter, also in Boston Municipal Court. Commonwealth

v. Evariste, No. 1701CR003151 (Bos. Mun. Ct. Aug. 9, 2017). Mr.

Evariste received concurrent suspended sentences of two years in

those two matters. Mr. Evariste was sentenced to terms of

probation running from August 9, 2017 to August 7, 2019.

2 Mr. Evariste did not include any relevant materials generated

in his state matters, e.g., dockets, motions, briefs, decisions,

in his submissions to this court. Nevertheless, these materials

are essential to Mr. Evariste’s habeas petition and I consider,

by taking judicial notice of, them in this Memorandum. See

Leiva v. DeMoura, No. CV 20-11367-PBS, Slip op. at *1 n.1 (D.

Mass. May 10, 2021).

The following year, Mr. Evariste was charged in two new

matters in Boston Municipal Court. See generally Commonwealth

v. Evariste, Nos. 1801CR001432, 1801CR002697 (Bos. Mun. Ct.

Sept. 27, 2018). On September 27, 2018, he pled guilty to one

charge of possession with intent to distribute a class B

controlled substance, MASS. GEN. LAWS ch. 94C § 32A(a) in his first

matter. Commonwealth v. Evariste, No. 1801CR001432 (Bos. Mun.

Ct. Sept. 27, 2018). On the same date, he pled guilty to a

violation of the same felony provision in the second matter.

Commonwealth v. Evariste, No. 1801CR002697 (Bos. Mun. Ct. Sept.

27, 2018). He received sentences of two years of incarceration

with six months to serve and the balance to be suspended in each

of these matters, to be served concurrently. Mr. Evariste’s

sentences in these 2018 matters each included a term of

probation ending March 25, 2020.

Based on his September 27, 2018 convictions, Mr. Evariste

admitted on the same day to having violated the probation

provisions in his August 2017 convictions and waived his rights

to hearings on those matters. Evariste, Nos. 1701CR001418,

1701CR003151. Mr. Evariste was sentenced on these probation

violations on December 3, 2018. Id. Despite these admitted

violations, Mr. Evariste’s probation was not revoked, and he was

not required to serve the balance of his 2017 suspended sentence

in addition to his new sentence for his 2018 convictions. Id.

Instead, the court extended his term of probation on the August

2017 matters from August 9, 2017 to March 25, 2020. Mr.

Evariste remained on probation for these convictions until March

25, 2020 and was formally discharged in April 2020. Id.

Mr. Evariste was a legal permanent resident at the time of

his pleas. Following his convictions, the Department of

Immigration and Customs Enforcement detained Mr. Evariste. The

government commenced removal proceedings against him in

Immigration Court in December of 2018. The Immigration Court

found Mr. Evariste removable pursuant to the Immigration and

Nationality Act, Section 237(a)(2)(A)(iii), 8 U.S.C. § 1227, and

ordered his removal to Haiti in June of 2019. Mr. Evariste

appealed that order of removal to the Board of Immigration

Appeals. The Board dismissed Mr. Evariste’s appeal on December

11, 2019 and the order for Mr. Evariste’s removal became final

pursuant to 8 C.F.R. § 1241.1(a). See generally Evariste v.

Dep’t of Homeland Security, No. 1:19-cv-11144-DJC (ECF No.

40)(D. Mass. Nov. 15, 2019).

In a separate civil proceeding assigned to another session

in this court, Mr. Evariste pursued countless unsuccessful

motions to appeal his removal, reopen removal proceedings, to

terminate removal proceedings, and to stay removal.3 It is

3 Mr. Evariste filed pro se a petition for a writ of habeas

apparent now Mr. Evariste seeks in this session federal habeas

relief from the convictions resulting from his 2017 and 2018

guilty pleas as another means to challenge his removability.

[See Dkt. Nos. 2 at 1, 6 at 1.]

A. Post-Conviction Travel of the Case

Following his 2018 convictions and detention by Immigration

and Customs Enforcement, Mr. Evariste filed six motions for

post-conviction relief in rapid succession.4 [Commonwealth App’x

to Appeals Court, No. 2020-P-1347, (“App’x”) 83-100.] Each of

Mr. Evariste’s motions asserted the same core claims: 1) that

pursuant to 28 U.S.C. § 2241 before Judge Casper in 2019,

followed by a “Motion for Order to Terminate Removal Proceedings

and Reinstate Immigration Status”. Evariste v. Dep’t of

Homeland Sec., No. 1:19-cv-11144-DJC (D. Mass. filed May 20,

2019). His petition and motion were denied. Evariste v. Dep’t

of Homeland Security, No. 1:19-cv-11144-DJC (ECF No. 40) (D.

Mass. Nov. 15, 2019).

After the dismissal of his initial claims, Mr. Evariste

submitted motions to reopen, to reconsider, and to obtain

injunctive relief, all relating to the Immigration Court’s order

of removal regarding him. Judge Casper noted that Mr.

Evariste’s “numerous post-dismissal motions” warranted an order

enjoining him from filing any further motions. Judge Casper

cautioned Mr. Evariste that if he filed “further frivolous and

vexatious filings in this dismissed action, the Court will take”

that step. Evariste v. Dep’t of Homeland Security, No. 1:19-cv-

11144-DJC (ECF No. 71) (D. Mass. March 26, 2020).

4 On June 6, 2019, Mr. Evariste filed a Motion to Withdraw Guilty

Pleas as to all six of his convictions. [App’x 83-85.] Weeks

later, he filed another Motion to Withdraw Guilty Pleas. [App’x

87-89.] Mr. Evariste filed an Affidavit (Withdraw Guilty Plea)

which he then amended to be Motion for New Trial on July 8,

2019. [App’x 90-93.] Mr. Evariste filed a Motion for A New

Trial (Rule 30) seeking to vacate his convictions under MASS. R.

CRIM. P. 30 on July 11, 2019. [App’x 98.]

his pleas were not knowing and voluntary because he lacked a

full understanding of the immigration consequences of his pleas;

2) that plea counsel provided ineffective assistance by advising

him, without knowing his immigration status, to plead guilty to

offenses that could result in his deportation; and 3) that he

was deprived of his due process rights and faced possible

removal from the United States as a result. [App’x 83-99.]

Judge Coyne, who received Mr. Evariste’s September 2018

pleas, considered Mr. Evariste’s post-conviction motions

together and summarily denied them on July 24, 2019. [App’x

98.] Mr. Evariste responded to Judge Coyne’s order with a

second wave of post-conviction motions challenging his

convictions on the same grounds previously asserted.5 Each was

denied. See Commonwealth v. Evariste, 2021 WL 303434, at *1

n.1.

On January 23, 2020, before appealing the denial of his

post-conviction motions, Mr. Evariste filed the instant petition

for federal habeas relief. In the five months that followed,

Mr. Evariste filed several more substantive motions and

5 In his first Boston Municipal Court matter, for example, Mr.

Evariste filed six more motions requesting the court reconsider

the prior denial of his motion to withdraw his pleas, [Papers

33, 38, 40], to vacate his convictions [Paper 34], to amend his

convictions [Paper 36], and to overturn his convictions [Paper

37]. See Commonwealth v. Evariste, No. 1701CR001418 (Bos. Mun.

Ct. Mar. 17. 2017).

affidavits in this session requesting vacatur of his state

convictions.6 [Dkt. Nos. 6, 9, 12, 13.]

On December 28, 2020, Mr. Evariste filed in the

Massachusetts Appeals Court a Motion for a Preliminary

Injunction to Vacate Convictions. A Single Justice of the

Appeals Court denied that motion on December 31, 2020. [Mass.

App. Ct. Dkt. No. 2020-P-1347.] Five days later, without

counsel or a fully assembled appellate record, Mr. Evariste

sought an expedited appeal of the denial of his motions to

withdraw his guilty pleas. The Appeals Court permitted the

expedited appeal and affirmed the Boston Municipal Court’s

decision to deny Mr. Evariste’s motions. Evariste, 2021 WL

303434, at *2.

B. Mr. Evariste’s State Court Appeal

Mr. Evariste raised a single substantive claim in his brief

to the Appeals Court: that his plea counsel, Attorneys Stephen

Gomes (2017 matters) and John J. O’Neil (2018 matters), failed

6 Between January and June of 2020, Mr. Evariste filed Motions

for Leave to Proceed in forma pauperis [Dkt. Nos. 4, 7]; an

Affidavit of Due Process Claim [Dkt. No. 6]; an Affidavit of

State-created-danger [Dkt. No. 9]; a Motion for Leave to Proceed

in forma pauperis and Request to issue order to retrieve lower

Court records and respondent response [Dkt. No. 10]; a Motion

for Request for Judgment [Dkt. No. 12]; an Emergency Motion for

Expedited Review and Preliminary Injunctive Relief and

Declaratory Judgment in light of new circumstances [Dkt. No.

13]; and an Urgent Motion to Reassign this action from

Magistrate to trial Judicial Officer [Dkt. No. 14].

to advise him of the immigration consequences that he, as a non-

citizen, could incur by pleading guilty to the September 2018

drug offenses. According to Mr. Evariste, neither attorney even

asked him about his immigration status. Relying on the Supreme

Court’s holding in Padilla v. Kentucky, 559 U.S. 356 (2010), Mr.

Evariste asserted that plea counsel provided him

constitutionally deficient assistance and he was entitled to

withdraw his pleas as a result.

The Appeals Court rejected Mr. Evariste’s Padilla claim

because he had “made no showing of prejudice” from counsel’s

immigration advice or lack thereof. The Appeals Court found Mr.

Evariste had presented no rational basis to conclude he would

have rejected the plea agreements, even had he known that

conviction would result in deportation. 2021 WL 303434, at *2.

Undeterred, Mr. Evariste filed three motions for

reconsideration in the Appeals Court, followed by an Urgent

Request for Judgment. The Appeals Court denied those motions

and Mr. Evariste applied for leave to obtain further appellate

review in the Supreme Judicial Court on February 10, 2021. In

his application for further appellate review, Mr. Evariste

argued again that his attorneys failed to provide him effective

assistance as defined in Padilla. He also raised a claim he had

not included in his brief to the Appeals Court: that he received

an “illegal sentence” of probation when he pled guilty in his

2018 matters because he was sentenced to overlapping terms of

probation in his 2017 and 2018 matters.7 The Supreme Judicial

Court denied further appellate review. On March 3, 2021, the

Appeals Court issued its notice stating “[t]his case is closed.

No action will be taken by the court on this or any future

filing in this matter.”

C. Mr. Evariste’s Petition for Writ of Habeas Corpus

Mr. Evariste filed his petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254 now before me on January 23, 2020,

while still actively litigating his motions for post-conviction

relief in the state courts. Because this petition — along with

his appellate and post-conviction submissions in the state

courts — was filed by him without the benefit of counsel, I

“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).

Accordingly, I read Mr. Evariste’s petition and supporting

submissions to raise the following claims for federal habeas

relief: a) that while in custody immediately before pleading

guilty in each of his matters, Mr. Evariste was denied access to

prescribed psychiatric medications that he needed in order to

7 As further discussed in Section II.A.2, Mr. Evariste referenced

his illegal sentencing claim sporadically in submissions to the

Appeals Court, but only presented the claim in post-appeal

motions for discretionary relief pursuant to MASS. R. APP. P. 27.

make the knowing and voluntary decisions; b) that he received

ineffective assistance of counsel because plea counsel failed to

suppress damaging evidence found on his person; c) that his

attorneys coerced him to enter guilty pleas; d) that he received

an “illegal” sentence of probation following his convictions on

September 27, 2018; and e) that his attorneys deprived him of

his Sixth Amendment right to counsel by failing to warn him of

the immigration consequences of his pleas.

II. DISCUSSION

A petitioner may seek habeas corpus relief from his state

convictions in federal court in circumstances specified in 28

U.S.C. § 2254, as amended by the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA). Under AEDPA, a petitioner

must demonstrate that the state courts’ adjudication of his

case:

(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). A legal or factual error by the

state courts in their analysis of a petitioner’s claims will not

necessarily entitle him to relief in federal court. A writ of

habeas corpus pursuant to Section 2254 will only issue if a

petitioner can “show that the challenged state-court ruling

rested on an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.”

Metrish v. Lancaster, 569 U.S. 351, 358 (2013) (quoting

Harrington v. Richter, 562 U.S. 86, 103 (2011)).

A. The Exhaustion Requirement

Section 2254(b) requires a petitioner to exhaust his

remedies in the state courts before he can seek federal habeas

review of his case. 28 U.S.C. § 2254(b)(1)(A); Nadworny v.

Fair, 872 F.2d 1093, 1096 (1st Cir. 1989). The federal habeas

review provided for in § 2254 exists “to rescue those in custody

from the [the state courts’] failure to apply federal rights,

correctly or at all.” Nadworny, 872 F.2d at 1096. Before

resorting to this rescue mechanism, a petitioner must present

the factual and legal bases of his federal claims to the state

courts so that they are afforded the first opportunity to

consider the relevant federal rights and, if appropriate, grant

relief. Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir. 1997).

This exhaustion requirement serves “the interests of comity and

federalism” that are essential to federal habeas corpus review

under AEDPA. Clements v. Maloney, 485 F.3d 158, 162 (1st Cir.

2007); see also Rashad v. Walsh, 300 F.3d 27, 41 (1st Cir.

2002).

Accordingly, the federal courts “have enforced the

exhaustion requirement consistently and rigorously.” Adelson,

131 F.3d at 262. A petitioner’s claims will only be found

exhausted when they have been presented 1) “fairly and

recognizably,” 2) to the highest court of the state,8 3) “in such

a way as to make it probable that a reasonable jurist would have

been alerted to the existence of the federal question.” Janosky

v. St. Amand, 594 F.3d 39, 50 (1st Cir. 2010) (internal

citations and quotations omitted).

1. Mr. Evariste Failed to Exhaust Claims Raised for the

First Time Before this Court

Mr. Evariste made numerous submissions — through briefs,

affidavits, and motions — in the state courts, including in the

Appeals Court and the Supreme Judicial Court. After a careful

review of these submissions, however, I conclude that Mr.

Evariste plainly failed to exhaust nearly all of his federal

claims now raised before me.

a. Deprivation of Prescribed Medication

Mr. Evariste asserts for the first time before this court —

never having done so before the state courts considering his

motions to withdraw his pleas — that his pleas were involuntary

because he “wasn’t being provided with his prescribed mental

health medication,” while in custody just before he pled guilty.

8 “Even if the SJC declines to grant review . . . the petitioner

must have fairly presented the federal claim within the four

corners of his ALOFAR [application for discretionary leave to

obtain further appellate review to the SJC].” Janosky v. St.

Amand, 594 F.3d 39, 50 (1st Cir. 2010).

Nowhere in his brief before the Appeals Court or his application

for further appellate review before the SJC did Mr. Evariste so

much as mention being deprived of necessary psychiatric

medications. Because the factual and legal bases of this claim

have not been presented to and ruled upon by the state courts,

it will be dismissed as unexhausted.

b. Attorneys’ Failures to File Motions to Suppress

Mr. Evariste also asserts for the first time before me that

his attorneys neglected to file potentially meritorious motions

to suppress evidence seized during his arrests. Their failures,

he contends, deprived him of the effective assistance of counsel

guaranteed to him by the Sixth Amendment. Mr. Evariste assumes

that had his proposed motions to suppress been filed, he would

have “had the opportunity to get the charges [in all four

matters] dismissed on a motion to suppress.” [Dkt. No. 1 at 5.]

This claim involves a ganglion of factually complex issues that

must be developed in the state courts, specifically the state

trial court.9 Gunter v. Maloney, 291 F.3d 74, 81 (1st Cir.

9 To be clear, Mr. Evariste’s descriptions of the circumstances

of his arrests in his post-conviction motions did not “fairly

and recognizably present[] to the state courts the factual and

legal bases of this federal claim.” Adelson v. DiPaola, 131

F.3d 259, 262 (1st Cir. 1997); see Clements v. Maloney, 485 F.3d

158, 162 (1st Cir. 2007) (“It is . . . clearly inadequate to

simply recite the facts underlying a state claim, where those

facts might support either a federal or state claim.”). Such

2002)(“The factual development for an ineffective assistance

claim. . . should occur in the state court system.”). I will

not consider them for the first time in the context of his

federal habeas petition without the benefit of the state court

record and decision on the merits.

c. Coercion from Plea Counsel

Similarly, I will not consider Mr. Evariste’s claim that he

was “coerced” into pleading guilty in each of his four matters.

Although Mr. Evariste expressed discontent — in several of his

state court submissions — with his attorneys’ performance, only

now has he raised claims that his attorneys coerced him by

telling him “if he didn’t take the plea, the Commonwealth would

place him in a mental hospital” and that “the plea deal is

illegal but [he] must enter[] this plea deal he will be

considered a career offender.” These are claims that also would

require factual determinations and credibility assessments that

a court conducting a federal habeas review pursuant to Section

2254 will not undertake. See Gunter, 291 F.3d at 81.

2. Mr. Evariste Failed to Present Adequately his Illegal

Sentencing Claim to the State Courts

Mr. Evariste did not contend in his briefs and memoranda

before the Appeals Court that his 2018 sentences constituted “an

generalized descriptions of arrest circumstances do not make

legible how a motion to suppress might arise from them.

improper increase of his original sentence and resulted in a

violation of his constitutional right not to be placed in

jeopardy twice.” These claims were first raised in his post-

appeal Motion for Reconsideration or Modification of Decision

pursuant to MASS. R. APP. P. 27(a), and repeated in his

application for leave to obtain further appellate review. Those

post-appeal efforts do not satisfy the exhaustion requirement.

It is well-established that “[r]aising a claim for the

first time . . . on discretionary review is not fair

presentation for purposes of exhaustion.” Gunter, 291 F.3d at

81 (emphasis added)(citing Castille v. Peoples, 489 U.S. 346,

351 (1989)). This is what Mr. Evariste did by mounting this

claim for the first time in his Motion for Reconsideration

pursuant to MASS. R. APP. P. 27. Rule 27(e) states that “[a]ction

upon [such] a motion is in the discretion of such appellate

court,” MASS. R. APP. P. 27(e). A federal claim that first

appears in a petition pursuant to Rule 27(a), as did Mr.

Evariste’s illegal sentencing claim, has not been fairly

presented to the state courts for purposes of exhaustion. See,

e.g., Melton v. Russo, No. 1:05-cv-10905-GAO, 2007 WL 2956401,

at *4 (ECF No. 31)(D. Mass. Oct. 10, 2007) (citing Gunter, 291

F.3d at 81–82), aff'd, 322 F. App'x 3 (1st Cir. 2009). Claims

presented for the first time in an application for leave to

obtain further discretionary appellate review in the Supreme

Judicial Court fare no better under the exhaustion requirement.

Gunter, 291 F.3d at 81. Thus, Mr. Evariste’s post-appeal

motions do not satisfy his obligation to present his claim to

the state courts.10

3. Consideration of Arguably Exhausted Claims

I recognize that Mr. Evariste has made extensive, if

undisciplined, efforts to navigate the maze of state and federal

post-conviction procedures leading to federal habeas review and

has done so without counsel to explain the procedural bars to

his claims. Mr. Evariste expresses, both in his filings before

10 A petitioner may be found effectively to have exhausted claims

not fairly presented to the state courts by procedural default:

“if it is clear that the state court would hold the claim

procedurally barred,” a petitioner may be found to have

exhausted the claim. Hall v. DiPaolo, 986 F.2d 7, 10 (1st Cir.

1993) (per curiam) (quoting Harris v. Reed, 489 U.S. 255, 263

n.9 (1989)); see Melton v. Russo, 1:05-cv-10905-GAO, 2007 WL

2956401, at *4 (ECF No. 31)(D. Mass. Oct. 10, 2007) (“the

[unpresented] claim may be regarded now as effectively exhausted

because it would be procedurally barred under Massachusetts

law.”). However, a petitioner who can only demonstrate

exhaustion through procedural default must “show cause for that

default and prejudice arising therefrom before the federal court

may reach the merits of his habeas claims.” Hall, 986 F.2d at

10.

Here, Mr. Evariste’s claims based on his 2018 sentences are,

at least arguably, procedurally defaulted as issues waived on

direct appeal. See Melton, 2007 WL 2956401, at *4 n.3. As to

whether Mr. Evariste has demonstrated cause for his failure to

raise the claim in his brief to the Appeals Court, I need not

decide the question because I find, as discussed in Section

II.B.1, that he cannot show prejudice. Even had Mr. Evariste

presented his illegal sentencing claim to the Appeals Court on

direct appeal, he would not be entitled to withdraw his pleas on

that basis.

this court and the state courts, his confusion and frustration

at being continually unable to resolve the merits of this claim.

Before directing dismissal of Mr. Evariste’s petition — as

I conclude I must — I will, following my general practice,

undertake as alternative grounds for disposition of his petition

to provide Mr. Evariste with a clear explanation of the

deficiencies in the merits of his claims. Hernandez v.

Commonwealth, 234 F. Supp. 3d 316, 322 (D. Mass. 2017). “[A]s

will appear, addressing the merits now will be dispositive

favorably to the respondent and will avoid further and

unnecessary consumption of judicial resources.” Id. At this

point, I turn to explain in Section II.B.1 why Mr. Evariste’s

sentencing claim would not entitle him to withdraw his guilty

pleas, even had he exhausted his remedies in the state courts.11

I then turn in Section II.B.2 to his immigration consequences

claim, which was presented legibly to the Appeals Court, but is

unavailing.

11 I observe that Mr. Evariste referenced this same claim

repeatedly in his post-appeal motions before the Appeals Court,

in his application for SJC review, and in filings before Judge

Casper. See generally Note 3 above.

B. Mr. Evariste’s Petition Fails to Meet the Substantive

Requirements of § 2254

1. Even Had it Not Been Procedurally Barred, Mr.

Evariste’s Sentencing Claim Would Not Entitle him to

Habeas Corpus Relief

Mr. Evariste contends that his pleas entered on September

27, 2018, see Commonwealth v. Evariste, Nos. 1801CR001432,

1801CR002697 (Bos. Mun. Ct. Sept. 27, 2018), were unlawful

because “it is illegal to put two probation deal[s] together

without the first probation deal being ordered fully executed.”

[Dkt. No. 1 at 3.] Mr. Evariste reads the Supreme Judicial

Court’s decision in Commonwealth v. Holmgren, 656 N.E.2d 577

(Mass. 1995) to impose a “a statutory requirement to have a

previous plea deal ordered fully executed before entering a new

plea deal.” [Dkt. No. 1 at 4.] Mr. Evariste misapprehends the

SJC’s holding in Holmgren and the subsequent decisions that have

built upon it. See, e.g., Commonwealth v. Bruzzese, 773 N.E.2d

921 (Mass. 2002).

Holmgren does not stand for the proposition that a

probationer cannot be sentenced to a term of probation on a new

matter until his term of probation on a previous matter is

complete. 656 N.E.2d at 579. The SJC held only that “when

probation is revoked, the original suspended sentence must be

imposed[;]” the revoking judge is not free to change the term of

incarceration that was initially imposed and suspended. Id.

(emphasis added). In Bruzzese, the SJC extended that rule to

the context of bundled, concurrent, suspended sentences with its

holding that, when the judge orders sentences to be served

concurrently and decides subsequently to revoke probation and

execute at least one suspended sentence, “the judge has no

choice but to order the execution of all” concurrent sentences.

773 N.E.2d at 926. In other words, under state law a defendant

could not be ordered to serve a greater term of incarceration

than that contemplated by the original concurrent suspended

sentence. Id.

But Holmgren and Bruzzese do not support Mr. Evariste’s

petition for a federal writ of habeas corpus. In August of

2017, Mr. Evariste received concurrent two-year suspended

sentences and two-year terms of probation, Commonwealth v.

Evariste, Nos. 1701CR001418, 1701CR003151 (Bos. Mun. Ct. Aug. 9,

2017). While serving terms of probation on the 2017 matters,

Mr. Evariste was convicted of two new offenses in September of

2018. Commonwealth v. Evariste, Nos. 1801CR001432 and

1801CR002697 (Bos. Mun. Ct. Sept. 27, 2018). Consequently, the

court simultaneously found Mr. Evariste had violated the terms

of his probation from his 2017 matters. Unlike the defendants

in Holmgren and Bruzzese, however, Mr. Evariste’s probation in

his 2017 matters was not revoked and he was not ordered to serve

the balance of those suspended sentences. Instead, the judge

merely extended Mr. Evariste’s term of probation from his 2017

convictions from August 9, 2017 to March of 2020.12

Mr. Evariste was not sentenced to a term of imprisonment

greater than was originally imposed and suspended in August of

2017. Mr. Evariste received separate sentences for his 2018

convictions, including another term of probation that overlapped

with his first term of probation. The SJC’s holdings in

Holmgren and Bruzzese dealt with alterations to an earlier-

imposed sentence, not with the imposition of a new sentence for

a new conviction. This appears consistent with state law. More

importantly for the matter before me, there is no clearly

established federal law that would prevent Mr. Evariste from

serving simultaneously multiple, separate terms of probation

stemming from separate charges. Mr. Evariste would not,

therefore, as a matter of federal law, be entitled to withdraw

his guilty pleas based on the sentences he received in these

matters.

2. Mr. Evariste Fails to Demonstrate that the Appeals

Court Unreasonably Applied the Supreme Court’s Holding

in Padilla

Mr. Evariste contends that various acts and omissions by

his attorneys deprived him of his Sixth Amendment right to the

12 I note that “[u]nder Massachusetts law the court has the power

to extend . . . probation” upon finding the defendant violated

probation. Commonwealth v. Collins, 583 N.E.2d 262, 264 (Mass.

App. Ct. 1991).

competent assistance of counsel. See Strickland v. Washington,

466 U.S. 668, 687 (1984); Hill v. Lockhart, 474 U.S. 52, 59

(1985). Only Mr. Evariste’s claim that counsel failed to warn

him of the immigration consequences of his pleas was presented

to the Appeals Court and is properly before me. To the extent

that Mr. Evariste’s petition can be said to have raised a claim

that the Appeals Court unreasonably applied the Supreme Court’s

holding in Padilla,13 I reject that contention.

An unreasonable application of clearly established

principles of federal law occurs when:

the state court correctly identifies the governing

legal principles, but (i) applies those principles to

the facts of the case in an objectively unreasonable

manner; (ii) unreasonably extends clearly established

legal principles to a new context where they should

not apply; or (iii) unreasonably refuses to extend

established principles to a new context where they

should apply.

Sleeper v. Spencer, 510 F.3d 32, 38 (1st Cir. 2007). Applying

this “strict” standard, Cronin v. Comm'r of Prob., 783 F.3d 47,

51 (1st Cir. 2015), I will “only upset the Appeals Court's

13 Mr. Evariste’s petition devotes only one sentence to his claim

that plea counsel “failed to discuss [non-citizen] status

warning[s]” with him and thus provided ineffective assistance.

[Dkt. No. 1 at 5.] Nevertheless, because Mr. Evariste filed his

petition without the benefit of counsel, I construe each claim

in his petition liberally. Erickson v. Pardus, 551 U.S. 89, 93

(2007)(per curiam). I read his passing reference as a claim

that the Appeals Court unreasonably applied the law of Padilla

v. Kennedy, 559 U.S. 356, 371 (2010) by holding Mr. Evariste

suffered no prejudice from plea counsel’s failure to discuss his

immigration status.

decision if [I] conclude that it falls outside of the broader

range of reasonable judgements. . . .” See Brown v. Ruane, 630

F.3d 62, 73 (1st Cir. 2011) (internal quotation marks omitted)

(quoting Locke v. Cattell, 476 F.3d 46, 51 (1st Cir. 2007)). I

consider the reasoning of the Appeals Court in light of the

Supreme Court’s definition of constitutionally ineffective

assistance, outlined in Strickland v. Washington and refined in

Padilla v. Kennedy.

Strickland provides a two-prong test that a defendant must

meet to receive a new trial: “First, the defendant must show

that counsel's performance was deficient. . . . Second, the

defendant must show that the deficient performance prejudiced

the defense.” 466 U.S. at 687. A defendant who pled guilty

based on the incompetent advice of counsel demonstrates

prejudice by raising “a reasonable probability that, but for

counsel's errors, he would not have pleaded guilty and would

have insisted on going to trial.” Hill, 474 U.S. at 59.

In Padilla, the Supreme Court clarified that a defendant

satisfies the first prong of Strickland by showing that counsel

failed to advise him accurately that his plea carried a risk of

deportation. 559 U.S. at 374. A defendant may only withdraw

his guilty plea on these grounds, however, if he can show that

he was prejudiced by that failure. He must establish that there

is at least a reasonable probability that, had he been provided

accurate warnings regarding the immigration consequences of his

pleas, he would have chosen to go to trial rather than suffer

those consequences. Put differently, a defendant “must convince

the court that a decision to reject the plea bargain would have

been rational under the circumstances.” Id. at 372.

Here, the Appeals Court held that Mr. Evariste did not meet

his burden of showing he was prejudiced by counsels’ alleged

failures to discuss the immigration consequences of his pleas.

The Appeals Court noted that Mr. Evariste “ma[de] no viable

argument in his brief that he had a rational reason to reject

the plea agreements . . . [beyond] a general statement, without

any factual support, that he might have been acquitted because

proof beyond a reasonable doubt is a more stringent standard.”

Commonwealth v. Evariste, 2021 WL 303434, at *2.

I have thoroughly reviewed Mr. Evariste’s filings to the

Appeals Court, and those he presents in support of his habeas

petition before me. I find no reason to conclude that the

Appeals Court unreasonably applied the federal principles of law

enunciated in Strickland or Padilla. The conclusion of the

Appeals Court that Mr. Evariste “fail[ed] to allege or support

any claim of identifiable prejudice” fell within the range of

reasonable judgments in these circumstances. Id. Consequently,

I will leave the Appeals Court’s decision undisturbed. See

Hardy v. Cross, 565 U.S. 65, 72 (2011)(per curiam)(“Under AEDPA,

if the state-court decision was reasonable, it cannot be

disturbed.”).

III. CONCLUSION

Mr. Evariste’s petition for a writ of habeas corpus, and

his supporting submissions, present a collection of claims that

have not been presented to the state courts in accordance with

the requirements of 28 U.S.C. § 2254; moreover, to the extent

they were presented, they do not warrant the extraordinary

remedy of federal habeas corpus relief. For these reasons more

fully set forth above, I DISMISS Mr. Evariste’s Petition for

Writ of Habeas Corpus [Dkt. No. 1].14

In accordance with First Circuit Local Rule 22.0(a), I

hereby deny a certificate of appealability concerning the denial

of petitioner's motion under 28 U.S.C. § 2254. The petitioner

has not made a substantial showing of the denial of a

constitutional right with respect to his claims.

/s/ Douglas P. Woodlock_______

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE

14 Because I will dismiss Mr. Evariste’s federal habeas petition,

I need not address his additional related motions restating,

purporting to support, and requesting judgment on his claims for

relief pursuant to § 2254. I have thoroughly reviewed these

motions in my evaluation of Mr. Evariste’s habeas petition and

find that they raise no additional meritorious grounds for his

requested relief.