# Evariste v. COMMONWEALTH OF MASSACHUSETTS

> District Court, D. Massachusetts · May 23, 2022

URL: https://www.frixlaw.com/law-library/cases/10200300

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** May 23, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10200300

## Opinion text

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(unpublished disposition).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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10200300. Public record. Not legal advice.