United States District Court, D. Rhode Island
ANDREW J. SMITH
STATE OF RHODE ISLAND
REPORT AND RECOMMENDATION
LINCOLN D. ALMOND UNITED STATES MAGISTRATE JUDGE
before me for a report and recommendation (28 U.S.C. §
636(b)(1)(B)) is the State's Motion to Dismiss. (ECF Doc.
No. 12). Petitioner Andrew J. Smith objects. (ECF Doc. No.
14). For the reasons outlined below, I recommend that the
State's Motion to Dismiss be GRANTED.
late 2017, Petitioner has filed ten civil actions in this
District. All of his filings relate to Rhode Island State
Court divorce and criminal proceedings involving Petitioner.
To date, seven of the ten cases have been dismissed for
failing to state viable federal claims or for other pleading
instant case, Petitioner alleges that his state court
conviction and sentence for possession of child pornography
is unconstitutional, and he asks this Federal Court to vacate
the state sentence and award him compensatory and punitive
damages against the State for “unconstitutionally
incarcerating [him].” (ECF Doc. No. 1 at p. 19). On
February 15, 2019, Chief Judge William E. Smith confirmed
that this action is properly treated as one seeking habeas
relief under 28 U.S.C. § 2254 citing Preiser v.
Rodriguez, 411 U.S. 475, 489 (1973) (“[A] state
prisoner challenging his underlying conviction and sentence
on federal constitutional grounds in a federal court is
limited to habeas corpus.”). The State now moves to
dismiss this habeas corpus action because Petitioner has not
exhausted his state court remedies as required by 28 U.S.C.
§ 2254(b)(1)(A). (ECF Doc. No. 12).
2254(b)(1) and (c) codifies the exhaustion requirement in
habeas cases brought by state prisoners; that section
(b) (1) An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a State
court shall not be granted unless it appears that--
(A) the applicant has exhausted the remedies available in the
courts of the State;
* * *
(c) An applicant shall not be deemed to have exhausted the
remedies available in the courts of the State, within the
meaning of this section, if he has the right under the law of
the State to raise, by any available procedure, the question
United States Supreme Court has explained that this section
mandates that a state prisoner “give the state courts
an opportunity to act on his claims before he presents those
claims to a federal court in a habeas petition.”
O'Sullivan v. Boerckel, 526 U.S. 838, 842
(1999). The petitioner bears a “heavy burden” to
demonstrate satisfaction of the exhaustion requirement.
Coningford v. Rhode Island, 640 F.3d 478, 482
(1st Cir. 2011); Barresi v. Maloney, 296
F.3d 48, 51 (1st Cir. 2002); Adelson v.
DiPaola, 131 F.3d 259, 262 (1st Cir. 1997).
Failure to shoulder this burden “is ordinarily fatal to
the prosecution of a federal habeas case.”
Coningford, 640 F.3d at 482; see also Jackson v.
Coalter, 337 F.3d 74, 86 (1st Cir. 2003).
exhaustion doctrine requires a habeas petitioner to
“fairly present” his federal constitutional claim
to the state courts, “thereby alerting that court to
the federal nature of the claim.” Baldwin v.
Reese, 541 U.S. 27, 29 (2004); see also Fortini v.
Murphy, 257 F.3d 39, 44 (1st Cir. 2001). The
“substance” of the claim, Picard v.
Connor, 404 U.S. 270, 278 (1971) - in other words,
“both the factual and legal underpinnings of [the]
claim, ” Nadworny v. Fair, 872 F.2d 1093, 1096
(1st Cir. 1989) - must be presented. See
Anderson v. Harless, 459 U.S. 4, 6 (1982) (per
case, the record is clear that Petitioner has not exhausted
his state court remedies. Petitioner's direct appeal of
his State possession of child pornography conviction remains
pending in the Rhode Island Supreme Court. See State v.
Andrew Smith, No. SU-2018-0064-CA (ECF Doc. No. 12-2).
Petitioner filed a lengthy Objection to the State's
Motion to Dismiss which focuses on his positions that R.I.
Gen. Laws § 11-9-1.3 (criminalizing possession of child
pornography) is unconstitutional, violative of the First
Amendment, and a prohibited act of censorship. (See
ECF Doc. No. 14). He also challenges the factual basis for
the jury's guilty verdict. Id. Petitioner
completely fails to address the State's failure to
exhaust argument or to rebut the State's showing that he
has not yet exhausted his state court remedies. In fact,
Petitioner appends a copy of the “Pre-Brief” his
appellate counsel filed with the Rhode Island Supreme Court
in connection with his pending appeal. (ECF Doc. No. 14-1).
Since the record is clear and unrebutted that ...