Balcacer v. Divris

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
JOSE BALCACER, 	)
)
Petitioner, 	)
)
v. 	) 	Civil No. 4:23-CV-11843-MRG
)
MATTHEW DIVRIS, 	)
)
Respondent. 	)
)
ORDER ON RESPONDENT’S MOTION TO DISMISS THE AMENDED PETITION
(ECF No. 30)
GUZMAN, J.
Before the Court is Respondent Matthew Divris’s (“Divris”) Motion to Dismiss Petitioner
Jose Balcacer’s (“Balcacer”) Amended Petition for the Writ of Habeas Corpus [ECF Nos. 30; 27].
Divris argues that the Court should dismiss the petition because Balcacer has failed to exhaust his
state court remedies for certain claims. Balcacer is currently incarcerated at North Central
Correctional 	Institution 	(“NCCI”), 	and 	Divris 	is 	appearing 	in 	his 	official 	capacity 	as
Superintendent of NCCI. For the following reasons, the motion is GRANTED. The Court also
GRANTS a certificate of appealability to Balcacer for Grounds Two, Three, Seven, and Eight.
I. 	BACKGROUND
A. Relevant Facts
The relevant facts are as follows: Balcacer owned a property located at 2 McIntyre Court
in Peabody, Massachusetts, and resided on the second floor-apartment with his then-wife and their
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three children. [ECF No. 16-3 at 3].1 Balcacer rented the first-floor apartment to Sergio Hernandez
and had a friendly relationship with Hernandez’s cousin, Robert Navarro. [Id. at 3-4]. Navarro,
who was employed by Balcacer in his automotive detailing business, occasionally used Balcacer’s
wife’s car. [Id. at 4].
In September 2012, local police and the federal Drug Enforcement Administration began
an investigation into Navarro concerning controlled drug purchases. [Id. at 4]. Interest in Jose
Balcacer arose because Navarro used Balcacer’s wife’s white Mitsubishi during several of these
transactions. [Id.] On October 16, 2012, Navarro was involved in another controlled purchase; he
left 2 McIntyre Court, traveled to Northshore Mall with his girlfriend, and completed the
transaction there. [Id. at 5]. Later that day, Navarro arranged a second purchase and requested a
ride from Balcacer to meet the buyer at Macy’s. [Id.] Balcacer, who maintains he was unaware of
Navarro’s intentions or his drug dealings, drove him to Northshore Mall and stayed at Macy’s
while Navarro proceeded with the transaction. [Id. at 6-7]. The authorities surveilled Navarro and
Balcacer’s movements throughout the day. [Id. at 5-7].
Officers arrested Balcacer at Macy’s, suspecting him of acting as a lookout. [Id.] At the
time, they seized his car keys and conducted a warrantless search of his parked car, where they
found house keys to 2 McIntyre Court. [Id. at 7]. Subsequently, a search warrant was executed at
this address, leading to the discovery of records belonging to Balcacer, as well as equipment used
to dispense and “cut” heroin, located on the first floor. [Id. at 7-8, 23-26]. A few months later, a
grand jury indicted Balcacer, charging him with one count of trafficking in 200 grams or more of
heroin and one count of trafficking in 100 grams or more of heroin. [ECF No. 31 at 2].
B. Procedural History
1 Unless otherwise noted, all pin cites refer to ECF pagination.
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Before trial, Balcacer filed a motion to dismiss and three motions to suppress, all of
which were denied. [ECF No. 16-4 at 2]. In 2015, a jury convicted Balcacer on both counts of
the indictment, sentencing him to twelve years for the first count and eight years for the second.
[Id.] Since his conviction, Balcacer has filed two motions for a new trial,2 twice received
appellate review by the Massachusetts Appeals Court (“MAC”),3 and filed two Applications for
Leave to Obtain Further Appellate Review (“ALOFAR”) with the Massachusetts Supreme
Judicial Court (“SJC”).4 On August 11, 2023, Balcacer filed an initial petition for Writ of Habeas
Corpus. [ECF No. 1]. Divris filed a motion to dismiss the petition on October 16, 2023. [ECF
No. 15]. On June 18, 2024, this Court granted in part and denied in part Divris’s motion,
allowing Balcacer to amend his petition and remove all unexhausted claims. [ECF No. 18]. The
Court also granted a certificate of appealability as to Grounds Four, Five, and Nine. [Id.]
Balcacer appealed to the First Circuit, but, on September 27, 2024, the Appeals Court issued an
Order for Balcacer to show cause why the appeal should not be dismissed for lack of jurisdiction
as the judgment from this Court was not final, given that the Court granted leave to amend.
[Appellate Case No. 24-1768]. On further research, Balcacer voluntarily dismissed his appeal
and filed in this Court a motion for reconsideration and a motion to stay. [ECF Nos. 22, 23]. On
January 30, 2025, this Court denied the motion for reconsideration as moot but granted in part
the motion to stay, advising Balcacer to file an amended petition that is nearly identical to the
original petition so the Court could make a final ruling and provide a certificate of appealability
2 Hampden Superior Court Docket 1377CR00088, Dkt. No. 80 & 99.
3 Commonwealth v. Balcacer, No. 18-P-1621, 142 N.E.3d 91 (Table), 2020 WL 1158014, at *1
(Mass. App. Ct. March 10, 2020) (unpublished opinion) (affirming conviction); Commonwealth
v. Balcacer, No. 22-P-683, 209 N.E.3d 79 (Table), 2023 WL 3028313, at *2 (Mass. App. Ct. April
21, 2023) (unpublished opinion) (affirming denial of motion for new trial).
4 	Commonwealth 	v. 	Balcacer, 	149 	N.E.3d 	708 	(Mass. 	2020) 	(Table) 	(FAR 	denied);
Commonwealth v. Balcacer, 215 N.E.3d 392 (Mass. 2023) (Table) (FAR denied).
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properly. [ECF No. 26]. On March 7, 2025, Balcacer filed the current Amended Petition for Writ
of Habeas Corpus. [ECF No. 27]. On November 24, 2025, Respondent filed a motion to dismiss
Balcacer’s Amended Petition. [ECF No. 30]. On December 15, 2025, Petitioner filed an
opposition to the motion to dismiss. [ECF No. 34].
II. 	LEGAL STANDARDS
“To survive a motion to dismiss under the Rule 12(b)(6) standard, the [petition] must
‘contain enough factual material to raise a right to relief above the speculative level . . . and state
a facially plausible legal claim.” Schmitt v. Bowers, No. 23-cv-13203-ADB, 2024 U.S. Dist.
LEXIS 64532, at *1 (D. Mass. Apr. 9, 2024) (quoting Smith v. Spaulding, No. 19-cv-10112, 2019
U.S. Dist. LEXIS 211518, at *2 (D. Mass. Dec. 9., 2019). The “Court must accept as true all well-
pleaded facts, analyze those facts in the light most favorable to the plaintiff, and draw all
reasonable factual inferences in favor of the [Petitioner].” Levine v. U.S. Dep’t of Fed. Bureau of
Prisons, No. 20-cv-11833-ADB, 2021 U.S. Dist. LEXIS 32202, at *3 (D. Mass. Feb. 22, 2021).
In Rose v. Lundy, the Supreme Court instituted a “total exhaustion” rule, which requires
district courts to dismiss habeas petitions containing both unexhausted and exhausted claims.5 455
U.S. 509, 522 (1982). “The exhaustion requirement, which codified preexisting law, is born of the
principle ‘that as a matter of comity, federal courts should not consider a claim in a habeas corpus
petition until after the state courts have had an opportunity to act.’” Putnam v. Alves, No. 22-
10038-FDS, 2023 U.S. Dist. LEXIS 40483, at *8 (D. Mass. Mar. 10, 2023) (quoting Coningford
v. Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011)). It is the responsibility of the petitioner to show
that he “fairly and recognizably presented to the state courts the factual and legal bases of [his]
5 Petitions that contain both exhausted and unexhausted claims are referred to as “mixed petitions.”
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federal claim” in a manner that is “face-up and squar[e].” Adelson v. DiPaola, 131 F.3d 259, 262
(1st Cir. 1997).
To meet the exhaustion requirement, a “petitioner must demonstrate that he tendered each
claim ‘in such a way as to make it probable that a reasonable jurist would have been alerted to the
existence of the federal question.’” Id. (quoting Scarpa v. Dubois, 38 F.3d 1, 6 (1st Cir. 1994).
This can be achieved through “reliance on a specific provision of the Constitution, substantive and
conspicuous 	presentation 	of 	a 	federal 	constitutional 	claim, 	on-point 	citation 	to 	federal
constitutional precedents, identification of a particular right specifically guaranteed by the
Constitution, and the assertion of a state-law claim that is functionally identical to a federal
constitutional claim.” Coningford, 640 F.3d at 482. “Where, as here, a state’s highest court offers
discretionary review, a petitioner must present that court with the opportunity to review the federal
claim to have exhausted available state remedies.” Durand v. Goguen, 388 F. Supp. 3d 54, 59 (D.
Mass. 2019) (quoting Josselyn v. Dennehy, 475 F.3d 1, 3 (1st Cir. 2007)). As the SJC offers
discretionary review over the MAC, “exhaustion requires that the issue must be raised ‘within the
four corners of the ALOFAR.’” Id. (quoting Mele v. Fitchburg Dist. Ct., 850 F.2d 817, 820 (1st
Cir. 1988)). Where the SJC summarily denied petitioner’s FAR application without explaining the
reasons for rejecting the petitioner’s claims, this Court looks to the last reasoned state court
decision (here, the MAC’s) and assumes it sets forth the substance of “the grounds for the higher
court’s decision.” See Wilson v. Sellers, 584 U.S. 122, 132(2018).
Petitioners must exhaust both the legal theory and the factual allegations of their habeas
claim. Fahey v. Dickhaut, No. 92-40131-NMG, 1994 U.S. Dist. LEXIS 9955, at *6 (D. Mass. July
15, 1994); Gagne v. Fair, 835 F.2d 6, 9 (1st Cir. 1987) (“if a petitioner ‘presents new legal theories
or new factual allegations in federal court that transform his claim or cast it in a significantly
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different light,’ the claim is not exhausted.”) (quoting Domaingue v. Butterworth, 641 F.2d 8, 12
(1st Cir. 1981))). “Petitioner[s] [are] not precluded from some reformulation of the claims [they]
made in the state courts, since exhaustion requires only that ‘the substance of a federal habeas
corpus claim must first be presented to the state courts.’” Lanigan v. Maloney, 853 F.2d 40, 44
(1st Cir. 1988) (quoting Williams v. Holbrook, 691 F.2d 3, 6 (1st Cir. 1982)). However, the First
Circuit has also cautioned that ‘“some claims of constitutional violations – such as ineffective
assistance of counsel or unfair trial – encompass an almost limitless range of errors,’ and thus the
exhaustion analysis with respect to the factual allegations is more stringent.” Fahey, 1994 U.S.
Dist. LEXIS 9955, at *6 (quoting Lanigan, 853 F.2d at 45). Accordingly, a “petitioner must present
the state court with precisely the same underpinnings of his ineffective assistance of counsel
argument that the petitioner wishes to use to support his claim in his federal habeas corpus
petition.” Id. at *7 (citing Laws v. Armontrout, 834 F.2d 1401, 1412 (8th Cir. 1987)).
The First Circuit has not yet decided whether a claim of ineffective assistance of counsel
exhausts both the Sixth Amendment claim as well as the underlying constitutional violation.
According to law in the District of Massachusetts, “[p]resenting a claim of ineffective assistance
of counsel for failure to raise a constitutional claim does not serve to exhaust the underlying claim
for purposes of federal habeas review.” DeGennaro v. Dolan, No. 18-10960, 2018 U.S. Dist.
LEXIS 204688, at *6 (D. Mass. Dec. 4, 2018) (citations omitted). Other circuits have similarly
indicated 	that 	ineffective 	assistance 	of 	counsel 	claims 	are 	distinct 	from 	the 	underlying
constitutional claims for the purposes of assessing exhaustion. See Castillo v. McDaniel, 120 F.
App’x 59, 64 (9th Cir. 2005) (“[F]or purposes of exhaustion, an ineffective assistance of counsel
claim is separate and independent from the underlying constitutional violation upon which it is
based.”); see also Gattis v. Snyder, 278 F.3d 222, 237 n.6 (3d Cir. 2002) (“The District Court states
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that [Petitioner] presented this [allegation of due process violation] to the Delaware Supreme Court
as one of ineffective assistance of trial counsel, evidently concluding that that would be sufficient
for exhaustion purposes. Aside from the fact that it would not be sufficient (because it involves a
completely different legal theory), we do not see in the record where it was expressly presented to
the [state court].” (citations omitted)).
In the years since Rose v. Lundy was decided, district courts are no longer required to
automatically dismiss habeas petitions that contain a mix of exhausted and unexhausted claims.
Instead, courts have three options for handling such petitions: (1) dismiss the petition without
prejudice, (2) stay the case while the petitioner exhausts state court remedies, or (3) allow the
petitioner to amend their petition and voluntarily dismiss the unexhausted claims. DeLong v.
Dickhaut, 715 F.3d 382, 386-87 (1st Cir. 2013). The First Circuit recommends the third option as
best practice, encouraging district courts to give petitioners the opportunity to dismiss unexhausted
claims. Id. at 387. However, the First Circuit has also stated that a habeas petition that presents
facts to the federal court different from those presented to the state courts should be dismissed,
allowing state courts the initial opportunity to address the claim. Fahey, 1994 U.S. Dist. LEXIS
9955, at *7.
III. 	DISCUSSION
Balcacer raises eight (8) separate grounds in support of his habeas claim: (1) ineffective
assistance of trial counsel, (2) improper testimony that exceeded the scope of a lay witness, (3)
improper opening and closing arguments that tainted the jury, (4) withholding of exculpatory
evidence, (5) eliciting false testimony from a witness, (6) ineffective assistance of appellate
counsel, (7) hearsay violating his right to confront witnesses, and (8) cumulative due process
deprivation. [ECF No. 27 at 24-38]. For his claim to proceed, each ground, including its legal and
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factual basis, must have been raised within the four corners of either his 2020 or 2023 ALOFAR.
See Durand, 388 F. Supp. 3d at 59 (quoting Mele, 850 F.2d at 820). The Court has identified that
at least one of Balcacer’s grounds for relief remains unexhausted. For judicial economy, this
opinion will provide a detailed analysis of each ground, whether raised by the Respondent or not.
A. 	Ground One – Ineffective Assistance of Trial Counsel
The first ground Balcacer raises in his habeas petition is the ineffective assistance of trial
counsel, citing violations of the Sixth and Fourteenth Amendments. [ECF No. 27 at 24]. He
presents ten different factual bases to support this claim: (#1) failure to introduce tax returns, (#2)
failure to suppress Natasha Balcacer’s statements, (#3) failure to obtain a limiting instruction as to
Agent 	Karamourtopoulos, 	(#4) 	failure to 	object 	to 	inadmissible identification, 	(#5) 	poor
questioning that led to improper testimony, (#6) failure to call Navarro, (#7) failure to object to
hearsay, (#8) failure to call Hernandez, (#9) failure to object to the Commonwealth’s use of the
collective knowledge doctrine, and (#10) cumulative failures by trial counsel. [Id. at 24-26].
The Court finds that all factual allegations were adequately presented to the SJC. The 2020
ALOFAR included exhausted arguments regarding (#1) the failure to submit tax returns and (#2)
the failure to suppress Natasha Balcacer’s statements. [ECF No. 16-3 at 9-10]. The 2023 ALOFAR
documented exhausted arguments (#6 & #8) regarding the failure to call Hernandez and Navarro,
(#3) the failure to obtain a limiting instruction as to Agent Karamourtopoulos, (#4 & #7) the failure
to object to inadmissible identification and hearsay, (#5) poor questioning that led to improper
testimony, and (#9) the failure to object to the collective knowledge doctrine. [ECF No. 16-4 at
17-20]. The 2023 ALOFAR also raises the argument that (#10) these errors cumulatively deprived
Balcacer of effective assistance of counsel. [Id. at 17]. Each of these arguments was classified
under the category “ineffective assistance of counsel” and cited to Strickland v. Washington, 466
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U.S. 668 (1984), which establishes the right of criminal defendants to reasonably effective legal
counsel at trial. [See, e.g., ECF No. 16-3 at 10; 16-4 at 17]. This classification and reference would
have sufficiently alerted a reasonable jurist to the Sixth Amendment issues, thus confirming that
these claims are exhausted. See Adelson, 131 F.3d at 262.
Accordingly, the Court finds that Ground One, “ineffective assistance of counsel,” is
exhausted. However, because the Court finds other grounds below to be unexhausted, Balcacer
presents a mixed petition, which cannot be adjudicated. See Delong, 715 F.3d at 387. Therefore,
Ground One is DISMISSED without prejudice.6
B. 	Ground Two – Improper Testimony of a Lay Witness
Balcacer’s second ground for relief alleges violations of his Fifth, Sixth, and Fourteenth
Amendment right during his trial due to improper opinion testimony from law enforcement officers
and a confidential informant. [ECF No. 27 at 27]. Specifically, Agent Coletti expressed his
“professional opinion” that the first floor was a “stash” area and labeled Balcacer as the
6 As articulated in the Legal Standard, a district court may not adjudicate a mixed petition. See
Delong, 715 F.3d at 387. While the First Circuit recommends allowing the petitioner to amend
their petition and voluntarily dismiss the unexhausted claims, this Court opts to dismiss the petition
without prejudice. This is because the Court has already afforded Balcacer the opportunity to
amend his petition once, [ECF No. 18], but expressly ordered him to include in his amended
petition 	grounds 	that 	are 	based 	on 	ineffective 	assistance 	of 	counsel 	and 	an 	underlying
constitutional violation, regardless of the prior order indicating these grounds were not exhausted,
[ECF No. 26]. The Court’s prior order [ECF No. 18] on Respondent’s first motion to dismiss
intended to certify for appeal the question of whether embedding a constitutional claim within an
ineffective assistance of counsel claim serves to exhaust both the ineffective assistance of counsel
claim and the underlying constitutional claim. However, in allowing Petitioner to amend his
petition, the Court retained jurisdiction over the petition such that it was not ripe for consideration
by the First Circuit. Accordingly, in this order, the Court indicates which grounds were exhausted
or not exhausted according to law in the District of Massachusetts which holds “[p]resenting a
claim of ineffective assistance of counsel for failure to raise a constitutional claim does not serve
to exhaust the underlying claim for purposes of federal habeas review.” DeGennaro, 2018 U.S.
Dist. LEXIS 204688, at *6 (citations omitted). But the Court refrains from adjudicating the merits
of the claims pending review and possible remand by the First Circuit.
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“organizational head.” [Id.] Detective Ricci, testifying that he was a “drug detective,” discussed
the heroin market. [Id.] Detective Donahue interpreted an Excel sheet found in the first-floor
apartment as an “owe sheet,” and the confidential informant discussed the role of “testers” and the
need for transactional security during sales. [Id. at 28]. In the motion to dismiss Balcacer’s original
petition, Divris argued that these claims are unexhausted because they are “nested” within the
broader “ineffective assistance of counsel” claim. [ECF No. 16 at 7].7 In response, Balcacer
requested that the court apply the “liberal pleading standard” and find the opposite—that the claim
was exhausted through its inclusion in the “ineffective assistance of counsel” claim. [ECF No. 17
at 9].
Fair presentment requires that a claim be presented “face-up” to a state’s highest court.
Adelson, 131 F.3d at 262 (quoting Martens, 836 F.2d at 717.). In his 2023 ALOFAR, Balcacer
argues that “[t]his testimony’s erroneous admission deprived Balcacer his Fifth, Sixth, and
Fourteenth Amendment rights to a fair trial and impartial jury where officer’s gave personal
opinion, without foundation, and drew conclusions that for the jury to decide.” [ECF No. 16-4 at
21 (citing US v. Sanabria, 645 F.3d 505, 516 (1st Cir. 2011)]. Although this statement suggests to
a reasonable jurist a potential violation of Petitioner’s rights, it was presented within the context
of ineffective assistance of appellate counsel. [Id.] Therefore, because Balcacer’s constitutional
claims were framed within an ineffective assistance of counsel argument, they were not presented
7 In accordance with this Court’s order on January 30, 2025 [ECF No. 26], Balcacer’s Amended
Petition raised essentially the same grounds as his original petition. The Court notes here that
Ground Two of Balcacer’s Amended Petition is identical to Ground Four of the original petition.
[ECF No. 27; ECF No. 1]. Respondent “incorporate[d] by reference all the points and
authorities” in his original motion to dismiss. [ECF No. 31 at 5]. Due to the similarities between
the original and Amended Petition, the Court considers arguments made by the Respondent in
his original motion to dismiss, [ECF No. 16], to the extent they apply to the Amended Petition.
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in a manner that sufficiently alerted the SJC to the need to independently resolve these
constitutional issues. See DeGennaro, 1028 U.S. Dist. LEXIS 204688, at *6.
Consequently, Ground Two is unexhausted and is DISMISSED without prejudice.
C. 	Ground Three – Improper Opening Statement and Closing Argument
Next, Balcacer alleges prejudicial testimony tainted the jury due to improper opening and
closing arguments by the prosecutor. [ECF No. 27 at 29]. He mentions this issue in both
ALOFARs; however, both fail to exhaust the underlying constitutional claim. In his 2020
ALOFAR, Balcacer raised “errors in the Commonwealth’s arguments at opening and closing” as
a ground of appeal but did not present a federal basis for the claim. [ECF No. 16-3 at 8]. While
there is no strict requirement for demonstration the federal dimensions of a claim, it typically
necessitates a reference to a constitutional amendment, citation of a Supreme Court case, or
reliance on a state case that involves federal grounds. See Coningford, 640 F.3d at 482. Balcacer’s
2020 ALOFAR lacks any such indications. Meanwhile, the 2023 ALOFAR raises this claim within
the context of ineffective assistance of appellate counsel. [ECF No. 16-4 at 21]. As discussed
supra, raising a claim within an ineffective assistance of counsel claim only exhausts it as to the
right 	to 	reasonably 	effective counsel, 	not 	the underlying 	constitutional 	claim 	itself. 	See
DeGennaro, 1028 U.S. Dist. LEXIS 204688, at *6.
Therefore, Ground Three is unexhausted and is DISMISSED without prejudice.
D. 	Ground Four – Withheld Exculpatory Evidence
Balcacer’s 	fourth 	assertion is that the prosecution withheld exculpatory evidence,
specifically Hernandez’s statement, contact, and identifying information. [ECF No. 27 at 31].
While Divris does not argue that this ground is unexhausted, the Court will still examine whether
it is exhausted.
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To exhaust a claim, Balcacer must have raised it within the four corners of one of the
ALOFARs and clearly informed a reasonable jurist of the federal question. See Durand, 388 F.
Supp. 3d at 59 (quoting Mele, 850 F.2d at 820). His 2023 ALOFAR does just that—it raises that
“[s]kirting his ethical and constitutional duties, the ADA . . . failed to record exculpatory
evidence.” [ECF No. 16-4 at 11]. He then cites to Brady v. Maryland, 373 U.S. 83 (1963), the
landmark federal case establishing the duty of a prosecutor to give exculpatory evidence to a
criminal defendant. This citation clearly informs a reasonable jurist of the federal dimensions of
this claim.
Thus, Ground Four is exhausted. However, because there is a mixed petition, which cannot
be adjudicated, Ground Four is DISMISSED without prejudice. See Delong, 715 F.3d at 387.
E. 	Ground Five – Knowingly False Statement Elicited by Prosecutor
Balcacer’s fifth ground for relief involves the prosecutor’s elicitation of knowingly false
statements, which has not been expressly contested by Divris regarding its exhaustion. [ECF No.
27 at 32; ECF No. 31 at 1]. 	Nonetheless, the Court will still consider whether it is indeed
exhausted.
Ground Five involves Agent Coletti testifying that he observed Navarro entering and
exiting 2 McIntyre Court during every drug deal. [Id.] Balcacer’s 2023 ALOFAR states that “[t]he
Commonwealth elicited perjury from Agent Coletti,” and cites Napue v. Illinois, 360 U.S. 264
(1959), the leading case on convictions obtained through false testimony. [ECF No. 16-4 at 16].
This citation would have alerted a reasonable jurist on the SJC to the federal due process issue
arising from the false testimony.
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Therefore, Ground Five is exhausted. However, because there is a mixed petition, which
cannot be adjudicated, Ground Five is DISMISSED without prejudice. See Delong, 715 F.3d at
387.
F. 	Ground Six – Ineffective Assistance of Appellate Counsel
In addition to Ground One, claiming ineffective assistance from his trial counsel, Balcacer
also alleges ineffective assistance from his appellate counsel. [ECF No. 27 at 34]. While Divris
does not challenge the exhaustion of this Ground, the Court will still examine it.
Balcacer raises four individual factual bases for his claim of ineffective assistance by his
prior appellate counsel: (#1) failure to raise the federal implications of Agent Coletti’s testimony,
(#2) failure to address issues related to Natasha Balcacer’s statements to the grand jury, (#3) failure
to contest improper opinion testimony, and (#4) failure to challenge the closing statements. [Id.]
The Court finds that the allegations listed above are exhausted, although the first issue
concerning Agent Coletti’s testimony is a closer call. Balcacer sufficiently raised (#2) the grand
jury issue, (#3) the failure to challenge the closing statements, and (#4) the failure to contest
improper testimony as factual bases within his 2023 ALOFAR. [ECF No. 16-4 at 16, 20, 21, 20
(cited in order of the allegations listed above)]. Moreover, a reasonable jurist would have been
alerted to the federal legal dimensions of these claims. These issues are explicitly listed under the
section labeled “ineffective assistance of appellate counsel,” which cites to Evitts v. Lucey, 469
U.S. 387 (1985), establishing the right to effective appellate counsel on a defendant’s first appeal.
[ECF No. 16-4 at 20].
The first issue, concerning (#1) the alleged failure to challenge Agent Coletti’s testimony,
is more nuanced. The discussion appears under the label “Knowingly Perjured Testimony Requires
a New Trial,” but Balcacer clarifies that it was the “[p]rior counsel’s failure,” implicating both his
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trial and appellate counsel, and supports this claim with a citation to Evitts. [ECF No. 16-4 at 15].
Again, this issue is raised in the section titled, “Ineffective Assistance of Appellate Counsel,”
(emphasis added), thus making Balcacer’s citation to Evitts, rather than Strickland, particularly
relevant. By framing the issue this way and citing the relevant legal authority, Balcacer effectively
presents these statements as both stand-alone claims and as failures of prior counsel, thereby
alerting a reasonable jurist to the federal questions involved.
Therefore, Ground Six is exhausted. However, because there is a mixed petition, which
cannot be adjudicated, Ground Six is DISMISSED without prejudice. See Delong, 715 F.3d at
387.
G. 	Ground Seven – Confrontation Clause Violation
Balcacer’s seventh ground for relief asserts that he was deprived of his right to confront
witnesses due to the admission of improper, prejudicial hearsay. [ECF No. 27 at 35-36]. Divris
argues that this ground is unexhausted because it was nested within Balcacer’s ineffective
assistance of counsel claim. [ECF No. 16 at 7].
An exhaustive search of the record reveals that hearsay issues were mentioned only in
Balcacer’s 2023 ALOFAR, which stated, “[t]he [above referenced hearsay] statements’ admission
deprived Balcacer of his right to confront and cross-examine, to due process and a fair trial. . . This
was ineffective.”8 [ECF No. 16-4 at 19]. As the Court stated supra, merely raising a claim within
8 While the Petitioner raises several cases to exhaust the underlying claim, the Court finds that
these did not suffice to indicate to a reasonable jurist the federal dimensions of the claim.
Commonwealth v. Borans was the only case that Petitioner cited that is on point and there is only
a single sentence about the right to reasonable cross-examination. 393 N.E.2d 911, 931 (Mass.
1979). All the other cases Petitioner cited regarded different constitutional issues than the ones he
raises.
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the context of ineffective assistance of counsel does not exhaust the underlying constitutional
violation.
Therefore, Ground Nine is unexhausted and is DISMISSED without prejudice.
H. 	Ground Eight – Cumulative Due Process Violation
Lastly, Balcacer argues that the combined errors raised in Grounds One through Nine
cumulatively violated his due process rights. [ECF No. 27 at 37]. Divris argues that this cumulative
error claim is unexhausted, noting discrepancies between the issues raised in the 2020 ALOFAR
and those included in the 2023 ALOFAR’s cumulative error argument. [ECF No. 16 at 8]. Based
on established precedent, when all the claims presented in a petition have not been presented to
the SJC, any cumulative or combined claim before this court is deemed unexhausted. Janosky v.
St. Amand, No. 08-10713-RWZ, 2008 U.S. Dist. LEXIS 123711, at *19 (D. Mass. Nov. 17, 2008)
(quoting Burbank v. Maloney, 47 F. Supp. 2d 159, 164 (D. Mass. 1999)).
Therefore, 	Balcacer’s 	cumulative 	error 	claim 	is 	considered 	unexhausted 	and 	is
DISMISSED without prejudice.
IV. 	CONCLUSION
For the foregoing reasons, the Court determines that Balcacer’s petition contains both
exhausted and unexhausted issues. Grounds Two, Three, and Seven are unexhausted. Ground
Eight, which alleges a cumulative due process violation, is unexhausted to the extent that it relies
on other unexhausted grounds. Grounds One, Four, Five, and Six are properly exhausted;
however, the Court may not adjudicate the resulting mixed petition. See Delong, 715 F.3d at 387.
Therefore, all Grounds are DISMISSED without prejudice.
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V. 	Certificate of Appealability
The statute governing appeals of final orders in habeas corpus proceedings provides that a
certificate of appealability (“COA”) may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a “substantial
showing,” a petitioner must demonstrate that “reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or that the issues presented were adequate
to deserve encouragement to proceed further.” Muller v. Goguen, 385 F. Supp. 3d 121, 130 (D.
Mass. 2019) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks
omitted)). “To meet the debatable-among-jurists-of-reason standard the petitioner must prove
‘something more than the absence of frivolity or the existence of mere good faith.’” United States
v. Cintron, 281 F. Supp. 3d 241, 242 (D. Mass. 2017) (quoting Miller-El v. Cockrell, 537 U.S.
322, 338 (2003)). In ruling on an application for a COA, a district court must indicate
which specific issues satisfy the “substantial showing” standard. 28 U.S.C. § 2253(c)(3).
The Court grants the COA for Grounds Two, Three, and Seven because the First Circuit
has not yet decided whether embedding a constitutional claim within an ineffective assistance of
counsel claim serves to exhaust both the ineffective assistance of counsel claim and the underlying
constitutional claim. Should the First Circuit find that ineffective assistance of counsel exhausts
the underlying constitutional claims, the Court grants the COA for Grounds One, Four, Five, Six,
and Eight to remand for reconsideration on the merits.
SO ORDERED.
Dated: December 16, 2025
/s/ Margaret R. Guzman
Margaret R. Guzman
United States District Judge
Case 4:23-cv-11843-MRG Document 35 Filed 12/16/25 Page 16 of 16