Herbert v. Dickhaut

724 F.Supp.2d 132

Roger HERBERT, Petitioner,

v.Thomas DICKHAUT, Respondent.

Civil Action No. 06cv10036-NG.

United States District Court,D. Massachusetts.

March 19, 2010.

John Salsberg, Ryan M. Schiff, Salsberg & Schneider, Boston, MA, for Petitioner.

Eva M. Badway, Susanne G. Reardon, Attorney General's Office, Boston, MA, for Respondent.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS

GERTNER, District Judge:

This case comes before the court on respondent's motion to dismiss Roger Herbert's (“Herbert”) petition for habeas corpus, which he brings pursuant to 28 U.S.C. § 2254. Herbert asserts numerous constitutional defects in his trial and in his representation both at trial and on direct appeal. On the assented motion of the parties, the proceedings have been bifurcated such that, at this time, the only issue before the Court is whether Herbert's petition is timely under 28 U.S.C. § 2244(d). And central to that determination is the application of the “prison mailbox rule.” The mailbox rule, simply put, holds “that a pro se prisoner's motion ... is filed on the date that it is deposited in the prison's internal mail-system ... provided that the prisoner utilizes, if available, the prison's system for recording legal mail.” Morales-Rivera v. United States, 184 F.3d 109 (1st Cir.1999). For the reasons stated herein, notably the application of that rule to the facts of this case, I find that the petition is timely and, therefore, the motion to dismiss (document # 18) is DENIED.

I. PROCEDURAL BACKGROUND

On March 8, 1991, Herbert was convicted of armed robbery and first-degree felony murder by a jury in the Superior Court of Suffolk County, Massachusetts. See Pet'r.'s Mem. Regarding Timeliness Ex. 1 (document # 17-2) [hereinafter State Court Docket]. Herbert appealed, and the Massachusetts Supreme Judicial Court (“SJC”) affirmed his conviction on November 9, 1995. See Commonwealth v. Herbert, 421 Mass. 307, 656 N.E.2d 899 (1995). Herbert did not pursue a direct appeal to the United States Supreme Court. As such, his conviction became final on February 6, 1996, when the ninety-day period for seeking certiorari in the Supreme Court expired. See Voravongsa v. Wall, 349 F.3d 1, 2 (1st Cir.2003).

After his conviction was affirmed, Herbert claims that he mailed a motion for a new trial and a motion for appointment of counsel to the Suffolk County Superior Court on December 17, 1996-316 days after his conviction was finalized and 238 days after the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) became effective on April 24, 1996. ¹ The motion for appointment of counsel was received and docketed on December 19, 1996, see State Court Docket at Paper No. 42; however, the motion for a new trial was never docketed. The Superior Court never took any action on either motion. Six years later, Herbert filed renewed motions for a new trial and for appointment of counsel, which the Superior Court received and docketed on December 19, 2002. ² See State Court Docket at Paper No. 45. This time around, the Superior Court did rule on the motions, denying both on November 20, 2003. See State Court Docket at Paper No. 48.

On February 10, 2004, Herbert sought permission from a “gatekeeper” justice of the SJC to appeal the denial of his motion to the full SJC, pursuant to Mass. Gen. L. ch. 278 § 33E. See Pet'r.'s Mem. Regarding Timeliness Ex. 4 (document # 17-5). The gatekeeper justice denied Herbert permission to appeal to the SJC on July 15, 2004. Herbert filed a motion to reconsider before the gatekeeper justice on July 29, 2004, which was denied on August 4, 2004. Id. Herbert then sought to appeal the gatekeeper's decision to the full SJC, which dismissed his appeal on December 12, 2005. See Commonwealth v. Herbert, 445 Mass. 1018, 838 N.E.2d 1236 (2005). Herbert filed his habeas petition in this court twenty-five days later on January 5, 2006. ³

II. ANALYSIS

The timeliness of Herbert's petition turns on two key periods of time. The first is the period between December 17, 1996, when Herbert claims to have mailed his first motion for a new trial, and November 20, 2003, when Herbert's request for a new trial was finally ruled on and denied by the state trial court. Whether or not this period ought to be tolled turns on the meaning of the word “filed” in 28 U.S.C. § 2244(d)(2) and on the application of the “prisoner mailbox rule.” See Morales-Rivera v. United States, 184 F.3d 109 (1st Cir.1999). The second key period is the time between February 10, 2004, the date that Herbert sought review of his denied motion in the SJC, and December 12, 2005, the date the full SJC dismissed his appeal. Whether or not this entire period ought to be tolled turns on the meaning of the word “pending” in 28 U.S.C. § 2244(d)(2), for which we must rely on state law. See Currie v. Matesanz, 281 F.3d 261 (1st Cir.2002).

If both of these time periods are tolled, then 263 non-tolled days will have elapsed since Herbert's AEDPA clock started running on April 24, 1996, and his petition will be timely. ⁴ However, if either of these periods are not tolled, then Herbert's petition will be multiple years late.

A. The Prisoner Mailbox Rule

The question of whether or not Herbert's AEDPA clock stopped ticking on December 17, 1996-the day he claims to have mailed his motion for a new trial to the Superior Court-depends on the application of the prisoner mailbox rule. Though the First Circuit has clearly held that the prisoner mailbox rule applies to petitions filed in federal court, see Morales-Rivera v. United States, 184 F.3d 109 (1st Cir.1999), it has not “express[ed] an opinion on the applicability vel non of the prisoner mailbox rule to a state-court petition for post-conviction relief.” Donovan v. Maine, 276 F.3d 87, 90 (1st Cir.2002). “However, ... to the extent (if at all) this is a question of state law,” id. at n. 3, the question left open in Donovan does not bear on this case, as the prisoner mailbox rule applies in Massachusetts. See Commonwealth v. Hartsgrove, 407 Mass. 441, 444, 553 N.E.2d 1299 (1990) (holding that “an incarcerated pro se inmate['s]” filing “should be deemed to have occurred on the inmate's relinquishment of control of his [filing] to the prison authorities”). ⁵ Because the authoritative state and federal courts both employ the prisoner mailbox rule, I apply it here.

The mailbox rule, simply put, holds “that a pro se prisoner's motion ... is filed on the date that it is deposited in the prison's internal mail-system ... provided that the prisoner utilizes, if available, the prison's system for recording legal mail.” Morales-Rivera, 184 F.3d at 109. In instances where there is no system in place for recording legal mail, a court may rely on other evidence to establish whether and when a filing was actually mailed. See Lattimore v. Dubois, 311 F.3d 46, 54 n. 5 (1st Cir.2002) (relying on a “a fair inference that the petition was placed in the mail” when the prison “where the petitioner is incarcerated, does not keep a log of outgoing legal mail”); Casanova v. Dubois, 304 F.3d 75, 79 (1st. Cir.2002) (applying the rule to Massachusetts institutions even though they lack a “process for tracking legal mail”).

There is ample evidence here to support a finding that Herbert did in fact mail his motion for a new trial to the Suffolk Superior Court on December 17, 1996. For one thing, the motion itself is signed and dated as of that date. See Pet'r.'s Mem. Regarding Timeliness Ex. 2 (document # 17-3) [hereinafter Herbert Aff.]. Multiple courts in this circuit have found such evidence, standing alone, sufficient to satisfy the mailbox rule. See Guzman v. United States, No. 05-214-ML, 2007 WL 141073, at *2 n. 4, 2007 U.S. Dist. LEXIS 3823, at *7 n. 4 (D.P.I. Jan. 17, 2007) (“[U]nder the mailbox rule, the motion will be considered filed as of the date it was signed.” (citation omitted) (citing Morales-Rivera, 184 F.3d at 110)); Blackmer v. Warden, No. 03-275-PB, 2004 WL 2823216, at *1 n. 1, 2004 U.S. Dist. LEXIS 24824, at *1 n. 1 (D.N.H. Dec. 9, 2004) (relying on “the date that appears on the petition” to establish the filing date) (citing Adeline v. Stinson, 206 F.3d 249, 251 n. 1 (2d Cir.2000)); cf. Lattimore, 311 F.3d at 54 n. 5 (“The petition was signed and dated on Friday, April 25, 1997, and docketed on Monday, April 28, 1997. It is a fair inference that the petition was placed in the mail on April 25, 1997.”). But see Parrila Sanes v. United States, No. 98-123-PG, 2005 WL 1397431, at *7, 2005 U.S. Dist. LEXIS 40294, at *20 (D.P.R. June 9, 2005) (“Petitioner signed his petition on September 24, 2002, which in itself is not conclusive.”).

In this case, the date written on the motion itself is not the only evidence indicating when it was filed; to the contrary, “the record provides additional verification of the date that [the petitioner] placed the complaint into the prison mail system.” Casanova, 304 F.3d at 80 n. 6. First, Herbert has declared, under oath and on pain of perjury, that he mailed his motion through the prison mail system on December 17, 1996. Herbert Aff. ¶ 5 (document # 17-3); see Casanova, 304 F.3d at 79 (suggesting that prisoners may “demonstrate that their filings are timely by including a declaration or a notarized statement specifying the date the mail was deposited in the prison system”). ⁶ In addition, there is the docket entry of December 19, 1996, logging the Superior Court's receipt of Herbert's supplemental motion for appointment of counsel, which he filed along with his motion for a new trial. Courts in this circuit have found similarly circumstantial documentary evidence sufficient to establish the filing date for purposes of the prisoner mailbox rule. See Casanova, 304 F.3d at 80 n. 6 (relying on evidence that petitioner withdrew money “in order to send his complaint via certified mail” to support finding that the complaint was in fact sent); Breese v. Maloney, 322 F.Supp.2d...