Killela v. Hall, Civ.A. 99-30123-MAP.

84 F.Supp.2d 204

Rocky KILLELA, Petitioner, v. Timothy HALL, Superintendent, et al., Respondents.

No. Civ.A. 99-30123-MAP.

United States District Court, D. Massachusetts.

February 3, 2000.

COPYRIGHT MATERIAL OMITTED

Greg T. Schubert, Springfield, MA, for Rocky Killela, petitioner.

Pamela L. Hunt, Joseph T. Thai, Attorney General's Office, Criminal Bureau, Boston, MA, William D. Weinreb, Attorney General's Office, Criminal Division, Boston, MA, for Timothy Hall, Superintendent, respondent.

Pamela L. Hunt, Joseph T. Thai, William D. Weinreb, (See above), for Thomas Reilly, Attorney General of Massachusetts, respondent.

MEMORANDUM AND ORDER REGARDING REPORT AND RECOMMENDATION WITH REGARD TO RESPONDENTS' MOTION TO DISMISS PETITIONER'S HABEAS CORPUS PETITION

(Docket Nos. 12 & 20)

PONSOR, District Judge.

Upon de novo review, the Report and Recommendation of Magistrate Judge Kenneth P. Neiman dated December 3, 1999 is hereby ADOPTED. As Magistrate Judge Neiman's memorandum carefully demonstrates, the state court's decision here properly rests on petitioner's procedural default, independent of any Constitutional question. Petitioner has demonstrated neither "cause and prejudice" nor any significant evidence of a miscarriage of justice. For this reason, set forth in more detail in the Report and Recommendation, the respondents' Motion to Dismiss is hereby ALLOWED.

REPORT AND RECOMMENDATION WITH REGARD TO RESPONDENT'S MOTION TO DISMISS PETITIONER'S HABEAS CORPUS PETITION (Docket No. 12)

December 3, 1999

NEIMAN, United States Magistrate Judge.

Rocky Killela ("Petitioner"), claiming that he is being unlawfully imprisoned by the Commonwealth of Massachusetts, has filed a petition for a writ of habeas corpus. Respondents have moved to dismiss the petition on three separate procedural grounds: that the petition is untimely, that one of Petitioner's claims has not been adequately exhausted, and that the "procedural default rule" bars the petition. Respondents' motion to dismiss has been referred to the court for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B). As detailed below, the court agrees with Respondents' third argument and, therefore, recommends that the petition be dismissed on this limited basis.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 26, 1986, a jury found Petitioner guilty of armed assault in a dwelling house, assault with intent to murder, kidnapping, armed assault and battery, and carrying a dangerous weapon. He is currently serving a thirty-five to fifty year sentence. The charges arose from an incident on May 29, 1986 in which Petitioner stabbed his pregnant girlfriend at her home, severely wounding her and killing her fetus, then kidnapped and assaulted two other individuals at knife point during his flight from the home. Four days prior to the incident, Petitioner was in an automobile accident in which he suffered severe brain trauma.

As with many criminal convictions, posttrial proceedings here have consumed many years. On direct appeal, Petitioner's convictions were affirmed by the Massachusetts Appeals Court. Then, on June 3, 1988, the Massachusetts Supreme Judicial Court rejected Petitioner's application for leave to obtain further appellate review, commonly referred to as an "ALOFAR." Nearly three years later, Petitioner collaterally attacked the convictions by filing a pro se motion for a new trial. That motion was denied by the trial court on June 19, 1991, and subsequently affirmed by the Appeals Court. The Supreme Judicial Court rejected Petitioner's second ALOFAR on December 28, 1992.

On September 23, 1994, Petitioner filed a pleading that bears directly on the instant petition, namely, a second pro se motion for a new trial. That motion, which was amended on November 5, 1996, after Petitioner had been appointed counsel, made two allegations: that trial counsel was ineffective for failing to present to the jury a "post-concussion syndrome" defense, and that the trial court erroneously failed to conduct a hearing sua sponte on Petitioner's competency to stand trial. The trial court denied Petitioner's second motion for a new trial in a written opinion dated November 14, 1996. Meanwhile, on April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), discussed in detail below.

On May 17, 1997, more than six months after the trial court's November 14th ruling, Petitioner filed a motion for reconsideration which the trial court denied on June 6, 1997. On September 24, 1997 Petitioner appealed the denials of both the second new trial motion and the motion for reconsideration. In an eight page opinion dated May 22, 1998, the Appeals Court affirmed the denials. (Resp'ts' Supplemental Answer (Docket No. 15), No. 16.) The crux of the Appeals Court's opinion was that, pursuant to Rule 30(c)(2) of the Massachusetts Rules of Criminal Procedure, Petitioner had waived the claims made in his motions by not raising them in either his direct appeal or his first motion for a new trial. The Supreme Judicial Court rejected Petitioner's final ALOFAR, filed on June 12, 1998, on July 27, 1998.

On June 15, 1999, Petitioner filed the instant petition for habeas corpus, raising the same two claims that he asserted in his second motion for a new trial: ineffective assistance of counsel and failure of the trial judge to hold a competency hearing. On July 14, 1999, Respondents moved to dismiss the petition on three separate procedural grounds: that the petition is untimely, that one of Petitioner's claims has not been adequately exhausted and that the "procedural default rule" bars the petition. Petitioner filed his opposition to the motion to dismiss on October 1, 1999.

II. STANDARD OF REVIEW

The court construes Respondents' motion to dismiss as though it were brought under Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) is designed to test whether a complaint properly states a claim upon which relief may be granted. A Rule 12(b)(6) motion to dismiss requires a court to accept "the factual averments contained in the complaint as true, indulging every reasonable inference helpful to the plaintiff's cause." Garita Hotel Ltd. Partnership v. Ponce Federal Bank, F.S.B., 958 F.2d 15, 17 (1st Cir.1992). See also Pihl v. Massachusetts Dep't of Educ., 9 F.3d 184, 187 (1st Cir. 1993). The fact that the "complaint" at issue is a petition for a writ of habeas corpus does little to change the analysis. See Rose v. Lundy, 455 U.S. 509, 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). A motion to dismiss is the appropriate vehicle for challenging a petitioner's claims as legally insufficient, including claims that he failed to comply with procedural requirements. See generally id.

III. DISCUSSION

Respondents make three procedural arguments as to why the petition should be dismissed: the petition is untimely, one of Petitioner's claims has not been adequately exhausted and the "procedural default rule" bars the petition. In the court's view, neither of Respondents' first two arguments justifies dismissal. However, the court does recommend that the petition be dismissed on the third ground, the "procedural default" rule. Accordingly, the court will discuss Respondents' third argument first.

A.

Because of comity and federalism concerns, federal habeas courts generally may not review a state court's denial of a state prisoner's federal constitutional claim if the state court's decision rests on a state procedural default that is independent of the federal questions and adequate to support the prisoner's continued custody. See Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 81, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). A valid invocation of this procedural default rule "forecloses federal habeas review unless the petitioner can demonstrate cause for the default and prejudice stemming therefrom, or, alternatively, unless the petitioner can show that a refusal to consider the merits of the constitutional claim will work a miscarriage of justice." Burks v. Dubois, 55 F.3d 712, 716 (1st Cir.1995) (citations omitted).

In the case at bar, the Massachusetts Appeals Court, the "last reasoned opinion by a state court," Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991), explicitly rejected Petitioner's claims by applying an independent rule of state procedure. Specifically, the Appeals Court considered both of Petitioner's claims "waived" pursuant to Rule 30(c)(2) of the Massachusetts Rules of Criminal Procedure because they "could have been pressed in either of his earlier appellate forays." (Resp'ts' Supplemental Answer (Docket No. 15), No. 16 at 3.) Rule 30 of the Massachusetts Rules of Criminal Procedure provides the bases for post conviction relief in state court. Rule 30(c)(2) reads as follows:

Waiver. All grounds for relief claimed by a defendant under subdivisions (a) [unlawful restraint] and (b) [new trial] of this rule shall be raised by the defendant in his original or amended motion. Any grounds not so raised are waived unless the judge in his discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion.

Mass.R.Civ.P. 30(c)(2).

The Supreme Judicial Court upheld the Massachusetts Appeals Court when it rejected, without opinion, Petitioner's final ALOFAR. Thus, for purposes here, it is clear that both of Petitioner's claims were dismissed on the procedural grounds of Rule 30(c)(2).

Rule 30(c)(2) is consistently enforced by the Massachusetts courts. See Commonwealth v. Watson, 409 Mass. 110, 565 N.E.2d 408, 409 (1991) ("A motion for a new trial may not be used as a vehicle to compel review and consideration of questions of law, on which a defendant has had his day in an appellate court, or on which he has foregone that opportunity.") (internal quotations marks omitted); Fogarty v....