Morin v. Kenneway

JEREMY MORIN, Petitioner, v. STEVEN KENNEWAY, Superintendent, Respondent.

Civil Action No. 19-30075-FDS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

April 22, 2020

MEMORANDUM AND ORDER ON MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

SAYLOR, C.J.

This is a pro se petition for a writ of habeas corpus. Petitioner Jeremy Morin is an inmate at the Souza-Baranowski Correctional Center in Shirley, Massachusetts.

In 2002, Morin pleaded guilty in Superior Court to two counts of arson and was sentenced to a prison term of seven to ten years followed by five years of probation. In 2012, after his release, but while on probation, he set fire to another building. As a result, he was found to have violated his probation and was sentenced to a prison term of six to eight years. He also pleaded guilty to one new count of arson, for which he was sentenced to a ten-year term of probation following his release from prison.

Morin now seeks habeas relief pursuant to 28 U.S.C. §2254. Respondent has moved to dismiss the petition, contending that it is time-barred under 28 U.S.C. § 2244(d).¹ For the followingreasons, the motion will be granted.

I. Background²

A. Petitioner's First Arson Conviction and Sentence

On June 25, 2002, Jeremy Morin pleaded guilty in Superior Court to two counts of burning a building in violation of Mass. Gen. Laws ch. 266, § 2. He was sentenced to a prison term of seven to ten years, followed by a term of probation of five years.

On August 26, 2002, Morin filed an appeal with the Appellate Division of the Superior Court. The court dismissed the appeal on August 21, 2003. He did not attempt to withdraw his guilty plea.

Morin then filed various motions for a new trial and for post-conviction relief. Those motions were pending from July 10 to July 17, 2003; from July 11 to July 16, 2007; and from February 6 to February 21, 2008. All of the motions were denied.

On January 25, 2008, Morin filed a petition for a writ of habeas corpus in federal court. On February 20, 2009, the District Court dismissed the petition on grounds that the limitations period had expired and he had failed to exhaust his state remedies. See Morin v. Massachusetts, 598 F. Supp. 2d 165 (2009).

Morin completed the remainder of his sentence, and was released from prison in February 2012.

B. Petitioner's Second Conviction and Probation Violation

Shortly after being released, and while still on probation, Morin set fire to another building. In response, on March 30, 2012, the Massachusetts Probation Service filed for anarrest warrant based on an alleged probation violation. In addition, on July 12, 2012, the Commonwealth filed new criminal charges against him based on the new arson.

On April 2, 2014, Morin pleaded guilty to one count of burning a building in violation of Mass. Gen. Laws ch. 266, § 2. On August 6, 2014, he was sentenced on the new criminal offense and the related probation violation. He was sentenced to a prison term of six to eight years for violating the conditions of his probation, to be followed by a ten-year term of probation for the new offense. He is now an inmate at the Souza-Baranowski Correctional Center, serving time on the probation violation.

C. Petitioner's Motions Since His Second Sentencing

Since his 2014 sentencing, Morin has filed various post-conviction motions in state court.³

On December 18, 2014, he filed a motion to revise and revoke his sentence. That motion was denied on December 22, 2014.

On January 5, 2015, he filed a motion for an injunction against the Commonwealth. That motion was denied on January 6, 2015.

On March 17, 2015, he filed a motion to stay his proceedings and to take an interlocutory appeal. That motion was denied the next day, March 18, 2015, because there was nothing pending to be stayed or appealed.

On September 28, 2015, he filed a motion for a free transcript. That motion was granted on September 29, 2015.

For a period of more than a year and a half, no motions were pending. In June 2017, Morin filed another flurry of motions. On June 20, 2017, he filed motions to be referred to theCPCS post-conviction screening panel and to be declared indigent; on June 21, 2017, he filed a motion to reconsider his probation violation; and on June 28, 2017, he filed a motion to dismiss his case. On July 6, 2017, the court denied the latter two motions. It noted that he had filed for reconsideration in the wrong case, and that the motion to dismiss had no relation to his conviction by plea. On July 10, 2017, the court granted his motion for CPCS referral and declaration of indigency.

On January 23, 2018, Morin filed a motion to withdraw his guilty plea due to mental defect or insanity. That motion was denied on June 11, 2018.

On November 5, 2018, he filed a motion for immediate release from prison. That motion was denied the next day, November 6, 2018.⁴

On May 22, 2019, Morin filed the present petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has moved to dismiss the petition as time-barred.

II. Analysis

A. Limitations Period

A state prisoner has one year from the date on which the judgment against him became final, either "by the conclusion of direct review or the expiration of the time for seeking such review," to petition for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1)(A). For the purposes of this section, a conviction is final when the "availability of direct appeal to the state courts and to the [U.S. Supreme Court] has been exhausted." Drew v. MacEachern, 620 F.3d 16, 19 (1st Cir. 2010) (quoting Jimenez v. Quarterman, 555 U.S. 113, 129 (2009)). In other words, for petitioners who pursue direct review from the Supreme Court, a judgment becomes final when the Supreme Court "affirms a conviction on the merits or denies a petition for certiorari."Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). For all other petitioners, a judgment becomes final "when the time for pursuing direct review . . . in state court, expires." Id.

Ordinarily, a Massachusetts defendant has thirty days after the entry of a conviction to file an appeal. See, e.g., Morin, 598 F. Supp. 2d. at 167; see also Mass. R. App. P. 4(b). A defendant who pleads guilty, however, is not entitled to direct review, because a "motion for new trial is the appropriate device for attacking the validity of a guilty plea." Fitzgerald v. District Court Department of Trial Court, 471 Mass. 1001, 1002 (2015) (quotation omitted); see also Bermudez v. Roden, 2016 WL 4007553, *2 (D. Mass. July 26, 2016). Therefore, "the entry of a guilty plea is a final judgment of conviction that begins the running of the limitations period." Hugal v. Dolan, 353 F. Supp. 3d 94, 97 (D. Mass. 2016) (citing Turner v. Massachusetts, 2013 WL 3716861, *2 (D. Mass. July 11, 2013)).⁵

The statute excludes from the one-year limitations period the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending . . . ." 28 U.S.C. § 2244(d)(2). An application is pending both "when it actually is being considered by the trial or appellate court" and "during the 'gap' between the trial court's initial disposition and the petitioner's 'timely filing of a petition for review at the next level.'" Currie v. Matesanz, 281 F.3d 261, 266 (1st Cir. 2002) (quoting Melancon v. Kaylo, 259 F.3d 401, 406 (5th Cir. 2001)). State procedural law controls whether a post-conviction application is pending. Carey v. Saffold, 536 U.S. 214, 219-220 (2002).

Morin seeks habeas relief from two separate sentences. First, he seeks relief from the prison sentence imposed for his violation of probation, which is the sentence he is currently serving. Under Massachusetts law, "[i]f a defendant violates one or more conditions of probation, a judge may revoke his probation and sentence him to a term of imprisonment"—not as punishment for violating a probation condition, but as a new sentence on his underlying conviction. Commonwealth v. Eldred, 480 Mass. 90, 97 (2018). Morin does not seek review of his 2002 conviction or sentence, but rather the sentence imposed when his probation was revoked in 2014. Cf. Morin, 598 F. Supp. 2d at 165 (denying habeas relief from that sentence). Under the statute, the "limitations provision is focused on the judgment [that currently] holds the petitioner in confinement." Watts v. Stewart, 2018 WL 1548905, *1 n. 3 (S.D. Ala. March 7, 2018). The date of the relevant judgment is therefore August 6, 2014. See also Green v. Price, 439 Fed. App'x 777, 783 (11th Cir. 2011). (unpublished) (limitations period began to run when revocation of probation became final). For purposes of the statute of limitations, the probation revocation became final on September 6, 2014—thirty days following the sentencing. See 28 U.S.C. § 2244(d)(1)(A); Morin, 598 F.2d at 167; see also Mass. R. App. P. 4(b).

Second, Morin seeks relief from the sentence imposed on his 2014 arson conviction, which is a term of probation that will follow his current term of imprisonment. See Tinder v. Paula, 725 F.2d 801, 803 (1st Cir. 1984) (probationers are "under governmental supervision" for habeas review because "probationers are generally placed in the custody of probation officers).⁶ As to that claim, Morin pleaded guilty on April 2, 2014. Arguably, because Massachusettsdefendants who plead guilty have no right to an appeal, the entry of the guilty plea was a "final judgment of conviction" that "beg[an] the running of the limitations period." Hugal, 353 F. Supp. 3d at 97. However, because he was not sentenced on that charge until August 6, 2014, the Court will assume, without deciding, that the AEDPA limitations period did not begin running until that date.⁷

The one-year limitations period was tolled during any period that there were pending post-conviction filings for relief. As noted, Morin filed numerous post-conviction motions, including a motion to revise and revoke his sentence...