Proulx v. Marshall, s. CIV.A.95-40182-NMG, CIV.A.99-40129-NMG.

190 F.Supp.2d 117

David PROULX, Petitioner, v. John MARSHALL, Respondent.

David Proulx, Petitioner, v. Peter Pepe, Jr., Respondent.

Nos. CIV.A.95-40182-NMG, CIV.A.99-40129-NMG.

United States District Court, D. Massachusetts.

December 21, 2001.

Richard J. Fallon, West Acton, MA, for David A. Proulx.

Annette C. Benedetto, Assist. Atty. Gen., Boston, MA, for Peter Pepe, Jr.

MEMORANDUM AND ORDER

GORTON, District Judge.

Currently pending before this Court are Proulx's requests for Certificates of Appealability ("COAs") (Docket No. 57 in C.A. No 95-40182 and Docket No. 29 in C.A. No. 99-40129). Proulx seeks a COA to allow him to appeal from orders of this Court dismissing his first petition for a writ of habeas corpus (C.A. No. 95-40182) on July 13, 1998 and denying his motion to vacate that dismissal on September 25, 2000. Proulx also seeks a COA to allow him to appeal from orders of this Court dismissing his second petition for a writ of habeas corpus (C.A. No. 99-40129) on September 25, 2000 and denying his Motion for Relief from that Order of Dismissal on July 31, 2001. Proulx has also filed renewed motions for the appointment of counsel (Docket No. 58 in C.A. No. 95-40182 and Docket No. 31 in C.A. No. 99-40129).

I. Background

A. Factual and Procedural History

The following facts are summarized from a Memorandum and Order entered in the earlier case by this Court on September 25, 2000.

On June 15, 1983, Proulx was indicted in Massachusetts state court for second-degree murder. Although a mistrial was declared during his first trial in October 1983, a jury convicted Proulx at the second trial in February, 1984. The trial judge sentenced Proulx to life in prison.

After his conviction and sentence, Proulx filed several motions seeking release from unlawful restraint and a new trial. Those requests were denied and the Massachusetts Supreme Judicial Court denied his subsequent Applications for Further Appellate Review ("ALOFARs").

On September 18, 1995, Proulx filed a petition for a Writ of Habeas Corpus ("the First Petition"). As a result of requests by Proulx and Respondent Marshall for extensions of time to file submissions in this Court, no ruling was made on his first petition until nearly three years after it was filed.

On July 9, 1998, this Court adopted the Report and Recommendation of Magistrate Judge Charles B. Swartwood that the First Petition be dismissed for Proulx's failure to exhaust his state remedies. Because only one of his twelve claims in the petition had not been exhausted, however, Proulx was given the option of (1) amending his First Petition to omit his unexhausted state claim so that this Court could review the remaining exhausted state claims or (2) pursuing his unexhausted claim in state court and abandoning collateral review.

Proulx elected to pursue his state remedies and filed a stipulation for voluntary dismissal of the First Petition which this Court allowed and which, in effect, barred federal collateral review as an avenue of relief for Proulx.

After Proulx exhausted his state claim, he filed in this court a second petition for a Writ of Habeas Corpus ("the Second Petition") on July 7, 1999. Respondent Pepe filed a motion to dismiss which this Court allowed on September 25, 2000 on the grounds that the Second Petition was time-barred by the statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 ("the AEDPA").

B. Summary of this Court's September 25, 2000 Memorandum & Order

In its September 25, 2000 Memorandum & Order, this Court denied the Petitioner's motion to vacate the dismissal of his First Petition, dismissed Petitioner's Second Petition, and denied Petitioner's motion for appointment of counsel.

With respect to Petitioner's motion to vacate the dismissal of his First Petition, this Court found that because Petitioner filed a stipulation of voluntary dismissal of that petition, it would not reinstate it.

Addressing the Petitioner's Second Petition, this Court noted that, with respect to convictions that became final prior to April 24, 1996 (the effective date of the AEDPA), prisoners are entitled to a one year grace period from that date in which to file petitions for writ of habeas corpus. See Gaskins v. Duval, 183 F.3d 8 (1st Cir. 1999); 28 U.S.C. § 2244(d)(1). Because Proulx's conviction became final prior to the AEDPA's effective date, he was entitled to file his petition within the one year grace period which expired on April 24, 1997. This Court found that under a literal application of the AEDPA, Proulx's Second Petition was time-barred because it was filed on July 7, 1999, more than two years after the expiration of the grace period.

This Court also found that Proulx's First Petition did not act to toll the limitation period under § 2244(d)(2). That finding has been confirmed by the Supreme Court in Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). See also Neverson v. Bissonnette, 261 F.3d 120, 123 (1st Cir.2001).

This Court also rejected Proulx's argument that the statute of limitations should be equitably tolled because of his confusion about the state court exhaustion requirement. Proulx argued that he had attempted to assert his claims but that he was prevented from doing so by this Court's delay in ruling on the First Petition. This Court noted that although the First Circuit had not yet decided whether the time limit set forth in § 2244(d)(1) is subject to equitable tolling, Proulx had not established the requirements necessary for the application of equitable tolling, namely, that (1) extraordinary circumstances prevented him from timely filing his Petition and (2) he exercised reasonable due diligence. This Court found that after electing to pursue his state remedies, Proulx "may not now return, after his failure in the state courts, and ask this Court in equity to toll the AEDPA's statute of limitations". Proulx v. Marshall et al., 2000 WL 1448600, *3 (D.Mass.2000).

Because the AEDPA's statute of limitations barred Proulx's Second Petition, this Court did not address his motions to appoint counsel.

B. Summary of this Court's July 31, 2001 Memorandum & Order

In its July 31, 2001 Order, this Court denied the petitioner's Motion for Relief from the Order of Dismissal. This Court found that Petitioner's motion was untimely under Fed.R.Civ.P. 59(e) and improperly brought under Fed.R.Civ.P. 60(b).

This Court also found no merit to Petitioner's argument that his Second Petition for Habeas Corpus related back to his First Petition thereby tolling the statute of limitations set forth in § 2244(d).

II. Discussion

A. Proulx's Requests for Certificates of Appealability (Docket No. 57 in C.A. No. 95-40182 and Docket No. 29 in C.A. No. 99-40129)

Proulx asserts two arguments in his identical COA petitions. First, he argues that Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001), does not apply to his case because, unlike the petitioner in Duncan, Proulx promptly returned to state court to exhaust his state remedies and his subsequent federal habeas petition contained claims that were identical to those in the First Petition. Second, Proulx argues that this Court should have applied the doctrine of equitable tolling to his Second Petition.

B. Law Governing Certificate of Appealability

Under federal statute, federal rules and the local rules for the First Circuit Court of Appeals, a habeas petitioner may not appeal the final order of a district court dismissing his petition unless he first obtains a Certificate of Appealability ("COA"). 28 U.S.C. § 2253(c)(1)(stating that a habeas petitioner may not appeal the district court's final judgment unless a "circuit justice or judge" issues a COA); Fed. R.App. P. 22(b)(stating that an appeal by a habeas petitioner may not proceed without the issuance of a COA by a district or circuit judge); Loc. R. 22.1(a), Rules of Court for the United States Court of Appeals for the First Circuit (stating that ordinarily a request for a COA should be made to the district court that dismissed the original petition).

Section 2253(c) of Title 28 of the United States Code, as amended by the AEDPA, provides that "[a] certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." In ruling on a motion for a COA, a district court must state which issues, if any, satisfy the standard set forth in § 2253(c)(2) or the reasons for its denial of the motion. Loc. R. 22.1(a).

Where a district court has rejected constitutional claims on the merits, the petitioner seeking a COA must show that (1) the issues are debatable among jurists of reason, (2) that a court could resolve the issues in a different manner, or (3) that the questions are "adequate to deserve encouragement to proceed further." Smith v. United States, 989 F.Supp. 371, 374 (D.Mass.1997)(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).

When a district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claims, the standard for issuance of a COA is slightly different. The United States Supreme Court has held that in such cases the petitioner must, at least, show

that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and jurists of reason would find it debatable whether the district court was correct in its procedural ruling.

Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). "Section 2253 mandates that both showings be made before the court of appeals may entertain an appeal." Id.

C. Proulx's Petitions for Certificate of Appealability

In denying Proulx's § 2255 petitions, this Court did not reach the merits of his constitutional claims. The Court dismissed the First Petition because Proulx had filed a...