Blue v. Medeiros

• Decision Date: 04 January 2019
• Docket Number: No. 18-1066,18-1066
• Citation: 913 F.3d 1
• Parties: Larry BLUE, Petitioner, Appellant, v. Sean MEDEIROS, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

913 F.3d 1

Larry BLUE, Petitioner, Appellant,

v.Sean MEDEIROS, Respondent, Appellee.

No. 18-1066

United States Court of Appeals, First Circuit.

January 4, 2019

Ashley P. Allen, with whom Patricia A. DeJuneas and Sibbison & DeJuneas were on brief, for appellant.

Eva M. Badway, Assistant Attorney General, with whom Maura Healey, Attorney General, was on brief, for appellee.

Before Thompson, Selya, and Lipez, Circuit Judges.

THOMPSON, Circuit Judge.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1), establishes a one-year statute of limitations for a state prisoner to file a federal habeas corpus petition under 28 U.S.C. § 2254. The one-year period generally starts when a prisoner's conviction becomes final, but may be tolled, pursuant to the statute, during the time in "which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." Id. § 2244(d)(2).

Petitioner Larry Blue, a Massachusetts prison inmate, filed a petition for habeas corpus relief which the district court dismissed as time-barred under AEDPA's statute of limitations. Petitioner now seeks reconsideration of that ruling based on two tolling theories. First, Petitioner argues that the statute of limitations should be statutorily tolled during the month-plus-long pendency of his motion to stay the execution of his sentence, because that motion, he urges, constitutes an application for collateral review under § 2244(d)(2). Second, Petitioner argues, essentially, that unique circumstances surrounding his conviction justify equitable tolling of the time between the finality of his Commonwealth convictions and the filing of his habeas petition. For reasons explained below, we reject these arguments and affirm the dismissal of Petitioner's habeas corpus petition.

I. Background

Because dates are crucial to our evaluation of Petitioner's claims, we ask the reader's patience as we detail the travel of the proceedings below. On August 18, 2010, following a trial by jury, Petitioner was convicted of multiple Massachusetts state law crimes, including drug trafficking, drug possession, and unlicensed firearm and ammunition possession. Thereafter, he pleaded guilty to additional related charges and was handed a cumulative sentence of up to ten years and a day to serve.

Petitioner pursued various avenues of post-conviction relief in the Commonwealth courts.¹ On June 14, 2012, Petitioner filed a direct appeal of his convictions, based in part on arguments previously raised and rejected by the trial court that there were defects in the search warrants that led to his arrest. Additionally, Petitioner premiered a new argument challenging the constitutionality of Massachusetts's gun licensing regime.

While Petitioner's appeal was pending, revelations of widespread misconduct at the Commonwealth's crime lab, the William A. Hinton State Laboratory Institute, came to light with state-employed chemist Annie Dookhan in the maelstrom of the scandal. In response to these disclosures, in August 2012, Massachusetts's governor shuttered the lab and ordered an independent investigation.² Dookhan, after being hit with multiple indictments for falsifying drug test results, lying about her credentials, and perjuring herself in court (including during Petitioner's trial), eventually pled guilty to twenty-seven counts on November 22, 2013.

Meanwhile, the Appeals Court of Massachusetts denied Petitioner's direct appeal on September 27, 2013. Commonwealth v. Blue, 84 Mass.App.Ct. 1112, 994 N.E.2d 817 (Table), 2013 WL 5377118 (2013). First, it cited its agreement with the trial court's reasoning for the denial of Petitioner's search warrant suppression motions. And next, it pointed out the futility of Petitioner's constitutional challenge, noting the state's gun licensing regime had already been given the green light by the Massachusetts Supreme Judicial Court ("SJC"). Id. Hoping to change minds, Petitioner filed a motion for rehearing, but the appeals court promptly denied it.

Soldiering on, Petitioner sought further appellate review with the SJC in October 2013. However, that application was summarily denied without discussion on November 21, 2013. Commonwealth v. Blue, 466 Mass. 1109, 998 N.E.2d 342 (2013) (Table). Ninety days later, on February 19, 2014, Petitioner's convictions became final; that is the moment the AEDPA statute of limitations clock began to tick.³

In the wake of the Dookhan fiasco, Petitioner filed with the trial court a second motion to stay the execution of his sentence, pursuant to Massachusetts Rule of Criminal Procedure 31 (" Rule 31").⁴ In that February 21, 2014 filing he asserted his belief that Dookhan's misconduct would likely result in the grant of a new trial on all charges given (1) the unreliability of the laboratory testing supporting his drug convictions and (2) the overall taint Dookhan's perjured testimony cast on his convictions, due to the prosecutor weaving together the drug dealing and the gun possession throughout the trial. In a memorandum in support of his stay motion, Petitioner announced his intention to file a renewed motion for a new trial "shortly," based on Dookhan's perjury and other grounds.

Back at the SJC, while Petitioner's motion to stay was pending, the Commonwealth high court weighed in on the Dookhan debacle: in cases where Dookhan had served as a primary or secondary chemist for drug analysis, all defendants were entitled to a conclusive presumption that her conduct was egregious and attributable to the Commonwealth. Commonwealth v. Scott, 467 Mass. 336, 5 N.E.3d 530, 535 (2014). That presumption notwithstanding, soon after the Scott opinion issued, Petitioner's motion for a stay of the execution of his sentence was denied on March 27, 2014. The trial court found that Petitioner's firearms convictions were unaffected by Dookhan's misconduct and as such, he was unlikely to receive a new trial.

Undeterred, on May 5, 2014, Petitioner filed a second motion for a new trial based on two theories. First, he framed the revelation of Dookhan's perjury as "newly-discovered evidence," casting doubt on the fairness of his conviction. (For all intents and purposes, this taint argument is the same one that had just been rejected by the court in response to his stay motion.) His second argument, ineffective assistance of counsel, was essentially a repackaging of the earlier defective search warrant claims.⁵

On January 20, 2015, acting on Petitioner's new trial motion, the trial court granted it as to the drug charges, and denied it as to the gun charges. Commenting on the drug convictions, the court conceded that, even though extensive evidence supported Petitioner's drug charges aside from Dookhan's perjured testimony, her testimony had, nonetheless, tainted the drug convictions. As for the gun charges, the court found no connection between Dookhan's testimony and those convictions. Finally, the trial court dismissed the ineffective assistance claim, describing it as not distinct from Petitioner's prior search warrant claims, and writing:

[T]he Appeals Court implicitly rejected the defendant's instant claim ... and made rejection explicit when it refused the defendant's petition for rehearing.

The issue is settled and need not be considered on its merits here.

Two days later Petitioner appealed the partial denial to the appellate court, and sought further review after this first appeal was denied. Commonwealth v. Blue, ––– Mass.App.Ct. ––––, 46 N.E.3d 114 (Table), 2016 WL 757758 (Mass. App. Ct. 2016). The Commonwealth nolle prossed the drug charges at the end of January 2015.⁶ And, on April 27, 2016, the SJC entered a final denial of Petitioner's application for further appellate review of his motion for a new trial.⁷

Almost eleven months⁸ later, on March 20, 2017, Petitioner filed his federal petition for a writ of habeas corpus , premised solely on his allegations of ineffective assistance of counsel.⁹ On the motion of Respondent Norfolk prison superintendent Sean Medeiros, the district court dismissed the petition as time-barred under AEDPA. Blue v. Medeiros, No. 17-cv-10464-ADB, 2017 WL 5297910, at *1 (D. Mass. Nov. 13, 2017). In so doing the district court held that Petitioner's motion to stay the execution of his sentence did not toll AEDPA's one-year time limit, under 28 U.S.C. § 2244(d)(2), because it was not an "application for ... collateral review." The court held further that Petitioner was not entitled to equitable tolling because the issues created by the Hinton Lab misconduct did not impose a bar to Petitioner filing a motion for a new trial concurrently with his motion for stay of execution (recall Petitioner's stay motion was filed on February 21, 2014, while his new trial motion was not filed until May 5, 2014); and because, even after his motion for a new trial was denied and the Commonwealth had abandoned the drug charges, Petitioner allowed eleven months to pass by before filing the petition for the writ of habeas corpus.

In his present appeal, Petitioner advances two arguments relative to the timeliness of his habeas petition; we take each in turn. Because the district court denied Petitioner relief "on a procedural ground without taking evidence," we apply de novo review. Holmes v. Spencer (Holmes I ), 685 F.3d 51, 58 (1st Cir. 2012) (quoting Wood v. Spencer, 487 F.3d 1, 3 (1st Cir. 2007) ).

II. Statutory Tolling

First, Petitioner argues that his motion to stay the execution of his sentence tolled AEDPA's statute of limitations, because it is a properly filed application for "collateral review" as contemplated by 28 U.S.C. § 2244(d)(2). In support of his assertion that "the plain meaning" of AEDPA's tolling provision "includes post-conviction motions [like a motion to stay] heard by the trial judge," Petitioner cites Wall v. Kholi (Kholi III ), 562 U.S. 545, 131 S.Ct. 1278, 179 L.Ed.2d 252 (2011). To...