Carl Drew v. Maceachern

• Decision Date: 09 September 2010
• Docket Number: No. 09-1571.,09-1571.
• Parties: Carl DREW, Petitioner, Appellant, v. Duane J. MacEACHERN, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

620 F.3d 16

Carl DREW, Petitioner, Appellant,

v.Duane J. MacEACHERN, Respondent, Appellee.

No. 09-1571.

United States Court of Appeals,First Circuit.

Heard July 26, 2010.

Decided Sept. 9, 2010.

Cathryn A. Neaves, for petitioner, appellant.

Natalie S. Monroe, Assistant Attorney General, Criminal Bureau, with whom Martha Coakley, Attorney General, was on brief, for respondent, appellee.

Before BOUDIN, GAJARSA, ^* and THOMPSON, Circuit Judges.

GAJARSA, Circuit Judge.

The issue before the court is whether an application for state post-conviction relief was “pending” within the meaning of the tolling provision of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(2), and, if not, whether the petitioner is entitled to equitable tolling of the AEDPA's limitations period. Carl Drew appeals from the U.S. District Court for the District of Massachusetts's dismissal of his petition for writ of habeas corpus. The district court dismissed Mr. Drew's petition for lack of jurisdiction, holding that his petition was time-barred under § 2244(d)(1)(A) and that he is not entitled to equitable tolling. We affirm.

I.

The relevant facts are not in dispute. The Massachusetts Supreme Judicial Court (“SJC”) provides “extremely broad plenary review” of convictions for a capital crime on direct appeal under chapter 278, section 33E of the Massachusetts General Laws. ¹ Trigones v. Attorney General, 420 Mass. 859, 652 N.E.2d 893, 895 (1995); see also Commonwealth v. Randolph, 438 Mass. 290, 780 N.E.2d 58, 67 (2002) (“[A] defendant's conviction in a capital case ... undergo[es] the exacting scrutiny of plenary review under [ section] 33E.” (alterations added)). But “[a]fter receiving this plenary review, a capital defendant may not appeal [to the SJC] from a decision on a postconviction motion unless that motion raises a ‘new and substantial question’ ” as set forth in a “gatekeeper” petition to a single justice of the SJC. Trigones, 652 N.E.2d at 895 (alteration added) (quoting Mass. Gen. Laws, ch. 278, § 33E); see also Randolph, 780 N.E.2d at 64 n. 7. In a section 33E petition, a capital defendant files a petition for leave to appeal to the full SJC with a single justice of the SJC, who is commonly referred to as the “gatekeeper.” Commonwealth v. Stote, 456 Mass. 213, 922 N.E.2d 768, 771 (2010) (referring to the single justice in a section 33E petition as the gatekeeper); Commonwealth v. Herbert, 445 Mass. 1018, 838 N.E.2d 1236, 1237 (2005) (rescript) (same). If the single justice determines that the petitioner raises both “new and substantial” issues, the justice will grant the petitioner leave to appeal to the full SJC for review. Mass. Gen. Laws, ch. 278, § 33E (2008); see also Pina v. Maloney, 565 F.3d 48, 51 n. 2 (1st Cir.2009); Trigones, 652 N.E.2d at 895-96.

On March 13, 1981, a jury convicted Mr. Drew of first-degree murder in the Superior Court, and he was sentenced to life in prison without parole. Over the next twenty-two years, the SJC would consider a direct appeal from Mr. Drew's murder conviction and appeals from his four denied motions for a new trial. As explained below, Mr. Drew's current appeal centers on two separate gatekeeper petitions that he filed in 1992 and 2003. Those petitions concerned his third and fourth motions for a new trial.

Mr. Drew filed his first two motions for a new trial in the Superior Court on March 30, 1981, and February 17, 1983, respectively. After the Superior Court denied both motions, the SJC consolidated Mr. Drew's direct appeal from his murder conviction and his appeals from the Superior Court's denial of his two motions for a new trial. On March 12, 1986, the SJC affirmed Mr. Drew's conviction and the denial of his two motions for a new trial. See Commonwealth v. Drew (“ Drew I ”), 397 Mass. 65, 489 N.E.2d 1233, 1236 (1986).

Nearly six years later, Mr. Drew filed his third motion for a new trial as a pro se litigant. In this motion, Mr. Drew alleged for the first time that his trial counsel and previous appellate counsel were ineffective, violating his Sixth Amendment right to the effective assistance of counsel. See Commonwealth v. Drew (“ Drew II ”), No. SJ-2005-0074, slip op. at 6-7, 9 (Mass. Oct. 17, 2005). The Superior Court denied Mr. Drew's third motion for a new trial.

Again acting pro se, Mr. Drew timely filed a section 33E gatekeeper petition with the single justice on April 30, 1992. Commonwealth v. Drew (“ Drew III ”), 447 Mass. 635, 856 N.E.2d 808, 811 (2006). In the two and a half years after Mr. Drew filed this initial gatekeeper petition, Massachusetts appointed four different attorneys to assist him with his petition, but they all neglected to make filings on his behalf. See Drew III, 856 N.E.2d at 811; Drew II, slip op. at 10 n. 10. After the gatekeeper issued three orders to show cause, the justice refused to grant another continuance and dismissed Mr. Drew's petition for lack of prosecution on December 15, 1994. Drew III, 856 N.E.2d at 811; Drew II, slip op. at 10 n. 10.

In September 1995, Massachusetts appointed a new counsel for Mr. Drew. Drew II, slip op. at 11. After inquiring about the status of Mr. Drew's initial gatekeeper petition, the newly appointed counsel learned that it had been dismissed. See Drew III, 856 N.E.2d at 811. Upon learning of the dismissal, however, counsel did not move for reconsideration of the dismissal nor file a petition for writ of habeas corpus in federal court.

Eight years later, on September 16, 2003, the same counsel filed a fourth motion for a new trial, asserting, inter alia, the same ineffective-assistance-of-counsel claims that Mr. Drew presented in his 1992 gatekeeper petition. After an eleven-day evidentiary hearing, the Superior Court denied Mr. Drew's fourth motion for a new trial.

Represented by the same counsel, Mr. Drew then filed his second gatekeeper petition on February 28, 2005. This petition was granted in part, allowing the full SJC to hear Mr. Drew's appeal with respect to some of his claims, namely that his trial counsel was constitutionally ineffective. Drew II, slip op. at 14; see also Drew III, 856 N.E.2d at 814-20. To satisfy section 33E' s requirement that the gatekeeper petition raise “new” issues, the single justice treated the second gatekeeper petition as though it were Mr. Drew's first: “I am not prepared to preclude [Mr.] Drew from bringing substantial issues before the court because his lawyer proceeded to bring a new motion ... rather than resurrect an old appeal that court appointed counsel failed to prosecute.” Drew II, slip op. at 11 (alterations added). The single justice opined that he was “thus inclined to treat [the ineffective-assistance claims] of [Mr.] Drew's petition as if [they] represent[ed] a continuation of the 1992 appeal.” Id. (alterations added). The single justice denied the second gatekeeper petition in all other respects. Id. at 14.

On appeal before the full court, the SJC reasoned that Mr. Drew could have raised his ineffective-assistance claims in his second motion for a new trial and thus had waived those claims. See Drew III, 856 N.E.2d at 813. Nevertheless, the SJC reviewed his ineffective-assistance claims for a substantial risk of a miscarriage of justice, but denied relief. Id. at 814-20. On December 20, 2006, the SJC denied Mr. Drew's petition for rehearing. And on May 18, 2007, the U.S. Supreme Court denied his petition for writ of certiorari. Drew v. Massachusetts, 550 U.S. 943, 127 S.Ct. 2269, 167 L.Ed.2d 1106 (2007) (mem.).

Not to be denied in his quest for relief, Mr. Drew filed a pro se petition for writ of habeas corpus in federal district court on December 20, 2007. The district court referred the matter to a magistrate judge for a Report and Recommendation (“R & R”). The R & R recommended that the district court dismiss Mr. Drew's habeas petition for lack of jurisdiction because he failed to file his petition within the AEDPA's one-year statute of limitations under 28 U.S.C. § 2244(d)(1)(A). The magistrate judge also found that the doctrine of equitable tolling did not apply to Mr. Drew's habeas petition. The district court adopted the R & R and dismissed the petition with prejudice. However, the district court noted that “because the issues are close, [it would] certify for appeal if requested.” Addendum to Appellant's Br. 17 (alteration added).

Upon Mr. Drew's request, the district court certified his case for appeal, and Mr. Drew timely filed a notice of appeal. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

II.

The federal courts have jurisdiction under 28 U.S.C. § 2254(a) to consider a state prisoner's petition for writ of habeas corpus when the petitioner alleges that he is in state custody in violation of the U.S. Constitution or federal law. Congress, however, placed limits on the federal courts' ability to grant a federal habeas petition. One of those limits is a statute of limitations: “A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1) (2006). In a typical case, the clock on the one-year limitations period starts running when the state conviction becomes final: “The limitation period shall run from the ... date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A) (emphasis added). For the purposes of § 2244(d)(1)(A), a conviction is final when the “availability of direct appeal to the state courts and to [the U.S. Supreme Court] has been exhausted.” Jimenez v. Quarterman, 555 U.S. 113, 129 S.Ct. 681, 685, 172 L.Ed.2d 475 (2009) (alteration added) (internal quotation marks and citations omitted). Because the AEDPA affects prisoners convicted before its enactment, the federal courts of appeals have uniformly created a one-year grace period for prisoners...