Currie v. Matesanz

• Decision Date: 19 February 2002
• Docket Number: No. 01-1108.,01-1108.
• Citation: Currie v. Matesanz, 281 F.3d 261 (1st Cir. 2002)
• Parties: John F. CURRIE, Petitioner, Appellant, v. James MATESANZ, et al., Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 261

281 F.3d 261

John F. CURRIE, Petitioner, Appellant, v. James MATESANZ, et al., Respondents, Appellees.

No. 01-1108.

United States Court of Appeals, First Circuit.

Heard October 2, 2001.

Decided February 19, 2002.

Barry S. Pollack, with whom Amber R. Anderson and Dechert Price & Rhoads were on brief, for appellant.

Cathryn A. Neaves, Assistant Massachusetts Attorney General, with whom Thomas F. Reilly, Massachusetts Attorney General, was on brief, for appellees.

Before TORRUELLA, Circuit Judge, CYR, Senior Circuit Judge, and LIPEZ, Circuit Judge.

LIPEZ, Circuit Judge.

This case requires us to determine whether an application for state post-conviction relief was "pending" for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Under AEDPA, state prisoners seeking federal habeas corpus review generally must file a petition under 28 U.S.C. § 2254 within one year of the date on which their state convictions became final. See 28 U.S.C. § 2244(d)(1). Before pursuing relief in the federal courts, however, state prisoners first must exhaust all available state post-conviction remedies. See 28 U.S.C. § 2254(b)(1). Recognizing the potential conflict between AEDPA's exhaustion requirement and its one-year statute of limitations, Congress provided that "[t]he time during which a properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending shall not be counted toward" the limitations period. 28 U.S.C. § 2244(d)(2).

Appellant John Currie seeks federal habeas review of his state conviction on grounds of ineffective assistance of counsel. The timeliness of his § 2254 petition depends on whether his earlier application for state post-conviction review was "pending" during the nine-month gap between disposition in the trial court and Currie's motion for leave to appeal. The district court concluded that it was not, and dismissed Currie's § 2254 petition as barred by AEDPA's statute of limitations. We review the district court's interpretation of the statute de novo. United States v. Michaud, 243 F.3d 84, 85-86 (1st Cir.2001). We now join our sister circuits in holding that an application for post-conviction relief is pending "from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir.1999), aff'd on other grounds, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). Accordingly, we vacate the judgment of the district court.

I.

In 1981, a Massachusetts jury convicted Currie of first degree murder, based on his role in an attempted robbery that ended in the death of a state police officer. Massachusetts law provides for direct and "extremely broad plenary review" by the Supreme Judicial Court ("SJC") in such cases, Trigones v. Attorney General, 420 Mass. 859, 652 N.E.2d 893, 895 (1995), which are classified as "capital." See Mass. Gen. Laws ch. 278, § 33E. On direct appeal, the SJC is authorized to order a new trial or enter other appropriate relief if it concludes that the "verdict was against the law or the weight of the evidence, or because of newly discovered evidence, or for any other reason that justice may require." Id.

If the SJC affirms a capital conviction on direct appeal — as it did in Currie's case — post-conviction review is circumscribed. In particular, § 33E strictly limits appellate review of any motion for a new trial filed after the SJC's decision on direct appeal in a capital case. If such a motion is denied by the trial court, the petitioner must apply to a single "gatekeeper" justice of the SJC for leave to appeal to that court, and "no appeal shall lie ... unless the appeal is allowed by a single justice ... on the ground that it presents a new and substantial question which ought to be determined by the full court." Id. Section 33E does not specify a time limit for filing a petition for leave to appeal, and during the relevant time period the prevailing rule was that capital prisoners could apply to the gatekeeper justice at any time. See id.; Mains v. Commonwealth, 433 Mass. 30, 739 N.E.2d 1125, 1130 n. 10 (2000). The SJC since has held that such prisoners must seek leave to appeal within 30 days of the trial court's judgment. However, it made clear that its new rule applied only prospectively. Mains, 739 N.E.2d at 1130 n. 10 ("Hereinafter, in the interests of consistency and finality, we shall require that a gatekeeper petition pursuant to G.L. c. 278, § 33E, be filed within thirty days of the denial of a motion for a new trial.").

Currie filed his first motion for a new trial in 1988, some five years after the SJC affirmed his conviction on direct appeal. Proceeding pro se, he argued that the trial court impermissibly restricted the jury's consideration of evidence that Currie was intoxicated at the time of the robbery. The Superior Court denied the motion on the ground that Currie's claims were available at trial and on direct appeal, and so were deemed waived. See Commonwealth v. Festa, 388 Mass. 513, 447 N.E.2d 1, 3 (1983) (explaining that issues not raised at trial or on direct appeal are waived for purposes of post-conviction review).

Currie applied to a single justice of the SJC for leave to appeal the trial court's ruling. He also requested that counsel be appointed to assist him on appeal, and the court granted that request. Rather than pursue Currie's application for leave to appeal, however, his new counsel filed an amended motion for a new trial in the Superior Court. The amended motion asserted three new grounds for relief, all of which alleged violations of Currie's right to effective assistance of trial and appellate counsel. The Superior Court rejected the motion on its merits, and again Currie sought leave to appeal from the gatekeeper justice. Following briefing and argument, the application was denied in May of 1991.

Congress enacted AEDPA in 1996, amending the procedures governing federal habeas corpus review. Under AEDPA, § 2254 petitions for federal review of state convictions allegedly imposed in violation of the Constitution or federal law are subject to a one-year statute of limitations that typically runs from the date the petitioner's conviction became final. 28 U.S.C. § 2244(d)(1).¹ For prisoners like Currie, whose state convictions became final before AEDPA was passed, the limitations period commenced on AEDPA's effective date, April 24, 1996. Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir.1999). Thus, absent tolling, Currie had until April 24, 1997, to file a petition under § 2254. Id.

In the wake of AEDPA, Currie set about preparing a petition for federal review, focusing on the three allegations of ineffective assistance of counsel raised in his first amended new trial motion. In the course of his research, however, Currie discovered a new claim that he had not previously presented to the state courts: that his jailhouse confession was obtained by coercion, in violation of the Fifth Amendment. Under AEDPA, Currie could not seek federal relief on the basis of that claim unless he first "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A).²

Accordingly, on April 3, 1997, Currie (again proceeding pro se) filed a second motion for a new trial, arguing that both trial and appellate counsel erred in not adequately challenging the trial judge's admission of the confession. Then, on April 18, 1997, he filed a § 2254 petition, raising the issues of ineffective assistance of counsel set out in his first amended new trial motion, as well as the new issue raised in the second new trial motion. Currie acknowledged that his second new trial motion was still pending in the Massachusetts Superior Court, and requested that the federal district court stay his § 2254 petition until the Superior Court acted on the motion. The district court refused, citing the absence of any "provision in the statutes or caselaw for the stay of an unexhausted petition pending exhaustion." Currie v. Matesanz, No. 97-11004-GAO (D.Mass. July 24, 1997). On July 24, 1997, the district court dismissed Currie's § 2254 petition without prejudice. Id.

The Superior Court denied Currie's second new trial motion on October 9, 1997, on the ground that Currie could have raised the issues in his earlier motion. After some procedural missteps,³ Currie wrote to the clerk of the SJC seeking advice on how and when to appeal the trial court's judgment. The clerk informed him that he could apply to a single justice of the SJC for leave to appeal, and that there was no time limit for such an application.

On July 6, 1998 — roughly nine months after the Superior Court's denial of his second new trial motion — Currie filed an application with a single justice of the SJC, seeking leave to appeal the Superior Court's ruling.⁴ The application was denied on March 24, 1999. Five days later, on March 29, 1999, Currie filed the instant petition under § 2254, raising essentially the same claims as were set out in the earlier petition that was dismissed without prejudice.

The Commonwealth moved to dismiss the petition as untimely.⁵ The magistrate judge agreed, and issued a report and recommendation concluding that Currie's § 2254 petition was barred by AEDPA's one-year statute of limitations. The magistrate judge treated Currie's July 6, 1998, application for leave to appeal to the SJC as a separate "application" for post-conviction review rather than as a continuation of the earlier proceedings on his second new trial motion. Since that application "was not filed, properly or otherwise, until [July] 6, 1998," the magistrate judge reasoned, it could not possibly have been "pending" before that date. Thus, the statute of limitations was tolled while Currie's new trial motion was pending before the Superior Court — from April 3, 1997, to October 9, 1997...