Davis v. Lehane

• Decision Date: 29 March 2000
• Docket Number: No. Civ.A. 83-03676-WGY.,Civ.A. 83-03676-WGY.
• Parties: George S. DAVIS, Petitioner, v. Kenneth G. LEHANE, Respondent.
• Court: U.S. District Court — District of Massachusetts

89 F.Supp.2d 142

George S. DAVIS, Petitioner, v. Kenneth G. LEHANE, Respondent.

No. Civ.A. 83-03676-WGY.

United States District Court, D. Massachusetts.

March 29, 2000.

COPYRIGHT MATERIAL OMITTED

Charles W. Rankin, Rankin & Sultan, Boston, MA, for George S. Davis, plaintiff.

Elisabeth J. Medvedow, Attorney General's Office, Criminal Bureau, Boston, MA, Gregory I. Massing, D. Dunbar Livingston, Special Assistant Attorney General, Office of the D.A. for Eastern District, Salem, MA, for Kenneth G. Lehane, Suffolk County Superior Court, Attorney General, Commonwealth, defendants.

MEMORANDUM AND ORDER

YOUNG, Chief Judge.

I. INTRODUCTION

On November 23, 1983, George C. Davis ("Davis"), a former attorney, filed this petition for a writ of habeas corpus.¹ He alleges that his 1978 convictions in Suffolk Superior Court, for conspiracy to commit arson and conspiracy to commit arson with intent to defraud an insurer, were the result of an unfair trial. Specifically, he alleges that the Commonwealth (1) deprived him of the right to interview an exculpatory witness before trial; (2) failed to disclose all the terms of a deal it made with its star witness; and (3) failed to disclose prior instances of perjury by the same government witness.

II. FACTUAL BACKGROUND

In October and November of 1974, a series of fires destroyed an apartment building located at 37-41-43 Symphony Road in Boston. See Joseph M. Harvey and Richard J. Connolly, `A Huge Conspiracy to Burn Suffolk County for Profit', Boston Globe, Oct. 8, 1977, at 1; Michael Kenney, The Key: Scarred Symphony Road, Boston Globe, Oct. 18, 1977, at 1; Bob Keeley, Jim Morse, and John O'Neill, Arson for Profit: 20 Arraigned, Boston Herald American, Oct. 18, 1977, at 1. Davis had owned the property at one time, but the owner on the date of the fires was D.D. & F. Trust, Inc., a corporation owned and operated by Dennis Liakos ("Liakos"), an attorney, and Francis Fraine ("Fraine"), a wire inspector for the city of Boston. On October 13, 1977, a Suffolk County grand jury indicted Davis, Liakos, James DeFuria ("DeFuria"),² and George Lincoln ("Lincoln")³ in connection with the fires. The government named Fraine as an unindicted co-conspirator.

Lincoln, who actually set the fires, testified at trial that Davis was directly involved in the arson conspiracy. Lincoln's testimony directly contradicted that of Fraine, who testified before the grand jury that Davis had nothing to do with the arson plan. Fraine initially agreed to cooperate with Davis' trial counsel, Frank J. McGee ("McGee"), but later refused to be interviewed by the defense.

Despite not having interviewed Fraine before trial, McGee felt compelled to call him as a witness on the basis of his grand jury testimony. On cross-examination, the prosecutor, Stephen Delinsky ("Delinsky")⁴ effectively impeached Fraine's credibility with evidence of prior bad acts about which the defense had no knowledge.

On August 23, 1978, after a three week jury-waived trial, Davis was convicted of conspiracy to commit arson and conspiracy to commit arson with intent to defraud an insurer. As to the latter charge, Justice Paul Garrity⁵ sentenced Davis to two and a half years in the Suffolk County House of Correction (three months committed, remainder suspended), two years of probation, and thirty hours per week of community service for nine months during the probation period. As to the former, Davis received two and a half years in prison. This sentence was suspended, and he was ordered to serve two years of probation with a special condition that he pay restitution in the amount of $10,000.

Davis served his three months from September 27, 1978, to December 23, 1978, on which date he began serving his two year (730 days) term of probation. On May 11, 1979, (four months and eighteen days, or 140 days, later), the Massachusetts Appeals Court stayed Davis' sentence pending appeal. See Pet'r Mem., Ex. D. On June 22, 1979, Davis filed a motion for a new trial asserting, inter alia, the claims now raised in this habeas petition. On November 20, 1979, Justice Garrity held a non-evidentiary hearing with respect to the motion for a new trial and denied it on March 20, 1980. Commonwealth v. Davis, No. 014459 (Mass.Super.Ct. Mar. 20, 1980) (Garrity, J.); Pet'r Mem., Ex. 1. The Massachusetts Appeals Court affirmed Davis' convictions on February 10, 1982, see Commonwealth v. Davis, 13 Mass.App.Ct. at 180, 431 N.E.2d 251, noting that "there [was] support in the record for" Justice Garrity's conclusion about Fraine, and that even if Justice Garrity were wrong, Davis' inability to interview Fraine did not require a new trial. The Supreme Judicial Court denied Davis' petition for further appellate review. See Commonwealth v. Davis, 385 Mass. 1103, 441 N.E.2d 1043 (1982). After the Supreme Judicial Court denied Davis' petition for further appellate review, the stay of probation was revoked on April 20, 1982, and Davis began to serve the remainder of his probation (nineteen months and eleven days, or 590 days). Davis filed this habeas petition on November 23, 1983.

III. COMMONWEALTH'S MOTION FOR RECONSIDERATION

On April 6, 1984, the Commonwealth filed a motion to dismiss this petition for lack of subject matter jurisdiction asserting that Davis was not "in custody" for purposes of habeas corpus relief on November 23, 1983.

A. Relevant Background

According to Davis, his probation ended on December 2, 1983 (590 days after April 20, 1982), which was nine days after he filed his habeas petition. The Commonwealth, however, contends that Davis' probation ended on November 20, 1983, three days before he filed his petition for writ of habeas corpus. The Commonwealth relies on a probation contract dated September 27, 1983, and signed by Davis which states that the probation period would end on November 20, 1983, and that Davis received five months (rather than four months and eighteen days) of credit for time served between December 23, 1978, and May 11, 1979. Davis argues he is not bound by the erroneous five-month credit because it was granted by a probation officer rather than the court. The Commonwealth counters that the five-month credit was given by the court, not the probation officer. See Morrill Aff. at ¶¶ 4-5.

On the Commonwealth's motion to dismiss for lack of subject matter jurisdiction, Judge Skinner agreed with Davis. In his Memorandum and Order, Judge Skinner stated that "[a] probation officer cannot, whether through ignorance, good will, or ill will, alter the terms of a sentence imposed by a judge of the commonwealth." See Davis v. Lehane, No. 83-3676-S (D.Mass. July 26, 1984); Pet'r Mem., Ex. J. Judge Skinner also noted that the Commonwealth's use of five months as a roundedoff substitute for four months and eighteen days "show[ed] a very casual disregard of its obligations to this court," and "call[ed] the attention of the parties to Fed.R.Civ.P. 11." Davis v. Lehane, No. 83-3676-S at 3-4.

On April 24, 1984, Davis filed a motion for attorney's fees pursuant to Fed. R.Civ.P. 11. Judge Skinner granted the motion on April 8, 1985 and the Commonwealth appealed. On June 11, 1985, the First Circuit stayed the appeal pending an appeal from the underlying habeas action. See Resp't Mem., Ex. E. Nine years later, on September 27, 1994, the First Circuit dismissed the appeal for lack of prosecution after the Commonwealth failed to respond to an earlier order to show cause or file a status report. See id. at Ex. F. One day later, the Commonwealth filed a motion to reinstate the appeal, which the First Circuit denied on October 24, 1994.

On February 22, 1995, Judge Wolf granted the parties' motion to reopen the habeas action. On October 17, 1995, Judge Wolf transferred the case to Magistrate Judge Collings, who in turn transferred the case to Chief Magistrate Judge Alexander two weeks later. Two years later, Chief Magistrate Judge Alexander ordered the parties to appear at a status conference. At the status conference, the Commonwealth announced its plan to file a motion for reconsideration of Judge Skinner's denial of the motion to dismiss for lack of subject matter jurisdiction. The Commonwealth filed the motion for reconsideration of Judge Skinner's ruling on October 22, 1997. On December 2, 1997, Chief Magistrate Judge Alexander transferred the case back to Judge Wolf, who later transferred the case to this Court on March 2, 1999.

The motion for reconsideration is now before this Court.

B. Standard for Motion for Reconsideration

A federal district court has the discretion to reconsider interlocutory orders and revise or amend them at any time prior to final judgment. See Bethlehem Steel Export Corp. v. Redondo Constr. Corp., 140 F.3d 319, 321 (1st Cir.1998) (holding that a district court judge to whom a case had been reassigned could grant the defendant's motion for summary judgment after the previous judge had denied the motion); Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 42 (1st Cir.1994) ("Interlocutory orders, including denials of motions to dismiss, remain open to trial court reconsideration, and do not constitute the law of the case."). The Supreme Court, however, has admonished that "courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was `clearly erroneous and would work a manifest injustice.'" Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (quoting Arizona v. California, 460 U.S. 605, 618 n. 8, 103 S.Ct. 1382, 75 L.Ed.2d 318 [1983]).

When faced with a motion for reconsideration, a district court must balance the need for finality against the duty to render just decisions. See McCoy v. Macon Water Auth., 966 F.Supp. 1209, 1222 (M.D.Ga.1997). In order to accommodate these competing interests, a court should grant a motion for reconsideration of an interlocutory order only when the movant demonstrates (1) an...