Dunker v. Bissonnette
| Decision Date | 23 July 2001 |
| Docket Number | Civil Action No. 00-11196-RGS. |
| Citation | 154 F.Supp.2d 95 |
| Parties | Frederick H. DUNKER, Jr., Petitioner, v. Lynn BISSONNETTE, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
Fred H. Dunker, S.E.C.C. W. 33133-C-II, Bridgewater, MA, for Fred H. Dunker.
William J. Meade, Assistant Attorney General, Criminal Bureau, Pamela L. Hunt, Attorney Generals Office, Chief, Appellate Division, Thomas Dee, Assistant Attorney General, Criminal Bureau, Boston, MA, for Commonwealth of Massachusetts, Lynne Bissonette.
ORDER ON MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
The petition, as the Magistrate Judge recognizes, raises difficult issues which in some respects have not been addressed in this Circuit. Nonetheless, because I agree with the Magistrate-Judge's state action and equitable tolling analysis, which is commendable for its clarity and scholarship, I will ADOPT her Recommendation and dismiss the petition with prejudice.
Respondent Lynn Bissonnette ("respondent"), Superintendent of North Central Correctional Institution in Gardner, Massachusetts, moves to dismiss the above styled petition for writ of habeas corpus filed pro se under 28 U.S.C. § 2254 ("section 2254") as untimely pursuant to 28 U.S.C. § 2244(d) ("section 2244(d)") of the Antiterrorism and Effective Death Penalty Act of 1996 ("the AEDPA"). Petitioner Frederick H. Dunker, Jr. ("petitioner"), an inmate at North Central Correctional Institution, attacks his 1971 conviction for murder in the second degree rendered in the Massachusetts Superior Court Department (Suffolk County) ("the trial court") on the grounds of: (1) incorrect jury instructions regarding the standard of reasonable doubt;1 and (2) ineffective assistance of counsel for failing to raise the issue of the improper instructions.
Even if an evidentiary hearing is not barred under section 2254(e)(2) of the AEDPA,2 petitioner has no right to an evidentiary hearing on the issue of timeliness under the pre-AEDPA standard, assuming, arguendo, its applicability after the AEDPA's enactment. See Edwards v. Murphy, 96 F.Supp.2d 31, 49-50 (D.Mass. 2000) (); see also Fryar v. Bissonnette, 113 F.Supp.2d 175, 179-180 (D.Mass.2000) (); Marshall v. Hendricks, 103 F.Supp.2d 749, 770 (D.N.J.2000) (same).
His allegations regarding equitable tolling and the conduct of his former counsel, taken as true and uncontroverted, are not in dispute. The petition and the state court records establish the relevant dates of petitioner's direct appeal and state post conviction filings. After petitioner filed the letter and affidavit of his former counsel, this court afforded him an additional opportunity to provide any other material or additional facts from his former counsel relative to equitable tolling. (Docket Entry # 23). Petitioner did not submit any additional documentation to indicate that his attorney's conduct went beyond simple negligence or oversight. The nature of his attorney's conduct, as shown in the submissions which this court accepts as true and uncontroverted, does not raise a factual basis for equitable tolling. The motion to dismiss (Docket Entry # 12) is therefore ripe for review.
On April 29, 1971, petitioner was convicted of second degree murder on an indictment charging first degree murder. He appealed to the Massachusetts Supreme Judicial Court ("the SJC"). During the pendency of the direct appeal, petitioner filed two motions for a new trial which the trial judge denied. The SJC reviewed the entire record under Massachusetts Law chapter 278, section 33E, and affirmed the conviction on July 2, 1973.
On November 28, 1984, petitioner, proceeding pro se, filed a third motion for a new trial. Thereafter, counsel was appointed and on June 11, 1985, she filed a fourth motion for a new trial. On July 19, 1985, the motion judge, who was not the trial judge, allowed petitioner to withdraw the third motion for a new trial. After conducting a hearing, the motion judge denied the fourth motion for a new trial on October 9, 1985. On October 29, 1986, in a published opinion,4 the Massachusetts Appeals Court ("the appellate court") affirmed the order denying the fourth motion for a new trial. There is no indication that petitioner appealed the ruling to the SJC. The time period for filing such an appeal expired on December 18, 1986, 20 days after the November 28, 1986 rescript. See Rule 27.1, Mass. R.App. P. To state the obvious, therefore, there were no post trial motions or collateral applications pending on April 24, 1996, the effective date of the AEDPA.
On November 12, 1997, represented by a different attorney, petitioner filed a fifth motion for a new trial in the trial court. Therein, he attacked, for the first time, the reasonable doubt instructions on a number of grounds including ineffective assistance of post-conviction counsel who allegedly failed to raise the issue in a timely manner. On March 11, 1998, a motion judge denied the fifth motion for a new trial and on April 13, 1998, denied petitioner's motion for reconsideration.
On April 22, 1998, with the assistance of counsel, petitioner appealed the rulings. On March 24, 1999, the appellate court affirmed the denial of the fifth motion for a new trial. The appellate court surmised that all of the arguments regarding the reasonable doubt instructions were sufficiently developed to put counsel on notice in June 1985 when petitioner filed the fourth motion for a new trial. The appellate court therefore considered the arguments waived and further determined that post-conviction counsel's representation was not ineffective for failing to raise the arguments regarding the reasonable doubt instructions. Finally, the appellate court noted that even if post-conviction counsel should have raised the arguments, the omission did not create a substantial risk of a miscarriage of justice due to the strong evidence against petitioner. Represented by counsel, petitioner filed an application for further appellate review with the SJC. On June 7, 1999, the SJC denied the application.
Petitioner executed the present petition on May 25, 2000. Accordingly, he handed it to prison officials for mailing no earlier than May 25, 2000.
The government moves to dismiss the petition on the basis of untimeliness. (Docket Entry # 12). When Congress enacted the AEDPA on April 24, 1996, it imposed a number of bars to obtaining post conviction relief. See Sustache-Rivera v. United States, 221 F.3d 8, 11 (1st Cir.2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1364, 149 L.Ed.2d 292 (2001). First and foremost, the AEDPA imposed a one year limitations period for state habeas petitions filed under section 2254. See 28 U.S.C. § 2244(d)(1).
For habeas challenges to state convictions which became final prior to the AEDPA's April 24, 1996 enactment, this circuit affords petitioners a one year grace period running from April 24, 1996. See Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999) (). As reasoned in Rogers, a conviction becomes final for purposes of applying the grace period when the Supreme Court denies an application for certiorari on direct review. Rogers v. United States, 180 F.3d at 352. Where, as here, petitioner did not seek certiorari with the Supreme Court during the direct appeal, the conviction becomes final no later than the expiration of the 90 day period for filing a petition for certiorari, see Sup.Ct. Rule 13, a time period well before the April 24, 1996 enactment of the AEDPA.5
The one year grace period established in Gaskins therefore applies. Absent tolling, the one year period began to run on April 25, 1996, the day after the AEDPA's enactment, see Gaskins v. Duval, 183 F.3d at 9 (), and expired on April 24, 1997. See Rogers v. United States, 180 F.3d at 355 n. 13 (); Ross v. Artuz, 150 F.3d 97, 103 (2d Cir.1998) ().
Under section 2244(d)(2), petitioner receives the benefit of a provision which tolls the one year period during the time a properly filed post-conviction state application for collateral review is "pending." 28 U.S.C. § 2244(d)(2); Gaskins v. Duval, 183 F.3d at 9-10 (). The pertinent language reads as follows:
The time period during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d)(2) (emphasis added).
The exclusion of this time period comports with principles of comity and encourages a...
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