Foxworth v. Peter St. Amand

• Decision Date: 02 July 2010
• Docket Number: SJC-10542.
• Citation: 457 Mass. 200,929 N.E.2d 286
• Parties: Robert FOXWORTHv.Peter ST. AMAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

457 Mass. 200

929 N.E.2d 286

Robert FOXWORTHv.Peter ST. AMAND.

SJC-10542.

Supreme Judicial Court of Massachusetts Suffolk.

Argued April 5, 2010.

Decided July 2, 2010.

John M. Thompson (Linda J. Thompson, Springfield, with him) for the plaintiff.

Susanne G. Reardon, Assistant Attorney General, for the defendant.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

BOTSFORD, J.

In 1992, after trial in the Superior Court, Robert Foxworth was convicted of murder in the second degree; the Appeals Court affirmed the conviction in 1996. Commonwealth v. Foxworth, 41 Mass.App.Ct. 1113, 671 N.E.2d 1016 (1996). Reviewing Foxworth's subsequent petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 (2006), the United States Court of Appeals for the First Circuit (First Circuit) ¹ has certified the following question to this court, pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981):

“In considering the petitioner's application, filed in 2000, for leave to obtain further appellate review of the 1996

Massachusetts Appeals Court decision, did the Supreme Judicial Court reopen the finality of the petitioner's conviction in 2002?”

Foxworth v. St. Amand, 570 F.3d 414, 437 (1st Cir.2009) ( Foxworth ). ² For the reasons that follow, we answer the question no.

Background. The procedural history of this case in both the State and Federal courts is set out in detail in the First Circuit's opinion accompanying the certification order. See Foxworth, supra at 420-424. We summarize those procedural facts that bear on the certified question. In March of 1992, Foxworth and two codefendants were tried in the Superior Court on indictments charging each of them with murder in the first degree. Foxworth had moved unsuccessfully before trial to sever his case from his codefendants on the ground that he would be prejudiced by the introduction of a statement one of his codefendants, Troy Logan, had given to the police. At trial, Logan's statement was introduced in evidence (over Foxworth's timely objection) through a police detective, but the statement was redacted or altered in several places to substitute the term “Mr. X” for Foxworth's name. See id. at 421-422. On March 31, 1992, a jury convicted Foxworth of murder in the second degree, and acquitted Logan.³ Foxworth filed a timely appeal from his conviction. On March 16, 1994, he filed a motion for new trial in the Superior Court pursuant to Mass. R.Crim. P. 30(b), 378 Mass. 900 (1979) (first new trial motion). In his first new trial motion, Foxworth asserted, among other claims, that the admission of his codefendant's statement in evidence at trial contravened Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) ( Bruton ). A judge in the Superior Court (not the trial judge) denied Foxworth's first new trial motion in August, 1994. Thereafter, the Appeals Court consolidated Foxworth's appeal from that denial with his direct appeal from his conviction, and affirmed both the conviction and the denial of the new trial motion in a decision issued pursuant to that court's rule 1:28 on October 21, 1996. Commonwealth v. Foxworth, supra. One of the grounds of appeal raised by Foxworth, and considered by the Appeals Court, was his claim of a Bruton violation.

Pursuant to Mass. R.A.P. 27.1(a), as amended, 369 Mass. 920 (1975), Foxworth had twenty days from October 21, 1996, in which to file an application for further appellate review. No such application was filed within the prescribed period. In accordance with Mass. R.A.P. 23, as appearing in 367 Mass. 921 (1975), therefore, the Appeals Court's rescript issued to the trial court on November 18, 1996. On November 22, 1996, the rescript, indicating “Judgment affirmed,” was entered on the docket in the Superior Court.

Almost four years later, on October 25, 2000, Foxworth filed in this court a pro se application for leave to obtain further appellate review (FAR application), accompanied by a motion to file the FAR application late. One of the grounds asserted for obtaining further appellate review was the alleged Bruton violation. In November, 2000, before the court acted on his application and motion to file the application late, Foxworth filed, and this court allowed, a motion to stay action on his requests in order to allow Foxworth to pursue a second motion for a new trial. Foxworth filed pro se his second new trial motion in the Superior Court in December, 2000; the motion did not raise the Bruton violation claim. Foxworth, 570 F.3d at 423. Another Superior Court judge denied the second motion, and the Appeals Court affirmed its denial in a brief memorandum and order dated April 17, 2002. Commonwealth v. Foxworth, 54 Mass.App.Ct. 1112, 766 N.E.2d 129, 2002 WL 571658 (2002).

Thereafter, on July 22, 2002, Foxworth, now represented by counsel, filed in this court an amended FAR application that represented a consolidation of his original 2000 FAR application with another FAR application concerning the Appeals Court's 2002 decision. He also filed a motion to file the application late; the court allowed that motion on July 22.⁴ On September 6 2002, we denied Foxworth's amended FAR application without opinion or comment.⁵

On September 10, 2003, Foxworth filed a petition for habeas corpus in the United States District Court for the District of Massachusetts. Lengthy proceedings in the Federal courts ensued. In summary, on August 17, 2006, a District Court judge initially granted Foxworth's petition on the basis of the claimed Bruton violation, vacated his conviction, and ordered the Commonwealth to retry Foxworth within sixty days or release him; on appeal by the Commonwealth, the First Circuit remanded the case to the District Court judge to address Foxworth's claim of insufficient evidence; on remand, in May of 2008, that judge concluded that the evidence was insufficient to support Foxworth's conviction and ordered his release; and on the Commonwealth's appeal, the First Circuit certified to this court the question now before us. See Foxworth, 570 F.3d at 423-424, 437.

The certified question is relevant to the First Circuit's review of the habeas petition because that court has concluded, in contrast to the District Court judge, that the evidence presented at Foxworth's trial was sufficient to sustain his conviction, see id. at 428-429, and that the remaining pertinent question is whether Foxworth's Bruton violation claim entitles him to relief. In the view of the First Circuit, the answer to that question turns on the date on which Foxworth's direct appeal from his conviction was final, because for Federal habeas relief to be granted, the State court's decision is to be “measured against ‘clearly established Federal law, as determined by the Supreme Court of the United States.’ In most cases (and, specifically, in this case), the date of finality of the state court conviction determines the time line to be used for determining what Supreme Court decisions comprise the corpus of this ‘clearly established Federal law.’ ” Id. at 430, quoting 28 U.S.C. § 2254(d).⁶ Compare Griffith v. Kentucky, 479 U.S. 314, 322-323, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (newly declared constitutional rule must be applied to all criminal cases then pending on direct review), with Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (opinion of O'Connor, J.) (with limited exceptions, new constitutional rules do not apply to cases on collateral review that have become final before new rules announced).

The First Circuit considered that there were two possible dates of finality in the present case: (1) November 18, 1996, the date the Massachusetts Appeals Court's rescript issued, concluding that court's consideration of Foxworth's direct appeal; or (2) September 6, 2002, the date that this court denied Foxworth's amended FAR application Foxworth, 570 F.3d at 430. The difference in these dates is critical to the First Circuit's resolution of Foxworth's habeas corpus petition. That court has concluded that if the 1996 date were to represent the end of direct review in Foxworth's case, he would not be entitled to habeas corpus relief, because, based on the Supreme Court's decision in Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), the Appeals Court's rejection of Foxworth's Bruton claim “was not an unreasonable application of clearly established Federal law.” Foxworth, supra at 433. See id. at 436. If, on the other hand, the 2002 date defined finality for the direct review process, Foxworth's habeas petition should be granted because the Supreme Court's decision in Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), would then apply, and the Appeals Court's decision on the claimed Bruton violation represented an unreasonable application of Gray. Foxworth, supra at 434-435, 436.

Discussion. We accept the premise of the First Circuit, that the “date of finality” of a State court judgment (see note 6 supra ) is a matter to be determined with reference to State law. See Foxworth, 570 F.3d at 429, 437. See also Losh v. Fabian, 592 F.3d 820, 824-825 (8th Cir.2010) (State Supreme Court could determine whether particular type of appeal permitted under State law qualified as part of direct review of criminal conviction and sentence, or form of collateral review). Cf. Carey v. Saffold, 536 U.S. 214, 223, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) (“for purposes of applying a federal statute that interacts with state procedural rules, we look to how a state procedure functions”). But see Teas v. Endicott, 494 F.3d 580, 582 (7th Cir.2007) (definition of “direct review” in 28 U.S.C. § 2244 [d] [2006] is matter of Federal law). In the Commonwealth, the determination of the finality date is derived primarily from the Massachusetts Rules of Appellate Procedure and associated statutes. Every defendant in a criminal case has the right to bring an...