Holmes v. Spencer

• Decision Date: 16 July 2012
• Docket Number: No. 09–2431.,09–2431.
• Parties: Alex HOLMES, Petitioner, Appellant, v. Lewis SPENCER, Martha Coakley, Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

685 F.3d 51

Alex HOLMES, Petitioner, Appellant,

v.Lewis SPENCER, Martha Coakley, Respondents, Appellees.

No. 09–2431.

United States Court of Appeals,First Circuit.

Heard Sept. 12, 2011.

Decided July 16, 2012.

Janet Hetherwick Pumphrey for petitioner.

Anne M. Thomas, Assistant Attorney General, Criminal Bureau, with whom Martha Coakley, Attorney General, was on brief for respondents.

Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

Petitioner–Appellant Alex Holmes (“Holmes”) filed a federal petition for a writ of habeas corpus to challenge his conviction and sentence for murder in Massachusetts. The district court dismissed Holmes's petition as untimely under the Antiterrorism and Effective Death Penalty Act's (“AEDPA”) one-year statute of limitations. 28 U.S.C. § 2244(d). Holmes appealed the dismissal of his petition. We agree with the district court that Holmes's petition was not timely filed under AEDPA. However, we remand to the district court to consider whether the statute of limitations should be equitably tolled.

I. Background

The Commonwealth of Massachusetts charged Holmes and two other defendants with first-degree murder in the death of Todd Richardson (“Richardson”). Holmes pled not guilty to the first-degree murder charge. However, on May 1, 1998, Holmes pled guilty to second-degree murder. The court sentenced Holmes to life in prison, the mandatory sentence in Massachusetts for second-degree murder. SeeMass. Gen. Laws ch. 265, § 2. Holmes claims that he pled guilty because his trial counsel, Stewart Graham, Jr. (“Graham”), told him that the prosecutor had proposed a deal: if Holmes pled guilty to second-degree murder and if the prosecutor decided that she wanted information from Holmes regarding others who may have been involved in Richardson's killing, Holmes would be able to reduce his sentence by filing a Motion to Revise or Revoke under Mass. R.Crim. P. 29 (“Rule 29”).

After his sentencing, Holmes was sent to the Massachusetts Correctional Institution at Concord, MA (“MCI–Concord”). While there, on June 17, 1998, Holmes filed a Motion to Revise or Revoke Sentence pursuant to Rule 29 (the “Rule 29 Motion”). The Rule 29 Motion did not identify any underlying grounds; instead, it simply stated that “the defendant attaches an Affidavit in Support of this motion and reserves the right to file a supplemental affidavit, through appointed counsel, when a court hearing is requested.” The Affidavit that Holmes submitted with his Rule 29 Motion was similarly lacking in detail. The Affidavit simply stated that Holmes wished “to preserve any and all rights due me under the Massachusetts Rules of Criminal Procedure.” It also stated, “[a]t the appropriate time, through counsel or upon my own motion, I will request that this matter be brought forward and heard by the sentencing judge.”

Both the Motion and the accompanying Affidavit appear to be boilerplate forms. Both are typewritten documents with spaces in which information is to be filled in by hand. The Motion contains spaces in which Holmes hand-wrote his name, the docket number, the court in which he was sentenced, the date of sentence, and the date he filed the Motion itself. The Affidavit contains spaces for the same information plus the underlying charge and the sentence. The record does not reflect who gave the forms to Holmes, what information was given to Holmes, or what information was even available to him regarding the forms. Holmes's Reply Brief to this Court states that in 1998, all newly-sentenced prisoners were given these forms when they arrived at MCI–Concord; however, there is no evidence in the record, other than the forms themselves, regarding this issue.

Holmes never requested that the Rule 29 Motion be brought forward for a hearing in front of the sentencing judge. Moreover, as it turns out, Holmes's Rule 29 Motion was futile. Because second-degree murder carries a mandatory life sentence, the trial judge had no discretion in sentencing, and thus had no authority to revise or revoke Holmes's sentence. See Commonwealth v. Cowan, 422 Mass. 546, 664 N.E.2d 425, 427 (1996). Similarly, Holmes's anticipated post-sentencing cooperation with the government could not serve as a basis for his Rule 29 Motion. See Commonwealth v. Barclay, 424 Mass. 377, 676 N.E.2d 1127, 1129 (1997) (observing that Massachusetts law prohibits the consideration of post-sentencing conduct when ruling on a motion to revise or revoke).

Holmes claims that in June of 2000, through his research in the prison law library,¹ he learned of the futility of his Rule 29 Motion. On August 14, 2000, Holmes filed pro se a separate motion to withdraw his guilty plea and obtain a new trial, alleging that Graham was constitutionally ineffective. SeeMass. R.Crim. P. 30 (“ Rule 30”). Holmes claims that his discovery of the futility of his Rule 29 Motion is what prompted him to file his Rule 30 Motion.

On May 11, 2003, Graham sent a letter to Holmes in response to letters Holmes had sent him on December 31, 2002 and April 28, 2003. Graham confirmed that during plea negotiations, Holmes and Grahamdiscussed with the prosecutor the possibility of filing a motion to revise and revoke if the prosecutor decided she wanted information from Holmes. However, Graham denied that Holmes accepted the plea deal solely on the basis of this possibility; rather, Graham said he had advised Holmes to accept the plea to second-degree murder regardless of whether the prosecutor wanted information because Holmes was “facing a significant risk of a first degree murder conviction.” In addition, Graham said that he had been “neither optimistic nor pessimistic regarding the revise and revoke,” and that he had “reported it to [Holmes] as a possibility mentioned by the prosecutor.”

Holmes wrote back to Graham on June 14, 2003, insisting that Graham had “assured” him that the judge would grant the motion to revise and revoke if the prosecutor wanted information from Holmes regarding Nakia Mitchell (“Mitchell”), another possible suspect in Richardson's killing. In response, on August 25, 2003, Graham denied that he had “assured” Holmes that the judge would grant a motion to revise and revoke. Graham also reiterated that there was never any commitment from the prosecutor to use Holmes's information about Mitchell. “Since she [the prosecutor] decided not to proceed,” Graham wrote, “there was not and is not any possibility of filing [a motion to revise or revoke].” “Therefore,” Graham continued, “whether a judge would or would not have allowed such a motion is a moot point.”

On August 4, 2004, Holmes filed an Amended Motion to Withdraw Guilty Plea and for a New Trial. This amended Rule 30 Motion included the claim that Holmes would not have pled guilty had he known that the Rule 29 Motion would have been futile. After successive denials of the Rule 30 motion by the trial court, the intermediate appellate court, and the Supreme Judicial Court (“SJC”), the SJC denied Holmes's final petition for reconsideration on September 11, 2007.

On April 9, 2008, Holmes filed a pro se petition for a writ of habeas corpus in the U.S. District Court for the District of Massachusetts pursuant to 28 U.S.C. § 2254. Holmes raised four claims of ineffective assistance of counsel. Ground One of Holmes's petition was that he was induced to plead guilty based on Graham's faulty assurance that Holmes would be able to reduce his sentence via a Rule 29 motion. Grounds Two through Four raised various complaints about alleged deficiencies in Graham's pre-trial strategy and his investigation of the case. Respondents Luis Spencer, Superintendent of MCI–Cedar Junction, and Martha Coakley, Attorney General of Massachusetts (collectively, “Respondents”), moved to dismiss Holmes's petition on the ground that it was untimely under AEDPA.

AEDPA imposes a one-year statute of limitations on federal habeas petitions filed by state prisoners. See28 U.S.C. § 2244(d)(1). That one-year period commences when the petitioner's conviction becomes final (or when the petitioner could have reasonably discovered the factual basis for his habeas claim, whichever occurs later), but excludes, inter alia, any time during which he has an application for collateral review pending before the state courts. Id. at § 2244(d)(1), (2). Respondents contended that Holmes's Rule 30 motion did not save Holmes's habeas corpus petition from untimeliness because Holmes filed the Rule 30 motion after AEDPA's one-year limitations period had already expired.

In opposition to Respondents' motion, Holmes argued that his Rule 29 Motion, filed on June 17, 1998 (less than two months after his guilty plea), tolled the AEDPA statute of limitations. Holmes also argued that the statute of limitations should be equitably tolled because the state trial court never ruled on his Rule 29 Motion. In response to Holmes's opposition, Respondents filed a Reply Memorandum in support of their motion to dismiss. Respondents argued that the Rule 29 Motion did not toll the statute of limitations. In support of this position, Respondents cited to cases from the District of Massachusetts that held that a Rule 29 motion was not a motion seeking “post-conviction or collateral review” as required by 28 U.S.C. § 2244(d)(2). See, e.g., Phillips v. Spencer, 477 F.Supp.2d 306, 310 (D.Mass.2007). Respondents also argued that the statute of limitations should not be equitably tolled.

On October 1, 2008, the district court denied Respondents' motion to dismiss. The court noted that under 28 U.S.C. § 2244(d)(1)(D), the one-year statute of limitations under AEDPA may begin to run from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” The court held that there was a factual question regarding when Holmes could have discovered Graham's alleged mistake regarding the Rule 29 Motion. The court...