Lemay v. Murphy, Civil Action No. 07-10785-RGS.
| Decision Date | 22 January 2008 |
| Docket Number | Civil Action No. 07-10785-RGS. |
| Citation | 537 F.Supp.2d 239 |
| Parties | Thomas Charles LEMAY v. Robert MURPHY. |
| Court | U.S. District Court — District of Massachusetts |
Thomas Charles Lemay, Bridgewater, MA, pro se.
Annette C. Benedetto, Department of Attorney General, Boston, MA, for Robert Murphy.
ORDER ON MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
As I agree with Magistrate Judge Bowler's thorough Report, I will adopt her Recommendation and order the petition DISMISSED.1 The case may now be closed.
Pending before this court is a motion to dismiss (Docket Entry # 6) filed by respondent Robert Murphy ("respondent"), Superintendent of the Massachusetts Treatment Center for Sexually Dangerous Persons ("treatment center"), in Bridgewater, Massachusetts. Respondent moves to dismiss the above styled petition for writ of habeas corpus filed pro se by petitioner Thomas Charles Lemay ("petitioner"), who has been civilly committed to the treatment center. Respondent seeks dismissal because: (1) petitioner failed to timely file the petition pursuant to 28 U.S.C. § 2254(b)(1)(A); (2) petitioner failed to exhaust state court remedies; and (3) grounds one and two in the petition do not raise a federal or constitutional issue. (Docket Entry # 7).
An evidentiary hearing is not required or necessary. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the court "shall not hold an evidentiary hearing on a claim unless a petitioner shows that his `claim relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence.'" Neverson v. Bissonnette, 242 F.Supp.2d 78, 88 (D.Mass.2003) (quoting section 2254(e)(2)), aff'd on other grounds, 366 F.3d 32 (1st Cir.2004). Restated, the standard provides that "if a petitioner develops a factual basis for a claim in state court (or sufficiently attempts to do so), subpart(e)(2) does not bar an evidentiary hearing in district court." Guidry v. Dretke, 397 F.3d 306, 322 (5th Cir.2005).
The facts taken from the state court records and related documents contain all the relevant and necessary undisputed facts. See, e.g., Neverson v. Bissonnette, 242 F.Supp.2d at 88. Thus, even if petitioner fell outside the confines of section 2254(e)(2), an evidentiary hearing under pre-AEDPA law is not required. See Lopez v. Commonwealth of Massachusetts, 349 F.Supp.2d 109, 125 (D.Mass.2004) ().
On February 6, 1987, a grand jury in Worcester County, Massachusetts returned indictments charging petitioner with rape of a child by force, assault and battery by means of a dangerous weapon, kidnapping, and indecent assault and battery on a child.1 The offenses took place on September 27, 1986. On May 20, 1987, petitioner pled guilty to all charges.
On the same day, a judge of the Massachusetts Superior Court Department (Worcester County) ("the trial court" or "the trial judge")2 ordered petitioner committed to the treatment center for 60 days, during which time he was to be examined by qualified examiners to determine if he was a sexually dangerous person. On June 10, 1987, the examiners filed their reports with the trial court in which they found that petitioner was a sexually dangerous person.
On December 23, 1987, the trial court imposed a prison sentence of ten to 15 years for the rape conviction. Petitioner received prison sentences in connection with the other charges that ran concurrently with the rape sentence. On the same day, the trial court held a sexually dangerous hearing ("SDP hearing")3 and committed petitioner to the treatment center for one day to life pursuant to sections four and five of former Massachusetts General Laws chapter 123A. Mass. Gen. L. ch. 123A (1987 & 1988 ed.) ("former chapter 123A").4 In accordance with the statute, the commitment to the treatment center ran concurrently with the sentence for the rape conviction. Mass. Gen. L. ch. 123A, § 5 (1987 & 1988 ed.) (court "shall sentence such person ... for the original offense and may also commit such person to the center.... person who is both committed and sentenced under this section shall serve such sentence concurrently with the commitment").
On January 11, 1988, petitioner filed a pro se motion to withdraw the guilty plea and for a new trial under Rule 30 of the Massachusetts Rules of Criminal Procedure ("Rule 30"). (Docket Entry # 9, Ex. 2, p. A. 185). The trial judge held a hearing in October 1990 and denied the motion on December 3, 1990. (Docket Entry # 9, Ex. 2, pp. A. 15 & 185). On June 19, 1992, the Massachusetts Appeals Court ("the appeals court") denied the appeal of the denial of the new trial motion.5 (Docket Entry # 9, Ex. 2, pp. A. 198-201).
Also on January 11, 1988, petitioner filed a pro se motion for release from unlawful restraint pursuant to Rule 30(a). (Docket Entry # 9, Ex. 2, pp. A. 15 & 226-227). The trial court's dockets6 does not reflect any further action on this motion. (Docket Entry # 9, Ex. 2, pp. A. 15 & 23-27).
On August 28, 1995, petitioner filed a second motion for release from unlawful restraint under Rule 30(a). (Docket Entry # 9, Ex. 2, pp. A. 120-122). The trial court, perhaps erroneously, docketed the motion, an affidavit in support of the motion and a memorandum in support of the motion in Civil Action Number 95-1818 as opposed to in the trial court's docket.7 (Docket Entry # 9, Ex. 2, pp. A. 120-122). The Commonwealth moved to dismiss. On November 17, 1995, the associate justice assigned to Civil Action Number 95-1818 allowed the motion to dismiss, dismissed the Rule 30(a) motion for release from unlawful confinement and ordered that the motion "be re-docketed as Commonwealth v. Thomas C. LeMay, indictment numbers 87-0256 through 87-0259," i.e., in the trial court's docket. (Docket Entry # 9, Ex. 2, p. A. 122).
Accordingly, on November 17, 1995, the trial court's docket contains the order redocketing the Rule 30(a) motion. (Docket Entry # 9, Ex. 2, pp. A. 24, 28, 30 & 32). The affidavit in support of the motion for release from unlawful restraint alleges a denial of equal protection and due process under the Fourteenth Amendment as well as under former chapter 123A.8 (Docket Entry # 9, Ex. 2, pp. A. 40-42). As stated in the affidavit, the basis for the motion rests upon the sentencing in the morning of December 23, 1987, prior to the SDP hearing and commitment in the afternoon as a violation of equal protection and due process. Petitioner further argued that the repeal of former chapter 123A resulted in different treatment and classification thereby violating petitioner's equal protection rights under section one of the Massachusetts Declaration of Rights and under the Fourteenth Amendment.
On August 28, 1995, petitioner filed the memorandum in support of the motion for release from unlawful restraint reiterating the foregoing grounds. (Docket Entry # 9, Ex. 2, pp. A. 45-50). Like the affidavit, the supporting memorandum has the stamped docket number "95-1818' crossed out by hand with the words, "Redocketed 87-0256-0259." (Docket Entry # 9, Ex. 2, p. A. 43).
The memorandum cites both state and federal constitutional cases to raise due process and equal protection arguments under the federal Constitution.9 For example, petitioner cites "San Antonio Independent School District v. Rodriguez, 411 U.S. 450, 457-458 (1988)," for the principal that a "`classification involving a suspect group of a fundamental right must be supported by a compelling State interest.'" (Docket Entry # 9, Ex. 2, p. A. 49). Although the six page memorandum devotes two full pages to the Commonwealth v. Desroches, 27 Mass.App.Ct. 866, 545 N.E.2d 64 (1989), decision, it references the United States Constitution and petitioner's due process and equal protection rights throughout the last four pages.
In December 1996, the trial court allowed petitioner's motion for appointment of counsel and instructed counsel to advise the court when the motion for release from unlawful restraint would be "ready for hearing." (Docket Entry # 9, Ex. 2, p. A. 24). On November 30, 2000, the Committee for Public Counsel Services ("CPCS") advised the trial court of its decision "not to assign counsel." (Docket Entry # 9, Ex. 2, p. A. 24). Accordingly, on December 4, 2000, the trial court ordered the assistant district attorney to consult with petitioner and propose various dates for a hearing on the motion.
On June 8, 2001, petitioner filed a motion to amend the motion for release from unlawful restraint under Rule 30(a). (Docket Entry # 9, Ex. 2, pp. A. 25 & 35-38). Clarifying the original motion, petitioner argued that the trial court did not commit him to the treatment center until after the sentencing. He asserted that the commitment violated equal protection and due process because it took place after the sentencing. He further maintained it was error to commit him to the treatment, center "without any new sexually assaultive behavior." (Docket Entry # 9, Ex. 2, p. A. 35). On December 17, 2001, the trial court appointed counsel for petitioner and, endorsed the motion to amend the motion for unlawful restraint with the statement that it would take no action pending the appointment. (Docket Entry # 9, Ex. 2, pp. A. 25 & 35).
Difficulties between petitioner and appointed counsel ensued and on October 8, 2002, the trial court instructed CPCS to appoint successor counsel "promptly." (Docket Entry # 9, Ex. 2, p. A. 25). Successor couns...
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