Mayne v. Hall

Decision Date15 November 2000
Docket NumberNo. CIV. A. 00-11209-RGS.,CIV. A. 00-11209-RGS.
Citation122 F.Supp.2d 86
PartiesHarlo MAYNE, Petitioner, v. Timothy HALL, Respondent.
CourtU.S. District Court — District of Massachusetts

Harlo Mayne, Norfolk, MA, pro se.

William J. Meade, Asst. Atty. General Criminal Bureau, Boston, MA, for Defendant.


STEARNS, District Judge.

I ADOPT the thorough and well-reasoned Report and Recommendation of the Magistrate/Judge.



BOWLER, United States Magistrate Judge.

Respondent Timothy Hall ("respondent")1 moves to dismiss the above styled petition for writ of habeas corpus as untimely under 28 U.S.C. § 2244(d) ("section 2244(d)") of the Antiterrorism and Effective Death Penalty Act of 1996 ("the AEDPA").2 Petitioner attacks his 1992 conviction in Massachusetts Superior Court Department (Suffolk County) ("the trial court") for second degree murder on the grounds of: (1) ineffective assistance of trial and appellate counsel;3 (2) improper restriction of the cross examination of the prosecution's chief witness; (3) prosecutorial misconduct during closing argument; and (4) incorrect jury instructions. (Docket Entry 1 & 7).


On February 11, 1992, a grand jury in Suffolk County, Massachusetts, returned an indictment charging petitioner with first degree murder. After a five day trial and four days of deliberations, the jury found petitioner guilty of the lesser included offense of murder in the second degree. Petitioner received a life sentence. See Commonwealth v. Mayne, 38 Mass.App. Ct. 282, 647 N.E.2d 89, 94 (1995).

On June 15, 1992, petitioner filed a timely notice of appeal. On June 24, 1993, before the Massachusetts Appeals Court ("the appellate court") issued a ruling on the direct appeal, petitioner filed a motion for a new trial. On August 17, 1994, after conducting a hearing and taking the motion under advisement, the trial judge denied the motion for a new trial.

On September 8, 1994, petitioner filed an appeal of the denial of the motion for a new trial. The appellate court affirmed the trial court's ruling on March 14, 1997. Commonwealth v. Mayne, 42 Mass.App. Ct. 1110, 677 N.E.2d 719 (1997). On April 28, 1997, the Massachusetts Supreme Judicial Court ("the SJC") denied petitioner's appeal of the appellate court's decision affirming the trial court's denial of the new trial motion. Commonwealth v. Mayne, 424 Mass. 1108, 679 N.E.2d 558 (1997).

Returning to petitioner's direct appeal, on March 23, 1995, the appellate court affirmed the conviction. Commonwealth v. Mayne, 38 Mass.App.Ct. 282, 647 N.E.2d 89 (1995). On September 6, 1995, the SJC denied petitioner's application for leave to obtain further appellate review. Commonwealth v. Mayne, 421 Mass. 1101, 654 N.E.2d 1202 (1995).

From late 1995 to the middle of 1996 petitioner mailed various trial transcripts and filings from the state court proceedings to his mother. Petitioner's legal documents exceeded the limit prison officials allowed an inmate to retain thereby causing petitioner's mailings to his mother. In an attempt to prepare a second motion for a new trial after the SJC's April 28, 1997 denial of the first motion for a new trial petitioner asked his mother to return the trial transcripts and a number of other court documents. Unfortunately, petitioner's mother was unable to understand petitioner's instructions and, in addition to other factors, injuries made it difficult for her to retrieve the documents.4 Petitioner also requested copies of the documents from his former counsel who also delayed in sending such documents to petitioner. Accordingly, it was not until March 16, 1998, that petitioner filed a second motion for a new trial.5

On July 3, 1998, the trial court denied the pro se motion. On August 10, 1998, petitioner filed a timely appeal. On July 27, 1999, the appellate court affirmed the trial court's denial of the second motion for a new trial. Commonwealth v. Mayne, 47 Mass.App.Ct. 1111, 715 N.E.2d 477 (1999). The SJC denied petitioner's appeal therefrom on October 27, 1999. Commonwealth v. Mayne, 720 N.E.2d 469 (Mass.1999).

Petitioner's attempts to file the present petition began in November 1999. In particular, on November 12, 1999, petitioner sent a letter to the clerk of the United States District Court for the District of Massachusetts asking whether he was procedurally barred from filing a federal habeas petition. The clerk stamped the letter "filed" with a date stamp of November 17, 1999, and returned the letter to petitioner with a list of lawyer referral services operated in Boston. Petitioner not only sent the November 12 letter to the court's former address at Post Office Square but the lawyer referral list also contained the incorrect, former address of the court as located at 90 Devonshire Street in Post Office Square.6

On November 23, 1999, petitioner completed the first petition and placed it inside a stamped envelope with the incorrect Post Office Square address. By cover letter, petitioner asked the clerk to file the petition and application to proceed in forma pauperis. Petitioner also asked the clerk to advise him if he needed to complete an additional form and noted that he was in the process of preparing a supporting memorandum which he would mail within a few weeks.

The first petition attacks the same 1992 conviction for second degree murder and resulting life sentence. Therein, petitioner raises grounds similar to those brought in the present petition.7

Not having heard back from the court for three months, on February 25, 2000, petitioner wrote a letter of inquiry to the clerk, again using the incorrect Post Office Square address. He received no reply.

Accordingly, on June 6, 2000, petitioner executed the present petition and on June 14, 2000, sent it to the incorrect Post Office Square address by certified mail. Petitioner alleges that the letter containing the petition was returned unopened with the notation "incorrect address." At this point, petitioner realized the mistake and remailed the petition to the correct address at 1 Courthouse Way on or about June 17, 2000. On June 20, 2000, the pro se petition was filed and docketed. Although this court assumes petitioner used MCI-Norfolk's internal mail system in November 1999 and June 2000, it is unclear whether this system maintains an internal recording of outgoing legal mail.


Prior to the AEDPA's enactment, "a prisoner faced no strict time constraints in filing a petition for writ of habeas corpus." Villegas v. Johnson, 184 F.3d 467, 468 (5th Cir.1999). The AEDPA altered these circumstances by imposing a one year limitations period for habeas petitions. 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) (applying the reasoning and the one year grace period applicable to section 2255 motion in Rogers v. United States, 180 F.3d 349, 351-352 (1st Cir.1999), cert. denied, 528 U.S. 1126, 120 S.Ct. 958, 145 L.Ed.2d 831 (2000), to Gaskins' section 2254 petition). As reasoned in Rogers, a conviction becomes final for purposes of applying the grace period when the Supreme Court denies an application for certiorari. Rogers v. United States, 180 F.3d at 352. Where, as here, petitioner did not seek certiorari, 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 prior to the April 24, 1996 enactment of the AEDPA.8 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 (recognizing that one year period began to run "on April 25, 1996, the day after AEDPA's enactment"); see also Rule 6(a), Fed.R.Civ.P.; Flanagan v. Johnson, 154 F.3d 196, 201-202 (5th Cir.1998) (applying Rule 6(a) to calculation of AEDPA's one year grace period).

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 (applying section 2244(d)(2) tolling provision to section 2254 petition involving conviction which became final prior to April 24, 1996). Unfortunately, the First Circuit in Gaskins did not elaborate upon what state filings constitute "properly filed applications" under section 2244(d)(2) and whether such filings remain "pending" between the time a state court denies a post-conviction motion and the time a petitioner files an appeal or the time to file such an appeal expires under state procedural rules.9 There is also a dearth of case law in this circuit regarding whether a state post-conviction motion remains "pending" after the state's highest court renders a decision for the 90 day period in which a petitioner may apply for certiorari with the Supreme Court.10 Accordingly this court turns to the language and purpose of the statute and appellate cases outside the First Circuit for guidance.

Section 2244(d)(2) excludes the time period during which a petitioner seeks state collateral review from the one year grace period with the following language:

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 petitioner to "first exhaust his state court remedies before seeking federal habeas...

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