McGuinness v. Pepe

• Decision Date: 21 May 2001
• Docket Number: No. Civ.A. 00-11546-WGY.,Civ.A. 00-11546-WGY.
• Parties: Brendan M. MCGUINNESS, Petitioner, v. Peter PEPE, Respondent.
• Court: U.S. District Court — District of Massachusetts

150 F.Supp.2d 227

Brendan M. MCGUINNESS, Petitioner, v. Peter PEPE, Respondent.

No. Civ.A. 00-11546-WGY.

United States District Court, D. Massachusetts.

May 21, 2001.

Brendan M. McGuinness, South Walpole, MA, pro se.

Thomas W. Dee, Assistant Attorney General, Boston, MA, William J. Meade Assistant Attorney General, Criminal Bureau, Boston, MA, Peter Pepe, Cedar Junction, South Walpole, MA, for respondent.

MEMORANDUM AND ORDER

YOUNG, Chief Judge.

Where you start frequently influences where you come out. Faced with a petition for federal habeas corpus relief filed by state prisoner Brendan M. McGuinness ("McGuinness"), the Commonwealth here promptly moved to dismiss on the ground that the petition is time-barred by the rigid one-year statute of limitations on habeas corpus petitions found in the Antiterrorism and Effective Death Penalty Act¹ ("AEDPA").² Fair enough.

I. THE COMMONWEALTH'S FLAGSHIP ARGUMENT

Recognizing that McGuinness is a "frequent litigant," see Order of August 26, 2000 [Docket No. 7], in both this Court and the courts of the Commonwealth, and anticipating that he would seek to avail himself of the tolling provision found in 28 U.S.C § 2244(d)(2),³ the Commonwealth extensively develops the argument that under the cited provision, when seeking post-conviction relief, only the time spent in state courts—not federal—will toll the one-year statute of limitations. Resp't's Mem. at 6-16. This is an interesting issue and a hot one. The circuits are split. Compare Jones v. Morton, 195 F.3d 153, 158-59 (3d Cir.1999) (holding that tolling is afforded for various forms of state review only), with Walker v. Artuz, 208 F.3d 357, 359-60 (2d Cir.) (holding that the pendency of a federal habeas petition also tolls the statute), cert. granted sub nom. Duncan v. Walker, ___ U.S. ___, 121 S.Ct. 480, 148 L.Ed.2d 454 (2000) (No. 00-121).⁴

A. The First Circuit's (Non-) Stance on the Issue

In this district, Judge Lindsay confronted this issue—one of first impression in the First Circuit—in Neverson v. Bissonnette, No. 98-11719-RCL, 1999 WL 33301665 (D.Mass. Dec. 14, 1999) (unpublished decision), appeal filed, No. 00-1044 (1st Cir. Jan. 13, 2000). Neverson, whose conviction became final on October 25, 1993, Neverson, slip op. at 2, had a one-year grace period, running from the day after AEDPA's enactment, April 25, 1996,⁵ during which to file his federal habeas petition. Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir.1999); Mayne v. Hall, 122 F.Supp.2d 86, 90 (D.Mass.2000) (Stearns, J.) (adopting the report and recommendation of Magistrate Judge Bowler). Because Neverson did not file the habeas petition at issue until August 17, 1998, Neverson, slip op. at 2, it appeared untimely. But if the tolling provision of section 2244(d)(2) applied both while Neverson sought state post-conviction relief and during the time that an earlier habeas petition was pending in district court,⁶ then Neverson was still within the one-year grace period when he filed his second habeas petition in 1998. Id. at 4.

After noting that no case in the First Circuit or the District of Massachusetts addresses whether AEDPA's tolling provision applies to the period during which a habeas petition is pending in federal court, id., Judge Lindsay followed the majority of courts to consider the issue and held that section 2244(d)(2) was not intended to toll the running of the limitations period during the pendency of a federal habeas petition, id. at 4-5 (citing Jones, 195 F.3d at 158-59; Sperling v. White, 30 F.Supp.2d 1246, 1250 [C.D.Cal.1998]). Although Judge Lindsay expressed some reservations about the Sperling court's plain language analysis, he stated that he was "persuaded by the court's reasoning that the design, structure, and purpose of AEDPA and the applications of traditional canons of statutory construction that § 2244(d)(2) does not toll the running of the limitations period during the pendency of a federal habeas petition." Id. at 5 (citing Sperling, 30 F.Supp.2d at 1251-53). Accordingly, Judge Lindsay adopted the holding of the Sperling court and granted the respondent's motion to dismiss the petition as untimely. Id. at 6. Because Neverson had raised issues not previously decided by the First Circuit, however, Judge Lindsay issued a certificate of appealability. Id. at 6-7.

On November 9, 2000, a First Circuit panel heard argument in Neverson and Delaney v. Matesanz, No. 99-1972 (1st Cir. filed Aug. 24, 1999), a case presenting the same issue. On November 13, 2000, the United States Supreme Court granted certiorari to review the decision of the Second Circuit in Walker v. Artuz.⁷ Stating that "[t]he question to be considered by the [Supreme] Court is likely decisive," see Neverson v. Bissonnette, No. 00-1044 (1st Cir. Nov. 15, 2000) (unpublished order), the First Circuit has now stayed all proceedings in Neverson and Delaney pending the Supreme Court's decision in Walker.⁸

B. The Heart of the Matter

Having extensively developed—through consideration of the plain language, legislative history, and objectives of AEDPA, as well as discussion of the traditional canons of statutory construction and a pointed attack on Walker—its position that federal post-conviction proceedings do not toll the statute of limitations (and having used up most of its twenty page brief doing so, see Local Rule 7.1[B][4] [imposing a twenty-page limitation on briefs and memoranda]), the Commonwealth concludes by saying that McGuinness loses even if the time devoted to both state and federal post-conviction proceedings is excluded from the running of the one-year statute of limitations. Resp't's Mem. at 16-17.

Wait a minute. Why didn't you say so in the first place? If that's true, then this Court need not consider the issue currently before the Supreme Court. Indeed, it would be an improper advisory opinion for this Court to do so. U.S. Const. art. 3, § 2, cl. 1; see also Giese v. Pierce Chem. Co., 43 F.Supp.2d 98, 111 (D.Mass.1999) (distinguishing a justiciable case from an advisory opinion). Accordingly, it is first advisable to recount the procedural history of this case in some detail on the assumption that McGuinness's post-conviction proceedings in both state and federal court toll the running of the one-year statute of limitations.

II. PROCEDURAL HISTORY

A. Background

1. McGuinness's Plea and Sentencing

On June 26, 1990, McGuinness pled guilty in the Massachusetts Superior Court sitting in and for the County of Norfolk to the charge of armed robbery. McGuinness v. Commonwealth, 420 Mass. 495, 495, 650 N.E.2d 780 (1995) ("McGuinness I"). The trial justice accepted McGuinness's guilty plea and sentenced him to twenty years incarceration. Id. Under this sentence, McGuinness would become eligible for parole after two years. Commonwealth v. McGuinness, 421 Mass. 472, 473, 658 N.E.2d 150 (1995) ("McGuinness II").

McGuinness claims that this "plea was legally and realistically involuntary because it was induced by a judge's promise to release him after serving two ... years of his sentence via a motion to revise and revoke if the Parole Board did not set him free, so long as he was on good behavior while incarcerated."⁹ Pet'r's Mem. at 2. McGuinness asserts that this promise was illegal because the law forbids any consideration of post-sentencing events, i.e., McGuinness's behavior while in prison, at a revise and revoke hearing held pursuant to Massachusetts Rule of Criminal Procedure 29 ("Rule 29").¹⁰

2. Rule 29 Motion to Revise and Revoke

On August 23, 1990, within the sixty-day time period established by Rule 29, McGuinness's counsel filed a motion to revise and revoke McGuinness's sentence. McGuinness I, 420 Mass. at 496, 650 N.E.2d 780. The motion remained dormant for two years, consistent with the trial justice's comments at sentencing.¹¹ Id.

Two years and two days after McGuinness was sentenced, on June 29, 1992, the trial justice allowed McGuinness's motion to revise and revoke without a hearing, suspending the remainder of his sentence. McGuinness II, 421 Mass. at 473, 658 N.E.2d 150. After the Commonwealth moved for reconsideration, the trial justice vacated the order, pending a hearing. Id. During this hearing, held on July 28, 1992, the trial justice heard the testimony of several probation officers, who stated that McGuinness had been guilty of multiple disciplinary offenses, including one inmate assault and three staff assaults. Id. At the close of the hearing, the trial justice granted the Commonwealth's motion to reconsider and denied McGuinness's motion to revise and revoke. Id.

3. Petition for Extraordinary Relief

McGuinness immediately moved for reconsideration of the order denying his motion to revise and revoke, but this motion was denied. Id. On June 6, 1994, McGuinness petitioned the Massachusetts Supreme Judicial Court for extraordinary relief. See Mass.Gen.Laws ch. 211, § 3. A single justice of the Supreme Judicial Court denied McGuinness's petition, and in McGuinness I, the Supreme Judicial Court affirmed the judgment of the single justice because McGuinness had failed to demonstrate that the alleged errors could not be remedied under the ordinary review process. McGuinness I, 420 Mass. at 498, 650 N.E.2d 780; McGuinness II, 421 Mass. at 473-74, 658 N.E.2d 150.

4. Rule 30 Motion to Set Aside the Guilty Plea

After the Supreme Judicial Court affirmed the denial of his petition, McGuinness moved to withdraw his guilty plea and for a new trial in the Massachusetts Superior Court, pursuant to Massachusetts Rule of Criminal Procedure 30 ("Rule 30").¹² A justice of the Superior Court denied McGuinness's motion, and McGuinness filed a timely notice of appeal. McGuinness II, 421 Mass. at 474, 658 N.E.2d 150. On its own initiative, the Supreme Judicial Court then transferred McGuinness's Rule 30 appeal from the Appeals Court to itself. Id. In McGuinness II, the Supreme Judicial Court affirmed the denial of McGuinness's ...