Phillips v. Spencer, Civil Action No. 06-10456-NMG.
| Decision Date | 24 January 2007 |
| Docket Number | Civil Action No. 06-10456-NMG. |
| Citation | 477 F.Supp.2d 306 |
| Parties | Joseph A. PHILLIPS, Petitioner, v. Luis SPENCER, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
Joseph A. Phillips, Norfolk, MA, pro se.
Randall E. Ravitz, Office of the Attorney General, Boston, MA, for Respondent.
Presently before the Court is a motion for an evidentiary hearing and a petition for a writ of habeas corpus, both filed, pro se, by Joseph A. Phillips ("Phillips"). On July 18, 2006, United States Magistrate Judge Marianne B. Bowler filed a Report and Recommendation that the petition should be denied. On August 3, 2006, Magistrate Judge Bowler supplemented her report by recommending that the motion for evidentiary hearing should likewise be denied. Phillips filed an objection to both recommendations, raising issues not addressed by the Magistrate Judge.
After reviewing those objections, this Court accepts and adopts the Magistrate Judge's recommendations, relying substantially on the reasoning articulated in her reports.
Phillips is currently incarcerated at the Massachusetts Correctional Institute in Norfolk on a sentence for a 1992 conviction for one count of assault with intent to rape a child under the age of 16, three counts of indecent assault and battery of a child under the age of 14 and one count of cocaine possession. Phillips was indicted in September, 1991 and at his arraignment, he pled not guilty to all counts. On August 24, 1992, Phillips changed his plea to guilty on all counts and was sentenced to 20 years on the assault with intent to rape count and nine to ten years on each of the other counts. At the time, the trial court suspended the shorter sentences and placed Phillips on probation to commence after the completion of the 20 year sentence. On the same date, Phillips filed a Rule 29 motion to revise and revoke the sentence.
In August, 1994, Phillips filed an appeal of his conviction in the Massachusetts Appeals Court, which affirmed the trial court in August, 1995 and issued a rescript opinion one month later. Phillips did not file an application for leave to obtain further appellate review ("ALOFAR") with the Supreme Judicial Court ("SJC").
In September, 1996, Phillips's suspended sentence with probation was revoked by the trial court and Phillips filed a notice of appeal of that revocation to the Appellate Division of the Superior Court ("ADSC") in October, 1996. The ADSC upheld the revocation and dismissed the appeal in August, 1998. A few weeks later, Phillips filed a motion to suspend the balance of the sentence but the trial court denied that motion.
Phillips filed a second Rule 29 motion in the trial court in October, 1996 and then a third such motion in August, 1999. That same month, the trial court denied the first Rule 29 motion and five years later denied the third Rule 29 motion.
In July, 2001, Phillips filed a Rule 30 motion for a new trial which was denied by the trial court later that year. Phillips filed a timely notice of appeal. In March, 2003, the Appeals Court affirmed the trial court's denial of the Rule 30 motion and Phillips filed a timely ALOFAR with the SJC which was promptly denied.
In April, 2004, Phillips filed another motion for a new trial seeking to withdraw his guilty plea. The trial court denied the motion in May, 2005 and Phillips filed a notice of appeal. In January, 2006, the Appeals Court affirmed the trial court's denial and Phillips filed a second ALOFAR with the SJC that month which the SJC again promptly denied. On March 13, 2006, Phillips filed the pending petition for writ of habeas corpus.
On July 18, 2006, Magistrate Judge Bowler found that Phillips's petition for writ of habeas corpus was untimely and thus recommended that the motion to dismiss be allowed. The following day, Phillips filed a `motion for an evidentiary hearing which the Magistrate Judge recommended this court deny.
Magistrate Judge Bowler's Report and Recommendation to allow the respondent's motion to dismiss focuses solely on the procedural default issue. The report traces the history of Phillips's various filings and correctly concludes that the petition is procedurally defaulted for failure to file the writ within the AEDPA statute of limitations.
Phillips's objection to the report responds to the time bar issue and also raises several new grounds for granting the writ despite the procedural default. Specifically, Phillips seeks equitable tolling, raises a constitutional challenge to the AEDPA time period and asserts that he is actually innocent of the crime to which he pled guilty.
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), which became effective on April 24, 1996, includes a one-year statute of limitations for petitions for writs of habeas corpus from state court judgments. 28 U.S.C. 2244(d)(1). The statute provides that the limitation period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Magistrate Judge Bowler recommended that Phillips's petition be found untimely on the basis of the date on which the judgment became final. In his objection to that recommendation, Phillips contends that there are other Section 2244(d)(1) grounds for tolling the statute of limitations in this case. None of those suggested grounds is, however, meritorious.
A defendant with a final conviction prior to the effective date of AEDPA has one year from the " latter date to file a petition for habeas corpus. See Cordle v. Guarino, 428 F.3d 46, 48 (1st Cir.2005) (citation omitted). Phillips's conviction became final upon expiration of the period for filing an ALOFAR with the SJC after the Massachusetts Appeals Court affirmed the trial court's judgment in August, 1995 and issued a rescript opinion on September 5, 1995. Pursuant to Mass.R.App.P. 27.1(a), Phillips had 20 days to file the ALOFAR. He failed to make such a filing and thus his state court conviction became final on September 25, 1995. The one-year statute of limitations for filing his habeas petition began to run on April 24, 1996 and expired on April 24, 1997.
Phillips filed a petition for writ of habeas corpus in this case on March, 13, 2006. The limitation period for filing habeas petitions is tolled during the pendency of state-court review for post-conviction or collateral relief. See 28 U.S.C. § 2244(d)(2). Thus, unless the statute of limitations was tolled from April 24, 1997 until the filing date in March, 2006, his petition is time-barred.
Before April 24, 1997, Phillips filed two Rule 29 motions (August 1992 and October 1996) and an appeal with the ADSC (October 1996). As `explained below, none of those filings succeeds in tolling the applicable statute of limitations period.
Phillips's first Rule 29 motion was filed in August, 1992 and denied in August, 1999. Even if consideration of that motion constituted collateral review necessary to toll the AEDPA statute, it would be insufficient to preserve his March, 2006 habeas petition. Phillips's second Rule 29 motion was, however, filed in October, 1996 and the trial court has not yet ruled on it.
Magistrate Judge Bowler correctly concluded that a Rule 29 motion does not qualify as the "post conviction or collateral review" necessary to toll the AEDPA one-year statute of limitations. District Judges Zobel and Young of this Court have both rendered decisions on the topic and their reasoning is persuasive.
A Rule 29 motion to review and revoke a criminal sentence, unlike other collateral review, does not connote a separate proceeding, nor does it raise a challenge to the legality of the earlier proceeding. A Rule 29 motion is "part and parcel of the original proceeding in which the defendant was sentenced" and simply "provides a mechanism whereby the trial judge may reconsider a concededly lawful sentence". Ledoux v. Dennehy, 327 F.Supp.2d 97, 99 (D.Mass.2004)(Young, J.)Bland v. Hall, 2002 WL 989532 at *2 (Zobel, J.) . Therefore, because Phillips's Rule 29 motion filed in October, 1996 does not amount to a "collateral attack", § 2244(d)(2) does not afford grounds for tolling AEDPA's one-year statute of limitations.
On October 4, 1996, Phillips filed a notice of appeal to the ADSC after the trial court suspended his probation. The magistrate judge again concluded that the filing did not toll AEDPA's one-year limitation period because "ADSC only has the authority to review sentences and not judgments of conviction." In support of her conclusion, the magistrate judge cites, Bridges v. Johnson, 284 F.3d 1201 (11th Cir.2002) and an opinion of the SJC, Commonwealth v. Callahan, 419 Mass. 306, 644 N.E.2d 629 (1995). A more recent decision of Judge Rya Zobel of this District Court has, however, held that an appeal to the ADSC does constitute a tolling event under § 2244(d)(2). Foster v. Maloney, 2003 WL 345351 (D.Mass. Feb.14, 2003).
The Court does not, however, need to determine whether notice of appeal to the ADSC tolls the AEDPA...
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