Rivera v. Nolan

• Decision Date: 10 March 2008
• Docket Number: Civil Action No. 04-12717-RGS.
• Citation: 538 F.Supp.2d 429
• Parties: Luis RIVERA, Petitioner, v. David NOLAN, Respondent.
• Court: U.S. District Court — District of Massachusetts

538 F.Supp.2d 429

Luis RIVERA, Petitioner, v. David NOLAN, Respondent.

Civil Action No. 04-12717-RGS.

United States District Court, D. Massachusetts.

March 10, 2008.

Luis Rivera, Norfolk, MA, pro se.

Maura D. McLaughlin, Office of the Attorney General, Boston, MA, for Respondent.

MEMORANDUM AND RULING ON PETITIONER LUIS RIVERA'S CLAIM THAT HIS PETITION IS TIMELY APPLYING 28 U.S.C. § 2244(d)(1)(D) (# 30)¹

COLLINGS, United States Magistrate Judge.

I. Introduction

Pro se petitioner, Luis Rivera ("petitioner"), who is currently serving two natural life sentences in state prison, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(# 1), challenging his 1999 state conviction on two counts of murder in the first degree and one count of unlawful possession of a firearm. For the reasons set out below, the court² finds that the petitioner's petition for habeas corpus (# 1) is not time-barred.

II. Procedural Background

Petitioner filed a Section 2254 petition on December 28, 2005. The respondent, David Nolan, ("respondent") filed a motion to dismiss the original petition as time-barred under 28 U.S.C. § 2244(d)(1)(A)(# 5), and on June 17, 2005, the district court (Lindsay, J.) dismissed the petition as time-barred. Petitioner appealed this decision (# 19). On May 16, 2005, the First Circuit Court of Appeals remanded the case to the district court with singular instructions to consider the petitioner's argument with respect to Section 2244(d)(1)(D). This court then requested memoranda from the parties on the above issue (# 29). Petitioner and respondent have submitted their briefs (## 30, 31 and 33, respectively) and the issue now stands ready for decision.

III. Analysis

The original petition for habeas corpus sets out four grounds for relief. In his memorandum in support of motion for a certificate of appealability, however, petitioner conceded that the first three grounds were not timely exhausted in the state court and waived his rights with respect to them.³ (# 31-2 at 6) Thus the court need now only consider the fourth and final ground presented in the petition.

Specifically, the fourth ground for requested relief contends that the petitioner's conviction was unlawfully obtained through the prosecution's knowing use of false testimony. To support his claim, petitioner presents three affidavits signed by Jose Pacheco ("Pacheco"). Pacheco was a prosecution witness against petitioner during his trial; his affidavits now offer recantations of his earlier trial testimony. Petitioner argues that this new evidence provides grounds for habeas relief in that the prosecution's failure to disclose the evidence of inducements, which the petitioner asserts could have been used to impeach Pacheco, violated his right to due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Petitioner further contends that these recantations bolster his claim of actual innocence because Pacheco now attests that he was not present during the murders for which the petitioner was convicted. (# 31-2 at 9)

Because the issue at hand considers petitioner's argument that his habeas claims are timely under Section 2244(d)(1)(D), a time line of events leading from" petitioner's receipt of the recantations to the filing of his petition would be helpful. Petitioner claims to have received the first affidavit on or about January 14, 2003⁴, the second on or about June 12, 2003, and the third on or about October 7, 2003. (# 30 at 1-2) On November 5, 2003⁵, petitioner then filed with the state court a motion for a new trial under the Massachusetts Rules of Criminal Procedure, Mass.Crim. P. Rule 30(b). On November 20, 2003, his motion in state court for a new trial was denied. Petitioner then timely appealed that denial. He received notice that this appeal also was denied on December 17, 2004. Three days later, on December 20, 2004, petitioner mailed his petition for writ of habeas corpus, and his petition was filed with this court on December 28, 2004.

The respondent opposes the petitioner's memorandum, arguing that the claims are time-barred under the one-year statute of limitations contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2244(d)(1).⁶ Ordinarily, the limitation period runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. at § 2244(d)(1)(A). Subparagraphs (B)-(D), however, govern to allow later filings when applicable.

In the case at hand, subparagraph (D) applies. Subparagraph (D) allows the time to begin running on the limitations period from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Id. at § 2244(d)(1)(D).

The petitioner asserts that he discovered the factual predicate of his claims on January 14, 2003, when he received the first affidavit from Pacheco. If the court assumes arguendo that this date is the date on which the factual predicate of the claim could have been discovered, then the tolling period for the one-year statute of limitations would have commenced on January 13, 2003. But on November 10, 2003, petitioner filed a motion for a new trial in state court. This action effectively tolled the statute of limitations on his petition at just under 11 months. See 28 U.S.C. § 2244(d)(2).⁷ The tolling period recommenced upon the exhaustion of his state claims, that is, on December 17, 2004, when his final appeal was denied by the Massachusetts Supreme Judicial Court. A mere three days later, and well within the one-year statute of limitations period, petitioner filed his petition in federal court.

The court must now consider whether the date upon which petitioner received the first affidavit is, in fact, the proper date to commence the one-year statute of limitations period. To wit, the court must determine whether Pacheco's recantations comprise a newly discovered factual predicate that petitioner could not have discovered earlier.

Pacheco's recantations substantially contradict his trial testimony. In his first affidavit, Pacheco recants his testimony during petitioner's trial concerning his involvement in the two murders. During petitioner's trial, Pacheco claimed to be a witness to petitioner's assassination of the two victims. He testified that the petitioner held a gun to his head and forced him to drive the petitioner and another defendant, along with the two victims, to a deserted location; there, Pacheco witnessed the petitioner and the other defendant shoot and kill the two victims. In his recantation, Pacheco now claims that petitioner never held a gun to his head; that instead of driving them to the scene of the murders, Pacheco was dropped off at his mother's house. As such, he did not witness the murders.

In his second affidavit, Pacheco further attests that he lied under oath about whether he had an agreement with the prosecution in return for his favorable testimony he now states that he had a verbal agreement with the assistant district attorney that he would be released on low bail and would not face prosecution. His third affidavit is a repetition of these statements. (# 30, Exh. 1)

The First Circuit has determined that "[i]n order to qualify for [the Section 2244(d)(1)(D)] exception, a habeas petitioner must show that, exercising due diligence, he could not have learned of the evidence in question at a substantially earlier date." Wood v. Spencer, 487 F.3d 1, 4 (1st Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 260, 169 L.Ed.2d 191 (2007). In Wood, the petitioner argued that the tolling for purposes of Section 2244(d)(1)(D) should have commenced when he learned post-trial of a conversation that had taken place between a police officer and the victim he was subsequently found guilty of murdering. The petitioner claimed that this conversation, which took place the day before the murder, bolstered his claim of self-defense because in it, the victim angrily told the police officer that he was going to "get" the person who set him up. Id. at 2.

In affirming the district court's timeliness determination, the appellate court concluded that the possibility for discovering this factual predicate actually existed during petitioner's state trial and that, indeed, the evidence suggested that his attorney was aware of the evidence but did not pursue it by interviewing the police officer or calling him as a witness. Id. at 5. Citing Wood, respondent in this case contends that, with the exercise of due diligence, the petitioner in this case could have gained the knowledge cited in Pacheco's recantations earlier.

However, unlike Wood, in which the petitioner's attorney failed to interview the police officer or call him to testify, the petitioner's attorney here duly cross-examined Pacheco. When asked if he had received any inducements or favors, Pacheco testified that he had not. (# 31, Exh. 3 ¶ 2) Without any evidence contradicting Pacheco's testimony, petitioner had no reason to disbelieve him.

Respondent proffers testimony from Pacheco's attorney, Charles Stephenson, who claims that Pacheco appeared in civilian clothes during petitioner's trial, which could have indicated that a bail arrangement had been made, and that the "other defense lawyers ... were aware of that circumstance and attempted to exploit it." (# 31, Exh. 4, Affidavit of Charles K. Stephenson, ¶ 8) In his reply, however, petitioner notes that Pacheco was released on bail only after petitioner's trial.⁸ (# 33 at 2) Thus, respondent's claims that petitioner should have been aware during his trial of any bail agreement is inapposite.

Expectations about what defines due diligence from behind prison bars must be realistic. Other courts have used a totality of the circumstances test to determine if an imprisoned petitioner's efforts are duly diligent. See ...