Rodriguez v. Spencer

• Decision Date: 15 June 2005
• Docket Number: No. 03-2139.,03-2139.
• Citation: 412 F.3d 29
• Parties: Jose Lincoln RODRIGUEZ, Petitioner, Appellant, v. Luis SPENCER, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

412 F.3d 29

Jose Lincoln RODRIGUEZ, Petitioner, Appellant, v. Luis SPENCER, Respondent, Appellee.

No. 03-2139.

United States Court of Appeals, First Circuit.

Heard April 5, 2005.

Decided June 15, 2005.

COPYRIGHT MATERIAL OMITTED

Matthew V. Soares, for appellant.

Susanne G. Reardon, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for appellee.

Before SELYA, LYNCH, and LIPEZ, Circuit Judges.

LYNCH, Circuit Judge.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of limitations for a state prisoner's filing of a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1). That limitations period is tolled, however, while "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." Id. § 2244(d)(2) (emphasis added).

This case requires us to consider the question of whether an application to the Massachusetts Supreme Judicial Court (SJC) for extraordinary relief under Mass. Gen. Laws ch. 211, § 3 may constitute "a properly filed application for... other collateral review with respect to the pertinent judgment or claim." The Commonwealth defends primarily on the ground that a petition for ch. 211, § 3 review can never be "an application for ... other collateral review." There is an implicit second argument that this particular petition was not such an application for collateral review within the meaning of 28 U.S.C. § 2244(d)(2), particularly in the aftermath of a quite recent Supreme Court opinion, Pace v. DiGuglielmo, ___ U.S. ___, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). We disagree with the Commonwealth's first argument but agree with its second. We affirm the dismissal of the federal habeas petition brought by Jose Lincoln Rodriguez because it was untimely and not saved by the tolling provision of 28 U.S.C. § 2244(d)(2).

I.

On July 20, 1977, Rodriguez was convicted of forcible rape and of assault and battery with a dangerous weapon of a twenty-one year old student at a local university. Rodriguez "grabbed the victim ..., jabbed a broken bottle into her neck, put his jacket over her face, and raped her in the backyard of a nearby house." Commonwealth v. Rodriguez, 50 Mass.App.Ct. 405, 737 N.E.2d 910, 912 (2000). After entry of the verdicts, the trial judge postponed sentencing and, sua sponte, ordered the petitioner committed to the treatment center at Bridgewater State Hospital for a determination of sexual dangerousness pursuant to Mass. Gen. Laws ch. 123A, § 4. At a later Superior Court hearing, Rodriguez was determined to be sexually dangerous and committed to the treatment center for an indeterminate period of from one day to life, pursuant to Mass. Gen. Laws ch. 123A, § 5. This order of commitment was reviewed by the SJC, which affirmed the order, contingent on the affirmance of the criminal convictions. Commonwealth v. Rodriguez, 376 Mass. 632, 382 N.E.2d 725, 734 & n. 20 (1978).

On December 22, 1978, the Massachusetts Appeals Court reversed the petitioner's convictions in Commonwealth v. Rodriguez, 6 Mass.App.Ct. 738, 383 N.E.2d 851, 857 (1978). The SJC granted the parties' application for leave to obtain further appellate review (ALOFAR), affirmed the Appeals Court's reversal of the petitioner's convictions in Commonwealth v. Rodriguez, 378 Mass. 296, 391 N.E.2d 889, 897 (1979), and ordered a new trial.

Released on bail, Rodriguez did not appear on the date set for his new trial. Seven years later, Rodriguez was found in California and returned to Massachusetts, where a jury convicted him once again of rape and assault and battery with a dangerous weapon on December 23, 1987. He was sentenced to life with the possibility of parole.

On November 3, 2000, the Massachusetts Appeals Court affirmed the petitioner's convictions from his second trial, and, in turn, affirmed the denials of his subsequent motions for new trial and for post-conviction dismissal. Commonwealth v. Rodriguez, 50 Mass.App.Ct. 405, 737 N.E.2d 910, 920 (2000). On January 3, 2001, the SJC denied petitioner's ALOFAR in Commonwealth v. Rodriguez, 433 Mass. 1102, 742 N.E.2d 81 (2001).¹

On May 8, 2001, the petitioner filed a petition for general superintendence of inferior courts pursuant to ch. 211, § 3 with a single justice of the Supreme Judicial Court for Suffolk County. A later amendment to this petition is not relevant. That justice denied the petition on February 14, 2002. Rodriguez filed a notice of appeal from this denial on February 20, 2002, but moved to dismiss the appeal on September 10, 2002.

On January 31, 2003, Rodriguez filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent filed a motion to dismiss the petition as time-barred pursuant to 28 U.S.C. § 2244(d)(1). The district court dismissed the petition as time-barred on April 29, 2003. That dismissal did not consider the effect of Rodriguez' ch. 211, § 3 petition; indeed, Rodriguez did not argue the issue to the court. Rodriguez moved for reconsideration which the district court denied.

On August 1, 2003, the petitioner filed a motion for Certificate of Appealability which the district court denied on February 3, 2004. On September 17, 2004, this court allowed a Certificate of Appealability, raising sua sponte the issue of whether the petition filed under ch. 211, § 3 had a tolling effect under 28 U.S.C. § 2244(d)(2).

II.

We review de novo the denial of a habeas application on procedural grounds. Voravongsa v. Wall, 349 F.3d 1, 3-4 (1st Cir.2003). We set the context.

Rodriguez' federal habeas petition raises several constitutional arguments: (1) the introduction of illegally seized evidence at his trial violated the Fourth, Sixth, and Fourteenth Amendments; (2) the in-court identification procedure used to identify him as the assailant violated the Sixth and Fourteenth Amendments; (3) the absence of counsel at his pretrial identification violated the Sixth Amendment; and (4) his counsel was ineffective also in violation of the Sixth Amendment.

By contrast, his claim to the SJC in the ch. 211, § 3 petition was not that he had been denied those federal constitutional rights, but that one member of a three-justice panel of the state appeals court which affirmed his conviction was involved in a conflict of interest with the prosecutor who tried his case. The relief Rodriguez sought in the ch. 211, § 3 petition was not, directly, the vacating of the judgment of guilt, but further appellate review of his conviction by the SJC or review by another appeals court panel.² He also asserted he had just learned of the supposed conflict and no other remedy was available because a motion for a new trial would do him no good as to the Appeals Court's decision, and his time for seeking rehearing in the Appeals Court had long since expired.

The single justice of the SJC held that Rodriguez was not entitled to relief under ch. 211, § 3 because he had other procedures he could have used and that regardless, Rodriguez did not challenge the other two justices of the Appeals Court panel and so the panel affirmance would stand in any event.

A. Ch. 211, § 3 Petitions as Applications for "State Post-Conviction Relief or Other Collateral Review"

We turn to the Commonwealth's first ground — its contention that a ch. 211, § 3 petition can never be an application for other collateral review.³ Massachusetts law is our starting point. See Carey v. Saffold, 536 U.S. 214, 223, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) ("[F]or purposes of applying a federal statute that interacts with state procedural rules, we look to how a state procedure functions."); Voravongsa, 349 F.3d at 4.

Massachusetts General Laws ch. 211, § 3 reads:

Superintendence of inferior courts; power to issue writs and process.

The supreme judicial court shall have general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly provided; and it may issue all writs and processes to such courts and to corporations and individuals which may be necessary to the furtherance of justice and to the regular execution of the laws.

In addition to the foregoing, the justices of the supreme judicial court shall also have general superintendence of the administration of all courts of inferior jurisdiction, including, without limitation, the prompt hearing and disposition of matters pending therein ... and it may issue such writs, summonses and other processes and such orders, directions and rules as may be necessary or desirable for the furtherance of justice, the regular execution of the laws, the improvement of the administration of such courts, and the securing of their proper and efficient administration....

Mass. Gen. Laws ch. 211, § 3.

This route to collateral review of a conviction is not the ordinary one. The normal post-conviction remedy provided by Massachusetts to a convicted criminal defendant seeking further review is a direct appeal; or, once the conviction becomes final after appeal, an individual can file a motion for a new trial under Mass. R.Crim. P. 30. Rule 30 "provide[s] remedies for persons who have been imprisoned in violation of State and Federal law and also enable[s] Judges to give discretionary relief where justice may not have been done." 30A Kent B. Smith, Massachusetts Practice § 2052 (1983). There are no time limitations for filing a Rule 30 motion, and an individual can file multiple Rule 30 motions. See Mass. R.Crim. P. 30. The SJC has held that a Rule 30 motion is the "exclusive vehicle for postconviction relief" in Massachusetts. Leaster v. Commonwealth, 385 Mass. 547, 432 N.E.2d 708, 709 (1982). We accept that. Whether it is the exclusive vehicle for "other collateral review" is a different matter. See Duncan v. Walker, 533 U.S. 167, 177, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001).

By contrast with Rule 30, "...