Wood v. Spencer

• Decision Date: 15 May 2007
• Docket Number: No. 06-2591.,06-2591.
• Citation: 487 F.3d 1
• Parties: Kevin WOOD, Petitioner, Appellant, v. Luis S. SPENCER, Superintendent, M.C.I.-Norfolk, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

487 F.3d 1

Kevin WOOD, Petitioner, Appellant, v. Luis S. SPENCER, Superintendent, M.C.I.-Norfolk, Respondent, Appellee.

No. 06-2591.

United States Court of Appeals, First Circuit.

Heard April 4, 2007.

Decided May 15, 2007.

Leslie W. O'Brien for appellant.

Eva M. Badway, Assistant Attorney General, Commonwealth of Massachusetts, with whom Martha Coakley, Attorney General, was on brief, for appellee.

Before TORRUELLA, Circuit Judge, SELYA and TASHIMA,^* Senior Circuit Judges.

SELYA, Senior Circuit Judge.

This is a case of first impression for this court. In it, a state prisoner challenges the dismissal of his federal habeas petition as untimely. This challenge rests on the proposition that the district court misconstrued and misapplied two limitations-extending provisions contained in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See 28 U.S.C. §§ 2244(d)(1)(B), 2244(d)(1)(D).

We have not previously had the occasion to analyze those provisions. We do so here and conclude that the petitioner has failed to show either (i) that he exercised due diligence to discover the statement that he claims was wrongfully withheld or (ii) that this alleged discovery violation comprised an impediment that prevented him from learning about, and acting upon, the statement at an earlier date. Consequently, we affirm the dismissal of the habeas petition as time-barred.

I. BACKGROUND

In July of 1991, an Essex County grand jury charged the petitioner, Kevin Wood, with the murder of George Aulson and the commission of related crimes. The charges arose from an altercation that occurred between the two men late at night on July 7, 1991, in Peabody, Massachusetts. While Wood acknowledged stabbing Aulson, he insisted that Aulson had instigated the brawl and that the killing was an act of self-defense. Pertinently, the police had raided Aulson's home on the day before the stabbing, and Wood claimed that Aulson bore him ill will because he (Aulson) believed that Wood had informed the authorities that Aulson was cultivating marijuana on his property.

The case was tried in the state superior court. The jury rejected Wood's claim of self-defense and found him guilty of second-degree murder and malicious destruction of property. See Mass. Gen. Laws ch. 265, § 1; id. ch. 266, § 127. The trial justice sentenced Wood to life in prison.

Following his conviction, Wood moved unsuccessfully for a new trial. His appeal to the Massachusetts Appeals Court (MAC) proved equally fruitless. Commonwealth v. Wood, 37 Mass.App.Ct. 917, 638 N.E.2d 1372 (1994). That was the end of the line in state court: the Massachusetts Supreme Judicial Court (SJC) rejected Wood's application for leave to seek further appellate review in November of 1994.

After serving several years in a Massachusetts state prison, Wood obtained new counsel. In the course of an investigation that began in May of 2001, she interviewed Lt. Richard Bettencourt of the Peabody police. During that interview, Wood's counsel learned that Bettencourt had spoken with Aulson on the evening of the fatal encounter—after the raid but before the stabbing—and that Aulson had said, "I'll get the son of a bitch who set me up." Counsel also learned that Bettencourt, who was not involved in the homicide probe, had passed this comment along to the investigating officers.

In October of 2001, Wood's counsel moved in the superior court for a new trial. She based that motion on (i) the prosecution's alleged failure to disclose the Bettencourt conversation and (ii) an alleged flaw in the jury instructions. With respect to the first claim, she pointed out that although Wood's trial counsel had made a discovery request for any statements or other materials that might tend to support a finding that Aulson was the initial aggressor, the prosecution never furnished the defense with information anent the Bettencourt/Aulson conversation.

The state court judge gave the motion short shrift. The MAC affirmed the denial of that motion. Commonwealth v. Wood, 62 Mass.App.Ct. 1112, 818 N.E.2d 641 (2004) (Table). On April 27, 2005, the SJC again denied leave to seek further appellate review.

Roughly five and one-half months later—on October 5, 2005—Wood filed a habeas petition in the federal district court. See 28 U.S.C. § 2254. He named as the respondent the superintendent of the penitentiary (M.C.I.-Norfolk) in which he was incarcerated. Because the superintendent is sued in his official capacity, we henceforth refer to the respondent as "the Commonwealth."

In federal court, Wood pressed the same two arguments that he had advanced in his most recent round of state court initiatives: that his rights had been violated through the prosecution's nondisclosure of the Bettencourt conversation, see Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that the jury instructions had improperly assigned him the burden of proving manslaughter (as an alternative to murder), see Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). The district judge, concurring with the recommendation of a magistrate judge, held—without convening an evidentiary hearing—that the habeas petition was untimely.¹

The district court's reasoning was straightforward. First, it noted that the AEDPA, save only in select circumstances, prohibits inmates incarcerated pursuant to state court convictions from seeking federal habeas relief more than one year after the conclusion of direct review in the state system. See 28 U.S.C. § 2244(d)(1)(A). The court then explained that, while certain newly discovered evidence may bring a case within an exception to the one-year limitations period, that exception is only available to habeas petitioners who have pursued relevant evidentiary leads with due diligence. See id. § 2244(d)(1)(D). Because Wood (or, at least, his counsel) appeared to have had knowledge of the existence of Bettencourt's conversation with Aulson at the time of trial, this exception did not apply. For the same reason, the court held the exception for state-created impediments, see id. § 2244(d)(1)(B), to be inapplicable.

This timely appeal ensued. The district court issued a broadly worded certificate of appealability, see id. § 2253(c), covering the general question of whether the petition was time-barred. Where, as here, the district court has denied a habeas petition on a procedural ground without taking evidence, we afford de novo review. See Rodriguez v. Spencer, 412 F.3d 29, 32 (1st Cir.2005). That standard applies with full force to the district court's due diligence holding.

II. ANALYSIS

Wood's appeal focuses exclusively on his Brady claim; his jury instruction claim is not before us. We begin our discussion of the Brady claim by outlining the AEDPA's temporal limitations as they apply to federal habeas petitions filed on behalf of state prisoners.

Under section 2244(d)(1)(A), a state prisoner must file for federal habeas relief within a one-year period that 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." Because Congress did not enact the AEDPA until the mid-1990s, courts have read into its text a grace period for state prisoners who completed their odyssey through direct review prior to April 24, 1996 (the AEDPA's effective date). Those persons are allowed to use that date, rather than a date referable to direct review, as the starting point for accrual of the one-year limitations period. See Carey v. Saffold, 536 U.S. 214, 217, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002); Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir.1999).

Wood qualifies for this grace period. Even so, his window for filing a federal habeas petition would seem to have closed on April 24, 1997. That was well before he brought a federal habeas proceeding.

In establishing the AEDPA limitations period, however, Congress left room for some play in the joints. One such exception, applicable in cases of certain newly discovered evidence, postpones the commencement of the limitations period until "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). A second exception provides that if an impediment to the filing of a habeas petition has been "created by State action in violation of the Constitution or laws of the United States . . . [and] if the applicant was prevented from filing by such State action," the limitations period will not begin to run until the date on which the impediment is removed. Id. § 2244(d)(1)(B).

These two exceptions—there is another, which is not germane to this case—form the centerpiece of Wood's appeal. Because the limitations period, once started, is tolled for any period during which a convict is seeking state court relief with respect to the pertinent claim, see id. § 2244(d)(2), Wood's federal habeas petition is timely if either exception operated to forestall the start of the limitations period to the date on which his new counsel interviewed Bettencourt.

Wood frames his argument in the alternative. At the outset, he posits that the conversation between Bettencourt and Aulson was a factual predicate to the nascent Brady claim that undergirds his federal habeas petition—a factual predicate that could not readily have been discovered absent disclosure by the Commonwealth. Alternatively, he asseverates that the prosecution's failure to disclose this (exculpatory) conversation constituted a state-created impediment that prevented him from learning about the evidence and, thus, from pursuing the claim until the interview took place in 2001. In either event, he insists that the AEDPA clock should be calibrated to the interview date. We address these arguments sequentially.

A. Factual Predicate.

We need not linger long over Wood's assertion that the Bettencourt conversation...