Herbert v. Dickhaut

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Kermit V. Lipez, Appellate Judge and Jeffrey R. Howard, Appellate Judge. Published. [11-1888]

Case: 11-1888

Document: 00116433377

Page: 1

Date Filed: 09/19/2012

Entry ID: 5676274

United States Court of Appeals
For the First Circuit

No. 11-1888
ROGER HERBERT,
Petitioner, Appellant,
v.
THOMAS DICKHAUT,
Superintendent of Souza Baranowski Correctional Center,
Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.
Jay Markell for appellant.
Eva M. Badway, Assistant Attorney General, with whom Martha
Coakley, Attorney General, was on brief, for appellee.

September 19, 2012

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LIPEZ,

Circuit

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Date Filed: 09/19/2012

Judge.

This

appeal

Entry ID: 5676274

requires

us

to

determine whether a petition for habeas corpus was timely filed
within

the

one-year

limitations

period

provided

by

the

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").
See 28 U.S.C. § 2244(d)(1).

The district court found that the

petitioner, Roger Herbert, filed his petition within the one-year
window because the running of the limitations period was tolled by
proceedings in Massachusetts state court.
rejected the petition on its merits.

However, the court

Herbert appealed, and we

affirm the district court's judgment, albeit on different grounds.
For the reasons described below, we find Herbert's petition barred
by AEDPA's one-year limitations period.
I.
In 1991, a Massachusetts jury convicted Herbert of armed
robbery and first-degree felony murder.1 Herbert appealed, and his
conviction was affirmed on November 9, 1995, by the Massachusetts
Supreme Judicial Court ("SJC").
N.E.2d 899 (Mass. 1995).
Supreme Court.

Commonwealth v. Herbert, 656

He did not appeal to the United States

On February 6, 1996, the ninety-day period for

filing a petition for certiorari expired and Herbert's conviction
became final.

See Neverson v. Farquharson, 366 F.3d 32, 36 (1st

Cir. 2004).

1

An appendix setting forth all of the relevant dates follows
this opinion.
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On December 17, 1996, Herbert mailed motions for a new
trial and appointment of counsel to the Suffolk County Superior
Court.

The motion for appointment of counsel was docketed on

December 19, 1996, but, for some undetermined reason, the motion
for a new trial was never docketed.2
either motion.

The court took no action on

Six years later, Herbert filed renewed motions for

a new trial and appointment of counsel, both of which were docketed
on December 19, 2002.

The court denied both motions on November

20, 2003.
On February 10, 2004, pursuant to Massachusetts law,
Herbert sought permission from a single "gatekeeper" justice of the
SJC to appeal the Superior Court's judgment denying the motion for
a new trial to the full SJC.

See Mass. Gen. Laws ch. 278, § 33E.3

On July 15, 2004, the gatekeeper justice denied Herbert's request
to appeal.

Herbert then filed a motion asking the gatekeeper

justice to reconsider; the justice declined to do so, denying the
motion on August 4, 2004.

Finally, on September 3, 2004, Herbert

sought to appeal the gatekeeper's decision to the full SJC, which

2

Although the motion for a new trial was never received or
docketed, the district court found after an evidentiary hearing
that there was ample evidence that it was mailed on December 17,
1996. Appellee does not challenge this factual finding on appeal.
3

Section 33E provides that, in the case of motions for a new
trial filed with the Superior Court in capital cases, "no appeal
[to the full SJC] shall lie . . . unless the appeal is allowed by
a single justice . . . on the ground that it presents a new and
substantial question which ought to be determined by the full
court."
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dismissed

his appeal

on

Page: 4

December

Date Filed: 09/19/2012

12, 2005.

Entry ID: 5676274

Commonwealth

v.

Herbert, 838 N.E.2d 1236 (Mass. 2005).
On January 5, 2006, Herbert filed a petition for a writ
of habeas corpus under 28 U.S.C. § 2254 with the United States
District Court for the District of Massachusetts.

He raised

numerous issues, but the court found that only two were preserved:
first, an argument that the trial court erred in admitting a
confession

that

he

alleged

was

involuntary,

and,

second,

an

argument that the jury selection process was racially biased.

In

a written decision on respondent's motion to dismiss, the district
court determined that the petition was timely filed, explaining
that the one-year limitations period was tolled by Herbert's
original motion for a new trial, his subsequent section 33E request
to the gatekeeper justice, and his final appeal to the full SJC.
Herbert v. Dickhaut, 724 F. Supp. 2d 132, 138-41 (D. Mass. 2010).
However, in a later decision, the court denied the petition on its
merits, finding that any error was insufficient to justify granting
Herbert's habeas petition. Herbert v. Dickhaut, No. 06-10036, 2011
WL 3021770, at *12, *14 (D. Mass. July 21, 2011).

Acting on a

certificate of appealability granted by the district court as to
both preserved issues, Herbert now appeals.
II.
AEDPA

provides

a

one-year

limitations

period

for

petitions seeking federal review of state convictions alleged to

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violate the Constitution or federal law.

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28 U.S.C. § 2244(d)(1).

The statute identifies several triggering events for the one-year
period, including "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. § 2244(d)(1)(A).

However, we have held

that "for causes of action accruing before the effective date of
AEDPA[, April 24, 1996], there is a one year grace period running
from that date in which to file a [petition]."

Gaskins v. Duval,

183 F.3d 8, 9 (1st Cir. 1999).
This one-year limitations period is tolled in "the time
during which a properly filed application for State post-conviction
or other collateral review with respect to the pertinent judgment
or claim is pending . . . ."

28 U.S.C. § 2244(d)(2).

"[A] state's

procedural rules control whether an application for state postconviction

relief

is

pending

under

§

2244(d)(2)."

Drew

v.

MacEachern, 620 F.3d 16, 21 (1st Cir. 2010) (citing Carey v.
Saffold, 536 U.S. 214, 220 (2002)).

Thus, "an application for

[state] post-conviction relief is pending from the time it is first
filed until [the time it is] finally disposed of and further
appellate

review

procedures."

is

unavailable

under

the

particular

state's

Id. (alterations in original) (quoting Currie v.

Matesanz, 281 F.3d 261, 263 (1st Cir. 2002))(internal quotation
marks omitted)).

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In

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Massachusetts,

a

Date Filed: 09/19/2012

"gatekeeper"

justice's

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decision

pursuant to section 33E, "whether it is to permit or prohibit an
appeal, is final and unreviewable."
N.E.2d 322, 328 (Mass. 2011).

Commonwealth v. Smith, 951

Thus, in Massachusetts, the denial

of a section 33E motion marks the end of the pendency of an
application for post-conviction relief.

See Drew, 620 F.3d at 21.

III.
A.

Waiver
We are initially confronted with Herbert's argument that

respondent waived his limitations defense by failing to appeal or
cross-appeal the district court's determination that the petition
was timely filed.4

This argument is meritless.

Respondent could

not have appealed the district court's decision on its limitations
argument, rendered prior to its decision on the merits.

As we have

explained, a limitations period defense "cannot be pursued by
interlocutory appeal."

Rivera-Ramos v. Roman, 156 F.3d 276, 282

(1st Cir. 1998); see also Pedraza v. Shell Oil Co., 942 F.2d 48,
54-55 (1st Cir. 1991) (noting that there is no exception to the
final judgment rule for an order rejecting a dispositive motion
arguing

that

a

claim

is

time-barred).

Furthermore,

having

succeeded in obtaining a dismissal of Herbert's petition on the

4

Herbert is inconsistent in characterizing this argument as
one of waiver or forfeiture. However, insofar as he argues that
respondent is not entitled to raise a limitations defense, he makes
a waiver argument and we analyze it as such.
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merits, respondent could not cross-appeal the district court's
finding that the petition was timely. A cross-appeal is "improper"
where

"the

district

court

granted

all

of

the

relief

that

respondents requested -- i.e., dismissal of [appellee's] petition
with prejudice."
There

Neverson, 366 F.3d at 39.
can

be

no

waiver

where

a

party

lacked

an

opportunity to raise an argument. Since the waiver argument fails,
we turn to the Commonwealth's next argument, which is that the
district court erred when it held the petition was timely. The
Commonwealth did not argue this to the district court, but has on
appeal and we may affirm on any ground made manifest in the record.
Id.
B.

The Limitations Period
The district court found that Herbert's petition was

timely because the limitations period was tolled by his attempts to
seek state post-conviction relief.

In particular, it found that

the period was tolled by: 1) the mailing of Herbert's motion for a
new trial on December 17, 1996; 2) the filing of a section 33E
petition with a gatekeeper justice on February 10, 2004; and 3)
Herbert's attempt to appeal the gatekeeper's denial to the full
SJC.

In so finding, the court acknowledged that the last of these

three periods was particularly problematic.

We turn to that

period, and the question of whether the limitations period was
properly tolled after July 15, 2004, the date when the gatekeeper

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justice denied Herbert leave to appeal to the full SJC.

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The court

found that this time was tolled because its reading of the SJC's
precedents suggested that there was a chance that the full SJC
would find that Herbert's appeal fit into a narrow exception to the
Massachusetts rule that a single justice's denial of a petition for
leave to appeal is final and unreviewable.
The district court relied on the SJC's decision in
Haberek v. Commonwealth, 657 N.E.2d 228 (Mass. 1995), to determine
that the full SJC may have been willing to consider Herbert's
appeal.

In that case, as here, the appellant sought to appeal his

conviction to the full SJC despite the fact that a gatekeeper
justice had denied his section 33E petition for leave to appeal.
He raised an issue that Herbert raised in his state-court appeal
and in his § 2254 petition -- the fact that "the same counsel was
both the trial attorney and the appellate attorney, [therefore] the
ineffective assistance of counsel claim could not have been raised
earlier."

Id. at 229.

The full SJC heard the appeal and concluded

that, in light of the appellant's ineffective assistance claim,
"[i]t was error for the trial judge to deny without a hearing the
defendant's motion for a new trial."

Id.

In reaching the merits

of the motion for a new trial, the SJC mentioned, but did not
reconcile, the fact that the gatekeeper justice had denied the
appellant's motion for leave to appeal.

It offered no explanation

of its decision to overlook the gatekeeper's decision and consider

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the appeal. Shortly after the SJC's decision in petitioner's case,
it overruled Haberek, putting an end to any perception that Haberek
created an exception to the rule that the decision of a gatekeeper
justice is final and unreviewable.

See Commonwealth v. Cook, 857

N.E.2d 31 (Mass. 2006).
Pointing to the Haberek decision, the district court in
this case explained that "Herbert's appeal fell squarely within the
narrow exception carved out by Haberek; he sought review of the
gatekeeper justice's ruling that denied him relief with respect to
the same form of ineffective assistance of counsel as was at issue
in Haberek."

Herbert, 724 F. Supp. 2d at 140.

Thus, it concluded

"as a matter of state law as it existed at the time of Herbert's
appeal,

a

capital

appellant

asserting

a

unique

ineffective

assistance of counsel claim could legitimately appeal a gatekeeper
justice's denial to the full SJC."

Id. at 141.

However, this supposed exception notwithstanding, the SJC
observed in this case that "[t]he single justice denied [Herbert's]
application on the separate and independent ground[] that it was
untimely."

Herbert, 838 N.E.2d at 1237.

Under Massachusetts law,

"a gatekeeper petition pursuant to [section 33E must] be filed
within thirty days of the denial of a motion for a new trial."
Mains v. Commonwealth, 739 N.E.2d 1125, 1131 n.10 (Mass. 2000).
Herbert's motion for a new trial was denied on November 20, 2003,
and his gatekeeper petition was not filed until February 10, 2004

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-- fifty-three days late.

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This late filing provides an alternate

basis for the gatekeeper's decision to reject Herbert's section 33E
petition,

and

Massachusetts

courts

have

made

clear

that

a

gatekeeper's decision is "'final and unreviewable,' even when the
single justice bases his opinion on procedural grounds, such as
when a gatekeeper petition is dismissed as untimely."

Drew, 620

F.3d at 21 (citation omitted) (quoting Herbert, 838 N.E.2d at 1237)
(citing Commonwealth v. Nassar, 908 N.E.2d 371, 372-73 (Mass.
2009)).

Herbert does not argue that a rejection on the basis of

untimeliness is appealable.
Accordingly, whether or not it was proper to toll the
time between the belated filing of Herbert's section 33E petition
and the "gatekeeper" justice's decision on July 15, 2004,5 see
Currie, 281 F.3d at 268 ("In capital cases, an application for
leave to appeal is a necessary step toward perfecting a postconviction appeal to the SJC.

It is, therefore, part of the appeal

process . . . ."), the time after this decision should be counted
against AEDPA's limitations period.6

It is undisputed that the

5

In Currie we discussed, but did not resolve, the issue of
whether time between the expiration of a period to appeal and the
filing of a belated appeal should be tolled. See 281 F.3d at 269
& n.10. We will not resolve this issue here because it has no
bearing on the ultimate timeliness of Herbert's petition.
6

We also have yet to address the issue of whether a motion
for reconsideration continues to toll the AEDPA limitations period
after a gatekeeper justice denies a section 33E petition for leave
to appeal to the full SJC. We will not resolve the issue here
because, even if we were to determine that this time should be
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time between the effective date of AEDPA and Herbert's motion for
a new trial is counted against the limitations period. This period
amounts to 237 days.7

Because the limitations period began to run

again when the gatekeeper justice rejected Herbert's section 33E
petition, another 540 days passed before Herbert filed the instant
§ 2254 petition.8

Thus, a total of 777 non-tolled days are counted

against Herbert, putting his petition well outside of AEDPA's oneyear limitations period.
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.

tolled, it would shave only twenty-one days from the time counted
against the limitations period. Thus, this period does not affect
the timeliness of Herbert's petition.
7

April 24, 1996, to December 17, 1996.

8

July 15, 2004, to January 6, 2006.
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Appendix
Date

Event

Mar. 8, 1991

Herbert is convicted.

Nov. 9, 1995

Herbert's conviction is affirmed by the SJC.

Feb. 6, 1996

Herbert's conviction becomes final upon
expiration of period for filing a petition for
certiorari with the United States Supreme Court.

Apr. 24, 1996

AEDPA becomes effective.

Dec. 17, 1996

Herbert files motions for a new trial and for
appointment of counsel.

Dec. 19, 1996

Herbert's motion for appointment of counsel is
received and docketed.

Dec. 19, 2002

Herbert files renewed motions for a new trial
and for appointment of counsel.

Nov. 20, 2003

Herbert's motion for a new trial is denied by
the trial court.

Feb. 10, 2004

Herbert seeks leave from a gatekeeper justice of
the SJC to appeal his motion for a new trial to
the full SJC.

July 15, 2004

The gatekeeper justice denies leave to appeal.

July 29, 2004

Herbert files a motion to reconsider with the
gatekeeper justice.

Aug. 4, 2004

The gatekeeper justice denies the motion to
reconsider.

Sept. 3, 2004

Herbert appeals the gatekeeper justice's
decision to the full SJC.

Dec. 12, 2005

The SJC dismisses Herbert's appeal.

Jan. 5, 2006

Herbert files the petition for habeas corpus at
issue here.

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