Howard v. Anderson

Filing 8

Judge Richard G. Stearns: MEMORANDUM AND ORDER entered granting 6 Motion to Dismiss "Petition for writ of habeas corpus is DISMISSED with prejudice. The Clerk will now close the case." cc: Mr. David Scott Howard. (Flaherty, Elaine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 11-10562-RGS
DAVID SCOTT HOWARD
v.
SCOTT E. ANDERSON
MEMORANDUM AND ORDER ON
RESPONDENT’S MOTION TO DISMISS
May 10, 2011

STEARNS, D.J.
Respondent Scott Anderson, named as the acting superintendent of
Massachusetts Correctional Institution – Shirley, moves to dismiss David Scott
Howard’s petition for writ of habeas corpus. Anderson argues that the petition is
time-barred by 28 U.S.C. § 2244(d)(1), the statute of limitations for state habeas corpus
petitions filed after the effective date of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA). Under the statute, Howard had one year from the date on
which “the judgment of conviction became final by the conclusion of direct review or
the expiration of the time for seeking such review” to file his petition with this court.
The Massachusetts Supreme Judicial Court (SJC) denied Howard’s application for
further appellate review on April 23, 1999. His conviction became final ninety (90)

days later, on July 22, 1999 (the date on which the window for filing a petition for writ
of certiorari to the United States Supreme Court closed). Accordingly, Howard had
until July 22, 2000, to file a petition for habeas relief. See Lattimore v. Dubois, 311
F.3d 46, 53 (1st Cir. 2002) (when a limitations period is measured in years, the last day
for instituting an action is on the anniversary of the commencement of the limitations
period). Howard did not file this petition until April 6, 2011.
While equitable tolling is available, the doctrine applies only where a petitioner
has diligently pursued his rights and that some “extraordinary circumstance stood in his
way.” Holland v. Florida, 130 S.Ct. 2549, 2562 (2010). See also Lawrence v.
Florida, 549 U.S. 327, 335 (2007) (equitable tolling applies only in the face of an
“exceedingly rare inequity that Congress almost certainly was not contemplating” when
it imposed the one-year limit). The burden rests with a petitioner to establish a basis
for equitable tolling. See Riva v. Ficco, 615 F.3d 35, 39 (1st Cir. 2010). Howard’s
petition sets out a litany of garden-variety claims of trial error, most of which were
aired in Howard’s motion for a new trial filed in the state court on July 24, 2008.
These were rejected by a Justice of the Superior Court on August 6, 2009. The
Massachusetts Appeals Court affirmed on October 27, 2010, and the SJC denied
further review on December 23, 2010. In the absence of statutory tolling or any
showing of equitable tolling, the one year federal habeas limitation period applies and
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the petition is filed eleven years too late, irrespective of the proceedings involving the
dilatory motion for a new trial. See Lattimore, 311 F.3d at 53-54 (a petition filed even
one day late for statute of limitations purpose must be dismissed as untimely).
ORDER
For the foregoing reasons, Anderson’s petition for writ of habeas corpus is
DISMISSED with prejudice. The Clerk will now close the case.
SO ORDERED.
/s/ Richard G. Stearns
______________________________
UNITED STATES DISTRICT JUDGE

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