Washington v. Spencer

Filing 58

Judge William G. Young: ORDER entered. MEMORANDUM AND ORDER"For the foregoing reasons, the Court grants ECF No. 54, Spencer's motion to dismiss the petition. SO ORDERED."(Sonnenberg, Elizabeth)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
DERRICK WASHINGTON,
Petitioner,
v.
LUIS S. SPENCER,
Respondent.

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CIVIL ACTION
No. 12-10466-WGY

YOUNG, D.J.

April 30, 2018
MEMORANDUM AND ORDER

I.

INTRODUCTION
Petitioner Derrick Washington (“Washington”) is a state

prisoner who was convicted of murder and a number of
accompanying crimes in the Massachusetts Superior Court, sitting
in and for the County of Hampden on February 26, 2007.
Washington petitioned this Court for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 asserting two claims 1 relevant to
this proceeding: (1) ineffective assistance of counsel for
failing to argue to suppress certain evidence (“claim 1”); and
(2) ineffective assistance of counsel for failing to object to

1

Washington’s amended petition initially included four
claims, 28 U.S.C. § 2254 Pet. Writ Habeas Corpus at 6-11, ECF
No. 41, but he later agreed to the dismissal of claims 2 and 3.
Pet’r’s Reply Resp. Mot. Am. Pet. Writ Habeas Corpus at 13-14,
ECF No. 48.

the exclusion of spectators during voir dire (“claim 4”).

28

U.S.C. § 2254 Pet. Writ Habeas Corpus (“Pet’r’s Pet.”), ECF No.
41.

Respondent Luis Spencer (“Spencer”) moves to dismiss

Washington’s petition in its entirety, arguing Washington’s
petition is time-barred, not eligible for equitable tolling, and
is meritless.
For the reasons discussed below, this Court GRANTS
Spencer’s motion to dismiss.
A.

Procedural History

Washington was convicted of murder and a number of
accompanying crimes in the Hampden Superior Court on February
26, 2007.

Resp’t’s Mem. Supp. Mot. Dismiss, App. Resp’t’s Mem.

Supp. Mot. Dismiss (“App. II”) 1-3, 50, ECF No. 27-1. 2

On March

8, 2007, Washington filed a notice of direct appeal, id. at 6,
asserting three claims, Resp’t’s Mem. Law Supp. Mot. Dismiss,
App. (“App. I”) 20-21, ECF No. 12-1.

The Supreme Judicial Court

affirmed Washington’s conviction and denied his first motion for
a new trial on March 3, 2011.

App. I at 12.

Washington did not

seek certiorari from the Supreme Court.
Washington filed a second and third motion for a new trial
on November 21, 2011, App. II at 10-11, and December 13, 2011,

2

Because the appendix spans numerous documents, this
memorandum cites to the continuously paginated appendix numbers,
rather than the page numbers of the original documents.
[2]

id. at 8, 43-44, respectively, both raising the same five
claims.

On March 7, 2012, Washington filed an initial petition

for writ of habeas corpus with this Court.

Writ Habeas Corpus

28 U.S.C. 2254 d-1 Mot. Stay & Abeyance, (“Writ Habeas Corpus
I”), ECF No. 1.
eight claims.

He then filed an amended petition, asserting
Pet. 28 U.S.C. § 2254 Writ Habeas Corpus Person

State Custody, ECF No. 4.

In the petition, Washington conceded

that claims 4 through 8 had been asserted in state court, but
had not been adjudicated.

Id. at 7-15.

Accordingly, Spencer

filed a motion to dismiss for failure to exhaust state court
remedies, Resp’t’s Mot. Dismiss Failure Exhaust State Court
Remedies, ECF No. 11, and this Court dismissed the petition in
its entirety for presenting both exhausted (claims one through
three) and unexhausted (claims four through eight) claims.
Order Dismissal, ECF No. 14.
On July 9, 2012, Washington moved to reopen the petition,
Mot. Reopen Civil Action 12-10466-WGY (“Mot. Reopen”), ECF No.
15, and this Court denied the motion “without prejudice to its
renewal by counsel.”

Electronic Order, July 11, 2012.

On

October 29, 2012, Washington filed a motion to reopen the
petition and to stay and hold it in abeyance.

Mot. Reopen Case

& Mot. Stay & Hold in Abeyance 28 U.S.C. § 2254 Pet. Writ Habeas
Corpus (II), ECF No. 19.

This Court denied the motion, stating:

“[o]nce full exhaustion has been achieved, petitioner may
[3]

proceed.”

Electronic Order, ECF No. 20.

Washington then obtained an attorney, who requested that
the Superior Court take no action on Washington’s pending
motions for new trial, as the attorney intended to file a
substitute motion.

App. II at 45.

on February 11, 2014.
four.

Id. 47-49.

The revised motion was filed

Id. at 8, 47-49.

It asserted only claim

The Superior Court denied the motion by

margin order on October 14, 2014 and docketed on October 17,
2014.

Id. at 54.

that decision.

Washington then filed for leave to appeal

Id. at 50.

on April 10, 2015. 3

This “gatekeeper” appeal was denied

Id.

Following this denial, Washington filed a motion to reopen
his habeas petition with this Court on October 5, 2016.

Mot.

Vacate Stay Reopen Habeas Proceedings (“Mot. Vacate”), ECF No.
23.

This Court granted that motion on October 12, 2016.

Electronic Order, ECF No. 25.

Spencer again moved to dismiss

the petition in its entirety, Resp’t’s Mot. Dismiss, ECF No. 26,
see Resp’t’s Mem. Supp. Mot. Dismiss (“Resp’t’s Mem.”), ECF No.
27; Mem. Opposing Mot. Dismiss (“Pet’r’s Mem.”), ECF No. 30.
This Court granted in part and denied in part the Motion to
Dismiss on February 27, 2017.

Electronic Clerk’s Notes, ECF No.

3

In Massachusetts, a “gatekeeper” appeal is an appeal of a
“capital case” presented to a single justice of the Supreme
Judicial Court. Mass. Gen. Laws ch. 278 § 33E.
[4]

31.

This Court dismissed claims five through eight as

unexhausted, and ordered the case administratively closed with
the opportunity for either party to reopen once the Supreme
Court ruled in Weaver v. Massachusetts. 4

137 S. Ct. 809

(2017)(granting certiorari); Electronic Clerk’s Notes, ECF No.
31.
On July 27, 2017, Washington moved to reopen the case, Mot.
Reopen Case and Vacate Stay, ECF No. 33, which this Court
allowed on August 16, 2017, in order to consider the case in
light of the Weaver holding.

Electronic Order, ECF No. 37.

Washington filed an amended petition on October 19, 2017.
Pet’r’s Pet., ECF Nos. 40-41.

Spencer filed a memorandum in

opposition to the petition and renewed his motion to dismiss.
Resp’t’s Supplemental Answer, ECF No. 46; Resp’t’s Mem. Opp’n
Pet. Writ of Habeas Corpus, ECF No. 47.
dismiss claims two and three.

Washington agreed to

Pet’r’s Reply Resp. Mot. Am. Pet.

Writ Habeas Corpus, (“Pet’r’s Reply”), ECF No. 48.
fully briefed the issues.

The parties

Pet’r’s Mem. Opp’n Mot. Dismiss,

(“Pet’r’s Opp’n I”) ECF No. 42; Pet’r’s Opp’n Mot. Dismiss. Am.

4

The Supreme Court granted certiorari in Weaver to decide
whether, when a defendant’s right to public trial is violated, a
court must treat the violation as structural error when the
unpreserved error is “raised later via an ineffectiveassistance-of-counsel claim.” 137 S.Ct. 1899, 1902 (2017).
[5]

Pet. Writ of Habeas Corpus, (“Pet’r’s Opp’n II”) ECF No. 56. 5
This Court heard oral argument on the motions on March 29, 2018,
and took the matter under advisement.
II.

ANALYSIS
The parties ask this Court to decide: (1) whether

Washington’s claims are time-barred and, if not, (2) whether
Washington is entitled to relief.
claims are time-barred.

The Court concludes the

Therefore, this Court GRANTS Spencer’s

motion to dismiss the petition.
A.

Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996
(the “Act”) allows a person in custody, under certain
circumstances, to petition for habeas corpus relief from a state
court conviction.

28 U.S.C. § 2254.

The petitioner must show

that the state court’s adjudication:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal Law, as determined by the Supreme
Court of the United States; or (2) resulted in a
decision that was based on an unreasonable
determination of the facts in light of the evidence
presented in the State court proceeding.
Id. § 2254(d).

5

Since three of Washington’s filings (Pet’r’s Mem., Pet’r’s
Opp’n I, and Pet’r’s Opp’n II) are nearly identical, this
memorandum will cite primarily to the most recent filing:
Pet’r’s Opp’n II, for brevity.
[6]

“Under Section 2254(d)(1), a federal court may grant habeas
relief if the last state court to adjudicate the merits of
petitioner’s claim employed a legal rule that contradicts the
governing law set forth in [Supreme Court] cases.”
Gelb, 142 F.Supp.3d 198, 201-02 (D. Mass. 2015).

Hyatt v.
While an error

in the state court’s decision does not guarantee relief for
Washington, this Court may grant relief if the state court’s
decision included “some increment of incorrectness beyond error
. . . great enough to make the decision unreasonable in the
independent objective judgment of the federal court.”

Evans v.

Thompson, 465 F. Supp. 2d 62, 67 (D. Mass. 2006)(quoting Norton
v. Spencer, 351 F.3d 1, 8 (1st Cir. 2003)), aff’d, 518 F.3d 1
(1st Cir. 2008).
B.

Motion to Dismiss for Lack of Timeliness

Spencer argues that Washington’s petition ought be
dismissed because each claim was untimely.

Resp’t’s Mem. 6.

In

response, Washington argues that because the initial petition
was timely, it does not matter that he filed to reopen the
petition late.

Pet’r’s Opp’n II 7.

But, even if the claims are

time-barred, Washington argues he is eligible for equitable
tolling.
barred.

Id. at 8.

Spencer is correct; each claim is time-

Though Washington may have interpreted this Court’s

admittedly inartful orders to mean his petition was stayed in
order to exhaust his state court claims, Washington still waited
[7]

nearly fifteen months to reopen his petition following the
completion of his state court proceedings.

Therefore, the Court

GRANTS Spencer’s motion to dismiss.
1. One Year Limitation Period
Spencer argues that the one year statute of limitations on
both of Washington’s claims has run.

Resp’t’s Mem. 7.

28

U.S.C. § 2244(d)(1) imposes a one year limitation period on
applications for a writ of habeas corpus by persons in state
custody.

It begins upon the latest of four dates:

(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of
the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by
such State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review; or
(D) 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).
This one year statute of limitations is strictly construed.
Dixon v. United States, No. 17-1069, 2018 WL 1747728, at *1 (1st
Cir. April 11, 2018)(holding a petition was untimely when it was
filed one day late).

The statute allows tolling of the one-year
[8]

period for “[t]he 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).
As the Supreme Court noted, tolling the limitation period
“promotes the exhaustion of state remedies by protecting a state
prisoner’s ability later to apply for federal habeas relief
while state remedies are being pursued.”
U.S. 167, 179 (2001).

Duncan v. Walker, 533

Simply because a prisoner files a habeas

petition in federal court, however, does not mean the
limitations period is tolled.

Id.

In Duncan, “the District

Court dismissed [petitioner’s] first federal habeas petition
without prejudice, [and petitioner] had more than nine months
remaining in the limitation period in which to cure the defects
that led to the dismissal.”

Id. at 181.

The First Circuit has noted that the one-year limit tolls
for the ninety-day period from the denial of a petitioner’s
direct appeal to the end of the period in which the petitioner
can seek certiorari from the Supreme Court.
276 F.3d 87, 91 (1st Cir. 2002).

Donovan v. Maine,

Here, the Supreme Judicial

Court affirmed Washington’s conviction and denied his first
motion for a new trial on March 3, 2011.

App. I 12.

did not seek certiorari from the Supreme Court.

[9]

Washington

Accordingly,

his one year period to seek federal habeas review began to run
ninety days later, on June 1, 2011.
On November 21, 2011 -- 173 days later -- Washington filed
a second motion for a new trial in the Superior Court, asserting
claims four through eight, App. II 8, 10-11, and tolling the
statute of limitations, 28 U.S.C. § 2244(d)(2).

He then filed a

third motion, asserting the same claims on December 13, 2011.
App. II 8, 43-44.
While the one-year time period remained tolled due to
Washington’s filings in state court, Washington also timely
filed his first petition in this Court on March 7, 2012.
Habeas Corpus I.

Writ

This Court dismissed the petition in its

entirety, Order of Dismissal, ECF No. 14, and the case was
terminated on June 28, 2012.
motion to reopen the petition.

Soon after, Washington filed a
Mot. Reopen.

This Court denied

the motion to reopen, “without prejudice to its renewal by
counsel.”

Electronic Order, July 11, 2012.

As Washington had

not yet been appointed counsel to represent him in this Court,
Washington filed a subsequent motion to reopen and a motion to
stay and hold in abeyance the petition, “to ensure the claims
will not be later barred from federal review because of the
limitations period.” Mot. Reopen & Mot. Stay and Abeyance, ECF
No. 19.

The Court denied this motion, stating “[o]nce full

[10]

exhaustion has been achieved, petitioner may proceed.”
Electronic Order, ECF No. 20.
Also in 2012, Washington was appointed an attorney to
represent him in his state court proceedings.

App. II at 45.

The attorney requested that the Superior Court take no action on
Washington’s pending motions, as he intended to file a
substitute motion.

Id.

The revised motion was filed on

February 11, 2014.

Id. at 8, 47-49.

In September 2014,

Washington sent a letter to this Court alerting it to the fact
he was still pursuing his claims in state court.

Letter from

Derrick Washington, ECF No. 21.
The Superior Court denied Washington’s state motion for new
trial by margin order on October 14, 2014, which was docketed on
October 17, 2014.

App. II at 54.

leave to appeal that decision.

Washington then filed for

Id. at 50.

appeal was denied on April 10, 2015.

This “gatekeeper”

Id.

In Massachusetts, a “gatekeeper” justice’s decision
pursuant to section 33E, “whether it is to permit or
prohibit an appeal, is final and unreviewable.”
Commonwealth v. Smith, 460 Mass. 318, 322 (2011). Thus, in
Massachusetts, the denial of a section 33E motion marks the
end of the pendency of an application for post-conviction
relief.
Herbert v. Dickhaut, 695 F.3d 105, 108–09 (1st Cir. 2012).
The gatekeeper’s denial of Washington’s appeal resumed the
running of the one year statute of limitations.

At this time,

Washington had 192 days remaining in the one-year period.
[11]

Washington’s counsel was approved to represent him in this Court
on September 9, 2015.

Pet’r’s Opp’n II at 5.

In the 192 days

following the gatekeeper’s denial, Washington and his attorney
did not file anything related to this case in state or federal
court.
2015.

Therefore, the one-year period expired on October 19,
Washington filed a motion to reopen in this Court on

October 5, 2016, almost fifteen months after the completion of
his state court proceedings.

Mot. Vacate.

At this point, the

one-year period had been expired for nearly a full year.
Washington argues that since this Court stated in its
denial of the motion to stay and abeyance the petition that
“[o]nce full exhaustion has been achieved, petitioner may
proceed,” Electronic Order, ECF No. 20, he believed he had met
the deadline for his habeas petition.

Pet’r’s Opp’n II at 7.

Washington argues this was, in essence, a stay.

Id. at 1.

Washington’s counsel argues he chose not to reopen the petition
until a number of cases dealing with courtroom closure worked
their way to the Supreme Court, because he believed a holding in
Washington’s favor would have led to further state court
proceedings in this case.

Id. at 2-7.

Had the Supreme Court recognized a right so important as to
merit retroactivity in Weaver, the one-year period would have
begun after the Supreme Court’s decision.
2244(d)(1)(D).

28 U.S.C. §

Unfortunately for Washington, however, this did
[12]

not happen.

In addition, the Weaver holding did not support

Washington’s claims for relief.

The Supreme Court held in

Weaver that “when the defendant does not preserve a structural
error on direct review . . . the defendant must show deficient
performance . . . [and] that the attorney’s error ‘prejudiced
the defense.’”

137 S.Ct. at 1910 (quoting Strickland v.

Washington, 466 U.S. 668, 687 (1984)).

When a petitioner raises

an ineffective assistance of counsel claim on collateral review,
the burden is on the defendant to show either that: (1) there
was a “reasonable probability of a different outcome”; or (2)
that the violation was so severe that the trial was
“fundamentally unfair.”

Id. at 1911.

In this case, Washington

did not preserve the issue, did not show deficient performance
or prejudice, and did not meet his burden for collateral review.
Even if Washington believed this Court had issued a stay of
his petition, the stay could have been only until “full
exhaustion [had] been achieved.”

Electronic Order, ECF No. 20.

Instead, Washington waited nearly fifteen months after his state
claims were exhausted to reopen his petition in this Court.
Since the limitations period ended long before Washington
refiled his petition on October 12, 2016, Washington’s claims
are time-barred.
III. CONCLUSION

[13]

For the foregoing reasons, the Court GRANTS ECF No. 54,
Spencer’s motion to dismiss the petition.
SO ORDERED.

/s/ William G. Young_
WILLIAM G. YOUNG
DISTRICT JUDGE

[14]