Powell v. Gelb

Filing 32

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: "For the foregoing reasons, 1) respondent's Renewed Motion to Dismiss (Docket No. 29 ) is DENIED WITHOUT PREJUDICE to renewal for reasons other than failure to file within t he AEDPA limitations period; 2) petitioner's Motion to Hold Habeas Corpus Petition in Abeyance (Docket No. 21 ) is ALLOWED and proceedings on his 28 U.S.C. § 2254 petition are stayed pending exhaustion of his unexhausted state court claims; 3) petitioner shall renew his petition for a writ of habeas corpus no more than 30 days after exhausting his claims in state court; and 4) petitioner's Motion to Stay (Docket No. 15 ) is DENIED AS MOOT. So ordered."(Moore, Kellyann)

United States District Court
District of Massachusetts
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JOHN POWELL,
Petitioner,
v.
BRUCE GELB,
Respondent.

Civil Action No.
13-11465-NMG

MEMORANDUM & ORDER
GORTON, J.
Petitioner John Powell (“Powell” or “petitioner”), an
inmate at the Massachusetts Correctional Institution-Concord
(“MCI-Concord”), has filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.

In March, 2014, the

Court denied without prejudice the motion of respondent Bruce
Gelb (“Gelb” or “respondent”) to dismiss Powell’s petition as
time-barred under the Antiterrorism and Effective Death Penalty
Act of 1996 (“the AEDPA”).

In denying the subject motion, the

Court found that Powell had made a sufficient showing that he
tolled the AEDPA limitations period by placing a motion for a
new trial in the outgoing mail at MCI-Concord in April, 2012 to
shift the burden to respondent to show that Powell could not
have mailed his motion on that date.

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Respondent has since filed a renewed motion to dismiss.
Also pending before the Court are Powell’s motions to stay
proceedings on his § 2254 petition and to hold the petition in
abeyance pending exhaustion of his unexhausted state court
claims.
I.

The instant memorandum disposes of those motions.

Background
The relevant facts of Powell’s conviction in the Suffolk

Superior Court and his appeals of that conviction are summarized
in this Court’s Memorandum and Order of March 13, 2014 (Docket
No. 23) and require no further elucidation here.
Under the AEDPA, a one-year period of limitation applies to
petitions for a writ of habeas corpus by a person in custody
pursuant to the judgment of a state court. 28 U.S.C. § 2244(d).
The limitations period begins to run on the date on which the
state court judgment becomes final. Id. § 2244(d)(1)(A).

If a

prisoner unsuccessfully appeals his conviction to the highest
court of the state, his conviction becomes final 90 days after
that appeal concludes, i.e. at the end of the 90-day period to
file a petition of certiorari with the Supreme Court of the
United States. Serrano v. Dickhaut, No. 12-40012, 2012 WL
2343730, at *2 (D. Mass. June 19, 2012) (citing Voravongsa v.
Wall, 349 F.3d 1, 2 (1st Cir. 2003)).

Furthermore, even if the

one-year limitation period begins to run, the petitioner may

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toll the limitations period by applying for state postconviction or collateral review. 28 U.S.C. § 2244(d)(2).
Here, the Massachusetts Supreme Judicial Court denied
Powell’s application for further appellate review of his
Superior Court conviction on April 1, 2011.
file a petition for a writ of certiorari.

Petitioner did not
As a result, the

limitations period began to run on July 1, 2011 and expired on
July 1, 2012.

Respondent contends that petitioner’s § 2254

petition is therefore barred because it was filed in June, 2013.
Powell avers that on April 11, 2012, he tolled the
limitations period by placing a motion for a new trial addressed
to the Clerk of the Suffolk Superior Court in the mailbox for
outgoing mail at MCI-Concord and that he affixed thereto $2.30
in First Class postage.

There is no record of the motion being

received by the Suffolk Superior Court and it does not appear on
the docket of the petitioner’s case before that court. See
Criminal Docket, Commonwealth v. Powell, No. SUCR2002-11199.
Powell avers that in September, 2013, he learned that the Clerk
of the Suffolk Superior Court did not receive that motion.

He

moved for leave to file a motion for a new trial nunc pro tunc
and concurrently moved for a new trial in October, 2013.

The

Suffolk Superior Court denied the motion for a new trial in
January, 2014 and Powell has appealed that decision to the
Massachusetts Court of Appeals.
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II.

Respondent’s Renewed Motion to Dismiss as Time-Barred
Respondent has renewed his motion to dismiss Powell’s

§ 2254 petition as time-barred under the AEDPA.

In support of

his motion, he submits an affidavit of Dale Bissonette
(“Bissonette”), the Deputy Superintendent for Classification and
Programs at MCI-Concord, which describes how MCI-Concord
processed outgoing prisoner mail in April, 2012.
According to Bissonette, MCI-Concord did not log outgoing
prisoner mail.

Inmates deposited mail in a locked box and

prison employees collected it from the box, inspected it to
ensure that it bore proper return addresses, delivered it to the
mail room for scanning and delivered it to the post office.
Moreover, stamps, postage and envelopes were charged against
inmates’ institutional accounts.

Records of Powell’s account

reveal that he purchased books of ten stamps from the prison
canteen on January 9 and March 26, 2012 and manila envelopes on
March 3, March 26, April 2 and April 9, 2012.
Such evidence is insufficient to carry respondent’s burden
of proving that petitioner could not have placed his motion in
the outgoing mail on April 11, 2012, because the available
evidence is consistent with Powell’s claim that he mailed his
motion at about that time. See Houston v. Lack, 487 U.S. 266,
270-76 (1988); Casanova v. Dubois, 304 F.3d 75, 78-79 (1st Cir.
2002); Commonwealth v. Hartsgrove, 553 N.E.2d 1299, 1301-03
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(Mass. 1990).

April 11, 2012 is therefore the effective filing

date for Powell’s motion for a new trial. Casanova, 304 F.3d at
79.

The filing of that motion prior to July, 2012 tolled the

AEDPA statute of limitations.

Respondent’s motion to dismiss

the § 2254 petition as time-barred will therefore be denied.
III. Petitioner’s Motion to Hold Habeas Corpus Petition in
Abeyance
Petitioner’s motion is a “mixed” petition for habeas corpus
that contains both exhausted and unexhausted claims. See Rhines
v. Weber, 544 U.S. 269, 273-74 (2005).

The Supreme Court of the

United States has held that, in certain circumstances, it is
appropriate to employ a “stay-and-abeyance” procedure in federal
court to permit the petitioner to exhaust his unexhausted state
claims. Id. at 275-278.

Stay-and-abeyance is justified where 1)

the petitioner has good cause for his failure to exhaust certain
claims, 2) the unexhausted claims are “potentially meritorious”
and 3) there is “no indication that the petitioner engaged in
intentionally dilatory litigation tactics.” Id. at 278.
Those circumstances exist here.

First, Powell has

demonstrated good cause for his failure to exhaust his state
claims: he allegedly mailed his motion for a new trial in April,
2012, and the motion is still pending in the state court system.
Second, failure of the Clerk of the Suffolk Superior Court to
receive the motion before Powell filed the instant petition

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cannot be attributed to Powell. See Lack, 487 U.S. at 270-76
(justifying application of prison mailbox rule to late-filed
appeal on grounds that inmate must rely on prison authorities
over whom he has no control).

Third, respondent does not

challenge the merits of the unexhausted claims in his opposition
to the subject motion and the Court therefore assumes without
deciding that they are sufficiently meritorious to warrant stayand-abeyance.
Finally, given that the state trial court denied Powell’s
motion for a new trial and the matter is pending before the
Massachusetts Court of Appeals, it is unlikely that invoking the
stay-and-abeyance procedure will unduly delay federal
proceedings or frustrate the goal of AEDPA of promoting finality
in federal habeas review. See Rhines, 544 U.S. at 278.
Nevertheless, to avoid unnecessary delay, petitioner will be
required to renew his § 2254 petition within 30 days of the
final disposition of those claims in state court. Id. (citing
Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir. 2001)).

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ORDER
For the foregoing reasons,
1)

respondent’s Renewed Motion to Dismiss (Docket No. 29)
is DENIED WITHOUT PREJUDICE to renewal for reasons
other than failure to file within the AEDPA
limitations period;

2)

petitioner’s Motion to Hold Habeas Corpus Petition in
Abeyance (Docket No. 21) is ALLOWED and proceedings on
his 28 U.S.C. § 2254 petition are stayed pending
exhaustion of his unexhausted state court claims;

3)

petitioner shall renew his petition for a writ of
habeas corpus no more than 30 days after exhausting
his claims in state court; and

4)

petitioner’s Motion to Stay (Docket No. 15) is DENIED
AS MOOT.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated June 17, 2014

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