Bianchi v. Medeiros
Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER on Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus. (FDS, law4)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Civil Action No.
MEMORANDUM AND ORDER ON RESPONDENT’S
MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
This is a pro se petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254.
On May 2, 1995, a jury in Suffolk County Superior Court convicted petitioner Robert Bianchi of
charges of first-degree murder and violating a protective order. He was sentenced to life in
prison. The habeas petition alleges (1) that his right to an open trial was violated by the closure
of empanelment proceedings; (2) that his right to a fair trial was violated by the court’s order
requiring him to face forward at all times; (3) that he received ineffective assistance of counsel;
and (4) that the court erred in excluding certain evidence demonstrating his state of mind at the
time of the murder.
Respondent has filed a motion to dismiss the petition as time-barred. For the following
reasons, the motion to dismiss will be granted.
In Commonwealth v. Bianchi, 435 Mass. 316, 317 (2001), the Massachusetts Supreme
Judicial Court summarized the murder of Donna Bianchi as follows:
In the early morning hours of April 17, 1994, Donna Bianchi was beaten and
choked with a night stick and sprayed with mace in her home by her estranged
husband, Robert L. Bianchi, Jr. She became fearful that Bianchi was going to kill
her and her child, and obtained an abuse prevention order against him the
On May 6, 1994, Donna dropped her seven-month old son off at her sister-inlaw's house on her way to work. As she left the house, Bianchi, who had been
following her for several days, confronted her. She began screaming and running
away from him. As he pursued her, she tripped and fell. He picked her up by the
hair, prodded her in the back with a gun, and herded her toward the street where
he shot her twice in the back. After she fell to the ground, paralyzed by one of the
first two bullets, Bianchi placed the muzzle of the gun on her chest, and fired
three more times, pausing between shots.
On May 2, 1995, a jury convicted Bianchi of first-degree murder, under the theories of deliberate
premeditation with malice aforethought and extreme atrocity or cruelty, and of violating a
protective order. (Id.; Pet. Ex. A). He was sentenced to a term of life in prison. (Pet. Ex. A).
Following his conviction, Bianchi filed a timely notice of appeal and a motion for a new
trial. (Commonwealth v. Bianchi, 435 Mass. at 316). The appeal was stayed pending resolution
of the motion for a new trial, which was eventually denied on March 31, 2000. (Pet. Ex. A).
On November 10, 2000, Bianchi wrote his appellate attorney, Dana Curhan, urging him
to include a claim concerning the ineffective assistance of his trial counsel, Robert George, as a
basis for the appeal to the Massachusetts Supreme Judicial Court (“SJC”). (Pet. Ex. B).
On November 9, 2001, the SJC affirmed Bianchi’s conviction and the denial of his
motion for a new trial. (Commonwealth v. Bianchi, 435 Mass. at 330). The SJC did not consider
any claim for ineffective assistance of counsel. (Id. at 322–30). Bianchi did not file a petition
for a writ of certiorari in the United States Supreme Court.
On November 13, 2001, Bianchi wrote a letter to Donald Bronstein at the Committee for
Public Counsel Services (“CPCS”). The letter requested that Bronstein be appointed a screener
or other counsel for proceedings concerning post-conviction relief based on the fact that Curhan
had failed to present the ineffective assistance of counsel claim. (Pet. Ex. C). CPCS denied that
request. (Pet. Ex. JJJJ ¶ 2).
Bianchi contends that in December 2001 he “began the long and arduous process of
assembling any materials that could aid [him] in researching [his] own case.” (Id. ¶ 3). He
alleges that by September or October 2002, he was prepared to file a motion for a new trial pro
se under Mass. R. Crim. P. 30(b), but before doing so, he telephoned CPCS in another attempt to
obtain counsel or a screener. (Id. ¶¶ 5–6).
Bianchi alleges that he informed an unnamed person at that office that he was concerned
about losing his “appellate rights in federal court.” (Id. ¶ 6). He alleges that the person advised
him to file a motion for reduction of verdict or new trial under Mass. R. Crim. P. 25(b)(2) instead
of the Rule 30(b) motion. (Id. ¶ 7). He further alleges that he was advised to file nothing but the
Rule 25 motion, to reserve his right to amend the motion at a later date, and to request that the
reviewing court not construe the motion as a Rule 30 motion. (Id.). He was told that if he filed a
Rule 30(b) motion that was immediately denied, he would have “greater difficulty in filing any
subsequent Rule 30 motions.” (Id. ¶ 6).
On October 20, 2002, Bianchi filed a pro se motion for reduction in verdict or new trial
pursuant to Mass. R. Crim. P. 25(b)(2). (Pet. Ex. X, Pet. Ex. JJJJ ¶ 54). The motion consists of a
single page. It appears to be a form document on which Bianchi filled in blanks, including his
crime, the court that convicted him, and his name. (Pet. Ex. H). The motion provided as reasons
for its allowance “that the verdict was against the weight of the evidence, and that there was
insufficient evidence of first degree murder.” (Id.). It did not include any legal argument or
evidence in support of that claim. It further stated that “[t]he defendant respectfully requests that
the Court hold this motion in abeyance while he attempts to obtain counsel” and that he “does
not wish this motion to be construed as a motion pursuant to Mass. R. Crim. P. 30.” (Id.)
(emphasis in original). The parties agree that the state court has never taken any action on the
Rule 25 motion. (Resp. Mem. at 2; Pet. Mem. at 2).
On November 21, 2002, CPCS assigned attorney James Couture to Bianchi’s case. (Pet.
Ex. J). In early 2003, Bianchi mailed various materials and his trial transcripts to Couture for
review. (Pet. Ex. JJJJ ¶ 12). After a period of time, Bianchi contacted CPCS; he alleges that he
was informed that Couture had the matter in hand, and that the Rule 25 motion would “hold the
flood gates” for further appeal. (Id. ¶ 13). In late 2003, he began to grow concerned because he
had not heard from Couture for some time. (Id. ¶ 16). In May or June 2004, he became
sufficiently worried about the lack of communication that he planned to file his own Rule 30(b)
motion, but was again allegedly assured by someone at CPCS that Couture “had the matter under
control.” (Id. ¶ 17). Despite those reassurances, Bianchi began conducting his own factual and
legal research. (Id. ¶ 18).
Throughout 2006 and into 2007, Bianchi grew increasingly concerned about Couture’s
inaction, but alleges that he was again assured by someone at CPCS that Couture would handle
the case. (Id. ¶ 25). At some point, he learned that Couture “was in no condition to handle
anyone’s case” and resolved to sever the relationship. (Id. ¶ 26). Thereafter, he attempted to
retrieve his transcripts and trial file from Couture and CPCS. (Id. ¶ 29). On August 29, 2007,
attorney David Nathanson of CPCS sent a letter to Bianchi in response to his request for
transcripts, stating that he could not compel Couture to return the documents because “[he] ha[s]
almost no leverage over Attorney Couture at this point as he no longer has any active cases with
[CPCS].” (Pet. Ex. R). The letter directed Bianchi to contact the Board of Bar Overseers if
Couture did not provide the transcripts. (Id.). Bianchi contends that he finally re-acquired his
transcripts in 2008, at which time, he began to assemble a Rule 30(b) motion. (Pet. Ex. JJJJ ¶¶
On September 30, 2013, Bianchi, acting pro se, filed a second motion for a new trial
pursuant to Mass. R. Crim. P. 30(b). (Pet. Ex. X). That motion was denied on November 18,
2014. (Id.). On January 17, 2015, Bianchi filed a petition for discretionary review by a single
justice pursuant to Mass. Gen. Laws ch. 278, § 33E. (Id.) That petition was denied on June 9,
2016. (Pet. Ex. Z).
On June 28, 2016, Bianchi filed the present habeas petition pursuant to 28 U.S.C § 2254.
Respondent has moved to dismiss the petition on the basis that it is time-barred.
Bianchi contends that during the more than fifteen years between his conviction and the
filing of the present habeas petition, he was diligent in pursuing his rights. Beginning in
December 2005, he contacted multiple attorneys requesting assistance. (Pet. Ex. JJJJ ¶¶ 22, 35;
Pet. Ex. YY–HHH). He contends that through his research he discovered that the court had
imposed an unlawful sentence concerning his conviction for violating a protective order. (Pet.
Ex. JJJJ ¶ 38). He also states that he conducted research into possible defenses and reviewed
evidence demonstrating his mental health as a young man throughout the period. (Id. ¶ 39).
Eventually, he wrote a Rule 30(b) motion that was more than 568 pages long, although it was
apparently never filed. (Id. ¶¶ 33–34).
Bianchi contends that his ability to move his case forward was hampered by his medical
condition. He contends that starting in January 2004, he suffered from periods of prolonged and
serious illness due to kidney stones. (Id. ¶ 20). He states that he was seriously ill for most of
2004 and 2005, was hospitalized twice within a three-week period in 2006, had a “very severe
health issue of the same nature” in 2010, was hospitalized in April 2011, and was again
hospitalized in 2012. (Id. ¶¶ 20, 40, 39, 42).
Respondent has moved to dismiss the petition on the ground that it is time-barred.
Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposed a oneyear limitations period for habeas corpus petitions by state prisoners. 28 U.S.C. § 2244(d). As
relevant here, the limitations period 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.” Id. §
2244(d)(1)(A). Judgments are considered “final” for AEDPA purposes “when the ninety-day
period for seeking certiorari expire[s].” Neverson v. Farquharson, 366 F.3d 32, 36 (1st Cir.
The statute excludes from the one-year limitations period 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.” Id. § 2244(d)(2). An application for post-conviction
review is “properly filed” “when its delivery and acceptance are in compliance with the
applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000). An
application is “pending” “from the time it first is filed with the state trial court, until the final
disposition of a timely appeal or request for allowance of appeal.” Currie v. Matesanz, 281 F.3d
261, 267 (1st Cir. 2002). State law controls whether an application qualifies as “properly filed”
and “pending” to toll the limitations period under AEDPA. See Holmes v. Spencer, 685 F.3d 51,
60 (1st Cir. 2012) (“Holmes I”); Herbert v. Dickhaut, 695 F.3d 105, 108 (1st Cir. 2012).
The one-year limitations period began to run on Bianchi’s motion on February 7, 2002,
90 days after the SJC affirmed his conviction. Bianchi filed the one-page Rule 25 motion on
October 20, 2002. He contends that the filing of that motion constitutes an “application for postconviction review” that was “properly filed” and remains “pending,” thereby tolling the AEDPA
limitations period from October 20, 2002, until June 28, 2016, when he filed the petition.
Rule 25 Motion
Under Mass. R. Crim. P. 25 (“Motion for Required Finding of Not Guilty”), a court shall
enter a finding of not guilty “after the evidence on either side is closed” for any charge for which
the “evidence is insufficient as a matter of law to sustain a conviction.” Mass. R. Crim. P. 25(a).
In ruling on a motion brought pursuant to Rule 25, the court must determine “whether the
evidence, in its light most favorable to the Commonwealth . . . is sufficient . . . to permit the jury
to infer the existence of the essential elements of the crime charged.” Commonwealth v.
Latimore, 378 Mass. 671, 676–77 (1979). Massachusetts Rule 25 is modeled after Fed. R. Crim.
P. 29 (“Motion for a Judgment of Acquittal”), which similarly directs a judge to enter a judgment
of acquittal on any offense for which the evidence is insufficient to sustain a conviction. Fed. R.
Crim. P. 29(a).
Under the second sentence of Mass. R. Crim. P. 25(b)(2), if a jury returns a verdict of
guilty, “the judge may on motion set aside the verdict and order a new trial, or order the entry of
a finding of not guilty, or order the entry of a finding of guilty of any offense included in the
offense charged in the indictment or complaint.” Unlike the analogous federal provision, which
prescribes a two-week deadline, Massachusetts Rule 25(b)(2) does not prescribe a time limit for
filing a motion under the second sentence. Commonwealth v. Aguiar, 400 Mass. 508, 511 n.3
(1987) (analogizing a motion brought under the second sentence of Rule 25(b)(2) to a motion
brought pursuant to Rule 30(b) and finding that, while the first sentence of Rule 25(b)(2)
imposes a time limit for filing a motion, the second sentence imposes no such limit).
It is far from clear whether Bianchi’s motion under Mass. R. Crim. P. 25(b)(2) should be
considered an “application for post-conviction review” sufficient to toll the AEDPA limitations
period. A court in this district has previously found that the fact that Massachusetts Rule 25 is
modeled on Federal Rule 29 suggests that federal courts should not treat Rule 25 motions as
motions for post-conviction review under AEDPA. Clarke v. Spencer, 585 F. Supp. 2d 196, 203
(D. Mass. 2008), aff'd, 582 F.3d 135 (1st Cir. 2009). That court, however, nonetheless treated
the petitioner’s Rule 25 motion as a motion for post-conviction review because “Massachusetts
law allows . . . a Rule 25 motion to be treated as a motion under Rule 30 for collateral postconviction relief, if the motion is the same in nature and substance.” Id.
Here, Bianchi specifically requested that his Rule 25 motion not be treated as a Rule 30
motion. Under the circumstances, it is highly doubtful that the Rule 25 motion should be treated
as a motion for post-conviction review under AEDPA. However, “in an excess of caution,” this
Court will assume, without deciding, that the Rule 25 motion constitutes a motion for postconviction review because the claim is time-barred for other reasons. Id.
In order to toll the limitations period under AEDPA, a state-court motion for postconviction review need not only be “filed,” it must also be “properly filed.” Artuz v. Bennett,
531 U.S. at 8. In order to be properly filed, an application must comply with applicable laws and
rules governing filings including, for example, “the form of the document, the time limits upon
its delivery, the court and office in which it must be lodged, and the requisite filing fee.” Id. at
The Rule 25 motion filed by Bianchi was a placeholder, filed with the explicit intent to
toll the limitations period under AEDPA. It did not provide any legal argument or factual basis
why it should be allowed. Instead, the one-page motion appears to be a form document on which
he filled in certain basic information, such as his crime and the court in which he was convicted.
It also requested that the court not construe the motion as a Rule 30 motion and hold it in
abeyance while Bianchi sought counsel. He apparently has never requested that the state court
review the motion and rule upon it, nor has the court ever done so. Indeed, no court could
reasonably grant the motion in its present form, because it provides no legal or factual basis
whatsoever on which a court could grant relief.
There appears to be no Massachusetts case law concerning whether such a bare-bones
document qualifies as a “properly filed” motion under the second sentence of Mass. R. Crim. P.
25(b)(2). There is, however, case law analyzing what constitutes proper filing of a motion under
Mass. R. Crim. P. 29 (“Motion for Revision or Revocation of a Sentence”), which provides a
sixty-day limitations period after the imposition of a sentence.1 In DeJesus, an applicant brought
a Rule 29 motion to revise or revoke his sentence but did not include a supporting affidavit or
state any reason why the motion was being filed. See Commonwealth v. DeJesus, 440 Mass.
147, 147–48 (2003). The SJC found that such a perfunctory motion, although timely filed, was
not “properly filed” and therefore the later filings made by the applicant to supplement the
motion were time-barred. Id. at 152. It reasoned that the purpose of a Rule 29 motion is to
“permit a judge to reconsider the sentence he has imposed and determine, in light of the facts as
they existed at the time of sentencing, whether the sentence was just.” Id. (quoting
Commonwealth v. Layne, 386 Mass. 291, 295 (1982). Because a Rule 29 motion “can rely only
on facts or circumstances that existed at the time of sentencing,” the SJC could not “perceive any
valid reason why a defendant could not identify at least some basis for the motion when it is
Under First Circuit precedent, a Massachusetts Rule 29 motion constitutes a motion for post-conviction
review such that its filing tolls the AEDPA limitations period. Holmes I, 685 F.3d at 60.
filed.” Id. Ultimately, the court determined that “to be properly filed, a [Rule 29] motion to
revise or revoke must be accompanied by an affidavit, or otherwise indicate the grounds on
which it is based.” Id.
A Rule 25 motion, like a Rule 29 motion, necessarily must be based on evidence from a
limited time period, because the question is whether the evidence admitted at the trial was
insufficient as a matter of law to sustain a conviction. Commonwealth v. Semedo, 456 Mass. 1, 8
(2010). As with Rule 29, there is no “valid reason” why an applicant filing a motion under the
second sentence of Rule 25(b)(2) “could not identify at least some basis for the motion when it is
filed.” DeJesus, 440 Mass. at 152. Accordingly, it is reasonable to infer that a Rule 25 motion
must identify “at least some basis” for its allowance in order to toll the AEDPA limitations
period. Id. at 152.2
Like the Rule 29 applicant in DeJesus, the Rule 25 motion at issue here provided no
ground for relief and simply reserved the right to supplement the motion. In addition, the motion
explicitly requested that it not be considered until a later time. Therefore, the bare-bones,
placeholder Rule 25(b)(2) motion filed by Bianchi was not “properly filed” and does not toll the
limitations period. See Holmes v. Spencer, 685 F.3d 51, 61 (2012) (“Holmes I”) (applying
DeJesus to the AEDPA context).
In short, Bianchi’s one-page motion—which included no facts, no legal argument, and no
real request for relief—was not a “properly filed” motion for post-conviction review within the
meaning of AEDPA. And to be clear, this is not simply a technical exercise of interpreting a
The Court is cognizant of the fact that in some ways Mass. R. Crim. P. 29 is not a perfect analogue for
Mass. R. Crim. P. 25. Rule 29 itself provides stricter procedural requirements than Rule 25, as a party filing a
motion under Rule 29 must also file an affidavit in support of the motion. Mass. R. Crim. P. 29. The SJC based its
opinion in DeJesus in part on that affidavit requirement. By contrast, Rule 25 does not explicitly require an
applicant to file an affidavit in conjunction with the motion. Nonetheless, the logic and reasoning of DeJesus
plainly compels the conclusion that a bare-bones filing under Rule 25 is not adequate to toll the limitations period.
state procedural rule. A contrary result would eviscerate the timeliness requirements of AEDPA,
because any defendant convicted in Massachusetts state court could file such a placeholder
motion, request that the court take no action on that motion, and thereby toll the AEDPA
limitations period indefinitely. Under the circumstances, there is no sensible reason to permit
such a result.
In the alternative, Bianchi contends that the limitations period should be equitably tolled
in order to allow him to proceed to the merits of his claims. In substance, Bianchi seeks to toll
the one-year limitations period of AEDPA indefinitely.
Under certain circumstances, the AEDPA limitations period may be equitably tolled.
Holland v. Florida, 560 U.S. 631, 649 (2010). In order to establish grounds for equitable tolling,
a habeas petitioner must demonstrate both “(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way and prevented timely filing.”
Riva v. Ficco, 615 F.3d 35, 39 (1st Cir. 2010) (quoting Holland, 560 U.S. at 649 (2010)
(quotations omitted)); see also Holmes v. Spencer, 822 F.3d 609, 612 (1st Cir. 2016) (“Holmes
II”) (describing the test as providing “two necessary conditions”). Courts apply that standard
subject to the caution that “equitable tolling is ‘the exception rather than the rule.’” Holmes I,
685 F.3d at 62 (quoting Trapp v. Spencer, 479 F.3d 53, 59 (1st Cir. 2007)).
Holmes I presents circumstances similar to those presented here. In that case, a habeas
petitioner, Holmes, had brought a “placeholder” motion under Mass. R. Crim. P. 29 without a
supporting affidavit or specifying the grounds for its allowance, and stating that he reserved the
right to supplement the petition at the time of a hearing. Id. at 54, 63. As here, the court found
that Holmes had not “properly filed” his Rule 29 motion because he had provided no grounds for
relief, and therefore the filing of the motion alone did not toll the limitations period. Id. at 61.
Holmes claimed that he filed the placeholder Rule 29 motion based on the advice of prison
officials and his understanding that such filings were standard practice and tacitly approved at
the time. Id. at 63–65. In reviewing that evidence, the court was “troubled . . . by the possibility
that at the time Holmes filed his Rule 29 Motion, he was led to believe that his Motion was in
fact properly filed, even though it would later prove to have been improper.” Id. at 63. It
concluded that “[i]f in fact prison officials intentionally or inadvertently caused Holmes to
believe that his filing was sufficient, this might qualify as an ‘extraordinary circumstance’” to
warrant equitable tolling, and remanded to the district court to develop the record concerning
whether there were grounds for equitable tolling. Id. at 65, 67.
Here, Bianchi claims that he received advice from an anonymous individual at CPCS that
his placeholder Rule 25 motion would toll the limitations period. He contends that the advice
constitutes extraordinary circumstances to warrant equitable tolling. But even assuming that the
advice that Bianchi purportedly received from CPCS constitutes such extraordinary
circumstances, equitable tolling is nevertheless unjustified because he has not shown that he has
been pursuing his rights diligently.
A brief review of the timeline is warranted. The SJC upheld Bianchi’s conviction on
November 9, 2001, and the limitations period began to run 90 days later, on February 7, 2002.
On October 20, 2002, with 110 days left in the limitations period, he filed a Rule 25 motion.
According to Bianchi, he had been prepared to file a Rule 30(b) motion at that time, but instead
chose to file the Rule 25 motion based on advice of CPCS. Between November 21, 2002, when
CPCS assigned Couture to his case, and August 29, 2007, when CPCS sent him a letter telling
him that Couture “no longer has any active cases with [CPCS],” Bianchi had at least some reason
to believe that he was represented by counsel. He contends that during that period he was
conducting his own research, in addition to relying on Couture’s representation. After some
wrangling with CPCS and Couture, he re-acquired his transcripts in August 2008.
Thus, after August 2008, Bianchi had access to all the materials necessary to pursue his
claims, and should have been appropriately motivated to do so on his own, even if he no longer
was represented. On September 30, 2013, more than five years after his transcripts were
returned—and eleven years, seven months, and twenty-three days after his convictions became
final—he filed a second motion for a new trial. During that interim, he contends that despite
significant periods of illness, he spent time learning the law, researching defenses, and seeking
Although a petitioner seeking to establish equitable tolling need not demonstrate
“maximum feasible diligence,” he must demonstrate, at least, “reasonable diligence.” Holland,
560 U.S. at 653. Here, Bianchi purportedly believed that he stopped the limitations clock with
110 days left. Nearly eleven years passed between the time that he filed his Rule 25 motion and
the time that he filed his second motion for a new trial under Rule 30. During that time, he
claims that he discovered an error in his sentencing and wrote a 568-page motion for a new trial
that was never filed. Those actions demonstrate that he was clearly capable of bringing a habeas
petition on his own. See Sanders v. Tilton, 475 F. App'x 118, 120 (9th Cir. 2012). Rather than
do so in a timely manner, for more than a decade he filed nothing, supposedly relying on the
telephone advice of an unnamed CPCS employee, and expecting the limitations period to be
tolled indefinitely. There is no evidence that he ever attempted to verify independently the
advice offered. Nor is there evidence that he ever requested that the state court hear his Rule 25
motion. Although he did take some steps to pursue his rights, his inaction during the many years
that his Rule 25 motion sat in limbo do not demonstrate the kind of urgency necessary to
establish “reasonable diligence” in pursuing his right to post-conviction relief. The amount of
time that elapsed is far too long, and the amount of action is far too little.
Bianchi has therefore failed to carry his burden to show that his case qualifies as the
“exception rather than the rule.” Holmes I, 685 F.3d at 62 (quoting Trapp, 479 F.3d at 59).
The limitations period should not be equitably tolled and therefore the petition is timebarred.
For the foregoing reasons, respondent’s motion to dismiss is GRANTED, and the Petition
for a Writ of Habeas Corpus is DISMISSED.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: April 25, 2017
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