Whitman v. Medeiros

Filing 21

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 13 Motion to Dismiss; denying 17 Motion to Stay; finding as moot 19 Motion to Appoint Counsel (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

DARRIN WHITMAN,
Petitioner,
v.
SEAN MEDEIROS,
Respondent.

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CRIMINAL NO.
16-11931-DPW

MEMORANDUM AND ORDER
February 16, 2017
The 1991 conviction of the petitioner for first degree
murder was affirmed by the Supreme Judicial Court in 1993.
Commonwealth v. Whitman, 617 N.E.2d 625 (Mass. 1993).

The

petitioner did not file this habeas corpus petition until over
two decades later on September 22, 2016.

I conclude that the

petition is barred by the statute of limitations for habeas
corpus petitions by state prisoners.

28 U.S.C. § 2244(d).

I

further conclude that such claims as the petitioner pursues in
the instant petition are precluded from federal review because
they were procedurally defaulted in the state court.

See

generally Lee v. Corsini, 777 F.3d 46, 54 (1st Cir. 2015).

As a

consequence, I will direct the Clerk to dismiss the petition.
Given the one year grace period the courts have recognized
for the filing of habeas corpus proceedings in the wake of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

see generally Riva v. Ficco, 615 F.3d 35, 40-41 (1st Cir. 2010),
the petitioner had until April 24, 1997 to file a timely federal
habeas corpus petition.

Although there appear to be

typographical errors as to filing dates in narrative statements
by two of the state judges who denied the petitioner relief in
response to his most recent post-conviction motion,1 the relevant
dockets are clear.

The Middlesex Superior Court Docket shows

that petitioner did not file his first state post-conviction
motion until November 6, 1997, more than six months after the
April, 24, 1997 deadline.

Therefore, the petitioner’s federal

habeas corpus limitation period was never enlarged by the filing
of a state post-conviction motion timely for federal habeas
corpus purposes.
Nor is there any other reason to relieve the petitioner of
the obligations imposed by the AEDPA limitations period.
Holland v. Florida, 560 U.S. 631, 649 (2010) (“[A] ‘petitioner’
is ‘entitled to equitable tolling’ only if he shows ‘(1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way’ and prevented
timely filing.”) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

1

In the June 2, 2015 Memorandum and Order, the trial court judge
stated that “Whitman filed a ‘motion for release from unlawful
restraint’ in 1996 and a motion for a new trial in 2000.” In
the October 7, 2015 Memorandum and Order, the Single Justice
referred to “two motions for release from unlawful restraint”
filed “[b]etween 1996 and 1997.”
2

(2005)).

The petitioner here no longer may pursue claims he

belatedly raises in the instant petition and no extraordinary
circumstances appear to justify his failure to pursue them in a
timely fashion.

Moreover, any effort to stay this proceeding

while he begins yet another state post-conviction proceeding
would be futile because he cannot recover the right to federal
relief after passage of the limitations period.

Lattimore v.

Dubois, 311 F.3d 46, 53 (1st Cir. 2002); see also Konan v.
Marchilli, 140 F. Supp. 3d 174, 176-77 (D. Mass. 2015) (“[T]his
court finds that abeyance for pursuit of state remedies would be
futile, because the petition itself cannot proceed due to its
untimeliness.”).
Limitations period aside, another insuperable hurdle to the
claims in the instant petition is that the Single Justice of the
Supreme Judicial Court found that none “raise[d] a new and
substantial question.”

This is an adequate and independent

state ground supporting the conviction and involves a disabling
procedural default that prevents a federal court from granting
habeas relief.

Lee, 777 F.3d at 55 (“The single justice’s

determination that an issue is not ‘new’ within the meaning of §
33E is tantamount to a finding of procedural default, ‘the
classic example of an independent and adequate state ground.’”)
(quoting Simpson v. Matesanz, 175 F.3d 200, 207 (1st Cir.
1999)).
3

Accordingly, the respondent’s motion [#13] to dismiss is
GRANTED and the petitioner’s motion [#17] to stay is DENIED.

/s/ Douglas P. Woodlock______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE

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