Blue v. Medeiros

Filing 25

Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered granting 13 Respondent's Motion to Dismiss for Failure to State a Claim. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
LARRY BLUE,
Petitioner,
v.
SEAN MEDEIROS,
Respondent.

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Civil Action No. 17-cv-10464-ADB

MEMORANDUM AND ORDER ON MOTION TO DISMISS
BURROUGHS, D.J.
Petitioner has sought a writ of habeas corpus requesting relief from his Massachusetts
state court firearms convictions. [ECF No. 1]. Currently pending before the Court is
Respondent’s motion to dismiss the petition as time-barred under the applicable one-year statute
of limitations. [ECF No. 13]. For the following reasons, the Court GRANTS the motion.
I.

BACKGROUND
On August 18, 2010, Petitioner was convicted by a jury of trafficking in cocaine within

1,000 feet of a school zone, possession of a firearm and ammunition without a license, and
possession of marijuana.1 [ECF No. 21-1 at 34, 177]. After trial, Petitioner also entered a guilty
plea to an indictment charging him with being an armed career criminal. Commonwealth v. Blue,
994 N.E.2d 817, 2013 WL 5377118, at *1 (Mass. App. Ct. 2013). He then timely appealed his
convictions, arguing that three pretrial motions to suppress should have been allowed and that
the Massachusetts firearm licensing scheme is unconstitutional. Id. On September 27, 2013, the

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Petitioner was acquitted of one count of possession of a firearm without a license.
Commonwealth v. Blue, 46 N.E.3d 114, 2016 WL 757758, at *1 n.1 (Mass. App. Ct. 2016).

Massachusetts Appeals Court affirmed his convictions. Id. On September 30, 2013, he filed a
petition for rehearing, which was considered and denied on October 3, 2013. [ECF No. 21-1 at
18]. He subsequently filed an application for further appellate review, which was denied on
November 21, 2013. Commonwealth v. Blue, 998 N.E.2d 342 (Mass. 2013).
On February 21, 2014, after the indictment of Annie Dookhan and the discovery of
widespread misconduct at the William A. Hinton State Laboratory Institute (“Hinton State Lab”),
Petitioner moved for a stay of execution of sentence pursuant to Mass. R. Crim. P. 31, claiming
that the misconduct at the Hinton State Lab and Dookhan’s perjured testimony at his trial created
a reasonable likelihood that he would eventually obtain a new trial. [ECF No. 21-1 at 26, 29]. He
asserted in his motion that he would file a motion for a new trial “as soon as possible.” Id. at 29.
On March 3, 2014, while the motion for a stay of execution of sentence was pending, the
Supreme Judicial Court issued Commonwealth v. Scott, 5 N.E.3d 530, 545 (Mass. 2014), which
held that defendants for whom Dookhan served as the primary or secondary chemist were
entitled to a conclusive presumption that egregious government misconduct had occurred in his
or her case. On March 27, 2014, following a hearing, Petitioner’s motion for a stay of execution
of sentence was denied on the ground that his firearms convictions were unlikely to warrant a
new trial even in light of Dookhan’s misconduct. [ECF No. 21-1 at 26].
On May 5, 2014, Petitioner filed a motion for a new trial, raising ineffective assistance of
counsel and the same grounds supporting his motion for a stay of execution of sentence. [ECF
No. 21 at 6]. Commonwealth v. Blue, 46 N.E.3d 114, 2016 WL 757758, at *1 (Mass. App. Ct.
2016). On January 20, 2015, the motion for a new trial was granted as to Petitioner’s drug
charges but denied as to the firearms charges. Blue, 2016 WL 757758, at *1. On January 29,
2015, the Commonwealth nolle prossed Petitioner’s drug charges. [ECF No. 21-1 at 14]. On

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January 22, 2015, Petitioner appealed the partial denial of his motion for a new trial. [ECF No.
21-1 at 14]. His appeal was denied on February 26, 2016, thereby affirming the partial denial of
his motion. Blue, 2016 WL 757758, at *3. He then sought further appellate review, which was
denied on April 27, 2016. Commonwealth v. Blue, 50 N.E.3d 192 (Mass. 2016).
Petitioner eventually filed his petition for a writ of habeas corpus in this Court on March
20, 2017, claiming ineffective assistance of counsel based on his attorney’s failure to argue that
an undated affidavit accompanying a search warrant failed to establish probable cause. [ECF No.
1 at 6, 8]. Respondent then filed the instant motion to dismiss the petition as time-barred under
the one-year statute of limitations prescribed by the Antiterrorism and Effective Death Penalty
Act (“AEDPA”). [ECF No. 14 at 1, 5−6].
II.

DISCUSSION
A.

Legal Standard

In evaluating a motion to dismiss, a court must accept all of the non-moving party’s wellpleaded facts as true and consider those facts in the light most favorable to the non-moving party.
Cooperman v. Individual, Inc., 171 F.3d 43, 46 (1st Cir. 1999). “[T]he standard of review upon a
motion to dismiss a habeas claim is whether the facts alleged by the petitioner, taken as true
unless contradicted by the record, state a claim upon which relief can be granted.” United States
v. Alba, 657 F. Supp. 2d 309, 312 (D. Mass. 2009).
B.

Statutory Tolling

The AEDPA imposes a one-year statute of limitations on filing a petition for a writ of
habeas corpus, which begins to run on the latest of either:
(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

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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). A state court conviction is considered final under Section 2244(d)(1)(A)
when the “availability of direct appeal to the state courts and to [the U.S. Supreme Court] has
been exhausted.” Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) (internal quotation and
citations omitted). In Massachusetts, the denial of an application to the Supreme Judicial Court
for further appellate review “constitutes the relevant benchmark of finality,” after which a party
has 90 days to file a petition for a writ of certiorari. Mack v. Dickhaut, 770 F. Supp. 2d 429, 432
& n.28, 43334 (D. Mass. 2011). If the party does not seek certiorari, the conviction becomes
final after the 90-day period lapses. Id. at 432 n.28 (citing Cordle v. Guarino, 428 F.3d 46, 48
(1st Cir. 2005)). Section 2244(d)(2) also provides that the statute of limitations is tolled 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).
Petitioner’s convictions became final and the statute of limitations began to run on
February 19, 2014 (90 days after the denial of his application for further appellate review). The
limitations period then ran for 2 days, at which point Petitioner filed his motion for a stay of
execution of sentence. An additional 73 days passed before Petitioner filed his motion for a new
trial on May 5, 2014. In sum, 75 days passed between when the limitations period began running
and when Petitioner filed his motion for a new trial, which indisputably tolls the statute of
limitations under Section 2244(d)(2). During the pendency of the motion for a new trial—from
May 5, 2014 until April 27, 2016 (the date that further appellate review was denied on the
motion for a new trial)—no additional time lapsed on the limitations period. [ECF No. 14 at 5].

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See Lawrence v. Florida, 549 U.S. 327, 332 (2007) (tolling ends “when the state courts have
finally resolved an application for state [post-conviction] relief”).
The parties present conflicting views as to when the tolling of the statute of limitations
began. Petitioner asserts that tolling began when he filed his motion for a stay of execution of
sentence, but Respondent contends that tolling was not triggered until the filing of Petitioner’s
motion for a new trial. Given that 75 days out of the 365-day limitations period passed before the
motion for a new trial was filed, Respondent claims that Petitioner had 290 days left to file his
petition once the limitations period stopped tolling. However, if tolling began with the filing of
the motion for a stay of execution of sentence, which occurred 2 days after the limitations period
began to run, then Petitioner arguably had 363 days to file his petition after tolling stopped.
Because Petitioner filed his petition 327 days after the limitations period resumed, the timeliness
of the petition depends on which party’s view prevails as to whether Petitioner’s motion for a
stay of execution of sentence tolled the statute of limitations.
Under the AEDPA, the statute of limitations is tolled during the pendency of “a properly
filed application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim.” 28 U.S.C. § 2244(d)(2). The central issue is thus whether the filing of a
motion for a stay of execution of sentence qualifies as “collateral review” under Section
2244(d)(2) and therefore tolls the statute of limitations. “[C]ollateral review” generally “means
judicial review of a judgment in a proceeding that is not part of direct review.” Wall v. Kholi,
562 U.S. 545, 547 (2011). Applications for a writ of habeas corpus or coram nobis and motions
to reduce, vacate, or set aside sentences are generally considered “collateral,” because each
involves judicial review that is separate from the direct appeal and review processes. Id. at 552–
53. A motion for a stay of execution of sentence is similarly “collateral” because it involves a

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separate review of whether a sentence should be postponed while other direct or collateral review
is pending.
“‘[R]eview’ commonly denotes ‘a looking over or examination with a view to
amendment or improvement,” “‘an act of inspecting or examining’ or a ‘judicial
reexamination.’” Id. at 553 (first quoting Kholi v. Wall, 582 F.3d 147, 153 (1st Cir. 2009); then
quoting Webster’s New American Dictionary 1944). For example, a motion to reduce a sentence
may be considered “review” because it “involve[s] judicial reexamination of the sentence to
determine whether a more lenient sentence is proper.” Id. at 556. In contrast, motions for postconviction discovery or for appointment of counsel do not constitute “review” because they “are
not direct requests for judicial review of a judgment and do not provide a state court with
authority to order relief from judgment.” Id. at 556 n.4.
In ruling on a motion for a stay of execution of sentence, Massachusetts courts consider
whether a defendant’s direct appeal or motion for a new trial “‘offers some reasonable possibility
of a successful decision,’” and “whether the defendant’s release poses a security risk.”
Commonwealth v. Charles, 992 N.E.2d 999, 1008, 1011 (Mass. 2013). The standard of
reasonable likelihood of success involves only a passing review of the merits of the case for the
purpose of detecting frivolous claims. See Commonwealth v. Levin, 388 N.E.2d 1207, 1209
(Mass. App. Ct. 1979); see also Commonwealth v. Allen, 392 N.E.2d at 1027, 1032 (Mass.
1979) (granting a motion for a stay of execution of sentence “must be speedy if it is to be
effective, and the determination must often be done in haste, without th[e] full inquiry and
consideration which the matter deserves”); id. at 103233 (“There is no requirement . . . that [the
court] give a statement of reasons or make any particular finding or certification in order to grant
or deny the stay.”). A motion for a stay of execution of sentence also does not seek relief from

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the sentence, only its postponement. The cursory nature of the state court’s analysis and the
limited scope of the available relief weigh against treating such a motion as “review.”
Allowing a motion for a stay of execution of sentence to trigger tolling also does not
further the policies underlying the AEDPA. Statutory tolling is meant to “provide both litigants
and States with an opportunity to resolve objections at the state level, potentially obviating the
need for a litigant to resort to federal court.” Wall, 562 U.S. at 558. Unlike a motion to reduce a
sentence, a motion for a stay of execution of sentence at best delays a sentence, and thus does not
resolve any issues that could obviate the need for federal habeas review. Accordingly,
Petitioner’s motion for a stay of execution of sentence does not constitute collateral “review”
under 28 U.S.C. § 2244(d)(2) and did not toll the statute of limitations.
C.

Equitable Tolling

Petitioner claims that he is entitled to equitable tolling for the period of time between
February 19, 2014 (when his convictions became final) and May 5, 2014 (when he filed his
motion for a new trial), due to the misconduct at the Hinton State Lab. “[T]he one-year
limitations period in § 2244(d)(1) . . . can be subject to equitable tolling in appropriate cases,”
but generally should only be invoked “sparingly.” Neverson v. Farquharson, 366 F.3d 32, 41–42
(1st Cir. 2004) (citation omitted). In seeking equitable tolling, Petitioner bears the burden of
showing “‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631,
649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see Neverson, 366 F.3d at
41. The presence of extraordinary circumstances alone is insufficient. Such circumstances must
have “actually caused the untimely filing.” Holmes v. Spencer, 685 F.3d 51, 62 (1st Cir. 2012).
Petitioner claims that the Hinton State Lab investigation and related judicial review

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prevented him from filing his motion for a new trial concurrently with his motion for a stay of
execution of sentence. Even assuming Petitioner acted diligently during the period between the
filing of the motion for a stay of execution of sentence and the filing of the motion for a new
trial, he still had 290 days to file his petition after the denial of his motion for a new trial became
final on April 27, 2016. By then, the government had already nolle prossed Petitioner’s drug
charges because of the Hinton State Lab misconduct, and Petitioner fails to otherwise show how
the Hinton State Lab misconduct continued to prevent him from filing his petition during the
nearly ten months that remained on his limitations period. See Tran v. Thompson, No.
14−12580, 2015 WL 7428539, at *5 (D. Mass. Nov. 20, 2015) (no grounds for equitable tolling
where petitioner “had more than three months following the date on which the remanded charges
were nolle prossed before his federal limitation period expired”); see also Neverson, 366 F.3d at
44 (equitable tolling did not apply where, after extraordinary circumstances ceased to exist,
petitioner “still had nearly four months . . . remaining under AEDPA in which to seek a new trial
in state court” and inexplicably failed to do so). Petitioner is therefore not entitled to equitable
tolling.
III.

CONCLUSION
Because Petitioner fails to establish grounds for either statutory or equitable tolling of the

statute of limitations, his petition for a writ of habeas corpus is time-barred. Accordingly, the
Court GRANTS Respondent’s Motion to Dismiss. [ECF No. 13].
SO ORDERED.
Dated: November 13, 2017

/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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