Fritz v. Ryan
Judge Indira Talwani: ORDER entered. MEMORANDUM AND ORDER ALLOWING 7 MOTION to Dismiss as Time-Barred. Petitioner's 1 Petition for the Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255 is DENIED. (DaSilva, Carolina)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Civil Action No. 17-cv-11021-IT
MEMORANDUM AND ORDER
Petitioner Shawn Fritz filed a Petition for the Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2255 [#1] in June 2017. Presently before the court is Respondent Kelly Ryan’s Motion
to Dismiss As Time-Barred [#7]. For the reasons set forth below, Respondent’s Motion is
ALLOWED and the Petition is DENIED.
In October 1996, Petitioner Shawn Fritz was found guilty in Suffolk County Superior
Court of murder in the first degree and illegal possession of a firearm. Petitioner subsequently
filed two unsuccessful motions for a new trial, and appealed the Superior Court’s denials of his
motions for a new trial to the Massachusetts Supreme Judicial Court (“SJC”). On July 29, 2015,
the SJC affirmed the denials of Petitioner’s motions for a trial and affirmed Petitioner’s
convictions. Commonwealth v. Fritz, SJC-07763 (Mass. July 29, 2015) (Dkt. 115).
On August 7, 2015, a group of defense attorneys sent a letter to the Chief Justice of the
SJC contending that a footnote in the July 29 opinion “unfairly attack[ed] counsel and reflect[ed]
a failure to account for the difficult role of counsel in such cases,” and requesting that the
footnote be removed. Pet.’s Opp’n Ex. 1 1 [#18-1]. The SJC did not include or acknowledge the
letter on the docket. On September 11, 2015, the SJC issued its rescript to the trial court. Fritz,
SJC-07763. The trial court docketed receipt, and entered judgment accordingly, on September
17, 2015. Commonwealth v. Fritz, 9484-cr-11993 (Mass. Sup. Sept. 17, 2015) (Dkt. 80).
On December 6, 2016, Petitioner filed a third motion for a new trial in Suffolk County
Superior Court. Fritz, 9484-cr-11993 (Dkt. 81). That motion was denied on May 24, 2017. Fritz,
9484-cr-11993 (Dkt. 85). Petitioner filed the instant Petition for Writ of Habeas Corpus [#1] in
this court on June 2, 2017.
Pursuant to 28 U.S.C. § 2244(d)(1), “[a] 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State
court.” The parties agree that the limitation period in this case began to run 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. at § 2244(d)(1)(A). A judgment of conviction generally “becomes
final when the ninety-day period for seeking certiorari expire[s].” Neverson v. Farquharson, 336
F.3d 32, 36 (1st Cir. 2004). If a petition for rehearing is timely filed in the lower court, however,
the time to file the petition for a writ of certiorari for all parties runs from the date of the denial
of rehearing or, if the rehearing is granted, the subsequent entry of judgment. Sup. Ct. R. 13(3).
Petitioner argues that the August 7, 2015, letter to the Chief Justice constituted a petition
for rehearing. Pet.’s Opp’n 3 [#18]. Petitioner contends that although no rehearing was held, the
petition for rehearing was “granted” because the SJC did modify the footnote at issue. Id. at 2-3;
see also Reply to Pet’s Opp’n 2 [#19] (acknowledging footnote’s modification). Thus, Petitioner
argues, the judgment did not become final until ninety days after the Superior Court’s entry of
judgment on September 17, 2015, when the Superior Court acknowledged receipt of the SJC’s
Respondent, in turn, contends that the SJC issued its judgment on July 29, 2015, and that
the judgment became final on October 27, 2015, after the ninety-day period for seeking certiorari
had expired. Resp’t’s Mem. 4 [#8]. Respondent disputes Petitioner’s characterization of the letter
as a petition for rehearing, where the letter made no argument that the court had overlooked or
misapprehended any point of law or fact as required by Mass.R.A.P. 27 (a petition for rehearing
“shall state with particularity the points of law or fact which it is contended the court has
overlooked or misapprehended”), was not signed by counsel, and did not request a rehearing.
The court need not determine whether these requirements must always be met for a
document to constitute a petition for rehearing for purposes of calculating the time for filing a
petition for certiorari. Here, the SJC did not treat the letter as a petition for rehearing that
required further action from the court. The letter was never docketed, no response was requested,
and no rehearing was held. Indeed, even the published decision cited by Petitioner as evidence of
the change gives no date for the change, listing only the original July 29, 2015, date. 1 See
Commonwealth v. Fritz, 472 Mass. 341 (2015).
Though the SJC rescript was not issued to the trial court until September 11, 2015, and
the trial court did not docket receipt until six days later, it is the date of the SJC’s decision, not
the subsequent ministerial dates, that starts the period in which the petition for certiorari must be
filed. See Cole v. Violette, 319 U.S. 581 (1943) (noting that “Massachusetts local practice
The practice of revising opinions without notice is not unique to the SJC. According to a recent
law review article, the United States Supreme Court makes both “large and small, technical and
substantive” revisions even after opinions have been published and taken legal effect. Richard J.
Lazarus, The (Non)finality of Supreme Court Opinions, 128 Harv. L. Rev. 540, 581 (2014). The
Court’s practice of doing so in a manner that appears to “deliberately make it hard for anyone to
determine when changes are made,” id. at 608, has prompted calls for greater transparency. See
id. at 619-22 (arguing that “[t]he addition, deletion, or substitution of words or phrases . . .
should presumptively trigger more procedural safeguards and transparency,” including notice to
the parties and the public).
regards the decree entered by the Superior Court on the rescript, rather than the order of the
Supreme Judicial Court contained in the rescript, as the ‘final decree’ in the case,” but holding
that because the SJC’s decision “finally disposed of all the issues in the case, leaving nothing to
be done but the ministerial act of entering judgment in the trial court[,]” it was the date of the
SJC’s decision that started the period in which the petition for certiorari needed to be filed); see
also Mercado v. Roden, No. 11-cv-10321, 2016 WL 7209657 at *6 (D. Mass. Dec. 12, 2016)
(“[W]here . . . the trial court mandate or judgment is not entered until ‘some time after the entry
of the critical appellate court judgment as to which review is sought[,] . . . [i]t is the date of this
appellate court judgment that alone is relevant to the calculation of the 90 days allowed for
petitioning for certiorari.’” (quoting Stephen M. Shapiro, et al., Supreme Court Practice, § 6.2 at
393 (10th ed. 2013)). Here, the date of the SJC’s opinion was July 29, 2015. Fritz, SJC-07763
(Dkt. 115). Accordingly, the ninety-day period to seek certiorari ended in October 2015.
Petitioner had one year from this date to file his petition for habeas relief or take other action that
would toll this deadline. 28 U.S.C. § 2244(d)(1). His third motion for a new trial was not filed in
state court until December 2016, and did not toll the statute of limitations for his habeas petition.
For the foregoing reasons, Respondent’s Motion to Dismiss As Time-Barred [#7] is
ALLOWED. Petitioner’s Petition for the Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255
[#1] is DENIED.
IT IS SO ORDERED.
Date: February 13, 2018
/s/ Indira Talwani
United States District Judge
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