Opinion
Civil Action No. 95-40182-NMG; Cival Action No. 99-40129-NMG
September 25, 2000.
MEMORANDUM AND ORDER
On July 7, 1999, David Proulx ("Proulx") filed a petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a person in state custody. Pending before this Court are (1) a motion by Respondent Peter Pepe, Jr. ("Pepe") to dismiss that petition as time-barred under 28 U.S.C. § 2244 (d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("the AEDPA") (Civil Action No. 99-40129-NNG, Docket No. 10) and (2) motions by Proulx (a) for leave to stay Writ of Habeas Corpus (Civil Action No. 99-40129-NMG, Docket No. 9), (b) for appointment of counsel (Civil Action No. 99-40129-NMG, Docket No. 14), and (c) to vacate the dismissal of a prior Habeas Corpus petition (Civil Action No. 95-40182-NMG, Docket No. 48).
I. Background
On June 15, 1983, Proulx was indicted in Massachusetts state court for second-degree murder. A mistrial was declared during Proulx's first trial in October 1983 after the prosecutor attempted to admit into evidence expert testimony on the "Battered Child Syndrome". A jury convicted Proulx at the second trial in February, 1984. The trial judge sentenced Proulx to life in prison for the murder.
Proulx filed a direct appeal from his conviction which was affirmed by the Massachusetts Appeals Court ("the MAC") on March 4, 1987. The Massachusetts Supreme Judicial Court ("the SJC") denied Proulx's Application for Further Appellate Review ("ALOFAR"). On January 23, 1989, the trial judge denied Proulx's motion for release from unlawful restraint and his motion for a new trial. The MAC affirmed that denial. Proulx filed a second ALOFAR with the SJC which was denied without opinion on January 3, 1990.
In April, 1992, Proulx filed a renewed motion for a new trial, raising an ineffective assistance of counsel claim and offering new evidence. The trial judge denied that motion on May 21, 1993 and the MAC affirmed the trial judge's decision. For the third time, the SJC denied Proulx's ALOFAR. Throughout 1993 and 1994 Proulx filed numerous motions in state court attempting to obtain further expert review of his case and court-appointed counsel.
On September 18, 1995, Proulx filed a petition for Writ of Habeas Corpus in this Court ("the First Petition") (Proulx v. Marshall, Civil Action No. 95-40182-NMG). As a result of requests by Proulx and the respondent, John Marshall ("Marshall") for extensions of time to file submissions with this Court, no ruling was made on his First Petition until nearly three years after it was filed.
On July 9, 1998, this Court adopted the recommendation of Magistrate Judge Charles B. Swartwood III that the First Petition be dismissed for Proulx's failure to exhaust his state remedies. Because only one of his twelve claims in the petition had not been exhausted, however, Proulx was given the option of (1) amending his First Petition to omit his unexhausted state claim so that this Court could review the remaining exhausted state claims or (2) pursuing his unexhausted claim in state court and abandoning collateral review. Proulx was given a deadline of July 31, 1998 to choose between the two options.
He elected to pursue his state remedies and filed a stipulation for voluntary dismissal of the First Petition which this Court allowed and which, in effect, barred federal collateral review as an avenue of relief for Proulx. On August 3, 1998, in an apparent attempt to exhaust his state claim, Proulx filed another ALOFAR with the SJC which was denied on September 1, 1998.
Proulx filed a second petition for Writ of Habeas Corpus ("the Second Petition") in this Court on July 7, 1999. Several weeks later, he filed a third motion for a new trial in the Massachusetts Superior Court. That motion is still pending.
II. Discussion
A. Motion to Dismiss the Second Petition
Respondent Pepe argues that Proulx's Second Petition should be dismissed because it is barred by AEDPA's statute of limitations. Effective April 24, 1996, AEDPA amended the statutes governing habeas corpus petitions by imposing a one-year statute of limitations period on the filing of all non-capital habeas petitions in the federal courts.See 28 U.S.C. § 2244 (d)(1), 2255; see also Zuluaga v. United States, 971 F. Supp. 616 (D. Mass. 1997). Typically, the limitations period begins to run on the date on which "the judgment becomes final by the conclusion of direct review or the expiration of the time for such review." 28 U.S.C. § 2244 (d)(l)(a). With respect to convictions which became final before April 24, 1996 (the effective date of the AEDPA), prisoners are, however, entitled to a one year grace period, commencing from that date, within which to file petitions for writ of habeas corpus. Gaskins v. Duval, 183 F.3d 8 (1st Cir. 1999).
Because Proulx's conviction became final prior to AEDPA's effective date, he was entitled to file a petition within the one year grace period, which expired on April 24, 1997. He did not file his Second Petition until July 7, 1999, more than two years after the expiration of the grace period. Thus, under a literal application of 26 U.S.C. § 2244 (d), the Second Petition is time-barred.
Proulx argues, however, that this Court should toll the statute of limitations because his First Petition was pending in this Court on the date Congress passed the AEDPA. The First Circuit Court of Appeals has yet to decide whether the AEDPA's statute of limitations period is tolled by the pendency of a federal habeas corpus petition. Several federal Courts that have addressed the issue have, however, held that only pending state actions for post-conviction relief will toll AEDPA's statute of limitations. See Jones v. Morton, 195 F.3d 153 (3rd Cir. 1999); Sperling v. White, 30 F. Supp.2d 1246, 1253 (C.D.Cal. 1998) (holding that the plain language of the statute and AEDPA policy considerations limits tolling to actions pending in state courts only); but see Barrett v. Yearwood, 63 F. Supp.2d 1245 (E.D.Cal. 1999) (holding that the AEDPA refers to federal as well as state post-conviction actions).
Oral argument has not yet been scheduled before that Court in the case of Neverson v. Bissonnette, an appeal from a District of Massachusetts decision (Neverson v. Bissonnette, No. 98-11719-RCL [D. Mass. December 14, 1999]) in which the District Court held that the pendency of a federal habeas petition does not toll the AEDPA's statute of limitation.
This Court is persuaded by the reasoning of the Jones and Sperling courts that the design, structure and purpose of AEDPA indicate that the pendency of a federal claim for post-conviction relief does not toll the running of the limitation period during the pendency of a federal habeas petition. See Jones, 195 F.3d 153; Sperling, 30 F. Supp.2d at 1251-53. This Court finds, therefore, that the grace period extended to Proulx by § 2244(d)(2) was not tolled until July 9, 1998, the date a ruling was made on his First Petition.
Proulx argues in the alternative that this Court should apply the doctrine of equitable tolling. He contends that he has diligently pursued his claims and that the statutory period expired due to his confusion about the state court exhaustion requirement. He argues that he timely attempted to assert his grounds for relief but that he was prevented from doing so by this Court's delay in ruling on the First Petition.
The First Circuit has not addressed the question of whether the time limit set forth in § 2244(d) is subject to equitable tolling. Libby v. Magnusson, 177 F.3d 43, 49 n. 2 (1st Cir. 1999) (reserving issue of whether equitable tolling applies to Section 2244(d)). Statutory time limits which are jurisdictional in nature are not subject to equitable tolling. All of the Circuit Courts of Appeals that have addressed this issue have, however, found that the time limits set forth in § 2244(d) are not jurisdictional and are, therefore, subject to equitable tolling.See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (citing Calderon v.United States District Court, 163 F.3d 530, 541 (9th Cir. 1998) (en banc),cert. denied, 526 U.S. 1060 (1999); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999); Miller v. New Jersey State Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998), cert. denied, 525 U.S. 891 (1998)
Even if this Court were to apply the doctrine of equitable tolling, statutory limitations periods are tolled only in rare circumstances which Proulx has not shown to exist in his case. Smith, 208 F.2d at 17 (quotingTurner v. Johnson, 177 F.3d 390, 391-92 (5th Cir.), cert. denied, 525 U.S. 891 (1998). In order to establish that the one-year grace period should be equitably tolled, Proulx must establish that (1) extraordinary circumstances prevented him from timely filing his Petition and (2) he exercised reasonable due diligence. See id.
Proulx had a choice between (1) amending his First Petition to omit his unexhausted state claims which would have allowed him to proceed with this Court's review of his First Petition or (2) pursuing his unexhausted remedies in state court. Proulx elected to pursue his state claims, filing a motion to voluntarily dismiss his First Petition on July 9, 1998. Having voluntarily dismissed his First Petition and elected to pursue his state remedies, Proulx may not now return, after his failure in the state courts, and ask this Court inequity to toll The AEDPA's statute of limitations.
B. Motion to Vacate Dismissal of his First Petition
In an attempt to preserve a federal forum for his claims, Proulx has brought a motion to vacate his July 9, 1998 voluntary dismissal of the First Petition and to reinstate the action nunc pro tunc. Proulx requests that this Court vacate the dismissal to prevent his claims from being barred under the AEDPA's statute of limitations and to allow him to object to the Magistrate Judge's recommendation that his First Petition be dismissed for failure to exhaust state remedies.
Under Fed.R.Civ.p. 60(b), this Court may vacate a dismissal for "any reason justifying relief from judgement." As stated supra, this Court gave Proulx the option of amending his Second Petition to include only those claims that have been exhausted in state court. Because Proulx opted to pursue his state grounds for relief to the exclusion of his federal claims when he filed a stipulation of voluntary dismissal on July 9, 1998, this Court will not reinstate his First Petition in order to preserve those claims.
C. Motions to Appoint Counsel and Stay Proceedings on Second Petition
Because AEDPA's statute of limitations bars Proulx's Second Petition, this Court need not address his motions to appoint counsel and to Stay Writ of Habeas Corpus.
ORDER
For the reasons set forth in the Memorandum above:
1) the respondent's motion to dismiss (Civil Action No. 99-40129-NMG, Docket No. 10) is ALLOWED,
2) the motion of the petitioner for leave to stay Writ of Habeas Corpus (Civil Action No. 99-40129-NMG, Docket No. 9) is DENIED,
3) the motion of the petitioner for appointment of counsel (Civil Action No. 99-40129-NMG, Docket No. 14) is DENIED, and
4) the motion of the petitioner to vacate the dismissal (Civil Action No. 95-40182-NMG, Docket No. 48) is DENIED.So ordered.