Allard v. Spencer

Full title: RONALD E. ALLARD, JR. Petitioner, v. LUIS SPENCER, Superintendent…

Court: United States District Court, D. Massachusetts

Date published: Jun 27, 2008

CIVIL ACTION NO. 07-11373-NMG (D. Mass. Jun. 27, 2008)

Opinion

CIVIL ACTION NO. 07-11373-NMG.

June 27, 2008

Eva M. Badway, Attorney General's Office, Boston, MA, representing Luis Spencer Defendant.

Ronald E. Jr. Allard, MCI Norfolk, Norfolk, MA, PRO SE PLAINTIFF.

REPORT AND RECOMMENDATION ON RESPONDENT'S MOTION TO DISMISS

JUDITH DEIN, Magistrate Judge

7/15/08 Judge Nathaniel M. Gorton: Electronic ORDER entered granting 6 Motion to Dismiss; adopting Report and Recommendations re 15 Report and Recommendations. (Nicewicz, Craig) (Entered: 07/16/2008)

I. INTRODUCTION

The petitioner, Ronald E. Allard, Jr. ("Allard" or the "defendant"), was convicted on April 5, 1995 by a Hampden Superior Court jury of murder in the first degree based on deliberate premeditation and extreme atrocity or cruelty. He appealed to the Massachusetts Supreme Judicial Court ("SJC") challenging the jury instructions on reasonable doubt, the jury's function and the burden of proof. His conviction was affirmed on appeal on June 21, 1999. Commonwealth v. Allard, 429 Mass. 756, 711 N.E.2d 156 (1999). Allard filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on June 15, 2000.See Allard v. Hall, C.A. No. 00-11299-REK. On April 5, 2001, Allard moved for leave to voluntarily dismiss his habeas petition so that he could pursue unexhausted claims in state court. The motion was allowed as unopposed on April 20, 2001.

Several years later, on June 2, 2003, and after allegedly discovering some previously unknown facts, Allard filed a motion for a new trial with the state court. It wound its way through the state court system, and on July 16, 2007, his application for leave to obtain further appellate review ("ALOFAR") was denied by the SJC. Allard then filed the instant petition for a writ of habeas corpus on July 27, 2007.

This matter is presently before the court on "Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus as Time-Barred" (Docket No. 6). The respondent contends that the petition is untimely as it was filed more than one year after Allard's conviction for first-degree murder became final. Allard opposes the motion to dismiss on the grounds that equitable tolling should apply as his first habeas petition was dismissed without conditions. Moreover, he contends he discovered new evidence on October 11, 2002 about a plea agreement entered into by his co-defendant, and equity requires that he be allowed to proceed with two claims of his petition relating to this co-defendant.

For the reasons detailed herein, this court finds that Allard's claims are time-barred, and that equitable tolling is not appropriate in the instant case with respect to any of his claims. Therefore, this court recommends to the District Judge to whom this case is assigned that the Respondent's Motion to Dismiss (Docket No. 6) be ALLOWED.

II. STATEMENT OF FACTS ¹ The Underlying Crime

1 The facts are derived from the Exhibits included in the Supplemental Answer filed by the Respondent at Docket No. 8 ("SA Ex. ___") and the documents attached to the Petitioner's Opposition to Respondent's Motion to Dismiss Petition filed at Docket No. 12 ("Opp.").

The facts of the underlying crime are not relevant to the instant motion, so they will be summarized only briefly. Since Allard raises issues concerning his co-defendant, facts relating to his co-defendant will be noted.

As the SJC summarized the evidence in the light most favorable to the Commonwealth, ² Allard was convicted of murdering his former girlfriend's new boyfriend on August 20, 1994. Allard, 429 Mass. at 756-57, 711 N.E.2d at 157. Allard, with the help of others, lured the victim to a non-existent job interview. When the victim appeared, Allard, alone, met and attacked the victim and put him into a car, drove the victim to a wooded area and then beat him to death. Allard then hid the body in the woods. Allard's friend (and co-defendant) Daniel Hiersche ("Hiersche") participated in the scheme by phoning the victim with the "job interview," helping plan the confrontation with the victim, and helping move the body in the woods and disposing of the victim's car, first by moving it to an "urban area" about thirty to forty-five minutes away from the crime scene and, several days later, by moving it again. After the car was found by the police, Hiersche led them to the body. As the SJC found, "Hiersche had initially lied to police about his involvement in the killing, but eventually entered into a cooperation agreement with the police and, according to the defendant, pleaded guilty to being an accessory before the fact to murder in the first degree." Id. at 759, 711 N.E.2d at 158. At trial, Allard claimed that Hiersche murdered the victim. Id. As detailed below, in fact Hiersche did not plead guilty to being an accessory before the fact to murder, but, rather, pleaded to the lesser charge of being an accessory before the fact of an assault and battery with a dangerous weapon.³

2 The state trial and appellate courts' findings of fact are entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). See Gunter v. Maloney, 291 F.3d 74, 76 (1^st Cir. 2002); Rashad v. Walsh, 300 F.3d 27, 35 (1^st Cir. 2002). Unless otherwise indicated, the facts are not in dispute.

3 A copy of Hiersche's docket sheet is attached to the Opposition.

Procedural History

Allard was convicted on April 5, 1995 of first degree murder based on deliberate premeditation and extreme atrocity or cruelty. His conviction was affirmed by the SJC by decision dated June 21, 1999. See SA Ex. 4. It is undisputed that for purposes of his habeas petition, Allard's conviction became final on September 21, 1999, at which time the one year statute of limitations found in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1), began to run. See Nowaczyk v. Warden, N.H. State Prison, 299 F.3d 69, 79 n. 7 (1^st Cir. 2002) (state conviction is final at the end of 90-day period to file petition for certiorari with the United States Supreme Court).

Allard filed his first habeas petition with this court on June 15, 2000, with approximately 3 months left in the statutory period. See Allard v. Hall, CA No. 00-11299-REK; Opp. at 3. Therein he challenged the instructions on reasonable doubt given by the trial judge. This issue had been presented below and was fully exhausted. (Opp. at 3). According to Allard, while the petition was pending he learned of another basis for a claim of ineffective assistance of counsel. (Opp. at 3-4). Therefore, on April 5, 2001, he moved for leave to voluntarily dismiss his petition without prejudice so that he could exhaust this new claim. (See id.). The motion to dismiss was unopposed and was allowed on April 20, 2001. (See Docket in 00-11299-REK). Since the claims in the original petition were exhausted, there was nothing that prevented the district court from adjudicating the petition, and there would have been no procedural basis to dismiss the petition absent the petitioner's own request. See Nowaczyk, 299 F.3d at 80.

Although he moved to voluntarily dismiss his petition in April 2001, Allard did not file a motion for a new trial until June 2, 2003. (See SA Exs. 1-3). In the interim, according to the petitioner, he sent a letter on October 7, 2002 to the state court to obtain information about his co-defendant. (Opp. at 17-18).⁴ Allard contends that at trial his co-defendant had "categorically denied that any promise or deal was made between" him and the government, although he had admitted that he expected that "he would be given `consideration' in exchange for his testimony." (Opp. at 17). Nevertheless, in response to his request for information Allard received a copy of his co-defendant's docket sheet, and learned on October 11, 2002, allegedly for the first time, that on June 2, 1995, two months after his conviction, "the government nolle prosequi the accessory before the fact to murder, and co-defendant was allowed to plead guilty to accessory before the fact of assault and battery with a dangerous weapon," for which he was sentenced to 5-6 years at MCI-Cedar Junction. (Opp. at 18). He also learned that his co-defendant had pleaded guilty to a "lesser included offense of an accessory after the fact to assault and battery with a dangerous weapon," for which he was sentenced to 3 years probation, on and after. (Id.). As the petitioner argues:

4 The court will accept the petitioner's version of events for purposes of the present motion.

the government's nolle prosequi of the major charges cannot be seen as consideration, but an outright acquittal of the murder charges. And 3 years probation for the other charges is hardl[y] punishment, as co-defendant testified to at trial that he was expecting to be "punished" for his participation in the crime, and his guilty pleas prove that there was some kind of an arrangement prior, during, or after co-defendant testified, because at the time of trial, he was facing a "life" sentence, and he was only 16 or 17 years old.

Therefore, the information contained in co-defendant's docket entries qualifies as "newly" discovered for the purposes of tolling the time on which Petition should have filed his application for writ of habeas corpus on Grounds Nine Ten, Petition No. 2, page 6b.⁵

For the sake of argument Petitioner's initial application was voluntarily dismissed without prejudice on April 20, 2001, on October 11, 2002, Petitioner discovered the information in co-defendant's docket entries, on June 2, 2003, Petitioner filed his motion for a new trial, 9 months after he discovered the information in co-defendant's docket entries.

5 These grounds are as follows:

GROUND NINE: The state's prosecutor engaged in prejudicial misconduct when he denied that his office promised two witnesses a deal for their truthful and honest testimony in violation of petitioner's 14^th Amendment [right] to due process.

GROUND TEN: The state's prosecutor knew or should have known that his witnesses were giving false testimony and he failed to correct it when it appeared in violation of petitioner's 14^th Amendment and due process [rights].

(Petition (Docket No. 1) at 6b).

(Opp. at 19 (internal record citations omitted)).

The motion for a new trial is not included in the record before this court. However, according to the docket entries, the motion for a new trial was denied on November 28, 2005. (SA Ex. 3). Allard then filed an ALOFAR with the SJC on October 12, 2006. (SA Ex. 6). The ALOFAR was denied on July 16, 2007 on the grounds that "the issues presented are neither new nor substantial." (Id.) The instant petition for writ of habeas corpus was docketed in this court on July 23, 2007. (Docket No. 1).

Additional facts will be provided below where appropriate.

III ANALYSIS

A. Allard's Claims are Time-Barred

The record is clear that Allard's petition is time-barred. Briefly, Allard's conviction was affirmed by the SJC in 1999, several years after Congress enacted the AEDPA on April 24, 1996. The AEDPA "imposed a number of bars to obtaining post-conviction relief. First and foremost, the AEDPA imposed a one year limitations period for state habeas petitions filed under section 2254. See 28 U.S.C. § 2244(d)(1)." Dunker v. Bissonette, 154 F. Supp. 2d 95, 100 (D. Mass. 2001) (internal citations omitted). As detailed above, the statute of limitations in Allard's case began to run 90 days after the SJC decision, during which period he could have sought certiorari review with the United States Supreme Court. See Nowaczyk, 299 F.3d at 79 n. 7. It expired one year later on September 21, 2000.

Allard's first habeas petition was timely filed on June 15, 2000. However, while the limitations period is tolled for 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," 28 U.S.C. § 2244(d)(2), the pendency of the federal habeas petition does not toll the statutory period. Duncan v. Walker, 533 U.S. 167, 181, 121 S. Ct. 2120, 2128, 150 L. Ed. 2d 251 (2001). Therefore, on April 5, 2001, when Allard moved to dismiss his petition voluntarily, the statute of limitations for filing a habeas petition had expired.See Delaney v. Matesanz, 264 F.3d 7, 10-11 (1^st Cir. 2001) (petitioner voluntarily withdrew timely-filed habeas petition after one year statute of limitation had expired, rendering subsequent petition untimely). Allard's subsequent motion for a new trial did not "reset the clock" and did not revive the already-expired time period. Trapp v. Spencer, 479 F.3d 53, 58-59 (1^st Cir. 2007), and cases cited. Consequently, unless the time period for filing a habeas petition was tolled, Allard's habeas petition is untimely.

B. Equitable Tolling is Not Appropriate

The First Circuit has "allowed for equitable tolling of the § 2244(d)(1) limitations period in rare and extraordinary cases."Id. at 59, and cases cited. For equitable tolling to apply, "a petitioner must show that he has been pursuing his rights diligently and that some extraordinary circumstance prevented him from making a timely filing." Id. The relevant facts which the courts consider include (1) the petitioner's diligence in pursuing habeas relief, (2) whether some extraordinary circumstances prevented a timely filing, (3) the petitioner's diligence in pursuing other post-conviction remedies, (4) prejudice to the prosecution caused by tolling and possible retrial, (5) whether the case is of "dubious merit" so that tolling should not be available, and (6) whether the petitioner has been sentenced to death. Id. at 61, and cases cited. "Petitioner, as the proponent of equitable tolling, bears the burden of making a prima facie showing of entitlement to equitable tolling." Dunker, 154 F. Supp. 2d at 107 (internal quotation and citation omitted). Applying these considerations to the instant case compels the conclusion that equitable tolling is not warranted in the instant case.

While Allard's first petition was timely filed, he voluntarily elected to withdraw the petition after the limitations period had expired. The District Judge was under no obligation to advise Allard of the consequences of his dismissal. See Pliler v. Ford, 542 U.S. 225, 231, 124 S. Ct. 2441, 2446, 159 L. Ed. 2d 338 (2004). See also Neverson v. Farquharson, 366 F.3d 32, 43 (1^st Cir. 2004) (no equitable tolling even though district court did not advise petitioner of option to dismiss only unexhausted claims). Morever, by 2001, when Allard elected to voluntarily dismiss his action, the AEDPA had long been in effect and it was well known that the one year statute of limitations had "`rendered outright dismissal perilous to some litigants, because petitioners . . . may find themselves time-barred when they attempt to submit their exhausted claims to the district court.'" Nowaczyk, 299 F.3d at 79 (quoting Anthony v. Cambra, 236 F.3d 568, 573 (9^th Cir. 2000)). Consequently, by April 2001, a number of courts provided for stays of habeas petitions while a petitioner exhausted other claims.⁶ See Nowaczk, 299 F.3d at 79, and cases cited; Freeman v. Page, 208 F.3d 572, 577 (7^th Cir. 2000); Tinker v. Hanks, 172 F.3d 990, 991 (7^th Cir. 1999); Zarvela v. Artuz, 254 F.3d 374, 380-81 (2d Cir. 2001), and cases cited; Calderon v. U.S. Dist. Ct. for N. Dist. of Cal., 134 F.3d 981, 988 (9^th Cir. 1998). In this case, Allard ignored the one year statute of limitations and made no effort to avoid the consequences of the dismissal. See Neverson v. Bissonette, 261 F.3d 120, 126 n. 3 (1^st Cir. 2001) ("the petitioner could have improved his position by requesting that the district court stay, rather than dismiss" his habeas petition since the dismissal "imperil[ed] the timeliness of a collateral attack."). Thus, there were no extraordinary circumstances which prevented Allard from making a timely filing.

6 While Allard attempts to distinguish his case, which involves only exhausted claims in his first petition, from cases involving mixed petitions, there is no practical difference. Dismissal has the same effect on the statute of limitations in both circumstances.

Allard also did not diligently pursue his state post-conviction remedies. He dismissed his petition in April 2001 but did not file a motion for a new trial until June 2003. There is no excuse for this delay, and his lack of diligence precludes equitable tolling in this case. See Cordle v. Guarino, 428 F.3d 46, 49 (1^st Cir. 2005). Allard's claim of "newly discovered evidence" does not alter this conclusion. According to Allard, he learned of his co-defendant's plea agreement in October 2002. Of course, this does not explain why he did not file a motion for a new trial after he voluntarily dismissed his petition but before he allegedly discovered these facts. Moreover, these facts are simply not newly discovered evidence. Allard knew that his co-defendant was entering into some sort of deal with the government, and the plea agreement was easily ascertained from the docket. This information was available before his direct appeal was decided and does not warrant the extension of the statute of limitations. See Graham v. Blaisdell, No. 07-CV-08-PB, 2007 WL 4245891, at *4 (D.N.H. Nov. 30, 2007) (no equitable tolling when "newly discovered evidence" could have been obtained earlier and petitioner does not explain six-month delay between obtaining information and filing for post-conviction relief).

Finally, with respect to the other factors courts consider, it is very likely that the prosecution would be prejudiced if it was forced to retry this 14 year old case. Allard is not facing the death penalty and the claims he is seeking to raise to do not appear to assert clear violations of his constitutional rights.

In sum, Allard "withdrew [his] application in the face of the AEDPA's known one-year limitation period, without asking the district court to retain jurisdiction" and did not, thereafter, diligently pursue his post-conviction remedies. Delaney, 264 F.3d at 14. This is not the "extraordinary" case which would warrant the application of the doctrine of equitable tolling. See id. at 15-16.

IV. CONCLUSION

For all the reasons detailed herein, this court recommends to the District Judge to whom this case is assigned that the Respondent's Motion to Dismiss (Docket No. 6) be ALLOWED.⁷

7 The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec'y of Health Human Servs., 848 F.2d 271, 275 (1st Cir. 1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-05 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S. Ct. 466, 474, 88 L. Ed. 2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir. 1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir. 1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998).