Opinion
Civil Action No. 00-12020-RWZ
May 14, 2002
MEMORANDUM OF DECISION
Petitioner, Lawrence E. Bland, Jr. was convicted on February 26, 1992, of unarmed robbery of a person over sixty-five years of age, three counts of burglary with assault on an occupant, five counts of larceny from a building, three counts of breaking and entering in the nighttime with intent to commit a felony, one count of receiving stolen property and two counts of unauthorized use of a motor vehicle. He was sentenced to concurrent terms of 12-20 years on each count of breaking and entering, 30-40 years on burglary with assault on an occupant, and 30-40 years for unarmed robbery with assault on a person over sixty-five years of age.
On February 27, 1992, petitioner timely appealed to the Massachusetts Appeals Court ("Appeals Court"), which reversed the judgments as to two counts of breaking and entering. Commonwealth v. Bland, 40 Mass. App. Ct. 1110, 662 N.E.2d 1063 (1996). The remaining judgments were affirmed. The Supreme Judicial Court of Massachusetts ("SJC") denied petitioner's Application for Further Appellate Review on June 21, 1996. Commonwealth v. Bland, 423 Mass. 1101, 667 N.E.2d 1158 (1996).
On March 23, 1992, petitioner filed a motion to revise and revoke his sentence, pursuant to Massachusetts Rules of Criminal Procedure 29 ("Rule 29"). Petitioner requested that the 30-40 year sentence be revised because his cocaine addiction should have been a mitigating factor; he had made attempts at self-betterment since the conviction; none of the victims were physically touched; and the sentence exceeded the sentencing guidelines. On February 10, 1998, the trial judge denied the motion, and revealed his reasons for imposing a lengthy sentence. Petitioner's appeal stated that the original sentencing decision and subsequent denial of the Rule 29 motion were abuses of discretion because the decisions were based on invalid factors. On February 29, 2000, the Appeals Court affirmed the trial judge's denial of the motion to revise and revoke the sentence. Commonwealth v. Bland, 48 Mass. App. Ct. 666, 724 N.E.2d 723 (2000). The SJC denied petitioner's Application for Further Appellate Review on April 27, 2000.
On October 2, 2000, petitioner filed the instant petition for habeas corpus relief from his conviction pursuant to 28 U.S.C. § 2254. Respondent claims that the petition should be dismissed because it is time-barred under the one year statute of limitations provided by § 2244(d)(1)(A) of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). Section 2244(d)(1)(A) provides a one-year statute of limitations on a petition for Writ of Habeas Corpus, running from the date on which the "judgment became final by the conclusion of direct review or the expiration of time for seeking such review." Respondent states that the date on which "judgment became final" was September 21, 1996, after the SJC denied petitioner's final request for review and after the 90-day period in which certiorari could have been sought expired. Therefore, his October 2000 petition for a Writ of Habeas Corpus was filed over four years too late.
Petitioner argues, however, that section 2244(d)(2), which tolls the limitations period during the pendency of any "properly filed application for state post-conviction or other collateral review," tolled the limitations period on his habeas request during the pendency of his Rule 29 motion, resolved in April of 2000. According to respondent, section 2244(d)(2) does not apply because petitioner's Rule 29 motion was grounded exclusively on state law, and provided no basis for habeas relief. Although circuits are divided as to whether a proper tolling event under section 2244(d)(2) must raise a cognizable federal claim, the issue need not be addressed here because a Rule 29 motion, regardless of the state or federal nature of its underpinnings, does not constitute the "post-conviction or collateral review," necessary to toll the AEDPA one year statute of limitations.
See Carter v. Litscher, 275 F.3d 663, 665 (7th Cir. 2001) ("[a]ny properly filed collateral challenge to the judgment tolls the time to seek collateral review;" including challenges based solely on state law); Tillema v. Long, 253 F.3d 494 (9th Cir. 2001) (same); compare Austin v. Mitchell, 200 F.3d 391,394 (6th Cir. 1999) ("a state petition for post-conviction or other collateral review must present a federally cognizable claim for it to toll the statute of limitations pursuant to 28 U.S.C. § 2244(d)(2)") (emphasis added).
The language of section 2244(d)(2) is not defined within the AEDPA, but the Supreme Court recently held that the applicable one-year statute of limitations may be tolled only for state collateral, post-conviction review. See Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120 (2001) ("Congress may have employed the construction `post-conviction or other collateral review' in recognition of the diverse terminology that different States employ to represent the different forms of collateral review that are available after conviction.") (emphasis added); see also Walkowiak v. Haines, 272 F.3d 234, 237 (4th Cir. 2001) ("This plain language interpretation of the section gives meaning to each and every word of the provision, which a reading of the statute to require tolling during any form of review after conviction (collateral or otherwise) would not."). The question is therefore whether a Rule 29 motion represents a request for "collateral review."
Collateral review typically connotes a proceeding "separate and distinct from an earlier proceeding, so also does it typically entail a challenge to the legality of the earlier proceeding or judgment." Walkowiak, 272 F.3d at 238 (relying on "collateral review," as defined Black's Law Dictionary (7th ed. 1999)). A Rule 29 motion fits neither of these criteria. First, it is not separate and distinct from the earlier proceeding. To the contrary, it is directed to the original sentencing judge, as part and parcel of the original proceeding in which the defendant was sentenced. See Rule 29 ("The trial judge upon his own motion or the written motion of a defendant . . . may, upon such terms and conditions he shall order, revise and revoke such sentence if it appears that justice may not have been done.") In addition, a Rule 29 motion does not challenge the legal sufficiency of the conviction or imposition of the sentence. Rather, it provides a mechanism whereby the trial judge may reconsider a concededly lawful sentence to remedy some perceived unfairness. See 30A Smith, Massachusetts Practice, § 2021 (West 1983 and Supp. 2000) (citing Reporter's Notes to Rule 29). Relief under Rule 29 is entirely discretionary. See 30A Smith, Massachusetts Practice, § 2034. Claims of legal error, by contrast, are addressed pursuant to Rule 30, which governs post-conviction relief for persons who are imprisoned in violation of state or federal law. See Mass. R. Crim. P. 30. Petitioner's Rule 29 motion did not assign any errors of law to the trial judge and did not present any arguments which, if meritorious, would require sentence modification as a matter of law. Because petitioner's motion did not amount to a "collateral attack," section 2244(d)(2) does not apply to toll the AEDPA's one year statute of limitations on petitioner's request for habeas relief. Accordingly, his petition for Writ of Habeas Corpus must be dismissed as untimely. Judgment shall be entered for the respondent.
Petitioner does not dispute that his July 1998 motion for new trial, pursuant to Rule 30, was filed after the AEDPA statute of limitations expired in September of 1997, and therefore has no bearing on the tolling issue.