Opinion
Civil Action No. 02-10641-RWZ
February 14, 2003
MEMORANDUM OF DECISION
On October 28, 1996, petitioner Timothy Foster pled guilty to seven charges that grew out of a car accident he had caused on May 30, 1995. The parties knew before the hearing that the Commonwealth was recommending a nine- to ten-year sentence on the most serious charge, operating under the influence of alcohol negligently and causing serious bodily injury, G.L. c. 90, § 24L(1). Commonwealth v. Foster, 761 N.E.2d 551 (Mass.App.Ct. 2002) (unpublished decision). Noting petitioner's prior convictions for drunk driving, the trial judge adopted the Commonwealth's recommendation. The court imposed shorter, concurrent sentences for three of the lesser charges and placed on file the remaining others. Id. That same day, petitioner filed a motion for review of his sentence pursuant to M.G.L. c. 278 § 28A, which was dismissed on July 13, 2000.
Almost three years later, on May 24, 1999, petitioner, aided by new counsel, filed a motion under Mass.R.Crim.P. 30(a) and (b) to vacate his "illegal sentence" and to withdraw his guilty plea because he had ineffective assistance of counsel. Id. The motion was denied without a hearing and petitioner appealed. Subsequently, the petitioner, acting pro se, sought reconsideration of the denial in the trial court and also recusal of the trial judge for alleged bias. This motion was denied and he appealed. The Appeals Court of Massachusetts consolidated the appeals and affirmed the denial of the motions. Id. On March 27, 2002, the Supreme Judicial Court denied petitioner's application for further appellate review.
On April 5, 2002, petitioner filed the instant Writ of Habeas Corpus on the following grounds: (1) he pled guilty to two lesser misdemeanor offenses and not the felony offense for which he was convicted and sentenced in violation of his due process and liberty rights under the 5th and 14th Amendments thereby subjecting him to double jeopardy; (2) he did not understand the nature or the consequences of his guilty plea in violation of his rights under the 5th, 6th, and 14th Amendments; (3) the trial judge was biased and partial "to the Commonwealth or his own belief system at sentencing" thereby violating petitioner's due process rights under the 5th and 14th Amendments; and (4) petitioner was denied effective assistance of counsel in violation of his 6th Amendment rights. Respondent has filed a Motion to Dismiss the Petition because it is untimely.
If petitioner's motion for review of his sentence under M.G.L. c. 278 § 28A tolls the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the petition for Writ of Habeas Corpus is timely. The AEDPA allows the statute of limitations to be 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). In holding that "other collateral review" does not encompass any form of federal review, the Supreme Court has stated that the phrase does include state sentence review procedures. Duncan v. Walker, 533 U.S. 167, 177, 121 S.Ct. 2120, 2127 (2001). It said that Congress may have used the phrase "'post-conviction or other collateral' review in recognition of the diverse terminology that different States employ . . . For example, Florida employs a procedure that is officially entitled a 'Motion to Vacate, Set Aside, or Correct Sentence' [which is referred to as a] 'motion for post-conviction relief' . . . Congress may have refrained from exclusive reliance on the term 'post-conviction' so as to leave no doubt that the tolling provision applies to all types of state collateral review. . . ." Id. See also Tillema v. Long, 253 F.3d 494, 500 (9th Cir. 2001) (holding that AEDPA's limitation period is tolled during the pendency of petitioner's motion to vacate illegal sentence). But see Bridges v. Johnson, 284 F.3d 1201, 1203 (11th Cir. 2002) (finding that a state sentence review process does not qualify as post-conviction relief under Section 2244(d)(2) "because it does not promote exhaustion by giving state courts the opportunity to consider federal-law challenges to state court judgments, and it does not promote finality of state court judgments by reducing the time in which federal review is sought."). Therefore, petitioner's motion for review of his sentence tolls the AEDPA statute of limitations, and his petition for Writ of Habeas Corpus is timely filed.
Accordingly, respondent's Motion to Dismiss is DENIED. Petitioner filed a brief in support of his petition on June 20, 2002. Respondent shall file an opposition by March 14, 2003, together with any necessary supplement to the record appendix filed by petitioner. Petitioner shall file any reply by March 28, 2003.