Opinion
C.A. No. 02-461 T
January 23, 2003
For Plaintiff, Vincent P. Murray, Pro Se.
For Defendant, Annie Goldberg, Esq.
Report and Recommendation
Vincent P. Murray, pro se, filed with the court an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, seeking release from state custody. The Attorney General of the State of Rhode Island, designated a party respondent, answered the petition, seeking dismissal on the basis that the petition is time barred. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that writ of habeas corpus be dismissed with prejudice.
Background
On October 29, 1996, a jury convicted the petitioner, Vincent P. Murray, of two counts of second degree child molestation for kissing and inappropriately touching his nine year old niece. For his crimes, he received a sentence of fifteen years, six to serve, nine suspended, and nine years probation for each count. The Petitioner appealed his conviction to the Rhode Island Supreme Court. The Rhode Island Supreme Court affirmed his conviction on January 7, 1999, addressing the merits of three of his claims: (1) the veracity of the victim's statement, (2) the failure to afford him a plea bargain, and (3) the failure of the state court to permit a polygraph examination.
In his direct appeal to the R.I. Supreme Court, petitioner also asserted other claims. However, since these claims were not properly preserved in the trial court, the R.I. Supreme Court refused to consider them.
On April 9, 1999, the petitioner filed an application for a writ of habeas corpus in this court. Judge Lisi, in adopting a Report and Recommendation of Magistrate Judge Lovegreen, dismissed the petition without prejudice on September 8, 1999, on the basis that it was a "mixed petition." See e.g., Rose v. Lundy, 455 U.S. 509 (1982). The Court gave the petitioner the option of returning to the state courts to litigate his unexhausted claims or re-file the petition here as to the claims already presented to and decided by the state courts. Instead of heeding this advice, Petitioner moved for a certificate of appealability and for "immediate release," both of which were denied by the district court.
Petitioner then turned to the United States Court of Appeals for the First Circuit seeking relief. The Court of Appeals directed the petitioner to the appropriate avenue for relief, namely the Rhode Island Post Conviction Relief statute, see RI. Gen. Laws 10-9.1-1 et seq., and admonished the petitioner to move forward with due speed, mindful of the AEDPA's one year time limitation period.
On October 25, 1999, petitioner filed a Rule 35 Motion in the Rhode Island Superior Court, seeking relief from an "illegal" sentence. The Superior Court denied the motion on December 14, 1999, and the R.I. Supreme Court affirmed on December 20, 2001.
Petitioner has now filed an another application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. He asserts the following grounds for relief: (1) his trial counsel was ineffective; (2) the trial judge improperly refused to appoint counsel; (3) the state court refused to suppress evidence; (4) his confession was involuntary, coerced, and altered; and (5) his appellate counsel was ineffective.
Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110 Stat. 1217, provides for a statute of limitations for habeas petitions. See 28 U.S.C. § 2244(d). As amended by AEDPA, Section 2244(d) provides:
(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 a judgement of a State court. The limitation period shall run from the latest of—
(A) the date on which the judgement became final by the conclusion of direct review or the expiration of time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1).
As the time limitations period applies to this case, the applicable portion of § 2244(d)(1) is subsection (A). That subsection provides that the time limitations period begins to run on the date when the conviction becomes final. As discussed in Rogers v. United States, 180 F.3d 349, 351-352 (1st Cir. 1999), a conviction becomes final when the Supreme Court denies an application for certiorari on direct review. When a petitioner does not seek certiorari with the Supreme Court on direct review, the conviction becomes final at the expiration of the ninety day period in which he could have filed a petition for certiorari.
Here, the Rhode Island Supreme Court affirmed the petitioner's conviction on January 7, 1999. He did not seek review in the U.S. Supreme Court. Thus, his conviction became final on April 7, 1999, when the time expired to seek a writ of certiorari. Accordingly, petitioner had one year, or until April 7, 2000, in which to timely file a petition for a writ of habeas corpus in federal court. The instant petition was not filed until October 23, 2002. However, that does not end the analysis. Section 2244(d) also provides:
(2) The time during which a properly filed application for State post conviction or other collateral review with respect to the pertinent judgement or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d)(2).
Here, petitioner filed a Rule 35 motion to correct an illegal sentence with the Rhode Island Superior Court on October 25, 1999. An "illegal sentence," as defined by the Rhode Island Supreme Court, is one that, when imposed, is at variance with the statute proscribing the punishment for the particular crime or crimes. State v. Murray, 788 A.2d 1154 (R.I. 2001). Assuming arguendo that Rule 35 motion can be considered an "application for State post conviction or other collateral review," I will toll the federal habeas clock for the time period while the Rule 35 motion was pending in the state courts.
Petitioner's federal habeas clock began to tick on April 7, 1999, when petitioner's conviction became final. The clock stopped on October 25, 1999, when he filed his Rule 35 motion with the state courts — with 201 days on the clock. The clock restarted on December 20, 2001, when the R.I. Supreme Court denied his Rule 35 motion. Thereafter, Petitioner had an additional 164 days following the R.I. Supreme Court's ruling in which to file the instant writ, or until June 2, 2002. He did not do so. He did not seek federal habeas relief until October 23, 2002, and thus, the instant petition is time barred, and should be dismissed with prejudice.
Notwithstanding the time limitations bar to the petitioner's habeas petition, the instant petition alternatively could be dismissed since he failed to present the claims raised to the state court for determination. Before a federal court may grant habeas relief, the petitioner must exhaust his remedies in state court. In other words, the petitioner must give the state court an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition. This is known as the exhaustion doctrine, first announced in Ex parte Royal, 117 U.S. 241 (1886), and is now codified at 28 U.S.C. § 2254(b)(1).
A petitioner satisfies the exhaustion doctrine by fairly presenting his claims to the highest state court with jurisdiction to consider them. Keeney v. Tamayo-Reyes, 504 U.S. 1, 9 (1992); Picard v. Connor, 404 U.S. 270, 276 (1971). This means that the habeas corpus petitioner must have presented the substance of his federal constitutional claims to the state appellate court so that the state had the first chance to correct the claimed constitutional error. See Lanigan v. Maloney, 853 F.2d 40 (1st Cir. 1988). Only if the same factual and legal theory that forms the basis of the petitioner's habeas petition has been presented to state court will the petition for writ be properly before the federal court. Scarpa v. Dubois, 38 F.3d 1, 6 (1st Cir. 1994); Nadworny v. Fair, 872 F.2d 1093, 1096 (1st Cir. 1989). A claim is not considered exhausted if the petitioner "has the right under the law of the state to raise, by any procedure available, the question presented." 28 U.S.C. § 2254(c).
Here, petitioner failed to present the substance of his instant claims to the state courts for determination, despite being instructed to do so by this court and by the First Circuit Court of Appeals. Since the petitioner has failed to present these claims to the state court for determination, and since an avenue exists in which to do so, see R.I. Gen. Laws 10-9.1-1 et seq, the instant claims are unexhausted.
Conclusion
Accordingly, for the reasons stated above, I recommend that the instant habeas petition be dismissed with prejudice. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).