Opinion
CIVIL ACTION NO. 07-11213-RWZ.
September 10, 2007
ORDER
George Souza has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Defendant has moved to dismiss on several grounds: (1) that the court lacks jurisdiction as petitioner is not in custody; (2) that he failed to exhaust state remedies; and (3) that the petition is time barred. No opposition has been filed. Nonetheless, I consider the motion on the merits.
Petitioner pled guilty on June 12, 2000, in the Bristol Superior Court to one count of indecent assault and battery on a child under 14 and was sentenced to a term of imprisonment of three years and one day. He has completed serving that sentence, but was thereafter found to be a sexually dangerous person pursuant to Mass. Gen. L. ch. 123A and civilly committed to the Massachusetts Treatment Center, where he remains. About one year after his plea, petitioner, on allegations of new evidence and ineffective assistance of counsel, moved for a new trial in the state court, which motion was denied. The appeal from the denial was dismissed for lack of prosecution. Subsequent post-judgment motions in the trial court were equally unsuccessful as were those appeals petitioner filed. He never applied for further appellate review by the Supreme Judicial Court. The habeas petition was submitted on June 29, 2007, and it alleges, for the first time, that the conviction was obtained in violation of the prohibition against double jeopardy.
First, it is likely that petitioner's conviction has affected the subsequent adjudication of him as a sexually dangerous person, and thus still entitles him to habeas relief. Brock v. Weston, 31 F.3d 887, 891 (9th Cir. 1994) (petitioner committed as a "sexually violent predator" could bring habeas challenge against expired conviction which was a necessary predicate to his current confinement); see also Young v. Vaughn, 83 F.3d 72, 74 (3d Cir. 1996) (district court had jurisdiction to entertain habeas petition attacking expired conviction where petitioner was in custody serving a sentence for parole violation that was a collateral result of the expired conviction). I will therefore address the other two grounds advanced by defendant.
Second, the statute, 28 U.S.C. § 2254(b)(1)(A) is explicit that habeas relief is not available unless "the applicant has exhausted the remedies available in the courts of the State." It is clear on the face of this petition that petitioner has not exhausted state remedies, as to the double jeopardy issue, the only issue raised in this case.
Third, Section 2244(d)(1) of Title 28 further provides that "[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus. . . . The limitation period shall run from . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Petitioner did not seek further appellate review, but under Rule 27, Massachusetts Rules of Appellate Procedure, had 20 days after the date of the rescript of the Appeals Court to do so. The Appeals Court dismissed petitioner's appeal from the denial of a new trial in October 2002. This petition was filed nearly five years later and nothing in the record suggests that the time may be tolled.
Accordingly, the motion to dismiss is allowed for failure to exhaust state remedies and because the statute of limitations has run. Judgment may be entered dismissing the petition.