Opinion
Civil Action No: 01-11609-DPW
September 27, 2002
MEMORANDUM AND ORDER
Kenneth Testa petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This is Testa's second such petition. He bases the instant petition on grounds that 1) there was noncompliance with his plea agreement in the state court, and 2) he was deprived of the effective assistance of counsel.
Testa raised the "non-compliance with a plea agreement" issue in his first petition. He did not raise the ineffective assistance of counsel ground in the earlier petition.
Respondent moves to dismiss the case, contending that the petition is time barred under 28 U.S.C. § 2244(d), the statute of limitations for federal habeas corpus petitions in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). In addition, respondent presents two alternate bases for dismissal of the petition: first, that the claims asserted are in procedural default and second, that the state court adjudication neither contradicts nor unreasonably applies clearly established Supreme Court law.
I. Background
In November 1994, Testa pled guilty to several Essex County indictments charging armed robbery and other crimes. He was sentenced on the armed robbery indictment to twenty to twenty-five years in state prison, with ten years committed and the remaining term suspended, five years probation and special conditions. Under the applicable version of Mass. Gen. Laws ch. 127, which provides for statutory good time deductions from an inmate's maximum sentences in a formula administered by the Department of Corrections, Testa was entitled to a discharge date of August 8, 1999.
In January 1996, while serving the Essex County sentences, Testa pled guilty to five Plymouth County indictments: four for unarmed burglary and one for larceny of a motor vehicle. He was sentenced to ten to twenty years in state prison for the burglary offenses and ten to fifteen years in state prison on the motor vehicle larceny charges. The Plymouth County Sentences were to be served nunc pro tunc with the Essex sentences retroactive to September 15, 1993, the date on which Testa's Essex County sentences became effective. It is the impact of these sentences in extending Testa's good conduct discharge date from August 6, 1999 to June 28, 2005 which Testa claims breached the Plymouth County plea agreement.
The good conduct discharge date is calculated according to a formula administered by the Massachusetts Department of Correction. Specifically, the early release date is calculated prospectively at the time an inmate is committed by subtracting from the maximum sentence a number of days per month. The Department of Corrections first calculates the number of months between an inmate's effective sentence date and the maximum expiration date. The formula then provides that, for sentences over 4 years, 12.5 days of every month is subtracted from this total to arrive at the early release date. See generally Mass. Gen. Laws ch. 127, §§ 129, 129C 129D.
II. Procedural History A. First State Court Proceeding
In September 1997, Testa filed a motion in the Plymouth cases in Superior Court for a new trial and to withdraw his guilty plea. Testa stated that his attorney led him to believe that the Plymouth sentences would not affect his good conduct discharge date. Testa argued that the effect of the sentence was part of the plea bargain and should therefore have been specifically enforced. The Superior Court denied his motion on October 29, 1997. Testa appealed but the Massachusetts Appeals Court affirmed the trial court's denial of Testa's motion on September 1, 1998. On September 15, 1998, Testa filed an Application for Leave to Obtain Further Appellate Review ("ALOFAR") with the Supreme Judicial Court. The SJC denied the ALOFAR on October 23, 1998; Commonwealth v. Testa, 428 Mass. 1106 (1998) (table).B. First Federal Court Proceeding
On March 24, 1999, Testa filed a habeas petition in federal court that raised five grounds for relief. I found that four of the five claims were unexhausted and dismissed the petition. In doing so, I left it "to Testa to decide whether he wishes to pursue his unexhausted claims in the state court and if so, how they should be styled." Testa v. Bissonnette, Civ. Action No. 99-10651-DPW, Memorandum and Order, March 3, 2000, p. 13.
Testa's petition for habeas review included five "grounds:" 1) lack of evidentiary hearing before Superior Court; 2) responsibility of government assigned attorney as a state contractor for the terms of the plea agreement; 3) denial of constitutional right to withdraw a guilty plea because it was conditioned upon an undelivered promise; 4)appeals court abuse of its discretion by adopting the position of the Commonwealth; 5) waiver by the Commonwealth of its right to oppose the motion for post-conviction relief as a result of failure to appear in the Superior Court proceeding. See Testa v. Bissonnette, Civ. Action No. 99-10651-DPW, Memorandum and Order at 1 (D.Mass. March 3, 2000).
C. Second State Court Proceeding
On March 31, 2000, Testa again moved for a new trial in the Plymouth Superior Court. He alleged that his conviction violated state and federal law because 1) the Commonwealth broke its plea agreement when a prosecutor tricked Testa into pleading guilty and 2) his counsel's advice to plead guilty was out of the range of competence demanded of attorneys in a criminal case and therefore violated his right to effective assistance of counsel. On April 10, 2000, a Superior Court Judge denied Testa's motion.
On April 19, 2000 Testa appealed the Superior Court's decision to the Massachusetts Appeals Court. After reviewing a transcript of the plea colloquy between Testa's counsel and the prosecution that had not been presented to the judge who decided the motion, the Appeals Court noted that:
[a]lthough the transcript . . . does indicate mistake or at least confusion on the part of counsel for both the prosecution and defense regarding the discharge date, there is no confusion regarding the sentences themselves. The transcript also reveals a thorough colloquy regarding the plea that included the judge asking the defendant whether he pleaded guilty because of the recommended sentence or "because you are guilty," and he replied, "Because I am guilty."
Commonwealth v. Kenneth Testa, Mass. App. Ct. No. 2000-P-0731.
The Appeals Court then dismissed the appeal on July 16, 2001. In doing so, the court cited Massachusetts case law for the proposition that a guilty plea is not necessarily considered to be involuntary for the sole reason that the defendant received inaccurate or incomplete advice from counsel regarding the consequences of the plea. Id.
On July 30, 2001 Testa filed an ALOFAR with the Supreme Judicial Court. The SJC denied the ALOFAR on November 1, 2001.
D. Second Federal Court Proceeding
On August 27, 2001 Testa filed this petition for a writ of habeas corpus, based on the two grounds: breach of the plea agreement, as asserted in his first petition, and deprivation of his right to the effective assistance of counsel as asserted in his second state new trial proceeding.
III. The Statute of Limitations
The first question presented by Testa's petition concerns whether this petition is time-barred by AEDPA.
A. General Principles
In 1996, Congress enacted AEDPA to discipline the procedures governing federal habeas corpus review. Under AEDPA, petitions for federal review of state convictions allegedly imposed in violation of the Constitution or federal law that are filed pursuant to 28 U.S.C. § 2254 are subject to a one year statute of limitations that runs generally from the date that the pertinent judgment became final. 28 U.S.C. § 2244(d).
28 U.S.C. § 2244(d)(1) states that the limitations period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the 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.
AEDPA endeavors to provide a structure for the evaluation of petitioner claims that respects the importance of the individual's rights implicated by a habeas petition while acknowledging the very strong sovereignty interests of the states in enforcing their criminal laws and the finality of state criminal adjudications. In addressing these, at times competing, interests, the AEDPA statute of limitations is narrowly drawn in order to promote the prompt and efficient resolution of collateral attacks on state convictions. Timely action assures the prisoner and the state alike that their rights will be fully respected, even as it places burdens on petitioners to present all their claims at one time. Cf. 28 U.S.C. § 2244(b) (establishing special stringent procedures for second or successive habeas corpus petitions.) Analysis of a petitioner's claims under AEDPA therefore requires a careful calibration of the interests involved.
AEDPA generally requires a state prisoner seeking federal habeas corpus relief to file a petition under 28 U.S.C. § 2254 within one year of the date on which the state conviction became final. See 28 U.S.C. § 2244(d)(1). At the same time, federal law requires a state prisoner to exhaust all available state post-conviction remedies before seeking federal habeas relief. 28 U.S.C. § 2254(b)(1); Rose v. Lundy, 455 U.S. 509 (1982). For that reason, the statute is tolled during the pendency of a properly filed application for state post-conviction or other collateral relief that relates to the judgment or claim. See Duncan v. Walker, 533 U.S. 167 (2001); Currie v. Matesanz, 281 F.3d 261, 262 (1st Cir. 2002) (citing 28 U.S.C. § 2244(d)(2)). Under 28 U.S.C. § 2244(d)(1), there are several circumstances which trigger the commencement of the statute of limitations. See 28 U.S.C. § 2244(d)(1)(A)-(D). In this case, the application of any of the alternative statutory start dates yields same result: Testa's petition appears time-barred on the face of the statute.
B. Application to Testa's Claims
Section 2244(d)(1)(D) establishes the latest possible commencement date for the statute covering Testa's claims and therefore provides an efficient framework for analyzing the effect of the AEDPA limitations period in the light most favorable to Testa. Section 2244(d)(1)(2) provides that "a 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run for the latest of . . . (D)the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."
As applied to the facts in this case, the "factual predicate" date would be the date on which Testa received his "Deduction from Sentence" compilation sheet from the Department of Corrections. This event, sometime in August of 1997, may be said to trigger the commencement of the limitations period under § 2244(d)(1)(D) because there is reliable evidence that Testa had not been notified of the effect that his Plymouth County plea and sentence would have on his good conduct discharge prior to receiving notice of the discharge date. For the purposes of calculating the limitations period, I will assume that it was at this time, in August 1997, not at the time the judgment on the Plymouth County pleas became final, that Testa became aware of facts lying at the heart of his claim alleging deprivation of his rights. See Brackett v. United States, 270 F.3d 60, 68-69, n. 4 (1st Cir. 2001) (reasoning that the discovery of "factual predicate" under AEDPA is analogous to the discovery of injury in tort actions).
In September, 1997, one month after receiving notice regarding the effect of the Plymouth plea on his good conduct discharge, Testa began state court proceedings by filing a motion for a new trial. The proceedings in state court, through appeals, continued for 13 months to October 23, 1998. The AEDPA statue of limitations was tolled during the pendency of that state court post-conviction review. 28 U.S.C. § 2244(d)(2); see Duncan, 533 U.S. at 181-82; Currie, 281 F.3d at 266.
On October 23, 1998, the Supreme Judicial Court rejected Testa's ALOFAR motion, and the AEDPA limitations period began to run. Five months later, Testa filed his first habeas petition with this court alleging five violations of his constitutional rights. Approximately one year later, on March 3, 2000, I determined that the petition was mixed, containing both exhausted and unexhausted claims. In particular, I found that of the five claims in the petition, only Count 3, which alleged the violation of Testa's constitutional right to withdraw a plea, had been exhausted in the state courts. Under the rule of Rose v. Lundy, governing the disposition of mixed petitions, I dismissed the entire petition without prejudice so that Testa could pursue all unexhausted claims through the state courts. See 455 U.S. at 514.
Under the rule of Duncan v. Walker, however, the AEDPA limitations period continues to run during the pendency of the habeas petition in federal court. 533 U.S. at 181-82. Therefore, during the period in which Testa's first habeas petition was under consideration in this Court, the claims became time-barred under the AEDPA: 19 months had elapsed since Testa was made aware of the "factual predicate" in August, 1997. See Brackett, 270 F.3d at 68; see also Nowaczyk v. Warden, 299 F.3d 69, 74 (1st Cir. 2002) (describing practical effect of Duncan rule on subsequent habeas petitions). As a consequence of the intersection of these rules, by the time Testa undertook the second round of state court proceedings on his habeas claims on March 31, 2001, the statute of limitations had fallen into place.
In his second trip through the state courts, Testa based his motion for new trial on the alleged broken plea agreement and the ineffective assistance of counsel. I note that Testa's claim of a violation of his plea agreement is the one ground from his earlier petition which I determined in the initial federal habeas corpus proceeding to have been exhausted in the first round of state court proceedings. The ineffectiveness claim he now presses was not raised in the initial proceeding.
At each level of the state system, Testa's motion was denied. The Appeals Court determined that with respect to his claim of ineffective assistance of counsel, Testa had waived the claim by failing to pursue it in his first state new trial motion. The facts and procedural histories of Testa's habeas petitions lead me to conclude that, under a literal reading of the statute and the teaching of Duncan, the claims in this petition are time-barred.
C. Equitable Tolling
A straight-forward implementation of the limitations rule has such harsh consequences for a petitioner like Testa, who raised his initial, mixed petition within the statutory period only to have the time necessary for disposition in federal court run the clock out on him, that concerns are raised about the fairness of literal application of the rule.
In their concurring opinion in Duncan, Justices Stevens and Souter commented that "a federal court might very well conclude that tolling [during pendency of federal review] is appropriate based on the reasonable belief that Congress could not have intended to bar federal habeas review for petitioners who invoke the court's jurisdiction within the 1-year interval prescribed by the AEDPA." 533 U.S. at 183. The concurring Justices suggested that there was nothing "in the text or legislative history of AEDPA [that] precludes a federal court from deeming the limitations period tolled for such a petition as a matter of equity." Id.
The concurrence cited statistics showing that district courts on average take 268 days to dismiss a habeas petition on procedural grounds, thus nearly guaranteeing that unexhausted or mixed petitions that are dismissed will later be barred by the statute of limitations which would be running during those 268 days. Id. at 184.
The doctrine of equitable tolling has been discussed in recent cases in the First Circuit. See Donovan v. Maine, 276 F.3d 87 (1st Cir. 2002); Delaney v. Matesanz, 264 F.3d 7 (1st Cir. 2001); Neverson v. Bissonnette, 261 F.3d 120 (1st Cir. 2001). In each case, the First Circuit has refrained from deciding whether or not equitable tolling is available as a matter of law, disposing of the case either by affirming denials of equitable tolling on the facts, see Donovan, 276 F.3d at 92-94; Delaney, 264 F.3d at 14-15, or by remanding for consideration of the merits of equitable tolling by the district court, Neverson, 261 F.3d at 127.
In these cases, the First Circuit has noted that equitable tolling is "the exception rather than the rule; [and that] resort to its prophylaxis is deemed justified only in extraordinary circumstances." Delaney, 265 F.3d at 14. "[E]quitable tolling is normally appropriate only when circumstances beyond a litigant's control have prevented him from filing on time." Id. at 15.
The Sixth Circuit, among others, has adopted equitable tolling in cases under § 2255 and has articulated several factors to consider when determining the appropriateness of equitably tolling a statue of limitations:
(1) the petitioner's lack of notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim.
Hargrove v. Brigano, 2002 WL 1842218, *2 n. 4 (6th Cir. 2002) (quoting Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988)); see also, United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.), (cert.denied, 531 U.S. 878, 148 L.Ed.2d 130, 121 S.Ct. 188 (2000); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999).
My colleague Judge Saris recently held "that equitable tolling is appropriate as a matter of fact and law" in a case substantially similar to this one. Wojic v. Spencer, 198 F. Supp.2d 1, 2 (D.Mass. 2002). In Wojic, the petitioner filed a mixed petition within the one year statute of limitations. The petition was not disposed of in the federal district court for over a year. When the petition was dismissed under the mixed petition rule of Rose the statute of limitations had become applicable. Judge Saris noted that the petitioner had been diligent in pursuing his habeas petition, taking less than five months to file the original federal petition and moving to exhaust his state claims within two months of the dismissal of the federal claim. Under the circumstances she found equitable tolling appropriate even though no one actively misled the petitioner, id. at 3, "because petitioner's conduct was timely, the delays involving the first petition were not his fault, the caselaw was in flux, and petitioner was not advised of the potential time bar for the exhausted claims. . . ." Id.
In the interests of fairness and equity, I find that the doctrine of equitable tolling is applicable to Testa's first claim alleging non-compliance with the plea agreement. Given the absence of specific standards articulated by the First Circuit for analyzing an equitable tolling claim, I find Judge Saris's analysis useful for considering Testa's petition.
Here it is undeniable that, as regards the first ground on which his petition is based, Testa would suffer unfairly from the whip-saw effect of the AEDPA limitations period and the Duncan rule through no fault of his own. The record shows that Testa has diligently pursued his state remedies. I note that less than five months elapsed between the SJC's denial of his first ALOFAR and his filing of his first § 2254, and less than a month passed between the dismissal of his first § 2254 and his filing of his second Rule 30 motion (which again raised the plea agreement issue although it had earlier been exhausted.)
Moreover, since Testa had already exhausted the first claim by the time of his first petition to this court, it would certainly challenge notions of fairness to deny him the right to have that claim resolved on the merits now because the limitations period passed after I dismissed his first petition to permit pursuit of his unexhausted claims. Indeed the First Circuit has suggested that a stay, rather than dismissal, might be an appropriate case management device when confronting a mixed petition. See Nowaczyk, 299 F.3d at 78-83. While I recognize that resort to equitable tolling should only be had in "extraordinary circumstances," the procedural history of this case requires an equitable intervention by this court in the interests of fairness and due process. See Delaney, 265 F.3d at 14.
On the other hand, equitable tolling will not permit me to review Testa's claim of a denial of effective assistance of counsel. At the time he filed his initial habeas petition, Testa was on notice that any claims he did not include could become time-barred. His diligence in pursuing his federal and state court actions demonstrates his awareness of the rules governing habeas petitions. Because Testa had notice of his claim in August, 1997, the statute of limitations on Testa's ineffective assistance of counsel claim began to run as of that date. More than two and one half years passed before he first presented this claim to the state court. See U.S.C. § 2242(d)(2). As a consequence, I conclude his second ground for habeas corpus relief in the instant petition is time-barred.
Even if I were to go beyond the statute of limitations issue in addressing Testa's claim for ineffective assistance of counsel, I would conclude that the state court's finding of waiver constitutes an adequate and independent state law ground for its decision denying his motion thereby precluding me from reviewing the claim. A defendant's failure to object in a timely manner in a state criminal proceeding constitutes an adequate and independent state ground sufficient to foreclose federal habeas review. See Burks v. Dubois, 55 F.3d 712, 716 (1st Cir. 1995) (citing Wainwright v. Sykes, 433 U.S. 72, 87 (1077)). On appeal from the Superior Court in Testa's second Rule 30 proceeding, the Massachusetts Appeals Court affirmed the trial court's denial of Testa's motion as to this claim and based its decision on state law rule regarding waiver. The court first noted that under Massachusetts law a guilty plea is not necessarily regarded as involuntary simply because a defendant received incomplete or incorrect advice from counsel regarding the penal consequences of his plea. Commonwealth v. Testa, Memorandum and Order Pursuant to Rule 1:28, Massachusetts Appeals Court 00-P-731, July 16, 2001 (citing Commonwealth v. Indelicato, 40 Mass. App. Ct. 944, 945 (1996). Second, the court stated that it reached its decision "for substantially the reasons stated in the Commonwealth's memorandum at 1-6." The Commonwealth in that brief argued that Massachusetts law precluded the defendant from pursuing the appeal. Specifically, the Commonwealth relied on the general rule that "the failure to raise a claim of error at the first opportunity constitutes a waiver of that claim" and noted that"[t]he rule of waiver applies equally to constitutional claims which could have been raised but were not raised'. . . ." Id. (citations omitted). It is clear that the Appeals Court applied the doctrine of waiver in rejecting Testa's appeal of his second Rule 30 motion. It should be apparent, of course, from my own denial of petitioner's ineffectiveness claim as time-barred that I find nothing unreasonable in concluding that the ineffectiveness claim could have been raised at an earlier — and more timely — point than the second Rule 30 proceeding. Because waiver is an adequate and independent state law ground and the court did not otherwise address federal law, federal review of this claim is precluded.
IV. Breach of Plea Agreement
I turn to the merits of Testa's contention that the refusal of the state court to accept the withdrawal of his plea to the Plymouth County indictments resulted in his imprisonment in violation of the Constitution. Specifically, Testa alleges that he pled guilty to the Plymouth County indictments only on the understanding that the resulting sentence would have no effect on the date of his good conduct discharge as determined by the Essex County sentences.A. General Principles
AEDPA establishes a two-prong test which federal courts must apply in reviewing a habeas petition. 28 U.S.C. § 2254(d)(1). AEDPA provides:
An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law . . . Id.
In Williams v. Taylor, the Supreme Court found that AEDPA represents "a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." 529 U.S. 362, 412 (2000). One aspect of AEDPA's stringency is a set of firm guidelines, articulated by the Court in Williams, which federal habeas courts must observe in analyzing a habeas petition.
First, the Court explained that a decision of a state court would be "contrary" to clearly established precedent if "the state court applies a rule that contradicts the governing law set forth" in Supreme Court cases or if "the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." See id. at 413. Second, a state court decision would be judged "unreasonable" if the federal court determined that "the state court's application of clearly established federal law was objectively unreasonable." Id. at 410. In describing the "unreasonable application" standard, the Court warned: "the most important point is that an unreasonable application of federal law is different from an incorrect or erroneous application of federal law." Id. at 412.
The First Circuit has recently refined its analysis of the unreasonable application standard. See McCambridge v. Hall, No. 00-1621, 2002 WL 1941478 at 12-13 (1st Cir. Mass.) (Aug. 27, 2002) (overruling unreasonable application standard in Williams v. Matesanz, 230 F.3d 421,424 (1st Cir. 2000) and O'Brien v. DuBois, 145 F.3d 16, 25 (1st Cir. 1998)). In McCambridge, the court determined that the proper test a federal habeas court should apply to post-conviction, unreasonable application challenges is whether or not the state law decision is unreasonable "in the independent and objective judgment of the federal court." 2002 WL 1941478 at 13. Quoting an opinion from the Second Circuit, the First Circuit held that "'some increment of incorrectness beyond error is required.'" See id. (quoting Francis. S. v. Stone, 221 F.3d 100, 111 (2nd Cir. 2000)). The court explained that "if it is a close question whether the state decision is in error, then the state decision cannot be an unreasonable application." Id. at 13. At the heart of the First Circuit's reasoning in McCambridge is the recognition that AEDPA demands substantial deference to the legal and factual conclusions of the State court. See 2002 WL 1941478 at 12-13; Williams, 529 U.S. at 410-12; Rashad v. Walsh, 300 F.3d 27, 46 (1st Cir. 2002).
B. Application to the State Court decision
First, there is no basis for an argument that the State court decisions in this case were contrary to clearly established federal law governing plea agreements. See U.S. v Ruiz, 122 S.Ct. 2450, 2455 (2002) (knowledge of "specific, detailed consequences" of waiver in guilty plea not required) (emphasis in original); Santobello, 404 U.S. at 261 (sentencing judge must develop on record factual basis of plea; plea must be voluntary and knowing and, if induced by promises, promises must be made known). Here the state trial court applied the rule of Santobello at the plea colloquy by thoroughly interrogating Testa as to the reasons and factual bases underlying his plea. See Santobello, 404 U.S. at 261; see also Ruiz, 122 S.Ct. at 2455. In rejecting his motion for a new trial, the Appeals Court properly reviewed the plea colloquy and determined that Testa's plea was knowing and voluntary on the basis of his statement that he was pleading guilty because he was guilty and for no other reason.
In this case, review of the State court rejection of Testa's motion for a new trial centers on whether the Appeals Court unreasonably applied the rule governing plea agreements to Testa's circumstances. See Williams, 529 U.S. 362, 412; McCambridge, 2002 WL 1941478 at 12-13. In reviewing Testa's claims, the Appeals Court examined the transcript of the plea colloquy in the Plymouth County Superior Court. Testa argues that the court also should have considered evidence of a letter written from his attorney to Testa purporting to demonstrate the existence of a plea agreement which would "have no effect of (sic) your dates." This letter, Testa claims, shows that the effect of the Plymouth County sentences on his good conduct discharge was a bargained for term upon which he relied in pleading guilty.
Whether the letter supports Testa's contention about what he understood before actually entering the plea is, however, irrelevant to my review of the State court decision. Under AEDPA, the inquiry is rather whether it was unreasonable for the Appeals Court to have reached its determination on the basis of the transcript of the plea colloquy following receipt of the letter. Cf. Rashad, 300 F.3d at 35 (in analyzing unreasonable application claim, "it is the strength of the State court's ultimate conclusion rather than its announced rationale, that must be evaluated.")
It was certainly within the range of reasonable determinations for the state courts to conclude that the parties to the Plymouth plea agreement had expressed the sum total of their promises in the course of the colloquy. See Commonwealth v. Santiago, 394 Mass. 25, 29-30, 474 N.E.2d 154 (1985) (conclusory statements about parole agreement insufficient in absence of evidence in transcript of disposition proceedings.) Testa's contention that the Plymouth sentences were to have no effect on his discharge date is challenged by the absence of any express statements to that fact either by the prosecutor or Testa's attorney at the colloquy. As the Appeals Court noted, the transcript of the colloquy does reveal some confusion on the part of the prosecution regarding the effect of the sentences on the discharge date. Nevertheless, when Testa and his attorney had the opportunity to describe the plea agreement in detail to the judge, neither of them stated that the agreement was in any way premised on the effect of the sentences on the discharge date. Indeed, Testa's attorney does not mention the issue of the discharge dates at all during the colloquy. See Santiago, 394 Mass. at 29-30 (failure of both parties to inform the judge prior to tender of plea of existence of other agreements contingent upon the plea "strongly suggests" that parole consequences were not part of the bargain.)
If a particular term of a contract is of crucial importance to one of the parties such that the contract should fail without it, as Testa claims here, it is not unreasonable to expect that the parties would be unequivocal about it. It is also not unreasonable to expect that the record would clearly show all the terms of the agreement. In fact, while the colloquy transcript does reveal that the prosecution may have been confused about the discharge dates, it also demonstrates that both the prosecution and defense could be quite clear when they wanted or needed to: the transcript reveals no confusion whatsoever about the sentences that were to be imposed. The sentences agreed upon at the plea colloquy were precisely what Testa's attorney stated they would be in second sentence of his January 19 letter. In short, the sentence recommended was the sentence Testa received. From the record of the plea colloquy provided to the Appeals Court and from the court's opinion, I cannot say that the state court's determination was objectively unreasonable. See Rashad, 300 F.3d at 45 (noting that mere fact that Appeals Court opinion was "not very comprehensive" has no bearing on whether decision was unreasonable application.)
Furthermore, even if the trial judge approving the plea agreement had known that Testa expected to receive a good conduct discharge calculated on the basis of his Essex County sentences, the court could have nevertheless reasonably rejected Testa's motion for a new trial. A reading of both Massachusetts and federal precedent suggests that parole eligibility is a collateral term in the construction of plea agreements and may not be used to vitiate a plea. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366 (1985); Santiago, 394 Mass. at 30; Commonwealth v. Indelicato, 40 Mass. App. Ct. 944, 667 N.E.2d 300 (1996); Commonwealth v. Cepulonis, 9 Mass. App. Ct. 302, 309, 400 N.E.2d 1299, (1980). In Hill, the Supreme Court stated "[w]e have never held that United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for a defendant's plea of guilty to be voluntary." 474 U.S. at 56.
In Indelicato, the Massachusetts Appeals Court held that a defendant's confusion over the effect of pleading guilty on his good conduct discharge was insufficient grounds to support an allegation of a breach of the plea agreement. Indelicato, 40 Mass. App. Ct. at 945. The court explained that "[d]oubtless cases might arise where trial counsel's mistaken advice as to consequences of a guilty plea would be thought so central as to undermine the pleas validity . . . but it is not likely in a case where, as here, the mistaken or incomplete advice concerns a matter [parole eligibility] . . . that is entirely collateral to the charges pending for plea or trial." Indelicato, 40 Mass. App. Ct. at 945; see also Santiago, 394 Mass. at 30 (quoting Commonwealth v. Morrow, 363 Mass. 601, 606, 296 N.E.2d 468 (1973):"limitations on, or requirements for, parole . . . are but 'contingent consequences of being confined.'"); Cepulonis, 9 Mass. App. Ct. at 309 (quoting Commonwealth v. Stanton, 2 Mass. App. Ct. 614,622, 317 N.E.2d 487 (1974): "predictions by counsel as to time which a defendant might have to serve form no basis for attacking a plea . . ." where plea is otherwise intelligent and voluntary.)
I am especially mindful of Justice O'Connor's admonition in Williams that a judge in a federal habeas court may not grant a writ merely because he or she might reach a different result from the state court judge. See Williams, 529 U.S. at 412. In the words of the First Circuit, where the decision is a close one, the state decision cannot be an unreasonable application. See McCambridge, 2002 WL 1941478 at 13. In this case, I find that the record provides an adequate basis from which the state court could reasonably reach the conclusion that the Commonwealth did not breach an agreement with Testa concerning the effect of his guilty plea on his good conduct discharge dates. Therefore, applying the standards articulated by the Supreme Court in Williams and by the First Circuit in McCambridge, I conclude that Testa's petition is barred because the state determination of his claim was not objectively unreasonable. See Williams, 529 U.S. at 412-13; McCambridge, 2002 WL 1941478 at 13.
V. Conclusion
For the reasons set forth more fully above, Respondent's motion to dismiss is GRANTED.