Opinion
CIVIL ACTION NO. 07-11832-JLT.
July 2, 2008
Eva M. Badway Attorney General's Office, Boston, MA, representing James R. Bender, Respondent.
Raymond P. Vinnie, W-55607, MCI — Norfolk, Norfolk, MA PRO SE PLAINTIFF.
REPORT AND RECOMMENDATION ON RESPONDENT'S MOTION TO DISMISS
28 U.S.C. § 2244Motion to Dismiss
7/15/08 Judge Joseph L. Tauro: ORDER: This court ACCEPTS and ADOPTS the July 2, 2008 Report and Recommendation ("Report and Recommendation") of Magistrate Judge Dein. For the reasons in the Report and Recommendation, this court lacks jurisdiction because the Petition is a "second or successive" petition that has not been authorized by the First Circuit Court of Appeals. Petitioner was obligated under (b) to obtain authorization from the First Circuit before proceeding, and he failed to do so. Accordingly, Respondent's [#6] is ALLOWED. The Petition is DISMISSED WITHOUT PREJUDICE to refiling, if the First Circuit Court of Appeals grants authorization. IT IS SO ORDERED.I. INTRODUCTION
On December 16, 1993, the petitioner, Raymond P. Vinnie ("Vinnie" or the "defendant"), was convicted by a Norfolk County jury of murder in the first degree, and sentenced to life imprisonment. After his conviction was final, he filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with this court on March 3, 1999. Vinnie v. Maloney, Civil Action No. 99-10480-RWZ. On March 25, 2002, Judge Zobel issued a Memorandum of Decision denying the petition on the merits. The First Circuit denied Vinnie's request for a certificate of appealability and terminated his appeal on January 31, 2003.Vinnie commenced the instant case on September 27, 2007 by filing another petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The respondent has moved to dismiss the petition on the grounds that this court lacks jurisdiction as the petition is a "second or successive" petition that has not been authorized by the United States Court of Appeals for the First Circuit. Because this court concludes that Vinnie was obligated under 28 U.S.C. § 2244(b) to obtain authorization from the First Circuit before proceeding with his habeas petition, and he failed to do so, this court recommends to the District Judge to whom this case is assigned that the respondent's Motion to Dismiss (Docket No. 6) be allowed and that the matter be transferred to the First Circuit Court of Appeals or, in the alternative, dismissed without prejudice.
Vinnie contends that the defendant was not authorized to file a motion to dismiss in this case because the procedural order entered by the District Judge on December 3, 2007 required that an "answer/responsive pleading" be filed within 20 days. Whether or not a motion to dismiss technically is a "responsive pleading" for all purposes, this court does not interpret this docket entry as precluding the respondent from filing a motion to dismiss as his initial response to the habeas petition. Therefore, this court will address the motion to dismiss on the merits.
II. STATEMENT OF FACTS
The facts are derived from the Exhibits filed by the respondent in connection with the motion to dismiss at Docket No. 8 ("Ex. ___") as well as those documents attached to Vinnie's "Supplemental Petition and Memorandum in Support of Writ of Habeas Corpus" ("Supp. Pet.") filed as Docket No. 2 and to his "Opposition to Respondent's Motion to Dismiss" ("Opp.") filed as Docket No. 13.
On December 16, 1993, Vinnie was convicted of the first degree murder of his girlfriend's sixteen year old son. He was sentenced to life imprisonment. Ex. 1 at 9. Vinnie filed a timely direct appeal, consideration of which was stayed pending review of his motion for a new trial. Vinnie's motion for a new trial was denied on March 24, 1997. Id. at 13. In an opinion dated August 12, 1998, the Massachusetts Supreme Judicial Court ("SJC") affirmed Vinnie's conviction and the denial of his motion for a new trial. Commonwealth v. Vinnie, 428 Mass. 161, 698 N.E.2d 896 (1998).
The Original Petition
On March 3, 1999, Vinnie filed a petition for writ of habeas corpus in this court, which was originally drawn to Judge Gertner and then reassigned to Judge Zobel. See Ex. 4, Vinnie v. Maloney, Civil Action No. 99-10480-RWZ. In this petition, Vinnie challenged the trial judge's failure to instruct the jury on the lesser offense of murder in the second degree. See Ex. 5. In a Memorandum of Decision dated March 25, 2002, Judge Zobel addressed this claim on the merits, and ruled that "[b]ecause the failure to include a lesser offense instruction at the trial level did not result in a `fundamental miscarriage of justice,'Tata v. Carver, 917 F.2d 670 (1st Cir. 1990), the petition for Writ of Habeas Corpus is denied, and all remaining motions are thereby rendered moot." Ex. 5 at 2. Specifically, Judge Zobel ruled that "[t]o rise to the level of a due process violation, the refusal to instruct must threaten a fundamental miscarriage of justice." Id. at 3 (internal citations omitted). She found that the SJC had considered this question, and concluded that there was no miscarriage of justice because (1) the petitioner had "invited the omission of the instruction, and would have objected to its inclusion," (2) the Commonwealth did not seek an instruction on second degree murder, and (3) the court's "review of the record confirms the conclusions of the trial counsel, the prosecutor, and the judge, all of whom, familiar with the evidence and protecting all the interests at stake, saw no reason to charge on murder in the second degree." Id. at 3. Judge Zobel continued her analysis by citing the well-established principle that "[t]he underlying facts are presumed true unless petitioner is able to `rebut the presumption of correctness by clear and convincing evidence.'" Id. at 4 (citing 28 U.S.C. § 2254(e)(1); Coombs v. Maine, 202 F.3d 14, 18-19 (1st Cir. 2000)). Since Vinnie had failed to rebut the presumption of correctness, his petition was denied. Id. An Order of Dismissal was entered on March 25, 2002. Ex. 6.
On May 1, 2002, Judge Zobel denied Vinnie's motion for a certificate of appealability. See Ex. 4. On January 31, 2003, the First Circuit Court of Appeals denied Vinnie's request for a certificate of appealability, and terminated his appeal, because he had failed "to make a substantial showing of the denial of a constitutional right." Ex. 7.
The Present Petition
On September 27, 2007, Vinnie commenced the instant action by filing a petition under 28 U.S.C. § 2254 for a writ of habeas corpus. Docket No. 1. Therein he states that he is challenging his December 16, 1993 Norfolk County Superior Court murder conviction. Id. at 1. As grounds for his petition, Vinnie asserts that his trial attorney had a conflict of interest, as a result of which the trial court had no subject matter jurisdiction to proceed with the trial against him. Id. at 2. Specifically, but without limitation, Vinnie has asserted the following "facts" as grounds for his habeas petition:
1. The irreconcilable actual conflict-of-interests being challenged in this petition, are sui generis, and constitutes a constructive denial of counsel, completely.
2. Trial counsel's involvement in a conspiratorial attorney-client relationship with a so-called unnamed "third person," to initiate contact with the petitioner while being held in the custody and control of law enforcement officers from the prosecutor's office, for the sole purpose of improperly soliciting the petitioner as his client through the use of overwhelming and convincing deceit of being privately retained to represent the petitioner, and then in the petitioner's absence and without his knowledge and consent, trial counsel moved the trial judge to make a posttrial order to court-appoint him as the petitioner's trial counsel — "nunc pro tunc" to the petitioner arraignment — so that counsel could defraud Massachusetts taxpayers of nearly $50,000. in unlawful attorney fees as a reward for defrauding the petitioner of his liberty, must unavoidably constitute something far more egregious than the mere appearance of impropriety.
3. The sui generis nature of the facts supporting this ground for habeas corpus relief, necessarily deprived and/or caused the trial-court to lose its subject-matter jurisdiction to proceed with a trial against the petitioner, due to a constructive denial of conflict-free counsel, completely.
Docket No. 1 at pages 5(a)-(b). This issue was raised by Vinnie in the state court in various post-appeal motions, including by way of a petition for writ of habeas corpus in the state court.See Docket No. 1 at 7-8. Thus, Vinnie has attached to his petition a copy of the Superior Court's June 1, 2006 "Memorandum of Decision and Order on Respondent's Motion to Dismiss the Habeas Corpus Petition" ("Mem.") in which the court concluded:
Vinnie alleges multiple violations of the Sixth and Fourteenth Amendments in his petition, including but not limited to denial of his right to the assistance of counsel and to an impartial judge and jury. However, all of these alleged grounds for relief center on the indictment, trial, conviction, or sentencing stages of the criminal proceedings against him. Therefore, a petition for a writ of habeas corpus is not the appropriate vehicle for addressing these grievances; Vinnie's proper remedy lies in a Rule 30 motion for postconviction relief.
Mem. at 4. The court also noted in a footnote that "[i]t appears that several of the issues raised in Vinnie's habeas corpus petition have already been raised in his motion for a new trial, the denial of which was upheld by the SJC." Id. at 4 n. 4. The trial court's "Rulings" on Vinnie's motion for a new trial are attached to his Supplemental Petition. Therein, the trial court did address Vinnie's challenges to his counsel and to counsel having been court-appointed after originally having represented that he was privately retained. Rulings at 3-4.
Vinnie contends that the instant petition "attacks a different judgment than the judgment attacked in his March 3, 1999 petition, which will be shown to have been void ab initio." Opp. at ¶ 1 (emphasis in original). The "different judgment" is not identified. It appears, however, that Vinnie is referring to the denial of his state petition for writ of habeas corpus, which raises the claims he is now seeking to bring before this court.See Supp. Pet. at 1 ("The lack of trial-court jurisdiction was the petitioner's central ground presented for state habeas corpus relief; the state-courts failed to address and resolve that dispositive issue. Thus, jurisdiction of this Court is effectively invoked under Title 28 U.S.C. § 2254"). In addition, Vinnie contends that Judge Zobel's decision was not on the merits, but rather his original "petition was dismissed on the procedural grounds of `presumption of correctness.'" Opp. at ¶ 5. Finally, Vinnie contends that he did not learn that the trial court lacked subject-matter jurisdiction until late 2005 or early 2006, and that he could not have discovered the relevant facts earlier. Opp. at ¶ 3.
Additional facts will be provided below where appropriate.
III ANALYSIS
Respondent has moved to dismiss the habeas petition on the grounds that Vinnie did not obtain First Circuit approval before filing it, and because his claims are time-barred. This court agrees that there is no jurisdiction in the District Court to address this second petition and that it should be dismissed. This court also concludes that the District Court cannot rule on the statute of limitations defense as it lacks jurisdiction over this matter in its entirety.
The Anti-terrorism and Effective Death Penalty Act of 1996, Pub. Law No. 104-132, 110 Stat. 1214 ("AEDPA") governs this petition. Under the AEDPA, before a petitioner may file a "second or successive" habeas corpus application under section 2254 "in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). "Under this paradigm, a second or successive habeas petition is not a matter of right — and the gatekeeping function belongs to the court of appeals, not to the district court." Libby v. Magnusson, 177 F.3d 43, 45 (1st Cir. 1999), and cases cited. Thus the "AEDPA's prior approval provision allocates subject-matter jurisdiction to the court of appeals by stripping the district court of jurisdiction over a second or successive habeas petition unless and until the court of appeals has decreed that it may go forward. This statutory directive means that a district court, faced with an unapproved second or successive habeas petition, must either dismiss it, or transfer it to the appropriate court of appeals." Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997) (internal citations omitted). "[W]hen a district court dismisses a second or successive petition without prejudice because the court of appeals has not approved its prosecution, and the petitioner appeals, the court of appeals may in its discretion treat the notice of appeal as a request for authorization to file a second or successive petition." Id. at 58. Here, Vinnie failed to obtain the prior approval of the First Circuit, and the District Court lacks jurisdiction to hear this petition.
Substantively, a "second or successive" petition raising claims that were not previously presented in a prior application must be dismissed unless (1) it relies on a new rule of constitutional law; or (2) the facts could not have been previously discovered through the exercise of due diligence and the facts establish "by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2244(b)(2). There is no opportunity for this court to address whether Vinnie's application meets this criteria, as that is an evaluation to be done by the Appeals Court. See Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (District court lacks jurisdiction to consider the merits of a second or successive petition).
Vinnie contends that this petition is not, in fact, a second or successive petition. This court disagrees. The statute does not define what constitutes a second or successive petition. However, the First Circuit has identified four circumstances in which a petition is not a second or successive petition, which include the following:
(1) where the later petition raises the same grounds as a previous petition that had been dismissed as premature; (2) where a state prisoner's later petition raises the same grounds as a previous petition that had been dismissed for failure to exhaust state remedies; (3) where the earlier petition terminated without a judgment on the merits; or (4) where the later petition attacks a different criminal judgment, such as where a prisoner who has successfully brought a first habeas claim is retried, reconvicted, and resentenced and then attacks the new judgment.Sustache-Rivera v. United States, 221 F. 3d 8, 12-13 (1st Cir. 2000) (internal citations omitted). Vinnie's petition does not fall into any of these categories.
Although Vinnie contends that the prior petition was not adjudicated on the merits, that is not the case. While Judge Zobel cited to principles governing review of the state court findings (such as the presumption of correctness of the findings of fact), these principles were all applied in connection with her evaluation of the underlying claim. The merits of Vinnie's first petition — which raised the question whether there was a constitutional violation arising out of the failure of the trial court to instruct on second degree murder — were fully addressed.
Similarly unavailing is Vinnie's claim that he is addressing a different judgment. As his petition makes clear, he is challenging his 1993 murder conviction. The fact that he has brought more post conviction motions after his first petition for habeas relief was denied does not alter that fact.
Finally, Vinnie's contention that he could not have discovered the relevant facts before filing his first petition does not change this court's conclusion. As an initial matter, given that Vinnie challenged the circumstances surrounding the appointment of his counsel in connection with his first motion for a new trial, his claim that the facts are newly discovered seems to be without merit. In any event, the issue whether newly discovered facts warrant allowance of a second or successive petition is to be decided by the First Circuit Court of Appeals, not this court.
The list of what does not constitute a second or successful petition as set forth in Sustache-Rivera is not exclusive. See Gonzalez v. United States, 135 F. Supp. 2d 112, 118 (D. Mass. 2001). However, there is nothing in Vinnie's new petition which calls into question the fact that the instant petition is a second petition being filed to challenge the same murder conviction as the first petition, albeit for different reasons. Therefore, the AEDPA has stripped this court of jurisdiction to evaluate the petition without permission from the First Circuit.
As noted above, the respondent has also moved to dismiss the petition on the grounds that it is untimely. However, because this court lacks subject matter jurisdiction over this case, it does not have jurisdiction to rule on whether the petition is time-barred. Id.