Opinion
C.A. No. 00-055 ML.
April 27, 2000.
Bernardo Figueroa, pro se.
Report and Recommendation.
This matter is before the court on the application of the pro se petitioner, Bernardo Figueroa, for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The petitioner seeks relief from a Rhode Island state court adjudication where he was convicted of second degree murder. In the present application, the petitioner challenges his conviction on the basis of prosecutorial misconduct and ineffective assistance of trial counsel.
This matter has been referred to me for review and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons set forth below, I recommend that the instant petition be denied and dismissed. I have determined that no hearing is necessary.
I. Background
On October 12, 1990, a Providence County Superior Court jury convicted the petitioner of second degree murder in the death of his wife, Susan Joubert Figueroa. Following his conviction, the petitioner timely appealed to the Rhode Island Supreme Court, contending that the trial justice erred by failing to grant a mistrial after a witness made a prejudicial remark and that the trial justice erred in her instruction to the jury on the evidence of flight. The Supreme Court disagreed with both of petitioners contentions and affirmed his conviction. State v. Figueroa, 673 A.2d 1084 (R.I. 1996).
Petitioner first appealed his conviction to the Rhode Island Supreme Court on February 22, 1991. However, due to several changes in appellate counsel, his appeal was not heard until December 7, 1995, with a decision being rendered on April 15, 1996.
On January 5, 1998, petitioner filed an application for post conviction relief in the Rhode Island Superior Court. Petitioner then contended that his trial counsel was ineffective and alleged prosecutorial misconduct. The Superior Court dismissed that application on May 15, 1998. Petitioner appealed the dismissal of his post conviction relief application to the Rhode Island Supreme Court. On March 3, 2000, petitioner voluntarily withdrew that appeal. The Supreme Court, therefore, never rendered a decision on the merits of his appeal.
Petitioner is now before the court on an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The Antiterrorism and Effective Death Penalty Act of 1996, Public Law No. 104-132, effective April 24, 1996, provides that" [b]efore a second or successive petition permitted by this section is filed 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).
Petitioner here has filed two other applications for a writ of habeas corpus. The first, C.A. No. 93-599, attacked the conviction for which he is incarcerated. However, that habeas petition was never decided on the merits. Rather, it was disposed of by a stipulation agreement between the parties involved. The second application, C.A. No. 99-160 ML, did not attack the conviction for which he is incarcerated and was also disposed of by a stipulation agreement between the parties. Second or successive applications, for 2244(b)(3)(A) purposes, are applications filed after a previous application was fully adjudicated on the merits. See e.g. Felker v. Turnin, 518 U.S. 651, 655-658, 662-63, 116 S.Ct. 2333 (1996); See also Dickerson v. Maine, 101 F.3d 791, 791 (1st Cir. 1996). In both of Figueroa's prior petitions, neither one was adjudicated on the merits. Both were disposed of via stipulation agreements. Accordingly, this instant petition is Figueroa's first within the meaning on § 2244.
II. Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Public Law No. 104-132, effective April 24, 1996, provides, inter alia, for a statute of limitations for § 2254 petitions. As amended by AEDPA, § 2244 imposes a one year limitation on the filing of petitions by persons in state custody. Section 2244 provides:
(d)(1) A one year period of limitation shall apply to an applicant for a writ of habeas corpus by a person in custody pursuant to the judgement of a state court. The limitation period shall run from the latest of
(A) the date on which the conviction became final by the conclusion of direct review or expiration of the time seeking such review.
A conviction becomes final for purposes of § 2244(d)(1)(A) upon completion of certiorari proceeding in the United States Supreme Court, or, if certiorari was not sought, the expiration of the time for filing such a petition. See e.g. Smith v. Bowersox, 159 F.3d 345, 347-348 (8th Cir. 1998), cert. denied, 525 U.S. 1187 (1999); Wilson v. Greene, 155 F.3d 396, 400 (4th Cir. 1998), cert. denied, 525 U.S. 1912 (1998); Rose v. Artuz, 150 F.3d 97, 98 (2nd Cir. 1998).
Here, petitioner Figueroa appealed his conviction to the Rhode Island Supreme Court. The Rhode Island Supreme Court affirmed his conviction on April 15, 1996. State v. Figueroa, 673 A.2d 1084. Thereafter, he had ninety days to petition for a writ of certiorari to the United States Supreme Court. 28 U.S.C. § 2101(c); Sup.Ct. R. 13(1). However, no petition was ever filed. Thus, for time limitation purposes, Figueroa's conviction became final on July 15, 1996, when his time expired to seek direct review with the United States Supreme Court.
Applying the one year period of limitations imposed on habeas petitions pursuant to § 2244(d)(1)(A), Petitioner's instant habeas petition is time barred. Petitioner's conviction became final on July 16, 1996. Thereafter, he had until one year to file his federal habeas petition, or until July 15, 1997. This Figueroa did not do. He did not file the instant petition until February 9, 2000. Accordingly, he is time barred from proceeding in this instant action.
Title 28, Section 2244(d)(2) of the United States Code provides: "The time during which a properly filed application for State post-conviction relief 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." See e.g. Gaskin v. Duval, 183 F.3d 8 (1st Cir. 1999). Here, petitioner filed his state collateral attack on January 5, 1998, well after the time had already expired to file a petition for federal habeas relief.
III. Conclusion
For the reasons stated above, I recommend that the petitioner's application for a writ of habeas corpus be denied and dismissed. 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 a waiver of both the right to review by the district court and the right to appeal the district court's decisions. 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).Jacob Hagopian United States Magistrate Judge
April 27, 2000