Opinion
Civil Action No. 98-11514-RGS
November 6, 2001
REPORT AND RECOMMENDATION RE: MOTION FOR RELIEF FROM JUDGMENT (DOCKET ENTRY # 45)
On August 2, 2001, three years after the district judge's Order dismissing this petition for writ of habeas corpus due to the failure of petitioner Gordon C. Reid ("petitioner") to exhaust state court remedies (Docket Entry # 37), petitioner filed a motion for relief from the Order under Rule 60(b)(5) and (6) ("Rule 60(b)"), Fed.R.Civ.P. (Docket Entry # 45). Having unsuccessfully appealed the Order to the First Circuit, petitioner now asks this court to vacate the dismissal Order and stay this action while he exhausts state court remedies.
Petitioner bases the motion on the Supreme Court's June 18, 2001 opinion, Duncan v. Walker, ___ U.S. ___, 121 S.Ct. 2120 (2001) (holding that federal habeas petition "is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)"), and the effect of the one year limitation period of the Antiterrorism and Effective Death Penalty Act of 1996 ("the AEDPA"), 28 U.S.C. § 2244(d)(1), on his ability to refile a federal habeas petition once he exhausts state court remedies. Respondents John Marshall and Michael Maloney ("respondents") did not file a response to the motion (Docket Entry # 45) which is now ripe for review.
PROCEDURAL BACKGROUND
Petitioner began his effort to obtain federal habeas relief on January 21, 1997, when he filed a petition attacking his April 1995 assault and battery conviction on the basis of the violation of his constitutional rights by Massachusetts' inordinate delay in processing his direct appeal, the denial of his right to proceed pro se in that appeal and various errors made during trial. (Docket Entry ## 1, 35 44). In September 1997 the district judge dismissed the petition without prejudice due to petitioner's failure to exhaust state court remedies with the caveat that petitioner could renew the petition if the appeal was not decided in ten months. Petitioner appealed the dismissal to the First Circuit which denied petitioner a certificate of appealability in May 1998.
In July 1998 petitioner filed this renewed petition reasserting the previous grounds and adding a fifth claim of trial error. (Docket Entry # 1, Ex. H; Docket Entry # 35). Petitioner additionally alleges that his appellate counsel rendered constitutionally ineffective performance by failing to argue the claims of trial error. (Docket Entry # 44).
In July 1999 the district judge provisionally adopted this court's May 1999 recommendation to dismiss the petition without prejudice due to petitioner's failure to exhaust state court remedies notwithstanding the state's delay in producing transcripts and processing petitioner's direct appeal. In lieu of allowing respondents' motion to dismiss, the July 1999 Order required the parties to confirm the status of petitioner's direct appeal.
Again dissatisfied with the result, petitioner sought reconsideration and amendment of the petition. In response to the July 1999 Order, the parties confirmed that the Massachusetts Appeals Court had affirmed petitioner's conviction. Accordingly, on August 2, 1999, the district judge denied the motions for reconsideration and amendment and dismissed the petition. (Docket Entry # 37).
On August 27, 1999, petitioner attempted a second appeal to the First Circuit and sought a certificate of appealablity with respect to the August 2, 1999 dismissal. Meanwhile, on May 28, 1999, the Massachusetts Supreme Judicial Court ("the SJC") denied petitioner's request for further appellate review. Commonwealth v. Reid, 712 N.E.2d 98 (Mass. 1999). The AEDPA's limitation period therefore began to run in late May 1999 inasmuch as the majority view is that there is no tolling during the 90 day period, see Sup. Ct. Rule 13, in which a petitioner can petition for a writ of certiorari from the Supreme Court. See Mayne v. Hall, 122 F. Supp.2d 86, 94 (D.Mass. 2000). Notwithstanding petitioner's knowledge of the availability of a motion under Rule 30, Mass.R.Crim.P., as advised by this court in May 1999 (Docket Entry # 27), petitioner made no effort to file a motion for a new trial in state court until after the First Circuit terminated the appeal in March 2001.
Petitioner avers that, "Since the termination of my appeal, I have filed a motion for new trial raising two of the unexhausted claims which I set forth in my habeas action." (Docket Entry # 45, Attached Affidavit) (emphasis added). The affidavit implies that petitioner did not file the Rule 30 motion until the First Circuit denied the appeal.
Of course, the filing of such a motion in late May 1999 would toll the limitation period under section 2244(d)(2), preserve petitioner's ability to refile a federal petition in this court and obviate the need for reopening these proceedings and entering a stay. Given the record before this court, the limitation period expired in late May 2000.
Section 2244(d)(2) of the AEDPA tolls the one year period during the time a "properly filed" post-conviction state application for collateral review is "pending." 28 U.S.C. § 2244(d)(2); Gaskins v. Duval, 183 F.3d 8, 9-10 (1st Cir. 1999). Section 2244(d)(2) provides that:
The time period during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d)(2). At the time the SJC denied further appellate review, the majority of courts held that the limitation period was not tolled during the pendency of a federal habeas petition. See Jones v. Morton, 195 F.3d 153, 158-159 (5th Cir. 1999) (collecting cases most of which issued before May 28, 1999). Although by the time the Supreme Court decided Duncan the second and tenth circuit considered the period tolled, see Duncan v. Walker, 121 S.Ct. at 2124, the Supreme Court confirmed the majority view that under section 2244(d)(2) a federal petition does not toll the limitation period. The decision therefore resolved a conflict in the circuits but did not work a controlling change in the law governing this petition.
Petitioner seeks to bypass the effect of the AEDPA's statute of limitation and his own failure to file a state application for collateral review through the Rule 60(b)(5) and (6) motion.
DISCUSSION
At the outset, this court recognizes that stays are the preferable course in mixed petitions where a dismissal jeopardizes a petitioner's ability to later refile a federal habeas after exhaustion. The First Circuit approves of this approach, albeit in dicta, see DeLaney v. Matesanz, 264 F.3d 7, 14 n. 5 (1st Cir. 2001), and the second and seventh circuits endorse this view. Zarvela v. Artuz, 254 F.3d 374, 382 (2d Cir. 2001) ("petition should have been stayed, with only unexhausted claims dismissed" because, with little time remaining on the "one year limitations period, a complete dismissal `jeopardized the timeliness of a collateral attack'"), petition for cert. filed, (U.S. Sept. 24, 2001) (No. 01-502); Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000) ("dismissal is not proper when that step could jeopardize the timeliness of a collateral attack").
It is true that the present petition is not mixed inasmuch as the constitutional claims regarding the delay are mooted, petitioner has no constitutional right to self-representation in a direct criminal appeal and he did not present the five trial error claims to the state courts in his direct appeal. (Docket Entry # 44). Because the AEDPA gives courts the power to proceed to the merits and dismiss an unexhausted petition, see 28 U.S.C. § 2254(b)(2), however, courts logically retain the authority to stay an unexhausted petition while the petitioner returns to state court to exhaust state court remedies.
Had petitioner requested a stay prior to the entry of the August 2, 1999 final order of dismissal, this court would have viewed the request for a stay in a more favorable light. Petitioner, however, made a deliberate choice not to exhaust state court remedies within one year of the SJC's May 1999 decision and, instead, rely solely on the hope that the First Circuit would overturn the district court and excuse him from returning to state court.
Petitioner moves for a stay under Rule 60(b)(5) and (6). As an unconditional and final order dismissing the petition without prejudice, the August 2, 1999 Order falls within the reach of Rule 60(b). See Lehman v. Revolution Portfolio, L.L.C., 166 F.3d 389, 392 (1st Cir. 1999); see generally 12 Moore's Federal Practice § 60.23 (2000) (Rule 60(b) only applies to final judgments or orders). In addition, because the court dismissed the petition without prejudice due to lack of exhaustion, the Rule 60(b) motion should not be construed as a second or successive petition subject to the gatekeeping provision of section 2244(b). Dismissals without prejudice due to lack of exhaustion do not convert numerically second federal petitions into "second or successive application[s]" within the meaning of 28 U.S.C. § 2244(b)(3)(A). See Sustache-Rivera v. United States, 221 F.3d 8, 12-13 (1st Cir. 2000), cert. denied, ___ U.S. ___, 121 S.Ct. 1364 (2001); Pratt v. United States, 129 F.3d 54, 60 (1st Cir. 1997). The Rule 60(b) motion is therefore not the functional equivalent of a second or successive petition and should not be construed as such. Cf. Felker v. Turpin, 101 F.3d 657, 660-661 (11th Cir. 1996) (collecting cases construing Rule 60 motions as successive petitions); see Burris v. Parke, 130 F.3d 782, 783-784 (7th Cir. 1997); see also United States v. Rich, 141 F.3d 550, 551-552 (5th Cir. 1998).
Rule 11, 28 U.S.C. foll. § 2254, provides that the Federal Rules of Civil Procedure apply to section 2254 proceedings "to the extent" such rules "are not inconsistent with [the Rules Governing Section 2254 Cases in the United States District Courts]."
Turning to the propriety of allowing relief from the final dismissal order, the First Circuit takes a "harsher track" than other courts in reviewing Rule 60(b) motions. Davila-Alvarez v. Escuela De Medicina Universidad Central Del Caribe, 257 F.3d 58, 63-64 (1st Cir. 2001). Thus, "Rule 60(b) relief is `extraordinary relief' reserved for `exceptional circumstances,' given the countervailing interest in the finality of such orders." Paul Revere Variable Annuity Insurance Company v. Zang, 248 F.3d 1, 5 (1st Cir. 2001); accord Davila-Alvarez v. Escuela De Medicina Universidad Central Del Caribe, 257 F.3d at 64; see also Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 59 v. Superline Transportation Company, Inc., 953 F.2d 17, 20 (1st Cir. 1992) (Rule 60(b) relief unavailable unless movant demonstrates, inter alia, "existence of exceptional circumstances justifying extraordinary relief").
As to relief under Rule 60(b)(5), the August 1999 Order has not been reversed, vacated or discharged within the meaning of this clause. Accordingly, this court turns to whether "it is no longer equitable that the [final dismissal order] should have prospective application." Rule 60(b)(5), Fed.R.Civ.P. Petitioner's case falls well outside the kind of cases with which the clause "is particularly concerned, such as institutional reform litigation." Paul Revere Variable Annuity Insurance Company v. Zang, 248 F.3d at 7. Unlike petitioner's circumstances, institutional reform litigation typically involves "long-term supervision of changing conduct or conditions" where the prospective requirements of a decree "may be rendered inappropriate by unforeseen changes in circumstances subsequent to the entry of the order." Paul Revere Variable Annuity Insurance Company v. Zang, 248 F.3d at 7.
In short, the final dismissal Order lacks the necessary "prospective application" required under the clause. A dismissal order has "prospective application" within the meaning of the fifth clause "when it `is "executory" or involves "the supervision of changing conduct or conditions."'" United States v. Kayser-Roth Corporation, Inc., 103 F. Supp.2d 74, 79 (D.R.I. 2000). The August 1999 Order, however, dismissed the petition without making any declaration of rights or issuing injunctive relief. See generally DeWeerth v. Baldinger, 38 F.3d 1266, 1275-1276 (2d Cir. 1994). It merely fixed the rights of the parties and did not leave them subject to a determination in the future. See United States v. Kayser-Roth Corporation, Inc., 103 F. Supp.2d at 79 (judgment has "prospective application" where "it does not fix all of the rights and liabilities of the parties and leaves some of those rights and liabilities to be determined on the basis of future events"). The effect of the dismissal, to wit, that it requires petitioner to exhaust state court remedies before returning to federal court, is simply the collateral result of the order. See United States v. Kayser-Roth Corporation, Inc., 103 F. Supp.2d at 79-80.
Even if this court considered the merits, any injustice wrought by the August 1999 dismissal and petitioner's concomitant failure to timely pursue state court remedies and thereby toll the limitation period under section 2244(d)(2) is not extreme. Petitioner retains the ability to obtain review of his claims in state court through a Rule 30 motion (Docket Entry # 44) and can later seek an equitable exception to the limitation period in any numerically second federal petition. See Paul Revere Variable Annuity Insurance Company v. Zang, 248 F.3d at 8 (noting that any "injustice" was "not so extreme" because appellants retained "right to pursue their claims on the merits in the pending arbitration proceedings").
This court expresses no opinion on the merits of making such an equitable exception.
In addition, as noted above, petitioner is partly at fault for his predicament. He needs a stay because he chose to await the results of his appeal to the First Circuit rather than also file a Rule 30 motion during the pendency of that appeal in the year following the SJC's May 1999 order. The policy that a party must live "with the consequences of freely made, calculated decisions reached for strategic reasons" unquestionably applies to the fifth clause of Rule 60(b) and petitioner's circumstances. See Paul Revere Variable Annuity Insurance Company v. Zang, 248 F.3d at 8.
Petitioner's attempt to obtain a re-opening of the dismissal and a concomitant stay is equally unavailing under Rule 60(b)(6). The catchall provision of the sixth clause only applies to relief that is "not encompassed by the other provisions of the rule." Paul Revere Variable Annuity Insurance Company v. Zang, 248 F.3d at 5. Petitioner complains, in part, about the expiration of the limitation period during his appeal of the August 1999 final Order. (Docket Entry # 45, p. 2). As such, his complaint is encompassed by Rule 60(b)(1) as neglect. See, e.g., Warren v. Garvin, 219 F.3d 111, 114-115 (2d Cir.) (characterizing the petitioner's failure to timely refile federal habeas or pursue state claims as "garden variety neglect"), cert. denied, 531 U.S. 968 (2000). Inasmuch as Rule 60(b)(6) only applies if Rule 60(b)(1) does not, Liljeberg v. Health Services Acquisition Corporation, 486 U.S. 847, 863 n. 11 (1988); Chang v. Smith, 778 F.2d 83, 85 (1st Cir. 1985), the sixth clause does not provide petitioner with a means to vacate the August 1999 dismissal.
Relief under the first clause is also time barred. Petitioner cannot use the sixth clause as a means to avoid the one year period applicable to Rule 60(b)(1). See Warren v. Garvin, 219 F.3d at 114; Geo P. Reintjes Company, Inc. v. Riley Stoker Corporation, 71 F.3d 44, 46-47 (1st Cir. 1995) (recognizing issue and questioning ability of litigant to circumvent time constraints in subsections (2) and (3) by the unlimited clause in Rule 60(b)); Cotto v. United States, 993 F.2d 274, 278 (1st Cir. 1993).
Motions under the first three clauses of Rule 60(b) must be filed within one year of the judgment or order. See Chang v. Smith, 778 F.2d 83, 85-86 (1st Cir. 1985). As the rule states, motions under the fifth and sixth clauses, however, must be made within a reasonable time. Cotto v. United States, 993 F.2d 274, 278 (1st Cir. 1993). "[T]he time during which an appeal is pending is counted when determining whether a motion was filed within a reasonable time." Nucor Corporation v. Nebraska Public Power District, 999 F.2d 372, 374 (8th Cir. 1993).
In addition, like the fifth clause, the sixth clause "does not provide relief from `free, calculated [and] deliberate choices.'" Chang v. Smith, 778 F.2d at 86 (quoting Ackerman v. United States, 340 U.S. 193, 198 (1950)); Paul Revere Variable Annuity Insurance Company v. Zang, 248 F.3d at 5 (discretionary power to allow relief under "Rule 60(b)(6) is not for the purpose of relieving a party from such `free, calculated, and deliberate' choices made as part of a strategy of litigation"). Petitioner made a deliberate choice not to preserve federal review by filing a Rule 30 motion in state court following the SJC's May 28, 1999 decision. Rather, he made the strategic choice of relying solely on a successful appeal to the First Circuit.
Petitioner's reliance on Duncan, which made the argument for a stay more likely to succeed, as well as Kilburn v. Maloney, 2001 WL 1040423 at *1 (Aug. 31, 2001), as a means to obtain relief is also misplaced. Changes in the law typically do not warrant relief under Rule 60(b)(6). See Biggins v. Hazen Paper Company, 111 F.3d 205, 212 (1st Cir. 1997) (citing Polites v. United States, 364 U.S. 426, 433 (1960)); DeWeerth v. Baldinger, 38 F.3d 1266, 1272-1274 (2d Cir. 1994) (mere change in decisional law does not constitute extraordinary circumstance subject to relief under Rule 60(b)(6)). Furthermore, like the decisions at issue in Polites, the aforementioned authority relied upon by petitioner did not alter the law governing this case. See Polites v. United States, 364 U.S. at 433 437. This court had the authority to issue a stay prior to the Duncan and Kilburn decisions. The decisions did not, therefore, work the necessary clear and authoritative change in the law governing this case. See Polites v. United States, 364 U.S. at 433.
See footnote number two.
While Justice Souter's concurring opinion in Duncan strengthened the merits of a petitioner's request to stay proceedings pending exhaustion, see Duncan v. Walker, 121 S.Ct. at 2130 (Souter, J., concurring), the practice was not unknown before Duncan. Although employed predominantly in death row cases to stay an execution, see generally 1 James S. Liebman Randy Hertz Federal Habeas Corpus Practice § 4.4a n. 16 (1998), stays in federal habeas actions for other purposes constituted viable alternatives to dismissal. See Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998).
Weighing the reasons petitioner advances for reopening the dismissal order, they do not justify disturbing the finality of the August 1999 Order. See generally Paul Revere Variable Annuity Insurance Company v. Zang, 248 F.3d at 5 (courts should weigh "reasons advanced for reopening the judgment against the desire to achieve finality"). Principles of finality gain even further strength where, as here, petitioner filed an appeal and the First Circuit denied a certificate of appealability.
CONCLUSION
In accordance with the foregoing discussion, this court RECOMMENDS that petitioner's Motion for Relief from Judgment (Docket Entry # 45) be DENIED.
Any objections to this Report and Recommendation must be filed with the Clerk of Court within ten days of receipt of the Report and Recommendation to which objection is made and the basis for such objection. Any party may respond to another party's objections within ten days after service of the objections. Failure to file objections within the specified time waives the right to appeal the district court's order. See United States v. Escoboza Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); United States v. Valencie-Copete, 792 F.2d 4, 6 (1st Cir. 1986).