Bermudez v. Roden

2016 | Cited 0 times | D. Massachusetts | July 26, 2016

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS JOSUE ROBLES BERMUDEZ, * *

Petitioner, * * v. * Civil Action No. 14-cv-10257-IT * GARY RODEN, * * Respondent. *

MEMORANDUM AND ORDER

July 26, 2016 TALWANI, D.J.

I. Introduction Petitioner Josue Robles Bermudez has filed a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus [#1], arguing that he is being held in violation of the Fourteenth Amendment because the entence he could have received deprived him of the right to make a knowing and voluntary plea. Respondent Gary Roden opposes the petition as time-barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d) and on the merits. For the reasons explained below, the Petition for Writ of Habeas Corpus is DENIED.

II. Background

A grand jury indicted Bermudez on two counts of trafficking cocaine, one count of distributing cocaine, three counts of conspiracy to violate drug law, and two counts of inducing a minor to distribute drugs. Bermudez pleaded guilty to the two trafficking charges and two of the conspiracy charges. The prosecution entered a nolle prosequi on the other four counts. During plea colloquy, the trial judge stated that the maximum sentence for each count was fifteen years, telling Petitioner e prospect of sixty years in See count was, in fact, twenty years. On August 2, 2006, the judge sentenced Petitioner to concurrent terms of twelve to fifteen years on each conviction.

On August 11, 2006, Petitioner filed a notice of appeal. SA 8-9. Later that month, on First Motion to W to Massachusetts Rules of Criminal Procedure 30(b). SA 8. The judge denied this motion five

days later on August 29, 2006. SA 8. On June 26, 2008, Petitioner withdrew his appeal. SA 8-9.

More than three years later, on September 20, 2011, Petitioner again moved to withdraw Second Motion to W . SA 101-02. The Second Motion to Withdraw was denied on September 28, 2011. SA 101.

Almost nine months later, on June 19, 2012, Petitioner filed an amended Second Motion to Withdraw his plea . SA 101. The Superior Court denied the amended Second Motion to Withdraw on June 27, 2012. SA 87. Petitioner appealed the denial of his amended Second Motion to Withdraw his plea to the Massachusetts Appeals Court. On May 24, 2013, the Appeals Court affirmed the denial, substanc

Commonwealth v. Bermudez, 987 N.E.2d 620 (Table) (Mass. App. Ct. May 24, 2013) (citations and quotation marks omitted). On July 3, 2013, Petitioner applied for further appellate review to the Massachusetts Supreme Commonwealth v. Bermudez, 994 N.E.2d 800 (Table) (Mass. Sept. 11, 2013). Petitioner then filed his petition for writ of habeas corpus for a person in state custody pursuant to 28 U.S.C. § 2254 in this court on January 27, 2014.

III. Discussion

A. Timeliness of Petition Under the Antiterrorism and abeas corpus petitions are subject to a one- judgment became final by the conclusion of direct review or the expiration of time for seeking such revie 1

filed application for State . . . collateral review with respect to the pertinent judgment or claim is

2

The tolling provision of § 2244(d)(2) does clock on the limitations period . . . Trapp v. Spencer, 479 F.3d

53, 59 (1st Cir. 2007), abrogated on other grounds by Holland v. Florida, 560 U.S. 631, 649 (2010). Accordingly, § 2244(d)(2) cannot revive a time period that has already expired. Cordle v. Guarino, 428 F.3d 46, 48 n.4 (1st Cir. 2005).

Petitioner filed a notice of appeal nine days after sentencing and a Rule 30(b) motion a few days later. Under Massachusetts law, the validity of a guilty plea may be attacked through a Rule 30(b) motion. See Commonwealth v. Fernandes, 459 N.E.2d 787, 788 (Mass. 1984) (noting [a] (citation and quotation omitted)). The judge denied this motion five days later on August 29,

1 The other dates on which the statute of limitations can begin to run under 28 U.S.C. § om filing his petition. 28 U.S.C. § 2244(d)(1)(B). § 2244(d)(1)(C), (d)(1)(D). 2 State procedural laws are used to determine whether an application for review of a claim is Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). 2006, SA 8, and Petitioner did not seek further review by an appeal of that order as permitted under Rule 30(c)(8). Instead, Petitioner withdrew his previously filed appeal on June 26, 2008, and sought no further review during the one year period that followed. Accordingly, the time for Petitioner to have filed his petition here extended no later than June 26, 2009.

Had Petitioner filed his second Rule 30(b) motion before June 26, 2009, the Rule 30(b) motion would be treated as a form of collateral review which tolls the statute of limitations for AEDPA purposes. See e.g. Holmes v. Spencer, 685 F.3d 51, 57 (1st Cir. 2012) (treating Rule 30(b) motion as a form of collateral review which tolled the statute of limitations for AEDPA purposes); see also David v. Hall, 318 F.3d 343, 343 (1st Cir. 2003) permissible form of collateral attack But Petitioner did not file his second Rule 30(b) Motion until 2011 (and then refiled it as an amended Second Motion to Withdraw in 2012). This late filing does not restart the clock under AEDPA. See Delaney v. Matesanz, 264 F.3d 7, 11 (1st Cir. 2001) did not toll the one-year statute of limitations because petitioner filed it after the statute of limitations had already run); see also Dunker v. Bissonnette, 154 F. Supp. 2d 95, 103 (D. Mass. 2001) (stating that granting a petitioner the right to revive an limitations).

Nor can the statute of limitation bar be circumvented by treating the Rule 30(b) motion as seeking direct review. In Massachusetts, a Rule 30(b) motion is the proper way to challenge a guilty plea, and at any time if it appears that justice may not have been done. (emphasis added). In this District, a majority of courts have nonetheless treated the motions as seeking collateral, rather than direct, review. See Turner v. Massachusetts, No. 12-12192-FDS, 2013 WL 3716861, at *3 (D. Mass. July 11, 2013) (Saylor, D.J.) (noting the inconsistency on the issue and adopting the position that treating a Rule 30(b) motion as direct review would undermine the purposes of finality and prompt habeas review); Davis v. Roden, No. 11-10694-MLW, 2013 WL 1339682, at *3 (D. Mass. Mar. 29, 2013) (Wolf, D.J.) (finding that a Rule 30(b) motion to withdraw a guilty plea is and Seaver v. Spencer, No. 06-11150-RWZ, 2007 WL 851245, at *2-3 (D. Mass. Mar. 20, 2007) (Zobel, J.) (treating a motion for a new trial as collateral review and stating that a motion for new trial does not reset the statute of limitations clock). A few decisions have considered a Rule 30(b) motion as seeking direct review, Sepulvada v. Roden, No. 11-11491-JLT, 2012 WL 4324407, at *3 (D. Mass. Aug. 16, 2012) (Boal, M.J.) (using the date the SJC denied review of 30(b) motion for a new trial as the date on which the statute of limitations began running) adopted by 2012 WL 4324404 (D. Mass. Sept. 19, 2012) (Tauro, D.J.)); and Mack v. Dickhaut, 770 F. Supp. 2d 429, 433 (D. Mass. 2011) (Tauro, D.J.) (treating a Rule 30(b) motion as direct Even in those cases that have treated a Rule 30(b) motion as a direct appeal, however, there is no support for using a second Rule 30(b) motion to reopen a final judgment after the expiration of the time to appeal the denial of the first Rule 30(b) motion.

A statute of limitations may also be tolled for other reasons, none of which are warranted exceptional doctrine of equitable tolling. Homes, 685 F.3d at 62. The petitioner bears the burden of

establishing the grounds for equitable tolling. Id. In doing so, the petitioner must demonstrate Id. (quoting Holland, 560 U.S. at 649).

Petitioner has not presented any basis for the court to equitably toll the statute of limitations. Section 18 of the Petition, titled and requesting an explanation for why the one-year statute of limitations does not bar the Petition, is blank. See Pet. 13 [#1]. Furth -year period in which he took no legal action regarding

his case. See Neverson v. Farquharson, 366 F.3d 32, 43 (1st Cir. 2004) (finding an unexplained three-year delay in filing a habeas petition a reason to not equitably toll the statute of limitations habeas petition sooner. See Lattimore v. Dubois, 311 F.3d 46, 55 (1st Cir. 2002) (stating that equitable tolling is reserved caused the delay in filing). Finally, courts are also less likely to grant equitable tolling when there is little likelihood is the case here. See Brackett v. United States, 270 F.3d 60, 71 (1st Cir. 2001) (presenting the 28 U.S.C. § 2255 s statute of limitations).

For the foregoing reasons, the Petition is untimely and there is no basis to toll the statute of limitations.

B. Merits of Petition Even if the Petition were timely, the court would deny the Petition on the merits. A person in state in custody in violation of the 28 U.S.C. § 2254(a). A federal court may grant a habeas petition when the state court adjudication resulted in a decision that was contrary to or involved unreasonable application of clearly established federal law, or the decision was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d).

may grant a habeas petition if the state court applied a rule contradicting governing Supreme Williams v. Taylor, 529 U.S. 362, 405 (2000). A federal court may

court applied the correct legal principle based on Supreme Court jurisprudence, but applied it unreasonably Id. at 413. An unreasonable application be more than incorrect, and a reviewing court must review Harrington v. Richter, 562 U.S. 86, 101 (2011).

Petitioner argues that, as a result of the j 12(c)(5). 3

Petitioner states that he would have chosen to go to trial rather than accept the plea had he known the penalties to which he was potentially subjected. See Mem. Supp. Pet. Writ Habeas Corpus [#16]. The clearly established Supreme Court law regarding guilty pleas provides a defendant s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process. . . . McCarthy v. United States, 394 U.S. 459, 466 (1969).

3 Petitioner cites Mass. R. Crim. P. 12(c)(3)(B), but appears to be referring to Mass. R. Crim. P. 12(c)(3)(A)(ii), which requires the judge to inform the defendant of the consequences of a plea during the plea colloquy, or 12(c)(5), which requires the judge to make findings that a plea is knowing and voluntary before accepting it. Mass. R. Crim. P. 12(c)(3)(B) requires the prosecution to present the factual basis for the charge. relevant circumstances surrounding it Brady v. United States, 397 U.S. 742, 749 (1970).

identified the legal standard for See

Commonwealth v. Bermudez, 987 N.E.2d 620 (Table) (Mass. App. Ct. May 24, 2013)

Petitioner must show that although the Massachusetts Appeals Court identified the correct legal principle regarding the validity this standard to the facts of his case. Petitioner argues that his plea was not knowing and

voluntary because he did not know the maximum penalties he potentially faced, and that he would have proceeded to trial had the judge accurately stated the maximum statutory penalties. See Mem. Supp. Pet. Writ Habeas Corpus [#16]. The Appeals Court determined that the trial judfailure to correctly state the maximum possible sentence ly, and voluntarily . . Commonwealth v. Bermudez, 987 N.E.2d 620 (Table) (Mass. App. Ct. May 24, 2013) (citation omitted). This determination was not unreasonable, because the judge still sentenced Petitioner within the range he stated (twelve to fifteen years per count) rather than to the actual statutory maximum (twenty years per count), Thus, the actual consequences he faced in pleading guilty did not exceed the erroneous minimum he was told. This fact his appeal to the Massachusetts Appeals Court. See, e.g., United States v. Santo, 225 F.3d 92,

100 (1st Cir. 2000) (concluding that the defendant likely misjudged the consequences of his plea minimum he was told); see also United States v. Hernandez-Wilson, 186 F.3d 1, 6 (1st Cir. 1999) (allowing withdrawal of a guilty plea on the grounds that it was not knowing and voluntary because the district judge told the defendant he was eligible for a lighter sentence than he actually was). Therefore, Petitioner has not demonstrated that the Appeals Court unreasonably applied clearly established federal law and there is no merit to his Petition.

IV. Conclusion For the foregoing reasons, the Petition for the Writ of Habeas Corpus [#1] is DENIED. IT IS SO ORDERED. Date: July 26, 2016 /s/ Indira Talwani United States District Judge

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