2005 | Cited 0 times | D. Massachusetts | November 4, 2005


In 1996, a Middlesex County grand jury indicted petitionerRosario Guzzi on two counts of intimidating a witness and fourcounts of violating a restraining order. (See Resp.'s Suppl.Answer Ex. 1). An additional indictment on two counts ofviolating a restraining order occurred in 1997. (See id. Ex.2). The Middlesex Superior Court consolidated these charges fortrial in 1997, and a jury found petitioner guilty on all counts.Six years later, petitioner filed an unsuccessful motion forreconsideration; the denial was subsequently affirmed by theAppeals Court of Massachusetts. See Comm. v. Guzzi,62 Mass. App. Ct. 1110 (2004). The Supreme Judicial Court denied furtherappellate review. (See Resp.'s Suppl. Answer Ex. 10).Petitioner filed the instant petition under 28 U.S.C. § 2254, andrespondent MCI-Shirley Superintendent Michael Thompson now movesto dismiss the petition as time-barred and containing unexhaustedclaims.

Habeas petitions must be filed within one year of the latestdate on which one of the following events occurred: (1) final judgment, (2) removal ofa state-imposed impediment to filing, (3) recognition by theUnited States Supreme Court of a constitutional right, or (4)discovery by petitioner of the factual predicate for a claim.See 28 U.S.C. § 2254(d)(1). As final judgment on petitioner'scharges obtained in September of 1997, the one-year deadline forfiling a habeas petition expired in 1998. His subsequent appealin 2003 failed to toll the statute of limitations, as heneglected to file it within one year of the final judgment date.See Delaney v. Matesanz, 264 F.3d 7, 11 (1st Cir. 2001).Thus, the instant petition, commenced in 2005, falls squarelyoutside the statute of limitations boundaries.

For purposes of evaluating the timeliness of his petition,petitioner suggests that the statute of limitations should runfrom occurrence of a state-imposed impediment to filing. (SeePet.'s Opp. 8, 11, 14-15). He characterizes this impediment as a"`Catch-22' situation" involving the Commonwealth and its allegedfailure to establish all elements of the crime with which he wascharged, its "misapplication of law to facts," conflict involvingMass. Gen. Laws ch. 277 § 34, and structural error. (See id.10-11). However, assuming arguendo that such an impedimentexisted, petitioner never explains how or why it operated toprevent him from submitting the instant petition before October1998.

Furthermore, petitioner offers no persuasive grounds forequitable tolling of the statute of limitations, especially assuch relief "is deemed justified only in extraordinarycircumstances." Delaney, 264 F.3d at 14 (denying equitabletolling where petitioner "waited over two years after hisconviction became final . . . to promulgate his first federal habeas petition . . . [and] did nothing during thatprotracted period to exhaust state remedies . . ."). Contrary topetitioner's urging, the fact that he is pro se does not rescuehis petition, as "the Constitution does not require courts toundertake heroic measures to save pro se litigants from thereadily foreseeable consequences of their own inaction." Id. at15.

Finding the instant petition to be time-barred rendersunnecessary an analysis of respondent's arguments regardingexhaustion.

Accordingly, respondent's motion to dismiss (#15 on the docket)is allowed, and judgment may be entered dismissing the petition(#2 on the docket). Petitioner's remaining pending motion toreconsider the appointment of counsel (#22 on the docket) is alsodenied.

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