MARTINEZ v. WALL

2003 | Cited 0 times | D. Rhode Island | July 15, 2003

Report and Recommendation

Petitioner Francisco Martinez, pro se, has filed with this Court a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his 1993 conviction of first degree murder and assault with a dangerous weapon. The Attorney General of the State of Rhode Island, designated a party respondent, has objected to the petition based upon a flurry of grounds, including that the petition is barred in part by the applicable time limitations period. This matter was referred to me for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

After a review of the petition, and of the relevant statutes, this writer issued an Order directing the petitioner to show cause why the entire petition should not be dismissed as time-barred. The Court also directed the Attorney General to provided a response to the petitioner's assertions.

After a review of the submissions made by the petitioner, and of submissions made by the Attorney General, I recommend that Martinez's instant habeas corpus petition be denied and dismissed. I have determined that a hearing is not necessary.

Background

On February 3, 1993, a Providence County Superior Court jury convicted the petitioner, Francisco Martinez, of first degree murder and assault with a dangerous weapon. The trial justice sentenced the petitioner to life imprisonment on the murder charge and twenty years, fifteen suspended, on the assault with a dangerous weapon charge. Petitioner appealed his conviction to the Rhode Island Supreme Court, contending: (1) the venire was tainted; (2) the trial judge erred when she admitted impeachment evidence; and (3) the trial justice erred in the jury instructions. On January 18, 1995, the Rhode Island Supreme Court affirmed Martinez's conviction.

Petitioner thereafter filed an application for post conviction relief ("PCR") in the state Superior Court in September 1997, claiming: (a) his confession was involuntary; (b) potential exculpatory evidence - handwritten notes of a detective and an audio tape of the assault victim- was destroyed;1 and (c) ineffective assistance of trial counsel. Following a hearing, a Superior Court justice denied his application on January 25, 2000. No appeal was timely filed. Petitioner, however, filed an appeal on May 22, 2000. The state Supreme Court affirmed on October 10, 2002, finding the appeal was untimely, and in any event, without merit.

On December 26, 2002, petitioner filed the instant petition for a writ of habeas corpus. As a basis for relief, he contends: (1) the venire was tainted; (2) the trial judge erred when she admitted impeachment evidence; (3) the trial justice erred in the jury instructions; (4) his confession was involuntary; (5) exculpatory evidence (police officer's notes and the victim's audio tape) was destroyed; (6) ineffective assistance of trial counsel; (7) ineffective assistance of appellate counsel; (8) the trial justice should have recused herself; and (9) counsel should have been appointed at a post conviction relief evidentiary hearing.

The Attorney General has moved to dismiss grounds (1) through (3) as time barred. As to grounds (4) through (9), the Attorney General has moved to dismiss for a variety of reasons. However, this Court directed the petitioner to show cause why the entire petition should not be dismissed as time barred. The petitioner filed a response to the show cause order.

Discussion

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110 Stat. 1217, provides for a statute of limitations for habeas petitions. See 28 U.S.C. § 2244(d). As amended by AEDPA, Section 2244(d) provides:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to a judgement of a State court. The limitation period shall run from the latest of-

(A) the date on which the judgement became final by the conclusion of direct review or the expiration of time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1).

Section 2244(d)(1) provides four trigger points from which to calculate the time limitations period. Here, no constitutional impediment created by state action is present, nor is there any newly recognized Constitutional right. Claims 1 through 8 were all readily available to the petitioner upon completion of his trial and/or direct review with the Rhode Island Supreme Court. Accordingly, as the time limitations period applies to claims (1) through (8), the applicable portion of § 2244(d)(1) is subsection (A). That subsection provides that the time limitations period begins to run on the date when the conviction becomes final. As discussed in Rogers v. United States, 180 F.3d 349, 351-352 (1st Cir. 1999), a conviction becomes final when the Supreme Court denies an application for certiorari on direct review. When a petitioner does not seek certiorari with the Supreme Court on direct review, the conviction becomes final at the expiration of the ninety day period in which he could have filed a petition for certiorari.

The Rhode Island Supreme Court affirmed Martinez's conviction on January 18, 1995. Thereafter, he had ninety days, or until April 18, 1995, to file a writ of certiorari with the United States Supreme Court. He did not do so. Thus, Martinez's conviction became final on April 18, 1995, when the time expired for him to seek review in the United States Supreme Court.

For convictions that become final prior to AEDPA's effective date of April 24, 1996, the Court of Appeals for the First Circuit has construed AEDPA to encompass a one year grace period within which state prisoners may file federal habeas petitions. Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999). Accordingly, Martinez had until April 24, 1997 to file an application for federal habeas relief. Martinez, however, did not file an application for federal habeas relief until December 26, 2002.

The next question presented is whether any tolling occurred. Pursuant to 28 U.S.C. § 2244(d)(2), "the time 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 [section 2244(d)]." See 28 U.S.C. § 2244(d)(2). Here, Martinez asserts that his state PCR petition was filed sometime in 1995. In support of this assertion, Martinez identifies a transcript of his PCR hearing where a state court judge stated that "accompanying the original application [for post conviction relief] was a request for the appointment of counsel filed back in September of 1995." See Respondent's Exhibit B, at 2. This statement, however, does not indicate that his PCR petition was filed in 1995, but rather that Martinez filed a motion for the appointment of counsel in 1995. In fact, the record clearly indicates that Martinez's PCR petition was filed in the state court in September of 1997. See Petitioner's Exhibit page 1, R.I. Superior Court Docket Sheet (indicating Petitioner's Motion for Post Conviction Relief was filed in September 1997); See also Petitioner's Exhibit page 26, Pro se "Notice of Appeal" filed May 12, 2000 with the Rhode Island Superior Court (same). Accordingly, I find his assertion that his PCR petition was filed in the state courts in 1995 disingenuous and wholly without merit. Martinez's PCR petition was properly filed in the state courts in September of 1997.

Although § 2244(d)(2) tolls the limitation period during which a properly filed state post conviction relief petition is pending, - here from September 1997 through October 25, 2002, the one year grace period already expired on April 24, 1997. Accordingly, his petition, as it relates to claims (1) through (8). is time barred.

The Attorney General, in his objection, contends that only the first three issues are time barred. The Attorney General appears to suggest that since his state post conviction relief petition was not resolved until 2002, the claims made in that post conviction relief petition are within the one year limitation period. The Attorney General misapplies § 2244(d)(1). AEDPA expressly establishes that the limitation period applies "to an application for a writ of habeas corpus" and runs from "the date on which the judgement becomes final . . ." 28 U.S.C. § 2244(d)(1)(A) (emphasis added). "It clearly applies to the entire habeas petition and runs from the date on which the judgment that the habeas petition attacks became final." See Sweger v. Chesney, 294 F.3d 506, 514 (3rd Cir. 2002). The petitioner may bypass this hurdle only if he can demonstrate another subsection of 2244(d)(1) is applicable. Here, as mentioned above, claims (1) through (8) were all readily available to the petitioner upon completion of his trial or direct review with the state supreme court. Accordingly, claims (1) through (8) fall within the limitation of § 2241(d)(1)(A) and are time barred.

Martinez's ninth claim, however, is not encompassed within § 2244(d)(1)(A). As his last claim for habeas relief, Martinez's asserts that the he was not provided with an attorney during his state post conviction relief hearing. This event fails to meet the time limitation period set forth above since the factual predicate of the claim occurred on October 25, 2000. See 28 U.S.C. § 2244(d)(1)(D) (the time limitation period runs from the date when the factual predicate of the claim could have been discovered). However timely, this claim is of no help to the petitioner. This claim fails to provide a basis for federal habeas relief because the petitioner has failed to assert a constitutional violation. It is well settled the prisoners have no constitutional right to an attorney during post conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551 (1987); Ross v. Moffin, 417 U.S. 600 (1974). Any attorney that the state courts may provide to the petitioner during such collateral proceedings is a matter of grace and is not of a constitutional dimension. Accordingly, this issue fails to sustain a claim for federal habeas relief. See 28 U.S.C. § 2254(a) (A federal court may entertain a writ of habeas corpus only on the ground that the petitioner is in custody in violation of the Constitution or laws of the United States).

Conclusion

Accordingly, for the reasons stated above, I recommend that the instant petition 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 waiver of both the right to review by the district court and the right to appeal the district court's decision. 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).

1. Prior to the alleged destruction, the contents of the notes and the audio tape were transcribed into a police report that was available to the petitioner at trial. Petitioner apparently claims that the police report omitted statements that could possibly have been used to impeach the witness-victim.

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