United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION RE: RESPONDENT'S MOTION TO DISMISS (DOCKET ENTRY # 16)
MARIANNE B. BOWLER, Magistrate Judge.
Respondent Michael A. Thompson ("respondent"), superintendent of the Massachusetts Correctional Institute in Concord, Massachusetts ("MCI-Concord"), moves to dismiss a writ of habeas corpus filed by petitioner Kerr Carrington ("petitioner"), an inmate at MCI-Concord, under 28 U.S.C. § 2254 ("section 2254"). (Docket Entry # 15). Petitioner attacks his April 5, 2011 conviction for larceny, attempted larceny and uttering rendered in Massachusetts Superior Court (Suffolk County) ("the trial court"). Respondent submits that all three grounds raised in the petition present only state law claims. As to two of the three grounds, respondent additionally argues that they do not set out violations of federal constitutional law.
The grounds for relief in the pro se petition concern a six and a half month delay in the receipt of trial transcripts. The petition alleges that the Commonwealth violated an administrative order issued by the Chief Justice for Administration and Management of the Trial Court. The order establishes "time standards for the production of trial transcripts in civil and criminal cases... pursuant to the superintendence power of the Chief Justice for Administration and Management under G.L. c. 211B, § 9." (Docket Entry # 16-4). Specifically, it states that, "Within one hundred and twenty (120) days of the receipt of an order for a transcript, ... the court reporter shall deliver the transcript... to the clerk." (Docket Entry # 16-5).
The petition sets out the following three grounds: (1) "Given the effect of the recently enacted administrative order, the unlawful delay in the production of the trial transcripts breached [petitioner's] constitutional rights under Article 11 of the Massachusetts Declaration of Rights"; (2) "Given the breach of law caused by the inordinate delay, in contrast to the ordinary due process analysis, [petitioner] was not required to demonstrate prejudice"; and (3) "Due to incompetence, petitioner can meet the prejudice prongs required by the courts (if needed)." (Docket Entry # 1).
There is no indication that petitioner seeks an evidentiary hearing. Even if he did, a hearing is not warranted. Before allowing an evidentiary hearing, a federal "habeas judge must first consider whether such hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.'" Companonio v. O'Brien , 672 F.3d 101, 112 (1st Cir. 2012) (quoting Teti v. Bender , 507 F.3d 50, 62 (1st Cir. 2007)). The petitioner "must therefore demonstrate that his allegations would entitle him to relief and that the hearing is likely to elicit the factual support for those allegations." Id . (emphasis added).
Petitioner fails to articulate or posit facts that the record does not include and that, if elicited at an evidentiary hearing, would provide support for one or more grounds in the petition. It is also inappropriate to conduct an evidentiary hearing and consider new facts not before the state courts when conducting a section 2254(d)(1) analysis. See Garuti v. Roden , 733 F.3d 18, 22 (1st Cir. 2013) ("review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits'") (quoting Cullen v. Pinholster , 131 S.Ct. 1388, 1398 (2011)).
On December 11, 2011, a Suffolk County grand jury returned 41 indictments charging petitioner with committing larceny over $250, uttering false documents, attempting to commit larceny, identify fraud and uttering a counterfeit note. (Docket Entry # 16-3, pp. 8, 23-24). Trial commenced in March 2011. During the trial, the Commonwealth presented evidence that petitioner "engaged in multiple incidents in which he acquired, or attempted to acquire, expensive electronic equipment (typically high-end cameras) from various vendors without payment." Commonwealth v. Carrington, 2013 WL 6164468, at *1 (Mass.App.Ct. Nov. 25, 2013). Petitioner relied on forged checks, purchase orders and false identities to institute the schemes. Commonwealth v. Carrington, 2013 WL 6164468, at *1.
On April 5, 2013, the jury found him guilty of 13 counts of larceny over $250, nine counts of attempted larceny and 13 counts of uttering. On April 15, 2011, petitioner filed a timely notice of appeal. On May 5, 2011, he ordered the trial transcripts. On May 24, 2011, the Clerk notified the two court reporters. The first reporter completed her transcripts on November 7, 2011. The second reporter completed the remaining transcripts on November 14, 2011. On December 12, 2011, the trial court notified the parties and the Massachusetts Appeals Court ("the appeals court") of the completion of the record.
Because the 120 day time period in the administrative order ran on or about September 21, 2011, petitioner filed a motion to dismiss the charges and vacate the convictions on September 26, 2011. As set out in the supporting memorandum, petitioner sought dismissal "on state-law grounds" because more than "120 days have passed since the transcripts were ordered" in violation of the administrative order. (Docket Entry # 16-4). Alternatively, petitioner argued that the "inordinate delay" compromised his "Due Process right to a timely appeal." (Docket Entry # 16-4). On September 30, 2011, the trial court denied the motion.
Petitioner appealed the denial to the appeals court. On appeal, he argued that producing the transcripts more than 120 days after receipt violated the administrative order. This "unlawful delay" therefore violated petitioner's constitutional rights under Article 11 of the Massachusetts Declaration of Rights. In the alternative, petitioner argued that the failure to produce the transcripts within the 120 day time "breached [petitioner's] due process rights under the Fourteenth Amendment." (Docket Entry # 16-6). On September 26, 2012, the appeals court affirmed the trial court's denial of the motion to dismiss. Commonwealth v. Carrington, 2012 WL 4370128, *1 (Mass.App.Ct. Sept. 26, 2012).
In October 2012, petitioner filed an application for leave to obtain further appellate review ("ALOFAR") with the Massachusetts Supreme Judicial Court ("SJC"). The ALOFAR identifies two issues for appellate review. The first issue parrots ground one in this petition. It alleges that, "Given the effect of the recently enacted administrative order, the unlawful delay in the production of the trial transcripts breached [petitioner's] Constitutional rights under Article 11 of the Massachusetts Declaration of Rights, warranting a dismissal of the case." (Docket Entry # 12-4). The second issue is identical to ground two in this petition. On November 2, 2012, the SJC summarily denied the ALOFAR. (Docket Entry # 16-7).
Petitioner filed this petition less than one year later on September 16, 2013. Meanwhile, on November 25, 2013, the appeals court denied a direct appeal of the convictions. Two days later, the trial court denied a motion ...