United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON RESPONDENT'S MOTION TO DISMISS
LEO T. SOROKIN, District Judge.
Petitioner Miguel Moure filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. No. 1. The respondent has moved to dismiss the petition. Doc. No. 7. Because the petition is untimely under 28 U.S.C. § 2244(d), the respondent's motion is ALLOWED, and the petition is DISMISSED.
On December 11, 1995, a jury in the Hampden County Superior Court convicted Moure of being an accessory before the fact to murder. Doc. No. 1 at 1. He was sentenced to life imprisonment without the possibility of parole. Id . Moure appealed, and the Massachusetts Supreme Judicial Court affirmed his conviction on November 4, 1998. Doc. No. 8-2 at 2; Commonwealth v. Moure, 701 N.E.2d 319, 325 (Mass. 1998).
Almost fourteen years later, on October 15, 2012, Moure filed a motion seeking a new trial in state court. Doc. No. 8-1 at 2. That motion was denied on March 8, 2013. Id. at 3. Moure appealed that denial to a single justice of the Supreme Judicial Court, who denied the petition on September 30, 2013. Doc. No. 8-3 at 1-2.
Moure filed his federal habeas petition on September 8, 2014. Doc. No. 1. In it, he asserts two claims for relief. First, he argues that his Sixth Amendment right to a public trial was violated when the public was excluded from voir dire of potential jury members. Id. at 5. Second, he asserts that his trial counsel was ineffective in his failure to object to the exclusion of the public during jury selection. Id. at 7. Moure states that he did not challenge the exclusion of the public or the inefficacy of his trial counsel on direct appeal, but points to the ineffective assistance of his appellate counsel as the cause of his failure to raise those claims at that time. Id. at 6-7.
The respondent moved to dismiss the petition on the ground that Moure's petition is untimely under the statute of limitations contained within 28 U.S.C. § 2244(d). Doc. No. 8 at 2. The respondent further argues that there are no circumstances that warrant equitable tolling of the statute of limitations. Id. at 4. Moure has opposed the motion to dismiss. Doc. No. 9.
Moure's petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Pursuant to AEDPA, a habeas petition filed "by a person in custody pursuant to the judgment of a State court" is governed by "[a] 1-year period of limitation, " running "from the latest of":
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the 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). AEDPA further provides that "[t]he 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 ...