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Thompson v. Gelb

United States District Court, D. Massachusetts

December 2, 2014

DAVID THOMPSON, Petitioner,
v.
BRUCE GELB, Respondent

David Thompson, Petitioner, Pro se, Shirley, MA.

For Bruce Gelb, Respondent: Kris C. Foster, Attorney General's Office, Boston, MA.

Page 126

MEMORANDUM & ORDER

Nathaniel M. Gorton, United States District Judge.

This habeas corpus petition, filed bye petitioner David Thompson (" Thompson" or " petitioner" ), arises out of his conviction for armed robbery and malicious destruction of property in March, 2009 in the Massachusetts Superior Court for Essex County in Salem, Massachusetts. Petitioner alleges that the state prosecution violated the 180-day speedy trial provision under Article III of the Interstate Agreement on Detainers Act (" IAD" ) such that his motion to dismiss was improperly denied. Because the Court finds that petitioner's claim is not cognizable under 28 U.S.C. § 2254, Thompson's habeas corpus petition will be dismissed.

I. Background

A. State Court Proceedings

In July, 2008, petitioner was indicted on two counts of armed robbery, both in violation of M.G.L. c. 265, § 17, two counts of stealing by confining or putting a person in fear, both in violation of M.G.L. c. 265, § 21 and one count of malicious destruction of property over $250, in violation of M.G.L. c. 266, § 127. All of the counts stem from a July, 2005 robbery of a CVS pharmacy in Georgetown, Massachusetts, in which petitioner stole $3,000 in cash and a safe containing controlled substances.

In June, 2008, Petitioner, then incarcerated in Maine for an unrelated offense, requested final disposition of his Massachusetts indictment pursuant to the IAD (" IAD request" ). The Superior Court for Essex County and the Essex County District Attorney's Office both received petitioner's IAD request on June 23, 2008. Pursuant to the speedy trial provision of the IAD, the state prosecutor then had

Page 127

until December 22, 2008 to begin petitioner's trial unless good cause for a reasonable continuance was shown.

On October 9, 2008, petitioner was transported from Maine to Massachusetts for his arraignment, pursuant to the IAD. At arraignment, petitioner's counsel moved for trial that same day. The judge declined to set a trial date and instead granted the Commonwealth a continuance through November 5, 2008 to allow it to file a motion to obtain petitioner's DNA. The Commonwealth was granted a second continuance through December 11, 2008 specifically to obtain and test a buccal swab of petitioner's DNA.

Petitioner's counsel objected to both continuances on speedy trial grounds pursuant to Mass. R. Crim. P. 36 (" Rule 36" ). Indeed, before granting the second continuance on November 5, 2008, the judge specifically asked petitioner's counsel whether his objections and requests for an immediate trial were based upon Rule 36, to which counsel responded, " [c]orrect." At no time did petitioner's counsel inform the court that the 180-day time limitation under the IAD was at issue.

At the pretrial conference on December 11, 2008, petitioner's counsel again moved for an immediate trial. Due to session limitations and the scheduling of other significant cases, the judge scheduled petitioner's trial for March 17, 2009. Again, ...


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