United States District Court, D. Massachusetts
MICHAEL S. DONOVAN, Petitioner,
LISA MITCHELL, Superintendent, Respondent
Michael S. Donovan, Petitioner, Pro se, Bridgewater, MA.
For Lisa Mitchell, Respondent: Annette C. Benedetto, LEAD ATTORNEY, Department of Attorney General, Boston, MA.
REPORT AND RECOMMENDATION RE: MOTION TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS AS TIME BARRED (DOCKET ENTRY # 11)
MARIANNE B. BOWLER, United States Magistrate Judge.
Respondent Lisa Mitchell (" respondent"), Superintendent of the Old Colony Correctional Center (" OCCC") in Bridgewater, Massachusetts, moves to dismiss the above styled petition for writ of habeas corpus filed under 28 U.S.C. § 2254 (" section 2254") as untimely pursuant to 28 U.S.C. § 2244(d) (" section 2244(d)") of the Antiterrorism and Effective Death Penalty Act of 1996 (" the AEDPA"). Petitioner Michael S. Donovan (" petitioner"), an inmate at OCCC, attacks a 2000 conviction and sentence rendered in Massachusetts Superior Court (Worcester County) (" the trial court" or " the trial judge").
The single ground in the petition alleges that the trial judge erred in allowing the prosecution to dismiss the habitual offender portion of an Indictment charging aggravated rape. (Docket Entry # 1, p. 5). After the dismissal, the trial judge sentenced petitioner to a 25 to 40 year term on the conviction of the remaining charge, namely aggravated rape. By statute, the sentence created a parole eligibility date only after petitioner served the 25 year minimum sentence. See Mass. Gen. L. ch. 127, § 133 (" section 133"). Ground one alleges that the dismissal caused an " ambiguity between state statutes" and created " a double enhancement" of petitioner's " term of imprisonment." (Docket Entry # 1, p. 5). As explained in the supporting memorandum, petitioner received a life sentence as an habitual offender on another Indictment charging aggravated rape. (Docket Entry # 1, pp. 5, 28-29). Ordinarily, a defendant sentenced to life imprisonment as an habitual offender under Massachusetts General Laws chapter 279, section 25 (" section 25"), is eligible for parole after 15 years. See Mass. Gen. L. ch. 127, § § 133A, 133B; Burston v. Maloney, 2004 WL 856593, at *2 (Mass.Super.Ct. March 4, 2004). The 25 year minimum sentence for the indeterminate aggravated rape conviction thus extended the 15 year parole eligibility date on the life sentence by ten years thereby creating the purported " double enhancement." (Docket Entry # 1, pp. 5, 26-38).
On May 25, 2000, a jury convicted petitioner of two counts of aggravated rape in violation of Massachusetts General Laws chapter 265, section 22(a); three counts of indecent assault and battery on a person 14 years or older in violation of Massachusetts General Laws chapter 265, section 13H; one count of kidnapping in violation of Massachusetts General Laws chapter 265, section 26; and one count of threatening to commit a crime. The charges arose out of seven Indictments. (Docket Entry # 11-1, p. 10) (Docket Entry # 1-3, pp. 1-3). A portion of each Indictment carried " a separate allegation that petitioner was an habitual offender." (Docket Entry # 1-2, p. 7).
Before the trial judge conducted a jury waived trial on the habitual offender charges, the prosecution stated it was not going to proceed on the habitual offender portion of one of the aggravated rape Indictments, in particular, Indictment No. 99-0156-3. (Docket Entry # 1-3, pp. 6-7). Thereafter, the prosecution moved to dismiss the habitual offender portion of Indictment No. 99-0156-3, petitioner's counsel agreed to the dismissal and the trial judge allowed the motion. (Docket Entry # 1-3, p. 14) (Docket Entry # 11-1, p. 5). As a result, there was no trial or finding on the habitual offender portion of Indictment 99-0156-3. (Docket Entry # 1-3, pp. 10-11, 14). Thus, the trial judge held a bench trial on the habitual offender portions of the other Indictment charging aggravated rape (No. 99-0156-2), the three Indictments charging indecent assault and battery (No. 99-0156-4, No. 99-0156-5, No. 99-0156-6), the Indictment charging kidnapping (No. 99-0156-7) and the Indictment charging threatening to commit a crime (No. 99-0156-1). (Docket Entry # 1-3, pp. 10-11, 14). The trial judge found petitioner guilty of these remaining habitual offender charges.
On May 26, 2000, the trial judge sentenced petitioner to life imprisonment on the conviction for aggravated rape that carried the habitual offender finding, Indictment No. 99-0156-2. (Docket Entry # 1-3, p. 24). Aggravated rape carries a sentence of " life or . . . any term of years." Mass. Gen. L. ch. 265, § 22(a). Section 25, the habitual offender statute, mandates that an habitual offender " shall be punished by imprisonment in state prison or state correctional facility for such felony for the maximum term provided by law." Mass. Gen. L. ch. 279, § 25. Consequently, petitioner received the maximum sentence of life imprisonment.
The trial judge sentenced petitioner to a minimum term of 25 years and a maximum term of 40 years on the conviction for aggravated rape that did not carry the habitual offender finding, Indictment No. 99-0156-3. (Docket Entry # 1-3, pp. 24-25). The trial judge sentenced petitioner to four and a half to five years on each of the three convictions for indecent assault and battery which carried the habitual offender findings, Indictment Nos. 99-0156-4, 99-00156-5 and 99-0156-6. (Docket Entry # 1-3, p. 25). Petitioner received a nine and a half to ten year sentence on the kidnapping conviction. (Docket Entry # 1-3, p. 25). On direct appeal, the Massachusetts Appeals Court (" the appeals court") vacated the kidnapping conviction as wholly included in the aggravated rape conviction. Commonwealth v. Donovan, 58 Mass.App.Ct. 631, 792 N.E.2d 657, 658 n.1 (Mass.App.Ct. 2003). The conviction for threatening to commit a crime was placed on file with petitioner's consent. (Docket Entry # 1-3, p. 25).
On May 31, 2000, the Massachusetts Department of Corrections (" DOC") issued petitioner a copy of his sentence listing for the aggravated rape conviction carrying the habitual offender finding with respect to Indictment No. 99-0156-2. (Docket Entry # 1, pp. 23, 48). The listing showed a parole eligibility date of July 18, 2013, for the life sentence. Nine days later on June 9, 2000, petitioner received an amended sentence listing setting July 14, 2023, as the parole eligibility date for the life sentence. (Docket Entry # 1, p. 23) (Docket Entry # 1-1, p. 3).
On June 21, 2000, petitioner filed for review of the 25 to 40 year sentence on Indictment No. 99-0156-3 in the Appellate Division of the Superior Court (" ADSC"). (Docket Entry # 11-1, pp. 6-7). The trial court's docket reflects that petitioner withdrew the filing to review the sentence on July 24, 2001. (Docket Entry # 11-1, p. 6). In any event, the docket also shows that the ADSC " heard and reviewed" the sentence and then dismissed the appeal on August 4, 2005. (Docket Entry # 11-1, p. 7).
On June 23, 2000, petitioner filed a timely notice of appeal of the convictions. On July 30, 2003, the appeals court upheld the convictions except for the kidnapping conviction. Petitioner filed an application for further appellate review (" ALOFAR") in the Massachusetts Supreme Judicial Court (" the SJC"). On September 5, 2003, the SJC denied the application. Commonwealth v. Donovan, 440 Mass. 1102, 795 N.E.2d 573 (Mass. 2003).
On September 12, 2003, petitioner, represented by counsel, filed a motion " to revise and revoke sentence" under Rule 29 of the Massachusetts Rules of Criminal Procedure (" Rule 29"). (Docket Entry # 11-1, p. 7). The motion did not attach an affidavit or include a memorandum of reasons. Instead, petitioner requested " that no action be taken until supporting affidavit is filed." (Docket Entry # 11-1, p. 7). The docket fails to reflect that petitioner subsequently ...