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Donovan v. Mitchell

United States District Court, D. Massachusetts

December 23, 2014

MICHAEL S. DONOVAN, Petitioner,
v.
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).[1] 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).

BACKGROUND

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.[2] (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.[3] (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 filed an affidavit to support the motion. (Docket Entry # 11-1). Two years later, petitioner filed a second Rule 29 motion on

September 7, 2005. This time, the motion included an affidavit and a supporting memorandum. Because the motion was untimely, see Mass.R.Crim.P. 29(a), petitioner also filed a motion to file the Rule 29 motion late. On September 13, 2005, the trial judge denied both motions. (Docket Entry # 11-1, p. 7). Petitioner did not appeal the decision.

Nearly two years thereafter, on July 19, 2007, petitioner filed a motion for a new trial under Rule 30(b) of the Massachusetts Rules of Criminal Procedure (" Rule 30(b)"). (Docket Entry # 1, p. 4) (Docket Entry # 11-1, p. 7). The trial court denied the motion on December 10, 2009. (Docket Entry # 1, p. 4) (Docket Entry # 11-1, p. 8). On January 31, 2011, the appeals court affirmed the trial court's decision. Commonwealth v. Donovan, 2011 WL 284937 (Mass.App.Ct. Jan. 31, 2011). Petitioner filed an ALOFAR with the SJC. The SJC denied the application on April 1, 2011. Commonwealth v. Donovan, 459 Mass. 1109, 944 N.E.2d 1044 (Mass. 2011).

On September 3, 2010, petitioner filed a motion to correct an illegal sentence with the trial court. The Associate Justice conducted a hearing on the motion on September 30, 2010.[4] (Docket Entry # 1, p. 4) (Docket Entry # 11-1, p. 9). The motion raised the issue that petitioner presents in the section 2254 petition. (Docket Entry # 1-2, pp. 8-9). During the hearing, the Associate Justice allowed petitioner's counsel to withdraw and serve as standby counsel. Reasoning that petitioner never was convicted as an habitual offender under section 25 with respect to the aggravated rape conviction on Indictment No. 99-0156-3, the Associate Justice upheld the legality of the sentence and denied the motion. (Docket Entry # 1-2, pp. 14-15) (Docket Entry # 11-1, p. 9). On October 14, 2010, petitioner filed an appeal. (Docket Entry # 11-1, pp. 9-10). In a Memorandum and Order dated March 25, 2013, the appeals court addressed the merits and affirmed the decision to deny the motion. (Docket Entry # 1-2, pp. 20-25). The opinion described the appeal as presenting " only a question of law." (Docket Entry # 1-2, pp. 20-25). On July 25, 2013, the SJC denied an ALOFAR petitioner filed seeking review of the appeals court's ruling. Petitioner filed this petition in January 2014.

DISCUSSION

As noted above, respondent seeks to dismiss the petition as untimely. Under the AEDPA, a one year limitations period applies to section 2254 petitions. 28 U.S.C. § 2244(d)(1); Allen v. Siebert, 552 U.S. 3, 4, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007). Under section 2244(d)(1)(A), the one year period begins to run on " the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1); [5] Trapp v. Spencer, 479 F.3d 53, 58 (1st Cir. 2007) (quoting section 2244(d)(1)(A)). Accordingly, the one year period began to run on December 4, 2003, after the SJC concluded direct review on September 3, 2003, and the 90 day period for filing a petition for certiorari review expired. See Cordle v. Guarino, 428 F.3d 46, 48 (1st Cir. 2005) (" SJC affirmed Cordle's convictions on March 11, 1992; her convictions became final ninety days thereafter"). Petitioner correctly concedes that the convictions " became final in 2003." (Docket Entry # 1, p. 14).

Under section 2244(d)(2), habeas petitioners receive the benefit of a provision which tolls the one year period during the time a " properly filed" post-conviction or other form of collateral review is " pending." 28 U.S.C. § 2244(d)(2); Pace v. DiGuglielmo, 544 U.S. 408, 410, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). In order to encourage exhaustion of state court remedies while still protecting the need for finality, see Carey v. Saffold, 536 U.S. 214, 222, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002) (section 2244(d)(2) " protect[s] the principles of 'comity, finality, and federalism, ' by promoting 'the exhaustion of state remedies while respecting the interest in the finality of state court judgments'"); Duncan v. Walker, 533 U.S. 167, 178, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (section 2244(d)(2) " balances the interests served by the exhaustion requirement and the limitation period"), section 2244(d)(2) excludes the time period during the pendency of a properly filed application with the following language:

The time period 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 this subsection.

28 U.S.C. § 2244(d)(2) (emphasis added). The plain language does not extend tolling to a federal petition petitioner filed in February 2005 (Docket Entry # 1, p. 3). Duncan v. Walker, 533 U.S. at 181-182 (" an application for federal habeas corpus review is not an 'application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)").

At the time the convictions became " final" on December 4, 2003, two state court " applications" remained " pending." 28 U.S.C. § 2242. First, there was the " motion to revise or revoke sentence" under Rule 29 filed on September 12, 2003, by counsel. (Docket Entry # 11-1, p. 7). Second, there was the notice of appeal to the ADSC seeking review of the sentence on Indictment No. 99-0156-3 filed on June 5, 2000. (Docket Entry # 11-1, p. 6). Although respondent did not file either application, the trial court's docket adequately reflects the applications.

First Circuit jurisprudence since 2009 is straight forward regarding the effect of these state applications.[6] Turning to the Rule 29 motion, a 2012 First Circuit decision holds " that a motion to revise or revoke sentence under Massachusetts Rule of Criminal Procedure 29(a) constitutes a request for 'State post-conviction or other collateral review' within the meaning of AEDPA." Holmes v. Spencer, 685 F.3d 51, 60 (1st Cir. 2012) (interpreting section 2244(d)(2)). Prior to Holmes, a 2009 First Circuit decision explained that the term " pertinent judgment" in section 2244(d)(2) includes and extends to a petitioner's sentence that challenges the legality of the sentence or simply sets out a plea for leniency. Kholi v. Wall, 582 F.3d 147, 152-153, 156 (1st Cir. 2009), aff'd, 562 U.S. 545, 131 S.Ct. 1278, 179 L.Ed.2d 252 (2011).

The question remains whether the Rule 29(a) motion was " properly filed" within the meaning of section 2244(d)(2). An application for post-conviction review or for collateral review " is ' properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000) (emphasis in original). These laws and rules " usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee." Id. Massachusetts law therefore guides the analysis of whether the Rule 29 motion is properly filed. Holmes v. Spencer, 685 F.3d at 60 (to determine whether Rule 29 " motion was properly filed, we must look to Massachusetts law") (citing Artuz v. Bennett, 531 U.S. at 8).

Massachusetts law requires a supporting affidavit or a reason to support a Rule 29 motion filed within the 60 day time period. Mass.R.Crim.P. 29(b) (if defendant files Rule 29 motion, " he shall file and serve" affidavit to support the motion); see Commonwealth v. DeJesus, 440 Mass. 147, 795 N.E.2d 547, 549 (Mass. 2003). In DeJesus, the defendant filed a Rule 29 motion that " did not include a supporting affidavit, nor did it provide any reasons." Id. Because the motion lacked support by affidavit or by including a reason, the court deemed it " inadequate for purposes of [Rule 29]" and " therefore not properly filed within the rule's time limit, and the District Court judge did not have jurisdiction to consider it." Id. Rule 29 does not allow " a defendant to file a revise and revoke motion and then, at some unspecified time later, to file supplemental affidavits that activate the originally filed motion." Commonwealth v. Hernandez, 2007 WL 1663010, at *1 (Mass.App.Ct. June 8, 2007) (summarizing argument by defendant and rejecting it as " novel construction" of Rule 29) (unpublished); see also Holmes v. Spencer, 685 F.3d at 61 (citing Commonwealth v. Hernandez, 2007 WL 1663010, at *1).

In the case at bar, petitioner, represented by counsel, filed the Rule 29 motion without an affidavit or a memorandum of reasons. Instead, petitioner requested " that no action be taken until supporting affidavit is filed." (Docket Entry # 11-1, p. 7). Such a " novel construction" of Rule 29 does not comport with the filing requirements of Massachusetts law. Commonwealth v. Hernandez, 2007 WL 1663010, at *1; see Commonwealth v. DeJesus, 795 N.E.2d at 549. Hence, because the September 2003 Rule 29 motion was not " properly filed" within the meaning of section 2244(d)(2), it cannot serve as a basis to toll the one year limitations period.

Examining the ADSC proceeding, an appeal of a sentence that attacks the legality or seeks discretionary leniency of a sentence constitutes " review" of a " pertinent judgment" within the meaning of section 2244(d) thus raising the prospect of tolling.[7] Kholi v. Wall, 582 F.3d at 152-153. Nevertheless, it is not necessary to determine if the ADSC proceeding is a tolling event under section 2244(d)(2) because even if it is, see, e.g., Foster v. Maloney, 2003 WL 345351 (D.Mass. Feb.14, 2003), the ADSC decided the appeal and upheld the " sentences" on August 4, 2005. (Docket Entry # 11-1, p. 7). Thereafter, with no " properly filed" pending application to toll the limitations period and no appeal from an ADSC decision, see Mass. Gen. L. ch. 278, § 28B, the one year time period ran uninterrupted until it expired on August 4, 2006.[8]

" 'Section 2244(d)(2) only stops, but does not reset, [the AEDPA] clock from ticking and cannot revive a time period that has already expired.'" Cordle v. Guarino, 428 F.3d at 48 n.4. It was not until July 2007 that petitioner filed the second Rule 29 motion, this time with an affidavit and a memorandum in support. The filing post dates the running of the limitations period and, therefore, does not restart the clock.

Petitioner, however, argues that " the legality" of the sentences only " came to light in 2009." (Docket Entry # 1, p. 14). Section 2244(d)(1)(D) provides another basis besides the " conclusion of direct review" under section 2244(d)(1)(A) to commence the limitations period. The section triggers the start of the one year period on " 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)(D) (emphasis added). As an attempt to start the one year time period in 2009 under section 2244(d)(1)(D), petitioner's argument lacks merit.

The First Circuit interprets " § 2244(d)(1)(D)'s reference to the phrase 'factual predicate' to mean 'evidentiary facts or events[, ] and not court rulings or legal consequences of the facts.'" Holmes v. Spencer, 685 F.3d at 59. As elucidated in the supporting memorandum to the petition, petitioner's reference to 2009 as a triggering event refers to the " fact" that he wrote a letter to the DOC computation unit in February 2009 and that the DOC computation unit wrote to the trial court on July 17, 2009, stating it " was in receipt of a mittimus" from " petitioner, which did not conform to M.G.L. c. 279, § 24, § 25." (Docket Entry # 1, p. 24). Petitioner also points out that the DOC computation unit sent the trial court " a follow-up letter, dated June 29, 2010, (R. 5) addressing the need for petitioner's sentence(s) to be brought into compliance with governing statutes." [9] (Docket Entry # 1, p. 24).

The interrelationship between the sentences and petitioner's parole eligibility date under the relevant state statutes, however, is not a " factual predicate" for the claim presented in the section 2254 petition. See generally id. The DOC computation unit's letter in 2009 is similar to a court ruling. The amended sentence listing informed petitioner of the factual predicate of the July 14, 2023 parole eligibility date in June 2000. (Docket Entry # 1-1, p. 3). Indeed, petitioner admits that, beginning in June 2000, he " made numerous informal inquiries into what statutory authority the DOC was applying when calculating his parole eligibility." (Docket Entry # 1, p. 23). Thus, by June 2000, the factual predicate for the claim, i.e., the parole eligibility in July 2023 as opposed to July 2013, was known to petitioner. Simply stated, the legal basis for the parole eligibility date is not a " factual predicate" for the claim within the meaning of section 2244(d)(1)(D). Section 2244(d)(1)(D) therefore fails to provide a start date for the one year limitations period.

The only remaining basis to avoid the limitations bar is through the equitable tolling doctrine, see Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010), or the miscarriage of justice exception based upon actual innocence, see McQuiggin v. Perkins, 133 S.Ct. 1924, 1933, 185 L.Ed.2d 1019 (2013). Neither principle applies.

As to the former, a petitioner is entitled to equitable tolling only " if he shows '(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland v. Florida, 130 S.Ct. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. at 418). Petitioner bears the burden of establishing his entitlement to equitable tolling. Holland v. Florida, 130 S.Ct. at 2562; Neverson v. Farquharson, 366 F.3d 32, 41 (1st Cir. 2004) (petitioner " bears the burden of establishing the basis" for equitable tolling).

Even assuming the presence of reasonable diligence, extraordinary circumstances are decidedly absent. Petitioner's incarceration or his lack of legal training does not justify equitable tolling.[10] Holmes v. Spencer, 685 F.3d at 62-63. Moreover, " [T]he 'extraordinary circumstance' must be one that actually caused the untimely filing." Id. at 62 (emphasis in original). For example, simply receiving bad advice from counsel, " regardless of its level of alleged incompetence, " does not stand in the way and prevent a timely filing. Id.; see also Drew v. MacEachern, 2010 WL 3505045, *7 (1st Cir. 2010) (" '" a garden variety claim of excusable neglect, " such as a simple " miscalculation" that leads a lawyer to miss a filing deadline, does not warrant equitable tolling'") (unpublished). Petitioner fails to identify any extraordinary circumstance that caused an inability to file this petition in a timely manner. Furthermore, the decision on the merits by the appeals court (Docket Entry # 1-2, pp. 20-25) evidences that the claim in the petition lacks merit. See Trapp v. Spencer, 479 F.3d at 61 (court may consider, as a factor, the " fact that equitable tolling is not available in cases of dubious merit").

As to the miscarriage of justice exception to the AEDPA's statute of limitations, it " applies to a severely confined category: cases in which new evidence shows 'it is more likely than not that no reasonable juror would have convicted the petitioner.'" McQuiggin v. Perkins, 133 S.Ct. at 1933 (internal brackets omitted). Here, the facts found by the appeals court and presumed correct, 28 U.S.C. § 2254(e)(1), belie any suggestion of actual innocence.

Those facts are as follows. On July 9, 1998, the victim, a 16 year old high school student, took a walk at 11:00 p.m. in the town of Leominster, Massachusetts. Commonwealth v. Donovan, 792 N.E.2d at 659. While walking on a sidewalk, " a man jumped out from behind some bushes, grabbed her" and " put a hunting knife to her throat." Id. He also " told her, 'Don't scream or I'll kill you.'" Id.

He then dragged her to a dark-colored pick-up truck that was parked at the corner, put her hands behind her back, and placed handcuffs on her wrists. He drove her to a remote, fenced-in location, told her to do what he said or he would kill her, and forced her to engage in a number of sexual acts which she testified were all without her consent. Afterwards, he told her that he knew where she lived and knew her family, and that if she did anything, he or his friends would go after her; he added that his friends " will be mad at me for not bringing you to them to share you." He drove her to the corner of Twelfth and Mechanic Streets, made further threats, and then took the key out of the truck's ignition and used a handcuff key on the key ring to remove the handcuffs.
When the victim got home, she was screaming and hysterical. She told her friend, at whose family's house she was living, that she had been handcuffed, kidnapped, and raped. The friend testified to the red marks around her wrists and her condition and statements. He called the police, who also observed the pressure marks on the victim's wrists and took her statements regarding the rape. The victim was taken to Leominster Hospital. The treating physician testified to the victim complaining of pain and injury to her wrists, and the medical records introduced at trial indicated abrasions to the wrists. Hospital personnel examined the victim and collected evidence for a sexual assault kit.

Id.

The Commonwealth's evidence included " the victim's identification of the defendant's tattoos and jewelry, as well as objects found inside his pick-up truck, which he used to transport the victim to [the] remote area where the rape occurred." Id. At trial, petitioner did not contest that he had sex with the victim and relied on consent as a defense. Id. at 659, 660. Defense counsel impugned the credibility and the motives of the victim on cross examination. Id. at 660. " Defense counsel also elicited testimony regarding the lack of bruises or red marks appearing in photographs taken of the victim's wrists." Id.

In light of the foregoing, a reasonable juror would have easily convicted petitioner of aggravated rape as well as indecent assault and battery. In other words, the record fails to show that it is " 'more likely than not that no reasonable juror would have convicted the petitioner.'" McQuiggin v. Perkins, 133 S.Ct. at 1933.

CONCLUSION

In accordance with the foregoing discussion, this court RECOMMENDS[11] that the motion to dismiss (Docket Entry # 11) be ALLOWED and that the petition be dismissed with prejudice as time barred.


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