United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Talwani United States District Judge
Josue Robles Bermudez has filed a Petition under 28
U.S.C. § 2254 for Writ of Habeas Corpus [#1], arguing
that he is being held in violation of the Fourteenth
Amendment because the trial judge’s misstatement of the
maximum possible sentence he could have received deprived him
of the right to make a knowing and voluntary plea. Respondent
Gary Roden opposes the petition as time-barred by the
one-year statute of limitations set forth in 28 U.S.C. §
2244(d) and on the merits. For the reasons explained below,
the Petition for Writ of Habeas Corpus is DENIED.
jury indicted Bermudez on two counts of trafficking cocaine,
one count of distributing cocaine, three counts of conspiracy
to violate drug law, and two counts of inducing a minor to
distribute drugs. Bermudez pleaded guilty to the two
trafficking charges and two of the conspiracy charges. The
prosecution entered a nolle prosequi on the other
Petitioner’s plea colloquy, the trial judge stated that
the maximum sentence for each count was fifteen years,
telling Petitioner that “you are facing the prospect of
sixty years in state prison.” See
Resp’t’s Supp. Answer [“SA”] 57
[#11]. The maximum statutory sentence per count was, in fact,
twenty years. On August 2, 2006, the judge sentenced
Petitioner to concurrent terms of twelve to fifteen years on
August 11, 2006, Petitioner filed a notice of appeal. SA 8-9.
Later that month, on August 24, 2006, he filed a motion to
withdraw his plea (“First Motion to Withdraw”)
pursuant to Massachusetts Rules of Criminal Procedure 30(b).
SA 8. The judge denied this motion five days later on August
29, 2006. SA 8. On June 26, 2008, Petitioner withdrew his
appeal. SA 8-9.
than three years later, on September 20, 2011, Petitioner
again moved to withdraw his plea (“Second Motion to
Withdraw”). SA 101-02. The Second Motion to Withdraw
was denied on September 28, 2011. SA 101.
nine months later, on June 19, 2012, Petitioner filed an
amended Second Motion to Withdraw his plea . SA 101. The
Superior Court denied the amended Second Motion to Withdraw
on June 27, 2012. SA 87. Petitioner appealed the denial of
his amended Second Motion to Withdraw his plea to the
Massachusetts Appeals Court. On May 24, 2013, the Appeals
Court affirmed the denial, stating that the
“judge’s misstatement did not significantly
affect the substance of the requirement” that the judge
inform the defendant of the consequences of his plea and that
“no injustice results from the denial of his
motion.” Commonwealth v. Bermudez, 987 N.E.2d
620 (Table) (Mass. App. Ct. May 24, 2013) (citations and
quotation marks omitted). On July 3, 2013, Petitioner applied
for further appellate review to the Massachusetts Supreme
Judicial Court (“SJC”). The SJC denied
Petitioner’s application for further appellate review.
Commonwealth v. Bermudez, 994 N.E.2d 800 (Table)
(Mass. Sept. 11, 2013). Petitioner then filed his petition
for writ of habeas corpus for a person in state custody
pursuant to 28 U.S.C. § 2254 in this court on January
Timeliness of Petition
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), habeas corpus petitions are subject to
a one-year statute of limitations, which begins to run when
“the judgment became final by the conclusion of direct
review or the expiration of time for seeking such
review.” 28 U.S.C. § 2244(d)(1)(A). The statute of
limitations is tolled while a “properly filed
application for State . . . collateral review with respect to
the pertinent judgment or claim is pending.” 28 U.S.C.
§ 2244(d)(2). The tolling provision of § 2244(d)(2)
does not “reset the clock on the limitations period . .
. but merely stops it temporarily.” Trapp v.
Spencer, 479 F.3d 53, 59 (1st Cir. 2007), abrogated
on other grounds by Holland v. Florida, 560 U.S. 631,
649 (2010). Accordingly, § 2244(d)(2) cannot revive a
time period that has already expired. Cordle v.
Guarino, 428 F.3d 46, 48 n.4 (1st Cir. 2005).
filed a notice of appeal nine days after sentencing and a
Rule 30(b) motion a few days later. Under Massachusetts law,
the validity of a guilty plea may be attacked through a Rule
30(b) motion. See Commonwealth v. Fernandes, 459
N.E.2d 787, 788 (Mass. 1984) (noting that “[a] motion
for new trial is the appropriate device for attacking the
validity of a guilty plea” (citation and quotation
omitted)). The judge denied this motion five days later on
August 29, 2006, SA 8, and Petitioner did not seek further
review by an appeal of that order as permitted under Rule
30(c)(8). Instead, Petitioner withdrew his previously filed
appeal on June 26, 2008, and sought no further review during
the one year period that followed. Accordingly, the time for
Petitioner to have filed his petition here extended no later
than June 26, 2009.
Petitioner filed his second Rule 30(b) motion before June 26,
2009, the Rule 30(b) motion would be treated as a form of
collateral review which tolls the statute of limitations for
AEDPA purposes. See e.g. Holmes v. Spencer, 685 F.3d
51, 57 (1st Cir. 2012) (treating petitioner’s Rule
30(b) motion as a form of collateral review which tolled the
statute of limitations for AEDPA purposes); see also
David v. Hall, 318 F.3d 343, 343 (1st Cir. 2003)
(referring to a 30(b) motion to withdraw a guilty plea as a
“permissible form of collateral attack after a guilty
plea”). But Petitioner did not file his second Rule
30(b) Motion until 2011 (and then refiled it as an amended
Second Motion to Withdraw in 2012). This late filing does not
restart the clock under AEDPA. See Delaney v.
Matesanz, 264 F.3d 7, 11 (1st Cir. 2001) (declaring that
petitioner’s motion for a new trial did not toll the
one-year statute of limitations because petitioner filed it
after the statute of limitations ...