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Bermudez v. Roden

United States District Court, D. Massachusetts

July 26, 2016

JOSUE ROBLES BERMUDEZ, Petitioner,
v.
GARY RODEN, Respondent.

          MEMORANDUM AND ORDER

          Indira Talwani United States District Judge

         I. Introduction

         Petitioner 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.

         II. Background

         A grand 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 four counts.

         During 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 each conviction.

         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.

         More 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.

         Almost 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 27, 2014.

         III. Discussion

         A. Timeliness of Petition

         Under 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).[1] 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).[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).

         Petitioner 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.

         Had 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 ...


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