United States District Court, D. Massachusetts
MEMORANDUM & ORDER
TALWANI, UNITED STATES DISTRICT JUDGE
Timothy Reaves has filed a Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State
Custody [#1], to which Respondent Osvaldo Vidal filed a
Motion to Dismiss Petition for Writ of Habeas Corpus
[#9]. Respondent asserts that the petition is time-barred
pursuant to 28 U.S.C. § 2244(d)(1) because the statute
of limitations for filing the petition expired on September
22, 2002. Petitioner has presented “extraordinary
circumstances, ” however, warranting equitable tolling.
For the reasons set forth in this memorandum, the court
DENIES Respondent's Motion to Dismiss Petition for
Writ of Habeas Corpus [#9].
April 25, 1996, a jury found Petitioner guilty of murder in
the first degree. Commonwealth v. Reaves, 434 Mass.
383 (2001). After Petitioner pursued his direct appeal, the
Massachusetts Supreme Judicial Court affirmed his conviction
on June 21, 2001. Id. On April 30, 2010, Petitioner
filed a motion for a new trial, which was denied on July 28,
2010. Resp't Mot. Dismiss Pet. for Writ Habeas Corpus
(“Resp't Mot. Dismiss”), Mass. Super. Ct.
Docket 1-2 [#9-1]. Petitioner then filed an application under
Mass. Gen. Laws. ch. 278 § 33E for leave to appeal the
denial of his motion for new trial, which was denied on
September 21, 2015. Resp't Mot. Dismiss, Mass. Sup. J.
Ct. Docket 1-2 [#9-3].
January 25, 2016, Petitioner filed his Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody [#1] here. Petitioner raises five grounds
for habeas relief: (1) insufficient evidence for the grand
jury to reach the indictment, (2) ineffective assistance of
trial counsel, (3) an overzealous prosecutor/conflict of
interest theory, (4) impermissible burden shifting in the
jury instructions, and (5) ineffective assistance of
appellate counsel. Id. Respondent moved to dismiss
the case, arguing that because the statute of limitations for
filing a petition for a writ of habeas corpus expired on
September 22, 2002, and because Petitioner did not file his
Petition until January 25, 2016, that Petition is time-barred
under 28 U.S.C. 2244(d)(1). Resp't Mem. Supp. Mot.
Dismiss Pet. for Writ Habeas Corpus 3 (“Resp't
is a permanent quadriplegic, Pet. Under 28 U.S.C. §
2254 for Writ of Habeas Corpus by a Person in State
Custody ¶ 14 (“Pet.”) [#1], with no
strength and limited sensation below his neck, Opp'n
Resp't Mot. Dismiss Pet. for Writ Habeas Corpus
(“Opp'n Mot. Dismiss”), Ex. A, Affidavit of
Leslie Morse, D.O. ¶¶ 8-9 (“Morse
Aff.”) [#29-1], and who cannot move his body from his
chest down other than to move his shoulders and upper arms in
jerky movements, id. at ¶¶ 12-13. His arms
are contracted at the elbow and cannot be straightened, and
his hands are contracted into fists. Id. at
¶¶ 13-14. As a result, Petitioner is “unable
to write or manipulate papers, ” “cannot hold a
piece of paper in order to read it, ” and “cannot
hold a pen to write for” himself, Opp'n Mot.
Dismiss, Ex. C, Affidavit of Timothy M. Reaves ¶ 23
(“Reaves Aff.”) [#29-1]; Pet. ¶ 14 [#1].
Petitioner also suffers from bilateral hearing loss,
Opp'n Mot. Dismiss, Ex. B Audiology Report 1 [#29-1], and
cannot understand what others are saying unless he is able to
read their lips, Reaves Aff. ¶ 35 [#29-1].
at least 1999, Petitioner has been confined to his bed. Morse
Aff. ¶ 17 [#29-1]. That same year, Petitioner requested
writing assistance, as well as access to law library and
legal materials, from the Massachusetts Department of
Correction. Opp'n Mot. Dismiss, Ex. D, McLaughlin Letter
to Maloney 2, 4 (“1999 Letter”) [#29-1].
Petitioner subsequently filed two lawsuits against the
Massachusetts Department of Correction to obtain this
assistance. The first lawsuit settled in 2005, and the
settlement agreement required the Massachusetts Department of
Correction to provide Petitioner with Correctional Program
Officers to provide him with the sought-after writing
assistance. Opp'n Mot. Dismiss, Ex. E, Settlement
Agreement ¶ 6 [#29-1]. As of December 2008, Petitioner
reported that he was once again without this assistance.
Opp'n Mot. Dismiss, Ex. G, Petit Letter to O'Donnell
2 [#29-1], and as of July 7, 2015, Petitioner stated that his
requests for speak-to-text dictation programs have been
denied. Reaves Aff. ¶ 25 [#29-1]. The second lawsuit,
which addresses, among other things, Petitioner's request
for writing assistance, is currently pending. Opp'n Mot.
Dismiss, Ex. H, Compl. ¶ 58 [#29-1]. Petitioner states
that to the extent any assistance was provided by the
Massachusetts Department of Correction, that assistance would
not have enabled Petitioner to file a habeas petition because
“DOC officials would not let DOC staff to assist me in
legal matters (filing motions to the courts for criminal
matters).” Pet. ¶ 14 [#1].
Standard of Review
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), a person in custody pursuant to a
state-court judgment may obtain relief through a petition for
a writ of habeas corpus if his or her confinement violates
the United States Constitution or federal laws or treaties.
28 U.S.C. § 2254. A petitioner has one year to file a
petition, which runs from “the date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review, ”
including a ninety day period after the state supreme
court's decision during which the petitioner could file a
petition for certiorari to the Supreme Court. 28 U.S.C.
statute of limitations for federal habeas corpus is subject
to equitable tolling. Holland v. Florida, 560 U.S.
631, 645 (2010). A petitioner is entitled to equitable
tolling if he can demonstrate “(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.” Id. at 649. “The
diligence required for equitable tolling purposes is
reasonable diligence, not maximum feasible diligence.”
Id. at 653 (citations omitted). The circumstances
preventing timely filing “must be extraordinary before
equitable tolling can be applied.” Id. at
653-54. “Garden variety” neglect or
“miscalculation” does not warrant equitable
tolling. Id. at 650-51; see Lawrence v.
Florida, 549 U.S. 327, 336-37 (2007) (“Attorney
miscalculation is simply not sufficient to warrant equitable
tolling, particularly in the postconviction context where
prisoners have no constitutional right to counsel.”).
Although courts should “draw upon decisions made in
other similar cases for guidance, ” they must be
mindful “that specific circumstances, often hard to
predict in advance, could warrant special treatment in an
appropriate case.” Holland, 560 U.S. at 650.
Thus, the determination of whether equitable tolling applies
“must be made on a case-by-case basis.”
Id. at 649-50 (quoting Baggett v. Bullitt,
377 U.S. 360, 375 (1964)).
is no doubt that the statute of limitations for filing the
habeas petition has expired. Thus, the only remaining
question is whether equitable tolling applies. Petitioner
asserts that he has shown two grounds for extraordinary
circumstances: (1) his physical disabilities, and (2) his
lack of access to legal resources. He also asserts that he
has diligently pursued his rights in the face of these
Petitioner Has Demonstrated ...