United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON RESPONDENT'S MOTION TO
DISMISS PETITION FOR WRIT OF HABEAS CORPUS
Dennis Saylor IV, United States District Judge
a pro se petition for a writ of habeas corpus made
pursuant to 28 U.S.C. § 2254. On May 2, 1995, a jury in
Suffolk County Superior Court convicted petitioner Robert
Bianchi of charges of first-degree murder and violating a
protective order. He was sentenced to life in prison. The
habeas petition alleges (1) that his right to an open trial
was violated by the closure of empanelment proceedings; (2)
that his right to a fair trial was violated by the
court's order requiring him to face forward at all times;
(3) that he received ineffective assistance of counsel; and
(4) that the court erred in excluding certain evidence
demonstrating his state of mind at the time of the murder.
has filed a motion to dismiss the petition as time-barred.
For the following reasons, the motion to dismiss will be
Commonwealth v. Bianchi, 435 Mass. 316, 317 (2001),
the Massachusetts Supreme Judicial Court summarized the
murder of Donna Bianchi as follows:
In the early morning hours of April 17, 1994, Donna Bianchi
was beaten and choked with a night stick and sprayed with
mace in her home by her estranged husband, Robert L. Bianchi,
Jr. She became fearful that Bianchi was going to kill her and
her child, and obtained an abuse prevention order against him
the following day.
On May 6, 1994, Donna dropped her seven-month old son off at
her sister-in-law's house on her way to work. As she left
the house, Bianchi, who had been following her for several
days, confronted her. She began screaming and running away
from him. As he pursued her, she tripped and fell. He picked
her up by the hair, prodded her in the back with a gun, and
herded her toward the street where he shot her twice in the
back. After she fell to the ground, paralyzed by one of the
first two bullets, Bianchi placed the muzzle of the gun on
her chest, and fired three more times, pausing between shots.
2, 1995, a jury convicted Bianchi of first-degree murder,
under the theories of deliberate premeditation with malice
aforethought and extreme atrocity or cruelty, and of
violating a protective order. (Id.; Pet. Ex. A). He
was sentenced to a term of life in prison. (Pet. Ex. A).
his conviction, Bianchi filed a timely notice of appeal and a
motion for a new trial. (Commonwealth v. Bianchi,
435 Mass. at 316). The appeal was stayed pending resolution
of the motion for a new trial, which was eventually denied on
March 31, 2000. (Pet. Ex. A).
November 10, 2000, Bianchi wrote his appellate attorney, Dana
Curhan, urging him to include a claim concerning the
ineffective assistance of his trial counsel, Robert George,
as a basis for the appeal to the Massachusetts Supreme
Judicial Court (“SJC”). (Pet. Ex. B).
November 9, 2001, the SJC affirmed Bianchi's conviction
and the denial of his motion for a new trial.
(Commonwealth v. Bianchi, 435 Mass. at 330). The SJC
did not consider any claim for ineffective assistance of
counsel. (Id. at 322-30). Bianchi did not file a
petition for a writ of certiorari in the United States
November 13, 2001, Bianchi wrote a letter to Donald Bronstein
at the Committee for Public Counsel Services
(“CPCS”). The letter requested that Bronstein be
appointed a screener or other counsel for proceedings
concerning post-conviction relief based on the fact that
Curhan had failed to present the ineffective assistance of
counsel claim. (Pet. Ex. C). CPCS denied that request. (Pet.
Ex. JJJJ ¶ 2).
contends that in December 2001 he “began the long and
arduous process of assembling any materials that could aid
[him] in researching [his] own case.” (Id.
¶ 3). He alleges that by September or October 2002, he
was prepared to file a motion for a new trial pro se
under Mass. R. Crim. P. 30(b), but before doing so, he
telephoned CPCS in another attempt to obtain counsel or a
screener. (Id. ¶¶ 5-6).
alleges that he informed an unnamed person at that office
that he was concerned about losing his “appellate
rights in federal court.” (Id. ¶ 6). He
alleges that the person advised him to file a motion for
reduction of verdict or new trial under Mass. R. Crim. P.
25(b)(2) instead of the Rule 30(b) motion. (Id.
¶ 7). He further alleges that he was advised to file
nothing but the Rule 25 motion, to reserve his right to amend
the motion at a later date, and to request that the reviewing
court not construe the motion as a Rule 30 motion.
(Id.). He was told that if he filed a Rule 30(b)
motion that was immediately denied, he would have
“greater difficulty in filing any subsequent Rule 30
motions.” (Id. ¶ 6).
October 20, 2002, Bianchi filed a pro se motion for
reduction in verdict or new trial pursuant to Mass. R. Crim.
P. 25(b)(2). (Pet. Ex. X, Pet. Ex. JJJJ ¶ 54). The
motion consists of a single page. It appears to be a form
document on which Bianchi filled in blanks, including his
crime, the court that convicted him, and his name. (Pet. Ex.
H). The motion provided as reasons for its allowance
“that the verdict was against the weight of the
evidence, and that there was insufficient evidence of first
degree murder.” (Id.). It did not include any
legal argument or evidence in support of that claim. It
further stated that “[t]he defendant respectfully
requests that the Court hold this motion in abeyance while he
attempts to obtain counsel” and that he
“does not wish this motion to be
construed as a motion pursuant to Mass. R. Crim. P.
30.” (Id.) (emphasis in original). The parties
agree that the state court has never taken any action on the
Rule 25 motion. (Resp. Mem. at 2; Pet. Mem. at 2).
November 21, 2002, CPCS assigned attorney James Couture to
Bianchi's case. (Pet. Ex. J). In early 2003, Bianchi
mailed various materials and his trial transcripts to Couture
for review. (Pet. Ex. JJJJ ¶ 12). After a period of
time, Bianchi contacted CPCS; he alleges that he was informed
that Couture had the matter in hand, and that the Rule 25
motion would “hold the flood gates” for further
appeal. (Id. ¶ 13). In late 2003, he began to
grow concerned because he had not heard from Couture for some
time. (Id. ¶ 16). In May or June 2004, he
became sufficiently worried about the lack of communication
that he planned to file his own Rule 30(b) motion, but was
again allegedly assured by someone ...