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Bianchi v. Medeiros

United States District Court, D. Massachusetts

April 25, 2017

ROBERT BIANCHI, Petitioner,
v.
SEAN MEDEIROS, Respondent.

          MEMORANDUM AND ORDER ON RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

          F. Dennis Saylor IV, United States District Judge

         This is 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.

         Respondent has filed a motion to dismiss the petition as time-barred. For the following reasons, the motion to dismiss will be granted.

         I. Background

         In 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.

         On May 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).

         Following 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).

         On 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).

         On 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 Supreme Court.

         On 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).

         Bianchi contends that in December 2001 he “began the long and arduous process of assembling any mat[]erials 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).

         Bianchi 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).

         On 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).

         On 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. ΒΆ 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 ...


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