United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Talwani United States District Judge
Shawn Fritz filed a Petition for the Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2255 [#1] in June
2017. Presently before the court is Respondent Kelly
Ryan's Motion to Dismiss As Time-Barred [#7].
For the reasons set forth below, Respondent's
Motion is ALLOWED and the Petition is
October 1996, Petitioner Shawn Fritz was found guilty in
Suffolk County Superior Court of murder in the first degree
and illegal possession of a firearm. Petitioner subsequently
filed two unsuccessful motions for a new trial, and appealed
the Superior Court's denials of his motions for a new
trial to the Massachusetts Supreme Judicial Court
(“SJC”). On July 29, 2015, the SJC affirmed the
denials of Petitioner's motions for a trial and affirmed
Petitioner's convictions. Commonwealth v. Fritz,
SJC-07763 (Mass. July 29, 2015) (Dkt. 115).
August 7, 2015, a group of defense attorneys sent a letter to
the Chief Justice of the SJC contending that a footnote in
the July 29 opinion “unfairly attack[ed] counsel and
reflect[ed] a failure to account for the difficult role of
counsel in such cases, ” and requesting that the
footnote be removed. Pet.'s Opp'n Ex. 11 [#18-1]. The
SJC did not include or acknowledge the letter on the docket.
On September 11, 2015, the SJC issued its rescript to the
trial court. Fritz, SJC-07763. The trial court
docketed receipt, and entered judgment accordingly, on
September 17, 2015. Commonwealth v. Fritz,
9484-cr-11993 (Mass. Sup. Sept. 17, 2015) (Dkt. 80).
December 6, 2016, Petitioner filed a third motion for a new
trial in Suffolk County Superior Court. Fritz,
9484-cr-11993 (Dkt. 81). That motion was denied on May 24,
2017. Fritz, 9484-cr-11993 (Dkt. 85). Petitioner
filed the instant Petition for Writ of Habeas Corpus
[#1] in this court on June 2, 2017.
to 28 U.S.C. § 2244(d)(1), “[a] 1-year period of
limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a
State court.” The parties agree that the limitation
period in this case began to run 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.” Id. at § 2244(d)(1)(A). A
judgment of conviction generally “becomes final when
the ninety-day period for seeking certiorari
expire[s].” Neverson v. Farquharson, 336 F.3d
32, 36 (1st Cir. 2004). If a petition for rehearing is timely
filed in the lower court, however, the time to file the
petition for a writ of certiorari for all parties runs from
the date of the denial of rehearing or, if the rehearing is
granted, the subsequent entry of judgment. Sup. Ct. R. 13(3).
argues that the August 7, 2015, letter to the Chief Justice
constituted a petition for rehearing. Pet.'s Opp'n 3
[#18]. Petitioner contends that although no rehearing was
held, the petition for rehearing was “granted”
because the SJC did modify the footnote at issue.
Id. at 2-3; see also Reply to Pet's
Opp'n 2 [#19] (acknowledging footnote's
modification). Thus, Petitioner argues, the judgment did not
become final until ninety days after the Superior Court's
entry of judgment on September 17, 2015, when the Superior
Court acknowledged receipt of the SJC's rescript.
in turn, contends that the SJC issued its judgment on July
29, 2015, and that the judgment became final on October 27,
2015, after the ninety-day period for seeking certiorari had
expired. Resp't's Mem. 4 [#8]. Respondent disputes
Petitioner's characterization of the letter as a petition
for rehearing, where the letter made no argument that the
court had overlooked or misapprehended any point of law or
fact as required by Mass.R.A.P. 27 (a petition for rehearing
“shall state with particularity the points of law or
fact which it is contended the court has overlooked or
misapprehended”), was not signed by counsel, and did
not request a rehearing.
court need not determine whether these requirements must
always be met for a document to constitute a petition for
rehearing for purposes of calculating the time for filing a
petition for certiorari. Here, the SJC did not treat the
letter as a petition for rehearing that required further
action from the court. The letter was never docketed, no
response was requested, and no rehearing was held. Indeed,
even the published decision cited by Petitioner as evidence
of the change gives no date for the change, listing only the
original July 29, 2015, date. See Commonwealth v.
Fritz, 472 Mass. 341 (2015).
the SJC rescript was not issued to the trial court until
September 11, 2015, and the trial court did not docket
receipt until six days later, it is the date of the SJC's
decision, not the subsequent ministerial dates, that starts
the period in which the petition for certiorari must be
filed. See Cole v. Violette, 319 U.S. 581 (1943)
(noting that “Massachusetts local practice regards the
decree entered by the Superior Court on the rescript, rather
than the order of the Supreme Judicial Court contained in the
rescript, as the ‘final decree' in the case,
” but holding that because the SJC's decision
“finally disposed of all the issues in the case,
leaving nothing to be done but the ministerial act of
entering judgment in the trial court[, ]” it was the
date of the SJC's decision that started the period in
which the petition for certiorari needed to be filed);
see also Mercado v. Roden, No. 11-cv-10321, 2016 WL
7209657 at *6 (D. Mass. Dec. 12, 2016) (“[W]here . . .
the trial court mandate or judgment is not entered until
‘some time after the entry of the critical appellate
court judgment as to which review is sought[, ] . . . [i]t is
the date of this appellate court judgment that alone is
relevant to the calculation of the 90 days allowed for
petitioning for certiorari.'” (quoting Stephen M.
Shapiro, et al., Supreme Court Practice, § 6.2
at 393 (10th ed. 2013)). Here, the date of the SJC's
opinion was July 29, 2015. Fritz, SJC-07763 (Dkt.
115). Accordingly, the ninety-day period to seek certiorari
ended in October 2015. Petitioner had one year from this date
to file his petition for habeas relief or take other action
that would toll this deadline. 28 U.S.C. § 2244(d)(1).
His third motion for a new trial was not filed in state court
until December 2016, and did not toll the statute of
limitations for his habeas petition. See id.
foregoing reasons, Respondent's Motion to Dismiss As
Time-Barred [#7] is ALLOWED. Petitioner's
Petition for the Writ of Habeas Corpus ...