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Washington v. Spencer

United States District Court, D. Massachusetts

April 30, 2018

DERRICK WASHINGTON, Petitioner,
v.
LUIS S. SPENCER, Respondent.

          MEMORANDUM AND ORDER

          WILLIAM G. YOUNG DISTRICT JUDGE

         I. INTRODUCTION

         Petitioner Derrick Washington (“Washington”) is a state prisoner who was convicted of murder and a number of accompanying crimes in the Massachusetts Superior Court, sitting in and for the County of Hampden on February 26, 2007. Washington petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 asserting two claims[1] relevant to this proceeding: (1) ineffective assistance of counsel for failing to argue to suppress certain evidence (“claim 1”); and (2) ineffective assistance of counsel for failing to object to the exclusion of spectators during voir dire (“claim 4”). 28 U.S.C. § 2254 Pet. Writ Habeas Corpus (“Pet'r's Pet.”), ECF No. 41. Respondent Luis Spencer (“Spencer”) moves to dismiss Washington's petition in its entirety, arguing Washington's petition is time-barred, not eligible for equitable tolling, and is meritless.

         For the reasons discussed below, this Court GRANTS Spencer's motion to dismiss.

         A. Procedural History

         Washington was convicted of murder and a number of accompanying crimes in the Hampden Superior Court on February 26, 2007. Resp't's Mem. Supp. Mot. Dismiss, App. Resp't's Mem. Supp. Mot. Dismiss (“App. II”) 1-3, 50, ECF No. 27-1.[2] On March 8, 2007, Washington filed a notice of direct appeal, id. at 6, asserting three claims, Resp't's Mem. Law Supp. Mot. Dismiss, App. (“App. I”) 20-21, ECF No. 12-1. The Supreme Judicial Court affirmed Washington's conviction and denied his first motion for a new trial on March 3, 2011. App. I at 12. Washington did not seek certiorari from the Supreme Court.

         Washington filed a second and third motion for a new trial on November 21, 2011, App. II at 10-11, and December 13, 2011, id. at 8, 43-44, respectively, both raising the same five claims. On March 7, 2012, Washington filed an initial petition for writ of habeas corpus with this Court. Writ Habeas Corpus 28 U.S.C. 2254 d-1 Mot. Stay & Abeyance, (“Writ Habeas Corpus I”), ECF No. 1. He then filed an amended petition, asserting eight claims. Pet. 28 U.S.C. § 2254 Writ Habeas Corpus Person State Custody, ECF No. 4. In the petition, Washington conceded that claims 4 through 8 had been asserted in state court, but had not been adjudicated. Id. at 7-15. Accordingly, Spencer filed a motion to dismiss for failure to exhaust state court remedies, Resp't's Mot. Dismiss Failure Exhaust State Court Remedies, ECF No. 11, and this Court dismissed the petition in its entirety for presenting both exhausted (claims one through three) and unexhausted (claims four through eight) claims. Order Dismissal, ECF No. 14.

         On July 9, 2012, Washington moved to reopen the petition, Mot. Reopen Civil Action 12-10466-WGY (“Mot. Reopen”), ECF No. 15, and this Court denied the motion “without prejudice to its renewal by counsel.” Electronic Order, July 11, 2012. On October 29, 2012, Washington filed a motion to reopen the petition and to stay and hold it in abeyance. Mot. Reopen Case & Mot. Stay & Hold in Abeyance 28 U.S.C. § 2254 Pet. Writ Habeas Corpus (II), ECF No. 19. This Court denied the motion, stating: “[o]nce full exhaustion has been achieved, petitioner may proceed.” Electronic Order, ECF No. 20.

         Washington then obtained an attorney, who requested that the Superior Court take no action on Washington's pending motions for new trial, as the attorney intended to file a substitute motion. App. II at 45. The revised motion was filed on February 11, 2014. Id. at 8, 47-49. It asserted only claim four. Id. 47-49. The Superior Court denied the motion by margin order on October 14, 2014 and docketed on October 17, 2014. Id. at 54. Washington then filed for leave to appeal that decision. Id. at 50. This “gatekeeper” appeal was denied on April 10, 2015.[3] Id.

         Following this denial, Washington filed a motion to reopen his habeas petition with this Court on October 5, 2016. Mot. Vacate Stay Reopen Habeas Proceedings (“Mot. Vacate”), ECF No. 23. This Court granted that motion on October 12, 2016. Electronic Order, ECF No. 25. Spencer again moved to dismiss the petition in its entirety, Resp't's Mot. Dismiss, ECF No. 26, see Resp't's Mem. Supp. Mot. Dismiss (“Resp't's Mem.”), ECF No. 27; Mem. Opposing Mot. Dismiss (“Pet'r's Mem.”), ECF No. 30. This Court granted in part and denied in part the Motion to Dismiss on February 27, 2017. Electronic Clerk's Notes, ECF No. 31. This Court dismissed claims five through eight as unexhausted, and ordered the case administratively closed with the opportunity for either party to reopen once the Supreme Court ruled in Weaver v. Massachusetts.[4] 137 S.Ct. 809 (2017)(granting certiorari); Electronic Clerk's Notes, ECF No. 31.

         On July 27, 2017, Washington moved to reopen the case, Mot. Reopen Case and Vacate Stay, ECF No. 33, which this Court allowed on August 16, 2017, in order to consider the case in light of the Weaver holding. Electronic Order, ECF No. 37. Washington filed an amended petition on October 19, 2017. Pet'r's Pet., ECF Nos. 40-41. Spencer filed a memorandum in opposition to the petition and renewed his motion to dismiss. Resp't's Supplemental Answer, ECF No. 46; Resp't's Mem. Opp'n Pet. Writ of Habeas Corpus, ECF No. 47. Washington agreed to dismiss claims two and three. Pet'r's Reply Resp. Mot. Am. Pet. Writ Habeas Corpus, (“Pet'r's Reply”), ECF No. 48. The parties fully briefed the issues. Pet'r's Mem. Opp'n Mot. Dismiss, (“Pet'r's Opp'n I”) ECF No. 42; Pet'r's Opp'n Mot. Dismiss. Am. Pet. Writ of Habeas Corpus, (“Pet'r's Opp'n II”) ECF No. 56.[5]This Court heard oral argument on the motions on March 29, 2018, and took the matter under advisement.

         II. ANALYSIS

         The parties ask this Court to decide: (1) whether Washington's claims are time-barred and, if not, (2) whether Washington is entitled to relief. The Court concludes the claims are time-barred. Therefore, this Court GRANTS Spencer's motion to dismiss the petition.

         A. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (the “Act”) allows a person in custody, under certain circumstances, to petition for habeas corpus relief from a state court conviction. 28 U.S.C. § ...


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