United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
WILLIAM G. YOUNG DISTRICT JUDGE
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 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.
reasons discussed below, this Court GRANTS Spencer's
motion to dismiss.
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. 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
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.
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.
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,
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. 137 S.Ct. 809
(2017)(granting certiorari); Electronic Clerk's Notes,
ECF No. 31.
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.This Court heard oral argument on the
motions on March 29, 2018, and took the matter under
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.
Standard of Review
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. § ...