United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON HABEAS CORPUS PETITION
PAGE KELLEY UNITED STATES MAGISTRATE JUDGE
Chamberlin, pro se, petitioned for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (#1.) Respondent moved to
dismiss on the grounds that the petition was time-barred
under 28 U.S.C. § 2244(d)(1). (#10.) Petitioner filed a
reply. (#14.) He argued that his filing of a motion to
late-file an appeal of the denial of a motion to revise and
revoke his sentence tolled the limitations period, and also
that the equitable tolling doctrine applied. Id. at
reasons set out below, this court recommends that the
district court find that the petition is time-barred and that
petitioner has not demonstrated “extraordinary
circumstances” warranting application of the equitable
August 1, 2011, petitioner was convicted after a jury trial
in a Massachusetts Superior Court of armed robbery while
masked, kidnapping for purposes of extortion, and armed
assault with intent to murder. (#11-1 at 21.) He was
sentenced to eighteen to twenty years for the armed assault
with intent to murder; six to eight years for the armed
robbery, consecutive to the first sentence; and ten years to
ten years and one day for the kidnapping, consecutive to the
second sentence. Id. at 21-22. The Massachusetts
Appeals Court affirmed his convictions on December 5, 2014.
See Commonwealth v. Chamberlin, 86 Mass.App.Ct. 705,
20 N.E.3d 954 (2014). The Supreme Judicial Court affirmed the
convictions on February 19, 2016. See Commonwealth v.
Chamberlin, 473 Mass. 653, 45 N.E.3d 900 (2016).
did not file a petition for a writ of certiorari to the
United States Supreme Court and so direct review concluded on
May 19, 2016, ninety days from the date of the Supreme
Judicial Court's opinion. See Gonzalez v.
Thaler, 565 U.S. 134, 149 (2012).
then tolled the limitations period for filing a habeas
petition by filing a post-conviction motion in the state
trial court to revise and revoke his sentence under
Massachusetts Rule of Criminal Procedure 29. (#11-1 at 24.)
See Holmes v. Spencer, 685 F.3d 51, 60
(1st Cir. 2012) (holding that filing of state
post-conviction motion to reduce imposed sentence tolls
habeas petition's limitations period). As respondent
concedes, by filing the motion to revise and revoke on May
19, 2016, petitioner thus tolled the limitations period
before it even began to run. (#11 at 3; #11-1 at 24.) The
trial court denied the motion two months later, on July 17,
2016. (11-1 at 24.) Petitioner did not file a timely notice
March 13, 2017, petitioner filed a motion to late-file a
notice of appeal from the denial of his motion to revise and
revoke. (#11-1 at 1.) The Appeals Court denied the motion on
March 16, 2017, but gave petitioner two weeks to renew the
motion “demonstrating [a] meritorious appellate
issue.” Id. Petitioner did not renew the
motion and in fact withdrew it on May 17, 2017. Id.
TIMELINESS OF THE PETITION.
Anti-Terrorism and Effective Death Penalty Act (AEDPA)
provides for a one- year statute of limitations for filing a
habeas petition, which runs from the day “the judgment
became final by the conclusion of direct review or the
expiration of time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). The statute of limitations is tolled
while a “properly filed application for state
collateral review” is pending in state court. 28 U.S.C.
§ 2244(d)(2); Lawrence v. Florida, 549 U.S.
327, 332 (2007).
out above, petitioner tolled the limitations period by filing
the motion to revise and revoke his sentence on May 19, 2016.
The one-year limitations period for his habeas petition thus
began to run on July 17, 2016, when the motion was denied.
petitioner did not file his habeas petition until August 28,
2017, his petition is out of time.
THERE IS NO BASIS TO TOLL THE STATUTE ...