United States District Court, D. Massachusetts
ORDER ON RESPONDENT'S MOTION TO DISMISS (DOC. NO.
SOROKIN UNITED STATES DISTRICT JUDGE.
Abernathy, a prisoner at the Massachusetts Correctional
Institution in Shirley, Massachusetts, has filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Because his claims are untimely, Abernathy's
petition is DISMISSED.
21, 2008, after a jury trial in Suffolk County Superior
Court, Abernathy was convicted of two counts of breaking and
entering with intent to commit a felony, and a related
charge. Commonwealth v. Abernathy, 7 N.E.3d 494,
2014 WL 1697223, *1 (Mass. App. Ct. 2014) (unpublished)
(“Abernathy I”). The charges arose from
allegations that he broke into two first-floor apartments in
a building in Allston. Id. at *1-2. A state-court
judge deemed Abernathy a habitual offender in a July 23, 2008
bench trial and imposed the statutory maximum ten-year
sentence on each charge the same day, with two ten-year terms
running concurrently, and the third running consecutively.
Id. at *1; Doc. No. 18 at 2; Add. at
Massachusetts Appeals Court (“MAC”) affirmed
Abernathy's conviction and sentence on May 1, 2014.
Abernathy I, 2014 WL 1697223; Doc. No. 1-1. The MAC
considered and rejected claims alleging duplicative
convictions, seeking dismissal based on evidence that
allegedly was lost or destroyed, challenging the admission of
prior bad act evidence, and urging misconduct by the
prosecutor. Abernathy I, 2014 WL 1697223, at *2-4.
On July 1, 2014, the Supreme Judicial Court
(“SJC”) denied Abernathy's request for
further review. Add. at 187. Abernathy did not seek
certiorari in the United States Supreme Court.
October 1, 2015, the trial court docketed a pro se motion for
a new trial, which Abernathy had signed and dated September
24, 2015. Add. at 23, 308-09, 338. The trial court denied the
motion without a hearing the following week, and Abernathy
appealed to the MAC. Add. at 23-24. While the appeal was
pending, Abernathy filed a motion for release in the trial
court. Id. at 25. That motion also was promptly
denied, Abernathy appealed, and the MAC consolidated its
review of the trial court's rulings denying
Abernathy's post-conviction motions. Id. at 26,
207; Commonwealth v. Abernathy, 86 N.E.3d 245, 2017
WL 1655341, *1 (Mass. App. Ct. 2017) (unpublished)
(“Abernathy II”). On May 1, 2017, the
MAC affirmed the denial of both motions, explicitly rejecting
challenges to appellate counsel's effectiveness and the
validity of the indictments. Abernathy II, 2017 WL
1655341, at *1-3.
petitioned the SJC for review and, while that request was
pending, in May 2017, he filed a third post-conviction
challenge in the trial court. Add. at 27, 535. That third
motion was immediately denied. Id. at 27. Abernathy
appealed to the MAC in June 2017, and separately petitioned
the SJC for extraordinary relief under a state statute,
citing an alleged deficiency in the indictments. Id.
at 27, 734, 737-47. In April 2018, the MAC affirmed,
rejecting Abernathy's challenge to his sentence under
state habitual offender laws. Commonwealth v.
Abernathy, 103 N.E.3d 772, 2018 WL 1955473, *1 (Mass.
App. Ct. 2018) (unpublished) (“Abernathy
single justice of the SJC denied Abernathy's petition for
extraordinary relief in September 2017, finding the claim
Abernathy raised was not eligible for the type of review he
sought, Add. at 734, and the full SJC reached the same
conclusion in May 2018, Abernathy v. Commonwealth,
97 N.E.3d 687, 688 (Mass. 2018). Finally, on September 13,
2018, the SJC denied Abernathy's separate application
seeking review of Abernathy III. Add. at 707. That
ruling by the SJC marks the conclusion of Abernathy's
post-conviction odyssey in state court.
signed his federal habeas petition on October 10, 2018 and
mailed it the same day. Doc. No. 1 at 18. The petition was
docketed five days later. It alleges that police lost or
destroyed exculpatory evidence, that appellate counsel was
ineffective, that Abernathy's right to confront witnesses
against him was violated, that the indictment was defective,
and that his sentence as a habitual offender was unlawful.
Doc. No. 1 at 5, 7-8, 10, 12. The respondent has moved to
dismiss the petition, arguing it is untimely. Doc. Nos. 17,
18. Abernathy has not opposed the motion to dismiss, and the
time for doing so has passed. See D. Mass. L.R.
7.1(b)(2) (requiring a party opposing a motion to file an
opposition within fourteen days of service of the motion);
Doc. No. 17 (reflecting motion to dismiss was filed, and sent
to Abernathy via first-class mail, on February 21, 2019).
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) imposes a one-year period of limitation
on applications for writs of habeas corpus, and provides that
such period “shall run from the latest of”:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made