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Abernathy v. Kenneway

United States District Court, D. Massachusetts

March 27, 2019

FRANKLIN ABERNATHY, Petitioner,
v.
SEVEN KENNEWAY, Respondent.

          ORDER ON RESPONDENT'S MOTION TO DISMISS (DOC. NO. 17)

          LEO T. SOROKIN UNITED STATES DISTRICT JUDGE.

         Franklin 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.

         I. BACKGROUND

         On July 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 Ct. 2014) (unpublished) (“Abernathy I”).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 20.[1]

         The 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.

         On 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.

         Abernathy 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 III”).

         A 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.

         Abernathy 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).

         II. DISCUSSION

         The 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 ...

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