United States District Court, D. Massachusetts
ORDER DISMISSING PETITION (DOC. NO. 1) MAY 1, 2019
SOROKIN UNITED STATES DISTRICT JUDGE.
McCants, a prisoner at the Massachusetts Correctional
Institution in Norfolk, Massachusetts, has filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Because the petition is untimely, it is
and November of 1974, juries in Suffolk County Superior Court
convicted McCants of robbing and sexually assaulting three
different victims. Commonwealth v. McCants, 94
N.E.3d 881, 2017 WL 5894414, at *1 (Mass. App. Ct. 2017).
McCants was sentenced to ten-to-twenty years'
incarceration for the November conviction, which is the focus
of his federal petition. Doc. No. 1 at 1; Doc. No. 1-1 at 13.
Massachusetts Appeals Court (“MAC”) affirmed the
November conviction and sentence on December 3, 1975.
Commonwealth v. McCants, 337 N.E.2d 918 (Mass. App.
Ct. 1975). It appears McCants sought no further direct
review. 2017 WL 5894414, at *1; Doc. No. 1-1 at 10, 13. It
also appears McCants took no other steps to challenge either
of the 1974 judgments in any court for “[a]pproximately
forty years.” 2017 WL 5894414, at *1; accord
Commonwealth v. McCants, 113 N.E.3d 934, 2018 WL
5931366, at *1 (Mass. App. Ct. 2018).
2014, McCants petitioned the state trial court for
postconviction discovery pertaining to both 1974 convictions,
Commonwealth v. McCants, 44 N.E.3d 896, 2016 WL
360640, at *1 (Mass. App. Ct. 2016), and filed a motion for a
new trial challenging the May conviction, Doc. No. 1-1 at 10.
His discovery request was denied promptly, and the MAC
affirmed that denial in January 2016. 2016 WL 360640, at *1.
In May 2016, McCants filed a motion for a new trial
challenging the November conviction. Doc. No. 1-1 at 13.
Superior Court denied both new-trial motions without a
hearing on February 7, 2017. Id. at 9-14. The MAC
affirmed the denial of both motions. 2018 WL 5931366, at *1-3
(rejecting challenges to November conviction); 2017 WL
5894414, at *1-2 (rejecting challenges to May conviction).
The Supreme Judicial Court (“SJC”) denied review.
481 Mass. 1104 (2019); 478 Mass. 1109 (2018).
April 2019, McCants filed his pro se federal habeas petition.
Doc. No. 1 at 15. He presents seven challenges to his
November 1974 conviction and sentence: 1) abuse of discretion
by the state courts in denying McCants's motion for a new
trial without a hearing; 2) exclusion of McCants from his own
pretrial conference in violation of Massachusetts law; 3)
improper admission of suggestive mugshots; 4) insufficient
evidence of guilt; 5) ineffectiveness of trial and appellate
counsel with respect to photo array evidence and
investigation/presentation of alibi evidence; 6)
prosecutorial misconduct for “cajol[ing] the
jury” about “a racially mixed crime” and
vouching for a “primary witness's
credibility”; and 7) ineffectiveness of counsel for
failure to advance a “third-party defense.” Doc.
No. 1-1 at 5-8.
the Court's screening of the petition revealed that it
was hopelessly untimely, the Court did not require the
respondent to answer McCants's claims. See Rule
4 foll. 28 U.S.C. § 2254 (requiring Court to
“promptly examine” habeas petition and to dismiss
it “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court”).
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