United States District Court, D. Massachusetts
ORDER AND MEMORANDUM ON RESPONDENT'S MOTION TO
DISMISS (Docket No. 11)
TIMOTHY S. HILLMAN DISTRICT JUDGE
April 4, 2011, a jury convicted Fritz Olmande
(“Petitioner”) with multiple counts of rape of a
child. (Docket No. 12-1 at 8). The Appeals Court of
Massachusetts affirmed his convictions, Commonwealth v.
Olmande, 84 Mass.App.Ct. 231 (2013), and the
Massachusetts Supreme Judicial Court (“SJC”)
denied his application for further appellate review on
October 31, 2013, Commonwealth v. Olmande, 466 Mass.
1108 (2013). Petitioner did not seek a writ of certiorari
from the Supreme Court of the United States.
November 17, 2014, Petitioner moved for a new trial. (Docket
No. 12-1 at 9). The trial court denied this motion, and
Petitioner filed a notice of appeal on February 11, 2015.
(Docket No. 12-1 at 9). Petitioner, however, took no further
action on this appeal. On December 29, 2017, Petitioner filed
a second motion for a new trial, which superseded the appeal
on his first motion. The trial court declined to grant on a
new trial (Docket No. 12-1 at 9-10), and the Appeals Court
affirmed, Commonwealth v. Olmande, 94 Mass.App.Ct.
1114 (2018). The SJC denied Petitioner's application for
further appellate review on March 6, 2019. Commonwealth
v. Olmande, 481 Mass. 1106 (2019).
petitioned for habeas corpus on June 3, 2019. The Court
docketed his petition on June 10, 2019. (Docket No. 1).
Kristie Ladouceur (“Respondent”) moved to dismiss
the petition as untimely on September 10, 2019. (Docket No.
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2241 et seq.
(2000), a petitioner must file for federal habeas relief
within one year of “the date on which the judgment
became final by the conclusion of direct review or the
expiration of the time for seeking such review.”
See id. § 2244(d)(1). Here, the limitations
period began on January 29, 2014, when the time to seek a
writ of certiorari expired. See David v. Hall, 318
F.3d 343, 345 (1st Cir. 2003). It then continued to run for
292 days until Plaintiff filed for a new trial on November
17, 2014. See 28 U.S.C. § 2244(d)(2)
(“The time during which a properly filed application
for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall
not be counted toward any period of limitation under this
subsection.”). Even giving Plaintiff the benefit of the
almost three-year period between when he filed an appeal on
the denial of his first motion for a new trial and when he
filed his second motion for a new trial, the AEDPA clock
would have resumed, at the latest, on March 7, 2019, the day
after the SJC denied his application for further appellate
review. See David, 318 F.3d at 345. Plaintiff
petitioned for habeas corpus relief on June 3, 2019, i.e., 88
days later and 380 cumulative days after his judgment became
final. Because he filed his petition outside the one-year
limitations period, his petition is untimely. The Court
therefore grants the
Respondent's motion to dismiss. (Docket No. 11)
statute governing appeals of final orders in habeas corpus
proceedings provides that an appeal is not permitted
“[u]nless a circuit justice or judge issues a
certificate of appealability.” 28 U.S.C. §
2253(c)(1). A certificate of appealability may issue
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). To make a “substantial showing,
” a petitioner must demonstrate that “reasonable
jurists could debate whether . . . the petition should have
been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473,
484, 120 S.Ct. 1595 (2000) (internal quotation marks
omitted). This is a low bar; a claim can be considered
“debatable” even if every reasonable jurist would
agree that the petitioner will not prevail. Miller-El v.
Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029 (2003). In
ruling on an application for a certificate of appealability,
a district court must indicate which specific issues satisfy
the “substantial showing” standard. 28 U.S.C.
a certificate of appealability with respect to dismissal of
this petition because I find that Petitioner cannot
demonstrate that reasonable jurists could debate whether he
filed his ...