Rodriguez v. Spencer

United States Court of Appeals
For the First Circuit

No. 03-2139

JOSE LINCOLN RODRIGUEZ,

Petitioner, Appellant,

v.

LUIS SPENCER,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]

Before

Selya, Lynch, and Lipez, Circuit Judges.

Matthew V. Soares for appellant.
Susanne G. Reardon, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief, for appellee.

June 15, 2005
 LYNCH, Circuit Judge. The Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA) establishes a one-year statute of

limitations for a state prisoner's filing of a federal habeas

corpus petition. 28 U.S.C. § 2244(d)(1). That limitations period

is tolled, however, while "a properly filed application for State

post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending." Id. § 2244(d)(2)

(emphasis added).

This case requires us to consider the question of whether

an application to the Massachusetts Supreme Judicial Court (SJC)

for extraordinary relief under Mass. Gen. Laws ch. 211, § 3 may

constitute "a properly filed application for . . . other collateral

review with respect to the pertinent judgment or claim." The

Commonwealth defends primarily on the ground that a petition for

ch. 211, § 3 review can never be "an application for . . . other

collateral review." There is an implicit second argument that this

particular petition was not such an application for collateral

review within the meaning of 28 U.S.C. § 2244(d)(2), particularly

in the aftermath of a quite recent Supreme Court opinion, Pace v.

DiGuglielmo, 125 S. Ct. 1807 (2005). We disagree with the

Commonwealth's first argument but agree with its second. We affirm

the dismissal of the federal habeas petition brought by Jose

Lincoln Rodriguez because it was untimely and not saved by the

tolling provision of 28 U.S.C. § 2244(d)(2).

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 I.

On July 20, 1977, Rodriguez was convicted of forcible

rape and of assault and battery with a dangerous weapon of a

twenty-one year old student at a local university. Rodriguez

"grabbed the victim . . . , jabbed a broken bottle into her neck,

put his jacket over her face, and raped her in the backyard of a

nearby house." Commonwealth v. Rodriguez, 737 N.E.2d 910, 912

(Mass. App. Ct. 2000). After entry of the verdicts, the trial

judge postponed sentencing and, sua sponte, ordered the petitioner

committed to the treatment center at Bridgewater State Hospital for

a determination of sexual dangerousness pursuant to Mass. Gen. Laws

ch. 123A, § 4. At a later Superior Court hearing, Rodriguez was

determined to be sexually dangerous and committed to the treatment

center for an indeterminate period of from one day to life,

pursuant to Mass. Gen. Laws ch. 123A, § 5. This order of

commitment was reviewed by the SJC, which affirmed the order,

contingent on the affirmance of the criminal convictions.

Commonwealth v. Rodriguez, 382 N.E.2d 725, 734 & n.20 (Mass. 1978).

On December 22, 1978, the Massachusetts Appeals Court

reversed the petitioner's convictions in Commonwealth v. Rodriguez,

383 N.E.2d 851, 857 (Mass. App. Ct. 1978). The SJC granted the

parties' application for leave to obtain further appellate review

(ALOFAR), affirmed the Appeals Court's reversal of the petitioner's

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convictions in Commonwealth v. Rodriguez, 391 N.E.2d 889, 897

(Mass. 1979), and ordered a new trial.

Released on bail, Rodriguez did not appear on the date

set for his new trial. Seven years later, Rodriguez was found in

California and returned to Massachusetts, where a jury convicted

him once again of rape and assault and battery with a dangerous

weapon on December 23, 1987. He was sentenced to life with the

possibility of parole.

On November 3, 2000, the Massachusetts Appeals Court

affirmed the petitioner's convictions from his second trial, and,

in turn, affirmed the denials of his subsequent motions for new

trial and for post-conviction dismissal. Commonwealth v. Rodriguez,

737 N.E.2d 910, 920 (Mass. App. Ct. 2000). On January 3, 2001, the

SJC denied petitioner's ALOFAR in Commonwealth v. Rodriguez, 742

N.E.2d 81 (Mass. 2001).1

On May 8, 2001, the petitioner filed a petition for

general superintendence of inferior courts pursuant to ch. 211, § 3

with a single justice of the Supreme Judicial Court for Suffolk

County. A later amendment to this petition is not relevant. That

justice denied the petition on February 14, 2002. Rodriguez filed

1
If Rodriguez had promptly filed a federal habeas claim
after the SJC's denial of his petition to seek further appellate
review of the Appeals Court's affirmance of the denial of his new
trial motion, there would be no question about the timeliness of
his Fourth and Sixth Amendment claims raised in his federal habeas
petition.

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a notice of appeal from this denial on February 20, 2002, but moved

to dismiss the appeal on September 10, 2002.

On January 31, 2003, Rodriguez filed the instant petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The

respondent filed a motion to dismiss the petition as time-barred

pursuant to 28 U.S.C. § 2244(d)(1). The district court dismissed

the petition as time-barred on April 29, 2003. That dismissal did

not consider the effect of Rodriguez' ch. 211, § 3 petition; indeed,

Rodriguez did not argue the issue to the court. Rodriguez moved for

reconsideration which the district court denied.

On August 1, 2003, the petitioner filed a motion for

Certificate of Appealability which the district court denied on

February 3, 2004. On September 17, 2004, this court allowed a

Certificate of Appealability, raising sua sponte the issue of

whether the petition filed under ch. 211, § 3 had a tolling effect

under 28 U.S.C. § 2244(d)(2).

II.

We review de novo the denial of a habeas application on

procedural grounds. Voravongsa v. Wall, 349 F.3d 1, 3-4 (1st Cir.

2003). We set the context.

Rodriguez' federal habeas petition raises several

constitutional arguments: (1) the introduction of illegally seized

evidence at his trial violated the Fourth, Sixth, and Fourteenth

Amendments; (2) the in-court identification procedure used to

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identify him as the assailant violated the Sixth and Fourteenth

Amendments; (3) the absence of counsel at his pretrial

identification violated the Sixth Amendment; and (4) his counsel was

ineffective also in violation of the Sixth Amendment.

By contrast, his claim to the SJC in the ch. 211, § 3

petition was not that he had been denied those federal

constitutional rights, but that one member of a three-justice panel

of the state appeals court which affirmed his conviction was

involved in a conflict of interest with the prosecutor who tried his

case. The relief Rodriguez sought in the ch. 211, § 3 petition was

not, directly, the vacating of the judgment of guilt, but further

appellate review of his conviction by the SJC or review by another

appeals court panel.2 He also asserted he had just learned of the

supposed conflict and no other remedy was available because a motion

for a new trial would do him no good as to the Appeals Court's

2
One might ask why, if the ch. 211, § 3 petition did not
raise the same claims as Rodriguez' habeas claims, his state
petition addressed to another claim should extend the time for his
habeas claims. The answer is that the habeas statute refers to
both "judgments" and to "claims." See 28 U.S.C. § 2244(d)(2) (the
time is tolled while a properly filed application for collateral
review is pending "with respect to the pertinent judgment or
claim"). While we have not decided the issue, Nowaczyk v. Warden,
N.H. State Prison, 299 F.3d 69, 74-75 (1st Cir. 2002) (leaving the
question open), most courts have considered that a post-conviction
attack on an underlying criminal judgment (even if it raises a
different claim) is sufficient to toll the limitations period.
See, e.g., Carter v. Litscher, 275 F.3d 663, 664-65 (7th Cir.
2001); Tillema v. Long, 253 F.3d 494, 502 (9th Cir. 2001).

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decision, and his time for seeking rehearing in the Appeals Court

had long since expired.

The single justice of the SJC held that Rodriguez was not

entitled to relief under ch. 211, § 3 because he had other

procedures he could have used and that regardless, Rodriguez did not

challenge the other two justices of the Appeals Court panel and so

the panel affirmance would stand in any event.

A. Ch. 211, § 3 Petitions as Applications for "State Post-
Conviction Relief or Other Collateral Review"

We turn to the Commonwealth's first ground -- its

contention that a ch. 211, § 3 petition can never be an application

for other collateral review.3 Massachusetts law is our starting

point. See Carey v. Saffold, 536 U.S. 214, 223 (2002) ("[F]or

purposes of applying a federal statute that interacts with state

procedural rules, we look to how a state procedure functions.");

Voravongsa, 349 F.3d at 4.

Massachusetts General Laws ch. 211, § 3 reads:

Superintendence of inferior courts; power to
issue writs and process.

The supreme judicial court shall have general
superintendence of all courts of inferior
jurisdiction to correct and prevent errors and
abuses therein if no other remedy is expressly
provided; and it may issue all writs and

3
The Supreme Court has recognized that the phrase "other
collateral review" is not restricted to state criminal convictions:
it may apply to situations in which a person is in custody other
than pursuant to a state conviction. See Duncan v. Walker, 533
U.S. 167, 176 (2001). That issue need not concern us.

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 processes to such courts and to corporations
and individuals which may be necessary to the
furtherance of justice and to the regular
execution of the laws.

In addition to the foregoing, the justices of
the supreme judicial court shall also have
general superintendence of the administration
of all courts of inferior jurisdiction,
including, without limitation, the prompt
hearing and disposition of matters pending
therein . . . and it may issue such writs,
summonses and other processes and such orders,
directions and rules as may be necessary or
desirable for the furtherance of justice, the
regular execution of the laws, the improvement
of the administration of such courts, and the
securing of their proper and efficient
administration . . . .

Mass. Gen. Laws ch. 211, § 3.

This route to collateral review of a conviction is not the

ordinary one. The normal post-conviction remedy provided by

Massachusetts to a convicted criminal defendant seeking further

review is a direct appeal; or, once the conviction becomes final

after appeal, an individual can file a motion for a new trial under

Mass. R. Crim. P. 30. Rule 30 "provide[s] remedies for persons who

have been imprisoned in violation of State and Federal law and also

enable[s] Judges to give discretionary relief where justice may not

have been done." 30A Kent B. Smith, Massachusetts Practice § 2052

(1983). There are no time limitations for filing a Rule 30 motion,

and an individual can file multiple Rule 30 motions. See Mass. R.

Crim. P. 30. The SJC has held that a Rule 30 motion is the

"exclusive vehicle for postconviction relief" in Massachusetts.

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Leaster v. Commonwealth, 432 N.E.2d 708, 709 (Mass. 1982). We

accept that. Whether it is the exclusive vehicle for "other

collateral review" is a different matter. See Duncan v. Walker, 533

U.S. 167, 177 (2001).

By contrast with Rule 30, "[a] part[y] seeking review

under ch. 211, § 3, must demonstrate both a substantial claim of

violation of [his or her] substantive rights and error that cannot

be remedied under the ordinary review process." Planned Parenthood

League of Mass., Inc. v. Operation Rescue, 550 N.E.2d 1361, 1365

(Mass. 1990) (internal citations and quotation marks omitted).

Although ch. 211, § 3 is a civil statute, the SJC has exercised its

superintendence power in criminal cases as well. But the SJC has

cautioned that relief under ch. 211, § 3 in such circumstances is

"extraordinary." Diggs v. Commonwealth, 788 N.E.2d 544, 545 (Mass.

2003). A ch. 211, § 3 petition is not to be used as "a substitute

for normal appellate review," Tavares v. Commonwealth, 823 N.E.2d

374, 375 (Mass. 2005), and relief is not ordinarily available when

the petitioning party has or had "adequate and effective avenues

other than [ch. 211, § 3], by which to seek and obtain the requested

relief." Jaynes v. Commonwealth, 768 N.E.2d 1053, 1054 (Mass. 2002)

(internal quotation marks and citations omitted); Lykus v.

Commonwealth, 732 N.E.2d 897, 899 (Mass. 2000) (denying relief under

ch. 211, § 3 when the defendant had another available remedy).

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 Our difficulty with the Commonwealth's absolutist position

that a ch. 211, § 3 petition may never be a petition for other

collateral review within the meaning of 28 U.S.C. § 2244(d)(2) is

that the Commonwealth itself has decided to leave room for such

discretionary collateral relief. Despite its language, the SJC has

in fact both reviewed the merits and granted relief (albeit rarely)

in ch. 211, § 3 petitions even when another remedy was available.

While we agree that ch. 211, § 3 is not the normal means for either

post-conviction relief or collateral review, under the AEDPA tolling

provision, Congress has deferred to the states, and Massachusetts

has chosen to permit collateral review in some circumstances under

ch. 211, § 3. As the Supreme Court has held in Duncan, "Congress

may have refrained from exclusive reliance on the term 'post-

conviction' so as to leave no doubt that the tolling provision

applies to all types of state collateral review available after a

conviction and not just to those denominated 'post-conviction' in

the parlance of a particular jurisdiction." Duncan, 533 U.S. at

176.

The ch. 211, § 3 procedure operates to provide a vehicle

for attacks on convictions and sentences. See Aldoupolis v.

Commonwealth, 435 N.E.2d 330 (Mass. 1982) (vacating revocation of

suspension of sentence). It is also a vehicle for interlocutory

review and relief in a criminal proceeding. See Barry v.

Commonwealth, 455 N.E.2d 437 (Mass. 1983) (considering motion to

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dismiss on speedy trial grounds); Gilday v. Commonwealth, 274 N.E.2d

589 (Mass. 1971) (vacating pretrial order that defendants disclose

certain defenses without deciding whether the ch. 211, § 3 petition

was proper).

There are other situations in which the SJC has exercised

its ch. 211, § 3 jurisdiction post-judgment in criminal cases where

the defendant's federal constitutional rights were at issue. An

example is Commonwealth v. Lowder, 731 N.E.2d 510 (Mass. 2000),

where the Commonwealth appealed from entry of a judgment of

acquittal following opening statements. The SJC took jurisdiction

under ch. 211, § 3 and concluded double jeopardy would preclude

retrial. The obverse of this was addressed by this court in

Gonzalez v. Justices of the Municipal Court of Boston, 382 F.3d 1

(1st Cir. 2004), vacated by 115 S. Ct. 1640 for reconsideration in

light of Smith v. Massachusetts, 125 S. Ct. 1129 (2005). There, the

SJC, exercising ch. 211, § 3 jurisdiction, determined that double

jeopardy did not bar retrial after entry of judgment of acquittal;

a federal habeas petition ensued. And in Jackson v. Coalter, 337

F.3d 74 (1st Cir. 2003), this court again addressed on habeas a

double jeopardy claim where the SJC had exercised its ch. 211, § 3

power to review and reject the defendant's double jeopardy claim.

The unacceptability of the Commonwealth's absolutist

position is thus highlighted. In some instances it will be the very

outcome of the ch. 211, § 3 petition which gives rise to the habeas

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petition. In some cases, the SJC will address and reject in such

petitions the claims to be raised on federal habeas or that

otherwise attack the judgment of conviction. The allowance of a ch.

211, § 3 petition may well moot the potential habeas claims by

granting the relief which would otherwise be sought. It is evident

that in many cases, the purposes of the federal tolling provisions

would be served by recognizing ch. 211, § 3 petitions. The Court

in Duncan described the federal tolling provision as ensuring that

state courts have the opportunity to fully explore potential federal

law challenges before the federal courts entertain a collateral

attack and as ensuring the finality of state court judgments.

Duncan, 533 U.S. at 179-80. The federal habeas system has no

interest in undercutting the resolution of issues in the state

system, even if that resolution comes by way of extraordinary

relief.4 Thus we reject the Commonwealth's position that

categorically a ch. 211, § 3 petition cannot be "an application for

. . . other collateral review."

4
The question of whether a petition is required for
exhaustion of claims under 28 U.S.C. § 2254(c) is distinct from
whether an application for collateral review tolls AEDPA's
limitations period. See O'Sullivan v. Boerckel, 526 U.S. 838, 844
(1999) ("Although the language [requiring exhaustion in 28 U.S.C.
§ 2254(c)] could be read to effectively foreclose habeas review by
requiring a state prisoner to invoke any possible avenue of state
court review, we have never interpreted the exhaustion requirement
in such a restrictive fashion. . . . Section 2254(c) requires only
that state prisoners give state courts a fair opportunity to act on
their claims." (emphasis in original)). There should be no
suggestion that a Massachusetts state prisoner must file a ch. 211,
§ 3 petition in order to exhaust his state remedies.

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B. Rodriguez' Ch. 211, § 3 Petition as An Application for Other
Collateral Review.

We have determined that the ch. 211, § 3 label on a

petition collaterally attacking a state judgment does not alone

disqualify a petition as being within the scope of 28 U.S.C.

§ 2244(d)(2). That is because the SJC's extraordinary relief has

been invoked in a variety of circumstances. The harder question is

whether this particular petition satisfies the criteria of being an

application for collateral review of the state court judgment within

the meaning of the federal tolling statute, 28 U.S.C. § 2244(d)(2).5

Not every filing by a criminal defendant meant to advance

his challenge to a judgment of conviction amounts to an application

for other collateral review of the judgment or claim. Some fact

patterns easily demonstrate this. A pro se motion for appointment

of state post-conviction counsel is not such an application.

Voravongsa, 349 F.3d at 7. Nor is a motion to revive an appeal.

5
The Commonwealth alleges when a single justice denies a
ch. 211, § 3 petition due to the existence of an alternative
adequate remedy, the decision should be read as saying there was no
"jurisdiction" over the petition. Relying on Pace, the
Commonwealth argues that when there was no state court jurisdiction
over the state application, the application cannot be "properly
filed" for federal tolling purposes. See Pace, 125 S. Ct. at 1812.
Rodriguez' petition, therefore, is not "properly filed".
The Commonwealth raises an interesting argument but one we do
not reach. The premise for the Commonwealth's argument is not
firm. As we have explained, the SJC has in fact taken jurisdiction
under ch. 211, § 3 when other remedial avenues were available. And
often it is not clear whether the SJC is saying there is no
jurisdiction. Thus we reject the Commonwealth's position that
categorically a ch. 211, § 3 petition denied due to an alternative,
adequate remedy can never be "properly filed."

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Adeline v. Stinson, 206 F.3d 249, 252 (2d Cir. 2000). Nor is an

application before a state sentence review panel. Bridges v.

Johnson, 284 F.3d 1201 (11th Cir. 2002).

Our question on the facts of this case is harder. We have

already said we will not take the absolutist position that a ch.

211, § 3 petition can never be an application for collateral review.

In analyzing this case, we are guided by the Supreme

Court's recent decision in Pace, 125 S. Ct. at 1812-14. Pace held

that where a state court, after judicial consideration, ultimately

determines that a post-conviction filing is untimely, the filing is

not a "properly filed application" for purposes of 28 U.S.C.

§ 2244(d)(2), despite the clerk's acceptance of the filing. Id.

at 1814. Pace signals that the state court's reasoning in disposing

of the filing may be considered by the federal courts in determining

whether the application was "properly filed" for purposes of

tolling. Id. at 1812-13 ("conditions to filing" can include

conditions that require state judicial consideration). Pace

requires us to look beyond the mechanical exercise of filing and

engage in case-by-case scrutiny of the state court's disposition of

that state filing to determine whether AEDPA's tolling provision

applies.

By analogy, we conclude that the state court's reasoning

in the disposition of the ch. 211, § 3 petition in this case is also

relevant to determining whether the petition qualifies as an

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application for collateral review of the pertinent judgment. We

stress that the scope of this opinion deals only with ch. 211, § 3

petitions, and not with the usual state mechanisms for post-

conviction and collateral review.

We turn to consider the single justice's rationale in

denying Rodriguez' ch. 211, § 3 petition. Here, the single

justice's decision held both that Rodriguez had failed to take the

opportunities available earlier to him to assert his claim of bias

and that, in any event, any relief would not affect his criminal

judgment of conviction since a majority of the Appeals Court panel

had affirmed his conviction.

The single justice's second ground conclusively tilts the

balance and leads to a conclusion that Rodriguez' application was

not an application for collateral review of the pertinent judgment,

Rodriguez' state criminal conviction, within the meaning of 28

U.S.C. § 2244(d)(2).

We understand the single justice's holding as follows.

Rodriguez' petition did not qualify for exercise of ch. 211, § 3

power not merely because other remedies were available earlier, but

also because as a matter of state law the purported bias of one of

three appellate justices would not affect the integrity of the

Massachusetts Appeals Court judgment affirming his criminal

conviction. In disposing of Rodriguez' ch. 211, § 3 petition, the

single justice held that even if the allegations of conflict by one

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justice were true, the relief requested was, as a matter of

Massachusetts law, irrelevant to the validity of the judgment of

conviction, which would stand on a two-to-nothing vote. It

therefore cannot reasonably be said that Rodriguez' ch. 211, § 3

petition is an application for collateral review of the judgment.

Federal courts sitting in habeas must accept state court

rulings on state law issues. An inquiry into the correctness of a

ruling on state law issues "is no part of a federal court's habeas

review of a state conviction." Estelle v. McGuire, 502 U.S. 62, 67

(1991). We see no reason why the same rule does not apply to the

interpretation of the tolling statute in determining whether a

particular application seeks collateral review of the pertinent

judgment. Indeed, Pace itself strongly implies that we follow such

a rule. As in Pace, when a state court determines under state law

that the ch. 211, § 3 petition is not an application for collateral

review of the judgment, then "'that [is] the end of the matter' for

purposes of [28 U.S.C.] § 2244(d)(2)." Pace, 125 S. Ct. at 1812

(quoting Saffold, 536 U.S. at 226).

It would be contrary to the express language of 28 U.S.C.

§ 2244(d)(2) to permit this particular petition to toll the federal

limitations period that had since run on petitioner's habeas claims.

We need not decide now under what other circumstance such ch. 211,

§ 3 petitions will also fail to qualify as federal tolling

mechanisms.

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We affirm the dismissal of the petition.

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