695 F.3d 105
1st Cir.2012Background
- Herbert was convicted in 1991 of armed robbery and first-degree felony murder; affirmed in 1995 by the Massachusetts SJC, final in 1996 after time to seek certiorari expired.
- He timely filed state post-conviction motions starting December 1996, including for a new trial and appointment of counsel, but some were not docketed; renewed motions were filed December 2002 and denied November 2003.
- In 2004 Herbert sought leave from a gatekeeper justice under Mass. Gen. Laws ch. 278, § 33E to appeal the denial; the gatekeeper denied February 2004 and reconfirmed August 2004.
- Herbert appealed to the full Massachusetts SJC, which dismissed the appeal December 12, 2005.
- On January 5, 2006 Herbert filed a 28 U.S.C. § 2254 habeas petition in the district court, raising preserved issues on involuntary confession and racially biased jury selection.
- The district court concluded the petition was timely due to tolling from state-post-conviction proceedings, but later denied the petition on the merits; on appeal the First Circuit sustained the denial on the merits, focusing on timeliness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AEDPA's one-year tolling applies here | Herbert’s tolling from state proceedings kept the federal deadline. | The tolling ended when the gatekeeper denied relief and after review time expired. | AEDPA deadline not tolled; petition untimely. |
| Whether the gatekeeper denial was properly counted in tolling | Gatekeeper delay extended the tolling period. | Gatekeeper decision is final and unreviewable; tolling ends when denial is issued. | Tolling ends at gatekeeper denial; further tolling not available. |
| Whether Haberek creates a narrow exception allowing review to the full SJC | Haberek could permit review of a similar ineffective-assistance claim. | Haberek was overruled; no exception survives for gatekeeper denials. | Haberek overruled; no exception to finality for gatekeeper denials. |
| Whether the 777 non-tolled days render the petition untimely | Tolling periods reduce the non-tolled time notably. | Non-tolled period accumulates well beyond one year even with tolling. | Total non-tolled time makes petition untimely. |
| Did Massachusetts procedural rules govern whether state post-conviction relief was pending | Mass. rules kept state petitions pending for tolling purposes. | Mass. gatekeeper decisions are final; pending status ends with denial. | Massachusetts gatekeeper denial ends pendency for AEDPA tolling. |
Key Cases Cited
- Neverson v. Farquharson, 366 F.3d 32 (1st Cir. 2004) (finality for certiorari clock starts after direct review period ends)
- Gaskins v. Duval, 183 F.3d 8 (1st Cir. 1999) (grace period for pre-AEDPA action filings)
- Drew v. MacEachern, 620 F.3d 16 (1st Cir. 2010) (state-post-conviction tolling depends on state procedures)
- Carey v. Saffold, 536 U.S. 214 (U.S. 2002) (equitable tolling concerns in state-court review timing)
- Currie v. Matesanz, 281 F.3d 261 (1st Cir. 2002) (timing of tolling when appeal periods run anew after late filing)
- Haberek v. Commonwealth, 657 N.E.2d 228 (Mass. 1995) (gatekeeper process later overruled; potential tolling concerns discussed)
- Commonwealth v. Cook, 857 N.E.2d 31 (Mass. 2006) (gatekeeper’s denial deemed final and unreviewable)
- Commonwealth v. Nassar, 908 N.E.2d 371 (Mass. 2009) (untimeliness and gatekeeper procedural issues support finality)
- Commonwealth v. Smith, 951 N.E.2d 322 (Mass. 2011) (gatekeeper decision final and unreviewable in Massachusetts)