Sample Petition for Further Appellate Review in Criminal Case in Mass

ROBERT FOXWORTH vs. PETER ST. AMAND.

457 Mass. 200

April v, 2010 - July 2, 2010

Suffolk County

Nowadays: MARSHALL, C.J., Ireland, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

Practice, Criminal, Rescript from appellate court, Judgment, Conviction. Supreme Judicial Court, Further appellate review.

This court, past considering a petitioner's awarding, originally filed in 2000 and amended in 2002, for go out to obtain further appellate review of a 1996 decision of the Massachusetts Appeals Court, did not reopen the finality of the petitioner's confidence when, in 2002, it immune the defendant's move to file the application belatedly and then denied the amended application. [204-209]

CERTIFICATION of a question of constabulary to the Supreme Judicial Court past the United States Court of Appeals for the First Circuit.

John G. Thompson (Linda J. Thompson with him) for the plaintiff.

Susanne Grand. Reardon, Assistant Attorney General, for the defendant.

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BOTSFORD, J. In 1992, afterwards trial in the Superior Court, Robert Foxworth was convicted of murder in the 2d degree; the Appeals Court affirmed the conviction in 1996. Commonwealth 5. Foxworth, 41 Mass. App. Ct. 1113 (1996). Reviewing Foxworth's subsequent petition for habeas corpus relief pursuant to 28 U.Southward.C. § 2254 (2006), the United States Court of Appeals for the Beginning Circuit (First Circuit) [Note i] has certified the post-obit question to this court, pursuant to South.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981):

"In considering the petitioner'southward application, filed in 2000, for get out to obtain farther appellate review of the 1996

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Massachusetts Appeals Court decision, did the Supreme Judicial Court reopen the finality of the petitioner's confidence in 2002?"

Foxworth 5. St. Amand, 570 F.3d 414, 437 (1st Cir. 2009) (Foxworth). [Annotation two] For the reasons that follow, nosotros reply the question no.

Background. The procedural history of this example in both the State and Federal courts is ready out in detail in the First Excursion's opinion accompanying the certification guild. Encounter Foxworth, supra at 420-424. We summarize those procedural facts that affect the certified question. In March of 1992, Foxworth and two codefendants were tried in the Superior Court on indictments charging each of them with murder in the first degree. Foxworth had moved unsuccessfully before trial to sever his case from his codefendants on the ground that he would be prejudiced by the introduction of a statement one of his codefendants, Troy Logan, had given to the police. At trial, Logan's statement was introduced in bear witness (over Foxworth's timely objection) through a police detective, only the statement was redacted or altered in several places to substitute the term "Mr. 10" for Foxworth'south name. Encounter id. at 421-422. On March 31, 1992, a jury convicted Foxworth of murder in the 2nd degree, and acquitted Logan. [Note 3] Foxworth filed a timely appeal from his conviction. On March 16, 1994, he filed a motility for new trial in the Superior Court pursuant to Mass. R. Crim. P. 30 (b), 378 Mass. 900 (1979) (starting time new trial motion). In his first new trial motion, Foxworth asserted, among other claims, that the access of his codefendant's statement in evidence at trial contravened Bruton v. United States, 391 U.Due south. 123 (1968) (Bruton). A judge in the Superior Court (not the trial approximate) denied Foxworth's first new trial motion in August, 1994. Thereafter, the Appeals Courtroom consolidated Foxworth's appeal from that denial with his directly appeal from his conviction, and affirmed both the conviction and the denial of the new trial motion

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in a decision issued pursuant to that court's rule one:28 on October 21, 1996. Commonwealth v. Foxworth, supra. One of the grounds of appeal raised by Foxworth, and considered by the Appeals Court, was his merits of a Bruton violation.

Pursuant to Mass. R. A. P. 27.1 (a), every bit amended, 369 Mass. 920 (1975), Foxworth had twenty days from Oct 21, 1996, in which to file an application for further appellate review. No such application was filed within the prescribed menstruum. In accordance with Mass. R. A. P. 23, equally actualization in 367 Mass. 921 (1975), therefore, the Appeals Courtroom'southward rescript issued to the trial courtroom on November eighteen, 1996. On November 22, 1996, the rescript, indicating "Judgment affirmed," was entered on the docket in the Superior Court.

Almost four years later, on Oct 25, 2000, Foxworth filed in this courtroom a pro se application for leave to obtain further appellate review (FAR application), accompanied by a motion to file the FAR application late. One of the grounds asserted for obtaining further appellate review was the alleged Bruton violation. In November, 2000, before the court acted on his awarding and motion to file the application late, Foxworth filed, and this courtroom immune, a move to stay action on his requests in order to allow Foxworth to pursue a second motion for a new trial. Foxworth filed pro se his second new trial motion in the Superior Court in Dec, 2000; the move did not enhance the Bruton violation merits. Foxworth, 570 F.3d at 423. Another Superior Court judge denied the second motion, and the Appeals Court affirmed its denial in a brief memorandum and order dated April 17, 2002. Commonwealth 5. Foxworth, 54 Mass. App. Ct. 1112 (2002).

Thereafter, on July 22, 2002, Foxworth, now represented by counsel, filed in this court an amended FAR awarding that represented a consolidation of his original 2000 FAR awarding with another FAR application concerning the Appeals Court's 2002 decision. He besides filed a motion to file the application late; the courtroom allowed that motility on July 22. [Note 4] On September 6,

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2002, we denied Foxworth'due south amended FAR application without opinion or annotate. [Annotation five]

On September 10, 2003, Foxworth filed a petition for habeas corpus in the United States District Court for the Commune of Massachusetts. Lengthy proceedings in the Federal courts ensued. In summary, on August 17, 2006, a District Court guess initially granted Foxworth's petition on the basis of the claimed Bruton violation, vacated his conviction, and ordered the Democracy to retry Foxworth within sixty days or release him; on entreatment past the Republic, the Get-go Circuit remanded the instance to the Commune Court guess to address Foxworth's claim of insufficient evidence; on remand, in May of 2008, that approximate concluded that the evidence was bereft to back up Foxworth's conviction and ordered his release; and on the Democracy'south entreatment, the First Circuit certified to this court the question now earlier us. Encounter Foxworth, 570 F.3d at 423-424, 437.

The certified question is relevant to the Start Circuit's review of the habeas petition because that court has concluded, in contrast to the District Court gauge, that the bear witness presented at Foxworth's trial was sufficient to sustain his conviction, run across id. at 428-429, and that the remaining pertinent question is whether Foxworth's Bruton violation claim entitles him to relief. In the view of the First Circuit, the respond to that question turns on the appointment on which Foxworth's direct appeal from his conviction was final, considering for Federal habeas relief to be granted, the State courtroom's decision is to be "measured against 'clearly established Federal police, as determined by the Supreme Courtroom of the The states.' In nearly cases (and, specifically, in this instance), the date of certitude of the state court conviction determines the time line to exist used for determining what Supreme Court decisions incorporate the corpus of this 'clearly established Federal law.' " Id. at 430, quoting 28 The statesC. § 2254(d). [Notation 6] Compare Griffith v. Kentucky, 479 U.S. 314, 322-323 (1987)

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(newly declared constitutional rule must be applied to all criminal cases then awaiting on straight review), with Teague v. Lane, 489 U.S. 288, 310 (1989) (opinion of O'Connor, J.) (with limited exceptions, new constitutional rules exercise not apply to cases on collateral review that accept become terminal before new rules announced).

The Kickoff Circuit considered that there were 2 possible dates of finality in the nowadays case: (i) November 18, 1996, the date the Massachusetts Appeals Courtroom'due south rescript issued, last that court's consideration of Foxworth'south direct appeal; or (2) September 6, 2002, the appointment that this courtroom denied Foxworth'south amended FAR application. Foxworth, 570 F.3d at 430. The deviation in these dates is critical to the Get-go Circuit's resolution of Foxworth's habeas corpus petition. That court has concluded that if the 1996 date were to stand for the stop of directly review in Foxworth'south case, he would not be entitled to habeas corpus relief, because, based on the Supreme Court's decision in Richardson v. Marsh, 481 U.S. 200 (1987), the Appeals Courtroom'due south rejection of Foxworth's Bruton claim "was not an unreasonable application of clearly established Federal law." Foxworth, supra at 433. See id. at 436. If, on the other hand, the 2002 date defined finality for the directly review procedure, Foxworth's habeas petition should be granted because the Supreme Court'south decision in Gray v. Maryland, 523 U.S. 185 (1998), would so utilise, and the Appeals Court's determination on the claimed Bruton violation represented an unreasonable application of Gray. Foxworth, supra at 434-435, 436.

Discussion. Nosotros have the premise of the Get-go Circuit, that the "date of finality" of a State court judgment (see note 6, supra) is a affair to exist determined with reference to Land police force. Run across Foxworth, 570 F.3d at 429, 437. See too Losh five. Fabian, 592 F.3d 820, 824-825 (8th Cir. 2010) (State Supreme Court could determine whether item blazon of appeal permitted nether State police force qualified as part of directly review of criminal conviction and judgement, or form of collateral review). Cf. Carey v. Saffold, 536 U.S. 214, 223 (2002) ("for purposes of applying

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a federal statute that interacts with state procedural rules, we await to how a country process functions"). But see Teas five. Endicott, 494 F.3d 580, 582 (seventh Cir. 2007) (definition of "direct review" in 28 UsC. § 2244[d] [2006] is affair of Federal law). In the Commonwealth, the determination of the finality date is derived primarily from the Massachusetts Rules of Appellate Procedure and associated statutes. Every defendant in a criminal instance has the right to bring an appeal from, and obtain direct review of, a conviction. G. L. c. 278, § 28. With ane exception not relevant here, the Appeals Courtroom and this court share concurrent jurisdiction over criminal appeals. The directly appeal is entered in the Appeals Court in the first example, and in virtually cases (equally in this case), the appeal is heard and decided by the Appeals Court. See G. L. c. 211A, § 10. In such an appeal, when the Appeals Court issues its opinion, the clerk of that court mails a copy of the stance and the "rescript" -- in effect, the Appeals Court'south judgment in that case [Note 7] -- to the parties, and so bug the rescript to the lower court twenty-eight days after the date of the rescript. Mass. R. A. P. 23. [Annotation 8]

Equally dominion 23 indicates, the reason for the xx-8 day

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delay in issuance of the rescript to the lower court is to accommodate a party's twenty-day right to seek farther appellate review of the case by this court [Notation ix] pursuant to G. L. c. 211A, § 11, and rule 27.i. [Note 10] If the FAR awarding is timely filed (i.e., within twenty days), the Appeals Court's rescript is stayed until this court rules on the awarding. If we deny the FAR application, the Appeals Courtroom's rescript then issues forthwith to the lower court; if the application is allowed, the Appeals Court's rescript does non and then issue, only instead, a rescript from this courtroom will effect pursuant to dominion 23 at the time nosotros effect our decision in the case. The gist of these rules, taken together, is that when a rescript does consequence to the lower courtroom -- whether the rescript is issued by the Appeals Court or this court -- that signals the end of the straight review procedure for the case. Equally the Showtime Circuit suggested, Foxworth, 570 F.3d at 436-437, the date the rescript issues thus represents "the date of certitude" for the case, [Annotation 11] and it is a date that expressly includes inside its scope the opportunity to file a timely FAR awarding and the resolution of whatever such application that is timely filed. [Note 12]

The certified question asks whether the finality of Foxworth'southward

Page 207

judgment of confidence was reopened when this courtroom in 2002 immune him to file a FAR application belatedly and and so denied the application. The fundamental to our answer is the rescript. As discussed, when a rescript of the Appeals Court issues to the lower court, that signifies the terminate of the directly entreatment process, because as rule 23 makes plain, it means either that the defendant did not file a timely FAR application or that the application he did file was denied, and therefore all available avenues for straight review under our State law are exhausted. See Caspari v. Bohlen, 510 U.Southward. 383, 390-391 (1994). If a defendant in the start category (no FAR application timely filed) subsequently files a motion to file a FAR application tardily, the allowance of such a motion [Notation 13] by itself has no upshot on the previously issued rescript: no rule or statute, including, most importantly, rule 23, provides for any modify in the condition of an issued rescript solely equally a outcome of this court's discretionary assart of a motion to file late. Accordingly, the final judgment reflected in the entry of the rescript on the trial court's docket remains the last judgment. Cf. Beard v. Banks, 542 U.Due south. 406, 412 (2004) (fact that State court might choose to waive its procedural rule barring consideration in postconviction proceedings of claims not previously raised did not render underlying judgment of confidence non-terminal).

Foxworth argues to the contrary, claiming that when a court decides to let a movement to file a FAR awarding late, it "raise[south] the question whether the court will alter the judgment and modify the parties' rights," Hibbs v. Winn, 542 U.South. 88, 98 (2004), and therefore suspends the finality of the judgment. We disagree. The Hibbs instance, also every bit Young five. Harper, 520 U.South. 143, 147 north.ane (1997), on which Foxworth also relies, are

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distinguishable. Neither case involved a state of affairs where the appellate rescript (or "mandate" in Federal parlance) had issued and thereby remained intact at all relevant times. [Note 14] But that is the upshot here, and as we have indicated, as a matter of State law, under our statutes and court rules, the allowance of a motion to file an FAR application tardily, by itself, does not operate to alter the condition of a rescript that has previously issued. Nor does a subsequent denial of the tardily-filed application. Such a denial is nothing more than an indication that nosotros take adamant, in our discretion, non to grant further review. Information technology is not an indorsement, acceptance, or ratification by us of the Appeals Court'south decision. Run across Ford v. Flaherty, 364 Mass. 382 , 387-388 (1973) ("An order past this court denying further review should not be considered in whatsoever instance every bit an affirmation of the decision or reasoning of the Appeals Court. Such an lodge but shows that, after consideration of the applicable statutory standards equally gear up forth in G. L. c. 211A, § xi, nosotros take determined not to grant further review. Only a rescript or rescript and opinion from this court, after further review, should be considered as a statement of our position on the legal bug concerned"). [Note fifteen]

Foxworth's reliance on the recent determination of the United

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States Supreme Court in Jimenez five. Quarterman, 129 Southward. Ct. 681 (2009), is also misplaced. In that instance, the Courtroom concluded that for purposes of measuring the one-yr limitations menstruum imposed by 28 United states of americaC. § 2244(d)(1)(A), for filing a writ of habeas corpus in Federal court, a Land court judgment of confidence is no longer "final" if the Land court grants a defendant the correct to file a late or "out-of-time" direct entreatment. Id. at 685-686. Rather, the Court stated, " 'the order granting an out-of-time appeal restore[d] the pendency of the direct appeal,' . . . and petitioner'due south confidence was over again capable of modification through straight appeal to the country courts and to this Court on certiorari review." Id. at 686, quoting Ex parte Torres, 943 S.W.second 469, 472 (Tex. Crim. App. 1997). Had we granted the tardily-filed FAR application, thereby effectively reinstating the direct appeal, then Jimenez v. Quarterman, supra, might exist applicative. See note 15, supra. Hither, yet, we denied rather than granted Foxworth's belatedly-filed FAR awarding. Nosotros did not reinstate the straight appeal or reopen the confidence in any other manner.

Conclusion. We respond to the certified question every bit follows: This court did non reopen the finality of the petitioner Robert Foxworth's 1992 conviction in 2002.

The Reporter of Decisions is to furnish attested copies of this opinion to the clerk of this court. The clerk in plough will transmit 1 copy, nether the seal of this court, to the clerk of the Us Court of Appeals for the First Excursion, as the answer to the question certified, and will also transmit a copy to each political party.

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FOOTNOTES

[Note 1] We refer to the Usa Court of Appeals for the First Circuit as the "Start Circuit" to avert any confusion between that court and the Massachusetts Appeals Court.

[Annotation 2] The defendant in this example, Peter St. Amand, is the superintendent of the Massachusetts Correctional Institution at Cedar Junction, and in that capacity is named as the respondent in the habeas corpus proceeding at issue, Foxworth v. St. Amand, 570 F.3d 414 (1st Cir. 2009) (Foxworth).

[Note 3] Before the case went to the jury, the trial judge granted the third accused'southward motility for a required finding of not guilty on all charges against him. See Foxworth, 570 F.3d at 422.

[Note 4] As the Kickoff Excursion noted, the record is cryptic concerning whether the July 22, 2002, order on the "motion to file FAR late" was intended to be, or had the effect of, an allowance of the belatedly filing of the first FAR awarding 4 years late. See Foxworth, 570 F.3d at 423. We interpret the society as allowing, inter alia, the late filing of the get-go FAR application.

[Note 5] It appears that Foxworth'southward initial pro se motion to file late was never acted on.

[Note 6] The First Circuit defined "finality" as follows: "Finality means that 'a judgment of conviction has been rendered, the availability of appeal exhausted, and the fourth dimension for a petition for certiorari [has] elapsed or a petition for certiorari [filed and] finally denied.' " Foxworth, 570 F.3d at 431, quoting Griffith v. Kentucky, 479 U.South. 314, 321 n.six (1987). Accordance Caspari v. Bohlen, 510 U.S. 383, 390 (1994). Nosotros sympathize the phrase "availability of appeal exhausted" to refer to the availability of straight entreatment from the judgment of confidence. We do not consider hither preconviction interlocutory appeals or postconviction collateral appeals.

[Notation 7] The word "rescript" is divers in Mass. R. A. P. 1 (c), 365 Mass. 844 (1974), to mean "the order, direction, or mandate of the appellate court disposing of the entreatment." Reporters' Notes to Rule 1, Mass. Ann. Laws Court Rules, Rules of Appellate Procedure, at 6 (LexisNexis 2008-2009) (" 'Rescript,' a term well-known to Massachusetts practice, covers the meaning of 'mandate,' the term used in the Federal Rules, [Rule] 41 [of the Federal Rules of Appellate Procedure]"). See also Reporters' Notes to Dominion 23, Mass. Ann. Laws Court Rules, Rules of Appellate Procedure, supra at 97 ("A rescript is the equivalent at the appellate level, of judgment in the trial court . . .").

[Note 8] Rule 23 of the Massachusetts Rules of Appellate Process, equally appearing in 367 Mass. 921 (1975), reads:

"The clerk of the appellate courtroom shall mail service to all parties a re-create of the rescript and the opinion, if ane was written. The rescript of the courtroom shall effect to the lower court twenty-eight days after the appointment of the rescript unless the time is shortened or enlarged by gild. The timely filing of a petition for rehearing or of an application for farther appellate review will stay the rescript until disposition of the petition or application unless otherwise ordered by the appellate court. If the petition or application is denied, the rescript shall issue forthwith unless the appellate court or a single justice orders otherwise. If an application for farther appellate review is granted the rescript of the Appeals Court shall non issue to the lower court."

[Notation 9] The twenty-eight days also accommodates a party'southward right under Mass. R. A. P. 27, equally amended, 410 Mass. 1602 (1991), to petition the Appeals Courtroom for rehearing within fourteen days of the date of the rescript. We focus here, however, solely on the right to file the FAR application.

[Notation 10] Rule 27.1 of the Massachusetts Rules of Appellate Procedure, equally amended, 367 Mass. 920 (1975), entitled "Further Appellate Review," provides in relevant part: "(a) Application; when filed; grounds. Within twenty days afterwards the date of the rescript of the Appeals Court whatever party to the entreatment may file an awarding for leave to obtain further appellate review of the example by the full Supreme Judicial Courtroom. Such awarding shall be founded upon substantial reasons affecting the public interest or the interests of justice."

[Note 11] I might argue that, although the direct entreatment concluded with the issuance of the Appeals Courtroom's rescript on November 18, 1996, the judgment of conviction in this instance did not truly go final until the rescript was entered on the Superior Court docket four days later, on November 22, 1996. Cf. Commonwealth five. Bodden, 391 Mass. 356 , 357-358 & due north.1 (1984) (leaving open up question of finality for purposes of Mass. R. Crim. P. 36, 378 Mass. 909 [1979], governing speedy trial following reversal of conviction past appellate court); Commonwealth five. Levin, 390 Mass. 857 , 860 due north.four (1984) (same). We need not resolve that point here, as the deviation of four days is inconsequential to the effect in both this court and the Kickoff Circuit.

[Note 12] Case law has besides recognized that a party'due south entitlement to request farther appellate review must be taken into business relationship before the direct appeal process is accounted consummate. See Sabatinelli v. Travelers Ins. Co., 369 Mass. 674 , 679 (1976) ("it is important to annotation that action of the Appeals Court under Dominion i:28 does not conclude a case. The losing party is entitled to request farther appellate review by this courtroom . . . [which] may be granted by iii Justices of this court 'for substantial reasons affecting the public involvement or the interests of justice.' G. L. c. 211, § 11"). Come across also Schwartz five. Bressler, 5 Mass. App. Ct. 796 (1977). Neither of these cases, however, considers the difference between timely and belatedly-filed FAR applications, let lonely a FAR application filed after the issuance of the Appeals Court's rescript equally we have here.

[Note 13] Nosotros frequently, but not always, permit motions to file FAR applications late. Compare Commonwealth v. O'Neil, 436 Mass. 1007 , 1008 n.1 (2002), with Hurley v. Superior Court Dep't of the Trial Courtroom, 424 Mass. 1008 , 1009 (1997).

[Annotation 14] In Hibbs v. Winn, 542 U.S. 88 (2004), the ninety-day period for seeking certiorari had not yet passed when the United States Court of Appeals for the Ninth Circuit Court recalled its mandate and directed the parties to brief the question whether the case should be reheard en banc. Given the think of the mandate by the court itself, it is non surprising that the Supreme Court held that "[b]ecause [the] 90-mean solar day limit had not yet expired, the clock could still be reset by an club that left unresolved whether the [Ninth Circuit] would modify its judgment." Id. at 98. Here, by contrast, we did not recollect (or make any other order with respect to) the Appeals Courtroom'due south 1996 rescript when nosotros authorized the late filing of the FAR application and denied the application in 2002.

In Young v. Harper, 520 U.South. 143, 147 due north.one (1997), the United states of america Courtroom of Appeals for the 10th Excursion granted the petitioners go out to file their petition two days late, just before the mandate had issued, and the Supreme Courtroom treated both the petition for rehearing and the subsequent petition for certiorari equally timely in the circumstances. In the present case, again by contrast, the application for further review was filed nearly four years after the rescript had already issued.

Finally, we note that both the Hibbs and Young cases involved points of Federal law; the limited question that has been certified to us is whether the Foxworth's conviction, which became final in 1996, was reopened past us in 2002 equally a matter of State law.

[Notation 15] In the brief filed on behalf of St. Amand, the Attorney General takes the position that if the court grants a tardily-filed FAR application after a rescript has issued, that allowance effectively reopens the final judgment. We practise not need to resolve the consequence in gild to respond the Offset Circuit's question, merely the Commonwealth'south position finds support in the fact that if this court does grant a tardily-filed application, it is treated procedurally in the aforementioned style as a timely FAR awarding. At the time nosotros event our determination in the case, under rule 23, a new rescript volition effect to the lower court, and the new rescript volition be entered on the lower court'southward docket.

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