Sample Petition for Further Appellate Review in Mass

ROBERT FOXWORTH vs. PETER ST. AMAND.

457 Mass. 200

April five, 2010 - July 2, 2010

Suffolk Canton

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

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

This court, by considering a petitioner'south application, originally filed in 2000 and amended in 2002, for leave to obtain further appellate review of a 1996 decision of the Massachusetts Appeals Courtroom, did not reopen the certitude of the petitioner'south conviction when, in 2002, it immune the defendant'southward motion to file the application belatedly then denied the amended application. [204-209]

CERTIFICATION of a question of law to the Supreme Judicial Court past the The states Court of Appeals for the First Circuit.

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

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

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BOTSFORD, J. In 1992, after trial in the Superior Court, Robert Foxworth was convicted of murder in the second degree; the Appeals Court affirmed the conviction in 1996. Commonwealth v. Foxworth, 41 Mass. App. Ct. 1113 (1996). Reviewing Foxworth's subsequent petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 (2006), the United States Court of Appeals for the Beginning Circuit (Commencement Circuit) [Note 1] has certified the following question to this court, pursuant to South.J.C. Rule 1:03, equally actualization in 382 Mass. 700 (1981):

"In considering the petitioner'south application, filed in 2000, for exit to obtain further appellate review of the 1996

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

Foxworth v. St. Amand, 570 F.3d 414, 437 (1st Cir. 2009) (Foxworth). [Note 2] For the reasons that follow, we answer the question no.

Background. The procedural history of this case in both the State and Federal courts is set out in particular in the Beginning Circuit's stance accompanying the certification order. See Foxworth, supra at 420-424. We summarize those procedural facts that bear upon 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 commencement 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'due south timely objection) through a police detective, but the argument was redacted or contradistinct in several places to substitute the term "Mr. X" for Foxworth's name. Come across id. at 421-422. On March 31, 1992, a jury bedevilled Foxworth of murder in the second caste, and acquitted Logan. [Annotation 3] Foxworth filed a timely entreatment from his conviction. On March sixteen, 1994, he filed a motion for new trial in the Superior Court pursuant to Mass. R. Crim. P. xxx (b), 378 Mass. 900 (1979) (starting time new trial movement). In his commencement new trial movement, Foxworth asserted, among other claims, that the admission of his codefendant's statement in evidence at trial contravened Bruton five. Us, 391 U.S. 123 (1968) (Bruton). A judge in the Superior Courtroom (not the trial estimate) denied Foxworth'due south offset new trial move in August, 1994. Thereafter, the Appeals Court consolidated Foxworth's appeal from that denial with his direct entreatment from his conviction, and affirmed both the conviction and the denial of the new trial motion

Folio 202

in a decision issued pursuant to that courtroom'due south rule 1:28 on October 21, 1996. Commonwealth v. Foxworth, supra. I of the grounds of appeal raised by Foxworth, and considered by the Appeals Courtroom, was his claim of a Bruton violation.

Pursuant to Mass. R. A. P. 27.one (a), every bit amended, 369 Mass. 920 (1975), Foxworth had xx days from October 21, 1996, in which to file an application for further appellate review. No such awarding was filed inside the prescribed period. In accordance with Mass. R. A. P. 23, equally appearing in 367 Mass. 921 (1975), therefore, the Appeals Court's rescript issued to the trial courtroom on Nov xviii, 1996. On November 22, 1996, the rescript, indicating "Judgment affirmed," was entered on the docket in the Superior Court.

Almost four years afterward, on October 25, 2000, Foxworth filed in this courtroom a pro se application for get out to obtain farther appellate review (FAR application), accompanied by a movement to file the FAR application late. 1 of the grounds asserted for obtaining further appellate review was the declared Bruton violation. In November, 2000, earlier the court acted on his application and movement to file the application late, Foxworth filed, and this courtroom allowed, a motility 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 December, 2000; the motion did not heighten the Bruton violation claim. Foxworth, 570 F.3d at 423. Another Superior Court judge denied the 2nd motility, and the Appeals Courtroom affirmed its deprival in a cursory memorandum and gild dated April 17, 2002. Commonwealth v. Foxworth, 54 Mass. App. Ct. 1112 (2002).

Thereafter, on July 22, 2002, Foxworth, now represented past counsel, filed in this court an amended FAR application that represented a consolidation of his original 2000 FAR awarding with some other FAR application concerning the Appeals Court's 2002 conclusion. He also filed a motion to file the application tardily; the court allowed that movement on July 22. [Note 4] On September half-dozen,

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2002, we denied Foxworth'south amended FAR application without opinion or comment. [Notation 5]

On September 10, 2003, Foxworth filed a petition for habeas corpus in the United states District Court for the District of Massachusetts. Lengthy proceedings in the Federal courts ensued. In summary, on Baronial 17, 2006, a District Court guess initially granted Foxworth's petition on the footing of the claimed Bruton violation, vacated his conviction, and ordered the Commonwealth to retry Foxworth within sixty days or release him; on appeal by the Commonwealth, the Beginning Circuit remanded the case to the District Courtroom judge to address Foxworth'south claim of insufficient bear witness; on remand, in May of 2008, that guess concluded that the testify was bereft to support Foxworth's conviction and ordered his release; and on the Commonwealth's appeal, the Beginning Circuit certified to this court the question now before us. See Foxworth, 570 F.3d at 423-424, 437.

The certified question is relevant to the First Circuit's review of the habeas petition because that court has concluded, in contrast to the District Courtroom judge, that the evidence presented at Foxworth's trial was sufficient to sustain his conviction, run into id. at 428-429, and that the remaining pertinent question is whether Foxworth'south Bruton violation merits entitles him to relief. In the view of the First Excursion, the answer to that question turns on the engagement on which Foxworth'southward straight appeal from his conviction was final, because for Federal habeas relief to be granted, the Country court's decision is to exist "measured against 'clearly established Federal law, as adamant by the Supreme Court of the United States.' In near cases (and, specifically, in this case), the date of finality of the state court conviction determines the time line to be 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). [Note 6] Compare Griffith v. Kentucky, 479 U.Due south. 314, 322-323 (1987)

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(newly declared constitutional dominion must be applied to all criminal cases and so pending on direct review), with Teague v. Lane, 489 U.S. 288, 310 (1989) (opinion of O'Connor, J.) (with express exceptions, new constitutional rules practice not use to cases on collateral review that take become final before new rules appear).

The Kickoff Excursion considered that there were two possible dates of certitude in the present case: (1) November xviii, 1996, the appointment the Massachusetts Appeals Court'southward rescript issued, terminal that court's consideration of Foxworth's direct appeal; or (2) September 6, 2002, the date that this court denied Foxworth's amended FAR application. Foxworth, 570 F.3d at 430. The deviation in these dates is critical to the First Circuit'southward resolution of Foxworth'south habeas corpus petition. That court has concluded that if the 1996 date were to represent the stop of direct review in Foxworth'southward case, he would not be entitled to habeas corpus relief, because, based on the Supreme Courtroom'due south decision in Richardson five. 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 police." Foxworth, supra at 433. Come across id. at 436. If, on the other hand, the 2002 date defined finality for the direct review process, Foxworth'southward habeas petition should be granted because the Supreme Court'southward decision in Gray v. Maryland, 523 U.South. 185 (1998), would then apply, and the Appeals Court's decision on the claimed Bruton violation represented an unreasonable application of Gray. Foxworth, supra at 434-435, 436.

Discussion. We take the premise of the Beginning Circuit, that the "date of certitude" of a State court judgment (encounter note 6, supra) is a matter to be adamant with reference to Land police force. Run into Foxworth, 570 F.3d at 429, 437. See also Losh v. Fabian, 592 F.3d 820, 824-825 (8th Cir. 2010) (Land Supreme Court could determine whether particular type of entreatment permitted under State law qualified as role of direct review of criminal conviction and judgement, or form of collateral review). Cf. Carey v. Saffold, 536 U.South. 214, 223 (2002) ("for purposes of applying

Page 205

a federal statute that interacts with country procedural rules, we look to how a state procedure functions"). But encounter Teas five. Endicott, 494 F.3d 580, 582 (7th Cir. 2007) (definition of "direct review" in 28 U.S.C. § 2244[d] [2006] is matter of Federal law). In the Commonwealth, the decision of the finality date is derived primarily from the Massachusetts Rules of Appellate Process and associated statutes. Every defendant in a criminal case has the right to bring an appeal from, and obtain direct review of, a conviction. G. L. c. 278, § 28. With one exception non relevant here, the Appeals Court and this court share concurrent jurisdiction over criminal appeals. The direct appeal is entered in the Appeals Court in the first instance, and in most cases (every bit in this case), the appeal is heard and decided by the Appeals Court. Come across One thousand. 50. c. 211A, § x. In such an appeal, when the Appeals Court issues its stance, the clerk of that courtroom mails a copy of the opinion and the "rescript" -- in effect, the Appeals Court's judgment in that case [Note 7] -- to the parties, and then issues the rescript to the lower court xx-eight days later on the engagement of the rescript. Mass. R. A. P. 23. [Note 8]

As rule 23 indicates, the reason for the 20-8 day

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delay in issuance of the rescript to the lower court is to accommodate a party'due south xx-24-hour interval right to seek further appellate review of the case past this court [Notation 9] pursuant to M. L. c. 211A, § eleven, and dominion 27.1. [Note 10] If the FAR application is timely filed (i.e., within twenty days), the Appeals Court's rescript is stayed until this courtroom rules on the awarding. If nosotros deny the FAR application, the Appeals Court'due south rescript then problems forthwith to the lower court; if the awarding is allowed, the Appeals Court's rescript does not so issue, but instead, a rescript from this court will issue pursuant to rule 23 at the time we outcome our decision in the case. The gist of these rules, taken together, is that when a rescript does outcome to the lower court -- whether the rescript is issued by the Appeals Court or this court -- that signals the stop of the directly review process for the instance. As the First Circuit suggested, Foxworth, 570 F.3d at 436-437, the date the rescript problems thus represents "the appointment of finality" for the example, [Notation 11] and information technology is a date that expressly includes within its scope the opportunity to file a timely FAR awarding and the resolution of any such application that is timely filed. [Note 12]

The certified question asks whether the finality of Foxworth's

Page 207

judgment of conviction was reopened when this court in 2002 allowed him to file a FAR application belatedly and then denied the application. The key 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 direct appeal process, because equally dominion 23 makes patently, it means either that the accused did not file a timely FAR application or that the application he did file was denied, and therefore all available avenues for direct review under our State law are exhausted. Run across Caspari 5. Bohlen, 510 U.South. 383, 390-391 (1994). If a accused in the first category (no FAR application timely filed) subsequently files a motion to file a FAR application late, the assart of such a motion [Note 13] by itself has no event on the previously issued rescript: no rule or statute, including, almost chiefly, rule 23, provides for whatsoever change in the status of an issued rescript solely every bit a consequence of this court'south discretionary assart of a motion to file late. Appropriately, the last judgment reflected in the entry of the rescript on the trial court's docket remains the final judgment. Cf. Beard 5. Banks, 542 U.South. 406, 412 (2004) (fact that Land courtroom might choose to waive its procedural rule barring consideration in postconviction proceedings of claims non previously raised did not return underlying judgment of conviction non-final).

Foxworth argues to the contrary, claiming that when a court decides to allow a motion to file a FAR application belatedly, information technology "raise[s] the question whether the courtroom volition modify the judgment and change the parties' rights," Hibbs v. Winn, 542 U.Due south. 88, 98 (2004), and therefore suspends the certitude of the judgment. Nosotros disagree. The Hibbs case, as well equally Young five. Harper, 520 U.S. 143, 147 n.1 (1997), on which Foxworth also relies, are

Folio 208

distinguishable. Neither case involved a situation 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 event here, and as we have indicated, as a affair of State law, under our statutes and court rules, the allowance of a move to file an FAR awarding late, by itself, does not operate to change the status of a rescript that has previously issued. Nor does a subsequent deprival of the belatedly-filed application. Such a denial is goose egg more an indication that we take determined, in our discretion, not to grant farther review. It is not an indorsement, acceptance, or ratification by us of the Appeals Court's decision. Come across Ford v. Flaherty, 364 Mass. 382 , 387-388 (1973) ("An club by this courtroom denying farther review should not be considered in whatsoever case as an affirmation of the decision or reasoning of the Appeals Court. Such an order just shows that, afterwards consideration of the applicable statutory standards every bit prepare forth in Thou. Fifty. c. 211A, § 11, nosotros have determined not to grant further review. But a rescript or rescript and stance from this court, later on further review, should be considered as a statement of our position on the legal issues concerned"). [Note 15]

Foxworth'southward reliance on the recent conclusion of the United

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States Supreme Court in Jimenez v. Quarterman, 129 S. Ct. 681 (2009), is as well misplaced. In that case, the Court concluded that for purposes of measuring the one-year limitations period imposed by 28 UsaC. § 2244(d)(1)(A), for filing a writ of habeas corpus in Federal courtroom, a State court judgment of conviction is no longer "final" if the State court grants a defendant the correct to file a late or "out-of-time" direct appeal. Id. at 685-686. Rather, the Courtroom stated, " 'the gild granting an out-of-time appeal restore[d] the pendency of the directly appeal,' . . . and petitioner's conviction was again capable of modification through direct entreatment to the state courts and to this Court on certiorari review." Id. at 686, quoting Ex parte Torres, 943 S.West.second 469, 472 (Tex. Crim. App. 1997). Had we granted the late-filed FAR application, thereby effectively reinstating the direct appeal, and so Jimenez v. Quarterman, supra, might be applicative. Come across note xv, supra. Here, still, we denied rather than granted Foxworth's tardily-filed FAR application. We did not reinstate the straight entreatment or reopen the confidence in any other way.

Determination. We answer to the certified question as follows: This court did not reopen the finality of the petitioner Robert Foxworth's 1992 confidence 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 one re-create, under the seal of this court, to the clerk of the Usa Courtroom of Appeals for the Commencement Excursion, equally the answer to the question certified, and will also transmit a re-create to each party.

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FOOTNOTES

[Note 1] Nosotros refer to the United States Courtroom of Appeals for the First Excursion every bit the "First Circuit" to avoid any confusion between that courtroom and the Massachusetts Appeals Court.

[Note 2] The accused in this instance, Peter St. Amand, is the superintendent of the Massachusetts Correctional Establishment 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 three] Earlier the case went to the jury, the trial approximate granted the third defendant's motility for a required finding of non guilty on all charges against him. Meet Foxworth, 570 F.3d at 422.

[Note 4] Every bit the First Circuit noted, the record is cryptic apropos whether the July 22, 2002, gild on the "motion to file FAR belatedly" was intended to be, or had the consequence of, an allowance of the tardily filing of the get-go FAR application four years tardily. Run across Foxworth, 570 F.3d at 423. We interpret the order as assuasive, inter alia, the tardily filing of the offset FAR application.

[Note five] Information technology appears that Foxworth'southward initial pro se movement to file late was never acted on.

[Note vi] The Get-go Excursion divers "finality" equally follows: "Finality means that 'a judgment of conviction has been rendered, the availability of entreatment 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 northward.6 (1987). Accord Caspari v. Bohlen, 510 U.South. 383, 390 (1994). We understand the phrase "availability of appeal wearied" to refer to the availability of directly appeal from the judgment of conviction. We practice not consider here preconviction interlocutory appeals or postconviction collateral appeals.

[Note 7] The word "rescript" is defined in Mass. R. A. P. 1 (c), 365 Mass. 844 (1974), to mean "the order, management, or mandate of the appellate courtroom disposing of the appeal." Reporters' Notes to Rule i, Mass. Ann. Laws Court Rules, Rules of Appellate Procedure, at vi (LexisNexis 2008-2009) (" 'Rescript,' a term well-known to Massachusetts exercise, covers the meaning of 'mandate,' the term used in the Federal Rules, [Rule] 41 [of the Federal Rules of Appellate Process]"). See also Reporters' Notes to Rule 23, Mass. Ann. Laws Courtroom Rules, Rules of Appellate Procedure, supra at 97 ("A rescript is the equivalent at the appellate level, of judgment in the trial courtroom . . .").

[Annotation viii] Rule 23 of the Massachusetts Rules of Appellate Process, every bit actualization in 367 Mass. 921 (1975), reads:

"The clerk of the appellate courtroom shall mail to all parties a copy of the rescript and the stance, if one was written. The rescript of the court shall issue to the lower courtroom twenty-eight days afterward the date of the rescript unless the fourth dimension is shortened or enlarged by order. 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 awarding is denied, the rescript shall outcome forthwith unless the appellate court or a single justice orders otherwise. If an application for further appellate review is granted the rescript of the Appeals Court shall not issue to the lower courtroom."

[Note 9] The twenty-eight days likewise accommodates a party'due south correct under Mass. R. A. P. 27, every bit amended, 410 Mass. 1602 (1991), to petition the Appeals Courtroom for rehearing within 14 days of the date of the rescript. We focus here, however, solely on the right to file the FAR application.

[Annotation 10] Rule 27.one of the Massachusetts Rules of Appellate Process, equally amended, 367 Mass. 920 (1975), entitled "Further Appellate Review," provides in relevant office: "(a) Application; when filed; grounds. Inside xx days after the date of the rescript of the Appeals Court any political party to the appeal may file an awarding for leave to obtain further appellate review of the example by the full Supreme Judicial Court. Such application shall exist founded upon substantial reasons affecting the public interest or the interests of justice."

[Annotation 11] I might argue that, although the direct appeal concluded with the issuance of the Appeals Court'south rescript on November xviii, 1996, the judgment of conviction in this case did not truly become final until the rescript was entered on the Superior Court docket four days afterward, on November 22, 1996. Cf. Commonwealth five. Bodden, 391 Mass. 356 , 357-358 & n.1 (1984) (leaving open question of certitude for purposes of Mass. R. Crim. P. 36, 378 Mass. 909 [1979], governing speedy trial post-obit reversal of conviction by appellate court); Democracy five. Levin, 390 Mass. 857 , 860 n.4 (1984) (same). Nosotros need not resolve that point here, as the departure of four days is inconsequential to the event in both this court and the First Circuit.

[Note 12] Instance law has also recognized that a party'south entitlement to request further appellate review must be taken into account before the directly appeal process is deemed complete. Run into Sabatinelli five. Travelers Ins. Co., 369 Mass. 674 , 679 (1976) ("it is of import to note that action of the Appeals Court under Dominion 1:28 does not conclude a example. The losing party is entitled to asking further appellate review by this court . . . [which] may exist granted by iii Justices of this courtroom 'for substantial reasons affecting the public interest or the interests of justice.' Grand. L. c. 211, § 11"). Encounter likewise Schwartz 5. Bressler, five Mass. App. Ct. 796 (1977). Neither of these cases, however, considers the departure between timely and tardily-filed FAR applications, let alone a FAR application filed subsequently the issuance of the Appeals Court's rescript as we take here.

[Annotation 13] We frequently, only not e'er, allow motions to file FAR applications late. Compare Commonwealth v. O'Neil, 436 Mass. 1007 , 1008 n.ane (2002), with Hurley 5. Superior Courtroom Dep't of the Trial Court, 424 Mass. 1008 , 1009 (1997).

[Note 14] In Hibbs 5. Winn, 542 U.South. 88 (2004), the xc-24-hour interval period for seeking certiorari had not yet passed when the U.s.a. Court of Appeals for the Ninth Excursion Court recalled its mandate and directed the parties to brief the question whether the case should be reheard en banc. Given the call back of the mandate past the court itself, it is non surprising that the Supreme Court held that "[b]ecause [the] ninety-twenty-four hours limit had not even so expired, the clock could still be reset by an social club that left unresolved whether the [9th Circuit] would change its judgment." Id. at 98. Here, by dissimilarity, nosotros did not recall (or make any other order with respect to) the Appeals Court's 1996 rescript when we authorized the late filing of the FAR application and denied the application in 2002.

In Young v. Harper, 520 U.Due south. 143, 147 n.i (1997), the United States Court of Appeals for the Tenth Excursion granted the petitioners get out to file their petition ii days late, simply 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 awarding for further review was filed almost four years subsequently the rescript had already issued.

Finally, we note that both the Hibbs and Young cases involved points of Federal law; the express question that has been certified to us is whether the Foxworth's confidence, which became final in 1996, was reopened by usa in 2002 as a matter of State police force.

[Note xv] In the cursory filed on behalf of St. Amand, the Attorney General takes the position that if the court grants a belatedly-filed FAR application after a rescript has issued, that assart effectively reopens the final judgment. Nosotros practise not need to resolve the upshot in lodge to respond the First Circuit's question, simply the Democracy'south position finds support in the fact that if this court does grant a late-filed application, it is treated procedurally in the aforementioned manner every bit a timely FAR application. At the fourth dimension we outcome our decision in the instance, under rule 23, a new rescript will issue to the lower courtroom, and the new rescript will be entered on the lower courtroom'southward docket.

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