ROBERT FOXWORTH vs. PETER ST. AMAND.

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 First Circuit (First Circuit) [Note 1] has certified the following question to this court, pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981):

"In considering the petitioner's application, filed in 2000, for leave 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's conviction 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 detail in the First Circuit's opinion accompanying the certification order. See Foxworth, supra at 420-424. We summarize those procedural facts that bear on 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 evidence (over Foxworth's timely objection) through a police detective, but the statement was redacted or altered in several places to substitute the term "Mr. X" for Foxworth's name. See id. at 421-422. On March 31, 1992, a jury convicted Foxworth of murder in the second degree, and acquitted Logan. [Note 3] Foxworth filed a timely appeal from his conviction. On March 16, 1994, he filed a motion for new trial in the Superior Court pursuant to Mass. R. Crim. P. 30 (b), 378 Mass. 900 (1979) (first new trial motion). In his first new trial motion, Foxworth asserted, among other claims, that the admission of his codefendant's statement in evidence at trial contravened Bruton v. United States, 391 U.S. 123 (1968) (Bruton). A judge in the Superior Court (not the trial judge) denied Foxworth's first new trial motion in August, 1994. Thereafter, the Appeals Court consolidated Foxworth's appeal from that denial with his direct 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 1:28 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 claim of a Bruton violation.

Pursuant to Mass. R. A. P. 27.1 (a), as amended, 369 Mass. 920 (1975), Foxworth had twenty days from October 21, 1996, in which to file an application for further appellate review. No such application was filed within the prescribed period. In accordance with Mass. R. A. P. 23, as appearing in 367 Mass. 921 (1975), therefore, the Appeals Court's rescript issued to the trial court on November 18, 1996. On November 22, 1996, the rescript, indicating "Judgment affirmed," was entered on the docket in the Superior Court.

Almost four years later, on October 25, 2000, Foxworth filed in this court 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 application and motion to file the application late, Foxworth filed, and this court allowed, a motion 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 raise the Bruton violation claim. 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 v. Foxworth, 54 Mass. App. Ct. 1112 (2002).

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

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2002, we denied Foxworth's amended FAR application without opinion or comment. [Note 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 August 17, 2006, a District Court judge initially granted Foxworth's petition on the basis 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 First Circuit remanded the case to the District Court judge to address Foxworth's claim of insufficient evidence; on remand, in May of 2008, that judge concluded that the evidence was insufficient to support Foxworth's conviction and ordered his release; and on the Commonwealth's appeal, the First 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 Court judge, that the evidence presented at Foxworth's trial was sufficient to sustain his conviction, see 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 answer to that question turns on the date on which Foxworth's direct appeal from his conviction was final, because for Federal habeas relief to be granted, the State court's decision is to be "measured against 'clearly established Federal law, as determined by the Supreme Court of the United States.' In most 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 comprise the corpus of this 'clearly established Federal law.' " Id. at 430, quoting 28 U.S.C. § 2254(d). [Note 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 pending on direct review), with Teague v. Lane, 489 U.S. 288, 310 (1989) (opinion of O'Connor, J.) (with limited exceptions, new constitutional rules do not apply to cases on collateral review that have become final before new rules announced).

The First Circuit considered that there were two possible dates of finality in the present case: (1) November 18, 1996, the date the Massachusetts Appeals Court's rescript issued, concluding 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 difference in these dates is critical to the First Circuit's resolution of Foxworth's habeas corpus petition. That court has concluded that if the 1996 date were to represent the end of direct review in Foxworth's 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 Court's 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 direct review process, Foxworth's habeas petition should be granted because the Supreme Court's decision in Gray v. Maryland, 523 U.S. 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 accept the premise of the First Circuit, that the "date of finality" of a State court judgment (see note 6, supra) is a matter to be determined with reference to State law. See Foxworth, 570 F.3d at 429, 437. See also Losh v. Fabian, 592 F.3d 820, 824-825 (8th Cir. 2010) (State Supreme Court could determine whether particular type of appeal permitted under State law qualified as part of direct review of criminal conviction and sentence, 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 look to how a state procedure functions"). But see Teas v. 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 determination of the finality date is derived primarily from the Massachusetts Rules of Appellate Procedure 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 not 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 (as 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 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 twenty-eight days after the date of the rescript. Mass. R. A. P. 23. [Note 8]

As rule 23 indicates, the reason for the twenty-eight 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 further appellate review of the case by this court [Note 9] pursuant to G. L. c. 211A, § 11, and rule 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 court rules on the application. If we deny the FAR application, the Appeals Court's rescript then issues forthwith to the lower court; if the application 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 issue our decision in the case. The gist of these rules, taken together, is that when a rescript does issue to the lower court -- whether the rescript is issued by the Appeals Court or this court -- that signals the end of the direct review process for the case. As the First Circuit suggested, Foxworth, 570 F.3d at 436-437, the date the rescript issues thus represents "the date of finality" for the case, [Note 11] and it is a date that expressly includes within its scope the opportunity to file a timely FAR application and the resolution of any such application that is timely filed. [Note 12]

The certified question asks whether the finality of Foxworth's

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judgment of conviction was reopened when this court in 2002 allowed him to file a FAR application late 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 end of the direct appeal 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 direct review under our State law are exhausted. See Caspari v. Bohlen, 510 U.S. 383, 390-391 (1994). If a defendant in the first category (no FAR application timely filed) subsequently files a motion to file a FAR application late, the allowance of such a motion [Note 13] by itself has no effect on the previously issued rescript: no rule or statute, including, most importantly, rule 23, provides for any change in the status of an issued rescript solely as a result of this court's discretionary allowance 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 final judgment. Cf. Beard v. Banks, 542 U.S. 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 conviction non-final).

Foxworth argues to the contrary, claiming that when a court decides to allow a motion to file a FAR application late, it "raise[s] the question whether the court will modify the judgment and alter the parties' rights," Hibbs v. Winn, 542 U.S. 88, 98 (2004), and therefore suspends the finality of the judgment. We disagree. The Hibbs case, as well as Young v. Harper, 520 U.S. 143, 147 n.1 (1997), on which Foxworth also relies, are

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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 issue 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 late, by itself, does not operate to change the status of a rescript that has previously issued. Nor does a subsequent denial of the late-filed application. Such a denial is nothing more than an indication that we have determined, in our discretion, not to grant further review. It is not an indorsement, acceptance, or ratification by us of the Appeals Court's decision. See Ford v. Flaherty, 364 Mass. 382, 387-388 (1973) ("An order by this court denying further review should not be considered in any case as an affirmation of the decision or reasoning of the Appeals Court. Such an order merely shows that, after consideration of the applicable statutory standards as set forth in G. L. c. 211A, § 11, we have 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 issues concerned"). [Note 15]

Foxworth's reliance on the recent decision of the United

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States Supreme Court in Jimenez v. Quarterman, 129 S. Ct. 681 (2009), is also misplaced. In that case, the Court concluded that for purposes of measuring the one-year limitations period imposed by 28 U.S.C. § 2244(d)(1)(A), for filing a writ of habeas corpus in Federal court, a State court judgment of conviction is no longer "final" if the State court grants a defendant the right to file a late or "out-of-time" direct appeal. 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's conviction was again capable of modification through direct appeal to the state courts and to this Court on certiorari review." Id. at 686, quoting Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). Had we granted the late-filed FAR application, thereby effectively reinstating the direct appeal, then Jimenez v. Quarterman, supra, might be applicable. See note 15, supra. Here, however, we denied rather than granted Foxworth's late-filed FAR application. We did not reinstate the direct appeal or reopen the conviction in any other way.

Conclusion. We respond to the certified question as follows: This court did not 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 turn will transmit one copy, under the seal of this court, to the clerk of the United States Court of Appeals for the First Circuit, as the answer to the question certified, and will also transmit a copy to each party.