In 1999, appeals attorney Dana Alan Curhan, filed a direct appeal, pursuant to MGL Ch. 278, §33E, on Brian’s behalf. The appeal was heard before the full panel of the Supreme Judicial Court (SJC). The basis of the appeal was that Brian’s constitutional rights were violated during the trial. Although the SJC confirmed the constitutional violation, the court ruled it to be “harmless error.” The appeal was subsequently denied on January 25, 2000. As a result, Brian’s conviction became final on April 25, 2000.
In September of 2000 Brian’s family met with Attorney Greg T. Schubert to file a Writ of Habeas Corpus (federal appeal) to the U.S. District Court on Brian’s behalf. However, Mr. Schubert suggested first filing a Rule 30 Motion for New Trial to the Superior Court. He explained that this motion would “toll” the clock on the federal appeal and there would be time to file with the U.S. District Court in the future. On October 20, 2000, Committee for Public Counsel Services (CPCS) assigned Mr. Schubert to Brian’s case.
In March of 2001, Mr. Schubert assured Brian and his family that the Rule 30 Motion had been filed, leaving time for a federal appeal to be filed should the Rule 30 Motion be unsuccessful. However, it was later discovered that Ms. Schubert had LIED to Brian and his family, and the Rule 30 Motion was not filed until July 16, 2001, effectively time barring Brian from filling with the U.S. District Court. On January 22, 2002, Brian’s Rule 30 Motion for a New Trial was denied by Superior court Judge Charles J. Hely, stating that no supporting evidence was included with the motion.
On October 25, 2002, Mr. Schubert filed a second Rule 30 Motion for New Trial making the same claims as in the first motion, but included was a supporting affidavit. On February 14, 2003 Judge Hely denied the second motion explaining that the issues are waived as a result of not filing supporting affidavit with the first motion.
Mr. Schubert promptly filed a Notice of Appeal; however, after seven months, he still did not file a petition to the Single Justice of the SJC. Finally, on October 7, 2003, Mr. Schubert realized his error and filed a Motion to File Late, with an affidavit from himself for the error, and filed a petition with the Single Justice (Gatekeeper) pursuant to MGL Ch. 278, §33E. On April 7, 2004 the petition was denied by the Single Justice stating that the issues were neither new nor substantial.
On March 4, 2005, Brian filed a pro se Petition for Writ of Habeas Corpus to the U.S. District Court claiming actual innocence. He requested the court grant “Equitable Tolling,” claiming that he became time barred as a result of the incompetence of his appellate attorney, Greg Shubert. On February 6, 2006, Brian’s petition was denied as being “time barred,” pursuant to AEDPA U.S.C. §2244(d), explaining that Brian did not display “diligence” in pursuing his rights because he waited 11 months to file his pro se petition. Further, the court stated, “While the alleged deficiencies of petitioner’s counsel may be appropriate for inquiry by the Board of Bar Overseers, they are not grounds, in this case, for relief.” See 2006 DECISION
On October 25, 2011, Brian was accepted by the CPCS Innocence Program, and the Appellate Division. Brian was assigned Attorney Donald Harwood. On July 3, 2012, Mr. Harwood filed a Rule 30 Motion for New Trial with supporting affidavits from Dr. Laposata and Dr. Squier, detailing the new medical evidence. It was filed with Superior Court Judge Charles J. Hely. On December 31, 2012, Judge Hely denied Brian’s Rule 30 Motion for New Trial, without a hearing to hear the new medical evidence.
On January 26, 2013, Mr. Harwood filed a petition to the Single Justice requesting to argue his claims to the full panel of the SJC. See Gatekeeper 1/26/13 On August 26, 2013, Associate Justice, Fernande R.V. Duffly denied Brian’s petition claiming that as a result of rules intended to achieve finality in the litigation of criminal cases, and to assure that limited judicial resources are not consumed, “the defendant’s claim does not present a new and substantial question which ought to be determined by the full court.” See Decision 9/9/13
On November 18, 2013, Attorney Harwood filed a Petition for a Writ of Certiorari to the US Supreme Court. The petition argued only the constitutional violation from the courtroom closure. On January 13, 2014, the petition was subsequently denied without a hearing.
On August 21, 2014, Attorney Harwood filed a request (or application) with the U.S. First Circuit Court of Appeals to file a second or successive habeas corpus petition. See First Circuit Application. The application makes a claim that Brian is factually innocent and in light of the new evidence, “no reasonable fact finder would have found [Brian] guilty.” Brian, therefore, should be granted permission to file a second federal appeal.
On October 6, 2014, the Attorney General ‘s (AG) office filed an opposition to Brian’s application, arguing that it is time barred and fails to meet the rules of law. See AG’s opposition. It should be noted, at no time does the AG make an argument against the merits of Brian’s evidence of innocence. They merely rely on arguing technicalities of law.
On October 14, 2014, Attorney Harwood filed Brian’s reply to the AG’s opposition, arguing: “Unable to refute [the] powerful factual showing on the merits that he is actually innocent of the crime…[the AG] then resorts to a series of procedural arguments that purportedly bar petitioner’s application.” See First Circuit Reply.
On October 27, 2014, in a one-paragraph decision, the First Circuit Court of Appeals DENIED Brian’s application stating, “We are unable to form so much as a first impression of actual innocence as defined.” Further explaining, “Our denial of authorization to file a second or successive petition is not appealable….”
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