WEBVTT

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<v ->SJC 12980</v>

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R H. Mandeville v. Erin Gaffney.

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<v ->Hi, good morning.</v>

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<v ->Good morning,</v>

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<v ->Mr. Curhan.</v>

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<v ->Yes May I please the Court,</v>

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Dana Curhan for RH Mandeville.

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We contend that the

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that this court should apply the 30 day time limit reference

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in Maine Mains to all pending cases

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but we contend that this court should do so

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after a sunset provision, after 30 days.

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So in other words, 30 days

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after this court decision comes out

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any pending gatekeeper petition should be filed.

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<v ->That's what Justice that's what Justice Spina said</v>

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in Nassau a few years ago though.

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Right?

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<v ->Well, I think, I think Nassau was sort of</v>

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a different situation.

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Nassau was a case where it was sort of Mains was

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referenced indirectly, but he had filed a motion

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for new trial.

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He'd filed a gatekeeper petition.

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He then sat on it for 25 years after it was dismissed

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for lack of prosecution and tried to resurrect it.

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<v ->But I, I think w when, when you read</v>

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Elise as a single justice what Justice Spina

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wrote was as he interpreted Mains

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was that once Mains came out

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there was this 30 day period to call in all markets.

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So to speak of all standard motions.

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And then after that, there was a procedural default

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but you're asking us to do that now.

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In this case too.

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<v ->I don't, I don't think that's a fair interpretation</v>

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of what Maine said.

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Maine said here and after now we have two federal judges.

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Who've looked at this and said, you know

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we think we have a problem.

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We think there's no timeline.

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There may be no time limit as to these pending cases.

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And it is, it is crucial

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in a habeas case where you have a statute of limitations.

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<v ->No, I, I understand your argument.</v>

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I'm, I'm, I'm trying to get at Mr.

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Curhan, which is the second part of

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what you asked us to do was

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that you want us to announce that what we really need

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at this time it's 30 days after this case.

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<v ->Well, yeah, I I th I think probably</v>

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when Justice Abrams wrote Mains

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she probably assumed, and this court assumed

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that there weren't many pending cases where

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there've been a decision on a motion for new trial.

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And, but, but she didn't address it.

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What, what the, what the decision said is here

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and after you have 30 days.

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So if you file a motion for new trial

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after Mains was decided

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then you have 30 days to do a gatekeeper.

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It does not speak to

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whether that applies to motions that were

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that were already pending, and that were still open.

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You know, if you take a look at the

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the closest analogy is that the habeas statute

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originally there was no statute of limitations.

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When the court enacted the statute of limitations

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they said, ah, but for cases that are already pending

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there's a one-year sense, sunset provision.

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So you have a year to bring

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in all these other cases, you don't have that here.

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And that, and that I think is the problem.

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And when you have a lot of these habeas petitions had done

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by pro se litigants, when you

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when they take a look at Mains and they say here

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and after

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that seems to mean

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anything filed after.

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So for example,

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Mr. Mandeville filed

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10 motions for new trial about half of them before

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Mains and about half of them after,

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of course, anything filed

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after Mains would be subject to that 30 day provision.

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But the earlier ones, you know, a litigant

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a pro se litigant in this case

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a couple of federal judges looked at it and said

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we think they're still open.

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<v ->So there's no limitation.</v>

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It could be 25 years later.

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Yeah, I assume, I guess it depends

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on one's a vitality, but

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<v Curhan>right.</v>

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<v ->So there is no limitation pre-made</v>

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<v ->So there there's no limitation pre Mains.</v>

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Th the, the statute itself, the gatekeeper statute

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has no time limits.

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Main said, you know what?

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From, from now on here, and after it will be 30 days.

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So, but it doesn't say anything about anything before that.

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And that

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<v ->The court Nassau said that Mains was prospective</v>

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The one perspective,

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<v ->and that's what Main said.</v>

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So that's, that's really our, our position and it's, and

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you know, I have no objection to saying, okay

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let's kill all of these prior habea

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these prior motions for new trial and require gatekeepers

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but within 30 days, within 30 days

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but starting from the date of the, of this decision.

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So that's really, that's really my position.

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There's no, there is no analogous case law in Massachusetts.

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There's nothing that really answers the question.

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I think this is just an open question

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that this court needs to answer.

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<v ->If it's an open question, if it's an</v>

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option question and we're looking

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at the reasoning of Mains, why wouldn't we

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answer the question?

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No?

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<v ->Well, I think, I think we answered question.</v>

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We can answer that question.

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Yes. The 30 day limit applies, but we've never

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said that it applies to anything before, before

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Mains.

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So these pre Mains

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<v ->But then we could go on couldn't we then go on to say</v>

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here's why it actually does apply

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to cases that were open before Mains here's why it does.

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We're going to look at the reasoning of Mains and

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and say that it doesn't make sense to

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to have left those other cases open.

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<v ->Well, you could, but, but the thing is it</v>

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that the decision itself, if you read the decision itself

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the plain language of the case says that post 2000

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post Mains any motions for new trial have 30 days

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but it doesn't say anything about those pre Mains cases.

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So there's no notice provided.

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And that's really the problem.

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And w you know, when you have, again, in this case

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you have a pro se litigant, but even if you don't

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have a pro se litigant, if I, if I were, if I were

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handling this case and Mains came down, I would probably say

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to most clients, I, I don't see that it applies

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but just to be safe, let's get rid of all

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of these pending gatekeepers.

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But for a pro se looking

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at this, he doesn't really, he may not understand that.

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And, you know, again, you had some very, very

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sharp federal judges who said, yeah

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this, this doesn't seem to apply pre Mains

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<v ->Well did Judge O'Toole say that?</v>

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I thought he just certified a question.

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<v ->He certified a question, but he didn't know the answer.</v>

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<v ->And that's what we're here to do, answer it</v>

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<v ->Right. Right. And, and, you know,</v>

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<v ->Is this an all or,</v>

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Council is this an all or nothing proposition?

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Like, let's just say, we agree with you

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that Maine's was unclear at the least

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wasn't there a pre Mains reasonableness

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standard,

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or is your position that there was just an unlimited

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time limit unlimited time?

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<v ->I think there was an unlimited time, time limit.</v>

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You know, there are, there are a couple

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of things where this court one or two things

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the only thing I can think of is a motion to revise

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and revoke where this court said, well

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it's gotta be within brought within a reasonable time

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but there's sort of a, that's sort of a unique

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situation where revise and revoke applies

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where to, you know, you have to look at whether

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there were factors at the time of sentencing.

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So obviously, you know

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if you wait 20 years for, to bring a revise and

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revoke the sentencing charges is not likely to be around

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nobody's likely to know what the factors are

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that might have been missed at the time of sentencing.

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But in this, any single justice can look at this and say

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is this a new and substantial issue?

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Now,

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it's not clear.

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There were 10 motions for new trial filed

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between 1982 and 2017.

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Depending on how you look at it

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anywhere from five to 10 of them, possibly all 10

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of them were addressing gatekeeper petitions.

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Justice Cypher handled the 2017 gatekeeper.

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And there's no reference to exactly what was know there was

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there's no new one substantial issue, but when you look

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at the gatekeeper petition itself, there are references

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to some of the earlier motions for new trial.

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So I think I, I'm not sure

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but I think the Commonwealth's position might be

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that all 10 of them have been,

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have already been decided, you know

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were decided in 2017, that's not critical

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for this analysis because if the 30 day limit applies

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then the 2017,

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you know,

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a gatekeeper that would

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a lot of those wouldn't have been timely.

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But, and, and if it's

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if it's only five of them that were addressed, then Mr.

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Mandeville should have 30 days to go back

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and file a gatekeeper as

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to the ones that haven't been filed.

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Unless there are any further questions

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I will submit

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<v ->What do you make of the last sentence</v>

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of Nassau in the footnote two?

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What, what do you understand the last sentence

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of footnote two to say

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<v ->I, I don't have it.</v>

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<v ->I can read it to you</v>

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"Manifestly master did not file the instant gatekeeper

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petition within a reasonable time".

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So I guess, w what, w what does that mean to you?

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<v ->I think what,</v>

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<v ->if it goes back</v>

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to Justice Wendlant's question, was there another

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is there another standard in play or not?

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<v ->Well, I don't think that was absolutely clear</v>

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because again Nassau had sorta unique circumstances

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where it was filed and it was dismissed

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for lack of a lack of prosecution.

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And then 25 years later, the defendant filed

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another gatekeeper referencing the earlier one.

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So I think the fact

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that the earlier gatekeeper had been filed and not pursued

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I think that may have been at play in Nassau.

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That's, that's how I would distinguish Nassau.

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<v ->Any other questions?</v>

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Okay. Thank you so much

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Mr. Curhan, thank you,

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Mr. Ravitz

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<v ->Thank you. Randall Ravitz for the respondent.</v>

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This court should inform the federal district court

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that gatekeeper petitions challenging pre Mains decisions

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denying new trial motions were in fact required to be filed

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within 30 days of Maine's issuance.

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The Mains court must have intended to impose such

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a requirement.

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It's not reasonable to conclude that the court instead

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meant to afford an unlimited time for challenging prior

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denials at the same time that a prescribed a strict 30

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day rule now running gate keeper petitions generally

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and this is clear for several reasons.

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First, the Main's court emphasized finality and consistency

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in its announcement of the rule, and it discussed

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the importance of finality elsewhere in its opinion.

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It also sighted,

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<v ->Well, as you well know, rule 30 has no time limit</v>

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and 33E has no time limit, correct?

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<v ->True, but when it,</v>

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but there is the 33 East system builds

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00:12:55.215 --> 00:13:00.215
in a restriction on the ability to obtain gatekeeper review

260
00:13:01.350 --> 00:13:05.400
by to obtain review by the full court of the denial of

261
00:13:05.400 --> 00:13:06.416
of a rule 30 motion.

262
00:13:06.416 --> 00:13:10.970
And, and of course the main court clearly adopted a 30

263
00:13:10.970 --> 00:13:14.923
day rule at the, at the very least for petitions

264
00:13:14.923 --> 00:13:17.790
generally. And so

265
00:13:17.790 --> 00:13:18.660
<v ->That's post Mains.</v>

266
00:13:18.660 --> 00:13:20.800
So, I mean, the position you take is the position

267
00:13:20.800 --> 00:13:23.820
that Justice Spina took in

268
00:13:23.820 --> 00:13:27.155
in his single justice decision in Nassau, correct.

269
00:13:27.155 --> 00:13:27.988
<v ->That's right.</v>

270
00:13:27.988 --> 00:13:29.520
<v ->Basically, basically</v>

271
00:13:29.520 --> 00:13:32.340
we're going to call it hallmark, as you got 30 days

272
00:13:32.340 --> 00:13:34.900
but then the Nassau decision doesn't do that.

273
00:13:34.900 --> 00:13:37.850
It essentially, it kind of hedges to be

274
00:13:37.850 --> 00:13:42.430
to be blunt about it, but it says it was prospective.

275
00:13:42.430 --> 00:13:44.950
So we have the court using language

276
00:13:44.950 --> 00:13:47.670
of hear and after and its prospective.

277
00:13:47.670 --> 00:13:51.460
And then we have the court kind of doing both things

278
00:13:51.460 --> 00:13:53.310
at the same time in Nassau.

279
00:13:53.310 --> 00:13:54.850
So what do you make of the language

280
00:13:54.850 --> 00:13:57.550
of the prospective and the hearing half the language?

281
00:13:57.550 --> 00:14:00.200
<v ->Well, we would say what the court meant there</v>

282
00:14:01.782 --> 00:14:06.782
is that someone who had a pre Maine's denial

283
00:14:07.280 --> 00:14:10.660
would not be told at the moment, that means is issued.

284
00:14:10.660 --> 00:14:12.800
You're already foreclosed.

285
00:14:12.800 --> 00:14:16.040
That's what it meant by here and after and prospective.

286
00:14:16.040 --> 00:14:18.730
But it meant that the period would not be found to

287
00:14:18.730 --> 00:14:21.440
have commenced before Mains.

288
00:14:21.440 --> 00:14:24.260
So it's as though the period had been told up

289
00:14:24.260 --> 00:14:25.465
until that point.

290
00:14:25.465 --> 00:14:30.465
And if, if in fact what the court meant was that someone

291
00:14:31.690 --> 00:14:34.840
in Mr Mandeville's position would have an unlimited amount

292
00:14:34.840 --> 00:14:37.840
of time, then you should be able to plug that

293
00:14:37.840 --> 00:14:39.310
into the sentence

294
00:14:39.310 --> 00:14:42.660
in Mains where it announced its decision and have it work.

295
00:14:42.660 --> 00:14:44.160
But instead, what you would see is

296
00:14:44.160 --> 00:14:46.490
that then the court would be saying in the interest

297
00:14:46.490 --> 00:14:49.990
of consistency and finality, we are going to, to

298
00:14:49.990 --> 00:14:54.990
give a 30 day period of time for people after the decision.

299
00:14:56.150 --> 00:14:58.860
But we're going to give an unlimited amount of time

300
00:14:58.860 --> 00:15:00.390
to another group of people.

301
00:15:00.390 --> 00:15:03.100
How could that be in the interest of right.

302
00:15:03.100 --> 00:15:04.020
<v ->That's what I was going to ask you.</v>

303
00:15:04.020 --> 00:15:07.020
So we have them saying that in the it's the finality

304
00:15:07.020 --> 00:15:10.690
we discussed that, but the consistency factor

305
00:15:10.690 --> 00:15:13.640
the court relied on and Mains is treating each defendant

306
00:15:13.640 --> 00:15:15.290
the same, correct?

307
00:15:15.290 --> 00:15:17.270
That's the consistency?

308
00:15:17.270 --> 00:15:18.280
<v ->Right?</v>

309
00:15:18.280 --> 00:15:21.080
<v ->Not giving some defendants, a 30 day limit</v>

310
00:15:21.080 --> 00:15:23.160
and other defendants, no limits.

311
00:15:23.160 --> 00:15:25.164
<v ->Right. That's right.</v>

312
00:15:25.164 --> 00:15:29.400
And so if, if one were to try and plug

313
00:15:29.400 --> 00:15:32.180
in this unlimited time rule, or the, these two

314
00:15:32.180 --> 00:15:35.660
separate rules into Mains, it's simply wouldn't work.

315
00:15:35.660 --> 00:15:38.640
And of course right after the Mains court

316
00:15:38.640 --> 00:15:39.620
announced its rule

317
00:15:39.620 --> 00:15:42.110
<v ->Council, will you concede that Mains is at</v>

318
00:15:42.110 --> 00:15:43.683
the least unclear.

319
00:15:45.640 --> 00:15:47.940
<v ->We, we would say that it's, that it's not</v>

320
00:15:47.940 --> 00:15:52.610
it's not unclear when, when viewing everything in context.

321
00:15:52.610 --> 00:15:55.246
So that in other words, the, the, the

322
00:15:55.246 --> 00:15:59.420
the term here and after meant that people would not be told

323
00:15:59.420 --> 00:16:02.350
that they're foreclosed on the day, that Mains is issued

324
00:16:02.350 --> 00:16:06.625
but that the period won't be found to have commenced

325
00:16:06.625 --> 00:16:09.309
before Mains, and it's

326
00:16:09.309 --> 00:16:12.910
<v ->And so I guess maybe,</v>

327
00:16:12.910 --> 00:16:15.110
but then in Nassau, in 2009

328
00:16:15.110 --> 00:16:19.570
the court is saying, albeit prospectively in reference

329
00:16:19.570 --> 00:16:23.500
<v ->Right? And, and that that's, we view that the same way</v>

330
00:16:23.500 --> 00:16:25.100
we view here and after in that,

331
00:16:25.100 --> 00:16:26.150
what the court was saying was

332
00:16:26.150 --> 00:16:29.121
that people were not foreclosed on the day of Mains

333
00:16:29.121 --> 00:16:30.620
but that doesn't mean

334
00:16:30.620 --> 00:16:32.040
that they would be given an unlimited amount of

335
00:16:32.040 --> 00:16:32.873
time.

336
00:16:32.873 --> 00:16:33.706
<v ->Do you I think that is</v>

337
00:16:33.706 --> 00:16:35.489
Clear from both of those opinions, then

338
00:16:35.489 --> 00:16:39.970
<v ->It is, it is looking at everything in context.</v>

339
00:16:39.970 --> 00:16:42.065
So for example, where the, where the Mains court said

340
00:16:42.065 --> 00:16:45.410
in the interest of consistency, finality, and then

341
00:16:45.410 --> 00:16:48.180
they cited a case where it says "there must be

342
00:16:48.180 --> 00:16:50.660
a reasonable moment for a judgment to become final

343
00:16:50.660 --> 00:16:54.170
and a time beyond which further challenges must be barred."

344
00:16:54.170 --> 00:16:56.390
And it discussed finality elsewhere in its opinion.

345
00:16:56.390 --> 00:16:58.760
And it took a particularly hard line approach

346
00:16:58.760 --> 00:17:01.710
and rejected proposals offered by both Mains

347
00:17:01.710 --> 00:17:05.460
and the Commonwealth that would have been a more

348
00:17:05.460 --> 00:17:09.970
lenient looking at everything together

349
00:17:09.970 --> 00:17:14.060
and combined with the, the general principle of diligence

350
00:17:14.060 --> 00:17:17.630
that is found in various areas of the criminal

351
00:17:17.630 --> 00:17:19.950
<v ->Council, if your position is correct that</v>

352
00:17:19.950 --> 00:17:21.213
it's crystal clear from Mains

353
00:17:21.213 --> 00:17:24.462
that it meant to apply in, in the way you're suggesting.

354
00:17:24.462 --> 00:17:25.860
Why would the court

355
00:17:25.860 --> 00:17:29.210
and Nassau then referenced the 25 year delay

356
00:17:29.210 --> 00:17:31.810
in filing the motion, the gatekeeper

357
00:17:31.810 --> 00:17:33.470
on the motion for the new trial?

358
00:17:33.470 --> 00:17:35.847
I mean, why wouldn't the court have just said

359
00:17:35.847 --> 00:17:37.591
"this is you get, you had 30 days

360
00:17:37.591 --> 00:17:40.700
after Mains and you're out of time."

361
00:17:40.700 --> 00:17:42.980
Instead of, instead, the court seems to say

362
00:17:42.980 --> 00:17:45.913
in that footnote, you're 25 years late.

363
00:17:47.080 --> 00:17:48.530
It's not reasonable.

364
00:17:48.530 --> 00:17:49.750
And we know it's not reasonable

365
00:17:49.750 --> 00:17:52.720
because in Mains we said 30 days.

366
00:17:52.720 --> 00:17:54.070
So you've known for a while

367
00:17:54.070 --> 00:17:57.010
that 30 days is our benchmark for reasonableness.

368
00:17:57.010 --> 00:18:00.360
And here you're 25 years late, late manifestly.

369
00:18:00.360 --> 00:18:02.310
It's unreasonable.

370
00:18:02.310 --> 00:18:03.630
Why wouldn't the court have just said

371
00:18:03.630 --> 00:18:05.710
if in fact your position was correct

372
00:18:05.710 --> 00:18:08.010
why wouldn't the court just say, "Hey

373
00:18:08.010 --> 00:18:09.947
you had 30 days after Mains?"

374
00:18:11.140 --> 00:18:12.780
<v ->Well, as we read the footnote</v>

375
00:18:12.780 --> 00:18:16.410
the court was giving several reasons for its conclusion

376
00:18:16.410 --> 00:18:18.010
in the first thing it said is that Nassau is

377
00:18:18.010 --> 00:18:20.880
in no position to argue that the single justice air here

378
00:18:20.880 --> 00:18:23.734
and the single justice there had issued a decision.

379
00:18:23.734 --> 00:18:26.250
That read Mains just the way that we do.

380
00:18:26.250 --> 00:18:27.750
So that was the first thing it said.

381
00:18:27.750 --> 00:18:31.070
And then it added all of these other reasons that it had

382
00:18:31.070 --> 00:18:33.280
it had been so long after the denial

383
00:18:33.280 --> 00:18:35.408
of the motion for new trial solely long after

384
00:18:35.408 --> 00:18:36.290
Mains

385
00:18:36.290 --> 00:18:38.607
<v ->But court in Nassau could have said</v>

386
00:18:38.607 --> 00:18:40.110
"Justice Spina was right

387
00:18:40.110 --> 00:18:42.637
as a procedural default it's over."

388
00:18:44.420 --> 00:18:45.400
<v ->That's right.</v>

389
00:18:45.400 --> 00:18:50.400
But it also looked like the court was hesitant to

390
00:18:50.610 --> 00:18:53.820
to rule on whether a procedural decision

391
00:18:53.820 --> 00:18:57.620
by a single justice could be reviewed by the full court.

392
00:18:57.620 --> 00:19:01.000
It left open that possibility, but it, it, the

393
00:19:01.000 --> 00:19:05.110
the court made clear that it did not want to

394
00:19:05.110 --> 00:19:09.657
expressly issue a holding about the procedural ruling.

395
00:19:11.290 --> 00:19:15.880
So that would be another reason why the court was, did not

396
00:19:15.880 --> 00:19:18.990
did not approach the issue exactly the way that

397
00:19:18.990 --> 00:19:20.023
that you just said.

398
00:19:21.120 --> 00:19:24.650
But what, but if, if there was in fact

399
00:19:24.650 --> 00:19:27.175
an unlimited time rule then,

400
00:19:27.175 --> 00:19:29.580
much of what's stated in that footnote

401
00:19:29.580 --> 00:19:31.860
wouldn't make much sense.

402
00:19:31.860 --> 00:19:33.570
There would be no basis for saying

403
00:19:33.570 --> 00:19:36.930
that he didn't file the gatekeeper petition

404
00:19:36.930 --> 00:19:38.750
within a reasonable time.

405
00:19:38.750 --> 00:19:41.950
If there, if, if he had an unlimited amount of time

406
00:19:41.950 --> 00:19:43.870
then it couldn't be unreasonable.

407
00:19:43.870 --> 00:19:46.520
<v ->I bring you back to the question I asked your brother,</v>

408
00:19:46.520 --> 00:19:48.100
is is this an all or nothing proposition?

409
00:19:48.100 --> 00:19:50.539
That is pre Mains was there a reasonableness

410
00:19:50.539 --> 00:19:53.050
glossed to the time for which you could

411
00:19:53.050 --> 00:19:54.210
bring the gatekeeper

412
00:19:55.440 --> 00:19:57.050
<v ->There?</v>

413
00:19:57.050 --> 00:20:00.950
We, we don't know of any such rule.

414
00:20:00.950 --> 00:20:03.500
There was the,

415
00:20:03.500 --> 00:20:04.333
the rule

416
00:20:04.333 --> 00:20:06.260
of appellate procedure saying that a notice

417
00:20:06.260 --> 00:20:08.780
of appeal should be filed within 30 days, but of course

418
00:20:08.780 --> 00:20:13.020
a gatekeeper petition isn't the same as a notice of appeal.

419
00:20:13.020 --> 00:20:15.770
And the court in Mains recognized

420
00:20:15.770 --> 00:20:19.340
that section 33 itself

421
00:20:19.340 --> 00:20:21.320
does not include

422
00:20:22.280 --> 00:20:23.113
a deadline

423
00:20:23.113 --> 00:20:26.027
for filing a gatekeeper petition, however

424
00:20:26.027 --> 00:20:29.000
<v ->Can I pile up on Justice Wendlant's point</v>

425
00:20:29.000 --> 00:20:32.510
post post Mains. Is there a reasonableness role

426
00:20:33.450 --> 00:20:37.293
and does Nassau incorporate that reasonableness rule?

427
00:20:37.293 --> 00:20:41.660
I mean, Mains could have been a lot clearer, but

428
00:20:41.660 --> 00:20:45.800
if you're bringing something 25 years after Mains, you're

429
00:20:45.800 --> 00:20:50.380
out of luck because it's because the logic of Maine's myth

430
00:20:50.380 --> 00:20:55.020
you know, get your filings in, I guess, is taking justice.

431
00:20:55.020 --> 00:20:57.813
Wendlant's sort of rule.

432
00:20:58.700 --> 00:21:00.940
Meaning there, there was a reasonable risk rule

433
00:21:00.940 --> 00:21:05.770
after Mains and that's reflected in what Nassau decided.

434
00:21:05.770 --> 00:21:06.863
Does that make sense?

435
00:21:07.830 --> 00:21:08.663
<v ->I think it</v>

436
00:21:08.663 --> 00:21:11.120
<v ->has a very quality to it</v>

437
00:21:11.984 --> 00:21:14.743
but I'm just trying to make some sense out of it.

438
00:21:15.760 --> 00:21:18.470
<v ->Well, I think that what the Nassau court was saying was</v>

439
00:21:18.470 --> 00:21:23.000
that at the very least, there's a reasonableness rule

440
00:21:25.140 --> 00:21:27.840
because it, it wouldn't make sense for it to make reference

441
00:21:27.840 --> 00:21:30.060
to that concept if, if it wasn't.

442
00:21:30.060 --> 00:21:34.270
But, but then the court also

443
00:21:34.270 --> 00:21:36.920
suggested that it did not

444
00:21:36.920 --> 00:21:40.010
see error in Justice Spina's

445
00:21:40.010 --> 00:21:42.270
reading of Mains, but

446
00:21:42.270 --> 00:21:45.940
at the same time, it did not go so far as to issue a holding

447
00:21:45.940 --> 00:21:50.140
in that regard, which would have opened up the question of

448
00:21:50.140 --> 00:21:53.650
whether the court,

449
00:21:53.650 --> 00:21:55.890
the full court should properly proper

450
00:21:55.890 --> 00:21:58.740
properly be reviewing procedural decisions issued

451
00:21:58.740 --> 00:22:00.430
by single justices

452
00:22:01.440 --> 00:22:05.310
<v ->Counsel. If there is a post Mains reasonableness rule</v>

453
00:22:05.310 --> 00:22:07.614
akin to what's in the footnote and Nassau.

454
00:22:07.614 --> 00:22:11.480
When does the statute of limitations for E.D.P.A start?

455
00:22:14.560 --> 00:22:15.393
<v ->Well,</v>

456
00:22:16.410 --> 00:22:18.760
it would, there would need to be

457
00:22:18.760 --> 00:22:22.290
I would say some decision from a state court

458
00:22:22.290 --> 00:22:26.350
about whether a filing was reasonable

459
00:22:26.350 --> 00:22:27.183
in order for the

460
00:22:27.183 --> 00:22:29.995
the federal court to know whether in fact

461
00:22:29.995 --> 00:22:31.973
<v ->In this very case,</v>

462
00:22:33.210 --> 00:22:35.900
how would the

463
00:22:35.900 --> 00:22:36.733
District of

464
00:22:36.733 --> 00:22:39.040
Massachusetts know if we said there is a

465
00:22:39.040 --> 00:22:41.203
reasonableness rule, post Mains,

466
00:22:42.170 --> 00:22:43.840
how would the district of Massachusetts know

467
00:22:43.840 --> 00:22:45.623
whether or not the EPO is right?

468
00:22:46.519 --> 00:22:48.419
or the statute of limitations had run?

469
00:22:49.310 --> 00:22:53.360
<v ->Well, the, the, there, there should be a decision from</v>

470
00:22:53.360 --> 00:22:58.360
from a state court as to whether a petition was, was timely

471
00:22:59.510 --> 00:23:02.620
or not, whether it satisfied the reasonableness rule or not.

472
00:23:02.620 --> 00:23:05.000
However, I will say this, that Mr.

473
00:23:05.000 --> 00:23:08.120
Mains filed his 2017

474
00:23:08.120 --> 00:23:09.620
gatekeeper petition

475
00:23:09.620 --> 00:23:13.890
which challenged the first two motions for new trial, more

476
00:23:13.890 --> 00:23:15.797
than seven years after Nassau.

477
00:23:15.797 --> 00:23:19.581
And the Nassau court said that

478
00:23:19.581 --> 00:23:20.992
Nassau was unreasonable

479
00:23:20.992 --> 00:23:23.580
because, because it was more, more than seven years

480
00:23:23.580 --> 00:23:24.940
after Mains.

481
00:23:24.940 --> 00:23:26.050
I'm sorry, did I,

482
00:23:28.320 --> 00:23:30.550
<v ->Does that answer Justice Wendlant's question</v>

483
00:23:30.550 --> 00:23:35.360
which is that, it's, it might've been a difficult question

484
00:23:35.360 --> 00:23:40.320
about the time Nassau's decided, but we're now

485
00:23:40.320 --> 00:23:41.920
12 years later.

486
00:23:41.920 --> 00:23:46.500
So all of these things are past statute of limitations

487
00:23:46.500 --> 00:23:47.333
At this point.

488
00:23:47.333 --> 00:23:51.240
So it may have been a hard question before Nassau

489
00:23:51.240 --> 00:23:55.203
but it's not any more because anything now is too late.

490
00:23:56.490 --> 00:24:00.003
<v ->We'd say at the, at the very least that's the case.</v>

491
00:24:03.274 --> 00:24:04.107
But,

492
00:24:05.890 --> 00:24:06.723
<v ->I suggested</v>

493
00:24:06.723 --> 00:24:09.850
that perhaps when Justice Abrams wrote down footnote

494
00:24:09.850 --> 00:24:10.960
in Main,

495
00:24:10.960 --> 00:24:14.200
that she didn't contemplate

496
00:24:14.200 --> 00:24:18.370
that there would be cases that would fall within this gap.

497
00:24:18.370 --> 00:24:21.850
Let's say that th th that that's accurate.

498
00:24:21.850 --> 00:24:23.767
Why isn't he right?

499
00:24:23.767 --> 00:24:25.786
That, that the

500
00:24:25.786 --> 00:24:27.600
average

501
00:24:27.600 --> 00:24:29.220
pro se litigants really

502
00:24:29.220 --> 00:24:33.570
on no notice post Mains to expect, Oh, well

503
00:24:33.570 --> 00:24:35.850
this decision came out from the SJC.

504
00:24:35.850 --> 00:24:36.810
Let me get going.

505
00:24:36.810 --> 00:24:41.033
I've got 30 days to file my gatekeeper petition.

506
00:24:42.380 --> 00:24:45.610
<v ->Well, a couple of things, one, I don't know how</v>

507
00:24:45.610 --> 00:24:47.880
Justice Abrams could not have contemplated it

508
00:24:47.880 --> 00:24:51.290
because we're, if, if somebody had received a denial

509
00:24:51.290 --> 00:24:54.370
of a new trial motion the day before Mains

510
00:24:54.370 --> 00:24:57.040
they would be in this category that we're talking about.

511
00:24:57.040 --> 00:25:00.100
So there, there really had to be people

512
00:25:00.100 --> 00:25:03.940
in this group at the time, that Mains was issued.

513
00:25:03.940 --> 00:25:07.370
Also the Mains decision itself spent close

514
00:25:07.370 --> 00:25:10.710
to two pages in the context of, of waiver talking

515
00:25:10.710 --> 00:25:15.350
about the importance of not relieving pro se litigants

516
00:25:15.350 --> 00:25:17.959
from the same rules applied to others.

517
00:25:17.959 --> 00:25:19.900
And in fact, one of the things they said

518
00:25:19.900 --> 00:25:23.570
about Mains himself was that he had shown

519
00:25:23.570 --> 00:25:26.340
that he can litigate, that he knew how to bring a motion

520
00:25:26.340 --> 00:25:28.650
for new trial and a gatekeeper petition.

521
00:25:28.650 --> 00:25:30.309
And so it's no excuse

522
00:25:30.309 --> 00:25:33.260
for him not to be subject to the waiver rule.

523
00:25:33.260 --> 00:25:36.860
So it would be hard to then read Mains to say

524
00:25:36.860 --> 00:25:41.860
that somehow there, there, there was an implicit exception

525
00:25:41.900 --> 00:25:45.500
for pro se litigants or at the very least that

526
00:25:45.500 --> 00:25:48.900
that the Mains court did not contemplate

527
00:25:48.900 --> 00:25:50.470
and did not take a strict position

528
00:25:50.470 --> 00:25:52.910
with respect to the pro se litigants.

529
00:25:52.910 --> 00:25:55.770
But also beyond that, we're talking

530
00:25:55.770 --> 00:25:58.240
about people who had already brought a challenge

531
00:25:58.240 --> 00:26:00.979
to their conviction and that, and

532
00:26:00.979 --> 00:26:02.210
that challenge had already been fleshed

533
00:26:02.210 --> 00:26:04.250
out through a motion for a new trial.

534
00:26:04.250 --> 00:26:09.220
And so this is somebody who has an incentive to, to continue

535
00:26:10.290 --> 00:26:13.140
on with their challenge and somebody who's already fleshed

536
00:26:13.140 --> 00:26:16.073
out the arguments in support of their challenge.

537
00:26:17.300 --> 00:26:18.960
And on top of that

538
00:26:18.960 --> 00:26:21.422
as I said before, there's, there's a concept of

539
00:26:21.422 --> 00:26:24.840
of diligence and promptness that runs throughout the law.

540
00:26:24.840 --> 00:26:28.340
We see that in deadlines and statute of limitations

541
00:26:28.340 --> 00:26:31.210
even in the rule 30 context where the rule

542
00:26:31.210 --> 00:26:33.810
says "the motion could be brought at any time."

543
00:26:33.810 --> 00:26:36.730
There's also case law saying that if it's brought

544
00:26:36.730 --> 00:26:39.530
to long after the conviction, that could be taken

545
00:26:39.530 --> 00:26:42.620
into account as a reason to deny the motion for new trial.

546
00:26:42.620 --> 00:26:46.914
So even the most lenient rule that there is timing wise

547
00:26:46.914 --> 00:26:50.853
there's still a concept of diligence and promptness.

548
00:26:52.518 --> 00:26:55.020
And so even the pro se litigant should be aware

549
00:26:55.020 --> 00:26:57.303
of that and to take that into account.

550
00:26:59.960 --> 00:27:02.390
<v ->Does anyone have any further questions?</v>

551
00:27:02.390 --> 00:27:04.200
Okay. Thank you very much, counsel.

552
00:27:04.200 --> 00:27:05.033
<v ->Thank you.</v>