Messina v. Northern NH Correctional Facility, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Michael F. Messina, Jr.
v. 	Case No. 19-cv-539-SM-AJ
Northern New Hampshire
Correctional Facility Warden
REPORT AND RECOMMENDATION
Michael Messina, Jr. was incarcerated at the Northern New
Hampshire Correctional Facility (“NCF”) at the time he filed a
pro se petition for a writ of habeas corpus under 28 U.S.C. §
2254 (Doc. No. 1) and several petition addenda (Doc. Nos. 4, 6,
8, 10, 11, 12, 14, 15),1 challenging the validity of his
incarceration, which was imposed pursuant to his 2015
convictions. 	See State v. Messina, No. 216-2014-CR-00288 (N.H.
Super. Ct., Hillsborough Cty., N. Dist.).2 	Before the Court is
1 The Court construes the documents identified here as the
Petition (Doc. No. 1) and Petition Addenda (Doc. Nos. 4, 6, 8,
10, 11, 12, 14, 15), together, to be the federal habeas Petition
in this matter for all purposes.
2 Mr. Messina notified that court that his term of
incarceration at NCF ended on December 6, 2025. 	Doc. No. 39.
Section 2254(a) directs a district judge to entertain section
2254 petitions only for persons “in custody pursuant to the
judgment of a State court.” 28 U.S.C. § 2254(a). The “in
custody” determination is made at the time the section 2254
petition is filed. 	Spencer v. Kemna, 523 U.S. 1, 7 (1998). 	It
is not clear whether Mr. Messina is on parole or otherwise
suffers collateral consequences, which, if true, would mean his
petition for a writ of habeas corpus is still justiciable.
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the NCF Warden’s motion for summary judgment, arguing that Mr.
Messina’s Petition is untimely. 	Doc. No. 32. 	Mr. Messina
objects. 	See Doc. No. 36. 	That motion is before the
undersigned Magistrate Judge for a Report and Recommendation as
to disposition.
Background
I. 	Trial and Initial State Post-Conviction Proceedings
On June 16, 2015, a jury found Mr. Messina guilty of (1)
allowing his property to be used for prostitution, involving a
minor (victim), see N.H. Rev. Stat. Ann. § (“RSA”) 645:2 (Supp.
2015); (2) common nuisance for allowing his property to be used
by drug-dependent persons for the purpose of using drugs, see
RSA 318-B:16 (2011); (3) endangering the welfare of a child, see
RSA 639:3 (2007); and (4) interference with custody, see RSA
633:4 (Supp. 2015). 	See State v. Messina, No. 2015-0539, 2016
WL 5723946, at *1 (N.H. Aug. 22, 2016); Doc. No. 23-1. 	On
August 5, 2015, Mr. Messina was sentenced to two consecutive
terms of three and a half to seven years in prison.
Mr. Messina appealed that conviction to the New Hampshire
Supreme Court (“NHSC”). 	Mr. Messina was represented by counsel
United States v. Duclos, 382 F.3d 62, 65–66 (1st Cir. 2004).
However, because the Warden does not move for summary judgment
on the basis that Mr. Messina is no longer incarcerated, the
court addresses the parties’ arguments on the merits.
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in that appeal. 	Doc. No. 28-6 (conventionally filed). 	The NHSC
affirmed Mr. Messina’s conviction on August 22, 2016. 	Messina,
2016 WL 5723946, at *1; Doc. No. 23-1. 	Mr. Messina did not file
a petition for certiorari in the United States Supreme Court.
On April 25, 2018, Mr. Messina filed his first state habeas
petition in Coös County Superior Court. 	Messina v. Riendeau,
No. 214-2018-CV-00046 (N.H. Super. Ct., Coös Cty.); see also
Doc. No. 29-1. 	The Superior Court denied that petition on
August 24, 2018. 	Doc. Nos. 22-1, 22-1. 	Mr. Messina filed a
motion to reconsider that Order on September 10, 2018, which the
Court denied on September 24, 2018. 	Doc. No. 22-2 at 2. 	Mr.
Messina appealed that decision to the NHSC on September 20, 2018
(Doc. No. 22-1), which the NHSC denied. 	Messina v. Riendeau,
No. 2018-0544 (N.H. Nov. 28, 2018); see also Doc. No. 22-3.
Then, Mr. Messina filed a petition for a writ of mandamus in his
underlying criminal case in Hillsborough County Superior Court,
Northern District, on March 4, 2019. 	The Superior Court
dismissed that petition two days later, on March 6, 2019.3 	See
Doc. No. 26-1 at 10.
3 There is no indication in the record before the court that
Mr. Messina appealed the denial of his Writ of Mandamus to the
NHSC.
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II. 	Vision Issues
Mr. Messina has had vision problems. 	More than a year
before he filed his first state habeas petition in April 2018,
Mr. Messina underwent cataract surgery on his left eye on
January 18, 2017. 	Doc. No. 8-1 at 1. 	Then, approximately two
months after filing his state habeas petition, on June 13, 2018,
Mr. Messina underwent cataract surgery on his right eye. 	Id.
III. § 2254 Petition & Subsequent Postconviction Litigation
Mr. Messina filed this § 2254 petition on May 14, 2019,
less than one year after his second cataract surgery. 	He also
filed a motion to amend his Petition here on January 30, 2020
(Doc. No. 4), which this court granted. 	Doc. No. 5 at 11–13.
This court screened Mr. Messina’s Petition pursuant to Rule 4 of
the Rules Governing § 2254 Proceedings (“§ 2254 Rules”), and, as
an initial matter, directed Mr. Messina to show cause why his
Petition should not be dismissed as untimely. 	Id. at 11. 	The
court also directed Mr. Messina to provide a timeline of all
state collateral review proceedings relating to his underlying
conviction or sentence and, if applicable, provide all newly
discovered evidence not presented to the jury that would support
an actual innocence claim. 	Id. at 11–13.
In response to that show cause order, Mr. Messina filed an
Amended Petition, explaining that, although he had started
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preparing a federal habeas Petition in November 2016, he was
also experiencing “acute eye problem[s] that needed surgery.”
Doc. No. 6-1 at 7. 	Between his two cataract surgeries in
January 2017 and June 2018, respectively, Mr. Messina claims to
have experienced “Double Vision” and recruited family members to
become involved in his federal habeas Petition. 	Id. at 7–8.
Due to his “Double Vision,” Mr. Messina asserts that he did not
visit the law library on a regular basis, which, he claims
prevented him from filing his federal habeas Petition in a
timely manner. 	Id. 	Mr. Messina also asserts that he did not
receive his trial transcripts and discovery from his trial
attorneys until February 2018. 	Id. at 8.
On July 1, 2020, this court issued a Report and
Recommendation (“July 2020 R&R”) recommending that the amended
petition be dismissed as untimely. 	See Doc. No. 7. 	Mr. Messina
filed a motion to reconsider that R&R, which included medical
records related to his eyesight issues that he had not
previously provided and that characterized his cataracts as
“visually significant” in 2018 prior to his surgeries. 	Doc. No.
8-1 at 5; see id. at 5–38 (documents not previously provided).
After reviewing those materials, the undersigned magistrate
judge vacated the July 2020 R&R and stayed Mr. Messina’s federal
habeas Petition so that he could file a second state habeas
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petition and exhaust his state remedies. 	Doc. No. 9. 	The order
vacating the July 20 R&R and staying the § 2254 petition did not
decide the statute of limitations issue.
Mr. Messina filed his second state habeas petition on May
12, 2021. 	Doc. No. 22-5. 	On July 16, 2021, the Superior Court
denied Mr. Messina’s second state habeas petition. 	Messina v.
Riendeau, No. 214-2021-CV-00040 (N.H. Super. Ct., Coös Cty.);
Doc. No. 11-1 at 3–7. 	Mr. Messina appealed that decision to the
NHSC. 	The NHSC declined the appeal. 	Messina v. Riendeau, No.
2021-0379 (N.H. Nov. 16, 2021); Doc. No. 22-6.
Thereafter, this court lifted the stay in Mr. Messina’s
case. 	Doc. No. 13. 	The court ordered the Warden to file an
answer or other response to the claims this court identified as
Claims 1(a)–(b), 3, 4(a)–(l), 5, 6, 7(a)–(e), and 8. 	Doc. No.
17. 	The Warden moved to dismiss Mr. Messina’s claims, arguing
that they are untimely. 	Doc. No. 24. 	However, the Warden did
not address arguments raised by Mr. Messina regarding equitable
tolling and actual innocence. 	Therefore, the court recommended
that the district judge deny the Warden’s motion without
prejudice to his ability to address those arguments in a motion
for summary judgment. 	In response the Warden filed the motion
for summary judgment which is presently before the court.
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Summary Judgment Standard
“A grant of summary judgment is appropriate when there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” 	Viscito v. Nat’l
Plan. Corp., 34 F.4th 78, 83 (1st Cir. 2022) (citations and
internal quotation marks omitted); see also Fed. R. Civ. P.
56(a). 	“A genuine dispute is one that would permit a rational
factfinder to resolve the issue in favor of either party, and a
material fact is one that has the potential to affect the
outcome of the suit under the applicable law.” 	Gattineri v.
Wynn MA, LLC, 63 F.4th 71, 84-85 (1st Cir. 2023) (citations and
internal quotation marks omitted). 	The party opposing summary
judgment “must adduce specific facts showing that a trier of
fact could reasonably find in his favor,” and “cannot rely on
‘conclusory allegations, improbable inferences, and unsupported
speculation.’” 	Johnson v. Johnson, 23 F.4th 136, 141 (1st Cir.
2022) (citation omitted).
Discussion
I. 	One-Year Limitations Period
Typically, state prisoners face a one-year statute of
limitations for filing a federal habeas corpus petition to
challenge their custody pursuant to a state court judgment. 	28
U.S.C. § 2244(d)(1). 	Mr. Messina’s one-year limitations period
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began to run on “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time
for seeking such review.” 	Id. at (d)(1)(A). 	“[T]he conclusion
of direct review occurs when” the United States Supreme Court
“affirms a conviction on the merits on direct review or denies a
petition for a writ of certiorari.” 	Jimenez v. Quarterman, 555
U.S. 113, 119 (2009) (quoting Clay v. United States, 537 U.S.
522, 527, 528–32) (2003)). 	“[I]f the federal prisoner chooses
not to seek direct review in this Court, then the conviction
becomes final when the time for filing a certiorari petition
expires.” 	Id. (internal quotation marks and citations omitted).
Until that point, the “process of direct review” is not complete
and the “presumption of finality and legality” has not
“attache[d] to the conviction and sentence.” 	Id. at 119–20
(alterations in original) (quoting Barefoot v. Estelle, 463 U.S.
880, 887 (1983)).
Mr. Messina was convicted on June 16, 2015 and the NHSC
affirmed his conviction on August 22, 2016. 	From that date, Mr.
Messina had ninety days, until November 21, 2016,4 to file a
petition for a writ of certiorari in the United States Supreme
4 Ninety days after August 22, 2016 is November 20, 2016,
but that date fell on a Sunday, so Mr. Messina would have had
until November 21, 2016 to file a petition for a writ of
certiorari in the United States Supreme Court.
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Court. 	Mr. Messina did not file such a petition, so his
judgment became final on November 21, 2016. 	Mr. Messina had one
year from that date to timely file his habeas petition in
federal court. 	Id. at 119.
The first time Mr. Messina filed any habeas petition in
state or federal court was April 25, 2018, well beyond the
expiration of the one-year limitations period. 	The Warden
asserts that Mr. Messina’s petition is not subject to statutory
or equitable tolling and is, therefore, untimely.
II. 	Statutory Tolling Under 28 U.S.C. § 2244(d)(2)
The one-year limitations period may be tolled “during the
time in ‘which a properly filed application for State post-
conviction or other collateral review with respect to the
pertinent judgment or claim is pending.’” 	Blue v. Medeiros, 913
F.3d 1, 2 (1st Cir. 2019) (quoting 28 U.S.C. § 2244(d)(2)).
State post-conviction proceedings filed after the expiration of
the statute of limitations has expired do not reset the
limitations clock. 	See Trapp v. Spencer, 479 F.3d 53, 58-59
(1st Cir. 2007), abrogated on other grounds by, Holland v.
Florida, 560 U.S. 631, 649 (2010).
For statutory tolling to apply, Mr. Messina had to file his
state habeas petition by November 21, 2017. 	However, the first
time Mr. Messina filed a post-conviction challenge to his
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conviction in state court was on April 25, 2018, when he filed
his first state habeas petition, approximately five months
beyond the expiration of the one-year limitations period.
Because that filing did not restart the limitations period, the
deadline for Mr. Messina to file his federal habeas petition is
not extended by statutory tolling. 	28 U.S.C. § 2244(d)(2).
III. Equitable Tolling
“Equitable tolling is a doctrine that provides that in
exceptional circumstances, a statute of limitations may be
extended for equitable reasons not acknowledged in the statute
creating the limitations period.” 	Ramos-Martínez v. United
States, 638 F.3d 315, 321 (1st Cir. 2011) (internal quotation
marks and citations omitted). 	There are limited circumstances
under which the limitations period may be equitably tolled. 	See
Holland, 560 U.S. at 645; Riva v. Ficco, 615 F.3d 35, 39 (1st
Cir. 2010).
The petitioner bears the burden of establishing the basis
for equitable tolling. 	See Riva, 615 F.3d at 39. 	To carry this
burden, the petitioner must demonstrate “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.” Id.
(internal quotation marks and citation omitted) (quoting
Holland, 560 U.S. at 649). 	Ultimately, the petitioner must
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establish “a causal relationship between the extraordinary
circumstances on which the claim for equitable tolling rests and
the lateness of his filing.” 	Blue, 913 F.3d at 8 (quoting
Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000)) (internal
quotation marks omitted).
The Warden claims that equitable tolling is not available
to Mr. Messina because he did not diligently pursue his appeal
and has not shown that extraordinary circumstances prevented him
from making a timely filing. 	Doc. No. 32-1 at 17–18. 	Mr.
Messina counters, and provides medical records to show, that he
experienced eyesight issues that resulted in cataract surgery on
both eyes — the first on January 18, 2017, and the second on
June 13, 2018. 	Doc. No. 6-1 at 7–8. 	Mr. Messina also submits
affidavits of family members stating that Mr. Messina was
legally blind prior to his cataract surgery. 	See Doc. No 6-3 at
2–3, 50. 	Mr. Messina further claims that his trial attorney
caused the delay in filing by not providing Mr. Messina’s trial
transcripts and discovery until February 2018. 	Doc. No. 6-1 at
8.
While the court does not question that Mr. Messina’s
eyesight issues constitute extraordinary circumstances, Mr.
Messina fails to explain why he was nevertheless able to file
his state habeas petition on April 25, 2018, shortly after his
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first cataract surgery, and before his second cataract surgery,
and after he received his trial transcripts. 	In other words,
even assuming Mr. Messina faced extraordinary circumstances for
purposes of equitable tolling and that those extraordinary
circumstances caused his delay in filing, his extraordinary
circumstances had been sufficiently abated as of April 25, 2018,
to allow him to file a habeas petition in the state court.
Mr. Messina’s claims that he experienced double vision
between eye surgeries does not change that conclusion. 	Mr.
Messina filed his state habeas petition, as well as other
motions in that case (including a motion to waive fees and a
motion to reconsider/for court-appointed counsel) between
surgeries. 	See Doc. No. 22-2 (showing motions Mr. Messina filed
in 2018 state habeas petition case). 	In other words, even
assuming Mr. Messina’s vision issues prevented the filing of his
federal habeas petition prior to April 2018, Mr. Messina has not
shown that the double vision he experienced between surgeries
amounted to extraordinary circumstances which caused the delay
in filing his federal habeas petition after April 2018. 	See
Perfetto v. Warden, N.H. State Prison, No. 16-cv-473-SM, 2019 WL
1405837, at *4, 2019 U.S. Dist. LEXIS 52787, at *10–11 (D.N.H.
Mar. 28, 2019) (petitioner’s filing of federal and state cases
showed petitioner was able to file his petition in federal court
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while suffering from memory issues as a result of experiencing a
serious infection and high fever); Santiago v. Miller, 180 F.
Supp. 2d 471, 474 (S.D.N.Y. 2001) (no equitable tolling for
petitioner’s claim of legal blindness where petitioner was able
to file post-conviction motions in state court, a federal habeas
petition, and a reply to defendant’s memorandum in opposition to
his petition); see, e.g., Marshall v. Holt, No. 1:13-CV-3470-
TWT, 2014 WL 2711942, at *6 (N.D. Ga. June 13, 2014), 2014 U.S.
Dist. LEXIS 80734, at *12-13 (N.D. Ga. May 12, 2014) (petitioner
not entitled to equitable tolling where he filed state habeas
petition after his conviction became final, but waited until the
expiration of the limitations period to file his federal habeas
petition).
As to whether Mr. Messina diligently filed his federal
habeas petition after his extraordinary circumstances abated,
the court “consider[s] the entire period leading up to the
filing of the habeas petition.”5 	Blue, 913 F.3d at 10; see Smith
5 There is support for tolling the limitations period for
the duration of the extraordinary circumstance and allowing
prisoners the full year to file their federal habeas petition.
Harper v. Ercole, 648 F.3d 132, 140 (2d Cir. 2011) (“[S]tate
prisoners should have the full year allowed them by Congress to
consider and prepare their federal habeas petitions.” (citations
omitted)). 	However, even if the court adopted that approach,
Mr. Messina’s petition is still untimely. 	By April 2018, Mr.
Messina’s extraordinary circumstances were no longer an
impediment to litigating his claims. 	He did not file his
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v. Davis, 953 F.3d 582, 598–99 (9th Cir. 2020) (en banc)
(litigant must show reasonably diligent pursuit of his rights
not only while an impediment to filing caused by an
extraordinary circumstance existed, but before and after as
well, up to the time of filing his claim in federal court);
Carpenter v. Douma, 840 F.3d 867, 870 (7th Cir. 2016) (same).
Neither Mr. Messina’s eye issues, nor lack of trial transcripts,
impeded his ability to file his federal habeas petition as of
April 2018. 	“That is the moment he needed to move swiftly to
preserve his federal rights as” his eyesight issues and lack of
trial transcripts “could no longer be described as impeding his
ability to seek post-conviction review.” 	Blue, 913 F.3d at 10
(no equitable tolling for petitioner who waited eleven months
after extraordinary circumstance was abated to file his federal
habeas petition).
However, Mr. Messina waited over one year, until May 14,
2019, to file his federal habeas petition. 	That delay is fatal
to Mr. Messina’s claim that he diligently pursued his rights.
Id.; see Pace v. DiGuglielmo, 544 U.S. 408, 419 (2005) (no
equitable tolling where “petitioner s[a]t on his rights for
years before he filed his [state habeas] petition” and “sat on
federal habeas petition until May 2019, more than one year
later.
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them for five more months after” the denial of state habeas
relief became final “before deciding to seek relief in federal
court”).
For the reasons stated above, Mr. Messina has not shown
that he is entitled to equitable tolling. 	Riva, 615 F.3d at 39
(“A habeas petitioner bears the burden of establishing the basis
for equitable tolling.”).
IV. 	Actual Innocence
Where a habeas petition is untimely, “a showing of actual
innocence can serve as a ‘gateway’ that allows an otherwise
time-barred petition to be considered.” 	McCants v. Alves, 67
F.4th 47, 52 (1st Cir. 2023) (citing McQuiggin v. Perkins, 569
U.S. 383, 386 (2013)). 	“To pass through this gateway,” a
petitioner must demonstrate that “new evidence shows it is more
likely than not that no reasonable juror would have convicted
[the petitioner].” 	Id. (brackets in original) (internal
quotations omitted) (quoting McQuiggin, 569 U.S. at 395). 	The
new evidence must be something “not presented at trial,” such as
“exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence . . . .” 	Schlup v.
Delo, 513 U.S. 298, 324 (1995). 	A petitioner must show factual
innocence and not merely legal insufficiency. 	Bousley v. United
States, 523 U.S. 614, 623 (1998).
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In support of Mr. Messina’s claim that he is actually
innocent, he provided the criminal record of Kieran Robinson-
Green, who testified at Mr. Messina’s trial, see Doc. No. 6-2 at
12-16, Doc. No. 36-1 at 7–12, and affidavits or letters written
after his trial that state Mr. Messina is innocent. 	Doc. No. 6–
3 at 2–3 (Mr. Messina’s daughter, M.M., Aff. dated May 6, 2020;
id. at 11-13 (M.M. Aff. dated July 13, 2017); id. at 44-45 (Kim
Dutton Aff. dated June 9, 2017; id. at 48–49 (Jerel Johnson Aff.
dated April 25, 2019); id. at 50 (Kim Dutton Aff. dated May 9,
2019).6 	However, as the Warden asserts, Mr. Messina has failed
6 To the extent Mr. Messina relies on other claims in his
petition or objection to the Warden’s motion for summary
judgment — that the trial court violated his rights under the
Fifth, Sixth, and Fourteenth Amendments; that his trial counsel
was ineffective for failing to use certain evidence; the
prosecuting attorney engaged in misconduct; and the NHSC failed
to provide Mr. Messina with the opportunity to be heard — to
support his actual innocence claim, those arguments are
unavailing. 	Doc. Nos. 16, 17 (Claims 1(a) – (b), 3, 4(a) – (l),
5, 6, 7(a) – (e), and 8); see also Doc. No. 36-1 (attaching
documents related to the investigation of his underlying crime).
“[W]ithout any new evidence of innocence, even the existence of
a concededly meritorious constitutional violation is not in
itself sufficient to establish a miscarriage of justice that
would allow a habeas court to reach the merits of a barred
claim.” 	Burks v. Dubois, 55 F.3d 712, 718 (1st Cir. 1995).
Moreover, Mr. Messina’s claim that his attorney knew of
information and failed to use it, see, e.g., Doc. No. 6-1 at 3–
4, does not amount to new evidence for purposes of showing
actual innocence to allow his federal habeas petition to
proceed. 	Wood v. Spencer, 487 F.3d 1, 4–5 (1st Cir. 2007) (“[A]
lawyer’s knowledge is attributed to her client.”) 	Accordingly,
the court limits its analysis to the evidence that Mr. Messina
claims was not known at the time of trial.
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to provide new, reliable evidence that would show he is actually
innocent. 	Instead, the information on which Mr. Messina relies
was either presented at trial, or is insufficient to show that,
had it been presented at trial, no reasonable juror would have
convicted Mr. Messina.
a. Witness Criminal Records
Mr. Messina contends that the jury did not hear evidence
that “Mya,” who was a witness at the trial, was previously
charged with shoplifting, larceny, assault and battery, and
intimidating a witness. 	Doc. No. 6-2 at 12-15. 	However,
criminal history evidence of a witness would not have shown that
Mr. Messina was factually innocent. 	Impeachment evidence is
generally deemed to provide an inadequate basis for proving
actual innocence. 	See Bourdon v. Warden, N. N.H. Corr.
Facility, Civil No. 15-cv-138-LM, 2018 DNH 229, 2018 WL 6069100,
at *4, 2018 U.S. Dist. LEXIS 197430, at *9 (D.N.H. Nov. 20,
2018); see also Conlan v. Hazlewood, No. 17-cv-181-JL, 2017 WL
6464713, at *4, 2017 U.S. Dist. LEXIS 208344, at *10 (D.N.H.
Nov. 7, 2017) (“It is ‘well-established’ that, in general,
impeachment evidence is inadequate to establish actual
innocence” (citations omitted)), R&R adopted, 2018 WL 2303100,
2017 U.S. Dist LEXIS 207117 (D.N.H. May 21, 2018); Sawyer v.
Whitley, 505 U.S. 333, 349 (1992) (“This sort of latterday
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evidence brought forward to impeach a prosecution witness will
seldom, if ever, make a clear and convincing showing that no
reasonable juror would have believed the heart of [the
witness's] account of petitioner's actions.”). 	Mr. Messina's
case is not exceptional in this regard.
b. Affidavits
The affidavits Mr. Messina provided similarly fail to show
that no reasonable juror would have convicted Mr. Messina had
those affidavits been presented at trial. 	Instead, the
affidavits reiterate testimony produced at trial — that Mr.
Messina did not know his daughter, M.M., was engaged in
prostitution or using drugs. 	See Doc. No. 6-3 at 2 (M.M.’s
affidavit, which stated “Michael F. Messina did not know what
was going on in his home due to him being blind in both eyes and
always being in his room”); id. at 44–45 (Kimberlie Dutton
statement saying Mr. Messina would have intervened in the
prostitution had he known about it); id. at 48 (Jerely Johnson
affidavit, which stated that he “was told by Anna Messina that
Mike was unaware of the [prostitution]”); id. at 50 (Kimberlie
Dutton affidavit, which states “my brother, Michael Messina, is
not guilty o[f] the prostitution charges [against] him”).
At trial, M.M. testified that she did “everything” she
could to hide that she was engaged in prostitution and using
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illegal drugs, which included sneaking people into the basement
and away from Mr. Messina’s room on the first floor of the home.
Doc. No. 28, Trial Tr., Day 1 at 113:14–20, 130:16–131:1.7 	Mya
testified that they brought clients through a door “nowhere near
Michael [Messina’s] bedroom.” 	Id. at 176:10–17. 	The jury also
heard that Anna Messina, Mr. Messina’s ex-wife and M.M.’s
mother, allowed Mya to use Anna’s phone to arrange dates, id. at
Day 2 at 397:11–398:1, and that Mr. Messina did not interact
with anyone Mya brought to Mr. Messina’s home for purposes of
engaging in prostitution. 	Id. at 398:15–24. 	The jury also
heard that Mr. Messina never confessed that he knew his daughter
was engaged in prostitution, id. at Day 2 at 270:5–9; saw her
engaged in prostitution, id. at 270:10–12; or received money
with the knowledge that it was earned from prostitution. Id. at
270:13–16. 	Finally, the jury heard that Mr. Messina told police
he did not know M.M. was doing drugs. 	Id. at 296:19–297:16.
Despite these statements, the jury still found Mr. Messina
guilty of allowing his minor daughter and others to use drugs
and engage in prostitution on his property, endangering his
daughter’s welfare, and interfering with her custody. 	In other
words, the jury rejected the statements that Mr. Messina was
7 Transcripts were conventionally filed with the court.
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unaware of illicit activity in his house, and accepted evidence
in support of the State’s case. 	That evidence included Mr.
Messina’s statements to the police that he did not want M.M. to
be involved in drugs or prostitution, that he saw M.M. post
advertisements for dates on Craigslist with Mya, and knew M.M.
engaged in “body rubs” or massages. 	Id. at 269:10–16, 282:9–24.
Ultimately, Mr. Messina has failed to demonstrate that no
reasonable juror would have convicted Mr. Messina had they been
presented with the affidavits he submitted with his Petition.
McCants, 67 F.4th at 52; see McCray v. Vasbinder, 499 F.3d 568,
577 (6th Cir. 2007) (collecting cases where courts concluded
that petitioner had not shown actual innocence based on
affidavits submitted after trial that did not overcome evidence
produced at trial).
Therefore, Mr. Messina has not shown the actual innocence
exception applies to permit the court to review his untimely
petition.
Certificate of Appealability
The § 2254 Rules require the court to “issue or deny a
certificate of appealability when it enters a final order
adverse to the party.” § 2254 Rule 11(a). Here, the grounds for
dismissal are purely procedural, and not substantive.
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When the district court denies a habeas petition on
procedural 	grounds 	without 	reaching 	the 	prisoner's
underlying 	constitutional 	claim, 	a 	[certificate 	of
appealability] should issue when the prisoner shows, at
least, 	that 	jurists 	of 	reason 	would 	find 	it 	debatable
whether the petition states a valid claim of the denial
of 	a 	constitutional 	right 	and 	that 	jurists 	of 	reason
would 	find 	it 	debatable 	whether 	the 	district 	court 	was
correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). 	Reasonable jurists
would not find it debatable that the instant petition is
untimely filed. 	A certificate of appealability, therefore, is
properly denied in this case.
Conclusion
For the reasons stated, the district judge should grant the
NCF Warden’s motion for summary judgment (Doc. No. 32), dismiss
Mr. Messina’s habeas petition as untimely, and deny a
certificate of appealability. 	Upon adoption of this Report and
Recommendation, the district judge should enter judgment and
close the case.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Only those issues raised in the objection to this
Report and Recommendation are subject to review in the district
court. 	See Sch. Union No. 37 v. United Nat’l Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). 	Any issues not preserved by such
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objection(s) are precluded on appeal. 	See id. 	Failure to file
any objections within the specified time waives the right to
appeal the district court’s order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
February 20, 2026
cc: 	Michael Messina, pro se
Counsel of record
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