Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 12-1500
CARLOS DOMINGUEZ,
Petitioner, Appellant,
v.
RONALD DUVAL, ET AL.,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Thompson, Circuit Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.
Deirdre L. Thurber for appellant.
Anne M. Thomas, Assistant Attorney General, with whom Martha
Coakley, Attorney General, and Janine Lopez, Legal Intern, were on
brief, for appellee.
July 23, 2013
*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. The appellant, Carlos
Dominguez, was convicted in a Massachusetts court of the second
degree murder of Sao Sun. After the Massachusetts Appeals Court
affirmed the conviction and the Supreme Judicial Court denied
further appellate review, Dominguez filed a petition in the United
States District Court for relief on habeas corpus, 28 U.S.C.
§ 2254, which was dismissed for untimely filing in the absence of
any apparent justification for equitable tolling of the one-year
statute of limitations, id. § 2244(d)(1). We affirm.
The facts of the offense accepted by the Appeals Court
and the district court, and not contested here, show that early one
morning a resident of Grove Street in Chelsea, Massachusetts, went
to the window after hearing cries from the street. He saw that
they were coming from an Asian man being chased by two men he
described as Hispanic. He identified the Asian as Sao Sun, an
habitual scavenger around the neighborhood, 61 years old,
emaciated, weighing about a hundred pounds or a little over, with
a heart condition. Somewhat later, the victim was found dead a
short distance away on a side street running off Grove, at a spot
connected by a trail of blood to the place where the witness had
seen him running. The cause of death was a stab wound in one
shoulder. When the police searched Dominguez’s apartment they
found clothing covered with Sun’s blood hidden behind a
refrigerator, and after initial denials Dominguez admitted
2
inflicting the stab wound. Although he was younger than the victim
and outweighed him by some forty pounds, he said he had “cut” Sun
in self-defense after the victim had attacked him with a stick,
thrown the stick at him and lunged at him.
In this appeal from dismissal of the habeas petition for
late filing, the untimeliness is uncontested, and the sole issue is
whether it was error for the district court to refuse equitable
tolling of the running of the time, a matter we review for abuse of
discretion. Holmes v. Spencer, 685 F.3d 51, 62 (1st Cir. 2012).
To obtain tolling, as held available in Holland v. Florida, 130
S.Ct. 2549, 2560 (2010), a petitioner bears a substantial burden to
establish an exception to the statutory rule by showing that he
exercised reasonable diligence in trying to preserve his rights but
was prevented from timely filing by extraordinary circumstances,
id. at 2562. This court has flagged illuminating considerations
that are especially helpful in evaluating a petitioner’s call for
equity in a close case. Trapp v. Spencer, 479 F.3d 53, 61 (1st
Cir. 2007).
The district court found that Dominguez satisfied
Holland’s diligence requirement but thought that the circumstances
were “unlikely” to qualify as extraordinary enough to excuse
missing the deadline. After consulting the Trapp protocol, the
court dismissed the untimely petition for want of a persuasive
3
basis in equity to do otherwise. We have no quarrel with either
conclusion.
The one-year limitation period ending on December 9,
2010, had nearly expired on November 23, when counsel sent the
habeas petition to Dominguez for signature, addressed to him at a
New Jersey prison where prior mail had been sent and delivered.
The envelope was back in counsel’s office on December 3, unopened,
with a “Return to Sender” stamp. After verifying that Dominguez
was still at the New Jersey prison, counsel mailed it again on
December 6 for expedited delivery. This time it was accepted and
returned to the lawyer by the deadline, but it was not received at
the district court until the following day.
The sequence smacks of the inefficiencies too endemic to
incarceration to qualify as extraordinary. See Holmes, 685 F.3d at
63 (“[The] usual problems inherent in being incarcerated do not
justify equitable tolling.” (internal quotation marks omitted));
cf. Sandvik v. United States, 177 F.3d 1269, 1272 (11th Cir. 1999)
(finding a mailing delay not to be grounds for equitable tolling).
Indeed, the only variant on the common theme of prison mail delay
here is the erroneous return, but although that fact may be enough
to present a discretionary judgment call, the district court
correctly saw the Trapp considerations as counting against tolling.
Trapp identified five points bearing on a court’s
equitable discretion to toll, three of them in addition to
4
Holland’s diligence and character-of-the-circumstances as
extraordinary or not. 479 F.3d at 61. As to those three, the
district court held that diligence in exhausting state remedies and
absence of prejudice to the prosecution favored tolling here. But
Trapp’s remaining factor is the apparent merit of the claims that
would be pressed if the petition should be entertained, tolling not
being in order for claims of dubious merit. The district court
soundly held that on this ground Dominguez was not entitled to
equitable relief.
The first of Dominguez’s constitutional claims is the
conceded error of admitting the autopsy report into evidence
through the testimony of a doctor who was not present at the
autopsy and could not support the report’s conclusions from any
independent examination of his own. See Crawford v. Washington,
541 U.S. 36 (2004). The only question is whether the error was
harmless, as the Massachusetts Appeals Court held. The deferential
standard requiring a habeas petitioner to show a state court’s
unreasonable application of Supreme Court law or unreasonable
finding of fact, see 28 U.S.C. § 2254(d)(1), (2), boils down here
to the need to demonstrate that the error caused actual prejudice
amounting to a “substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.
619, 637 (1993) (internal quotation marks omitted); Fry v. Pliler,
551 U.S. 112, 119-20 (2007). This Dominguez cannot do.
5
The report itself consisted largely of clinical
observations without significance to the contested issues, and
Dominguez agreed with its conclusion that the shoulder stab wound
was the cause of death by bleeding. The argument for prejudice
consequently addresses not the contents of the report but the
absence of the examining pathologist, whom Dominguez would have
liked to ask whether the nature of the wound supported his
testimony that he had knifed Sun only in defending himself when Sun
lunged at him after throwing a stick. But not only is the
substance of the pathologist’s hypothetical testimony a matter of
pure speculation, the possibility that any such testimony would
have swayed the jury toward accepting Dominguez’s account is
downright unrealistic. Dominguez was younger than the sickly 61
year-old Sun and outweighed him by a good forty pounds; no stick or
other weapon was observed by the witness or found at the scene, and
there is no evidentiary basis to suggest that the knife stab might
actually have been a response to a lunge by an unarmed man of Sun’s
frail build. Dominguez’s complaint of prejudice from lack of
testimonial support for his version of the facts cannot be taken
seriously.
The second claim is of a violation of the state’s
obligation to disclose evidence favorable to the defense under
Brady v. Maryland, 373 U.S. 83 (1963), raised by motion for new
trial that was denied by the trial court in a ruling sustained by
6
the Appeals Court. The district court found the merit of this
claim “dubious” on the required Brady element of a showing by the
petitioner of a “reasonable probability” of a different final
result if the evidence had been made known at trial, United States
v. Bagley, 473 U.S. 667, 682 (1985)(opinion of Blackmun, J.); id.
at 685 (White, J., concurring in part and concurring in the
judgment); see also Pennsylvania v. Ritchie, 480 U.S. 39, 57
(1987). The court doubted, that is, that the petitioner could show
that the undisclosed evidence “undermines confidence in the outcome
of the trial.” Bagley, 473 U.S. at 678 (opinion of Blackmun, J.).
On habeas, of course, a state defendant must demonstrate the
unreasonableness of a state court’s conclusion that he had not so
shown. Here, on the contrary, the district court was again correct
in doubting that Dominguez could carry this two-fold burden.
The evidence in question is the information that about
six months before the victim’s death his son had been convicted of
murdering a member of a local gang. Dominguez argues that
apprizing the jury of this fact would have lent plausibility to his
own testimony that Sun attacked him, supposedly because Sun might
have thought Dominguez was in some way associated with the earlier
murder victim or somehow instrumental in his son’s earlier
conviction. The answer to this argument, as in the case of the
Crawford claim, is that it is pure speculation, made up of whole
7
cloth. Knowledge of the son’s conviction does nothing to disturb
confidence in the soundness of the guilty verdict.
Because these underlying issues are devoid of any
apparent merit, Trapp supports the district court’s denial of
equitable tolling under the one-year limitation statute, and the
petition was correctly dismissed as untimely.
The judgment of the district court is affirmed.
It is so ordered.
8