Neverson v. Bissonnette

United States Court of Appeals
For the First Circuit

No. 00-1044
TREVOR NEVERSON,

Petitioner, Appellant,

v.

LYNN BISSONNETTE,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin and Stahl, Senior Circuit Judges.

John M. Thompson, by appointment of the court, with whom
Trevor Neverson, pro se ipso, was on brief, for appellant.
William J. Meade, Assistant Attorney General, Commonwealth
of Massachusetts, with whom Thomas F. Reilly, Attorney General,
was on brief, for appellee.
Brenda M. O'Malley, Attorney, Office of Immigration
Litigation, U.S. Dep't of Justice, with whom David W. Ogden,
Acting Assistant Attorney General, and Terri J. Scadron, Senior
Litigation Counsel, were on brief, for provisional respondent
(Commissioner, Immigration and Naturalization Service).

August 20, 2001
 SELYA, Circuit Judge. In 1987, a Hampden County,

Massachusetts grand jury indicted petitioner-appellant Trevor

Neverson, a native of Trinidad, for the murder of his fifteen-

month-old stepdaughter, Leshawna Wright. His first trial

resulted in a court-ordered judgment of acquittal as to so much

of the indictment as alleged first-degree murder. The trial

judge sent the remaining charges (second-degree murder and the

lesser included offense of manslaughter) to the jury. The jury

deadlocked and the judge declared a mistrial. The petitioner's

subsequent attempts to terminate the case on grounds of

evidentiary insufficiency and double jeopardy were unavailing.

See Neverson v. Commonwealth, 546 N.E.2d 876 (Mass. 1989)

(affirming lower court rulings).

On retrial, a new jury found the petitioner guilty of

manslaughter. The trial judge sentenced him to serve a lengthy

prison term. The conviction and sentence were affirmed on

appeal. See Commonwealth v. Neverson, 619 N.E.2d 344 (Mass.

App. Ct.), rev. denied, 622 N.E.2d 1364 (Mass. 1993).

On August 28, 1996, the petitioner repaired to the

federal district court and filed an application for habeas

corpus relief under 28 U.S.C. § 2254 (Petition No. 1). On

December 24, 1996, the district court (O'Toole, J.) dismissed

the petition without prejudice because it contained some

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unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 522 (1982)

(holding that a federal habeas court ordinarily should not

adjudicate a "mixed" petition, i.e., one containing both

exhausted and unexhausted claims); Adelson v. DiPaola, 131 F.3d

259, 261-62 (1st Cir. 1997) (same). The petitioner initially

filed a notice of appeal, but apparently thought better of it

and withdrew the appeal on September 3, 1997.

In the meantime, the petitioner moved for a new trial

in the state court. He filed his motion on July 11, 1997, but

the state trial judge denied it, and the petitioner's efforts to

overturn that adverse ruling came to naught. See Commonwealth

v. Neverson, 699 N.E.2d 28 (Mass. App. Ct.) (table), rev.

denied, 700 N.E.2d 544 (Mass. 1998) (table).

On August 17, 1998, the petitioner returned to the

federal district court and filed the instant application for

habeas relief (Petition No. 2). On October 13, 1998, the

respondent, a state correctional official, moved to dismiss the

petition as time-barred under 28 U.S.C. § 2244(d)(1). The

district court (Lindsay, J.) dismissed Petition No. 2 as

untimely. The court simultaneously granted a certificate of

appealability (COA), 28 U.S.C. § 2253(c), on two issues: (1)

Does the pendency in federal court of a prior dismissed habeas

petition toll the statute of limitations for the purposes of a

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subsequent petition? (2) Does the filing of a subsequent habeas

petition relate back to a prior petition which raised the same

issues, but was dismissed without prejudice? The petitioner

promptly perfected an appeal.

After an initial round of pro se briefing, we appointed

counsel and set a new briefing schedule. At about the same

time, a new development occurred. The petitioner had entered

the United States illegally in 1985. In 1994, the Immigration

and Naturalization Service (INS) sought to deport him for this

illegal entry. See 8 U.S.C. § 1227(a)(1)(B). Three years

later, the INS lodged an additional charge based on his

commission of an aggravated felony (the manslaughter

conviction). See id. § 1227(a)(2)(A)(iii). The necessary

administrative proceedings resulted in a finding of

deportability and a denial of the petitioner's applications for

adjustment of status and/or waiver of deportability.

The petitioner completed his term of immurement on the

manslaughter conviction in the spring of 2000. Because the

deportation proceedings were still hanging fire, the INS took

him into custody. On August 31, 2000, the petitioner asked us

for a stay of deportation. We granted the stay temporarily and

agreed, in effect, to treat the INS as a provisional respondent

in the pending appeal, so that a nettlesome issue — whether

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deportation would moot the petitioner's habeas appeal — could be

considered. Expedited briefing on this issue followed.

Neverson's appeal was consolidated for oral argument

with a case containing a similar limitation issue, namely,

Delaney v. Matesanz, No. 99-1972. We heard oral argument in

both cases on November 9, 2000. Four days later, the Supreme

Court granted certiorari to review the decision of the United

States Court of Appeals for the Second Circuit in Walker v.

Artuz, 208 F.3d 357 (2d Cir. 2000), cert. granted sub nom.

Duncan v. Walker, 121 S. Ct. 480 (2000). Because that case

squarely raised the question of whether 28 U.S.C. § 2244(d)(1)

— the one-year limitation period enacted as part of the

Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L.

No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) — could be tolled by

the pendency of federal as well as state post-conviction

proceedings, we stayed both Neverson's and Delaney's pending

appeals. The Supreme Court spoke on June 18, 2001, see Duncan

v. Walker, 121 S. Ct. 2120 (2001), and we vacated the stay ten

days later. We now resolve Neverson's appeal (reserving

Delaney's case for treatment in a separate opinion).

As all parties recognize, the AEDPA applies to this

case. Congress enacted that statute on April 24, 1996, in part

to combat increasingly pervasive abuses of the federal courts'

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habeas jurisdiction. Felker v. Turpin, 518 U.S. 651, 664

(1996). Among other things, the AEDPA imposed, for the first

time, a limitation period applicable to state prisoners' habeas

applications.1 According to this provision, "[a] 1-year period

of limitation shall apply to an application for a writ of habeas

corpus by a person in custody pursuant to the judgment of a

State court." 28 U.S.C. § 2244(d)(1). This period of

limitation normally begins to accrue on "the date on which the

[state court] judgment became final by the conclusion of direct

review or the expiration of the time for seeking such review."

Id. § 2244(d)(1)(A).2

1Prior to the passage of the AEDPA, a state prisoner's
habeas application could be dismissed on timeliness grounds only
if the petitioner's delay had prejudiced the state's ability to
respond. See Rule 9(a), 28 foll. § 2254; see also Richard H.
Fallon, Jr. et al., Hart and Wechsler's The Federal Courts and
the Federal System 162 (4th ed. Supp. 1999).
2In limited circumstances, one of three other accrual dates
may apply, namely:

(B) the date on which the impediment to filing an
application created by State action in violation of
the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by
such State action; [or] (C) the date on which the
constitutional right asserted was initially recognized
by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or (D) the
date on which the factual predicate of the claim or
claims presented could have been discovered through
the exercise of due diligence.

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 The petitioner's manslaughter conviction became final

before the AEDPA's effective date. In respect to such

convictions, we have construed the AEDPA to encompass a one-year

grace period within which state prisoners may file federal

habeas petitions testing the constitutionality of convictions

that became final before the AEDPA's effective date. Gaskins v.

Duval, 183 F.3d 8, 9 (1st Cir. 1999) (per curiam); see also

Duncan, 121 S. Ct. at 2130 n.1 (Stevens, J., concurring)

(enumerating cases to like effect from other circuits).

Accordingly, the petitioner had until April 24, 1997 to file his

application for federal habeas relief. He docketed Petition No.

1 within that time frame, but that petition was dismissed and he

voluntarily abandoned his appeal from the order of dismissal.

He did not propound Petition No. 2 until August 17, 1998 (over

a year after the grace period had expired). Hence, that

petition was time-barred, as the district court ruled, unless

some sufficiently excusatory circumstance existed.

The petitioner makes four efforts to salvage Petition

No. 2: these efforts involve, respectively, statutory

interpretation, the Suspension Clause, "relation back," and

equitable tolling. We address them in order.

28 U.S.C. § 2244(d)(1)(B)-(D). None of these three scenarios
exists here.

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 The petitioner's statutory interpretation argument

implicates 28 U.S.C. § 2244(d)(2), which provides that "[t]he

time during which a properly filed application for State post-

conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted

toward any period of limitation under [section 2244(d)]."

Although this provision plainly tolls the limitation period from

and after July 11, 1997 (the date upon which the petitioner

moved for a new trial in state court), the one-year grace period

already had expired by that date. Without more, then, Petition

No. 2 was beyond the temporal pale. See Fields v. Johnson, 159

F.3d 914, 915-16 (5th Cir. 1998) (per curiam).

Seeking to avoid this pitfall, the petitioner contends

that the reference in section 2244(d)(2) to "other collateral

review" includes not only state collateral review proceedings

but also federal habeas proceedings. Building on that

foundation, he argues that the pendency of Petition No. 1 tolled

the limitation period from the date of filing (August 28, 1996)

to the date of the withdrawal of his notice of appeal (September

3, 1997). In his view, this hiatus, coupled with the tolling

that accompanied his pursuit of post-conviction remedies in the

state courts during the period from July 11, 1997 through July

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27, 1998, rendered Petition No. 2 timeous (i.e., filed within

one year of April 24, 1996, after subtracting "tolled" periods).

We reject this argument. To the extent that the

petitioner asks us to determine what Congress meant when it

wrote that the AEDPA's limitation period, 28 U.S.C. §

2244(d)(1), would be tolled while a state prisoner pursued

"State post-conviction or other collateral review," id. §

2244(d)(2), the Supreme Court has answered that question for us.

In Duncan, the Court made pellucid that the adjective "State"

qualifies both of the phrases that follow. In the Court's view,

section 2244(d)(2)

protect[s] a state prisoner's ability later
to apply for federal habeas relief while
state remedies are being pursued. At the
same time, the provision limits the harm to
the interest in finality by according
tolling effect only to "properly filed
application[s] for State post-conviction or
other collateral review."

Duncan, 121 S. Ct. at 2128 (emphasis supplied) (quoting

statute). Thus, section 2244(d)(2), properly construed,

"toll[s] the limitation period for the pursuit of state remedies

[but] not during the pendency of applications for federal

review." Id.

The Duncan Court's bellwether holding — that "an

application for federal habeas corpus review is not an

'application for State post-conviction or other collateral

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review' within the meaning of 28 U.S.C. § 2244(d)(2)," id. at

2129 — sounds the death knell for the petitioner's main

argument. On this basis, we rule that the pendency of Petition

No. 1 did not toll the limitation period (and, therefore, did

not render Petition No. 2 timeous).

The petitioner's second effort to rescue Petition No.

2 hinges on his argument that so restrictive an interpretation

of the statutory tolling provision renders the AEDPA's

limitation period unconstitutional under the Suspension Clause,

U.S. Const. art. 1, § 9, cl. 2. This argument is not foreclosed

by Duncan, as it was not made to the Duncan Court.

We nonetheless do not reach the merits. The AEDPA

limits the scope of habeas review, so that issues not included

in a COA cannot be heard on appeal. Bui v. DiPaolo, 170 F.3d

232, 236-37 (1st Cir. 1999). Since the operative COA in this

case (the one granted by the district court) made no reference

to the Suspension Clause issue, that issue is not properly

before us.

The petitioner's third effort to salvage Petition No.

2 rests on the notion that Petition No. 2 somehow "relates back"

to Petition No. 1 (which was timely filed but dismissed without

prejudice). The "relation back" doctrine derives from Federal

Rule of Civil Procedure 15(c) (stipulating, inter alia, that

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"[a]n amendment of a pleading relates back to the date of the

original pleading when . . . the claim . . . asserted in the

amended pleading arose out of the conduct, transaction, or

occurrence set forth or attempted to be set forth in the

original pleading"). Absent a specific savings clause, however,

a dismissal without prejudice leaves a habeas petitioner who

asserts a "relation-back" claim — like any other plaintiff in a

civil action — in the same situation as if his first suit had

never been filed. See Lefkowitz v. Fair, 816 F.2d 17, 21-24

(1st Cir. 1987); see also Nat'l R.R. Passenger Corp. v. Int'l

Ass'n of Machinists & Aerospace Workers, 915 F.2d 43, 48 (1st

Cir. 1990) (noting that the effect of dismissal without

prejudice "is to render the proceedings a nullity and leave the

parties as if the action had never been brought" (citation and

internal quotation marks omitted)).

In all events, Rule 15(c) simply does not apply where,

as here, the party bringing suit did not seek to "amend" or

"supplement" his original pleading, but, rather, opted to file

an entirely new petition at a subsequent date. In short, there

was nothing to which Petition No. 2 could relate back. 3 See

3
To be sure, the petitioner could have improved his position
by requesting that the district court stay, rather than dismiss,
Petition No. 1. See Duncan, 121 S. Ct. at 2130 (Stevens, J.,
concurring) (observing that "there is no reason why a district
court should not retain jurisdiction over a meritorious claim

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Marsh v. Soares, 223 F.3d 1217, 1219 (10th Cir. 2000) (holding

"relation back" doctrine inapplicable when initial habeas

petition had been dismissed because there was no pleading to

which the new petition could relate back); Warren v. Garvin, 219

F.3d 111, 114 (2d Cir. 2000) (same).

The petitioner's fourth effort to avoid the time bar

depends on the availability of equitable tolling. This effort

is less easily dispatched. The concurring opinion in Duncan

furnishes support for the view that, in an appropriate case,

equitable tolling may be available to ameliorate the rigors of

section 2244(d)(1). There, Justice Stevens, writing for himself

and Justice Souter, took the position that "neither the Court's

narrow holding [in Duncan], nor anything in the text or

legislative history of AEDPA, precludes a federal court from

deeming the limitations period tolled for such a petition as a

matter of equity." Duncan, 121 S. Ct. at 2130 (Stevens, J.,

concurring). The argument gains further momentum from pre-

Duncan cases recognizing the theoretical possibility of tolling

and stay further proceedings pending the complete exhaustion of
state remedies"); see also Zarvela v. Artuz, 254 F.3d 374, 380
(2d Cir. 2001); Freeman v. Page, 208 F.3d 572, 577 (7th Cir.
2000); Calderon v. United States Dist. Ct., 134 F.3d 981, 986-87
(9th Cir. 1998). Post-AEDPA, this will be the preferable course
in many cases involving "mixed" petitions — and it may be the
only appropriate course in cases in which an outright dismissal
threatens to imperil the timeliness of a collateral attack.

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section 2244(d)(1)'s one-year limitation period on equitable

grounds, e.g., Davis v. Johnson, 158 F.3d 806, 810 (5th Cir.

1998), cert. denied, 526 U.S. 1074 (1999), and from a post-

Duncan case to the same effect, namely, Zarvela v. Artuz, 254

F.3d 374, 379 (2d Cir. 2001). We note too that some courts have

applied equitable tolling in connection with the AEDPA's one-

year time limitation on the filing of habeas petitions by

federal prisoners. E.g., United States v. Marcello, 212 F.3d

1005, 1010 (7th Cir.), cert. denied, 121 S. Ct. 188 (2000);

Sandvik v. United States, 177 F.3d 1269, 1271-72 (11th Cir.

1999).

The petitioner, albeit inartfully, appears to have

preserved his equitable tolling claim below, but the district

court did not address it. He has renewed that claim on appeal.

Given the lack of any findings on this potentially important

issue, and the consequent lack of in-depth briefing, we believe

that the course of prudence is to remand this case for further

consideration in light of Duncan. The district court may hold

an evidentiary hearing if it sees fit, and may direct further

briefing. If the court concludes that equitable tolling is

unwarranted as a matter of fact, it should again dismiss the

petition as time-barred. If, however, the court determines that

the petitioner has made a sufficient showing to warrant

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equitable tolling, it must then resolve the unanswered legal

question: Is equitable tolling available to extend the one-year

limitation period specified in section 2244(d)(1)? We take no

view on these, or any other, issues.

This leaves the stay of deportation question (which

turns on whether deportation would moot or otherwise render

nugatory the petitioner's habeas application). There is now an

added complication: on June 20, 2001, the petitioner, who has

been detained by the INS for well over a year, moved for release

on bail. In view of the fact that remand is required, we think

it best to leave intact the provisional stay of deportation for

the time being, empowering the district court to inquire into

the mootness question and extend, modify, or dissolve the stay,

as it deems appropriate. Similarly, we do not act upon the bail

motion, but transfer that motion to the district court for

further consideration. In that regard, the court may wish to

consult the Supreme Court's recent opinion in Zadvydas v. Davis,

121 S. Ct. 2491 (2001), for what guidance it may provide.

We need go no further. For the reasons stated, we

vacate the order of dismissal and remand for further proceedings

consistent with this opinion. The provisional stay of

deportation entered on September 8, 2000 shall remain in effect

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pending further order of either the district court or, if

another appeal ensues, this court.

So ordered.

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