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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