United States Court of Appeals
For the First Circuit
No. 99-1972
CHARLES C. DELANEY III,
Petitioner, Appellant,
v.
JAMES MATESANZ ET AL.,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin and Stahl, Senior Circuit Judges,
Owen S. Walker, Federal Defender, with whom Elizabeth L.
Prevett, Federal Defender Office, and Charles C. Delaney III,
pro se ipso, were on brief, for appellant.
Catherine E. Sullivan, Assistant Attorney General,
Commonwealth of Massachusetts, with whom Thomas F. Reilly,
Attorney General, was on brief, for appellees.
September 5, 2001
SELYA, Circuit Judge. Petitioner-appellant Charles C.
Delaney III, a Massachusetts state prisoner, sought a writ of
habeas corpus in the United States District Court for the
District of Massachusetts, but voluntarily withdrew his
application when the Commonwealth pointed out that it contained
unexhausted claims. After pursuing all available state
remedies, the petitioner returned to federal court. At that
juncture, the court dismissed his new application as untimely
under 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).
The petitioner appeals this order, asseverating that
the district court erred in refusing to toll the limitation
period during the pendency of his original federal habeas
petition; that absent such tolling the statutory limitation
violates the Suspension Clause; and that, in all events, the
district court abused its discretion by failing to resuscitate
his time-barred claim on equitable grounds. Recent Supreme
Court precedent holding that the relevant statutory provision,
28 U.S.C. § 2244(d)(1), may not be tolled by the pendency of
federal, as opposed to state, post-conviction proceedings
defeats the first of these asseverations. See Duncan v. Walker,
121 S. Ct. 2120, 2129 (2001). The second fails on the law. The
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third fails on the facts: even assuming, for argument's sake,
that equitable tolling is available in the precincts patrolled
by section 2244(d) — a matter on which we take no view — the
district court supportably determined that the petitioner had
not established a sufficiently compelling basis for remediation.
Consequently, we uphold the district court's dismissal of the
petitioner's application for habeas relief.
I. BACKGROUND
We retrace the relevant portions of the petitioner's
journey through the procedural labyrinth that typifies modern
habeas litigation. The facts are essentially uncontested.
In 1989, a Massachusetts jury found the petitioner
guilty of murder in the second degree. The trial judge
sentenced him to life imprisonment. On direct review, his
conviction was sequentially affirmed by the Massachusetts
Appeals Court and the Supreme Judicial Court. See Commonwealth
v. Delaney, 616 N.E.2d 111 (Mass. App. Ct. 1993), aff'd, 639
N.E.2d 710 (Mass. 1994). The conviction became final on
September 20, 1994.
On February 24, 1997, ten months after the AEDPA's
effective date, the petitioner for the first time asked the
federal district court for a writ of habeas corpus. See 28
U.S.C. § 2254. In this pro se petition (Petition No. 1), he
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reasserted various claims that he had presented to the state
courts and added four new (unexhausted) claims. The
Commonwealth promptly moved to dismiss this "mixed" petition.
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 countered by moving to dismiss the
action without prejudice. The district court granted the latter
motion on May 2, 1997.
On June 6, 1997, the petitioner returned to state court
and filed a motion for a new trial that raised two ineffective
assistance of counsel claims. These claims were not the claims
previously asserted in Petition No. 1, but, rather, were newly
minted. The superior court denied this motion a few weeks later
and, by March 27, 1998, the petitioner had exhausted all
available state appellate remedies.
On April 10, 1998, the petitioner refiled for federal
habeas relief, raising only the two ineffective assistance of
counsel claims. Citing 28 U.S.C. § 2244(d)(1), the district
court dismissed this application (Petition No. 2) as untimely.
When the petitioner moved for reconsideration, the court
withheld a ruling and asked us to consider whether Petition No.
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2 was a "second or successive" habeas petition, and thus subject
to the gatekeeping requirement of 28 U.S.C. § 2244(b)(3). See
generally Pratt v. United States, 129 F.3d 54, 57-58 (1st Cir.
1997). Following the reasoning explicated in Slack v. McDaniel,
529 U.S. 473, 487 (2000), we advised the lower court that
Petition No. 2 was not a "second or successive" petition and
that, therefore, the gatekeeping regime did not apply.
The district court proceeded to deny the petitioner's
motion for reconsideration on the merits. The court then
granted a certificate of appealability. See 28 U.S.C. §
2253(c). We augmented the issues, appointed counsel for the
petitioner, consolidated the case for argument with a case
containing a similar limitation issue, and heard oral argument
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.), cert. granted sub nom. Duncan v. Walker, 121 S. Ct.
480 (2000). Because Duncan squarely raised the question of
whether section 2244(d)(1) could be tolled by the pendency of
federal, as well as state, post-conviction proceedings, we
stayed our hand.
The Supreme Court decided Duncan on June 18, 2001. By
order entered June 28, 2001, we vacated the stay previously
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entered in this case and the companion case. We resolved the
companion case in an opinion filed on August 20, 2001, see
Neverson v. Bissonnette, ___ F.3d ___ (1st Cir. 2001) [No. 00-
1044], and now decide the petitioner's appeal.
II. ANALYSIS
Congress enacted the AEDPA on April 24, 1996, in part
to combat increasingly pervasive abuses of the federal courts'
habeas jurisdiction. Felker v. Turpin, 518 U.S. 651, 664
(1996). Pertinently, the AEDPA imposed a one-year limitation
period applicable to state prisoners' habeas applications. See
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).
The courts have determined that this language
encompasses a one-year grace period within which state prisoners
may file federal habeas petitions to test the correctness of
convictions that became final before the AEDPA's effective date.
See 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) (collecting cases to like effect from other
circuits). Accordingly, the petitioner had until April 24,
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1997, to file an application for federal habeas relief. He
docketed Petition No. 1 within that window of opportunity, but
he voluntarily withdrew that petition. He did not propound
Petition No. 2 until April 10, 1998 (nearly a year after the
grace period had run its course). Hence, that petition was
time-barred, as the district court ruled, absent some
sufficiently excusatory circumstance.
The petitioner's principal attempt to rescue his habeas
application 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)]." But
this provision is of no help to the petitioner: although it
plainly tolls the limitation period from and after June 6, 1997
(the date upon which he moved for a new trial in state court),
the one-year period already had elapsed by that date.
In an attempt to overcome this obstacle, 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. If that were
so, the pendency of Petition No. 1 would have tolled the
limitation period from the date of filing (February 24, 1997) to
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the date of dismissal (May 2, 1997), and this hiatus, coupled
with the tolling that accompanied the petitioner's pursuit of
post-conviction remedies in the state courts during the period
from June 6, 1997, through March 27, 1998, would have rendered
Petition No. 2 timely (i.e., filed within one year of April 24,
1996, after subtracting "tolled" periods). As a first fallback
position, the petitioner maintains that the statutory limitation
period, if construed otherwise, violates the Constitution. As
a second fallback, he asserts that even if his reading of
section 2244(d)(2) proves overly sanguine and the provision
nonetheless is constitutional, the district judge erred in
refusing to apply principles of equitable tolling to assure his
day in court. We address each of these arguments.
A. Statutory Tolling.
The question of 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), is no longer open.
The Duncan Court made it crystal clear that the adjective
"State" qualifies both of the phrases that follow. 121 S. Ct.
at 2128. Accordingly, 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
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review." Id. It follows inexorably that "an application for
federal habeas corpus review is not an 'application for State
post-conviction or other collateral review' within the meaning
of 28 U.S.C. § 2244(d)(2)." Id. at 2129; accord Neverson, ___
F.3d at ___ [slip op. at 8-9]. This means, of course, that the
pendency of Petition No. 1 did not toll the limitation period
(and, therefore, did not render Petition No. 2 timeous).
B. The Suspension Clause.
The petitioner rejoins that so restrictive an
interpretation of the statutory tolling provision renders the
AEDPA's limitation period constitutionally suspect under the
Suspension Clause. Duncan does not foreclose this argument —
the Suspension Clause was not raised in that case — so we
address it here.
The Suspension Clause states that "[t]he Privilege of
the Writ of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may require
it." U.S. Const. art. 1 § 9, cl. 2. In Felker, 518 U.S. at
663, the Court noted that the purpose of the writ has changed
over time. In 1789, the writ was designed primarily to protect
against the power of the Executive to hold someone captive
without trial, INS v. St. Cyr, 121 S. Ct. 2271, 2280 (2001), and
it was not until 1867 that Congress extended the writ to include
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state prisoners who challenged their convictions on
constitutional or statutory grounds. See Felker, 518 U.S. at
559-60. Because the current writ is so different from the one
known to the Framers, some jurists have questioned whether — and
to what extent — the Suspension Clause applies to the modern
habeas remedy. E.g., Freeman v. Page, 208 F.3d 572, 576 (7th
Cir.), cert. denied, 121 S. Ct. 345 (2000). The Supreme Court
has yet to answer that question,1 and we need not do so today.
Even assuming, for purposes of our inquiry, that the
Suspension Clause applies, reasonable limits on the use and
application of the habeas remedy do not work an unconstitutional
suspension of the writ. See United States v. Barrett, 178 F.3d
1 While the historical puzzle remains unsolved, the Justices
apparently harbor divergent views about the sweep of the
Suspension Clause. In a set of opinions analyzing the
interaction between the Illegal Immigration Reform and Immigrant
Responsibility Act, Pub. L. No. 104-108, 110 Stat. 3009-546, and
the AEDPA, Justice Stevens, writing for a five-member majority,
interpreted these statutes as allowing habeas relief for certain
aliens, predicting that any other reading would raise serious
constitutional questions under the Suspension Clause. St. Cyr,
121 S. Ct. at 2282; Calcano-Martinez v. INS, 121 S. Ct. 2268,
2270 (2001) (adopting St. Cyr's Suspension Clause analysis).
Justice Scalia, in dissents joined by Chief Justice Rehnquist
and Justice Thomas, posited that the Suspension Clause does not
affirmatively guarantee a right to habeas corpus, but simply
prohibits temporary withholding of the writ. See St. Cyr, 121
S. Ct. at 2299 (Scalia, J., dissenting); Calcano-Martinez, 121
S. Ct. at 2271 (Scalia, J., dissenting). Justice O'Connor filed
separate dissents in both cases, taking no position on the
specific meaning and application of the Suspension Clause. See
St. Cyr, 121 S. Ct. at 2293 (O'Connor, J., dissenting); Calcano-
Martinez, 121 S. Ct. at 2270 (O'Connor, J., dissenting).
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34, 53 (1st Cir. 1999), cert. denied, 528 U.S. 1176 (2000). The
Court has held, for example, that the AEDPA's stringent
restrictions on second habeas petitions do not run afoul of the
Suspension Clause. See Felker, 518 U.S. at 664. We believe
that the same reasoning applies to the AEDPA's time-limiting
provisions. We therefore join several of our sister circuits in
holding that the AEDPA's one-year limitation period does not, as
a general matter, offend the Suspension Clause. See Wyzykowski
v. Dep't of Corrs., 226 F.3d 1213, 1217-18 (11th Cir. 2000);
Lucidore v. New York State Div. of Parole, 209 F.3d 107, 113 (2d
Cir.), cert. denied, 121 S. Ct. 175 (2000); Turner v. Johnson,
177 F.3d 390, 392-93 (5th Cir.), cert. denied, 528 U.S. 1007
(1999); Miller v. Marr, 141 F.3d 976, 977-78 (10th Cir. 1998).2
The question reduces, then, to whether the tolling
provision, 28 U.S.C. § 2244(d)(2), as interpreted by the Duncan
Court, renders the AEDPA's limitation period vulnerable to the
petitioner's attack. We think not. The AEDPA's one-year
statute of limitation is part of "a complex and evolving body of
equitable principles informed and controlled by historical
2Some courts have suggested that the AEDPA's built-in
limitation period might violate the Suspension Clause if a
prisoner-petitioner could make a showing of actual innocence.
See, e.g., Wyzykowski, 226 F.3d at 1218-19; Lucidore, 209 F.3d
at 113-14. Because Delaney makes no such proffer, we need not
reach this question.
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usage, statutory developments, and judicial decisions." Felker,
518 U.S. at 664 (quoting McCleskey v. Zant, 499 U.S. 467, 489
(1991)). Rather than rendering the limitation period more
onerous, the tolling provision relaxes its rigors. That the
provision is not as generous as the petitioner might like does
not undermine the reasonableness of the framework that Congress
chose to erect. It follows that the tolling provision falls
well within the heartland of the evolutionary process described
by the Felker Court.
To sum up, the one-year limitation period of section
2244(d)(1), as embellished by the tolling provision of section
2244(d)(2), does not suspend the writ because, when read in
tandem, these provisions neither gut the writ of habeas corpus
nor render it impuissant to test the legality of a prisoner's
detention. See Swain v. Pressley, 430 U.S. 372, 381 (1977)
(describing the contours of the Suspension Clause). Tolling the
limitation period during the pendency of state post-conviction
proceedings leaves habeas petitioners with a reasonable
opportunity to have their claims heard on the merits. See
Lucidore, 209 F.3d at 113. From the standpoint of the
Suspension Clause, no more is exigible.3
3Relatedly, the petitioner asserts that the limitation
period, as embroidered by the tolling provision, has an
impermissibly retroactive effect. This argument is hopeless,
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We add a postscript. The Suspension Clause applies (if
at all) only when Congress totally bars an individual or a group
from access to habeas relief. See Barrett, 178 F.3d at 53.
Here, the petitioner had ample opportunity, both before and
after Congress passed the AEDPA, to exhaust state court remedies
and seek federal habeas review. That he had those opportunities
and did not seasonably avail himself of them is, in itself,
enough to doom his constitutional challenge. See Molo v.
Johnson, 207 F.3d 773, 775 (5th Cir. 2000) (per curiam) (holding
that the Suspension Clause was not violated when nothing
prevented the prisoner from filing his application before the
statute of limitation expired).
C. Equitable Tolling.
In the district court, the petitioner argued, in the
alternative, that the court should deem the limitation period
tolled as a matter of equity. The court entertained this
argument but rejected it on the merits. The petitioner renews
the argument on appeal, positing that the district court erred
in refusing to rejuvenate his time-barred habeas application.
see Rogers v. United States, 180 F.3d 349, 353-55 (1st Cir.
1999), cert. denied, 515 U.S. 1126 (2000) (rejecting similar
retroactivity argument); Libby v. Magnusson, 177 F.3d 43, 46
(1st Cir. 1999) (same); cf. Pratt, 129 F.3d at 58 (discussing
retroactivity in the context of second or successive habeas
petitions), and we reject it out of hand.
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We review the district court's ruling for abuse of
discretion. See United States v. Patterson, 211 F.3d 927, 931
(5th Cir. 2000); see also Borden v. Paul Revere Life Ins. Co.,
935 F.2d 370, 377 (1st Cir. 1991) ("[F]ashioning or withholding
equitable relief . . . rests uniquely within the discretion of
the trial court."). This is a highly deferential standard, but
not an unbounded one. See United States v. Roberts, 978 F.2d
17, 20 (1st Cir. 1992); Indep. Oil & Chem. Workers, Inc. v.
Procter & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988).
The concurring opinion in Duncan furnishes at least
some support for the view that, in an appropriate case,
equitable tolling may be available to soften 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). This is interesting food for thought,4 but we need
not resolve today whether courts ever can apply equitable
4
Post-Duncan, at least one court of appeals has held that
equitable tolling is available to habeas petitioners in respect
to section 2244(d)(1)'s one-year limitation period. See Zarvela
v. Artuz, 254 F.3d 374, 379 (2d Cir. 2001).
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tolling to ameliorate the AEDPA's one-year statute of
limitations. In this case, the district court squarely
confronted the petitioner's equitable tolling claim and rejected
it on the facts. Assuming, arguendo, the availability of
equitable tolling, the record makes manifest that the district
court acted within its proper province in withholding such
relief.
The party who seeks to invoke equitable tolling bears
the burden of establishing the basis for it. Carter v. W.
Publ'g Co., 225 F.3d 1258, 1265 (11th Cir. 2000); I.V. Servs. of
Am., Inc. v. Inn Dev. & Mgmt., Inc., 182 F.3d 51, 54 (1st Cir.
1999). In the AEDPA environment, courts have indicated that
equitable tolling, if available at all, is the exception rather
than the rule; resort to its prophylaxis is deemed justified
only in extraordinary circumstances. E.g., United States v.
Marcello, 212 F.3d 1005, 1010 (7th Cir.), cert. denied, 121 S.
Ct. 188 (2000); Davis v. Johnson, 158 F.3d 806, 810 (5th Cir.
1998), cert. denied, 526 U.S. 1074 (1999); Sandvik v. United
States, 177 F.3d 1269, 1271-72 (11th Cir. 1999). The district
court found that the petitioner did not meet this benchmark, and
the argument to the contrary is not compelling.
The petitioner maintains that he is entitled to
equitable tolling because he diligently pursued judicial
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remedies. Even if the district court were obligated to apply
equitable tolling for an attentive applicant, the facts of
record here do not corroborate the petitioner's contention that
he was diligent. He waited over two years after his conviction
became final (and ten months after the AEDPA's effective date)
to promulgate his first federal habeas petition. He did nothing
during that protracted period to exhaust state remedies as to
the ineffective assistance of counsel claims that he now seeks
to advance. Indeed, his first habeas application ignored those
claims and, at any rate, he withdrew that application in the
face of the AEDPA's known one-year limitation period, without
asking the district court to retain jurisdiction.5 He did not
file a proper habeas application until April of 1998 — more than
eleven months after the AEDPA's limitation period had expired.
5 The petitioner perhaps 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
and stay further proceedings pending the complete exhaustion of
state remedies"); Neverson, ___ F.3d at ___ n.3 [slip op. at 11
n.3] (describing such an approach as "preferable" in cases
involving "mixed" petitions); see also Zarvela v. Artuz, 254
F.3d 374, 380 (2d Cir. 2001); Freeman, 208 F.3d at 577; Calderon
v. United States Dist. Ct., 134 F.3d 981, 986-87 (9th Cir.
1998). We especially commend such an approach to the district
courts in instances in which the original habeas petition,
though unexhausted, is timely filed, but there is a realistic
danger that a second petition, filed after exhaustion has
occurred, will be untimely.
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The district court was well aware of these facts and
took them into account in addressing the petitioner's plea for
equitable tolling. Judge Keeton noted that while the petitioner
had pursued a variety of claims over a nine-year period, he had
not done so in an especially assiduous fashion. See Delaney v.
Matesanz, No. 98-10635-REK, slip op. at 7 (D. Mass. Nov. 6,
1998) (unpublished). In addition, Judge Keeton found no
extraordinary circumstances that might suffice to excuse the
petitioner's failure to comply with the temporal deadline: no
one lulled the petitioner into a false belief that he had more
than the allotted time to file, or otherwise misled him. Id.
We need not rehearse all the details of the decision
below. What matters is that the judge plainly considered all
the pertinent factors and no impertinent ones. Given his
thorough explanation, we cannot say that his refusal to apply
principles of equitable tolling to salvage the petitioner's
time-barred habeas application constituted a plain mistake in
judgment. After all, "the principles of equitable tolling . .
. do not extend to what is at best a garden variety claim of
excusable neglect." Irwin v. Dep't of Veterans Affairs, 498
U.S. 89, 96 (1990).
The petitioner makes a final plea. He says that
because he was a pro se prisoner, ignorant of the applicable
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law, the lower court should have tolled the limitation period.
We reject this plea. In the context of habeas claims, courts
have been loath to excuse late filings simply because a pro se
prisoner misreads the law. E.g., Marsh v. Soares, 223 F.3d
1217, 1220 (10th Cir. 2000), cert. denied, 121 S. Ct. 1195
(2001) (refusing to toll the AEDPA's limitation period because
a pro se petitioner did not understand the dictates of the
statutory scheme); Jones v. Morton, 195 F.3d 153, 159-60 (3d
Cir. 1999) (explaining that misunderstanding the effect of
filing a prior unexhausted federal habeas petition does not
warrant equitable tolling); Fisher v. Johnson, 174 F.3d 710, 714
(5th Cir. 1999), cert. denied, 121 S. Ct. 1124 (2001)
("[I]gnorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing.").
In this instance, the district court had good reason
to follow this line of authority. The court specifically
remarked that the petitioner was no ordinary pro se litigant;
his submissions, in the court's view, displayed a clear
understanding of the AEDPA amendments. See Delaney, supra, slip
op. at 7. We are reluctant to second-guess this fact-sensitive
judgment. While judges are generally lenient with pro se
litigants, the Constitution does not require courts to undertake
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heroic measures to save pro se litigants from the readily
foreseeable consequences of their own inaction.
Even where available, equitable tolling is normally
appropriate only when circumstances beyond a litigant's control
have prevented him from filing on time. Bonilla v. Muebles J.J.
Alvarez, Inc., 194 F.3d 275, 278-79 (1st Cir. 1999) (addressing
equitable tolling in the context of the ADA). In the usual
case, a court may deny a request for equitable tolling unless
the proponent shows that he was actively misled or prevented "in
some extraordinary way from asserting his rights." Patterson,
211 F.3d at 930-31 (citation omitted). In short, equitable
tolling is strong medicine, not profligately to be dispensed.
In this case, the Commonwealth did not mislead the
petitioner, nor has he alleged any exceptional circumstances
that prevented him from filing his habeas petition on time.
Accordingly, the lower court acted within its discretion in
declining to excuse the petitioner's non-compliance with the
legislatively-mandated limitation period.
III. CONCLUSION
We need go no further. The Supreme Court's
interpretation of section 2244(d)(2) permits courts to toll the
limitation period only while state collateral review is pending.
See Duncan, 121 S. Ct. at 2128-29; Neverson, ___ F.3d at ___
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[slip op. at 8-9]. The instant petition therefore fails because
the petitioner did not bring it within this constitutionally
permissible interval. Moreover, no extraordinary circumstances
prevented him from protecting his own interests, so the district
court did not abuse its discretion in declining to apply
equitable tolling to resuscitate his time-barred habeas case.
Affirmed.
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