Lattimore v. Dubois

United States Court of Appeals
For the First Circuit

No. 01-2056

JAMES LATTIMORE,

Petitioner, Appellee,

v.

LARRY DUBOIS,

Respondent, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Lynch, Circuit Judge,

Campbell and Bownes, Senior Circuit Judges.

Linda A. Wagner, Assistant Attorney General, Commonwealth of
Massachusetts, with whom Thomas F. Reilly, Attorney General, was on
brief, for appellant.
Elizabeth Prevett, Federal Defender Office, for appellee.

November 14, 2002
 CAMPBELL, Senior Circuit Judge. This is an appeal

brought by the Commonwealth of Massachusetts ("Commonwealth") from

the district court's grant of a writ of habeas corpus to appellee

James Lattimore ("Lattimore"). On April 28, 1997, Lattimore

brought a petition for habeas corpus pursuant to 28 U.S.C. § 2254

(1994 & Supp. II 2002), in the United States District Court for the

District of Massachusetts. He asserted that his 1983 murder

conviction in the Massachusetts Superior Court violated the federal

constitution because his appellate counsel had been ineffective by

not complaining, on direct appeal to the Massachusetts Supreme

Judicial Court ("SJC"), of the trial judge's refusal to instruct on

manslaughter.1 Rejecting the Commonwealth's contentions that

Lattimore's habeas claim was time-barred and that Lattimore had not

shown sufficient cause and prejudice to overcome his procedural

default in not preserving the ineffective assistance issue in the

Massachusetts courts, the district court granted the writ.

However, the district court stayed the writ's execution so as to

allow this court to determine first the Commonwealth's appeal.

1
Lattimore's habeas petition also included a claim that the
trial judge's refusal to instruct the jury on manslaughter created
a miscarriage of justice that warranted habeas relief. The
district court denied Lattimore's petition on this ground,
concluding that the trial judge's decision did not result in a
fundamental miscarriage of justice. Lattimore does not appeal from
this portion of the district court's determination, and,
accordingly, we do not address this issue on appeal.

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 We reverse, on the ground that Lattimore did not file his

habeas petition within the one-year grace period for defendants

whose convictions occurred prior to the passage of the Anti-

Terrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-

132, 110 Stat. 1214 (1996) ("AEDPA"). We also conclude that there

is no basis for equitable tolling of the grace period, given the

many years available to Lattimore for filing a habeas petition, his

failure to show sufficient cause for his state procedural default,

and, in the end, the lack of merit of his ineffective assistance of

counsel claim.

I. Procedural Background

A. State Proceedings

Lattimore was indicted by a grand jury for the first-

degree murder of Robert E. Phillips ("Phillips"), armed assault

with intent to murder Glen Smith, and assault and battery with a

dangerous weapon upon Glen Smith ("Smith"). On June 30, 1983,

after a five-day jury trial in the Massachusetts Superior Court,

Lattimore was found guilty as charged on each of the counts. He

was sentenced to life imprisonment for first degree murder. He was

also sentenced concurrently to nine to ten years imprisonment for

the armed assault with intent to murder and the assault and battery

with a dangerous weapon.

The facts presented below are taken from the opinion of

the SJC in Commonwealth v. Lattimore, 486 N.E.2d 724, 727-28 (Mass.

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1985), with supplementation from the state trial record.2 The

shooting for which Lattimore was convicted arose from what the SJC

described as a "neighborhood brawl." Id. at 727. Smith was the

divorced husband of Linda Smith ("Linda") whom Lattimore had been

dating for several weeks prior to the murder. Testimony at trial

revealed that Smith had physically abused Linda over a period of

years, both during their marriage and after their divorce. There

was evidence that during the week prior to the homicide Smith

sometimes surveilled his ex-wife's apartment from his parked car

and had spoken with Lattimore about the latter's relationship with

Linda. In the early afternoon on October 3, 1981, Smith went to

Linda's apartment and broke down the door. Linda was struck and

apparently bruised by the door. Diane Smith, Smith's sister-in-

law, and Brenda Lucas, a friend who lived in the same building as

Linda, were in Linda's apartment when Smith forced his way in.

Both women witnessed and testified to the incident. Lattimore was

not present. Diane Smith called the police. Linda went to the

Boston City Hospital emergency room where she was treated and

released later that afternoon. Smith, after leaving, made a

telephone call to Brenda Lucas castigating her for sheltering Linda

and also threatening her husband and Diane Smith's husband for

2
Lattimore does not challenge the state court's factual
findings. See 28 U.S.C. § 2254(e)(1) (determination of factual
issues made by a state court presumed correct unless rebutted by
clear and convincing evidence).

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their roles in assisting Linda. Linda, meanwhile, had returned

from the hospital and was present with the others through the early

evening but left several hours prior to the homicide.

Later that evening, Smith returned in his car with

Phillips as a passenger. He circled Diane Smith's apartment

building and the nearby building where Linda and the Lucases lived,

shouting threats and obscenities reflecting his anger at those who

had been helping Linda. At 11 p.m., Brenda Lucas called her

husband, James Lucas, at work to alert him to Smith's conduct,

specifically that Smith had threatened Brenda for becoming involved

in the dispute between him and Linda earlier that afternoon.

Shortly after 11 p.m., when James Lucas returned from work, his

wife pointed out Smith who was sitting in his parked car with

Phillips in a location near Diane Smith's apartment. Lucas drove

over to Smith's car where Smith sat, and demanded to know why Smith

was harassing the Lucases. Meanwhile Brenda Lucas (who was in

Diane Smith's apartment at the time) raced downstairs and ran to

the Smith vehicle carrying a baseball bat. No physical fight

erupted, however, and James Lucas's testimony suggests he felt the

altercation was calming down.

Suddenly, shots were fired. According to Smith's trial

testimony, Lattimore had approached Smith's car from behind, on the

driver's side and, without warning, shot several times through the

back driver's-side window. Two bullets struck Smith, one lodged in

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his back and the other passed through his hand. Another bullet

struck Phillips behind his ear, wounding him critically. Phillips

died several days later of the gunshot wound. Smith, to the police

and in his trial testimony, identified Lattimore positively as the

shooter of both men. Both Brenda Lucas and her husband James

testified to seeing Lattimore at the time they heard the shots;

according to them, he was standing behind James Lucas on the

driver's side. Neither saw a gun nor saw Lattimore shoot, but the

shots came from where he was standing. Brenda Lucas testified to

also seeing Linda Smith standing close to Lattimore at this moment.

Her husband said that he did not see Linda at the scene; it was

dark at the time. No witnesses testified that Lattimore had been

present at any of the day's events prior to his appearance at the

shooting, nor was there evidence of any conversation between him

and the victims before he shot.

Lattimore's theory of defense, as argued by his counsel

to the jury (Lattimore himself did not testify), was that Linda

Smith, and not Lattimore, must have pulled the trigger (although no

witness testified to having seen Linda do so). Lattimore presented

no witnesses of his own other than an investigator who testified to

being earlier told by James Lucas that Lucas had seen Linda at the

homicide scene. Lattimore's counsel, however, cross-examined the

government's witnesses intensively, in particular the two Lucases,

Diane Smith and Smith. All witnesses, except Smith, emphasized

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Glen Smith's violent behavior towards Linda for many years, and

Smith himself testified to his frequent surveillance of his ex-

wife's apartment. Only Brenda Lucas testified to seeing Linda

standing in the dark next to Lattimore at the shooting.

Lattimore's counsel also brought out that his investigator had

sought to interview Linda prior to the trial but had been told by

her that, on advice of counsel, she would not talk about the

shooting. The prosecution sought to secure Linda's presence at

trial but could not locate her.

Although counsel urged, therefore, that Lattimore was not

guilty of having committed the homicide, defense counsel also

requested the trial judge to give a manslaughter instruction. The

following dialogue between the trial judge and defense counsel

ensued:

COURT: I am only going to send this case to
the jury on either first-degree or
second-degree murder or not guilty. I
am not going to charge on manslaughter.
There's no evidence of manslaughter
here. I think you agree to that, won't
you sir?

COUNSEL: Well, Your Honor, most respectfully, I
would suggest to the court that, based on
the testimony of the feelings between Glen
Smith and his wife that day and the
relationship that seems to have been
established with Mr. Lattimore, this could
have been done - and obviously it is the
position of the defense that it was not
done by Mr. Lattimore - it could have been
done in the heat of passion.

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COURT: I don't think there is any evidence that,
of heat of passion, here. Even if Linda
Smith were on trial, based on the present
evidence, a judge couldn't charge on
manslaughter with respect to her, even if
she were on trial.

COUNSEL: Is it the Court's position that, because
of the time factor, it's too far removed.

COURT: Oh, certainly. I just don't see any
evidence here of adequate -

COUNSEL: All right. I would respectfully request
my rights be preserved.

Lattimore appealed directly from his conviction to the

SJC. He was represented on his appeal by a new attorney who raised

four issues: the misuse of peremptory challenges to systematically

exclude members of a discreet group; the court's failure to exclude

two jurors challenged for cause; the denial of Lattimore's motion

for additional peremptory challenges; and ineffective assistance of

counsel based on defense counsel’s failure at trial to articulate

a basis for the admissibility of certain evidence. Appellate

counsel did not claim as error on direct appeal that the trial

judge had erred by rejecting the defense counsel's request that,

besides instructing on first and second degree murder as was done,

the court also instruct the jury on manslaughter.

While the SJC rejected all four of Lattimore’s

articulated claims of error, it provided significant relief to

Lattimore through exercise of its power under Mass. Gen. Laws ch.

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278, § 33E (1984)3. The SJC substituted a finding of murder in the

second degree for that of first degree murder. After reviewing the

evidence the SJC concluded that:

The shots were wild and "look[ed] like the
consequences of an untoward, foolish
introduction of a dangerous weapon in a fight
not otherwise at lethal pitch . . ., but if
malice is suggested, it is not deliberated or
purposeful malice of an assassin."
Commonwealth v. King, 374 Mass. 501, 507, 373
N.E.2d 208 (1978).

The overwhelming evidence is that Smith, not
the defendant, was intent on provoking an
incident. We believe that the weight of the
evidence supports the inference that the
defendant’s "criminal involvement was not of
the nature that judge’s and juries, in
weighing evidence, ordinarily equate with
murder in the first degree." Commonwealth v.
Williams, 364 Mass. 145, 152, 301 N.E.2d 683
(1973).

3
Mass. Gen. Laws ch. 278, § 33E provides:
In a capital case . . . the supreme judicial court shall
transfer the whole case for its consideration of the law
and the evidence. Upon such consideration the court may,
if satisfied the verdict was against the law or the
weight of the evidence, or because of newly discovered
evidence, or for any reason that justice may require (a)
order a new trial or (b) direct the entry of a verdict of
a lesser degree of guilt, and remand the case to the
superior court for the imposition of sentence. . . .

Review under section 33 thus operates as "a type of safety
valve by ensuring review as to all aspects of the case regardless
of the absence of claim of error." Commonwealth v. Cole, 402
N.E.2d 55, 60 (Mass. 1980).

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Lattimore, 486 N.E.2d at 427-28. The case was remanded to the

Superior Court for imposition of a finding of second degree murder

and re-sentencing. Lattimore was sentenced to life imprisonment

for second degree murder.

Soon thereafter, on July 1, 1986, Lattimore, acting pro

se, filed a motion for a new trial in the Massachusetts Superior

Court pursuant to Rule 30(b) of the Massachusetts Rules of Criminal

Procedure. In his motion, Lattimore argued, inter alia, that it

was error for the trial court to have refused defense counsel's

request to instruct the jury on manslaughter and that the judge’s

charge to the jury regarding the Commonwealth’s burden of proof had

misstated the law. Lattimore also filed a motion for the

appointment of counsel. The motions were denied by the Superior

Court without a hearing.

Lattimore appealed to the Massachusetts Appeals Court

from the denial of his motion for a new trial. He also requested

the Massachusetts Appeals Court to appoint counsel on his behalf.

The Appeals Court appointed counsel for Lattimore, as requested.

Counsel reiterated the claims of errors raised in Lattimore’s

motion for a new trial, including that the trial judge had

committed error by denying the request to instruct on manslaughter.

Counsel did not, however, attempt to argue that appellate counsel

had been ineffective on direct appeal to the SJC for omitting to

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claim as error the trial judge's refusal to instruct on

manslaughter.

The Massachusetts Appeals Court affirmed the Superior

Court's denial of a new trial. In its decision, the Appeals Court

noted that the issues raised in the motion for a new trial had not

been raised on direct appeal. As a result, the Appeals Court

concluded:

The defendant’s entire case has already been
reviewed, and he has received a reduction of
his verdict pursuant to Mass. Gen. Laws ch.
278, § 33E . . . . It is apparent from the
record that there is no risk of a miscarriage
of justice in any of his newly asserted
claims.

Commonwealth v. Lattimore, 515 N.E.2d 1211 (Mass. App. Ct. 1987).

Lattimore, acting through his appointed appellate

counsel, then filed an Application for Further Appellate Review

("ALOFAR") with the Supreme Judicial Court. For the first time, he

argued that his counsel had rendered ineffective assistance on

direct appeal to the SJC by not raising the issue of the trial

court’s refusal to give a manslaughter instruction. The SJC denied

Lattimore’s ALOFAR.

Several years later, in June 1994, Lattimore filed in the

Superior Court another motion for a new trial. He asserted in that

motion that the trial judge’s reasonable doubt instructions had

been constitutionally defective and that his appellate counsel had

been ineffective in not raising the reasonable doubt error on

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direct appeal. Lattimore did not, in his further new trial motion,

raise the issue of ineffective assistance of counsel on direct

appeal based on counsel's failure to have claimed error based upon

the trial judge's refusal to instruct on manslaughter. Lattimore

once more filed a motion for the appointment of counsel to assist

him in his further motion for new trial. On June 24, 1994, the

Superior Court entered an order refusing to act on these matters.

The order stated "[i]t is clear that the present motion does not

raise any issues which could not have been raised in the prior

appeals [including petitioner’s first motion for new trial].

Accordingly, I refused to act on this motion, and I have directed

the clerk’s office to make this notation on the motion." The court

denied Lattimore’s motion for appointment of counsel. Lattimore

did not appeal.

B. Federal Proceedings

Lattimore’s petition for writ of habeas corpus under 28

U.S.C. § 2254 was entered on the docket of the District Court for

the District of Massachusetts on Monday, April 28, 1997. The

petition included the two related claims that petitioner had

received ineffective assistance of appellate counsel because of

counsel’s failure to claim as error on direct appeal the state

trial court’s refusal to instruct on manslaughter, and that the

state trial court had committed error amounting to a miscarriage of

justice, see supra, note 1, when it refused to charge on

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manslaughter as requested. The civil cover sheet on the habeas

petition was signed and dated Friday, April 25, 1997.

On June 10, 1997, the Commonwealth moved to dismiss the

petition as time-barred under AEDPA. AEDPA contains a statute of

limitations set forth in 28 U.S.C. § 2241(d)(1) limiting to one

year the time within which a person in custody pursuant to a

judgment of the state court may apply for a writ of habeas corpus.4

The time for prisoners whose state convictions became final prior

to AEDPA to apply for a writ has since been held to be one year

running from AEDPA's effective date, April 24, 1996. Gaskins v.

Duval, 183 F.3d 8, 9 (1st Cir. 1999). On August 20, 1997, prior to

our pronouncement in Gaskins, the district court issued an order

denying the Commonwealth’s motion.

4
28 U.S.C. § 2244(d)(1) provides that:
A 1-year period of limitation shall apply to an application
for writ of habeas corpus by a person in custody pursuant to a
judgment of a State court. The limitation period shall run from
the latest of --
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of time for seeking
such review;
(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;
(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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 I am not inclined to dismiss the petition
because Mr. Lattimore filed it on April 28,
1997, instead of April 24, 1997 -- the date
suggested by the respondent as the absolute
cut-off. Prior to AEDPA, habeas petitioners
did not have to hew to a particular statute of
limitations, and I decline to require such
unduly strict adherence in Mr. Lattimore’s
case.

Lattimore v. Dubois, C.A. 97-11011-NG (D. Mass. August 20, 1997)

(order denying motion to dismiss).

Having lost on the time-bar argument, the Commonwealth

contended that Lattimore’s habeas claims were procedurally

defaulted in the state courts and that Lattimore could demonstrate

neither the cause nor prejudice necessary to revive them. The

district court disagreed that Lattimore was unable to meet the

stringent cause and prejudice standard. It found adequate "cause"

for the default in the Superior Court’s alleged abuse of discretion

when it refused to appoint counsel to assist Lattimore with his

initial new trial motion, and when it did not hold a hearing on

that motion. According to the district court, "[h]ad there been a

hearing the Commonwealth would have raised the fact that the

manslaughter issue had never been raised on appeal . . . . Had

there been counsel he or she would likely have amended the motion

to include a claim of ineffective assistance of appellate counsel

or raised it during the hearing." Lattimore v. Dubois, 152 F.

Supp. 2d, 67, 83 (D. Mass. 2001). Further, the district court

concluded that Lattimore had demonstrated actual prejudice from the

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defaulted ineffective assistance of appellate counsel claim. In so

concluding, the court stated that:

The record is clear that: Counsel
inexplicably ignored a significant and obvious
issue - the trial judge’s failure to instruct
the jury on manslaughter - in favor of three
less worthy claims. . . . [T]he evidence
surrounding the killing of Robert Phillips
fairly raised the issue of voluntary
manslaughter. The trial judge’s refusal to so
charge the jury, over the repeated requests
and objections from defense counsel,
constituted reversible error under
Massachusetts law. There was no conceivable
strategic reason to drop this issue on appeal.

Id. at 85. The court reasoned that had appellate counsel raised

the failure to instruct on manslaughter on direct appeal, "there is

plainly a 'reasonable probability' that the outcome of his direct

appeal would have been different." Id. at 89. The district court

opined:

And by failing to raise it, Lattimore's
appellate counsel relinquished the possibility
of his client receiving a maximum twenty-year
statutory sentence for voluntary manslaughter,
M.G.L. ch. 265, § 13, and ensured a sentence
of life imprisonment, M.G.L. ch. 265, § 2.

Id. Lattimore’s petition for a writ of habeas corpus was granted.

The Commonwealth appealed.

II. Discussion

A. Grace Period

The Commonwealth asserts that the district court erred

when it ruled that Lattimore’s petition for habeas corpus,

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deposited in the prison mail system on April 25, 1997, and docketed

on April 28, 1997, was timely. We agree. The effective date of

AEDPA, providing prisoners a one-year statute of limitations for

habeas petitions, was April 24, 1996. It is established in this

circuit, as elsewhere, that the grace period for prisoners whose

state convictions became final prior to AEDPA to file a petition

under 28 U.S.C. § 2254 is one year. Gaskins, 183 F.3d at 9. The

one-year grace period runs from the date of AEDPA's enactment and

ends on April 24, 1997. Rogers v. United States, 180 F.3d 349, 354

(1st Cir. 1999); see also Duncan v. Walker, 533 U.S. 167, 183

(2001) (Stevens, J., concurring) (noting that the courts of appeals

"have uniformly created a 1-year grace period, running from the

date of AEDPA's enactment").

Lattimore’s § 2254 petition was docketed on April 28,

1997, four days after the one-year grace period expired. If

Lattimore is given the benefit of the prisoner mailbox rule, see

Morales-Rivera v. United States, 184 F.3d 109, 110 (1st Cir. 1999)

(holding the "prisoner mailbox rule" is applicable to petitions

filed pursuant to § 2254), and his petition were deemed to be filed

on April 25, 1997, the date it was allegedly deposited in the

prison mail system, his petition was still one day late and hence

barred.5

5
There is nothing in the record to indicate when Lattimore
deposited his petition in the prison mail system. M.C.I. Norfolk,
where the petitioner is incarcerated, does not keep a log of

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 While Lattimore concedes that, pursuant to the current

case law, his petition was untimely, he argues that at the time he

filed his petition in 1997 the proper measurement of the year in

this circuit had yet to be established and was insufficiently clear

to exclude a petition that was filed on April 25, 1997. He says he

lacked adequate notice that the grace period would end on April 24

and not April 25, 1997. To support his argument, Lattimore cites

to two district courts within this circuit that opted for the April

25, 1997 date in decisions rendered after he filed his petition.

Considered as a legal argument, Lattimore's contention is

without merit. Wrong guesses, even reasonable ones, as to

precisely how a new statute of limitations will be authoritatively

applied do not entitle a disappointed petitioner to relaxation of

rules once adopted. See United States v. Marcello, 212 F.3d 1005,

1110 (7th Cir.), cert. denied, 531 U.S. 878 (2000) (denying a §

2255 motion filed one day late because of confusion over the

applicable deadline). The language in AEDPA put would-be

petitioners, including those with preexisting causes of action, on

notice of Congress's new one-year limitations. In instances where

Congress has altered an established statute of limitations, courts

have commonly construed the "grace period" for preexisting claims

outgoing legal mail. The petition was signed and dated on Friday,
April 25, 1997, and docketed on Monday, April 28, 1997. It is a
fair inference that the petition was placed in the mail on April
25, 1997. The Commonwealth presented no evidence to the contrary.

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to be the shorter of: (1) the original limitation period, or (2)

the new, shortened limitation period, commencing from the date the

statute became effective. See Rogers, 180 F.3d at 354; Brown v.

Angelone, 150 F.3d 370, 375 (4th Cir. 1998); United States v.

Flores, 135 F.3d 1000, 1005 (5th Cir. 1998). Under existing case

law, it could be expected that someone in Lattimore's position

would be allowed one year to file, measured from the effective date

of the AEDPA, April 24, 1996. When a limitations period is

measured in years, the last day for instituting the action is

traditionally the anniversary date of the start of the limitations

period. Rogers, 180 F.3d at 354 (citing Fed. R. Civ. P. 6(a)).

One in Lattimore's shoes had no reason to be surprised that his

petition was out of time.

We note that before Lattimore had filed his petition, two

circuit courts and the Department of Justice ("DOJ") had spoken

regarding the applicable "grace period." Peterson v. Demskie, 107

F.3d 92, 93 (2d Cir. 1997) (no need to accord full year); Lindh v.

Murphy, 96 F.3d 856, 866 (7th Cir. 1996) (en banc), rev’d on other

grounds, 521 U.S. 320 (1997) (implied period ended on April 23,

1997). The DOJ’s official position, announced in a memo dated June

28, 1996, was that it would not seek to enforce the limitations

period against prisoners convicted prior to AEDPA "until one year

after the Act took effect - i.e. April 24, 1997." Mickens v.

United States, 148 F.3d 145, 148 (2d Cir. 1998).

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 As a legal proposition, therefore, Lattimore's petition

was too late. We turn next to whether it could or should be tolled

equitably.

B. Equitable Tolling

Anticipating our conclusion, Lattimore requests that his

petition be remanded to the district court for consideration of his

equitable tolling argument. Bending backwards, we shall assume for

purposes of argument that Lattimore preserved his equitable tolling

claim below. See Neverson v. Bissonnette, 261 F.3d 120, 127 (1st

Cir. 2001) (liberally construing a pro se prisoner's petition to

include an equitable tolling argument). In his response to the

Commonwealth’s motion to dismiss, Lattimore argued against the

application of the one-year grace period because he "has limited

knowledge of the law, is a pro se litigant, and [his] freedom and

liberty is controled [sic] by the Department of Corrections

personal [sic], and [he has] limited access to the courts."

Even if we assume arguendo that equitable tolling would

be available in an appropriate case (a proposition not so far

established in this circuit), Lattimore has pointed to insufficient

facts to warrant favorable application of that doctrine here. As

the party seeking to invoke the doctrine of equitable tolling,

Lattimore bears the burden of establishing a basis for it.

Trenkler v. United States, 268 F.3d 16, 25 (1st Cir. 2001). "We

have made it pellucid 'that equitable tolling, if available at all,

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is the exception rather than the rule; [and that] resort to its

prophylaxis is deemed justified only in extraordinary

circumstances.'" Donovan v. Maine, 276 F.3d 87, 93 (1st Cir.

2002). It is reserved for cases in which circumstances beyond the

litigant’s control have prevented him from promptly filing.

Trenkler, 268 F.3d at 24; Delaney v. Matesanz, 264 F.3d 7, 15 (1st

Cir. 2001). Ignorance of the law alone, even for incarcerated pro

se prisoners, does not excuse an untimely filing. Delaney, 264

F.3d at 15 (citing Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir.

1999), cert. denied, 531 U.S. 1164 (2001)). In this case,

Lattimore had ample time to exhaust his state law claims and pursue

habeas relief. Instead he waited over a decade after his direct

appeals were completed before pursuing habeas relief in 1997.

Lattimore's claim, moreover, is of dubious merit.

Brackett v. United States, 270 F.3d 60, 71 (1st Cir. 2001)

(equitable tolling unavailable to resuscitate a claim lacking in

merit), cert. denied, 122 S. Ct. 1575 (2002). The sole

constitutional claim in Lattimore's habeas petition is that his

state appellate counsel was ineffective for not asserting as error,

on direct appeal to the SJC, the Superior Court's refusal to

instruct on manslaughter.6 Unlike the district court, we are not

6
As noted earlier, supra, note 1, Lattimore did not appeal
from the district court's decision that the trial court's failure
to instruct on manslaughter did not create a miscarriage of justice
of constitutional dimension. As a result, we do not address that
claim on appeal.

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persuaded of the potential strength of Lattimore's claim, nor are

we persuaded that Lattimore met the cause and prejudice

prerequisites.

First, it is doubtful there is cause sufficient to excuse

Lattimore's procedural default in not having placed his

constitutional claim properly before the state judiciary. The

district court based its "cause" finding upon the Superior Court's

alleged abuse of discretion under state law in refusing to appoint

post-conviction counsel to assist Lattimore in that court. But

Lattimore did not appeal to the Massachusetts Appeals Court from

the court's refusal to appoint counsel. His failure to appeal

results in a separate procedural default relative to the

appointment of counsel issue. Adequate "cause" cannot rest upon a

ground that has itself been procedurally defaulted, at least

without identifying some additional adequate cause to justify that

default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000).

Second, even were Lattimore to show cause, he has not

established that his appellate counsel was in fact ineffective for

not raising the manslaughter instruction error on direct appeal.

Murray v. Carrier, 477 U.S. 478, 488 (1986).7 Lattimore has not

7
The same weaknesses we discuss concerning the ineffective
assistance of counsel claim undermines a showing of prejudice for
purposes of the procedural default analysis as well. See Prou v.
United States, 199 F.3d 37, 49 (1st Cir. 1999)(concluding that the
prejudice standard for ineffective assistance of counsel and the
prejudice standard for procedural default "are one and the same").
The analysis for procedural default and the prejudice prong of the

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demonstrated that there is a "reasonable probability" that the

result of the appeal would have been different absent the

attorney's purported error in not pressing the manslaughter issue.

Strickland v. Washington, 466 U.S. 668, 694 (1984).

The record evidence does not make out a viable case of

voluntary manslaughter as that term has so far been interpreted in

Massachusetts jurisprudence. To warrant a manslaughter

instruction, there must be adequate provocation for the defendant

to kill. Commonwealth v. Schnopps, 417 N.E.2d 1213, 1215 (Mass.

1981). And the killing must have been in the "heat of passion."

Commonwealth v. Pitts, 532 N.E.2d 34, 35 (Mass. 1989) (holding

manslaughter instruction not warranted if there is no evidence that

events produced a "transport of passion"). A manslaughter

instruction is not warranted if evidence of either of the above is

lacking. Id.

It is questionable that Smith's misconduct, in the weeks

and hours prior to the shooting - extreme though it was - all aimed

at individuals other than Lattimore, provided Lattimore with

ineffective assistance of counsel claim requires a habeas
petitioner to demonstrate that the result of the appeal would have
been different absent the attorney's error. Id. (citing
Strickland, 466 U.S. at 694 and Strickland v. Greene, 527 U.S. 263,
285 (1999)). But rather than discuss the claim in both contexts, we
proceed directly to whether the ineffective assistance of counsel
claim was one upon which Lattimore might prevail.

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sufficient provocation to shoot Smith and kill Phillips as he did.8

See Commonwealth v. Holmes, 584 N.E.2d 1150, 1153 (Mass. App. Ct.

1992). Lattimore was not present at Smith's confrontations earlier

during the day of the killing nor did he engage in any sort of

confrontation or conversation with the victims before he shot.

Even assuming a reasonable jury might infer that, by the evening,

Lattimore had been told of Smith's threats and his abusive behavior

towards Linda and her supporters,9 the mere receipt of information

8
We cannot agree with the district court that Linda Smith, who
had suffered years of domestic abuse at the hands of Smith, and
Lattimore, her very recent boyfriend, were "in a comparable
position" for purposes of Lattimore using Smith's domestic violence
against Linda as a springboard for a provocation defense under
Massachusetts law. According to the district court, "[j]ust
because this is a domestic abuse case does not mean that only a
female victim should be able to invoke a 'heat of passion' defense:
both Lattimore and Linda Smith were victims of Glen Smith's abuse."
Neither the case law of Massachusetts nor the facts of this case
support the theory that Lattimore, solely by virtue of his nascent
relationship with Linda, had become a victim of Smith's violence
towards Linda so to warrant, without more, a manslaughter
instruction when, having approached Smith and Phillips from the
rear, he shot them without warning. No precedent in Massachusetts
case law, as it exists now or existed twenty years ago, has been
called to our attention in support of such a theory. As already
noted, Lattimore had been dating Linda for no more than several
weeks, and there was no evidence of the quality and nature of their
relationship. There was testimony that suggests that the
relationship was not exclusive, and that Linda may have dated other
men. We are unable to say that appellate counsel's failure to
raise this theory on appeal means that his performance was
constitutionally deficient.
9
Brenda Lucas, although not her husband, testified to seeing
Linda with Lattimore at the time he approached the car and emptied
his revolver. This evidence, if believed, along with the other
circumstances, might have implied that Linda, after leaving her
friends that night, had found Lattimore and updated him on the
events of the day. The evidence was otherwise clear, however, that

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from others has generally been held not to be "adequate

provocation" for manslaughter under Massachusetts case law. See

Commonwealth v. Curtis, 632 N.E.2d 619, 628-29 (Mass. 1994);

Commonwealth v. Leate, 225 N.E.2d 921, 924 (Mass. 1967);

Commonwealth v. Cousins, 54 Mass. App. Ct. 1110 (2002).

And even if we were to assume that Lattimore's second-

hand knowledge of Smith's prior misconduct amounted to reasonable

provocation for Lattimore's homicidal actions, there was no direct

evidence that Lattimore himself was so inflamed by emotion as to

lose his self-control, as those terms are conventionally used in a

manslaughter context. Pitts, 532 N.E.2d at 35. No evidence

whatsoever was presented at trial from which a jury might determine

Lattimore's subjective emotional state at the time he shot Smith

and Phillips. To all outward appearances, he shot them

deliberately and coldly, suggesting malice and a desire to exact

revenge, rather than a loss of control resulting from an

impassioned state of mind. See Commonwealth v. Medina, 723 N.E.2d

986, 995 (Mass. 2000) (no manslaughter instruction warranted where

no evidence that defendant "actually, subjectively experienced [an]

impassioned state of mind"). There was no evidence that Lattimore

argued with Smith and Phillips or was insulted or threatened by

them (or that Linda herself was insulted or threatened by them)

Lattimore was at no time present during Smith's misconduct during
the day.

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immediately before he shot them. The two victims were not armed

and were sitting in Smith's car when Lattimore came from behind and

shot them. A state appellate court might well conclude that for a

jury to be left to infer heat of passion on this record would be to

license speculation without adequate evidence as to whether

defendant "actually, subjectively experienced [an] impassioned

state of mind." Id.

The paucity of evidence of voluntary manslaughter, as

that term has been construed under Massachusetts law, clearly

raises serious doubts whether Lattimore's appellate counsel's

performance was constitutionally deficient for not arguing to the

SJC that the trial court erred when it refused to instruct on

manslaughter. Strickland, 466 U.S. at 687. Appellate counsel is

not required to raise every non-frivolous claim, but rather selects

among them to maximize the likelihood of success on the merits.

Smith v. Robbins, 528 U.S. 259, 288 (2000) (citing Jones v. Barnes,

463 U.S. 745 (1983)). There is little to support Lattimore's

contention that the result of his appeal would have been different

if his appellate counsel had pressed the manslaughter issue on

direct appeal. See Strickland, 466 U.S. at 694. Given the absence

of record support for a manslaughter charge, victory on appeal was

unlikely.10 We conclude, therefore, that Lattimore not only failed

10
While manslaughter was not argued on direct appeal, the SJC
on its own initiative, reduced the conviction from first degree to
second degree murder, see, supra, note 3. It could, had it believed

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to demonstrate adequate cause for his procedural default but also

failed to establish that his counsel was likely ineffective for

failing to raise the manslaughter instruction on direct appeal.

We see, therefore, no basis on which a finding of

equitable tolling might be warranted. Irwin v. Dep't of Veterans

Affairs, 498 U.S. 89, 86 (1990). Remanding this case to the

district court would needlessly protract litigation and undermine

the interest in the finality of state criminal convictions that

AEDPA was intended to promote.

III. Conclusion

The decision of the district court is reversed with

instructions that Lattimore's petition be dismissed.

justice so required, have further reduced the finding to
manslaughter, but did not do so, nor did the SJC discuss
manslaughter at all, suggesting that manslaughter was not, at
least, an obvious alternative in the circumstances.

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