David v. Hall

United States Court of Appeals
For the First Circuit

No. 01-2289

STEPHEN DAVID,

Petitioner, Appellant,

v.

TIMOTHY HALL,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Lipez, Circuit Judges.

Robert L. Sheketoff for petitioner.
Cathryn A. Neaves, Assistant Attorney General, Criminal
Bureau, with whom Thomas F. Reilly, Attorney General, was on brief
for respondent.

February 5, 2003
 BOUDIN, Chief Judge. In this case, which raises

questions concerning habeas corpus, the relevant dates are

important. On April 13, 1992, petitioner Stephen David pled guilty

in a Massachusetts state court to second-degree murder and was

sentenced to life imprisonment. The crime was described in the

plea colloquy: briefly stated, David and others, camping at a tent

city in Quincy, Massachusetts, killed one of their number (Abraham

Champlain) by beating and otherwise mistreating him over the course

of several days and leaving him to die of his injuries and exposure

to cold. The members of the group, including David, had consumed

alcohol.

No direct appeal was taken from the conviction. Instead,

more than three years after his plea and sentencing, David filed in

the trial court two successive motions to withdraw his guilty plea

and obtain a new trial, which under state law is a permissible form

of collateral attack after a guilty plea. Constantine v.

Commonwealth, 435 Mass. 1011, 1012, 760 N.E.2d 733, 735 (2002).

Both motions were rejected by the trial court and the intermediate

appellate court and, in both cases, the Supreme Judicial Court

denied review. The first motion was filed on or about July 17,

1995, and SJC review was denied on December 29, 1997; the second

was filed on May 5, 1998, and SJC review was denied on June 29,

2000. David did not seek certiorari on either ruling from the

United States Supreme Court.

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 On March 29, 2001, David filed the present habeas

proceeding in the federal district court. In his petition, David

asserts that, for second degree murder, Massachusetts law required

that he know that his actions had a "plain and strong likelihood"

of causing Champlain's death. Commonwealth v. Sneed, 413 Mass.

387, 388 n.1, 597 N.E.2d 1346, 1347 n.1 (1992). And, he asserts,

the trial judge committed constitutional error by misadvising David

at the plea colloquy that an intent to cause injury was sufficient.

See Henderson v. Morgan, 426 U.S. 637, 643-46 (1976). He also

asserts that, due to his intoxication, a jury could not have found

that he had the intent required under state law.

In fact, at the plea colloquy, the trial judge used both

phrases, saying that an intent to injure was enough and that there

had to be knowledge of "a plain and strong likelihood" of death.

But whether the instruction was confusing (the state courts said

no) and, if so, whether it constituted a constitutional violation

are issues not before us. This is so because in opposing the writ,

the Commonwealth pled that regardless of its merits, David's

petition came too late under the deadlines fixed for habeas

petitions by the Antiterrorism and Effective Death Penalty Act of

1996 ("AEDPA"), 28 U.S.C. § 2241 et seq. (2000).

AEDPA, which became effective on April 24, 1996, fixes a

one-year limitations period for federal habeas petitions by state

prisoners. 28 U.S.C. § 2244(d)(1). Statutory exceptions exist

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where the state impeded relief, new constitutional rights were

created by the Supreme Court, or newly discovered facts underpin

the claim, id. § 2244(d)(1)(B)-(D), but David does not claim to

fall within any of these exceptions. Absent an exception, AEDPA's

one-year limit runs from the time that the state court judgment of

conviction became final by the conclusion of direct review or the

expiration of the time for seeking it. Id. § 2244(d)(1)(A).

However, defendants like David, convicted prior to AEDPA, can file

their petitions within one year of AEDPA's effective date.

Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999).

A magistrate judge recommended dismissal of David's

petition on the ground that it was barred by AEDPA's time limit.

AEDPA excludes from the one-year period "[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 . . . ." 28 U.S.C. § 2244(d)(2). The magistrate judge

excluded from the calculation the days in which the two state new

trial motions were pending (measuring from the dates of their

filings to the ultimate SJC dispositions). Even with this

exclusion, David's petition was filed 399 days after AEDPA's

enactment and, therefore, more than the 365 days allowed. The

district court adopted the recommendation.

David then sought a certificate of appealability ("COA"),

28 U.S.C. § 2253(c), which the district court denied. This court

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then granted the COA and asked the parties to brief several issues:

David's claim that 180 days should be added to the excluded period

for the time in which he could have sought certiorari in the United

States Supreme Court;1 his alternative request that the time period

be "equitably tolled" because of his attorney's error in filing

late; and his claim that the Constitution's Suspension Clause

overrides the AEDPA limit when the petitioner asserts that he is

actually innocent of the underlying offense. We now address these

issues in the same order.

David's first argument--that 180 days should be added to

the excluded period--is easily answered. Congress excluded from

the one-year period the time during which "a properly filed

application for State post-conviction or other collateral review

. . . is pending . . . ." Id. § 2244(d)(2). The reason is

obvious. During the period when the state courts are reviewing the

claims, a federal petition would likely be dismissed or held as

premature and would at best simply be held until state remedies

were exhausted. 28 U.S.C. § 2254(b)(1)(A).

Nothing in the language or policy of this exclusion

warrants adding to the excluded period an additional period during

which the petitioner could have, but did not, seek certiorari in

1
A petitioner in a criminal case has 90 days to petition the
United States Supreme Court after receiving a final judgment from
the highest court of his state. S. Ct. R. 13(1). Because David
received two adverse judgments from the SJC, he has asked that the
limitations period be tolled 180 days.

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the Supreme Court from the denial of collateral remedies. Once the

SJC denied review as to the first new trial motion, nothing was

pending in either state or federal court nor was any further action

ever taken in any court with respect to that motion. The same is

true for the second motion. Thus, to say that David's collateral

attack proceedings were pending in any court during the 90-day

periods after the SJC denials is at odds with ordinary usage.2

If anything more were needed, it is supplied by the

contrasting language of a companion AEDPA provision. In the

ordinary post-AEDPA case, the one-year period (exceptions aside)

runs from the later of two dates: "the date . . . the judgment

became final by the conclusion of direct review or the expiration

of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A)

(emphasis supplied). Thus, if David had been convicted after trial

and fought his conviction through the SJC, he would automatically

have gotten the benefit of the additional 90 days for seeking

certiorari--that is, those days would have been excluded from the

one-year period by virtue of the underscored language. No such

language appears in the collateral attack provision applicable

here.

2
The state further argues that the reference to "State post-
conviction or other collateral review" necessarily excludes the
federal certiorari process, so that the result would be the same
even if David had filed for certiorari. Duncan v. Walker, 533 U.S.
167 (2001), on which the state heavily relies, is arguably
distinguishable and there are language and policy arguments on the
other side, but the issue need not be resolved in this case.

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 David says that he had no direct review remedy under

state law because of his guilty plea so that, to create equality of

opportunity, the underscored language should be read into the

collateral attack provision or the collateral attack should be

equated in this case with direct review. This argument has the

matter backwards. Congress did not aim at equality: it

specifically provided a more generous exclusion of time where

direct review was involved and, consistent with the spirit of

AEDPA, took a stricter view as to state post-conviction remedies.

David next argues that the running of the limitations

period should be equitably tolled because the failure to file the

petition within the required period was due to error by David's

counsel. The factual premise is an affidavit from counsel stating

that he could have filed the petition earlier but did not think

this was required. "Equitable tolling" is an umbrella term for the

notion that a statute of limitations--unless its time limit is

"jurisdictional"--may be extended for equitable reasons not

acknowledged in the statute creating the limitations period. See,

e.g., Delaney v. Matesanz, 264 F.3d 7, 13-14 (1st Cir. 2001).

Section 2244 does not describe its time limits as

jurisdictional, either in its own terms or otherwise, nor does the

Commonwealth invoke that label. See Miller v. N.J. State Dept. of

Corrections, 145 F.3d 616, 617-18 (3d Cir. 1998). Still, section

2244(d) comprises six paragraphs defining its one-year limitations

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period in detail and adopting very specific exceptions. Congress

likely did not conceive that the courts would add new exceptions

and it is even more doubtful that it would have approved of such an

effort. Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999).

AEDPA reflects Congress' view that the courts were being too

generous with habeas relief and that the whole system needed to be

tightened up. See H.R. Rep. No. 104-518, at 111 (1996).

Nevertheless, many circuits have held or assumed that

equitable tolling is available,3 and we will proceed here on that

arguendo assumption. The "exclusion" inference against such a

reading of section 2244 is matched, as such rubrics often are, by

a counter inference: that Congress acts against the background of

existing decisional doctrine unless it negates the doctrine. Young

v. United States. 122 S. Ct. 1036, 1040 (2002). This court,

although it has never decided whether equitable tolling is

permitted under section 2244, Lattimore v. Dubois, 311 F.3d 46, 55

(1st Cir. 2002), has elsewhere been willing to read AEDPA

creatively. See Evicci v. Commissioner of Corrections, 226 F.3d

26, 28 (1st Cir. 2000).

If equitable tolling is available to extend section

2244(d)'s limitations period, it can only do so for the most

exceptional reasons. One of AEDPA's main purposes was to compel

3
See e.g., Dunlap v. United States, 250 F.3d 1001, 1004-06
(6th Cir.), cert. denied, 122 S. Ct. 649 (2001); Taliani, 189 F.3d
at 598; Miller, 145 F.3d at 617-18 (3d Cir. 1998).

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habeas petitions to be filed promptly after conviction and direct

review, to limit their number, and to permit delayed or second

petitions only in fairly narrow and explicitly defined

circumstances. 28 U.S.C. § 2244(d)(1)(A)-(D); H.R. Rep. No. 104-

518, supra at 111. To bypass these restrictions for reasons other

than those given in the statute could be defended, if at all, only

for the most exigent reasons.

Here, the magistrate judge thought, and the district

court, agreed, that a mistake by counsel in reading the statute or

computing the time limit is, at most, a routine error. Indeed, it

would not even constitute "excusable neglect" under Fed. R. App. P.

4(a)(5). See Mirpuri v. ACT Mfg., 212 F.3d 624, 630-31 (1st Cir.

2000). Even apart from AEDPA, the Supreme Court has said that "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).4 If carelessness were

an escape hatch from statutes of limitations, they would hardly

ever bar claims.

David's final argument is that the limitations period, if

otherwise applicable to him and unmitigated here by equitable

tolling, violates the Constitution. Article I, section 9, clause

4
Unsurprisingly, cases involving capital punishment are
sometimes treated differently. E.g., Rouse v. Lee, No. 01-12, slip
op. at 12-17 (4th Cir. Jan. 7, 2003) (excusing one day delay due to
attorney error in habeas case where petitioner faced death penalty
and would not have any other avenue of post-conviction review).

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2, provides that the "writ of habeas corpus shall not be

suspended," save in cases of rebellion or invasion. David argues

that any statutory limitations period that prevents him from

presenting a claim predicated on "actual innocence" amounts to an

unconstitutional suspension of the writ. Compare Delaney v.

Matesanz, 264 F.3d 7, 12 (1st Cir. 2001) (upholding the one year

limit only "as a general matter").

Assuming arguendo that the Suspension Clause extends

beyond the narrow historical office of the writ, cf. McCleskey v.

Zant, 499 U.S. 467, 478 (1991), it could only be violated by

enactments that make the writ "inadequate or ineffective to test

the legality of (the applicant's) detention." Swain v. Pressley,

430 U.S. 372, 381 (1977). Here, the argument made by David was

available to him from April 1992 onward and, excluding the time for

exhausting remedies, he had ample time after AEDPA in which to

bring his claim within the statutory deadline. In these

circumstances, the limitation is not even arguably

unconstitutional. Molo v. Johnson, 207 F.3d 773, 775 (5th Cir.

2000).

It would be another matter if David's constitutional

claim regarding the misstatement of the elements of the murder came

to light only after the limitations period had expired. But

Congress has provided that in such a case a petitioner may bring

his claim a year from the "date on which the factual predicate of

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the claim . . . could have been discovered through the exercise of

due diligence." 28 U.S.C. § 2244(d)(1)(D). Here, any error at the

plea colloquy was immediately apparent, so this alternative

starting date has no relevance for David.

Nothing is changed here by David's claim of actual

innocence, a claim itself derived from his mistaken-colloquy

argument. In general, defendants who may be innocent are

constrained by the same explicit statutory or rule-based deadlines

as those against whom the evidence is overwhelming: pre-trial

motions must be filed on time, timely appeals must be lodged, and

habeas claims must conform to AEDPA. In particular, the statutory

one-year limit on filing initial habeas petitions is not mitigated

by any statutory exception for actual innocence even though

Congress clearly knew how to provide such an escape hatch.5

There is a strong public interest in the prompt assertion

of habeas claims. Normally, the grant of habeas relief leaves the

state free to retry the petitioner, but this becomes increasingly

hard to do as memories fade, evidence disperses and witnesses

disappear. A defendant who could not have filed his petition

earlier is at least a sympathetic figure; one who has a known

5
In AEDPA Congress adopted a form of actual innocence test as
one component of its threshold requirements for allowing a second
or successive habeas petition; but it also provided that this
second petition is allowed only where the factual predicate for the
claim of constitutional error could not have been discovered
previously through the exercise of due diligence. 28 U.S.C. §
2244(b)(2)(B).

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claim, defers presenting it, and then asks to be excused for the

delay is unlikely to get cut much slack. A couple of cases have

conjectured that actual innocence might override the one-year

limit, e.g., Wyzkowski v. Dept. of Corrections, 226 F.3d 1213,

1218-19 (11th Cir. 2000); but to us these dicta are in tension with

the statute and are not persuasive.

The actual innocence rubric--a phrase courts use

differently in different contexts, see Calderon v. Thompson, 523

U.S. 538, 559-66 (1998)--has been firmly disallowed by the Supreme

Court as an independent ground of habeas relief, save (possibly) in

extraordinary circumstances in a capital case. Herrera v. Collins,

506 U.S. 390, 417 (1993). By contrast, the Court has used an

actual innocence test as a safety valve where an issue was not

timely presented in the original trial, Schlup v. Delo, 513 U.S.

298 (1995), but we are not here concerned with a claim forfeited

under the cause and prejudice standard.

As it happens, David has not made out a predicate showing

of "actual innocence," if the phrase is taken to mean that no jury

would likely convict David based on the currently known evidence.

This is so even if the jury was here instructed exactly as David

says Massachusetts law requires. In the end, the defense would

depend largely on whether the jury believed David's own self-

serving testimony about his own mental state--a conclusion which,

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given his active participation in Champlain's mistreatment over

several days, a jury might easily resist.

Affirmed.

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