Voravongsa v. Wall

United States Court of Appeals
For the First Circuit

No. 02-1606

LAMPHONE VORAVONGSA,

Petitioner, Appellant,

v.

A.T. WALL, DIRECTOR, ACI,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, Senior U.S. District Judge]

Before

Boudin, Chief Circuit Judge,
Selya, Circuit Judge,
and Siler,* Senior Circuit Judge.

David J. Barend for appellant.

Jane M. McSoley, Assistant Attorney General, Rhode Island
Department of Attorney General, with whom Patrick Lynch, Attorney
General, was on brief for appellee.

November 12, 2003

*
Of the Sixth Circuit Court of Appeals, sitting by designation.
 SILER, Senior Circuit Judge. In this appeal, we are asked to

decide one question of law: whether petitioner Lamphone

Voravongsa’s1 pro se motion for appointment of state post-

conviction counsel constitutes a “properly filed application for

State post-conviction or other collateral review with respect to

the pertinent judgment or claim” within the meaning of 28 U.S.C.

§ 2244(d)(2), as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), 110 Stat. 1214, thereby tolling the

one-year period of limitations that would otherwise bar review of

Voravongsa’s federal habeas corpus petition filed pursuant to 28

U.S.C. § 2254. Although the question is one of first impression in

this circuit, a straightforward reading of 28 U.S.C. § 2244(d)(2),

as well as the Rhode Island post-conviction statutory scheme, and

the federal and state court decisions interpreting each of the

statutes, make plain that Voravongsa’s federal habeas petition was

untimely under AEDPA’s statute of limitations. Accordingly, the

district court’s dismissal of Voravongsa’s habeas petition is

affirmed.

1
Although the petitioner spells his name “Voravongsa,” the
briefs in this appeal spell his name “Vorvavongsa” and the Rhode
Island courts spelled his name “Vorgvongsa.” Unless referring to
a state court decision, we will follow the district court’s
practice of using the spelling “Voravongsa,” the same spelling
employed in the certificate of appealability.

-2-
 I. BACKGROUND

In 1994, Voravongsa was convicted in Rhode Island of first

degree murder. Although the trial court granted Voravongsa’s

motion for a new trial, the Rhode Island Supreme Court remanded the

case with directions to deny the motion for a new trial, reinstate

his conviction, and proceed with sentencing. See State v.

Vorgvongsa, 670 A.2d 1250, 1255 (R.I. 1996) (Vorgvongsa I). On

remand, Voravongsa was sentenced to a mandatory term of life

imprisonment. His direct appeal of that conviction was denied by

the Rhode Island Supreme Court. See State v. Vorgvongsa, 692 A.2d

1194 (R.I. 1997) (Vorgvongsa II). He did not file a petition for

certiorari with the United States Supreme Court, and, pursuant to

court rules, the ninety-day period in which he had to do so expired

on July 14, 1997. Thus, on that date, his conviction became final.

For purposes of this appeal, the parties agree that on June

24, 1997, Voravongsa filed three separate motions in the Rhode

Island Superior Court: (1) motion for appointment of counsel; (2)

petition for a writ of habeas corpus ad testificandum; and (3)

motion to assign.2 On August 4, 1997, the Rhode Island Superior

2
The state docket sheet in the underlying criminal case (Rhode
Island Superior Court No. P1-1990-2966A) indicates that these three
motions were filed on July 24, 1997. Also, the docket sheet
references a separate application for state habeas relief
purportedly filed on June 24, 1997. The certificate of
appealability in this case ordered the parties to address whether
a formal state post-conviction application was in fact made by
Voravongsa on June 24, 1997, and, implicitly, whether the July 24,
1997, date contained in the docket sheet represents a typographical

-3-
Court appointed an attorney to represent him. The parties agree

that on September 4, 1998, thirteen months after being provided

with counsel, and nearly seventeen months after the Rhode Island

Supreme Court affirmed his conviction, Voravongsa filed a counseled

application for state post-conviction relief pursuant to Rhode

Island General Laws § 10-9.1-1 et seq. The application was denied

on October 20, 1999. See In the Matter of Vorgvongsa, No. 98-4502,

1999 WL 1001187, at *1 (R.I. Super. 1999) (Vorgvongsa III). On

December 3, 2001, the Rhode Island Supreme Court affirmed the

denial of relief. See State v. Vorgvongsa, 785 A.2d 542, 550 (R.I.

2001) (Vorgvongsa IV).

While waiting for a decision from the Rhode Island Supreme

Court on his petition for state post-conviction relief, on March

24, 2000, Voravongsa filed in federal court a pro se petition for

a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and a motion

for the appointment of counsel. The State then moved to dismiss

the petition on the ground that it was time-barred. The magistrate

judge issued a report and recommendation that the habeas petition

be dismissed as barred by AEDPA’s statute of limitations. In

error. Rather than respond to this court’s order for
clarification, each party repeatedly asserts that June 24, 1997, is
the only relevant date for purposes of determining whether AEDPA’s
time-limitations period was tolled by Voravongsa’s filing of his
motion for the appointment of counsel and other related motions.
Accordingly, based on the parties’ agreement, we analyze this
appeal on the basis that the only relevant date that these
documents were filed was indeed June 24, 1997, and that no formal
application for state habeas relief was filed on that date.

-4-
relevant part, 28 U.S.C. § 2244(d)(1), as amended by AEDPA, which

imposes a one-year period of limitations for filing a federal

habeas petition, provides:

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. 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 the time for seeking such
review[.]

The relevant tolling provision, which is contained in 28 U.S.C.

§ 2244(d)(2), 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 this

subsection.”

Accepting the State’s argument, the magistrate judge reasoned

that: (1) AEDPA’s statute of limitations began to run when the

time to petition for certiorari review of Vorgvongsa II expired on

July 14, 1997; (2) the statute of limitations expired one year

later on July 14, 1998; (3) Voravongsa’s March 24, 2000, federal

habeas application was untimely filed; and (4) there was no basis

to toll the limitations period under 28 U.S.C. § 2244(d)(2) because

Voravongsa did not file his State motion for post-conviction relief

until September 4, 1998, almost two months after AEDPA’s

limitations period expired.

-5-
 Voravongsa’s attorney did not file an objection to the

magistrate judge’s report, although Voravongsa himself filed a pro

se objection that, inter alia, argued that his habeas petition

should not be dismissed as untimely because he had diligently

pursued his state post-conviction remedy by filing--before AEDPA’s

limitations period expired--a motion to appoint counsel to

represent him in his state post-conviction proceeding, as well as

other motions. His objection implied that AEDPA’s statute of

limitations should be tolled onward from June 24, 1997, the date

his pro se motion for appointment of counsel and other related

motions were filed. Subsequently, the district court adopted the

magistrate judge’s report and recommendation and granted the

State’s motion to dismiss Voravongsa’s habeas petition. It did not

address Voravongsa’s contention that his pro se motion for

appointment of counsel, as well as other motions, tolled AEDPA’s

limitations period from the date on which those motions were filed.

We granted a certificate of appealability (COA) on the issue of

whether Voravongsa’s “pro se motion for appointment of counsel to

represent him in his state post-conviction proceeding may

constitute a ‘properly filed application for State post-conviction

. . . review’ within the meaning of 28 U.S.C. § 2244(d)(2)”

(alteration in the COA).

-6-
 II. ANALYSIS

1. Nature of Voravongsa’s Request for Appointment of Counsel

“We review de novo the . . . denial of [a] habeas application

on procedural grounds.” Melancon v. Kaylo, 259 F.3d 401, 404 (5th

Cir. 2001); see also Simpson v. Matesanz, 175 F.3d 200, 205 (1st

Cir. 1999) (applying de novo review to a district court's legal

conclusions in a habeas proceeding).

As a matter of federal law, the Supreme Court has recently

held that a federal habeas case commences with the filing of an

application for habeas relief, not with the filing of a motion for

appointment of federal habeas counsel, which the Court determined

was not a motion on the merits. See Woodford v. Garceau, --- U.S.

----, 123 S.Ct. 1398, 1401-02 (2003); see also Lookingbill v.

Cockrell, 293 F.3d 256, 263 (5th Cir. 2002) (“A habeas petition is

pending only after a petition for a writ of habeas corpus itself is

filed. Thus, the filing of the federal habeas petition--not of a

motion for appointment of counsel--tolls limitations.”) (internal

quotation marks, citation, and footnote omitted), cert. denied, 537

U.S. 1116 (2003). As the Court reasoned, the “motion for counsel

is not itself a petition, because it does not call for (or even

permit) a decision on the merits. And it is 'the merits' that the

amended § 2254(d)(1) is all about." Woodford, 123 S.Ct. at 1401-02

(emphasis added) (quoting Holman v. Gilmore, 126 F.3d 876, 880 (7th

Cir. 1997)); see also Isaacs v. Head, 300 F.3d 1232, 1245 (11th

-7-
Cir. 2002) (“[W]e hold that the relevant date for purposes of

judging AEDPA's applicability to a habeas petition is the date on

which the actual § 2254 petition was filed. . . . A motion for

appointment of counsel has no relation to the merits of a habeas

petition and does not seek any form of merits relief from a

district court.”).

In this appeal, we must answer a nearly identical question,

but in the context of interpreting state law. Specifically, we

must determine whether as a matter of Rhode Island law,

Voravongsa’s pro se filing for the appointment of counsel

constitutes a “properly filed application for state post-conviction

or other collateral review” pursuant to 28 U.S.C. § 2254(d)(2),

thereby tolling AEDPA’s otherwise expired one-year statute of

limitations.3 Naturally, to answer this question, we will analyze

Rhode Island law. See Carey v. Saffold, 536 U.S. 214, 223 (2002)

(“[F]or purposes of applying a federal statute that interacts with

state procedural rules, we look to how a state procedure functions

. . . .”); Artuz v. Bennett, 531 U.S. 4, 8 (2000) (“[A]n

application is ‘properly filed’ when its delivery and acceptance

3
As indicated above, although Voravongsa filed three separate
motions on June 24, 1997, we granted a COA only on the question of
whether Voravongsa’s motion for appointment of state post-
conviction counsel may serve as a properly filed application for
State post-conviction review. “AEDPA limits the scope of habeas
review, so that issues not included in a COA cannot be heard on
appeal.” Neverson v. Bissonnette, 261 F.3d 120, 125-26 (1st Cir.
2001). Accordingly, we concentrate our analysis on the issue
before us.

-8-
are in compliance with the applicable laws and rules governing

filings.”) (emphasis removed). For purposes of our analysis, we

must keep in mind that “there is no federal precedent for treating

a motion for appointment of counsel as a properly filed application

for postconviction relief.” Beery v. Ault, 312 F.3d 948, 951 (8th

Cir. 2002), cert. denied, 123 S.Ct. 2590 (2003).

The Rhode Island Post Conviction Remedy Act (the Act), § 10-

9.1-1 et seq., provides one general post-conviction remedy to

challenge criminal convictions and sentences. See Id. § 10-9.1-

1(b) (“Except as otherwise provided, . . . [the Act] comprehends

and takes the place of all other common law, statutory, or other

remedies . . . available for challenging the validity of the

conviction or sentence. It shall be used exclusively in place of

them.”); see also Palmigiano v. Mullen, 377 A.2d 242, 248 (R.I.

1977). Unlike federal habeas petitions, Rhode Island does not

impose time limits on the filing of applications for post-

conviction relief. See R.I. Gen. Laws § 10-9.1-3 (“An application

may be filed at any time.”). However, it specifies both the

process by which post-conviction proceedings are to commence (i.e.,

the filing of an application) and the contents that must be

contained in the application that commences those proceedings.

Thus, pursuant to § 10-9.1-3, “[a] proceeding is commenced by

filing an application verified by the applicant with the clerk of

-9-
the appropriate court.” R.I. Gen. Laws § 10-9.1-3. Concerning

application content, § 10-9.1-4 specifies that

The application shall identify the proceedings in which
the applicant was convicted, give the date of the entry
of the judgment and sentence complained of, specifically
set forth the grounds upon which the application is
based, and clearly state the relief desired. Facts
within the personal knowledge of the applicant shall be
set forth separately from other allegations of facts and
shall be verified as provided in § 10-9.1-3. Affidavits,
records, or other evidence supporting its allegations
shall be attached to the application or the application
shall recite why they are not attached. The application
shall identify all previous proceedings, together with
the grounds therein asserted, taken by the applicant to
secure relief from his or her conviction or sentence.
Argument, citations, and discussion of authorities are
unnecessary.

R.I. Gen. Laws § 10-9.1-4 (emphasis added). Based on these

statutory provisions, no Rhode Island decision that we can find has

ever held that state post-conviction proceedings--the genesis of

“State post-conviction or other collateral review”--are initiated

with the filing of a motion for appointment of post-conviction

counsel.4 Cf. Beery, 312 F.3d at 951 (finding that under a nearly

identical state post-conviction statutory scheme, “Iowa courts have

not held postconviction proceedings begin with a motion for

4
Voravongsa argues that pursuant to Shatney v. State, 755
A.2d 130 (R.I. 2000) (per curiam), “[r]eview of a judgment
accompanies every motion for appointment of counsel for post-
conviction relief filed by an indigent defendant in Rhode Island.”
Voravongsa’s analysis, however, says nothing with regard to whether
such a motion amounts to an “application” for post-conviction
review as required by 28 U.S.C. § 2244(d)(2), the real crux of this
appeal.

-10-
appointment of counsel”). In fact, recently the Rhode Island

Supreme Court rejected such an argument; it held that the mere

filing of a motion for appointment of counsel--without more--does

not constitute a state post-conviction “application,” the

triggering mechanism for commencement of Rhode Island post-

conviction collateral review. See O’Neil v. State, 814 A.2d 366,

367 (R.I. 2002).

O’Neil was a case in which the State and the petitioner

assumed reverse roles to the parties’ positions here. In O’Neil,

a petitioner was appealing an order denying both his motion for

modification of sentence and his application for post-conviction

relief. Id. at 366. The petitioner argued that a motion justice

prematurely denied him post-conviction relief because he (i.e., the

petitioner) had not yet filed a request for such relief. Id. It

was the petitioner’s position that “the motion justice misconstrued

his motions for appointment of counsel and for modification of

sentence as a request for post-conviction relief.” Id. at 367.

According to the petitioner, although he had asked for the

appointment of counsel to assist him in the preparation of his

application, he did not request post-conviction relief itself. Id.

On appeal, the State did not appear to disagree with the

petitioner’s contention. As the court pointed out, the State did

not oppose having the case remanded so that the petitioner could

proceed with an application for post-conviction relief. Id.

-11-
 Finding no need to delve into--or even mention--the

requirements of §§ 10-9.1-3 or 4, in a brief analysis the court

held that the motions to appoint counsel and for modification of

sentence “could not be fairly construed as an application for post-

conviction relief.” O’Neil, 814 A.2d at 367 (emphasis added). This

conclusion was supported by two grounds: First, the court

explained that leniency should be afforded to pro se litigants.

Id. Second, it observed that although the petitioner “mentions

post-conviction relief in his motion to appoint counsel . . . he

did not seek that relief in the motion for modification of his

sentence.” Id. (emphasis added). Thus, a motion to appoint

counsel may not be fairly construed as an “application” commencing

post-conviction proceedings unless the motion--at the very minimum-

-actually “seeks” post-conviction relief. Therefore, as a matter

of Rhode Island law, it appears that for a motion to appoint

counsel to qualify as an “application” commencing State post-

conviction collateral review, at a minimum the motion must contain

a “request” for post-conviction relief. See R.I. Gen. Laws § 10-

9.1-4 (“The application shall . . . specifically set forth the

grounds upon which the application is based, and clearly state the

relief desired.”).

Giving the term “application” its natural meaning, a filing

that purports to be an application for State post-conviction or

other collateral review with respect to the pertinent judgment or

-12-
claim must set forth the grounds upon which it is based, and must

state the relief desired; it must attack collaterally the relevant

conviction or sentence. See Mastracchio v. Houle, 416 A.2d 116,

117 (R.I. 1980) (The Act “provides the exclusive remedy to be

utilized for appropriate collateral attack upon a criminal

conviction on any ground of alleged error . . . available under

common-law or statutory postconviction remedies.”).

Therefore, in the absence of an explicit request for post-

conviction relief as specified in § 10-9.1-4, we interpret O’Neil

to hold that a motion for the appointment of counsel fails to

initiate post-conviction proceedings and, thus, fails to give life

to an application for post-conviction review: “It does not appear

that the motions filed by [the petitioner] should be interpreted as

a request for post-conviction relief . . . . [The petitioner]

mentions post conviction relief in his motion to appoint counsel,

but he did not seek that relief in the motion for modification of

his sentence.” O’Neil, 814 A.2d at 367. If a motion to appoint

counsel does not qualify as an application for post-conviction

review under state law, then it does not satisfy 28 U.S.C.

§ 2244(d)(2)’s requirement of a “properly filed application for

State post-conviction or other collateral review.” See Beery, 312

F.3d at 951 (finding that because the petitioner’s “motion for

appointment of . . . state postconviction counsel does not contain

the information required by [the Iowa statute] for postconviction

-13-
petitions[,]” then “the request does not constitute a ‘properly

filed’ application for State post-conviction . . . review” under

§ 2244(d)(2)).

In the instant case, a review of Voravongsa’s June 24, 1997,

post-conviction motion for appointment of counsel makes plain that

he did not collaterally attack his state conviction or sentence; he

simply did not “request” post-conviction or other collateral

review. In his motion, which was entitled “Petitioner’s Motion for

Appointment of Counsel,” Voravongsa wrote, “[n]ow comes the

petitioner in the above entitled action, a motion to appoint

counsel, to represent his interests in this application for post

conviction relief.” (Emphasis added). Although he uses the words

“in this application for post conviction relief,” as was true in

O’Neil, this is more of a fleeting reference to post-conviction

relief as opposed to a request for such relief. Furthermore,

Voravongsa then indicated that his motion was being made pursuant

to Rhode Island General Law § 10-9.1-5, which affords indigent

applicants legal representation. He went on to list three reasons

why he should be provided with counsel; he did not state any

grounds upon which any relief could be granted. Finally, in his

prayer for relief, he only sought the appointment of counsel--not

post-conviction relief itself: “For the reasons stated above, the

petitioner prays that this Honorable Court appoint him counsel and

that said counsel be available to him at all and any future

-14-
proceedings which may occur in the instant matter.” (Emphasis

added).

Here, no amount of analytical or linguistic massaging can

transmogrify Voravongsa’s passing reference to “this application

for post conviction relief” from a motion for counsel into an

application for post-conviction or other collateral review. This

conclusion is buttressed by the fact that the civil docket sheet

shows that the court did not assign a civil docket number to

Voravongsa’s post-conviction proceeding until September 4, 1998,

when Voravongsa filed a traditional post-conviction application

that presumably complied with the statutory requirements of §§ 10-

9.1-3 and 4. See R.I. Gen. Laws § 10-9.1-3 (“The clerk shall

docket the application upon its receipt and promptly bring it to

the attention of the court and deliver a copy to the attorney

general.”). Thus, contrary to Voravongsa’s argument, it appears

that the superior court did not view or treat Voravongsa’s pro se

motion as a properly filed application for post-conviction review.

The court certainly could not have undertaken any collateral

review--and did not provide any on-the-merits rulings--on the issue

of post-conviction relief. This explains why neither the superior

court nor the State apparently invoked § 10-9.1-8 to dismiss

Voravongsa’s September 4, 1998, formal post-conviction-relief

application once it was filed. See R.I. Gen. Laws § 10-9.1-8 (“All

grounds for relief available to an applicant at the time he or she

-15-
commences a proceeding under this chapter must be raised in [the]

original, or a supplemental or amended, application. Any ground

finally adjudicated or not so raised . . . may not be the basis for

a subsequent application” unless the court determines that justice

dictates otherwise.). Here, there is no hint that Voravongsa’s

September 4, 1998, application was labeled or viewed as a

supplemental or amended application or that the trial court made a

finding that in the interest of justice, Voravongsa’s claims should

be considered notwithstanding the fact that they were not presented

in his June 24, 1997, motions. Accordingly, the historical facts,

too, decisively point in the direction that Voravongsa’s motion for

counsel was not, and should not be, treated as an application for

State post-conviction or other collateral review. With no

predicate State post-conviction application having been filed in a

timely manner, Voravongsa is not entitled to have the time-

limitations period of § 2244(d)(1) tolled by virtue of

§ 2244(d)(2).

2. Equitable Tolling

As a last resort, Voravongsa contends that we should exercise

our discretion to equitably toll AEDPA’s one-year statute of

limitations. In this circuit, however, it is unclear whether

equitable tolling is even available with respect to § 2244(d)(1).

See Donovan v. Maine, 276 F.3d 87, 92 (1st Cir. 2002) (“Whether, as

a matter of law, equitable tolling is available, even in a

-16-
factually appropriate case, in respect to section 2244(d)(1) . . .

is not free from doubt.”) (citation omitted). As in Donovan, the

case at bar is not an appropriate case for us to decide this issue

because even assuming hypothetically that equitable tolling is

available, the facts of this case would not warrant its

utilization.

Voravongsa’s argument for equitable tolling is predicated on

the Rhode Island Supreme Court’s decision in Shatney, 814 A.2d at

135. However, as already discussed above, Shatney cannot rescue

Voravongsa’s untimely state post-conviction application.

Accordingly, it, too, cannot serve as basis for equitable tolling.

To the extent Voravongsa suggests that his pro se status should

provide grounds for this extraordinary remedy, see Donovan, 276

F.3d at 93 (explaining that “equitable tolling, if available at

all, is the exception rather than the rule; and that resort to its

prophylaxis is deemed justified only in extraordinary

circumstances”) (internal quotation marks, brackets and citation

omitted), this argument has already been rejected: “The

petitioner’s assertion that his pro se status somehow entitles him

to equitable tolling is wide of the mark. While pro se pleadings

are to be liberally construed . . . the policy of liberal

construction cannot plausibly justify a party’s failure to file a

habeas petition on time.” Id. at 94. Thus, we decline to invoke

equitable tolling in this case, even assuming that we could.

-17-
 We affirm the dismissal of the petition for a writ of habeas

corpus.

-18-