Drew v. MacEachern

United States Court of Appeals
For the First Circuit

No. 09-1571

CARL DREW,

Petitioner, Appellant,

v.

DUANE J. MACEACHERN,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Boudin, Gajarsa,* and Thompson, Circuit Judges.

Cathryn A. Neaves for petitioner, appellant.
Natalie S. Monroe, Assistant Attorney General, Criminal
Bureau, with whom Martha Coakley, Attorney General, was on brief,
for respondent, appellee.

September 9, 2010

*
Of the Federal Circuit, sitting by designation.
 GAJARSA, Circuit Judge. The issue before the court is

whether an application for state post-conviction relief was

“pending” within the meaning of the tolling provision of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

28 U.S.C. § 2244(d)(2), and, if not, whether the petitioner is

entitled to equitable tolling of the AEDPA’s limitations period.

Carl Drew appeals from the U.S. District Court for the District of

Massachusetts’s dismissal of his petition for writ of habeas

corpus. The district court dismissed Mr. Drew’s petition for lack

of jurisdiction, holding that his petition was time-barred under

§ 2244(d)(1)(A) and that he is not entitled to equitable tolling.

We affirm.

I.

The relevant facts are not in dispute. The Massachusetts

Supreme Judicial Court (“SJC”) provides “extremely broad plenary

review” of convictions for a capital crime on direct appeal under

chapter 278, section 33E of the Massachusetts General Laws.1

Trigones v. Attorney General, 652 N.E.2d 893, 895 (Mass. 1995); see

also Commonwealth v. Randolph, 780 N.E.2d 58, 67 (Mass. 2002) (“[A]

defendant’s conviction in a capital case . . . undergo[es] the

1
“The Massachusetts murder statute still provides that the
death penalty is available for first-degree murder committed with
extreme atrocity or cruelty, but the SJC has ruled that the death
penalty violated a provision of the state constitution . . . .”
Obershaw v. Lanman, 453 F.3d 56, 60 n.2 (1st Cir. 2006) (internal
citations omitted).

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exacting scrutiny of plenary review under [section] 33E.”

(alterations added)). But “[a]fter receiving this plenary review,

a capital defendant may not appeal [to the SJC] from a decision on

a postconviction motion unless that motion raises a ‘new and

substantial question’” as set forth in a “gatekeeper” petition to

a single justice of the SJC. Trigones, 652 N.E.2d at 895

(alteration added) (quoting Mass. Gen. Laws, ch. 278, § 33E); see

also Randolph, 780 N.E.2d at 64 n.7. In a section 33E petition, a

capital defendant files a petition for leave to appeal to the full

SJC with a single justice of the SJC, who is commonly referred to

as the “gatekeeper.” Commonwealth v. Stote, 922 N.E.2d 768, 771

(Mass. 2010) (referring to the single justice in a section 33E

petition as the gatekeeper); Commonwealth v. Herbert, 838 N.E.2d

1236, 1237 (Mass. 2005) (rescript) (same). If the single justice

determines that the petitioner raises both “new and substantial”

issues, the justice will grant the petitioner leave to appeal to

the full SJC for review. Mass. Gen. Laws, ch. 278, § 33E (2008);

see also Pina v. Maloney, 565 F.3d 48, 51 n.2 (1st Cir. 2009);

Trigones, 652 N.E.2d at 895-96.

On March 13, 1981, a jury convicted Mr. Drew of first-

degree murder in the Superior Court, and he was sentenced to life

in prison without parole. Over the next twenty-two years, the SJC

would consider a direct appeal from Mr. Drew’s murder conviction

and appeals from his four denied motions for a new trial. As

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explained below, Mr. Drew’s current appeal centers on two separate

gatekeeper petitions that he filed in 1992 and 2003. Those

petitions concerned his third and fourth motions for a new trial.

Mr. Drew filed his first two motions for a new trial in

the Superior Court on March 30, 1981, and February 17, 1983,

respectively. After the Superior Court denied both motions, the

SJC consolidated Mr. Drew’s direct appeal from his murder

conviction and his appeals from the Superior Court’s denial of his

two motions for a new trial. On March 12, 1986, the SJC affirmed

Mr. Drew’s conviction and the denial of his two motions for a new

trial. See Commonwealth v. Drew (“Drew I”), 489 N.E.2d 1233, 1236

(Mass. 1986).

Nearly six years later, Mr. Drew filed his third motion

for a new trial as a pro se litigant. In this motion, Mr. Drew

alleged for the first time that his trial counsel and previous

appellate counsel were ineffective, violating his Sixth Amendment

right to the effective assistance of counsel. See Commonwealth v.

Drew (“Drew II”), No. SJ-2005-0074, slip op. at 6-7, 9 (Mass. Oct.

17, 2005). The Superior Court denied Mr. Drew’s third motion for

a new trial.

Again acting pro se, Mr. Drew timely filed a section 33E

gatekeeper petition with the single justice on April 30, 1992.

Commonwealth v. Drew (“Drew III”), 856 N.E.2d 808, 811 (Mass.

2006). In the two and a half years after Mr. Drew filed this

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initial gatekeeper petition, Massachusetts appointed four different

attorneys to assist him with his petition, but they all neglected

to make filings on his behalf. See Drew III, 856 N.E.2d at 811;

Drew II, slip op. at 10 n.10. After the gatekeeper issued three

orders to show cause, the justice refused to grant another

continuance and dismissed Mr. Drew’s petition for lack of

prosecution on December 15, 1994. Drew III, 856 N.E.2d at 811;

Drew II, slip op. at 10 n.10.

In September 1995, Massachusetts appointed a new counsel

for Mr. Drew. Drew II, slip op. at 11. After inquiring about the

status of Mr. Drew’s initial gatekeeper petition, the newly

appointed counsel learned that it had been dismissed. See Drew

III, 856 N.E.2d at 811. Upon learning of the dismissal, however,

counsel did not move for reconsideration of the dismissal nor file

a petition for writ of habeas corpus in federal court.

Eight years later, on September 16, 2003, the same

counsel filed a fourth motion for a new trial, asserting, inter

alia, the same ineffective-assistance-of-counsel claims that

Mr. Drew presented in his 1992 gatekeeper petition. After an

eleven-day evidentiary hearing, the Superior Court denied

Mr. Drew’s fourth motion for a new trial.

Represented by the same counsel, Mr. Drew then filed his

second gatekeeper petition on February 28, 2005. This petition was

granted in part, allowing the full SJC to hear Mr. Drew’s appeal

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with respect to some of his claims, namely that his trial counsel

was constitutionally ineffective. Drew II, slip op. at 14; see

also Drew III, 856 N.E.2d at 814-20. To satisfy section 33E’s

requirement that the gatekeeper petition raise “new” issues, the

single justice treated the second gatekeeper petition as though it

were Mr. Drew’s first: “I am not prepared to preclude [Mr.] Drew

from bringing substantial issues before the court because his

lawyer proceeded to bring a new motion . . . rather than resurrect

an old appeal that court appointed counsel failed to prosecute.”

Drew II, slip op. at 11 (alterations added). The single justice

opined that he was “thus inclined to treat [the ineffective-

assistance claims] of [Mr.] Drew’s petition as if [they]

represent[ed] a continuation of the 1992 appeal.” Id. (alterations

added). The single justice denied the second gatekeeper petition

in all other respects. Id. at 14.

On appeal before the full court, the SJC reasoned that

Mr. Drew could have raised his ineffective-assistance claims in his

second motion for a new trial and thus had waived those claims.

See Drew III, 856 N.E.2d at 813. Nevertheless, the SJC reviewed

his ineffective-assistance claims for a substantial risk of a

miscarriage of justice, but denied relief. Id. at 814-20. On

December 20, 2006, the SJC denied Mr. Drew’s petition for

rehearing. And on May 18, 2007, the U.S. Supreme Court denied his

petition for writ of certiorari. Drew v. Massachusetts, 550 U.S.

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943 (2007) (mem.).

Not to be denied in his quest for relief, Mr. Drew filed

a pro se petition for writ of habeas corpus in federal district

court on December 20, 2007. The district court referred the matter

to a magistrate judge for a Report and Recommendation (“R&R”). The

R&R recommended that the district court dismiss Mr. Drew’s habeas

petition for lack of jurisdiction because he failed to file his

petition within the AEDPA’s one-year statute of limitations under

28 U.S.C. § 2244(d)(1)(A). The magistrate judge also found that

the doctrine of equitable tolling did not apply to Mr. Drew’s

habeas petition. The district court adopted the R&R and dismissed

the petition with prejudice. However, the district court noted

that “because the issues are close, [it would] certify for appeal

if requested.” Addendum to Appellant’s Br. 17 (alteration added).

Upon Mr. Drew’s request, the district court certified his

case for appeal, and Mr. Drew timely filed a notice of appeal. We

have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

II.

The federal courts have jurisdiction under 28 U.S.C.

§ 2254(a) to consider a state prisoner’s petition for writ of

habeas corpus when the petitioner alleges that he is in state

custody in violation of the U.S. Constitution or federal law.

Congress, however, placed limits on the federal courts’ ability to

grant a federal habeas petition. One of those limits is a statute

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of limitations: “A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in custody

pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1)

(2006). In a typical case, the clock on the one-year limitations

period starts running when the state conviction becomes final: “The

limitation period shall run from the . . . date on which the

judgment became final by the conclusion of direct review or the

expiration of the time for seeking such review.” Id.

§ 2244(d)(1)(A) (emphasis added). For the purposes of

§ 2244(d)(1)(A), a conviction is final when the “availability of

direct appeal to the state courts and to [the U.S. Supreme Court]

has been exhausted.” Jimenez v. Quarterman, 129 S. Ct. 681, 685

(2009) (alteration added) (internal quotation marks and citations

omitted). Because the AEDPA affects prisoners convicted before its

enactment, the federal courts of appeals have uniformly created a

one-year grace period for prisoners whose state convictions became

final before April 24, 1996--the day the AEDPA became effective.

See Duncan v. Walker, 533 U.S. 167, 183 & n.1 (2001). Under this

grace period, prisoners, like Mr. Drew, who were convicted before

the AEDPA’s effective date had until April 24, 1997, to file a

habeas petition in federal district court. See, e.g., Gaskins v.

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

Petitioners can, however, stop the clock on the AEDPA’s

statute of limitations. It has a tolling provision: “The time

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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.” 28 U.S.C. § 2244(d)(2).

In sum, once a state conviction is final, the AEDPA’s

limitations period begins to run. If the petitioner files an

application for state post-conviction relief within a year after

the conviction is final, the limitations period is halted while the

application is pending, i.e., the limitations period is tolled.

For prisoners subject to the one-year grace period, their

conviction is deemed “final” as of April 24, 1996, and the period

begins to run.

This case concerns whether Mr. Drew’s initial gatekeeper

petition was “pending” within the meaning of § 2244(d)(2) as of

April 24, 1997, and, if not, whether he is entitled to equitable

tolling of the AEDPA’s limitations period based on appointed

counsels’ seriatim neglect of his initial gatekeeper petition. We

conclude that Mr. Drew’s habeas petition is time-barred under

§ 2244(d)(1)(A) and that he is not entitled to equitable tolling.

A. Tolling Under 28 U.S.C. § 2244(d)(2)

We review de novo a district court’s decision to dismiss

a habeas petition as time-barred. Wood v. Spencer, 487 F.3d 1, 3

(1st Cir. 2007). Both parties agree that Mr. Drew’s conviction

became final on June 12, 1986, which is the day three months after

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the SJC affirmed his conviction on direct appeal and the day on

which his time to seek U.S. Supreme Court review expired. See

Drew I, 489 N.E.2d at 1233, 1245. The parties further agree that

Mr. Drew is subject to the one-year grace period. Consequently,

the clock for the AEDPA’s limitations period would have started

running on April 24, 1996, unless Mr. Drew had “a properly filed

application for State post-conviction or other collateral review

. . . pending” during the grace period. 28 U.S.C. § 2244(d)(2).

Therefore, we must decide whether Mr. Drew’s initial gatekeeper

petition was “pending” during the grace period within the meaning

of § 2244(d)(2).

In Carey v. Saffold, 536 U.S. 214 (2002), the Supreme

Court addressed the meaning of the term “pending” in § 2244(d)(2).

The Court noted that “[t]he dictionary defines ‘pending’ . . . as

‘in continuance’ or ‘not yet decided.’” Id. at 219 (quoting

Webster’s Third New International Dictionary 1669 (1993)).

According to the Court, “[a]n application is pending as long as the

ordinary state collateral review process is ‘in continuance’–-i.e.,

‘until the completion of’ that process. In other words, until the

application has achieved final resolution through the State’s post-

conviction procedures, by definition it remains ‘pending.’” Id. at

219-20 (emphasis added). Based on this definition, the Court held

that an application for state post-conviction relief is “pending”

during the interval between a lower court’s entry of judgment and

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the filing of an appeal with a higher state court. Id. at 220-21.

The Court remanded the case to the Ninth Circuit to determine

whether the petitioner’s four-and-a-half-month delay in filing his

petition for an “original writ” was unreasonable under California’s

procedural rules. Id. at 225-27. Relevant to this appeal, the

Court deferred to California’s procedural rules to further the

purposes of the AEDPA’s tolling provision: “[I]t is the State’s

interests that the tolling provision seeks to protect, and the

State, through its supreme court decisions or legislation, can

explicate timing requirements . . . .” Id. at 223.

Saffold and our precedent show that a state’s procedural

rules control whether an application for state post-conviction

relief is pending under § 2244(d)(2). See Saffold, 536 U.S. at 220

(“[U]ntil the application has achieved final resolution through the

State’s post-conviction procedures, by definition it remains

‘pending.’”); Currie v. Matesanz, 281 F.3d 261, 267-68 (1st Cir.

2002) (interpreting “pending” in § 2244(d)(2) to include the gap

between the date on which a trial court denied a petitioner’s

motion for a new trial and the date on which the petitioner filed

a section 33E gatekeeper petition). Consequently, “an application

for [state] post-conviction relief is pending ‘from the time it is

first filed until [the time it is] finally disposed of and further

appellate review is unavailable under the particular state’s

procedures.’” Currie, 281 F.3d at 263 (alterations added) (quoting

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Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999)), aff’d on other

grounds, 531 U.S. 4 (2000). In Massachusetts, a single justice’s

decision to deny a gatekeeper petition is “final and unreviewable,”

Herbert, 838 N.E.2d at 1237 (internal quotation marks omitted),

even when the single justice bases his opinion on procedural

grounds, such as when a gatekeeper petition is dismissed as

untimely, see Commonwealth v. Nassar, 908 N.E.2d 371, 372-73 (Mass.

2009) (rescript) (holding that a single justice’s decision was

“final and unreviewable” when the justice denied a gatekeeper

petition as untimely); Mains v. Commonwealth, 739 N.E.2d 1125, 1131

n.10 (Mass. 2000) (holding that gatekeeper petitions must be filed

within thirty days of the denial of a motion for a new trial).2

Based on Saffold and our precedent, Mr. Drew’s initial

gatekeeper petition ceased to be pending for the purposes of

§ 2244(d)(2) when it was dismissed for lack of prosecution on

December 15, 1994. Because the single justice dismissed Mr. Drew’s

initial gatekeeper petition, see Drew III, 856 N.E.2d at 811, the

dismissal was “final and unreviewable,” Herbert, 838 N.E.2d at 1237

2
The SJC has stated that “[t]here may be some circumstances
where the full court would consider whether a single justice erred
by denying a gatekeeper petition on procedural grounds.” Nassar,
908 N.E.2d at 373 n.2. But Mr. Drew has not alleged that the
single justice erred in dismissing his initial gatekeeper petition
for lack of prosecution. Consequently, we need not address whether
a single justice’s potential procedural error in dismissing a
gatekeeper petition could affect a dismissed petition’s status as
“pending” under § 2244(d)(2) or a petitioner’s entitlement to
equitable tolling.

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(internal quotation marks omitted). With the imprimatur of a final

and unreviewable dismissal, Mr. Drew’s initial gatekeeper petition

“achieved final resolution through [Massachusetts’s] post-

conviction procedures,” Saffold, 536 U.S. at 220 (alteration

added), and “further appellate review [was] unavailable under

[Massachusetts’s] procedures,” Currie, 281 F.3d at 263 (alterations

added) (internal quotation marks omitted). Therefore, Mr. Drew’s

initial gatekeeper petition was not pending when the grace period

expired on April 24, 1997. As the district court properly held,

Mr. Drew was time-barred under § 2244(d)(1)(A) from filing a

federal habeas petition as of April 24, 1997.

Interpreting “pending” in § 2244(d)(2) to exclude

applications for state post-conviction relief that a state’s

highest court dismissed on procedural grounds comports with how the

federal courts of appeals have interpreted “pending” in similar

cases. A majority of federal courts of appeals have held that an

untimely application for post-conviction relief that a state court

reopens is not “pending” under § 2244(d)(2) “between the expiration

of the time for appeal and the filing of a petition for belated

appeal.” Streu v. Dormire, 557 F.3d 960, 966 (8th Cir. 2009); see

also Moore v. Crosby, 321 F.3d 1377, 1380 (11th Cir. 2003); Allen

v. Mitchell, 276 F.3d 183, 185-86 (4th Cir. 2001); Melancon v.

Kaylo, 259 F.3d 401, 406-07 (5th Cir. 2001); Gibson v. Klinger,

232 F.3d 799, 806-07 (10th Cir. 2000); Fernandez v. Sternes,

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227 F.3d 977, 979-81 (7th Cir. 2000). But see Saffold v. Newland,

250 F.3d 1262 (9th Cir. 2000), vacated sub nom. Carey v. Saffold,

536 U.S. 514 (2002).

Mr. Drew argues that his initial gatekeeper petition was

pending from the date he first filed it, April 30, 1992, until the

date the SJC denied his final petition for rehearing, December 20,

2006–-even though the single justice dismissed his initial

gatekeeper petition for failure to prosecute. Under Mr. Drew’s

reasoning, he had until December 20, 2007, to file his petition for

writ of habeas corpus because the single justice deemed his second

gatekeeper petition to be a continuation of the first. But the

single justice did not reopen or reinstate Mr. Drew’s initial

gatekeeper petition.3 Rather, the single justice treated the

second gatekeeper petition as though it were Mr. Drew’s first for

the purposes of satisfying the requirement that a gatekeeper

petition present “new” issues. See Drew II, slip op. at 11. The

single justice did so to compensate for the four appointed counsels

who failed to prosecute the initial petition: “I am thus inclined

to treat [the ineffective-assistance claims] of [Mr.] Drew’s

3
Although the single justice did not in fact reopen or
reinstate Mr. Drew’s initial gatekeeper petition, the cases cited
above, see, e.g., Streu, 557 F.3d at 966, create doubt whether such
a reopening and reinstatement for state law purposes would make the
petition one that had been “pending” for federal habeas purposes
throughout the lengthy period between its dismissal and its
resurrection. However, we need not decide that issue for this
circuit in this case.

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petition as if [they] represent[ed] a continuation of the 1992

appeal.” Drew II, slip op. at 11 (alterations added). The single

justice’s conclusion did not alter the fact that Mr. Drew’s initial

gatekeeper petition was dismissed. The dismissal of the initial

gatekeeper petition for lack of prosecution terminated the

proceeding, and the petition ceased to be pending.

In support of his argument, Mr. Drew relies on the

Supreme Court’s recent interpretation of the term “final” in

§ 2244(d)(1)(A). In Jimenez v. Quarterman, 129 S. Ct. 681 (2009),

the Court determined that a conviction was “final” when the

“availability of direct appeal to the state courts and to [the U.S.

Supreme Court] has been exhausted.” Id. at 685 (alterations added)

(internal quotation marks and citations omitted). Based on this

interpretation, the Court held that a petition is not “final” under

§ 2244(d)(1)(A) when a state court grants a petitioner the right to

file an out-of-time direct appeal during state collateral review,

but before the petitioner seeks federal habeas relief. Id. at 686.

According to Mr. Drew, Jimenez indicates that in

extraordinary circumstances, state court action can change how the

AEDPA’s limitations period is tolled. Mr. Drew argues that the

single justice’s decision to treat Mr. Drew’s second gatekeeper

petition as though it were his first “altered the meaning of

‘pending’ in this particular case.” Appellant’s Br. 15-16. But

the rule in Jimenez simply reinforces that Mr. Drew’s conviction

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was final after he exhausted his direct appeals to the SJC and the

Supreme Court. See 129 S. Ct. at 685. Jimenez only addresses the

term “final” in § 2244(d)(1)(A), not “pending” in § 2244(d)(2).

Moreover, the Court’s rule in Jimenez promoted the AEDPA’s goal of

giving state courts the opportunity to first address a

constitutional challenge in an untimely appeal. Id. Similarly,

holding that Mr. Drew’s initial gatekeeper petition was not pending

from 1994 to 2006 provides petitioners with an incentive to respect

state procedural rules. “[I]t is the State’s interests that the

tolling provision seeks to protect, and the State, through its

supreme court decisions or legislation, can explicate timing

requirements . . . .” Saffold, 536 U.S. at 223. In Massachusetts,

when a single justice dismisses a gatekeeper petition on procedural

grounds, the dismissal is final and unreviewable, making the

petition no longer pending.

B. Equitable Tolling

We “review[] a district court’s denial of equitable

tolling for abuse of discretion.” Trapp v. Spencer, 479 F.3d 53,

58 (1st Cir. 2007) (alteration added). Because Mr. Drew did not

timely file his federal habeas petition, we must determine whether

it was an abuse of discretion for the district court to not

equitably toll the AEDPA’s limitations period based on appointed

counsels’ seriatim neglect of his initial gatekeeper petition.

The Supreme Court recently held that Ҥ 2244(d) is

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subject to equitable tolling in appropriate cases.” Holland v.

Florida, 130 S. Ct. 2549, 2560 (2010). The Court established a

two-prong test: “[A] ‘petitioner’ is ‘entitled to equitable

tolling’ only if he shows ‘(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in

his way’ and prevented timely filing.” Id. at 2562 (quoting Pace

v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

In reference to the first prong, the Court stated that

“[t]he diligence required for equitable tolling purposes is

reasonable diligence, not maximum feasible diligence.” Id. at 2565

(internal quotation marks omitted). In reference to the second

prong, the Court explained that “‘a garden variety claim of

excusable neglect,’ such as a simple ‘miscalculation’ that leads a

lawyer to miss a filing deadline, does not warrant equitable

tolling.” Id. at 2564 (quoting Irwin v. Dep’t of Veterans Affairs,

498 U.S. 89, 96 (1990) and Lawrence v. Florida, 549 U.S. 327, 336

(2007)). Nevertheless, the Court made clear that egregious

attorney neglect could constitute an extraordinary circumstance.

Id. at 2564 (collecting cases).

Based on this two-prong test, the Court held that the

petitioner had diligently pursued his rights by sending numerous

letters concerning a federal habeas petition to his appointed

counsel, who neglected to respond. Id. at 2565. However, the

Court remanded the case to the Eleventh Circuit to determine in the

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first instance whether counsel’s failure to respond to petitioner’s

numerous letters, failure to accurately inform petitioner of the

law, and failure to keep petitioner apprised of the status of his

case constituted an extraordinary circumstance. Id. at 2564-65.

Mr. Drew fails to satisfy the two prongs for equitable

tolling. First, Mr. Drew was not reasonably diligent in pursuing

his rights for state post-conviction relief from September 1995 to

September 2003. Although it is not clear from the record exactly

when Mr. Drew became aware that his initial gatekeeper petition was

dismissed, it can be reasonably assumed that Mr. Drew’s newly

appointed counsel informed him of the dismissal when counsel

learned of it in September 1995. Mr. Drew has not produced any

evidence that he was unaware of the dismissal and has offered no

explanation as to why he did not pursue other relief between

September 1995 and September 2003. See Appellant’s Br. 21-23; Oral

Argument at 3:46-4:53, Drew v. MacEachern, No. 09-1571, available

at http://www.ca1.uscourts.gov/files/audio/audiorss.php. Absent

evidence that Mr. Drew’s counsel failed to keep Mr. Drew apprised

of his petition’s status, see Holland, 130 S. Ct. at 2564, we must

assume that counsel fulfilled his professional responsibility to

communicate with his client and attribute counsel’s inaction to

Mr. Drew, see Coleman v. Thompson, 501 U.S. 722, 753 (1991) (“[T]he

attorney is the petitioner’s agent when acting, or failing to act,

in furtherance of the litigation, and the petitioner must ‘bear the

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risk of attorney error.’” (quoting Murray v. Carrier, 477 U.S. 478,

488 (1986))); Model Rules of Prof’l Conduct R. 1.4(a)(3) (2007) (“A

lawyer shall . . . keep the client reasonably informed about the

status of the matter . . . .”). After Mr. Drew discovered that his

initial gatekeeper petition had been dismissed, he sat on his

rights. Between September 1995 and September 2003, Mr. Drew did

not file a petition to reopen the initial gatekeeper petition, did

not file another gatekeeper petition, and did not take any other

actions that could have potentially provided post-conviction

relief. It was not until eight years after Massachusetts appointed

him new counsel that a fourth motion for a new trial was filed.

This eight-year hiatus demonstrates that Mr. Drew failed to

diligently pursue his rights. Therefore, Mr. Drew is not entitled

to equitable tolling because he has failed to show “‘that he has

been pursuing his rights diligently.’” Holland, 130 S. Ct. at 2562

(quoting Pace, 544 U.S. at 418).

Second, even if Mr. Drew had diligently pursued his

rights, he has not alleged any extraordinary circumstance that

would have prevented him from seeking post-conviction relief after

discovering the dismissal of his initial gatekeeper petition. To

be sure, the four appointed counsels’ failure to take any action on

Mr. Drew’s behalf indicates extraordinary attorney neglect. See

Drew II, slip op. at 10 n.10. But this failure by his attorneys to

act diligently in pursuit of appropriate remedies occurred before

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the AEDPA became law, and Mr. Drew has not submitted any evidence

to support his argument that he was prevented from further pursuing

post-conviction relief during the grace period. Although the first

four counsels’ neglect was egregious, it did nothing to prevent

Mr. Drew’s subsequent counsel from seeking appropriate relief after

the initial gatekeeper petition was dismissed. The four appointed

counsels’ poor lawyering did not limit Mr. Drew’s ability to seek

an appropriate remedy during the grace period. Therefore, the

district court did not abuse its discretion in denying Mr. Drew’s

request to equitably toll the period within which his petition had

to be filed. Mr. Drew failed to show “‘that some extraordinary

circumstance stood in his way’ and prevented [him from] timely

filing” a federal habeas petition. Holland, 130 S. Ct. at 2562

(alteration added)(quoting Pace, 544 U.S. at 418).

III.

For the foregoing reasons, the judgment is AFFIRMED.

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