Riva v. Ficco

United States Court of Appeals
For the First Circuit

No. 14-1894

JAMES P. RIVA, II,

Petitioner-Appellant,

v.

EDWARD FICCO,

Respondent-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Thompson, Kayatta, and Barron,
Circuit Judges.

Rachel T. Rose, with whom Elizabeth Billowitz was on brief,
for appellant.
Annette C. Benedetto, Assistant Attorney General, with whom
Maura Healey, Attorney General, was on brief, for appellee.

September 29, 2015
 BARRON, Circuit Judge. James Riva II has filed a habeas

petition in federal court that challenges his three-decades-old

state murder conviction. The principal issue on appeal is whether

the District Court erred in ruling that Riva had filed that

petition too late, given the one-year limitations period that the

Anti-Terrorism and Effective Death Penalty Act (AEDPA) establishes

for filing federal habeas petitions that challenge state

convictions. We conclude that the District Court did not err, and

so we affirm the petition's denial.

I.

Riva's crime is an especially horrifying one. At about

3:00 p.m. on April 10, 1980, Riva drove to his grandmother's house

in Marshfield, Massachusetts and found her lying on a couch.1 She

asked him to do some washing for her, and he did. He then retrieved

from the cellar a gun and gold-painted bullets, which he had hidden

in a gray-metal box. When Riva's grandmother saw the gun, she

threw a glass at him. Riva shot her at least twice, stabbed her,

carried her into her bedroom, poured dry gas over her, and set her

on fire. Riva then left the house and drove to a nearby town to

pick up his father.

1We take the facts from the decision of the Massachusetts
Appeals Court affirming Riva's conviction on direct review, see
Commonwealth v. Riva, 469 N.E.2d 1307 (Mass. App. Ct. 1984) ("Riva
I"), and from our prior opinion in this case, see Riva v. Ficco,
615 F.3d 35 (1st Cir. 2010) ("Riva III").

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 The police later recovered Riva's gray-metal box from

Riva's grandmother's house. Riva made repeated efforts to retrieve

the box from the police. At one point, Riva even struck a police

officer while trying to recover the box. Police then arrested

Riva and charged him with murder, arson, and assault and battery

of a police officer.

At trial, Riva argued that he was not guilty by reason

of insanity. His mother testified at trial in support of that

defense. She testified that when she visited Riva two months after

the murder, he told her that "his brain was on fire, that he was

sick, his stomach hurt," "that he had to talk to somebody," and

"that the voices were really bad in his head." See Commonwealth

v. Riva, 469 N.E.2d 1307, 1308 (Mass. App. Ct. 1984) ("Riva I").

The Massachusetts Appeals Court described other aspects of the

mother's testimony about what Riva had said about why he had

committed the crime as follows:

[Riva] told her also that he had meditated suicide but
the voice dissuaded him. Riva explained that the bullets
"had to be painted gold because, if they weren't gold,
they wouldn't find their mark." He went on to say, "I
didn't stab her and didn't hit her on the head like they
said I did, but I then drank her blood because, you know,
I have to because that's what vampires do," and then,
after an interval, "I didn't want it to happen, and I
kept telling the voice all day that I couldn't do it."

Id. at 1309 n.4.

In further support of Riva's insanity defense, the

mother also testified about distressing behavior that Riva had

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exhibited over the course of his life. The Massachusetts Appeals

Court described this portion of the mother's testimony as follows:

At four, he had an altercation with his father and tried
to call the police and, when that was prevented,
attempted to injure his father. When hospitalized with
pneumonia and later in kindergarten, he drew pictures of
bleeding human anatomies and of people being shot. At
thirteen he started drawing pictures of vampires and of
women with puncture wounds dripping blood. He
periodically began eating food with the appearance of
blood (mixtures of oil, ketchup, parts of animals). He
would go long periods without sleep and would run away.
His school attendance suffered and he became involved
with the police. In 1974 he was committed to McLean
Hospital (a psychiatric hospital) for six months. After
release, he continued out-patient treatment and also his
earlier strange conduct. He was committed to a Westwood
hospital because of threats to kill his father. He
engaged in strange conversations with his mother and
referred to "voices from outer space . . . [that] would
be directing his body." He left an apartment to which
he had moved, and disappeared for four months. He turned
up in Florida. After his return, he killed a cat, cut
off its head, and took out its brain, in an effort to
learn how to "fix his own" brain. He told his mother
that he had drunk the cat's blood.

Id. at 1309 n.5.

To rebut the insanity defense, the Commonwealth put on

a psychiatrist who testified that, at the time of the killing,

Riva was capable of conforming his behavior to the law. The

Commonwealth's expert based that conclusion on his assessment of

Riva's conduct on the day of the murder and on his review of the

taped interview that the police conducted with Riva soon after the

murder.

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 The trial lasted seven days. The jury rejected Riva's

insanity defense and convicted him of second-degree murder, arson,

and assault and battery of a police officer. Riva received a

sentence of life in prison.

Soon after sentencing, the Commonwealth committed Riva

to Bridgewater State Hospital, a psychiatric institution for

inmates. Riva remained there until January 1989, when he was

returned to the general prison population. In September 1990,

however, Riva assaulted a prison officer while Riva was under the

paranoid delusion that the officer had been draining fluid from

Riva's spine. Riva was charged with assault, found not guilty by

reason of insanity, and sent back to Bridgewater. But in August

1999, Riva again returned to the general prison population.

While institutionalized at Bridgewater, Riva made

numerous unsuccessful attempts to obtain relief from his

conviction. He filed four motions for a new trial in state court,

two with the aid of counsel, and two on his own or, to use the

legal term, pro se. Riva filed those motions in 1982, 1987, 1995,

and 1999. Riva also filed two motions in state court to revise or

revoke his sentence. He filed the first with the aid of counsel

in 1982, and the second pro se in 1993. Finally, Riva filed three

federal habeas petitions, in 1987, 1996, and 1998, only the last

of which he filed with the assistance of counsel.

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 Then, in 2001, Riva filed the federal habeas petition

that is now before us. The AEDPA establishes a one-year

limitations period for such filings. Ordinarily, the limitations

period begins to run when a petitioner's conviction becomes final.

But Riva's conviction became final in 1985. That was more than

twenty years before Congress had even passed the AEDPA. Thus, in

Riva's case, the one-year limitations period began running on April

24, 1996, as that was the day that the AEDPA became effective.

See Delaney v. Matesanz, 264 F.3d 7, 10-11 (1st Cir. 2001)

(explaining that courts have interpreted the AEDPA to allow a one-

year grace period within which state prisoners may file federal

habeas petitions to challenge convictions that became final before

the AEDPA's effective date).

Even though Riva filed his habeas petition four years

after the AEDPA limitations period expired on April 24, 1997, he

argued to the District Court that his mental illness excused his

seemingly late filing. He contended that his illness should have

equitably tolled the running of the limitations period. He also

argued, alternatively, that he had new evidence to show that his

illness rendered him actually innocent of the crime (by validating

his insanity defense) and thus that the limitations period did not

even apply to him.

The District Court rejected Riva's request for equitable

tolling and dismissed the petition as untimely, without addressing

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Riva's actual innocence claim. Riva v. Ficco, No. 01-12061-MLW,

2007 WL 954771 (D. Mass. Mar. 28, 2007) ("Riva II"). We vacated

and remanded. Riva v. Ficco, 615 F.3d 35 (1st Cir. 2010) ("Riva

III").

We held, as a matter of first impression, that mental

illness can constitute a ground for equitably tolling the AEDPA's

limitations period. Id. at 40. We also held that the District

Court made various errors in evaluating whether Riva's mental

illness warranted equitably tolling the limitations period. Id.

at 42-44. We therefore instructed the District Court to develop

the record and reconsider Riva's equitable tolling argument. Id.

at 44. We also instructed the District Court to consider, for the

first time, Riva's separate argument that his new evidence of

actual innocence (due to his insanity) rendered the limitations

period inapplicable. Id. at 44 n.4.

On remand, the District Court developed the record,

considered both of Riva's arguments, and again dismissed Riva's

habeas petition as untimely. Riva v. Ficco, No. 01-12061-MLW,

2014 WL 4165364 (D. Mass. Aug. 21, 2014) ("Riva IV"). Riva now

appeals.

II.

We held in Riva III that Riva bears the burden of

establishing that his mental illness entitles him to equitable

tolling of the AEDPA's limitations period, and that, to satisfy

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that burden, Riva must demonstrate that there is "some causal link"

between his mental illness and "his ability seasonably to file for

habeas relief." 615 F.3d at 39-40. We said that Riva could

establish such a link if he could show that, "during the relevant

time frame, he suffered from a mental illness or impairment that

so severely impaired his ability either effectively to pursue legal

relief on his own behalf or, if represented, effectively to assist

and communicate with counsel." Id. at 40. And we identified the

relevant time frame as spanning most of the approximately three

years between April 24, 1996 and March 17, 1999. Id. at 41.2

There is no doubt that Riva suffers from a serious mental

illness, and the government does not contend otherwise. At the

same time, Riva's mental illness has not stopped Riva from making

numerous legal filings -- including some quite cogent and

sophisticated ones that he made even without the aid of counsel.

The key question is whether Riva has shown that his tardiness in

filing his habeas petition may be attributed to his mental illness

rather than to the lack of diligence that even late-filing

petitioners who have no such illness have been known to exhibit.

2 We set that as the time frame because we concluded that
Riva's fourth motion for a new trial in state court successfully
tolled most of the period between March 17, 1999 and his 2001
filing of the habeas petition that is now before us. Riva III,
615 F.3d at 41.

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 As we said the last time that we took up this issue,

"[t]his is a complex case, in which various pieces of evidence

point in different directions," and "[i]t is a close call as to

whether or not equitable tolling is warranted." Id. at 44. But

as we also made clear at that time, the call is the District

Court's to make so long as the District Court does not abuse its

discretion in making it. Id. at 40.

Here, the District Court determined that Riva had not

shown that his mental illness explained the lateness of his filing.

And the District Court supplied a careful and well-reasoned

explanation for that conclusion, in which the District Court

specifically and satisfactorily addressed the concerns that we

raised in Riva III. We thus see no basis for overturning the

District Court's decision.3

We start with the District Court's findings about an

issue that caused us significant concern in Riva III. There, we

concluded that the District Court had given too much weight the

first time around to evidence that showed Riva was capable of

making legally coherent legal filings and not enough weight to

evidence that could shed light on "the petitioner's ability to

3Contrary to Riva's contention, the merit of his underlying
claims for habeas relief cannot excuse an otherwise unjustified
failure to act within the limitations period. See Trapp v.
Spencer, 479 F.3d 53, 61 & n.8 (1st Cir. 2007). And so we decline
his invitation to evaluate those claims.

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sustain the lucidity necessary to effectively pursue legal redress

once filings were effectuated." Id. at 43. We found the latter

consideration important in light of Riva's expert's sworn

statement that Riva's mental illness had "'interfered with

[Riva's] ability to sustain the attention and effort necessary for

him to consistently'" pursue legal relief. Id. (emphasis added).

By focusing only on individual filings, therefore, the District

Court had potentially overlooked crucial evidence that Riva's

mental illness affected his ability to pursue his legal claims.

But this time around the District Court did address this

issue head on. And, in doing so, the District Court reasonably

found that Riva had not shown that his mental illness prevented

him from following through in litigation in a sustained way.

The District Court noted that Riva's 1996 federal habeas

petition, which Riva filed pro se just before the one-year

limitations period began to run, was "detailed" and "informative."

Riva IV, 2014 WL 4165364, at *7, 13-14. But the District Court

then went on to observe that Riva was attentive to his 1996

petition even after he filed it. Id.

For example, the District Court noted that when the

Commonwealth failed to respond to the 1996 petition, Riva moved

for default judgment. And the District Court further noted that

when the petition was erroneously dismissed for insufficient

service of process, Riva successfully advocated to reinstate it.

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Finally, the District Court observed that Riva voluntarily

dismissed his petition when he realized that he had failed to

exhaust his federal claims in state court. Id. at *13-14.

Riva contends that the District Court failed to consider

that, after Riva voluntarily dismissed the 1996 federal petition,

he did not then return to state court to exhaust the federal claims

that were contained in that petition. But Riva's misstep in that

one regard does not demonstrate that he was unable to follow up on

his filings due to his mental illness. That misstep reveals only

that Riva had followed up but in the wrong way -- something that

diligent petitioners without mental illnesses do all too often,

especially when, like Riva, they are not assisted by counsel.

Moreover, Riva did return to state court around the same

time that he voluntarily dismissed his 1996 federal habeas

petition. Riva wrote Judge Peter Brady of the Massachusetts

Superior Court in September 1996 and requested that the judge rule

on his second motion to revise and revoke his sentence, which Riva

had filed in 1993. That approach, too, was not the legally correct

one. And that should hardly be a surprise, given the complexity

of the rules for filing habeas petitions and Riva's pro se status.

But while Riva's follow-up was substantively mistaken, it was a

follow-up just the same. And a timely one at that. Thus, the

fact that Riva made this effort -- flawed though it was -- supports

the District Court's finding about Riva's capacity to follow

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through on his claims in a sustained manner during the relevant

time period.

In response, Riva contends that the District Court

failed to consider the various times that Riva successfully filed

legal documents but then failed to follow up on them. But the

District Court did not overlook the incidents that Riva identifies.

See id. at *5-6. The District Court determined instead that the

many times that Riva did follow up supported the conclusion that

a failure to follow up "was not typical of his pattern of

litigation." Id. at *15. And the record does not show that this

finding was clearly wrong.

In addition to finding that Riva had not made the case

that his illness prevented him from following up on his filings

during the relevant time period, the District Court also found

that Riva had not proven that his illness prevented him from

cooperating with counsel during that time period. The District

Court pointed in particular to what the record revealed about

Riva's communications with counsel in 1995 (which was just before

the start of the relevant time frame for evaluating his equitable

tolling claim) and again in 1998 (which was during that time

frame).

At least twice in 1995, the District Court noted, Riva

wrote letters to Richard Passalacqua, who represented Riva on his

third motion for a new trial. And the District Court supportably

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found that the letters revealed Riva's deep engagement in the

litigation and that his "understanding of some of the demands of

his litigation efforts was at least as sound as that of his

professional counsel." Id.4

The District Court also pointed to evidence in the record

about Riva's relationship with Barbara Smith, the attorney who

helped Riva file his 1998 habeas petition -- a filing that occurred

during the relevant time frame. Id. at *14. The District Court

found that the record supported the conclusion that Riva did

cooperate with Smith. And while Riva sharply disputes that

finding, it rests on a supportable inference, although not one

that is compelled.5

4 Riva explained to Passalacqua in one letter that "[t]here
are eight Com v. Moores in the Massachusetts Digest. The judge
probably knows which one we are talking about, but I really think
you should put in the numerical cites." In another letter, Riva
writes: "I am in receipt today of the Commonwealth's brief that
you sent. Now we had many discussions about the Commonwealth's
opening argument and I wrote you many letters concerning the an
[sic] issue not raised is deemed waived unless you use the issue
of ineffective assistance of counsel. You assured me that it is
only an issue of the appeals court. I want you to immediately
file a rebuttal brief stating your authorities for this claim.
You might not think this appeal is winnable in front of Brady, but
I do. . . . You will have to put me on the stand to counter the
DA's claim I was given a Lamb warning."
5 Riva alleges that he wrote a letter to the court clerk in

July 1998 inquiring whether Smith had filed a habeas petition on
his behalf, and that that letter indicates that Riva was not
communicating with Smith. But the record includes only the clerk's
response, which states: "The Court is in receipt of your letter
date [sic] July 30, 1998. Please be advised that to date, we have
received no Habeas Petition on your behalf by Attorney Barbara
A.H. Smith." The District Court did not abuse its discretion in

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 Considering the evidence of cooperation as a whole, we

cannot say that the District Court erred in finding that Riva

failed to demonstrate that his mental illness prevented him from

cooperating with counsel. Riva points to no reliable evidence to

show that he did not cooperate with Smith, let alone that his

illness rendered him incapable of doing so. And the evidence

plainly shows that Riva was fully able to cooperate with his

counsel in 1995, just before the limitations period began to run.

Finally, the District Court did not err in giving weight

to Riva's "organized and comprehensible" pursuit of collateral

proceedings in state court in the 1980s and early 1990s, as well

as to Riva's attention to a civil rights case that he had filed on

his own in 1987 and that he had litigated all the way to the

Supreme Court. Id. at *14-15. The District Court reasoned that

"effective litigation by Riva prior to 1996 tends to indicate that

Riva had a similar capacity to pursue his legal affairs during the

tolling period," id. at *13, and we see no error in that reasoning.

Riva contends that the District Court should not have

considered evidence from before the relevant time frame. He argues

that the District Court's logic in considering that evidence rests

on the unsupported premise that Riva's mental state had improved

refusing to infer the content of Riva's letter to the clerk from
the clerk's vague response.

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by the beginning of that time frame, in 1996. But the District

Court's determination that Riva had a similar capacity to pursue

legal relief prior to 1996 as he did after 1996 does not depend on

such a premise. The District Court's determination depends only

on the finding that Riva's condition had not worsened. But Riva

does not argue that it had. And, in fact, the record contains

evidence that his condition had improved.6 Thus, the District

Court did not abuse its discretion in drawing upon evidence of

Riva's past capacity to litigate effectively a claim in determining

that Riva had a similar capacity during the time period relevant

to equitable tolling.

The District Court had a difficult task, but it "plainly

consider[ed] all the pertinent factors and no impertinent ones"

and provided a "thorough explanation" of its reasoning. Riva III,

615 F.3d at 44 (internal quotation marks omitted). We thus hold

that its "refusal to apply principles of equitable tolling to

salvage [Riva's] time-barred habeas application does not

constitute an abuse of discretion." Id. (internal quotation marks

omitted).

6 Both parties' experts acknowledge that Riva's condition had
improved, and Riva himself, in various legal filings and letters
in 1995 and 1996, as well as in an affidavit to the District Court
in the instant action, indicated that his condition was
sufficiently controlled during the relevant time frame to permit
him to pursue his legal claims.

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 III.

We next turn to Riva's other argument for excusing the

lateness of his filing. Under the AEDPA, a "credible showing of

actual innocence" provides a "gateway" through which a petitioner

may pursue his claims on the merits notwithstanding his failure to

file his habeas petition within the statute's otherwise applicable

limitations period. McQuiggin v. Perkins, 133 S.Ct. 1924, 1931

(2013). To pass through this gateway, however, a petitioner must

satisfy the standard for actual innocence articulated by the

Supreme Court in Schlup v. Delo, 513 U.S. 298 (1995).

Specifically, Schlup requires a petitioner to show that,

in light of newly presented evidence, "it is more likely than not

that no reasonable juror would have found [him] guilty beyond a

reasonable doubt," id. at 327, or, to remove the double negative,

"that more likely than not any reasonable juror would have

reasonable doubt," House v. Bell, 547 U.S. 518, 538 (2006). And

further, Schlup makes clear that, "[t]o be credible, such a claim

requires petitioner to support his allegations of constitutional

error with new reliable evidence -- whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence -- that was not presented at trial." 513 U.S.

at 324.

Riva premises his case for making it through the gateway

on newly presented evidence that Riva contends shows that he was

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legally insane at the time of the murder. Neither we nor the

Supreme Court has decided whether an insanity defense, if proven,

amounts to proof of actual innocence and thus a basis for passing

through the gateway the AEDPA leaves open to late filers. See

Rozzelle v. Secretary, Fl. Dep't of Corrections, 672 F.3d 1000,

1013-15 (11th Cir. 2012) (citing cases in other circuits going

both ways). But we need not decide the issue here, because the

District Court supportably found that Riva's new evidence did not

meet the Schlup standard even assuming proof of legal insanity

could constitute proof of actual innocence. Riva IV, 2014 WL

4165364, at *21-24; see Awon v. United States, 308 F.3d 133, 140

(1st Cir. 2002) ("On an appeal from the denial of a [petition for

habeas corpus], we review the district court's legal

determinations de novo and the court's factual findings for clear

error.").

Riva's newly presented evidence consists of opinions

from a psychiatric expert that Riva recently retained. But that

expert opinion evidence is only indirectly probative of Riva's

mental state on the day of the murder.7 Given the competing trial

evidence about Riva's state of mind at that time,8 we cannot say

7 The expert contends that an IQ test Riva took two years
before he killed his grandmother supports his insanity defense and
that, at trial, the Commonwealth's psychiatric expert
misrepresented the nature of Riva's mental illness.
8 That evidence included: the testimony of Riva's great-uncle

concerning Riva's normal behavior in the week preceding the

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Riva has met the Schlup standard. Schlup, 513 U.S. at 328

(instructing courts to consider a claim of actual innocence "in

light of all the evidence”). We thus affirm the District Court's

ruling on this point, too.9

IV.

For the foregoing reasons, the decision of the District

Court is affirmed.

offense; the testimony of Riva's high school teacher about an
unremarkable conversation with Riva hours before he killed his
grandmother; a recording of a police interview the day after the
incident in which Riva understood and responded to questions,
denied involvement, and suggested alternative causes for the fire;
and the premeditated, organized fashion in which Riva carried out
and attempted to conceal his act, including his use of dry gas to
burn the body and his attempt to retrieve his box of bullets and
papers from the police the day after the crime.
9 We also affirm the District Court's denial of Riva's
request, under the Criminal Justice Act, for funding for further
neurological testing. Given the substantial evidence at trial of
Riva's legal sanity when he killed his grandmother, there is not
"clear and convincing evidence" that Riva was prejudiced by the
court's denial of funding for neurological testing that Riva's
medical expert says "could" detect that Riva has "an observable
brain abnormality associated with schizophrenia." See United
States v. Canessa, 644 F.2d 61, 64 (1st Cir. 1981) (stating that
a district court's refusal to authorize funding under the Criminal
Justice Act is not reversible error unless there is "clear and
convincing evidence showing prejudice").

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