Blue v. Medeiros

United States Court of Appeals
For the First Circuit

No. 18-1066

LARRY BLUE,

Petitioner, Appellant,

v.

SEAN MEDEIROS,

Respondent, Appellee.

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

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Thompson, Selya, and Lipez,
Circuit Judges.

Ashley P. Allen, with whom Patricia A. DeJuneas and Sibbison
& DeJuneas were on brief, for appellant.
Eva M. Badway, Assistant Attorney General, with whom Maura
Healey, Attorney General, was on brief, for appellee.

January 4, 2019
 THOMPSON, Circuit Judge.

The Antiterrorism and Effective Death Penalty Act of

1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1), establishes a one-year

statute of limitations for a state prisoner to file a federal

habeas corpus petition under 28 U.S.C. § 2254. The one-year period

generally starts when a prisoner's conviction becomes final, but

may be tolled, pursuant to the statute, during the time in "which

a properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim

is pending." Id. § 2244(d)(2).

Petitioner Larry Blue, a Massachusetts prison inmate,

filed a petition for habeas corpus relief which the district court

dismissed as time-barred under AEDPA's statute of limitations.

Petitioner now seeks reconsideration of that ruling based on two

tolling theories. First, Petitioner argues that the statute of

limitations should be statutorily tolled during the month-plus-

long pendency of his motion to stay the execution of his sentence,

because that motion, he urges, constitutes an application for

collateral review under § 2244(d)(2). Second, Petitioner argues,

essentially, that unique circumstances surrounding his conviction

justify equitable tolling of the time between the finality of his

Commonwealth convictions and the filing of his habeas petition.

For reasons explained below, we reject these arguments and affirm

the dismissal of Petitioner's habeas corpus petition.
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 I. Background

Because dates are crucial to our evaluation of

Petitioner's claims, we ask the reader's patience as we detail the

travel of the proceedings below. On August 18, 2010, following a

trial by jury, Petitioner was convicted of multiple Massachusetts

state law crimes, including drug trafficking, drug possession, and

unlicensed firearm and ammunition possession. Thereafter, he

pleaded guilty to additional related charges and was handed a

cumulative sentence of up to ten years and a day to serve.

Petitioner pursued various avenues of post-conviction

relief in the Commonwealth courts.1 On June 14, 2012, Petitioner

filed a direct appeal of his convictions, based in part on

arguments previously raised and rejected by the trial court that

there were defects in the search warrants that led to his arrest.

Additionally, Petitioner premiered a new argument challenging the

constitutionality of Massachusetts's gun licensing regime.

While Petitioner's appeal was pending, revelations of

widespread misconduct at the Commonwealth's crime lab, the William

A. Hinton State Laboratory Institute, came to light with state-

employed chemist Annie Dookhan in the maelstrom of the scandal.

In response to these disclosures, in August 2012, Massachusetts's

1
First, he filed a motion for a new trial, based on his
assertion that the court reporter was unable to produce a full
transcript of his trial. This motion was denied the following day
when the parties collaborated to reconstruct the missing record.
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governor shuttered the lab and ordered an independent

investigation.2 Dookhan, after being hit with multiple indictments

for falsifying drug test results, lying about her credentials, and

perjuring herself in court (including during Petitioner's trial),

eventually pled guilty to twenty-seven counts on November 22, 2013.

Meanwhile, the Appeals Court of Massachusetts denied

Petitioner's direct appeal on September 27, 2013. Commonwealth v.

Blue, 994 N.E.2d 817 (Table), 2013 WL 5377118 (Mass. App. Ct.

2013). First, it cited its agreement with the trial court's

reasoning for the denial of Petitioner's search warrant

suppression motions. And next, it pointed out the futility of

Petitioner's constitutional challenge, noting the state's gun

licensing regime had already been given the green light by the

Massachusetts Supreme Judicial Court ("SJC"). Id. Hoping to

change minds, Petitioner filed a motion for rehearing, but the

appeals court promptly denied it.

Soldiering on, Petitioner sought further appellate

review with the SJC in October 2013. However, that application

was summarily denied without discussion on November 21, 2013.

Commonwealth v. Blue, 998 N.E.2d 342 (Mass. 2013) (Table). Ninety

2 Not long after the Dookhan misconduct was made public, an
entry in the trial court docket reflects that Petitioner filed a
motion to stay the execution of his sentence on March 12, 2013.
The docket notation reads "(Drug Lab)"; the motion was withdrawn
in June 2013.
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days later, on February 19, 2014, Petitioner's convictions became

final; that is the moment the AEDPA statute of limitations clock

began to tick.3

In the wake of the Dookhan fiasco, Petitioner filed with

the trial court a second motion to stay the execution of his

sentence, pursuant to Massachusetts Rule of Criminal Procedure 31

("Rule 31").4 In that February 21, 2014 filing he asserted his

belief that Dookhan's misconduct would likely result in the grant

of a new trial on all charges given (1) the unreliability of the

laboratory testing supporting his drug convictions and (2) the

overall taint Dookhan's perjured testimony cast on his

convictions, due to the prosecutor weaving together the drug

dealing and the gun possession throughout the trial. In a

memorandum in support of his stay motion, Petitioner announced his

intention to file a renewed motion for a new trial "shortly," based

on Dookhan's perjury and other grounds.

3 Cordle v. Guarino, 428 F.3d 46, 48 (1st Cir. 2005) ("The
SJC affirmed [the] convictions on March 11, 1992; her convictions
became final ninety days thereafter.").
4 The Commonwealth's investigation into the Hinton Lab came
to an end, concluding that, while Dookhan was "the sole bad actor"
at the lab, poor and inadequate training, protocols, and management
had allowed her conduct to go undetected for years. It was
conservatively estimated that Dookhan worked on close to 34,000
cases during her years at the lab. Commonwealth v. Charles, 992
N.E.2d 999, 1003 (Mass. 2013).
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 Back at the SJC, while Petitioner's motion to stay was

pending, the Commonwealth high court weighed in on the Dookhan

debacle: in cases where Dookhan had served as a primary or

secondary chemist for drug analysis, all defendants were entitled

to a conclusive presumption that her conduct was egregious and

attributable to the Commonwealth. Commonwealth v. Scott, 5 N.E.3d

530, 535 (Mass. 2014). That presumption notwithstanding, soon

after the Scott opinion issued, Petitioner's motion for a stay of

the execution of his sentence was denied on March 27, 2014. The

trial court found that Petitioner's firearms convictions were

unaffected by Dookhan's misconduct and as such, he was unlikely to

receive a new trial.

Undeterred, on May 5, 2014, Petitioner filed a second

motion for a new trial based on two theories. First, he framed

the revelation of Dookhan's perjury as "newly-discovered

evidence," casting doubt on the fairness of his conviction. (For

all intents and purposes, this taint argument is the same one that

had just been rejected by the court in response to his stay

motion.) His second argument, ineffective assistance of counsel,

was essentially a repackaging of the earlier defective search

warrant claims.5

5Petitioner alleged that the warrants failed to establish
timely probable cause because of their technical shortcomings, and
that his attorney was ineffective for failing to properly argue
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 On January 20, 2015, acting on Petitioner's new trial

motion, the trial court granted it as to the drug charges, and

denied it as to the gun charges. Commenting on the drug

convictions, the court conceded that, even though extensive

evidence supported Petitioner's drug charges aside from Dookhan's

perjured testimony, her testimony had, nonetheless, tainted the

drug convictions. As for the gun charges, the court found no

connection between Dookhan's testimony and those convictions.

Finally, the trial court dismissed the ineffective assistance

claim, describing it as not distinct from Petitioner's prior search

warrant claims, and writing:

[T]he Appeals Court implicitly rejected the defendant's
instant claim . . . and made rejection explicit when it
refused the defendant's petition for rehearing. The
issue is settled and need not be considered on its merits
here.

Two days later Petitioner appealed the partial denial to the

appellate court, and sought further review after this first appeal

was denied. Commonwealth v. Blue, 46 N.E.3d 114 (Table), 2016 WL

757758 (Mass. App. Ct. 2016). The Commonwealth nolle prossed the

drug charges at the end of January 2015.6 And, on April 27, 2016,

the defects -- an interpretive gloss that he had not explicitly
raised before.

6 "Nolle prossed" comes from the Latin phrase "nolle
prosequi," translated as "we shall no longer prosecute." In this
context, it means that the Commonwealth dropped all the drug
charges against Petitioner.

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the SJC entered a final denial of Petitioner's application for

further appellate review of his motion for a new trial.7

Almost eleven months8 later, on March 20, 2017,

Petitioner filed his federal petition for a writ of habeas corpus,

premised solely on his allegations of ineffective assistance of

counsel.9 On the motion of Respondent Norfolk prison

superintendent Sean Medeiros, the district court dismissed the

petition as time-barred under AEDPA. Blue v. Medeiros, No. 17-

cv-10464-ADB, 2017 WL 5297910, at *1 (D. Mass. Nov. 13, 2017). In

so doing the district court held that Petitioner's motion to stay

the execution of his sentence did not toll AEDPA's one-year time

limit, under 28 U.S.C. § 2244(d)(2), because it was not an

"application for . . . collateral review." The court held further

that Petitioner was not entitled to equitable tolling because the

issues created by the Hinton Lab misconduct did not impose a bar

7 There is no dispute that the AEDPA statute of limitations
was tolled for the almost two-year period that his motion for a
new trial was pending, from May 5, 2014, through April 27, 2016.

8 327 days, to be precise.
9 Again, Petitioner alleged that the search warrants
underlying his arrest and conviction failed to establish probable
cause, and that trial counsel failed to argue this effectively.
These arguments are not before us in this appeal. Peralta v.
United States, 597 F.3d 74, 83 (1st Cir. 2010) (general rule is
that "a court of appeals should not consider the merits of an issue
advanced by a habeas petitioner unless a COA [certificate of
appealability] first has been obtained with respect to that issue"
(quoting Bui v. DiPaolo, 170 F.3d 232, 237 (1st Cir. 1999))).
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to Petitioner filing a motion for a new trial concurrently with

his motion for stay of execution (recall Petitioner's stay motion

was filed on February 21, 2014, while his new trial motion was not

filed until May 5, 2014); and because, even after his motion for

a new trial was denied and the Commonwealth had abandoned the drug

charges, Petitioner allowed eleven months to pass by before filing

the petition for the writ of habeas corpus.

In his present appeal, Petitioner advances two

arguments relative to the timeliness of his habeas petition; we

take each in turn. Because the district court denied Petitioner

relief "on a procedural ground without taking evidence," we apply

de novo review. Holmes v. Spencer (Holmes I), 685 F.3d 51, 58

(1st Cir. 2012) (quoting Wood v. Spencer, 487 F.3d 1, 3 (1st Cir.

2007)).

II. Statutory Tolling

First, Petitioner argues that his motion to stay the

execution of his sentence tolled AEDPA's statute of limitations,

because it is a properly filed application for "collateral review"

as contemplated by 28 U.S.C. § 2244(d)(2). In support of his

assertion that "the plain meaning" of AEDPA's tolling provision

"includes post-conviction motions [like a motion to stay] heard by

the trial judge," Petitioner cites Wall v. Kholi (Kholi III), 562

U.S. 545 (2011). To better understand Petitioner's argument, a

brief discussion of Kholi is in order.
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 Khalil Kholi was convicted by the Rhode Island Superior

Court of repeated acts of sexual assault on his two young step-

daughters and received two consecutive life sentences. He appealed

the convictions and simultaneously filed a motion to reduce his

sentence; both were unsuccessful. State v. Kholi, 706 A.2d 1326

(R.I. 1998); State v. Kholi, 672 A.2d 429 (R.I. 1996).

Kholi then filed a petition for a writ of habeas corpus

in the federal district court, which denied relief after finding

the petition time-barred by AEDPA. Kholi v. Wall (Kholi I), No.

07-346S, 2008 WL 60194 (D.R.I. Jan. 3, 2008). In so concluding,

the court held that Kholi's motion to reduce his sentence, brought

pursuant to Rule 35 of Rhode Island's criminal procedure rules,10

did not constitute an application for "collateral review" under

AEDPA, and thus did not toll the limitations period. Instead, the

court reasoned that "a motion for correction or reduction of

sentence contemplates the defendant returning to the same court,

and pleading for mercy before the same judge that imposed the

original sentence and thus, is not 'collateral' within the meaning

of AEDPA." Id. at *3 (citing Walkowiak v. Haines, 272 F.3d 234,

237-38 (4th Cir. 2001)).

Kholi appealed and we reversed, holding that "a state

post-conviction motion for a sentence reduction, in the nature of

10 R.I. Super. Ct. R. Crim. P. 35 (a).
- 10 -
a plea for discretionary leniency, comes within the [AEDPA]

statutory sweep." Kholi v. Wall (Kholi II), 582 F.3d 147, 156

(1st Cir. 2009). In reaching this conclusion, we stressed the

importance of encouraging state prisoners to exhaust state court

remedies before seeking federal habeas review. Id. at 155.

The state of Rhode Island sought further review and the

Supreme Court granted certiorari. Kholi III, 562 U.S. at 551-53.

In affirming our ruling the Court carefully parsed the AEDPA

tolling language. Defining the phrase "collateral review" in the

AEDPA context, the Court stated, "[v]iewed as a whole, then,

'collateral review' of a judgment or claim means a judicial

reexamination of a judgment or claim in a proceeding outside of

the direct review process." Id. at 553. In considering whether a

Rule 35 motion would trigger collateral review, the Supreme Court

analyzed the meanings of the words "collateral" and "review." Id.

at 555-56.

Reasoning that a motion to reduce the sentence was

traditionally viewed as a collateral challenge, and was in no

instance a part of the direct review process, the Court quickly

determined that the motion was collateral. Id. at 555. The Court

then moved on to examine its understanding of the word "review."

Based on the operation of the state's criminal rule, the motion

would require a "judicial reexamination of the sentence to

determine whether a more lenient sentence is proper" and it
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therefore resulted in a review. Id. Consequently, the Court

determined that Kholi's motion to reduce his sentence constituted

an application for collateral review which triggered AEDPA's

tolling provision. Id. at 556; see also Holmes I, 685 F.3d at 60;

Kholi II, 582 F.3d at 153 ("Taking into account this quotidian

understanding, it seems self-evident that a motion for a sentence

reduction in the nature of a plea for discretionary leniency is a

motion that seeks post-conviction 'review' of a sentence and, thus,

is a motion that falls squarely within the plain meaning of section

2244(d)(2).").

As our Petitioner would have it, his Massachusetts Rule

31 motion to stay execution of sentence is no different from the

Rule 35 motion discussed in Kholi III, and as such the district

court erred when it deemed AEDPA's tolling provision not triggered.

However, while we agree with Petitioner that his motion is,

assuredly, a collateral one, we find it does not have the power to

generate a review. As the government correctly suggests, we must

turn to Massachusetts law to explain why. 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 . . . ."); Lewis v. Jeffers, 497 U.S. 764,

780-81 (1990) (urging deference to a state court's "application of

its own law" in habeas context).

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 Rule 31 allows a trial judge or a single justice of the

Commonwealth's appellate court to make a discretionary ruling

staying the imposition of a sentence during the pendency of an

appeal.11 While the ruling on the stay will not be reversed absent

an abuse of discretion, the judge generally requires a

demonstration that the defendant has a reasonable likelihood of

success on appeal. See Commonwealth v. Levin, 388 N.E.2d 1207,

1208 (Mass. App. Ct. 1979). That means evaluating whether or not

the appeal is frivolous, or whether it is "an appeal which presents

an issue which is worthy of presentation to an appellate court,

one which offers some reasonable possibility of a successful

decision in the appeal." Id. at 1209. More recently, the SJC has

described this analysis as a "pure question of law or legal

judgment," which in no way prejudges "the merits of the defendant's

direct appeal." Commonwealth v. Mattier, 49 N.E.3d 227, 228-29

(Mass. 2016) (quoting Commonwealth v. Allen, 392 N.E.2d 1027, 1033

(Mass. 1979)).12

We have noted in the past that not all filings by a

criminal defendant which seek to advance a challenge to a judgment

11 The order is temporary and automatically expires upon
affirmation of the conviction, unless it is extended by the
appellate court. It may also be revoked. Rule 31(a), (b).
12 In addition to the merits evaluation, the judge
entertaining the motion must also consider issues relating to
security, such as the defendant's risk of flight or likelihood of
committing new criminal acts. Levin, 388 N.E.2d at 1210.
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of conviction constitute a collateral review for AEDPA purposes.

Rodriguez v. Spencer, 412 F.3d 29, 37 (1st Cir. 2005) (petition

for extraordinary relief not application for collateral review);

Voravongsa v. Wall, 349 F.3d 1, 7 (1st Cir. 2003) (pro se motion

for appointment of state post-conviction counsel not collateral

review); see also Bridges v. Johnson, 284 F.3d 1201, 1203 (11th

Cir. 2002) (application before a state sentence review panel not

collateral review); Adeline v. Stinson, 206 F.3d 249, 252 (2d Cir.

2000) (motion to revive an appeal not collateral review).

Similarly here, from our perspective, the Rule 31 screening process

lacks the indicia of a "review" for this reason: Even though a

judge must take a peek at the underlying claim to see if the merits

are hopeless, she has no authority to either alter the judgment or

change the sentence. See Kholi II, 582 F.3d at 151 (in the typical

case, application for post-conviction relief that "does not seek

to alter (or even to reexamine) the judgment" does not toll

statute).

For these reasons, after a fresh review of Petitioner's

claims, we hold that a motion to stay the execution of a sentence,

under Rule 31, does not constitute a motion for collateral review,

and its filing does not trigger AEDPA's tolling provisions.13

13
Even if the statute of limitations were tolled during the
pendency of his motion to stay the execution of his sentence, he
still goes over the statutory time limit. He has a short two
days between the date his convictions became final and the date he
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 III. Equitable Tolling

Petitioner's second argument -- that equitable tolling

applies to his habeas filing -- is grounded in principles of equity

and fairness, and is primarily focused on the disruption in the

Commonwealth's administration of justice caused by Dookhan's

deceitful misconduct.14 In claiming that his petition for habeas

corpus relief should be permitted to go forward, Petitioner offers

the following argument: "The lower court presumed that equitable

tolling can only apply to the time immediately preceding the filing

of the habeas corpus petition, rather than to any period of time

after a conviction becomes final. . . .As far as petitioner is

aware, there is no requirement that the petitioner show a permanent

impediment from filing or to justify the year in which petitioner

has to file his application for a writ of habeas corpus."

Petitioner's argument, then, seems to have two parts which go like

this. First, he says that the 75 days between February 19, 2014,

the date his convictions became final, up to May 5, 2014, when he

filed his motion for a new trial, must be equitably tolled because

filed his motion for a stay. Then, 39 days elapse between the
denial of his motion to stay and the filing of his motion for a
new trial. If you add those 41 days to the 327 days he waited
between the final exhaustion of all state court review and the
date he filed the present writ, you get 368 days -- three days
over the statutory time limit.
14
As mentioned earlier, based on Scott, 5 N.E.3d at 535, this
conduct may be attributed to the Commonwealth.
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during this time he was diligently pursuing state-court relief,

and yet was thwarted by the difficulties posed by the Hinton Lab

investigation. As he tells it: "The magnitude of the problem

effectively reopened and called into question thousands of

convictions. What followed were delays in post-conviction

hearings, discovery issues, and an on-going, ultimately fifteen-

month, investigation by the Office of the Inspector General into

the Hinton State Drug Laboratory that concluded on March 4, 2014."

Second, as for the time from April 27, 2016 to March 20,

2017, when Petitioner filed his habeas petition, he seems to be

contending that this period should be excluded altogether from our

equitable tolling analysis. We consider Petitioner's contentions,

keeping in mind the guiding principles discussed next.

To establish a basis for equitable tolling, a habeas

petitioner must demonstrate that he or she has diligently pursued

her rights, but some extraordinary circumstance, or obstacle,

prevented timely filing. Holland v. Florida, 560 U.S. 631, 649

(2010); Holmes I, 685 F.3d at 62. The diligence prong covers those

affairs within the petitioner's control, while the extraordinary-

circumstances prong covers matters outside his control. Menominee

Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 755-57

(2016). It is up to the petitioner to establish "a causal

relationship between the extraordinary circumstances on which the

claim for equitable tolling rests and the lateness of his filing."
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Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000).

Additionally, "we apply equitable tolling on a case-by-case basis,

avoiding mechanical rules and favoring flexibility." Ortega

Candelaria v. Orthobiologics LLC, 661 F.3d 675, 680 (1st Cir.

2011). That said, equitable tolling is applied infrequently,

Holmes I, 685 F.3d at 62, and abuse-of-discretion is the lens

through which we review an equitable tolling decision, Holmes v.

Spencer (Holmes II), 822 F.3d 609, 612 (1st Cir. 2016). This

standard of review is nuanced; "within it, abstract questions of

law are reviewed de novo, findings of raw fact are reviewed for

clear error, and judgment calls receive a classically deferential

reception." Holmes I, 685 F.3d at 62 (quoting Riva v. Ficco, 615

F.3d 35, 40 (1st Cir. 2010)).

In support of his two-part equitable tolling theory (to

remind the reader: the period between the date of his final

conviction and the date he filed his motion for a new trial should

be equitably tolled in full, and the eleven-month post new trial

denial period should be ignored altogether), Petitioner cites to

Holmes I. Accordingly, closer scrutiny of that case is warranted.

In Holmes I, habeas petitioner Holmes sought both

statutory and equitable tolling: statutory for a period during

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which his motion to revise or revoke his sentence was pending;15

equitable for the same period based on the obstacles imposed by

his incarceration, and by the incorrect legal filing he made in

reliance on misleading advice from his lawyer during plea

bargaining. Holmes I, 685 F.3d at 55-56. On appeal this court

affirmed the district court in part, agreeing that, while Holmes's

motion to revise or revoke his sentence was in fact an application

for collateral review under AEDPA (based on the newly-minted Kholi

III decision), it still was not "properly" filed under

Massachusetts law (his filing did not specify the grounds upon

which the motion was based as Rule 29 requires)16 and so did not

trigger the statutory tolling mechanism within the meaning of 28

U.S.C. § 2244(d)(2). Id. at 60-61. However, we remanded the

matter to the district court to review its equitable tolling

ruling, pointing out that Holmes's belief that he had in fact

properly filed his motion to revise or revoke his sentence might,

15
Holmes's motion was brought pursuant to Massachusetts Rule
of Criminal Procedure 29, a rule indistinguishable from Rhode
Island's Rule 35 discussed in Kholi III.
16
An application is "properly filed" for AEDPA purposes "when
its delivery and acceptance are in compliance with the applicable
laws and rules governing filings." Holmes I, 685 F.3d at 67
(quoting Artuz v. Bennett, 531 U.S. 4, 8 (2000)).

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after Kholi III, provide an equitable basis for excluding the time

the motion was pending.17 Id. at 63-66.

Petitioner is correct that our Holmes I decision spends

much time and analysis scrutinizing the almost nine-year period

between Holmes's guilty plea and the final denial of

reconsideration from the Commonwealth court, during which time he

argued that he faced extraordinary obstacles (a lot was going on

during those nine years). Then, extrapolating from the focus of

that discussion, Petitioner posits that the additional seven-month

period between the final ruling by the Commonwealth court and the

date Holmes filed his petition for habeas corpus must not have

been relevant to our equitable tolling analysis. "There was no

weight given to, or even mention of, the seven months it took

[Holmes] to file his habeas petition after his conviction became

final," Petitioner writes in his brief. Therefore, according to

Petitioner, it logically follows that in his case, the eleven-

month period between the conclusion of the Commonwealth court

review and the filing of his habeas petition is not relevant to

17This court rejected Holmes's arguments that allegedly bad
advice from his lawyer, coupled with the disadvantages of
incarceration, justified equitable tolling, suggesting sua sponte
a third ground for equitable tolling instead. As it turned out,
on remand, the district court held that there was no basis for
equitable tolling and again denied Holmes's petition as untimely.
The ruling was affirmed by this court in Holmes II. 822 F.3d at
612.
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our assessment of extraordinary circumstances or diligence when it

comes to an equitable tolling analysis.

Unfortunately, Petitioner misconstrues our Holmes I

rationale. A careful read makes it clear that we considered the

entire period leading up to the filing of the habeas petition when

we wrote, "[t]he timeliness of Holmes's federal habeas petition,

then, hinges on whether there are any grounds for excluding at

least twenty-two of the remaining thirty-four unaccounted months

between May 1, 1998 [the date of Holmes's guilty plea] and April

9, 2008 [the filing date of the habeas petition]." Id. at 57. Of

course, given the procedural intricacies that animated Holmes's

journey through the Commonwealth criminal justice system, we had

reason to more closely examine the months during which Holmes

claimed he was prevented by circumstances outside of his control

from filing his habeas petition; but unquestionably, as clearly

noted in our decision, the full period was taken into account in

calculating the operation of the AEDPA time limit. Id. at 57-61.

Thus, with Holmes I's timing calculus properly understood, we

return to Petitioner's argument.

To briefly recap the timeline: approximately three

years and a month went by between the date Petitioner's convictions

became final and the date he filed his habeas petition.18 After

18In its argument on equitable tolling, the government comes
up with a different set of calculations. The government starts
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Petitioner's motion for a new trial was finally denied, eleven

months went by before the present motion got filed. Even if we

were to accept Petitioner's argument that the entire Dookhan

debacle posed an insurmountable obstacle to Petitioner's filing a

timely habeas proceeding prior to the SJC's final resolution of

his motion for a new trial on April 27, 2016, he nevertheless can

point to no fact which demonstrates any obstacle, extraordinary or

otherwise, that hindered his filing of a habeas petition during

the final eleven months. Nor can he point to any behavior on his

part that would demonstrate reasonable diligence in pursuing his

rights during the final eleven months. When Petitioner's motion

for a new trial was denied, it should have been clear to him that

all state-court avenues for relief had been exhausted. That is

the moment he needed to move swiftly to preserve his federal rights

as the Hinton Lab misconduct could no longer be described as

the clock on November 21, 2013, the date that Petitioner's
application for further state-level appellate review was denied.
The government concludes then that 165 days elapsed before
Petitioner filed his motion for a new trial. This court has
generally determined that the judgment becomes final after an
additional ninety days have elapsed to allow for the filing of a
petition for certiorari, see Neverson v. Farquharson, 366 F.3d 32,
36 (1st Cir. 2004), starting the AEDPA clock then after that
ninety-day period. With its argument, the government seeks to
underscore that the Petitioner also had this ninety-day period
available during which he might have filed his motion for a new
trial, thereby undermining Petitioner's diligence argument. The
government does not press an argument about this clock-starting
date, and, in any case, this discrepancy is not determinative of
the outcome.
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impeding his ability to seek post-conviction review. See Neverson

v. Farquharson, 366 F.3d 32, 44 (1st Cir. 2004). As the government

correctly points out, the Commonwealth nolle prossed Petitioner's

drug charges in January 2015. As these were the only charges

directly affected by Dookhan's malfeasance, the putative obstacle

posed by the Hinton Lab issues dematerialized over a year before

his motion for a new trial was denied. Petitioner's argument that

the gun-related convictions were tainted by the prosecutor's

closing remarks at trial (connecting the drugs with the gun) had

been repeatedly rejected by the Commonwealth courts by April 2016

-- twice by the trial court, once by the appellate court, and

finally by the SJC. As a result, Petitioner's hope, or misguided

belief, that this theory might provide him a lifeline could no

longer be reasonably understood as an obstacle preventing him from

pursuing his federal remedy.

IV. Conclusion

Because we find that Petitioner's motion to stay the

execution of his sentence was not a request for collateral review

and so did not toll the one-year statute of limitations in the

Antiterrorism and Effective Death Penalty Act, and because we find

no reason to disrupt the district court's discretionary ruling on

equitable tolling, we affirm the dismissal of Petitioner's

petition for a writ of habeas corpus as time-barred.

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