United States Court of Appeals
For the First Circuit
No. 09-2431
ALEX HOLMES,
Petitioner, Appellant,
v.
LEWIS SPENCER, MARTHA COAKLEY,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Torruella, Lipez, and Howard,
Circuit Judges.
Janet Hetherwick Pumphrey for petitioner.
Anne M. Thomas, Assistant Attorney General, Criminal Bureau,
with whom Martha Coakley, Attorney General, was on brief for
respondents.
July 16, 2012
TORRUELLA, Circuit Judge. Petitioner-Appellant Alex
Holmes ("Holmes") filed a federal petition for a writ of habeas
corpus to challenge his conviction and sentence for murder in
Massachusetts. The district court dismissed Holmes's petition as
untimely under the Antiterrorism and Effective Death Penalty Act's
("AEDPA") one-year statute of limitations. 28 U.S.C. § 2244(d).
Holmes appealed the dismissal of his petition. We agree with the
district court that Holmes's petition was not timely filed under
AEDPA. However, we remand to the district court to consider
whether the statute of limitations should be equitably tolled.
I. Background
The Commonwealth of Massachusetts charged Holmes and two
other defendants with first-degree murder in the death of Todd
Richardson ("Richardson"). Holmes pled not guilty to the first-
degree murder charge. However, on May 1, 1998, Holmes pled guilty
to second-degree murder. The court sentenced Holmes to life in
prison, the mandatory sentence in Massachusetts for second-degree
murder. See Mass. Gen. Laws ch. 265, § 2. Holmes claims that he
pled guilty because his trial counsel, Stewart Graham, Jr.
("Graham"), told him that the prosecutor had proposed a deal: if
Holmes pled guilty to second-degree murder and if the prosecutor
decided that she wanted information from Holmes regarding others
who may have been involved in Richardson's killing, Holmes would be
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able to reduce his sentence by filing a Motion to Revise or Revoke
under Mass. R. Crim. P. 29 ("Rule 29").
After his sentencing, Holmes was sent to the
Massachusetts Correctional Institution at Concord, MA ("MCI-
Concord"). While there, on June 17, 1998, Holmes filed a Motion to
Revise or Revoke Sentence pursuant to Rule 29 (the "Rule 29
Motion"). The Rule 29 Motion did not identify any underlying
grounds; instead, it simply stated that "the defendant attaches an
Affidavit in Support of this motion and reserves the right to file
a supplemental affidavit, through appointed counsel, when a court
hearing is requested." The Affidavit that Holmes submitted with
his Rule 29 Motion was similarly lacking in detail. The Affidavit
simply stated that Holmes wished "to preserve any and all rights
due me under the Massachusetts Rules of Criminal Procedure." It
also stated, "[a]t the appropriate time, through counsel or upon my
own motion, I will request that this matter be brought forward and
heard by the sentencing judge."
Both the Motion and the accompanying Affidavit appear to
be boilerplate forms. Both are typewritten documents with spaces
in which information is to be filled in by hand. The Motion
contains spaces in which Holmes hand-wrote his name, the docket
number, the court in which he was sentenced, the date of sentence,
and the date he filed the Motion itself. The Affidavit contains
spaces for the same information plus the underlying charge and the
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sentence. The record does not reflect who gave the forms to
Holmes, what information was given to Holmes, or what information
was even available to him regarding the forms. Holmes's Reply
Brief to this Court states that in 1998, all newly-sentenced
prisoners were given these forms when they arrived at MCI-Concord;
however, there is no evidence in the record, other than the forms
themselves, regarding this issue.
Holmes never requested that the Rule 29 Motion be brought
forward for a hearing in front of the sentencing judge. Moreover,
as it turns out, Holmes's Rule 29 Motion was futile. Because
second-degree murder carries a mandatory life sentence, the trial
judge had no discretion in sentencing, and thus had no authority to
revise or revoke Holmes's sentence. See Commonwealth v. Cowan, 664
N.E.2d 425, 427 (Mass. 1996). Similarly, Holmes's anticipated
post-sentencing cooperation with the government could not serve as
a basis for his Rule 29 Motion. See Commonwealth v. Barclay, 676
N.E.2d 1127, 1129 (Mass. 1997) (observing that Massachusetts law
prohibits the consideration of post-sentencing conduct when ruling
on a motion to revise or revoke).
Holmes claims that in June of 2000, through his research
in the prison law library,1 he learned of the futility of his Rule
1
It is not clear which prison Holmes was in when he learned this.
He is presently serving his life sentence at the Massachusetts
Correctional Institution at Cedar Junction ("MCI-Cedar Junction"),
but the record does not indicate when Holmes was transferred there
from MCI-Concord.
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29 Motion. On August 14, 2000, Holmes filed pro se a separate
motion to withdraw his guilty plea and obtain a new trial, alleging
that Graham was constitutionally ineffective. See Mass. R. Crim.
P. 30 ("Rule 30"). Holmes claims that his discovery of the
futility of his Rule 29 Motion is what prompted him to file his
Rule 30 Motion.
On May 11, 2003, Graham sent a letter to Holmes in
response to letters Holmes had sent him on December 31, 2002 and
April 28, 2003. Graham confirmed that during plea negotiations,
Holmes and Graham discussed with the prosecutor the possibility of
filing a motion to revise and revoke if the prosecutor decided she
wanted information from Holmes. However, Graham denied that Holmes
accepted the plea deal solely on the basis of this possibility;
rather, Graham said he had advised Holmes to accept the plea to
second-degree murder regardless of whether the prosecutor wanted
information because Holmes was "facing a significant risk of a
first degree murder conviction." In addition, Graham said that he
had been "neither optimistic nor pessimistic regarding the revise
and revoke," and that he had "reported it to [Holmes] as a
possibility mentioned by the prosecutor."
Holmes wrote back to Graham on June 14, 2003, insisting
that Graham had "assured" him that the judge would grant the motion
to revise and revoke if the prosecutor wanted information from
Holmes regarding Nakia Mitchell ("Mitchell"), another possible
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suspect in Richardson's killing. In response, on August 25, 2003,
Graham denied that he had "assured" Holmes that the judge would
grant a motion to revise and revoke. Graham also reiterated that
there was never any commitment from the prosecutor to use Holmes's
information about Mitchell. "Since she [the prosecutor] decided
not to proceed," Graham wrote, "there was not and is not any
possibility of filing [a motion to revise or revoke]."
"Therefore," Graham continued, "whether a judge would or would not
have allowed such a motion is a moot point."
On August 4, 2004, Holmes filed an Amended Motion to
Withdraw Guilty Plea and for a New Trial. This amended Rule 30
Motion included the claim that Holmes would not have pled guilty
had he known that the Rule 29 Motion would have been futile. After
successive denials of the Rule 30 motion by the trial court, the
intermediate appellate court, and the Supreme Judicial Court
("SJC"), the SJC denied Holmes's final petition for reconsideration
on September 11, 2007.
On April 9, 2008, Holmes filed a pro se petition for a
writ of habeas corpus in the U.S. District Court for the District
of Massachusetts pursuant to 28 U.S.C. § 2254. Holmes raised four
claims of ineffective assistance of counsel. Ground One of
Holmes's petition was that he was induced to plead guilty based on
Graham's faulty assurance that Holmes would be able to reduce his
sentence via a Rule 29 motion. Grounds Two through Four raised
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various complaints about alleged deficiencies in Graham's pre-trial
strategy and his investigation of the case. Respondents Luis
Spencer, Superintendent of MCI-Cedar Junction, and Martha Coakley,
Attorney General of Massachusetts (collectively, "Respondents"),
moved to dismiss Holmes's petition on the ground that it was
untimely under AEDPA.
AEDPA imposes a one-year statute of limitations on
federal habeas petitions filed by state prisoners. See 28 U.S.C.
§ 2244(d)(1). That one-year period commences when the petitioner's
conviction becomes final (or when the petitioner could have
reasonably discovered the factual basis for his habeas claim,
whichever occurs later), but excludes, inter alia, any time during
which he has an application for collateral review pending before
the state courts. Id. at § 2244(d)(1), (2). Respondents contended
that Holmes's Rule 30 motion did not save Holmes's habeas corpus
petition from untimeliness because Holmes filed the Rule 30 motion
after AEDPA's one-year limitations period had already expired.
In opposition to Respondents' motion, Holmes argued that
his Rule 29 Motion, filed on June 17, 1998 (less than two months
after his guilty plea), tolled the AEDPA statute of limitations.
Holmes also argued that the statute of limitations should be
equitably tolled because the state trial court never ruled on his
Rule 29 Motion. In response to Holmes's opposition, Respondents
filed a Reply Memorandum in support of their motion to dismiss.
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Respondents argued that the Rule 29 Motion did not toll the statute
of limitations. In support of this position, Respondents cited to
cases from the District of Massachusetts that held that a Rule 29
motion was not a motion seeking "post-conviction or collateral
review" as required by 28 U.S.C. § 2244(d)(2). See, e.g., Phillips
v. Spencer, 477 F. Supp. 2d 306, 310 (D. Mass. 2007). Respondents
also argued that the statute of limitations should not be equitably
tolled.
On October 1, 2008, the district court denied
Respondents' motion to dismiss. The court noted that under 28
U.S.C. § 2244(d)(1)(D), the one-year statute of limitations under
AEDPA may begin to run from "the date on which the factual
predicate of the claim or claims presented could have been
discovered through the exercise of due diligence." The court held
that there was a factual question regarding when Holmes could have
discovered Graham's alleged mistake regarding the Rule 29 Motion.
The court then held that dismissal would be inappropriate until
this question was resolved. The court did not address Holmes's
Rule 29 or equitable tolling arguments.
Respondents filed a Renewed Motion to Dismiss on
February 6, 2009. First, Respondents contended that Holmes's
attempt to rely on § 2244(d)(1)(D) to toll the statute of
limitations only applied to Ground One of his petition, which was
the claim that Graham provided ineffective assistance by suggesting
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the Rule 29 Motion. Respondents argued that Grounds Two through
Four, which all related to complaints about Graham's assistance
before the plea agreement, were time-barred regardless of whether
Ground One was timely or not. As to the timeliness of Ground One,
Respondents argued that Holmes's discovery of Graham's alleged
error regarding the possibility of a Rule 29 motion was not the
"factual predicate" giving rise to Holmes's claim for the purposes
of § 2244(d)(1)(D); rather, Respondents argued that the alleged
deal with the prosecutor was the factual predicate for the claim.
Therefore, Respondents argued, since Holmes knew of the deal as of
May 1, 1998 (the date he pled guilty), the statute of limitations
would still have expired on May 1, 1999.
Respondents further argued that even if the impossibility
of the Rule 29 motion was the "factual predicate" for § 2244(d)
(1)(D) purposes, Holmes failed to show that he could not have
"discovered" this fact "through the exercise of due diligence"
before the summer of 2000. Respondents noted that when Holmes
filed his Rule 29 motion on June 17, 1998, he stated that at some
later date he would request a hearing in front of the sentencing
judge. However, Holmes never requested a hearing and never
explained why he did not do so. Respondents argued that had Holmes
requested a hearing, he would have learned that his motion was
futile. Moreover, Respondents contended that Holmes did not
adequately explain why it took so long to discover the
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impossibility of a Rule 29 Motion through his own research in the
library.
Holmes, now represented by counsel, filed an Opposition
to the Renewed Motion to Dismiss on March 5, 2009. In his
Opposition, Holmes argued that the fact of the impossibility of the
Rule 29 Motion was the "factual predicate" for his claim, and
argued that he could not have discovered this fact until the summer
of 2000. Holmes also argued that the statute of limitations should
be equitably tolled due to Graham's alleged ineffective assistance
and because Holmes was trying to pursue his claims while
incarcerated. Finally, Holmes argued that as long as at least one
claim in his habeas corpus petition was timely, his entire petition
was timely. Holmes did not renew his argument that the Rule 29
Motion tolled the statute of limitations.
The district court granted the Renewed Motion to Dismiss
on September 16, 2009. The court held that Holmes failed to show
that his claim regarding his discovery of Graham's error accrued in
2000. The court also held that Graham's claims under Grounds Two
through Four were time-barred. The court did not reach the
question of whether the timeliness of the petition should be
determined on a claim-by-claim basis. The district court granted
a Certificate of Appealability ("COA"), see 28 U.S.C. § 2253(c),
and this appeal followed.
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After Holmes filed his appeal, this Court issued its
decision in Kholi v. Wall, in which we concluded "that the filing
of a state post-conviction motion to reduce an imposed sentence, in
the nature of a plea for discretionary leniency, tolls the AEDPA's
limitations period." 582 F.3d 147, 149 (1st Cir. 2009).
Therefore, this Court ordered the appointment of counsel for Holmes
and directed the parties to brief the question of whether, under
Kholi, Holmes's Rule 29 Motion tolled the limitations period.
Later, while this case was still pending, the Supreme Court upheld
this court's decision in Kholi. See Wall v. Kholi, 131 S. Ct. 1278
(2011).
II. Discussion
For purposes of this appeal, the parties agree that
Holmes's conviction became final on May 1, 1998. They also agree
that his Rule 30 Motion qualified as an application for collateral
review, thereby excluding the interval between August 14, 2000 and
September 11, 2007 from AEDPA's one-year calculus.2 See 28 U.S.C.
2
For the reader's convenience, we set forth here a chronology of
the relevant dates:
May 1, 1998: Petitioner pleads guilty and is sentenced to life
imprisonment.
June 17, 1998: Rule 29 motion to revise or revoke filed in the
trial court.
August 14, 2000: Rule 30 motion to withdraw guilty plea and obtain
a new trial filed in the trial court.
September 11, 2007: After a succession of timely appeals, the SJC
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§ 2244(d)(1), (2). The 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 and April 9, 2008. Holmes
proposes two such bases under the provisions of AEDPA itself: (1)
that the limitation period did not even begin to run until August
of 2000, when he discovered the purported factual basis for his
primary habeas claim, viz., that his trial attorney's Rule 29
advice was erroneous; and (2) that the statute of limitations was
tolled while his Rule 29 Motion was pending. In the alternative,
Holmes argues that the statute of limitations should be equitably
tolled. We analyze these arguments in turn.
A. Scope of Issues on Appeal
Before proceeding to the substance of this case, we first
clarify which issues are properly before this Court. Under 28
U.S.C. § 2253(c), there can be no appeal from a final order in a
federal habeas corpus proceeding challenging a state court action
unless either the district court judge or a judge on a Court of
Appeals issues a COA. The COA must identify the issues to be
appealed. 28 U.S.C. § 2253(c)(3).3 "The general rule is that 'a
denies the final petition for reconsideration of the Rule 30
motion, thereby exhausting the petitioner's state remedies.
April 9, 2008: Petition for federal habeas relief filed.
3
"[W]hen the district court denies a habeas petition on
procedural grounds without reaching the prisoner's underlying
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court of appeals should not consider the merits of an issue
advanced by a habeas petitioner unless a COA first has been
obtained with respect to that issue.'" Peralta v. United States,
597 F.3d 74, 83 (1st Cir. 2010) (emphasis in original) (quoting Bui
v. DiPaolo, 170 F.3d 232, 237 (1st Cir. 1999)). However, this
Court has the discretion to expand the scope of the COA sua sponte,
particularly for an issue the parties have adequately briefed. See
Joost v. United States, 226 F. App'x 12, 12 (1st Cir. 2007)
(expanding the scope of the COA sua sponte to affirm on the basis
of the merits of a claim where the COA was initially granted solely
to determine the timeliness of petitioner's habeas petition)
(citing Villot v. Varner, 373 F.3d 327, 337 n.13 (3d Cir. 2004)).
Here, the district court granted a COA identifying two
issues. The first is "whether the statutory impossibility of the
[Rule 29 Motion] should be decisive" of the timeliness question.
Thus, the question of whether Holmes's discovery of Graham's
alleged error in 2000 is a "factual predicate" for the purposes of
the AEDPA statute of limitations is properly before this Court.
The second issue on which the district court granted a COA is
constitutional claim, a COA should issue (and an appeal of the
district court's order may be taken) if the prisoner shows, at
least, that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right, and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling." Slack v.
McDaniel, 529 U.S. 473, 478 (2000).
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whether the timeliness of Holmes's petition should be determined on
a claim-by-claim basis.
Furthermore, as noted above, after Holmes filed his
appeal, this Court directed the parties to brief the question of
whether, under Kholi, the Rule 29 Motion tolled the limitations
period. Thus, that issue is properly before this Court, even
though it was not mentioned in the COA. Finally, the question of
whether a statute of limitations should be equitably tolled is
fundamentally intertwined with the question of timeliness. See,
e.g., Sistrunk v. Rozum, 674 F.3d 181, 184, 189-92 (3d Cir. 2012)
(considering a habeas petitioner's equitable tolling argument where
the COA limited review to "whether [the petitioner's] habeas
petition was timely filed according to 28 U.S.C. § 2244(d)(1)(D)");
Humphreys v. United States, 238 F. App'x 134, 138 (6th Cir. 2007)
(suggesting that several courts have held that the use of the words
"equitable tolling" in the COA does not preclude the consideration
of a habeas petitioner's timeliness arguments). Thus, this Court
is free to consider whether the AEDPA statute of limitations should
be tolled in this case.
B. Application of Statute of Limitations
"Where, as here, the district court has denied a habeas
petition on a procedural ground without taking evidence, we afford
de novo review." Wood v. Spencer, 487 F.3d 1, 3 (1st Cir. 2007).
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1. Discovery of Factual Predicate
Under 28 U.S.C. § 2244(d)(1), the statute of limitations
runs from the "latest" of several specified dates. One such date
is "the date on which the factual predicate of the [habeas claim]
could have been discovered through the exercise of due diligence."
Id. § 2244(d)(1)(D). Holmes argues that the factual predicate for
his primary ineffective assistance of counsel claim is the "fact"
that the alleged deal with the prosecutor regarding the Rule 29
Motion was precluded as a matter of law. Further, he argues that
he could not have discovered this fact through the exercise of due
diligence until the summer of 2000. Thus, Holmes argues, the
statute of limitations on his habeas claim did not even start to
run until he filed his Rule 30 Motion in August of 2000.
However, Holmes's argument misconstrues the language of
the statute. We have interpreted § 2244(d)(1)(D)'s reference to
the phrase "factual predicate" to mean "evidentiary facts or
events[,] and not court rulings or legal consequences of the
facts." Brackett v. United States, 270 F.3d 60, 69 (1st Cir.
2001), abrogated on other grounds by Johnson v. United States, 544
U.S. 295 (2005). Here, Holmes claims that Graham's strategy to
enter a guilty plea and file a Rule 29 motion was constitutionally
deficient. The principal facts upon which this claim is predicated
-- that Holmes originally intended to go to trial; that his
attorney instead convinced him to plead guilty; and that this
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course of action was influenced by his expectation of a subsequent
sentence reduction -- were known, at the latest, by the date of his
conviction on May 1, 1998. That this advice may have been flawed,
and could potentially form the foundation for an ineffective
assistance claim, are the legal consequences of those facts --
matters of law that are beyond the purview of § 2244(d)(1)(D). See
Brackett, 270 F.3d at 69; Murphy v. Strack, 9 F. App'x 71, 73 (2d
Cir. 2001) (summary order) ("The factual predicates of [the
petitioner's] claims are that he testified at his trial and that
his attorney told him he was required to testify. . . . What [the
petitioner] contends he did not know prior to 1999 was not a
factual matter but rather a matter of law, i.e., his constitutional
right not to testify. The latter is beyond the scope of § 2244(d)
(1)(D)."); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000)
("Unlike some state systems, which start the [limitation period]
only when a party knows (or should recognize) that a legal wrong
has been done, [§ 2244(d)(1)(D)] use[s] objective indicators as
triggers. [. . .] Time begins when the prisoner knows (or through
diligence could discover) the important facts, not when the
prisoner recognizes their legal significance."). Thus, in all
events, Holmes's discovery that his attorney's advice was allegedly
misleading, while unfortunate, is ultimately unavailing under the
language of § 2244(d)(1)(D).
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2. Rule 29 Motion
As discussed above, we reject Holmes's argument that the
one-year clock began to run in August of 2000. The statute of
limitations thus began to run on May 1, 1998, the date Holmes's
conviction became final. However, under 28 U.S.C. § 2244(d)(2),
"[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 [section 2244(d)]" (emphasis added).
Holmes argues that his Rule 29 Motion, like his Rule 30 Motion, was
an application for collateral review, and therefore tolled the
limitation period while the Rule 29 motion was pending.4
The threshold issue is whether a Rule 29 motion comes
within the scope of AEDPA's tolling provision at all -- in other
words, whether it should be characterized as an "application for
State post-conviction or other collateral review." See id. At the
time when the district court dismissed the habeas petition, the
4
Holmes made this argument in the district court in opposition to
his original motion to dismiss, but elected not to assert it in
reply to the Commonwealth's renewed motion to dismiss. While it
could be argued that Holmes forfeited this claim, we do not believe
the circumstances warrant a finding of forfeiture here. In
response to Holmes's original Rule 29 argument, Respondents cited
case law from the District of Massachusetts holding that a Rule 29
motion is not an "application for State post-conviction or other
collateral review" within the meaning of § 2244(d)(2). Those cases
were good law at the time. This Court revived the Rule 29 issue
when it sua sponte ordered the parties to address the effect of
Kholi.
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prevailing precedent suggested that a motion to revise or revoke
was not the type of post-conviction application for review
envisioned by § 2244(d)(2), and thus would not exclude any time
from the statutory limitations period. See, e.g., Phillips, 477 F.
Supp. 2d at 306 (holding that a Rule 29 motion is not a "collateral
attack" under § 2244(d)(2) because it is part and parcel of the
underlying proceeding in which the defendant was sentenced); Ledoux
v. Dennehy, 327 F. Supp. 2d 97, 99-100 (D. Mass. 2004); Bland v.
Hall, No. 00-12020-RWZ, 2002 WL 989532, at *2 (D. Mass. May 14,
2002). Within a week of the district court's order, however, we
issued Kholi v. Wall, 582 F.3d 147 (1st Cir. 2009), aff'd, Wall v.
Kholi, 131 S. Ct. 1278 (2011). In Kholi we held that "the filing
of a state post-conviction motion to reduce an imposed sentence, in
the nature of a plea for discretionary leniency, tolls the AEDPA's
limitations period." 582 F.3d at 149; see also Wall, 131 S. Ct. at
1287 ("[A] motion to reduce sentence under Rhode Island law is an
application for 'collateral review' that triggers AEDPA's tolling
provision.").
Kholi concerned a provision of Rhode Island procedural
law, Rhode Island Superior Court Rule of Criminal Procedure 35(a).
See Kholi, 582 F.3d at 151. However, we see no reason why its
holding should not apply with equal force here. Indeed, we can
discern no basis (nor do the parties supply one) for meaningfully
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distinguishing the Massachusetts rule from the Rhode Island rule.5
Accordingly, we conclude that a motion to revise or revoke sentence
under Massachusetts Rule of Criminal Procedure 29(a) constitutes a
request for "State post-conviction or other collateral review"
within the meaning of AEDPA. See 28 U.S.C. § 2244(d)(2).
Thus, Holmes's Rule 29 Motion was a request for "State
post-conviction or other collateral review" within the meaning of
AEDPA. To toll the statute of limitations, however, the motion
must have been "properly filed." Id. In order to determine
whether the motion was properly filed, we must look to
Massachusetts law. See Artuz v. Bennett, 531 U.S. 4, 8 (2000)
(holding that an application for post-conviction review is
"properly filed" for § 2244(d)(2) purposes when "its delivery and
acceptance are in compliance with the applicable laws and rules
governing filings").
5
For the sake of comparison, we include the pertinent language of
the two rules:
Rhode Island Rule 35(a):
"The court may correct an illegal sentence at any time. The court
may correct a sentence imposed in an illegal manner and it may
reduce any sentence when a motion is filed. . . ." R.I. Super. Ct.
Rule Crim. Proc. 35(a).
Massachusetts Rule 29(a):
"The trial judge upon his own motion or the written motion of a
defendant . . . may, upon such terms and conditions as he shall
order, revise or revoke such sentence if it appears that justice
may not have been done." Mass. R. Crim. P. 29(a).
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Respondents argue that Holmes's Rule 29 Motion was
improper under Commonwealth v. DeJesús, in which the SJC stated
that "to be properly filed, a [Rule 29] motion to revise or revoke
must be accompanied by an affidavit, or otherwise indicate the
grounds on which it is based." 795 N.E.2d 547, 552 (Mass. 2003)
(emphasis added). Here, it is undisputed that Holmes's Rule 29
Motion and accompanying Affidavit did not specify the grounds on
which the Motion was based. Therefore, Respondents argue, under
DeJesús, the Rule 29 Motion was not "properly filed" and did not
toll the statute of limitations. Holmes counters by noting that
DeJesús, which was the first case to expressly delineate such a
stringent filing requirement, was decided more than five years
after he filed his Rule 29 motion. Therefore, he argues, it would
be unfair to apply DeJesús retroactively to his Rule 29 Motion.
We sympathize somewhat with Holmes's argument that
applying DeJesús retroactively would be unfair. Nevertheless, we
must look to Massachusetts law to decide whether to apply DeJesús
retroactively, see Artuz, 531 U.S. at 8, and Massachusetts law
favors Respondents. Several Massachusetts courts have applied
DeJesús retroactively to Rule 29 motions that were filed prior to
the issuance of the DeJesús decision in 2003. See, e.g.,
Commonwealth v. Fenton F., 809 N.E.2d 1005, 1011 (Mass. 2004)
(finding that a trial attorney's failure to file a Rule 29 motion
in 1993, where he believed that no grounds existed to reduce the
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defendant's sentence, was not ineffective assistance of counsel
because "one cannot file a motion to revise or revoke without
stating the grounds on which it is based"); Commonwealth v.
Niditch, 883 N.E.2d 341, at *1 (Mass. App. Ct. 2008) (unpublished
order) (noting that defendant's "perfunctory" motion to revise or
revoke, filed on January 6, 1998, was improper because it was not
"accompanied by an affidavit, [and did not] otherwise indicate the
grounds on which it [was] based"); Commonwealth v. Glover, 823
N.E.2d 436, at *1 (Mass. App. Ct. 2005) (unpublished order)
(holding that a Rule 29 motion filed prior to DeJesús was
"defective in that it was not accompanied by the required affidavit
as specified by [R]ule 29(b), [and] did [not] adequately state the
grounds for relief in order to be considered properly filed"); see
also Commonwealth v. Hernandez, 868 N.E.2d 183, at *1 (Mass. App.
Ct. 2007) (unpublished order) ("The defendant argues that [R]ule 29
allows a defendant to file a revise and revoke motion and then, at
some unspecified time later, to file supplemental affidavits that
activate the originally filed motion. We disagree with this novel
construction of [R]ule 29."). But see Commonwealth v. Oliver, 905
N.E.2d 604, at *1 (Mass. App. Ct. 2009) (unpublished order)
(signaling, in dicta, a reluctance to apply the standard from
DeJesús to a Rule 29 motion filed in 1999, and denying the motion
on other grounds). We therefore conclude that DeJesús does apply
to Holmes's Rule 29 Motion, and further conclude that, under
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DeJesús, the motion was not "properly filed" for AEDPA purposes,
and therefore cannot serve as a tolling mechanism under 28 U.S.C.
§ 2244(d)(2).
C. Equitable Tolling
As a fallback position, Holmes maintains that the
district court should have resuscitated his otherwise time-barred
petition as a matter of equity. Generally, the doctrine of
equitable tolling enables a court to extend a statute of
limitations for equitable reasons not acknowledged in the language
of the statute itself. See Neverson v. Farquharson, 366 F.3d 32,
40 (1st Cir. 2004). Its application, however, is limited to rare
and exceptional cases; equitable tolling is "the exception rather
than the rule . . . [and] resort to its prophylaxis is deemed
justified only in extraordinary circumstances." Trapp v. Spencer,
479 F.3d 53, 59 (1st Cir. 2007) (internal citation omitted). To
establish a foundation for equitable tolling in the federal habeas
context, a petitioner must demonstrate "'(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way' and prevented timely filing."
Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). "We apply equitable
tolling on a case-by-case basis, avoiding mechanical rules and
favoring flexibility." Ortega Candelaria v. Orthobiologics LLC,
-22-
661 F.3d 675, 680 (1st Cir. 2011) (citing Holland, 130 S. Ct. at
2563).
We review the district court's decision to deny equitable
tolling for abuse of discretion. See Riva v. Ficco, 615 F.3d 35,
40 (1st Cir. 2010). "Abuse of discretion is not a monolithic
standard of review; 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." Id.
Holmes raises two arguments that he made in the district
court in response to Respondents' Renewed Motion to Dismiss: (1)
that the statute should be equitably tolled because of Graham's
alleged ineffective assistance; and (2) that the statute should be
equitably tolled because he was incarcerated. We reject both of
these arguments. However, in light of our holding today regarding
the effect of Kholi -- an issue that was never before the district
court -- we find that there may be grounds for equitably tolling
the statute of limitations due to the circumstances surrounding the
filing of Holmes's Rule 29 Motion.
1. Arguments Raised in Response to Renewed Motion to
Dismiss
Holmes first claims that "the unique and extraordinary
circumstances of this case -- a plea to a life sentence based on
egregiously incompetent advice of trial counsel -- require
equitable intervention." This argument misapplies the relevant
-23-
standard. AEDPA's statute of limitations will not be equitably
tolled merely because the underlying grounds for habeas relief are
extraordinary; rather, the "extraordinary circumstance" must be one
that actually caused the untimely filing. See Holland, 130 S. Ct.
at 2562; Barreto-Barreto v. United States, 551 F.3d 95, 101 (1st
Cir. 2008) (noting that the "extraordinary circumstances" standard
focuses on the circumstances surrounding the late filing of the
habeas petition, rather than the circumstances surrounding the
underlying action). The advice given to Holmes by his counsel,
regardless of its level of alleged incompetence, did not "st[an]d
in his way and prevent [the] timely filing" of his habeas petition.
Holland, 130 S. Ct. at 2562.
Second, Holmes contends that he is entitled to equitable
tolling because he was incarcerated, had no prior legal training,
and received limited access to the prison's purportedly scant
selection of legal resources. These circumstances are not
extraordinary. To be sure, in unusual cases, certain limitations
of imprisonment may rise to the level of "extraordinary
circumstance" -- for example, where a penitentiary's library does
not possess the legal materials necessary to adequately pursue
relief, see, e.g., Moore v. Battaglia, 476 F.3d 504, 506-08 (7th
Cir. 2007) -- but such is not the case here. Holmes does not
specify how the prison library's materials were inadequate, nor
does he allege that they were withheld from use altogether. In
-24-
fact, he presents nothing to differentiate his conditions of
imprisonment from those of any other inmate. If we tolled AEDPA's
limitation period every time a prisoner with no legal training had
his library time strictly regulated, § 2244(d) might as well not
exist; few prisoners are lawyers, and few prisons offer their
occupants unfettered library access. "[T]he usual problems
inherent in being incarcerated do not justify equitable tolling."
Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir. 2003). See
also Baker v. Norris, 321 F.3d 769, 771-72 (8th Cir. 2003) (no
tolling where prisoner granted only limited access to library);
Delaney v. Matesanz, 264 F.3d 7, 15 (1st Cir. 2001) (no equitable
tolling where the prisoner was acting pro se, and proclaimed
himself to have been ignorant of the applicable law).
2. Equitable Tolling in Light of Kholi
As discussed above, see Section II(B)(2), supra, we have
held, in light of Kholi, that a motion to revise or revoke a
sentence under Mass. R. Crim. P. 29(a) constitutes a request for
"State post-conviction or other collateral review" within the
meaning of AEDPA. See 28 U.S.C. § 2244(d)(2). We have further
held that Holmes's Rule 29 Motion was not "properly filed" for
AEDPA purposes because neither the Motion nor the accompanying
Affidavit specified the grounds on which the Motion was based. If
the Rule 29 Motion was not "properly filed," then the statutory
tolling mechanism of § 2244(d)(2), which is triggered only by
-25-
"properly filed application for State post-conviction or other
collateral review" (emphasis added), does not apply, and Holmes's
petition is untimely. We are troubled, however, by the possibility
that at the time Holmes filed his Rule 29 Motion, he was led to
believe that his Motion was in fact properly filed, even though it
would later prove to have been improper. Thus, there may be a
basis in equity for excluding the time during which Holmes's Rule
29 Motion was pending from the statutory limitations period.
A Rule 29 motion must be filed within sixty days after
"the imposition of a sentence . . . receipt by the trial court of
a rescript issued upon affirmance of the judgment or dismissal of
the appeal, . . . [or] entry of any order or judgment of an
appellate court denying review of, or having the effect of
upholding, a judgment of conviction." Mass. R. Crim. P. 29(a).
Holmes claims that in 1998, when he filed his motion, the practice
of filing a "placeholder" motion and affidavit to satisfy the 60-
day filing deadline was standard. He advances three arguments in
support of this position. First, Holmes contends that the practice
of filing placeholder motions had been tacitly endorsed by
Massachusetts courts. Second, Holmes argues that the practice was
recognized as standard among criminal defense attorneys. Finally,
he contends that prison procedures in 1998 reflected the widespread
acceptance of this practice.
-26-
First, Holmes identifies two cases to support the
proposition that prior to DeJesús, Massachusetts courts tacitly
permitted the filing of unsupported Rule 29 motions. See
Commonwealth v. McGuinness, 658 N.E.2d 150 (Mass. 1995);
Commonwealth v. Bland, 724 N.E.2d 723 (Mass. App. Ct. 2000).
However, each is inapposite. In McGuinness, the defendant filed a
Rule 29 motion at the court's behest, for reasons proffered by the
trial judge, thus obviating the need to provide any underlying
grounds. 658 N.E.2d at 150-51. Even less helpful, in Bland, the
defendant's motion to revise or revoke did include a substantive,
albeit ultimately inadequate, foundation. 724 N.E.2d at 724 n.3.
Furthermore, our own independent survey of Massachusetts cases only
confirms the dearth of jurisprudential support. We found a single
case, Commonwealth v. Amirault, 612 N.E.2d 631 (Mass. 1993), in
which the merits of a Rule 29 motion were considered where no
supporting affidavits were filed. There, however, the court
acknowledged but declined to address the Commonwealth's argument
that the motion was facially defective for its failure to present
any basis for relief, instead disposing of the motion on
alternative grounds. Id. at 633 n.6.
Holmes next contends that filing a placeholder Rule 29
motion was considered standard practice by the criminal defense bar
in Massachusetts in 1998. Holmes points to the following excerpt
from a 1990 edition of Massachusetts Criminal Defense:
-27-
[S]imply file the [Rule 29] motion with a
cover letter to the clerk indicating that the
defendant is not requesting a hearing or any
other action at that time. Even in cases
where at the time of imposition of sentence
the possibility of a subsequent reduction may
appear extremely remote or nonexistent, the
passage of time may reveal circumstances that
were overlooked and should have been
considered at the time sentence was imposed.
Blumenson, Fisher & Kanstroom, Massachusetts Criminal Defense,
§ 43.3D, at 44-10 (1990) (emphasis added). The 1998 edition of the
same treatise notes: "The Rule 29 procedure is designed to address
precisely this problem, but it is unavailable unless a timely
motion is filed, and often the deadline for filing such a motion
passes before the ultimate and meritorious grounds for relief are
discovered." 2 Eric Blumenson, et al., Massachusetts Criminal
Practice § 44.3C, at 547 (2d ed. 1998). The manual goes on to
advise that "[w]here a defendant does not seek an immediate hearing
or ruling on the motion, an affidavit is still required to preserve
the defendant's rights under the rule. A more complete
supplemental affidavit could be offered at a later time when the
defendant requests hearing on the motion." Id. at 548 (emphasis
added).
It is true that the treatise cited by Holmes does not
explicitly say that a Rule 29 motion that does not list the grounds
on which it is based is properly filed. However, if an affidavit
is needed to "preserve the defendant's rights," id. at 548, but the
facts underlying the motion might not be discovered until after the
-28-
60-day deadline, common sense suggests that the most prudent course
of action for a prisoner was to file a placeholder Rule 29 motion
and affidavit.6 We find that this fact lends some support to
Holmes's contention that the Rule 29 Motion he filed in 1998
accorded with standard practice at the time.
Finally, Holmes claims that in 1998, all newly-sentenced
prisoners were given boilerplate motions and supporting affidavits
when they arrived at MCI-Concord. Holmes points to no rule or
regulation showing that this was the case; however, Holmes's Rule
29 Motion and Affidavit are in the record, and they appear to
support Holmes's position. Both the Motion and Affidavit appear to
be standard forms that were given to Holmes by prison officials;
both are type-written forms with spaces in which Holmes hand-wrote
certain biographical information. The Motion lists MCI-Concord as
Holmes's address, with a space in which Holmes hand-wrote his cell
number. It thus seems quite likely that, as Holmes claims, prison
officials provided him with these boilerplate forms. If in fact
this was the case, then Holmes may have been led to believe that
his filing of a placeholder Motion and Affidavit was sufficient for
Rule 29, even if it was not actually so.
6
Indeed, the 1998 edition of Massachusetts Criminal Practice
stated: "In the absence of serious and substantial reasons not to
file a motion [such as impossibility] . . . it is arguable that the
standards for effective representation require defense counsel to
file a timely motion to revise and revoke the sentence . . . ."
Id. at 547.
-29-
If Holmes was led to believe in 1998 that it was standard
practice to file a placeholder motion and affidavit, then he may
have a plausible claim for equitable relief. Equitable tolling
requires that Holmes demonstrate "that he has been pursuing his
rights diligently." Holland, 130 S. Ct. at 2562 (internal
quotation marks omitted). However, the diligence required for
equitable tolling purposes is "'reasonable diligence,' not
'maximum feasible diligence.'" Id. at 2565 (quoting Lonchar v.
Thomas, 517 U.S. 314, 326 (1996); Starns v. Andrews, 524 F.3d 612,
618 (5th Cir. 2008)). If Holmes did what he reasonably thought was
necessary to preserve his rights by filing a placeholder motion,
based on information he received from prison officials, then he can
hardly be faulted for not acting more "diligently" than he did. It
is true, as the dissent notes, that after filing his placeholder
motion Holmes failed to request a hearing for over two years.
However, Holmes's correspondence with Graham suggests that Holmes
may have been waiting to learn whether the prosecutor wanted
information from him about Mitchell. If so, Holmes's delay may not
be incompatible with a showing of diligence, but that is a
determination best left to the District Court to make in the first
instance.
Equitable tolling also requires Holmes to show "that some
extraordinary circumstance stood in his way and prevented timely
filing." Id. at 2562 (internal quotation marks omitted). We have
-30-
noted that equitable tolling may apply to AEDPA where a prisoner
was "actively misled" in a way that caused him to miss the filing
deadline. Delaney, 264 F.3d at 15. If in fact prison officials
intentionally or inadvertently caused Holmes to believe that his
filing was sufficient, this might qualify as an "extraordinary
circumstance."
The Fifth Circuit addressed a somewhat similar situation
in Williams v. Thaler, 400 Fed. App'x 886 (5th Cir. 2010). There,
the petitioner was repeatedly misinformed by the state court system
that his state habeas petition was pending when, in fact, it had
already been denied. Id. at 887. When the petitioner eventually
learned the truth, he promptly filed a federal habeas petition, and
the Fifth Circuit held that equitable tolling was appropriate. See
id. at 892-93.
Here, we cannot say what the result should be because the
record does not contain sufficient facts. There is nothing in the
record to indicate what additional information, if any, Holmes was
given about the filing requirements under Rule 29. In particular,
we do not know if Holmes was told the boilerplate forms he filed
were sufficient for Rule 29 purposes, or if he was told that more
detail was required. The district court had no reason to consider
the facts surrounding the filing of the Rule 29 Motion because
prior to Kholi, the Rule 29 issue was a non-starter; even if the
court had invoked equitable principles to treat the motion as
-31-
"properly filed," the motion would not have counted as a motion
seeking "post-conviction or collateral review" for AEDPA purposes.
Now, however, in light of our holding regarding the treatment of
Rule 29 motions under Kholi, the calculus has changed.
The dissent argues that we should not consider any
equitable tolling argument with respect to the Rule 29 Motion
because Holmes has waived any such argument. The dissent first
faults Holmes for not having argued that his Rule 29 Motion was
properly filed until his reply brief. See post at 38, 43 n.8
(Howard, J., dissenting). In particular, the dissent notes that
this court explicitly instructed the parties to address the effect
of Kholi in their opening briefs. See post at 43 n.8. Holmes did
address Kholi in his opening brief in arguing that his Rule 29
Motion was a motion seeking "post-conviction or collateral review."
However, at the time Holmes filed his opening brief, the
Commonwealth had never before argued that his Rule 29 Motion was
not "properly filed." This argument first appeared in the
Commonwealth's brief to this Court. In response, in his reply
brief, Holmes argued that his Rule 29 Motion was "properly filed."
Thus, Holmes raised the argument that his motion was "properly
filed" at the earliest point when it was logical to do so, and it
would make no sense to fault him for not having raised it sooner.
The dissent also contends that the equitable tolling
argument is waived because Holmes failed to sufficiently develop
-32-
it. See post at 38-39. The dissent invokes the familiar rule from
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990), that
arguments "adverted to in a perfunctory manner [or] unaccompanied
by some effort at developed argumentation" are waived. See post at
39. It is true that in his reply brief, Holmes never explicitly
referred to "equitable tolling" or "equity" in relation to his
argument that his motion was properly filed. However, Holmes
argued in his reply brief that it would be "fundamentally unfair"
to retroactively apply the DeJesús decision and find that his
motion was not properly filed. We have noted that "[i]n a proper
case, the doctrine of equitable tolling ensures fundamental
fairness." Morris v. Government Dev. Bank, 27 F.3d 746, 750 (1st
Cir. 1994). Thus, we have no trouble reading Holmes's argument as
an appeal to equity, even though Holmes did not use the precise
words "equitable tolling" or "equity." We acknowledge that
Holmes's argument relating to the boilerplate forms could have been
more developed. However, "in certain circumstances we have the
discretion to overlook waiver by inadequate argument." Costa-Urena
v. Segarra, 590 F.3d 18, 30 (1st Cir. 2009) (citation omitted).
This case is a prime candidate for an exercise of such discretion.
Holmes's reply brief reveals enough of the raw materials of an
equitable tolling issue that we will not ignore the issue simply
because Holmes did not put the necessary label on it.
-33-
Furthermore, this is not a situation in which we need to
apply the waiver rule to prevent prejudice to the Commonwealth due
to lack of notice. See post at 38. As noted above, the
Commonwealth first raised the issue of the impropriety of Holmes's
Rule 29 Motion in its brief to this Court. The Commonwealth could
hardly claim that it did not have notice that Holmes might respond
to this argument in his reply brief. Cf. Walker v. Exeter Region
Coop. Sch. Dist., 284 F.3d 42, 47 (1st Cir. 2002) (where appellees
raised argument in opening brief, "prudence dictated that
[appellants] counter with a reply brief showing that the
[appellees] were wrong"). Additionally, since we are instructing
Holmes to make his argument to the district court in the first
instance, the Commonwealth will have ample opportunity to respond.
The dissent also suggests that a remand would be
pointless because Holmes's argument has no merit. The dissent
cites a number of cases in which courts have refused to apply
equitable tolling in light of a prisoner's reliance on faulty
advice by prison staff. See post at 44-46. However, most of the
cited cases deal with faulty advice regarding a filing deadline;
furthermore, in some of these cases, the record made clear that the
petitioner either had access to proper information or was
explicitly told not to rely on the advice offered. See Alexander
v. Schriro, 312 F. App'x 972, 975 (9th Cir. 2009) (no equitable
tolling where prison paralegal gave faulty advice about deadline,
-34-
and where record showed that prisoner was told that paralegals
could not give legal advice); Henderson v. Nooth, No.
3:07-CV-01823-JO, 2012 WL 1801736, at *4 (D. Or. May 16, 2012) (no
equitable tolling despite faulty information from prison paralegal
where record showed that prisoner was given prior written notice of
one-year statute of limitations); Elliott v. Napoli, No.
07-CV-3942, 2010 WL 1816406, at *2 (E.D.N.Y. May 4, 2010); James v.
Hudson, No. 1:07-CV-3651, 2009 WL 111637, 11 at *8 (N.D. Oh. Jan.
15, 2009). Here, in contrast, there is no question that Holmes's
Rule 29 Motion was timely filed; the issue is whether it was
"properly filed."
Figuring out if something is "properly filed" is likely
to be a somewhat more difficult question than simply calculating a
filing deadline. An application is "properly filed" for AEDPA
purposes "when its delivery and acceptance are in compliance with
the applicable laws and rules governing filings." Artuz, 531 U.S.
at 8. Contrary to the dissent, we think it is far from clear, at
least on the record before us, that Holmes had a "wealth of
opportunities to remedy any error and to verify the appropriate
filing procedures." Post at 44. As we noted above, the case law
and commentary regarding Rule 29 procedure at the time Holmes filed
his motion were far from clear. At best they were ambiguous, and
at worst they hinted that Holmes's filing was acceptable. Thus,
even assuming Holmes had availed himself of every opportunity to
-35-
conduct research in the prison law library, it is by no means clear
that he could have ever discovered that his motion was not
"properly filed" under then-existing Massachusetts law.
III. Conclusion
We reject Holmes's argument that the statute of
limitations began to run in August of 2000, and affirm the district
court's holding that the statute of limitations began to run on May
1, 1998. We hold that a properly filed motion under Mass. R. Crim.
P. 29 is a motion seeking "post-conviction or collateral review"
for AEDPA purposes. We further hold that the Rule 29 Motion Holmes
filed in this case was not "properly filed" and thus does not toll
the statute of limitations as a matter of law under AEDPA. We
remand, however, with instructions for the District Court to
consider whether there are grounds for equitable tolling, taking
into account the reasons for Holmes's delay in requesting a hearing
on his Rule 29 Motion as well as whatever information Holmes may
have been given regarding the propriety of his Rule 29 Motion when
he filed it in 1998. In so remanding, we emphasize that it is
Holmes's burden to put forth evidence to show that equitable
tolling is justified, but we leave it to the district court to
determine what steps should be taken, if needed, to further develop
the record. Cf. Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th
Cir. 2000) (remanding to district court for "appropriate
development of the record" on equitable tolling question, observing
-36-
that "the district court is in a better position to develop the
facts and assess their legal significance in the first instance").
The parties did not address the question of whether the
timeliness of a habeas petition should be addressed on a claim-by-
claim basis. Thus, if it becomes necessary, the District Court
should address this issue.
AFFIRMED in part and REMANDED for further proceedings.
"Dissenting opinion follows"
-37-
HOWARD, Circuit Judge (dissenting). Because our decision
to remand rests wholly on a claim for equitable relief that is not
properly before us, I respectfully dissent.
"There are few principles more securely settled in this
court than the principle which holds that, absent exceptional
circumstances, an appellant cannot raise an argument for the first
time in a reply brief." N. Am. Specialty Ins. Co. v. Lapalme, 258
F.3d 35, 45 (1st Cir. 2001). We have long held, "with a regularity
bordering on the monotonous," that such arguments are deemed
waived, and with good reason: an appellee cannot conscionably be
expected to respond, in any meaningful fashion, to claims and
allegations of which it has no prior notice. Waste Mgmt. Holdings,
Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000); see also
Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st
Cir. 1979) (Breyer, J.) ("In preparing briefs and arguments, an
appellee is entitled to rely on the content of an appellant's brief
for the scope of the issues appealed, and appellant generally may
not preserve a claim merely by referring to it in a reply brief or
at oral argument."). Maintaining this adversarial balance
throughout the appellate process is a compelling interest, one that
should be contravened only under extenuating circumstances beyond
the parties' control, e.g., where the applicable law substantially
changes after the opening briefs are submitted. See, e.g., United
States v. Vázquez-Rivera, 407 F.3d 476, 487 (1st Cir. 2005).
-38-
Nor, under equally settled precedent, do we generally
credit arguments that are "adverted to in a perfunctory manner [or]
unaccompanied by some effort at developed argumentation,"
regardless of where they appear in a party's briefs. United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). As we have had
frequent occasion to observe, a court should not be left to "do
counsel's work, create the ossature for the argument, and put flesh
on its bones." Id. We are not mind readers, and to assume that
burden by unilaterally cultivating an appellant's claims raises a
host of concerns, both procedural and substantive.
These are familiar rules of general applicability,
administered with as much force in the habeas context as in any
other. Indeed, we have shown no reluctance to deem arguments
waived, including equitable tolling claims, that were belatedly or
otherwise inadequately raised by petitioners seeking federal habeas
relief. See, e.g., Glacken v. Dickhaut, 585 F.3d 547, 551 (1st
Cir. 2009) (holding that a habeas petitioner waived an argument to
which he devoted only a single line in his opening brief); DeBurgo
v. St. Amand, 587 F.3d 61, 72 n. 14 (1st Cir. 2009) (finding a
claim arguably waived where it comprised only four sentences of the
habeas petitioner's opening brief); Trenkler v. United States, 268
F.3d 16, 26 n. 9 (1st Cir. 2001) (deeming waived a perfunctory
equitable tolling claim raised for the first time at oral
argument); see also McClaran v. Cockrell, 58 Fed. App'x 595, at *1
-39-
(5th Cir. 2003) (holding that a new equitable tolling argument
raised for the first time in a habeas petitioner's reply brief had
been waived); Gomez v. Castro, 47 Fed. App'x 821, 822 n. 2 (9th
Cir. 2002) (same); c.f. Rivera-Muriente v. Agosto-Alicea, 959 F.2d
349, 354 (1st Cir. 1992) ("[The non-habeas appellant] did not make
[the] equitable tolling argument in his opening brief. Rather, the
asseveration surfaced for the first time in his reply brief. It is
well settled in this court, for good reason which need not be
rehearsed here, that a legal argument made for the first time in an
appellant's reply brief comes too late and need not be
addressed.").
On the contrary, these rules should be especially potent
in the realm of equitable tolling, where the claim must identify an
obstacle to timely filing that is both "rare" and "extraordinary";
typically, something patently obvious on the face of the record,
and therefore not easily disregarded by a claimant absent some
dilatory intent. See Trapp v. Spencer, 479 F.3d 53, 59 (1st Cir.
2007) (restricting application of the equitable tolling doctrine to
"extraordinary circumstances"). Thus, without a truly exceptional
reason -- something beyond the notion that this might be a
petitioner's last bite at the apple -- we should not revive tardy
or perfunctory equitable tolling arguments which "the party who
seeks to invoke [the doctrine] bears the burden of establishing
. . . ." Delaney v. Matesanz, 264 F.3d 7, 14 (1st Cir. 2001).
-40-
Yet, here, although the record is devoid of any
discernibly exceptional circumstances, we remand for consideration
of an equitable tolling argument that plainly fails to clear either
of these long-standing procedural hurdles. The petitioner's
briefing is unequivocal -- he advances two, and only two,
cognizable grounds for equitable relief: (1) the allegedly
egregious nature of his trial counsel's Rule 29 advice; and (2) the
prison's purportedly draconian library policies. Both are ably
dispatched by the majority, and that should be the end of it.
Instead, we solicit further deliberation on a "third"
equitable tolling argument: that the petitioner was misled by the
prison's boilerplate Rule 29 forms. The trouble is, this claim was
only raised, if at all, for the first time in a single sentence of
the petitioner's reply brief, and then only in relation to the
merits of his Rule 29 claim. Specifically, in asserting that his
Rule 29 motion was properly filed under Massachusetts law, the
petitioner notes only that "the [Rule 29] Motion and Affidavit
which [the petitioner] filed are hand-written onto xeroxed forms,
which are provided to incoming prisoners when they arrive at [the
prison]." Nowhere is this statement framed as a justification for
equitable remediation, and its cursory nature does not even begin
to approach the level of development traditionally necessary for
consideration on appeal. This is not, as the majority suggests, a
simple case of a party failing to apply the "necessary label" --
-41-
rather, it is a classic example of waiver by inadequate argument.7
In essence, we manufacture the appellant's claim, effectively
precluding the appellee from delivering a satisfactory response.
This, I think, is beyond our proper province, and therefore I
cannot join in remanding on this ground.8
7
The majority notes that we have the discretion, in certain
circumstances, to overlook waiver by inadequate argument. See,
e.g., Costa-Urena v. Segarra, 590 F.3d 18, 30 (1st Cir. 2009).
Those circumstances are absent here. Such discretion is not
unfettered, and should be used sparingly. As we have previously
stated, "courts should be reluctant to act affirmatively in
identifying and supporting arguments that could have been, but were
not, made by a party. At a bare minimum, such an action should be
reserved for circumstances in which there is some likelihood that
the ultimate outcome would change in the assisted party's favor."
United States v. Vega Molina, 407 F.3d 511, 534 n.7 (1st Cir.
2005). Since, as the majority acknowledges, it "cannot say what
the result should be" even if this equitable tolling argument is
resuscitated, and because this case presents none of the special
circumstances that typically form the basis for overlooking waiver,
see, e.g., Nat'l Org. for Marriage, Inc. v. McKee, 669 F.3d 34, 43
(1st Cir. 2012) (overlooking waiver by inadequate argument because
of importance of issues raised and extent of resources expended in
expansive litigation); Costa-Urena, 590 F.3d at 30 (overlooking
waiver by inadequate argument where argument would likely change
the outcome); United States v. Leavitt, 925 F.2d 516, 517 (1st Cir.
1991) (overlooking waiver by inadequate argument of a sentencing
guidelines issue where the guidelines were relatively new, the
issue was purely legal, and the sentencing differences were so
great as to bring about a serious miscarriage of justice if he is
legally right), I see no reason to take such a course of action
here. See Nat'l Ass'n of Social Workers v. Harwood, 69 F.3d 622,
627 (1st Cir. 1995) ("[T]he raise-or-waive principle [may not] be
dismissed as a pettifogging technicality or a trap for the
indolent; the rule is founded upon important considerations of
fairness, judicial economy, and practical wisdom.").
8
The majority suggests that because Kholi v. Wall, 582 F.3d 147
(1st Cir. 2009) had yet to be decided, the petitioner had no cause
to raise the issue before the district court. That may be, but it
does not excuse his failure to do so in his opening appellate
brief, where we explicitly requested that counsel discuss the Rule
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Even if this equitable tolling claim had been properly
preserved, and the prison had advised the petitioner that his
boilerplate forms complied with the strictures of Rule 29, we still
should not remand, because it is far from apparent that such
conduct qualifies as an extraordinary circumstance sufficient to
trigger equitable relief.
Starting from scratch, as it must given the petitioner's
failure to cite any relevant authority whatsoever, the majority
suggests that Williams v. Thaler, 400 Fed. App'x 886 (5th Cir.
2010), might inform the district court's equitable tolling
analysis. Thaler, however, is distinguishable in several critical
respects. There, the state court had repeatedly notified the
petitioner that his state habeas petition was pending, when in fact
it had already been denied. Because there was no alternative
source for the information, or additional action that the
petitioner could have taken to remedy the error, the court's
misleading advice made it virtually impossible for the petitioner
to meet AEDPA's stringent timeliness requirements with respect to
his subsequent federal petition. Here, by contrast, the petitioner
was instructed (maybe erroneously) how to file, rather than being
told that he had already properly done so; the advice came not from
the court itself, but from some heretofore unidentified member of
29 issues in light of Kholi, or his failure to do so sufficiently
in his reply brief, after the Commonwealth had expressly called the
procedural validity of his Rule 29 motion into question.
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the prison staff; and perhaps most importantly, the petitioner
still had a wealth of opportunities to remedy any error and to
verify the appropriate filing procedures (including opportunities
to conduct his own independent research). In other words, the
prison's actions here did not foreclose the petitioner's ability to
properly file his Rule 29 motion, and consequently, to timely file
the federal petition now at issue.
These distinctions are not academic, and indeed they form
the basis for several federal decisions on somewhat analogous
facts. In Alexander v. Schriro, 312 Fed. App'x 972 (9th Cir.
2009), for example, no extraordinary circumstances were found where
a member of the prison staff offered misleading advice to a federal
habeas petitioner in calculating the applicable limitations period.
Distinguishing from cases where "a prison official's wrongful
conduct prevents a petitioner from filing," the court explained
that "in this case, the [prison staff] did not do or fail to do
anything that actually made it impossible for [the petitioner] to
file on time." Id. at 975 (internal citations omitted); see also
Henderson v. Nooth, No. 3:07-CV-01823-JO, 2012 WL 1801736, at *4
(D. Or. May 16, 2012) (finding that erroneous filing advice from a
prison staff member, "while extremely unfortunate," does not rise
to the level of extraordinary circumstances because it did not
"ma[k]e it impossible for petitioner to file on time"); Madison v.
Hulihan, No. 09-CV-337, 2012 WL 1004780, at *4 (E.D.N.Y. March 23,
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2012) (rejecting claim of equitable tolling where state-provided
habeas forms lacked information about AEDPA filing requirements,
and holding that "a state-created impediment can warrant equitable
tolling [only] in the rare instance where the state 'effectively
prohibits' the petitioner from pursuing a habeas petition");
Dulaney v. United States, Nos. 6:08-cv-00859, 6:09-cv00372, 2011 WL
4436639, at *2 (S.D. W. Va. September 23, 2011) (refusing to apply
equitable tolling where habeas corpus forms supplied by the prison
appeared to inform petitioner (in error) that he could not file his
federal habeas petition until he completed his state sentence and
began serving his federal sentence); Elliott v. Napoli, No. 07-CV-
3942, 2010 WL 1816406, at *2 (E.D.N.Y. May 4, 2010) ("Simply,
falling victim to the incompetence of nonlawyer [prison library
staff] is . . . not an extraordinary circumstance."); James v.
Hudson, No. 1:07-CV-3651, 2009 WL 111637, at *8 (N.D. Oh. Jan. 15,
2009) ("The fact that, instead of himself ascertaining the relevant
law, [the petitioner] chose to rely on [prison] library clerks for
such critical information does not make that choice an
extraordinary circumstance that stood in the way of compliance with
the time requirement and now justifies equitable tolling."); Roman
v. Artuz, No. 00-CIV-1400-DLC, 2000 WL 1201392, at *2 (S.D.N.Y.
Aug. 22, 2000) (finding that prison law clerks' erroneous advice
that a state FOIA request would toll AEDPA's statute of limitations
was not an extraordinary circumstance).
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This, of course, is not intended to be an exhaustive
collection of applicable authority; that was for the petitioner to
provide. Nonetheless, pursuant to the prevailing authority, it is
likely that the prison's allegedly inaccurate filing advice --
whether that encompassed the mere dissemination of boilerplate
forms or, at worst, also included verbal assurances that such forms
were sufficient for filing purposes -- does not rise to the
extraordinarily high level required for the application of
equitable tolling.
Finally, though no less significantly, even if the
prison's actions do constitute an extraordinary circumstance, the
petitioner has still failed to demonstrate that he pursued his
rights diligently during the more than two-year gap between June
17, 1998 and August 17, 2000, when he remained idle despite his
pending Rule 29 motion. The only conceivable basis for the motion
-- the petitioner's anticipated cooperation with the government on
another case -- was well known to the petitioner at the time that
the motion was originally filed. Had he simply employed that
knowledge and requested a hearing within a reasonable period of
time, all of these issues could easily have been averted. Neither
the petitioner nor the majority provide an acceptable explanation
for this extended period of inactivity.9
9
The majority states only that, during this time, Holmes's
correspondence with his trial attorney "suggests that Holmes may
have been waiting to learn whether the prosecutor wanted
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For these reasons, I would excise any treatment of the
putative equitable tolling argument, join the court's otherwise
well-reasoned opinion, and affirm the order of the district court.
information from him" about the other case. A two-year period of
inactivity, interrupted only by occasional correspondence with his
trial attorney, does not seem to meet the level of reasonable
diligence necessary to ground a claim of equitable tolling. See,
e.g., LaCava v. Kyler, 398 F.3d 271, 277-78 (3d Cir. 2005)
(deciding not to remand the appellant's habeas petition for an
evidentiary hearing on the availability of equitable tolling where
he allowed twenty-one months to lapse between the filing of a state
court motion and his subsequent inquiry as to its status). In any
event, it should not be left to the court to comb the record for
favorable facts supporting remand. Pursuing one's rights with
reasonable diligence is one of two prongs that the petitioner must
show to meet the high burden for equitable tolling. Holland v.
Florida, 130 S. Ct. 2549, 2562 (2010) (holding that a "petitioner
is entitled to equitable tolling only if he shows . . . that he has
been pursuing his rights diligently . . . .") (emphasis added).
Holmes did not even attempt to make that showing here.
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