Cordle v. Guarino

United States Court of Appeals
For the First Circuit

No. 05-1094

MELISSA JO CORDLE,

Petitioner, Appellant,

v.

BARBARA GUARINO,

Respondent, Appellee.

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

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

Before

Torruella, Circuit Judge,
Siler,* Senior Circuit Judge,
and Howard, Circuit Judge.

Kevin J. Reddington, for petitioner-appellant.
Maura D. McLaughlin, Assistant Attorney General, Criminal
Bureau, with whom Thomas F. Reilly, Attorney General, were on
brief, for respondent-appellee.

November 2, 2005

*
Of the Sixth Circuit, sitting by designation.
 TORRUELLA, Circuit Judge. On March 23, 2004, the

district court issued an order dismissing defendant-appellant

Melissa Jo Cordle's habeas corpus petition for being time-barred

under the Anti-Terrorism and Effective Death Penalty Act of 1996

("AEDPA"), 28 U.S.C. § 2244. On September 1, 2004, the district

court granted a certificate of appealability on the issue of

"whether, in the circumstances of [Cordle's] case, the time

limitations of the AEDPA should be equitably tolled." Answering

that question in the negative, we affirm.

I.

On April 24, 1986, a Barnstable County Superior Court

jury convicted Cordle of two counts of first-degree murder and one

count of burglary. Cordle appealed directly to the Massachusetts

Supreme Judicial Court ("SJC") pursuant to Mass. Gen. Laws ch. 278,

§ 33E, arguing that the evidence was insufficient to support the

verdict and that the trial judge gave erroneous jury instructions.

On April 26, 1989, the SJC found that the evidence was sufficient

to support the jury's verdict but reversed Cordle's conviction due

to an error in the trial judge's jury instructions.1 See

Commonwealth v. Cordle, 537 N.E.2d 130 (Mass. 1989)("Cordle I").

Cordle was re-tried, and on August 19, 1989, she was again

convicted of two counts of first-degree murder and one count of

1
One of the justices dissented, arguing that the evidence was
insufficient to support the verdict.

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burglary.2 Cordle appealed her conviction directly to the SJC and

again argued that the evidence was insufficient to support her

conviction and that the trial judge's jury instructions allowed her

to be convicted without proof beyond a reasonable doubt as to each

and every element of the offenses of which she was charged. The

SJC affirmed on March 11, 1992. See Commonwealth v. Cordle, 587

N.E.2d 1372 (Mass. 1992)("Cordle II").3

On November 11, 2000, Cordle, who was represented by new

counsel, filed a motion for a new trial. This motion was denied on

December 18, 2000. Cordle appealed to a Single Justice Session of

the SJC, and on December 4, 2001, a single justice denied Cordle's

petition. On December 3, 2002, Cordle filed a habeas corpus

petition in the United States District Court for the District of

Massachusetts. On September 25, 2003, a United States Magistrate

Judge recommended that Cordle's petition be dismissed because it

was time-barred. On March 23, 2004, the district court followed

this recommendation and issued an order dismissing the petition as

time-barred.

2
At the second trial the prosecution presented additional
evidence of a threat that Cordle had made regarding one of the two
victims.
3
In Cordle II, the justice who had dissented in Cordle I authored
the opinion affirming Cordle's convictions. In the opinion, the
justice stated that he "acced[ed] to the precedent established in
Cordle I regarding the sufficiency of the evidence; additionally,
. . . the additional evidence of a specific threat to kill the
victims is more significant than the threats relied on by the court
in Cordle I." Cordle II, 587 N.E.2d at 1374 n.2.

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 II.

We review the district court's decision regarding

equitable tolling in this habeas case for abuse of discretion.

Neverson v. Farquharson, 366 F.3d 32, 42 (1st Cir. 2004).

AEDPA, which was enacted on April 24, 1996, provides that

"[a] 1-year period of limitation shall apply to an application for

a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court." 28 U.S.C. § 2244(d)(1). While

"AEDPA's one-year limit runs from the time that the state court

judgment of conviction became final[,] . . . defendants . . .

convicted prior to AEDPA[] can file their petitions within one year

of AEDPA's effective date." David v. Hall, 318 F.3d 343, 344 (1st

Cir. 2003) (internal citation omitted). The SJC affirmed Cordle's

convictions on March 11, 1992; her convictions became final ninety

days thereafter. See Neverson, 366 F.3d at 36 (stating that a

defendant's "conviction became final when the ninety-day period for

seeking certiorari expired"). Because this date was before the

enactment of AEDPA, Cordle had one year from April 24, 1996 to file

a petition for habeas corpus. Thus, absent any tolling, the one-

year period ended on April 24, 1997.4

4
In her brief, Cordle implies that AEDPA's one-year period of
limitations did not begin to run until the SJC denied her motion
for a new trial on December 4, 2001. Under 28 U.S.C. § 2244(d)(2),
"the 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 the one-
year limitations period. However, Cordle's motion for a new trial

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 We have held that the one-year limitations period in

§ 2244(d)(1) may be equitably tolled. See Neverson, 366 F.3d at

41. "[E]quitable tolling . . . is the exception rather than the

rule; resort to its prophylaxis is deemed justified only in

extraordinary circumstances." Delaney v. Matesanz, 264 F.3d 7, 14

(1st Cir. 2001). "It is reserved for cases in which circumstances

beyond the litigant's control have prevented [her] from promptly

filing." Lattimore v. Dubois, 311 F.3d 46, 55 (1st Cir. 2002).

Cordle bears the burden of establishing a basis for equitable

tolling. Id.

Cordle's first argument for equitable tolling is that the

attorney who represented her at trial was "constitutionally

ineffective" in not filing a petition for habeas corpus or advising

her of any filing deadlines for a habeas petition. As this court

and other courts of appeals have explained, counsel's errors in

calculating the time limits or advising a petitioner of the

appropriate filing deadlines do not constitute extraordinary

circumstances warranting equitable tolling. See, e.g., David, 318

F.3d at 346; Howell v. Crosby, 415 F.3d 1250, 1252 (11th Cir. 2005)

was not filed until November 11, 2000, several years after her
AEDPA limitations period had already expired. "Section 2244(d)(2)
only stops, but does not reset, the [AEDPA] clock from ticking and
cannot revive a time period that has already expired." Dunker v.
Bissonnette, 154 F. Supp. 2d 95, 103 (D. Mass. 2001) (internal
quotation marks, brackets, and ellipsis omitted). Because Cordle's
motion for a new trial was filed well after her AEDPA's limitations
period had expired, it did not stop or reset the clock and does not
help Cordle on this appeal.

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(stating that "attorney negligence is not a basis for equitable

tolling, especially when the petitioner cannot establish his own

diligence in ascertaining the federal habeas filing deadline");

Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (equitable

tolling not warranted where counsel erroneously advised petitioner

of the filing deadline due to a misreading of the statute); Dunker

v. Bissonnette, 154 F. Supp. 2d 95, 107 (D. Mass. 2001) (stating

that usually, attorney errors are attributed to their clients).

In the instant case, Cordle has not shown how her

attorney's failure to file a habeas petition constituted anything

more than excusable neglect. See David, 318 F.3d at 346. This is

not a case where Cordle asked her counsel to file a habeas petition

but counsel failed to do so. See, e.g., Baldayaque v. United

States, 338 F.3d 145, 152 (2d Cir. 2003) (finding equitable tolling

appropriate where the petitioner's counsel failed to file a habeas

petition despite being told to do so). Further, Cordle has not

presented any evidence tending to show that she was diligent in

pursuing her rights. See Neverson, 366 F.3d at 42 (stating that

equitable tolling is "not available to rescue a litigant from [her]

own lack of due diligence"). As the government notes, Cordle did

not take any action regarding her convictions until November 11,

2000 when she filed a motion for a new trial. This was over eight

years after her conviction became final and over three years after

AEDPA's one-year period of limitations had expired. While Cordle

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argues that she lacked knowledge of the law and the filing

deadline, it is well settled in this circuit that "[i]gnorance of

the law alone, even for incarcerated pro se prisoners, does not

excuse an untimely [habeas] filing." Lattimore, 311 F.3d at 55.

In the same way, Cordle's ignorance does not excuse her untimely

habeas petition. Because any error by Cordle's attorney did not

constitute extraordinary circumstances and because Cordle has

failed to present any evidence showing that she was diligent in

pursuing her rights, we reject her argument that the limitations

period should be equitably tolled due to her counsel's failures to

inform her of her right to file a habeas petition and to timely

file a habeas petition.

Cordle next argues that the limitations period should be

equitably tolled because she has not previously had federal review

of her state convictions. This argument is easily disposed of, as

the fact that this is Cordle's first habeas petition has no bearing

in our consideration of whether any extraordinary circumstances

exist that warrant equitable tolling.

Cordle's final argument is that the state court's

resolution of her claims constituted an unreasonable application of

clearly established federal law because the evidence was

insufficient to support the verdict and because the trial judge's

jury instructions were constitutionally deficient. We agree with

the government that these arguments go to the merits of the habeas

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petition. They do not play a role in whether extraordinary

circumstances prevented Cordle from timely filing a habeas

petition.

In sum, Cordle had almost five years from the time that

her convictions became final to the time that her AEDPA limitations

period expired in which to file a habeas petition. She failed to

do so and has not made any showing that this failure was due to

extraordinary circumstances or circumstances beyond her control.

She has also failed to present any evidence tending to show that

she was diligent in pursuing her federal rights before AEDPA's

limitations period expired. We therefore hold that equitable

tolling was not warranted in Cordle's case and that her habeas

petition is time-barred.

III.

For the foregoing reasons, the district court's decision

is affirmed.

Affirmed.

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