United States Court of Appeals
For the First Circuit
No. 01-2289
STEPHEN DAVID,
Petitioner, Appellant,
v.
TIMOTHY HALL,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Robert L. Sheketoff for petitioner.
Cathryn A. Neaves, Assistant Attorney General, Criminal
Bureau, with whom Thomas F. Reilly, Attorney General, was on brief
for respondent.
February 5, 2003
BOUDIN, Chief Judge. In this case, which raises
questions concerning habeas corpus, the relevant dates are
important. On April 13, 1992, petitioner Stephen David pled guilty
in a Massachusetts state court to second-degree murder and was
sentenced to life imprisonment. The crime was described in the
plea colloquy: briefly stated, David and others, camping at a tent
city in Quincy, Massachusetts, killed one of their number (Abraham
Champlain) by beating and otherwise mistreating him over the course
of several days and leaving him to die of his injuries and exposure
to cold. The members of the group, including David, had consumed
alcohol.
No direct appeal was taken from the conviction. Instead,
more than three years after his plea and sentencing, David filed in
the trial court two successive motions to withdraw his guilty plea
and obtain a new trial, which under state law is a permissible form
of collateral attack after a guilty plea. Constantine v.
Commonwealth, 435 Mass. 1011, 1012, 760 N.E.2d 733, 735 (2002).
Both motions were rejected by the trial court and the intermediate
appellate court and, in both cases, the Supreme Judicial Court
denied review. The first motion was filed on or about July 17,
1995, and SJC review was denied on December 29, 1997; the second
was filed on May 5, 1998, and SJC review was denied on June 29,
2000. David did not seek certiorari on either ruling from the
United States Supreme Court.
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On March 29, 2001, David filed the present habeas
proceeding in the federal district court. In his petition, David
asserts that, for second degree murder, Massachusetts law required
that he know that his actions had a "plain and strong likelihood"
of causing Champlain's death. Commonwealth v. Sneed, 413 Mass.
387, 388 n.1, 597 N.E.2d 1346, 1347 n.1 (1992). And, he asserts,
the trial judge committed constitutional error by misadvising David
at the plea colloquy that an intent to cause injury was sufficient.
See Henderson v. Morgan, 426 U.S. 637, 643-46 (1976). He also
asserts that, due to his intoxication, a jury could not have found
that he had the intent required under state law.
In fact, at the plea colloquy, the trial judge used both
phrases, saying that an intent to injure was enough and that there
had to be knowledge of "a plain and strong likelihood" of death.
But whether the instruction was confusing (the state courts said
no) and, if so, whether it constituted a constitutional violation
are issues not before us. This is so because in opposing the writ,
the Commonwealth pled that regardless of its merits, David's
petition came too late under the deadlines fixed for habeas
petitions by the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), 28 U.S.C. § 2241 et seq. (2000).
AEDPA, which became effective on April 24, 1996, fixes a
one-year limitations period for federal habeas petitions by state
prisoners. 28 U.S.C. § 2244(d)(1). Statutory exceptions exist
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where the state impeded relief, new constitutional rights were
created by the Supreme Court, or newly discovered facts underpin
the claim, id. § 2244(d)(1)(B)-(D), but David does not claim to
fall within any of these exceptions. Absent an exception, AEDPA's
one-year limit runs from the time that the state court judgment of
conviction became final by the conclusion of direct review or the
expiration of the time for seeking it. Id. § 2244(d)(1)(A).
However, defendants like David, convicted prior to AEDPA, can file
their petitions within one year of AEDPA's effective date.
Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999).
A magistrate judge recommended dismissal of David's
petition on the ground that it was barred by AEDPA's time limit.
AEDPA excludes from the one-year period "[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 . . . ." 28 U.S.C. § 2244(d)(2). The magistrate judge
excluded from the calculation the days in which the two state new
trial motions were pending (measuring from the dates of their
filings to the ultimate SJC dispositions). Even with this
exclusion, David's petition was filed 399 days after AEDPA's
enactment and, therefore, more than the 365 days allowed. The
district court adopted the recommendation.
David then sought a certificate of appealability ("COA"),
28 U.S.C. § 2253(c), which the district court denied. This court
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then granted the COA and asked the parties to brief several issues:
David's claim that 180 days should be added to the excluded period
for the time in which he could have sought certiorari in the United
States Supreme Court;1 his alternative request that the time period
be "equitably tolled" because of his attorney's error in filing
late; and his claim that the Constitution's Suspension Clause
overrides the AEDPA limit when the petitioner asserts that he is
actually innocent of the underlying offense. We now address these
issues in the same order.
David's first argument--that 180 days should be added to
the excluded period--is easily answered. Congress excluded from
the one-year period the time during which "a properly filed
application for State post-conviction or other collateral review
. . . is pending . . . ." Id. § 2244(d)(2). The reason is
obvious. During the period when the state courts are reviewing the
claims, a federal petition would likely be dismissed or held as
premature and would at best simply be held until state remedies
were exhausted. 28 U.S.C. § 2254(b)(1)(A).
Nothing in the language or policy of this exclusion
warrants adding to the excluded period an additional period during
which the petitioner could have, but did not, seek certiorari in
1
A petitioner in a criminal case has 90 days to petition the
United States Supreme Court after receiving a final judgment from
the highest court of his state. S. Ct. R. 13(1). Because David
received two adverse judgments from the SJC, he has asked that the
limitations period be tolled 180 days.
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the Supreme Court from the denial of collateral remedies. Once the
SJC denied review as to the first new trial motion, nothing was
pending in either state or federal court nor was any further action
ever taken in any court with respect to that motion. The same is
true for the second motion. Thus, to say that David's collateral
attack proceedings were pending in any court during the 90-day
periods after the SJC denials is at odds with ordinary usage.2
If anything more were needed, it is supplied by the
contrasting language of a companion AEDPA provision. In the
ordinary post-AEDPA case, the one-year period (exceptions aside)
runs from the later of two dates: "the date . . . the judgment
became final by the conclusion of direct review or the expiration
of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A)
(emphasis supplied). Thus, if David had been convicted after trial
and fought his conviction through the SJC, he would automatically
have gotten the benefit of the additional 90 days for seeking
certiorari--that is, those days would have been excluded from the
one-year period by virtue of the underscored language. No such
language appears in the collateral attack provision applicable
here.
2
The state further argues that the reference to "State post-
conviction or other collateral review" necessarily excludes the
federal certiorari process, so that the result would be the same
even if David had filed for certiorari. Duncan v. Walker, 533 U.S.
167 (2001), on which the state heavily relies, is arguably
distinguishable and there are language and policy arguments on the
other side, but the issue need not be resolved in this case.
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David says that he had no direct review remedy under
state law because of his guilty plea so that, to create equality of
opportunity, the underscored language should be read into the
collateral attack provision or the collateral attack should be
equated in this case with direct review. This argument has the
matter backwards. Congress did not aim at equality: it
specifically provided a more generous exclusion of time where
direct review was involved and, consistent with the spirit of
AEDPA, took a stricter view as to state post-conviction remedies.
David next argues that the running of the limitations
period should be equitably tolled because the failure to file the
petition within the required period was due to error by David's
counsel. The factual premise is an affidavit from counsel stating
that he could have filed the petition earlier but did not think
this was required. "Equitable tolling" is an umbrella term for the
notion that a statute of limitations--unless its time limit is
"jurisdictional"--may be extended for equitable reasons not
acknowledged in the statute creating the limitations period. See,
e.g., Delaney v. Matesanz, 264 F.3d 7, 13-14 (1st Cir. 2001).
Section 2244 does not describe its time limits as
jurisdictional, either in its own terms or otherwise, nor does the
Commonwealth invoke that label. See Miller v. N.J. State Dept. of
Corrections, 145 F.3d 616, 617-18 (3d Cir. 1998). Still, section
2244(d) comprises six paragraphs defining its one-year limitations
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period in detail and adopting very specific exceptions. Congress
likely did not conceive that the courts would add new exceptions
and it is even more doubtful that it would have approved of such an
effort. Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999).
AEDPA reflects Congress' view that the courts were being too
generous with habeas relief and that the whole system needed to be
tightened up. See H.R. Rep. No. 104-518, at 111 (1996).
Nevertheless, many circuits have held or assumed that
equitable tolling is available,3 and we will proceed here on that
arguendo assumption. The "exclusion" inference against such a
reading of section 2244 is matched, as such rubrics often are, by
a counter inference: that Congress acts against the background of
existing decisional doctrine unless it negates the doctrine. Young
v. United States. 122 S. Ct. 1036, 1040 (2002). This court,
although it has never decided whether equitable tolling is
permitted under section 2244, Lattimore v. Dubois, 311 F.3d 46, 55
(1st Cir. 2002), has elsewhere been willing to read AEDPA
creatively. See Evicci v. Commissioner of Corrections, 226 F.3d
26, 28 (1st Cir. 2000).
If equitable tolling is available to extend section
2244(d)'s limitations period, it can only do so for the most
exceptional reasons. One of AEDPA's main purposes was to compel
3
See e.g., Dunlap v. United States, 250 F.3d 1001, 1004-06
(6th Cir.), cert. denied, 122 S. Ct. 649 (2001); Taliani, 189 F.3d
at 598; Miller, 145 F.3d at 617-18 (3d Cir. 1998).
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habeas petitions to be filed promptly after conviction and direct
review, to limit their number, and to permit delayed or second
petitions only in fairly narrow and explicitly defined
circumstances. 28 U.S.C. § 2244(d)(1)(A)-(D); H.R. Rep. No. 104-
518, supra at 111. To bypass these restrictions for reasons other
than those given in the statute could be defended, if at all, only
for the most exigent reasons.
Here, the magistrate judge thought, and the district
court, agreed, that a mistake by counsel in reading the statute or
computing the time limit is, at most, a routine error. Indeed, it
would not even constitute "excusable neglect" under Fed. R. App. P.
4(a)(5). See Mirpuri v. ACT Mfg., 212 F.3d 624, 630-31 (1st Cir.
2000). Even apart from AEDPA, the Supreme Court has said that "the
principles of equitable tolling . . . do not extend to what is at
best a garden variety claim of excusable neglect." Irwin v. Dep't
of Veterans Affairs, 498 U.S. 89, 96 (1990).4 If carelessness were
an escape hatch from statutes of limitations, they would hardly
ever bar claims.
David's final argument is that the limitations period, if
otherwise applicable to him and unmitigated here by equitable
tolling, violates the Constitution. Article I, section 9, clause
4
Unsurprisingly, cases involving capital punishment are
sometimes treated differently. E.g., Rouse v. Lee, No. 01-12, slip
op. at 12-17 (4th Cir. Jan. 7, 2003) (excusing one day delay due to
attorney error in habeas case where petitioner faced death penalty
and would not have any other avenue of post-conviction review).
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2, provides that the "writ of habeas corpus shall not be
suspended," save in cases of rebellion or invasion. David argues
that any statutory limitations period that prevents him from
presenting a claim predicated on "actual innocence" amounts to an
unconstitutional suspension of the writ. Compare Delaney v.
Matesanz, 264 F.3d 7, 12 (1st Cir. 2001) (upholding the one year
limit only "as a general matter").
Assuming arguendo that the Suspension Clause extends
beyond the narrow historical office of the writ, cf. McCleskey v.
Zant, 499 U.S. 467, 478 (1991), it could only be violated by
enactments that make the writ "inadequate or ineffective to test
the legality of (the applicant's) detention." Swain v. Pressley,
430 U.S. 372, 381 (1977). Here, the argument made by David was
available to him from April 1992 onward and, excluding the time for
exhausting remedies, he had ample time after AEDPA in which to
bring his claim within the statutory deadline. In these
circumstances, the limitation is not even arguably
unconstitutional. Molo v. Johnson, 207 F.3d 773, 775 (5th Cir.
2000).
It would be another matter if David's constitutional
claim regarding the misstatement of the elements of the murder came
to light only after the limitations period had expired. But
Congress has provided that in such a case a petitioner may bring
his claim a year from the "date on which the factual predicate of
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the claim . . . could have been discovered through the exercise of
due diligence." 28 U.S.C. § 2244(d)(1)(D). Here, any error at the
plea colloquy was immediately apparent, so this alternative
starting date has no relevance for David.
Nothing is changed here by David's claim of actual
innocence, a claim itself derived from his mistaken-colloquy
argument. In general, defendants who may be innocent are
constrained by the same explicit statutory or rule-based deadlines
as those against whom the evidence is overwhelming: pre-trial
motions must be filed on time, timely appeals must be lodged, and
habeas claims must conform to AEDPA. In particular, the statutory
one-year limit on filing initial habeas petitions is not mitigated
by any statutory exception for actual innocence even though
Congress clearly knew how to provide such an escape hatch.5
There is a strong public interest in the prompt assertion
of habeas claims. Normally, the grant of habeas relief leaves the
state free to retry the petitioner, but this becomes increasingly
hard to do as memories fade, evidence disperses and witnesses
disappear. A defendant who could not have filed his petition
earlier is at least a sympathetic figure; one who has a known
5
In AEDPA Congress adopted a form of actual innocence test as
one component of its threshold requirements for allowing a second
or successive habeas petition; but it also provided that this
second petition is allowed only where the factual predicate for the
claim of constitutional error could not have been discovered
previously through the exercise of due diligence. 28 U.S.C. §
2244(b)(2)(B).
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claim, defers presenting it, and then asks to be excused for the
delay is unlikely to get cut much slack. A couple of cases have
conjectured that actual innocence might override the one-year
limit, e.g., Wyzkowski v. Dept. of Corrections, 226 F.3d 1213,
1218-19 (11th Cir. 2000); but to us these dicta are in tension with
the statute and are not persuasive.
The actual innocence rubric--a phrase courts use
differently in different contexts, see Calderon v. Thompson, 523
U.S. 538, 559-66 (1998)--has been firmly disallowed by the Supreme
Court as an independent ground of habeas relief, save (possibly) in
extraordinary circumstances in a capital case. Herrera v. Collins,
506 U.S. 390, 417 (1993). By contrast, the Court has used an
actual innocence test as a safety valve where an issue was not
timely presented in the original trial, Schlup v. Delo, 513 U.S.
298 (1995), but we are not here concerned with a claim forfeited
under the cause and prejudice standard.
As it happens, David has not made out a predicate showing
of "actual innocence," if the phrase is taken to mean that no jury
would likely convict David based on the currently known evidence.
This is so even if the jury was here instructed exactly as David
says Massachusetts law requires. In the end, the defense would
depend largely on whether the jury believed David's own self-
serving testimony about his own mental state--a conclusion which,
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given his active participation in Champlain's mistreatment over
several days, a jury might easily resist.
Affirmed.
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