Trenkler v. United States

United States Court of Appeals
For the First Circuit

No. 00-1657

ALFRED W. TRENKLER,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Boudin, Chief Judge,

Selya and Lipez, Circuit Judges.

Charles W. Rankin, with whom Bruce W. Edmands, Richard S.
Jacobs and Mahoney Hawkes LLP, were on brief, for appellant.

Kevin P. McGrath, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, and David S.
Mackey, Special Assistant United States Attorney, were on brief,
for appellee.

October 16, 2001
 LIPEZ, Circuit Judge. This case requires us to address

the interaction between two avenues of relief from a federal

conviction and sentence: 28 U.S.C. § 2255, which permits a

motion to set aside a sentence allegedly imposed in violation of

the Constitution or federal law, and Rule 33 of the Federal

Rules of Criminal Procedure, which permits a motion for a new

trial on the basis of newly discovered evidence. In particular,

we must decide whether the one-year statute of limitations for

§ 2255 motions imposed by the Antiterrorism and Effective Death

Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996)

(“AEDPA”), either is tolled during the pendency of a Rule 33

motion based on newly discovered evidence, or, in the

alternative, does not commence until the possibility of relief

under Rule 33 is exhausted.

Like the district court, we conclude that the statute

of limitations for a § 2255 motion begins to run upon the

completion of a prisoner's direct appeal from the judgment of

conviction, notwithstanding any subsequent proceedings under

Rule 33. We also agree with the district court that there is no

statutory basis for tolling the limitations period while the

prisoner seeks post-conviction relief under Rule 33. Finally,

assuming the availability of equitable tolling, we conclude that

the district court did not abuse its discretion in finding that

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the circumstances of this case do not present any grounds for

application of that doctrine.

I.

On June 24, 1993, a federal grand jury returned a

three-count superceding indictment against Alfred Trenkler and

Thomas Shay, charging them with illegal receipt and use of an

explosive in violation of 18 U.S.C. §§ 844(d) and (i), and

conspiracy to commit an offense against the United States in

violation of 18 U.S.C. § 371 (an original, sealed indictment had

been issued against both men on December 16, 1992). Trenkler

moved to sever the cases, and Shay was tried first. At his

trial, Shay sought to call Dr. Robert Phillips as an expert

witness. Dr. Phillips was prepared to testify that Shay

suffered from a mental disorder that caused him to tell self-

aggrandizing lies, making his various incriminating statements

unreliable. The district court excluded Dr. Phillips's

testimony on the ground that it did not satisfy the standards

for expert testimony set forth in Rule 702 of the Federal Rules

of Evidence. Shay was convicted, and on appeal he argued that

the district court erred in refusing to admit the testimony. We

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agreed, holding on June 22, 1995, that it was a “clear error in

judgment for the district court to exclude the testimony under

any plausible interpretation of Rule 702.” United States v.

Shay, 57 F.3d 126, 133-34 (1st Cir. 1995). On remand, the

district court rejected the government's argument that Fed. R.

Evid. 403 provided an alternate basis for excluding Dr.

Phillips's testimony, and ordered a new trial for Shay. Shay

eventually pled guilty, and was sentenced to 12 years in prison.

At the same time that Shay was appealing his

conviction, Trenkler's trial was proceeding in the district

court. Shay's incriminating statements were introduced against

Trenkler, as they tended to show that Shay had been involved in

the bombing and had not acted alone. Trenkler's trial counsel

did not attempt to use Dr. Phillips's testimony to undermine

Shay's statements, believing that any effort to introduce the

doctor's testimony would be futile in light of the district

court's refusal to admit it at Shay's trial. Trenkler was

convicted on all counts of the indictment on November 29, 1993,

and sentenced to life in prison. We affirmed his conviction on

July 18, 1995. United States v. Trenkler, 61 F.3d 45 (1st Cir.

1995) (Trenkler I). He did not file a petition for certiorari.

On December 22, 1995, Trenkler moved for a new trial

under Rule 33, which permits such a motion to be filed up to

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three years after a verdict when it is “based on newly

discovered evidence.”1 Trenkler argued that our decision in Shay

rendered Dr. Phillips's testimony “newly discovered evidence”

within the meaning of Rule 33. He explained that, although he

was aware of Dr. Phillips's testimony at the time of his trial,

he did not know until our decision on June 22, 1995, that the

testimony was admissible. The district court denied the motion,

reasoning that Trenkler's trial counsel's belief that the

testimony would not be admitted did not make it unavailable, and

that our conclusion that the testimony was admissible in Shay's

case did not render it “newly discovered.” We affirmed in an

unpublished opinion issued on January 6, 1998. United States v.

Trenkler, No. 97-1239, 1998 WL 10265 (1st Cir. Jan. 6, 1998)

(Trenkler II).

Trenkler then filed the instant motion under § 2255 to

set aside his conviction on the ground that his trial counsel's

failure to offer Dr. Phillips's testimony violated his Sixth

Amendment right to effective assistance of counsel. After

AEDPA, such a motion generally must be filed within one year of

“the date on which the judgment of conviction becomes final.”

1 Under Rule 33, “[a] motion for a new trial based on any
other grounds [than newly discovered evidence] may be made only
within 7 days after the verdict or finding of guilty or within
such further time as the court may fix during the 7-day period.”

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28 U.S.C. § 2255(1).2 For prisoners whose convictions became

final before AEDPA was enacted, we have held that the

limitations period expires on April 24, 1997, one year after the

statute's effective date. Rogers v. United States, 180 F.3d

349, 355 (1st Cir. 1999). The district court concluded that

Trenkler's § 2255 motion was subject to that deadline, his

conviction having become final in 1995, when we affirmed it in

2 As amended by AEDPA, § 2255 provides that:

A 1-year statute of limitations shall apply to a
motion under this section. The limitations period
shall begin to run from the latest of--

(1) the date on which the judgment of
conviction becomes final;
(2) the date on which the impediment to
making a motion created by governmental
action in violation of the Constitution or
laws of the United States is removed, if the
movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted
was initially recognized by the Supreme
Court, if that right has been newly
recognized by the Supreme Court and made
retroactively applicable to cases on
collateral review; or
(4) the date on which the facts
supporting the claim or claims presented
could have been discovered through the
exercise of due diligence.

28 U.S.C. § 2255. The parties agree that only subsection (1) is
at issue here.

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Trenkler I. Accordingly, it dismissed the § 2255 motion – filed

on January 5, 1999 – as time-barred. This appeal followed.3

II.

Trenkler argues that a timely filed Rule 33 motion

affects § 2255's statute of limitations in one of two ways.

First, he contends that a conviction is not “final” for purposes

3 To assist the reader of this opinion, we set forth a
chronology of important dates:

Dec, 12, 1992: Trenkler and Shay were indicted.
June 24, 1993: The grand jury returned the
superceding, three-count indictment.
July 27, 1993: Shay was convicted at trial.
Nov. 29, 1993: Trenkler was convicted at trial.
June 22, 1995: We vacated Shay's conviction on direct
appeal and remanded his case to the
district court.
July 18, 1995: We affirmed Trenkler's conviction on
direct appeal (Trenkler I).
Sept. 5, 1995: Our mandate issued in Trenkler I.
Dec. 5, 1995: The period during which Trenkler could have
filed a petition for certiorari to review
our decision in Trenkler I ended.
Dec. 22, 1995: Trenkler filed a Rule 33 motion based
on newly discovered evidence.
Apr. 24, 1996: AEDPA's e f f e c t i v e date; one-year
statute of limitations began to run.
Feb. 4, 1997: The district court denied Trenkler's Rule 33
motion.
Apr. 24, 1997: The one-year statute of limitations
running from AEDPA's effective date
ended.
Jan. 6, 1998: We affirmed the district court's denial of
Trenkler's Rule 33 motion (Trenkler II).
Jan. 16, 1998: The district court ordered a new trial
for Shay.
Jan. 5, 1999: Trenkler filed the § 2255 motion under
consideration.

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of § 2255(1) until the prisoner has exhausted the possibility of

relief under Rule 33. Second, he argues that even if the

limitations period commences at the conclusion of appellate

review of the judgment of conviction, the statute of limitations

is suspended during the pendency of any subsequent Rule 33

motion by virtue of tolling provisions imported from other

sections of AEDPA. If we reject those statutory arguments,

Trenkler proposes a third ground for relief, arguing that the

doctrine of equitable tolling excuses his failure to file his

§ 2255 motion within the one-year period.

We analyze Trenkler's claims in turn. We review the

issues of statutory interpretation de novo, United States v.

Michaud, 243 F.3d 84, 85-86 (1st Cir. 2001), and the district

court's denial of equitable tolling for an abuse of discretion,

Delaney v. Matesanz, --- F.3d ---, 2001 WL 1001086, at *5-*6

(1st Cir. Sept. 5, 2001) (explaining that district court's

rejection of equitable tolling “on the facts” is reviewed for

abuse of discretion); Borden v. Paul Revere Life Ins. Co., 935

F.2d 370, 377 (1st Cir. 1991) (“[F]ashioning or withholding

equitable relief . . . rests uniquely within the discretion of

the trial court.”).

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A. Accrual

Trenkler's first argument focuses on when the statute

of limitations began to run. Here, the relevant accrual date is

the date on which Trenkler's conviction became “final” within

the meaning of § 2255(1). Although Trenkler accepts the

prevailing view that a conviction becomes “final” upon the

completion of direct review, he insists that the proceedings

before the district court and this court with regard to his Rule

33 motion were part of his “direct appeal.” Accordingly, he

argues that the statute of limitations did not begin to run

until January 6, 1998, when we affirmed the district court's

denial of his Rule 33 motion.

Although we have not addressed the question directly,

we consistently have treated Rule 33 motions filed after the

opportunity for direct appeal as a form of collateral attack on

a conviction rather than part of the process of direct review.

Thus, in Dirring v. United States, 353 F.2d 519, 520 (1st Cir.

1965), we held that the district court did not err in refusing

to appoint counsel to prosecute the defendant's post-appeal Rule

33 motion for a new trial. We explained that:

Appellant had counsel 'through appeal,' as
required by the Criminal Justice Act, 18
U.S.C. § 3006A(c). We do not construe that
phase to include motions for a new trial.
Nor do we so interpret the Sixth Amendment.
There must be an end. After final

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 conviction the appointment of counsel must
rest in the discretion of the court.

Id. We reaffirmed that holding in United States v. Tajeddini,

945 F.2d 458, 470 (1st Cir. 1991) (per curiam), abrogated on

other grounds by Roe v. Flores-Ortega, 528 U.S. 470 (2000),

stating that “a federally convicted defendant is not entitled

under the Criminal Justice Act, 18 U.S.C. § 3006A, or the Sixth

Amendment, to appointment of counsel on a motion for a new

trial.” That rule, we continued, applies to any Rule 33 motion

based on newly discovered evidence and filed after the

opportunity for direct appeal has expired, regardless of whether

the defendant pursued a direct appeal and lost, or simply

neglected to file a notice of appeal within the applicable

period: “We do not see why the convicted defendant who foregoes

a direct appeal and whose conviction has become final should be

treated differently from the defendant who has chosen to appeal

with respect to entitlement to counsel, on a collateral attack

of that conviction.” Id.; see also United States v. Lee, 513

F.2d 423, 424 (D.C. Cir. 1975) (holding that right to counsel

does not extend to Rule 33 motion based on newly discovered

evidence and filed after direct appeal); United States v.

Birrell, 482 F.2d 890, 892 (2d Cir. 1973) (same); cf. Kitchen v.

United States, 227 F.3d 1014, 1019 (7th Cir. 2000) (noting that

Rule 33 motion filed after completion of direct appeal “'plainly

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is “collateral” in the usual sense of that term'” (quoting

United States v. Woods, 169 F.3d 1077, 1078 (7th Cir. 1999)).

Only the Sixth Circuit has addressed the precise

question whether Rule 33 motions are included in the process of

direct review when they are based on newly discovered evidence

and filed after direct appeal either has or could have been

taken. In Johnson v. United States, 246 F.3d 655 (6th Cir.

2001), it held that such “delayed” Rule 33 motions should be

treated as collateral challenges to the judgment of conviction

and, as such, “do not affect the finality of a judgment for

purposes of the AEDPA.” Id. at 658 n.4, 659. The court found

support for that conclusion in Rule 4(b) of the Federal Rules of

Appellate Procedure. See id. at 658-59. Rule 4(b)(1) provides

that a defendant's notice of appeal in a criminal case normally

must be filed within ten days of the entry of judgment.

Subsection 4(b)(3)(A) modifies that general rule, stating that

if a defendant files a Rule 33 motion within the ten-day period,4

4
Unless based on newly discovered evidence, a Rule 33
motion must be filed within seven days of the entry of judgment,
and so always will fall within that ten-day period. See supra
note 1. Rule 33 motions based on newly discovered evidence,
however, may be filed up to three years after the entry of
judgment. Accordingly, Rule 4(b)(3)(A)(ii) provides that “if
based on newly discovered evidence,” a Rule 33 motion will
operate to toll the deadline for filing a notice of appeal “only
if the motion is made no later than 10 days after the entry of
the judgment.”

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the notice of appeal need only be filed within ten days of the

entry of the order disposing of that motion. Subsection

4(b)(3)(C) then provides that “[a] valid notice of appeal is

effective – without amendment – to appeal from an order

disposing of” a Rule 33 motion filed in accordance with

subsection (A). Rule 4(b) thus effectively incorporates Rule 33

motions into the process of direct appeal, but only when they

are filed within ten days of entry of the judgment of

conviction. The lack of any analogous provisions to so

incorporate motions based on newly discovered evidence and filed

outside the ten-day period strongly suggests that such motions

are not properly considered part of the direct appeal.

That inference is strengthened when one considers the

practical effects of Trenkler's proposed rule. Presumably,

treating “delayed” Rule 33 motions based on newly discovered

evidence as part of the process of direct review would mean that

no conviction could be deemed final for purposes of § 2255(1)

until the expiration of the three-year period for filing such

motions. Or, perhaps, a prisoner's conviction could become

final if the court of appeals affirmed the judgment of

conviction and the Supreme Court denied certiorari, and then

lose its finality if the prisoner later claimed to have

discovered new evidence, only to become final again once the

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Rule 33 motion was adjudicated. Either possibility is

unacceptable. The first approach “severely undercut[s]

Congress' intent in enacting the AEDPA by greatly extending the

time in which a petition may properly bring a § 2255 challenge.”

Johnson, 246 F.3d at 659. The second permits “every defendant

seeking to file an untimely § 2255 motion [to] do an end-run

around the AEDPA limitation period by filing a timely, but

ultimately meritless, Rule 33 motion.” Id.

We will not adopt an interpretation of the term “final”

in § 2255(1) that so clearly conflicts with the purpose of the

AEDPA statute of limitations. Accordingly, we hold that a Rule

33 motion for a new trial is not part of the “direct appeal”

from a judgment of conviction unless incorporated into that

appeal by virtue of Rule 4(b). Therefore, Trenkler's direct

appeal consisted only of his appeal to this court in Trenkler I,

and his conviction became final either on September 5, 1995,

when we issued our mandate in that case, or on December 5, 1995,

when the time for filing a petition for certiorari expired.5 As

5
We have yet to decide when a conviction becomes “final”
under § 2255(1) where, as here, the prisoner opted not to seek
certiorari review in the Supreme Court after his conviction was
affirmed in the court of appeals. Compare United States v.
Torres, 211 F.3d 836, 839-40 (4th Cir. 2000) (holding that
conviction becomes final when court of appeals' mandate issues),
and Gendron v. United States, 154 F.3d 672, 674 (7th Cir. 1998)
(same), with United States v. Garcia, 210 F.3d 1058, 1060-61
(9th Cir. 2000) (holding that conviction becomes final when time

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both dates predate AEDPA, the limitations period began to run on

AEDPA's effective date, April 24, 1996.

B. Tolling

Trenkler argues that even if the statute of limitations

began to run on AEDPA's effective date, it was tolled during the

pendency of his Rule 33 motion. He offers two bases for that

conclusion.

1. Statutory Tolling

First, Trenkler suggests that we should import into

§ 2255 the tolling provision contained in 28 U.S.C.

§ 2244(d)(2). Section 2244(d)(1) prescribes a one-year

limitations period for petitions filed by state prisoners under

28 U.S.C. § 2254, the state-conviction counterpart of § 2255.

Like motions filed under § 2255, § 2254 petitions for release

from state custody generally must be filed within one year of

“the date the conviction 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). However, § 2244(d)(2)

provides that the statute of limitations for § 2254 petitions is

for seeking certiorari expires), United States v. Gamble, 208
F.3d 536, 537 (5th Cir. 2000) (same), United States v. Burch,
202 F.3d 1274, 1279 (10th Cir. 2000) (same), and Kapral v.
United States, 166 F.3d 565, 571 (3d Cir. 1999) (same). We need
not address that issue here, as Trenkler's § 2255 motion was
untimely under either approach.

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tolled while “a properly filed application for State post-

conviction or other collateral review with respect to the

pertinent judgment or claim is pending.” Trenkler asks us to

read a similar tolling provision into § 2255 for federal

prisoners filing Rule 33 motions for a new trial on the basis of

newly discovered evidence. Congress, he argues, did not intend

to adopt different rules for federal and state prisoners; its

failure to include an explicit tolling provision in § 2255 to

mirror that in § 2244(d)(2) was simply an oversight that we

should correct here.

We decline that invitation. It has long been settled

that “[w]here Congress includes particular language in one

section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion.”

Russello v. United States, 464 U.S. 16, 23 (1983) (internal

quotation marks omitted). Thus, the omission in § 2255 of the

tolling language that is present in § 2244(d)(2) gives rise to

a negative inference that the statute of limitations for § 2255

is not tolled while federal prisoners pursue other forms of

post-conviction relief. See United States v. Prescott, 221 F.3d

686, 689 (4th Cir. 2000) (“Rather than providing support for

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[tolling under § 2255], we believe that § 2244(d)(2) counsels

against tolling in the present case.”).

Trenkler argued in his brief that the interpretive

canon described in Russello has no application here because “in

a world of silk purses and pigs' ears, [AEDPA] is not a silk

purse in the art of statutory drafting.” Lindh v. Murphy, 521

U.S. 320, 326 (1997). As Trenkler's counsel acknowledged at

oral argument, that argument was largely foreclosed by Duncan v.

Walker, 121 S. Ct. 2120 (2001), in which the Supreme Court

relied on that same canon in interpreting § 2244(d)(2).6

Moreover, even without resort to Russello, we would find ample

cause to conclude that Congress's decision to provide for

tolling in § 2244(d)(2) but not § 2255 was an intentional one.

Federal habeas corpus review of state convictions under § 2254

implicates principles of comity that are inapplicable in the

context of federal review of federal convictions under § 2255.

“Comity . . . dictates that when a prisoner alleges that his

continued confinement for a state court conviction violates

federal law, the state courts should have the first opportunity

6 In Duncan, the Supreme Court held that the phrase “State
post-conviction and other collateral review” in § 2244(d)(2)
embraces only “other collateral review” in state court,
reasoning that Congress's specific reference to both “state” and
“federal” review in other provisions of AEDPA indicated that its
omission of the word “federal” in § 2244(d)(2) was intentional.
See 121 S. Ct. at 2124-25.

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to review this claim and provide any necessary relief.”

O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see also 28

U.S.C. § 2254(b)(1) (requiring state prisoners to exhaust

available state post-conviction remedies before filing § 2254

petition for federal relief). As the Supreme Court explained in

Duncan, the tolling provision contained in § 2244(d)(2) reflects

Congress's attempt to promote the exhaustion requirement while

preserving a meaningful opportunity for state prisoners to seek

federal review. 121 S. Ct. at 2128. In the absence of an

explicit tolling provision, state prisoners could obtain relief

in federal court only in the unlikely event that they were able

to exhaust all available state review within the one-year

limitations period for § 2254 petitions.

Federal prisoners like Trenkler do not face the same

problem. Nothing in AEDPA obligated Trenkler to exhaust the

opportunity for relief under Rule 33 before seeking review of

his conviction and sentence under § 2255. He was free to file

a § 2255 motion immediately without fear that it would be

dismissed for failure to exhaust available post-conviction

remedies. We acknowledge, however, that the availability of

post-conviction relief under Rule 33 and under AEDPA can create

some uncertainty for federal prisoners who, like Trenkler, must

decide whether to seek relief under Rule 33 or § 2255. On one

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hand, the strict statute of limitations for § 2255 motions

counsels in favor of pursuing that avenue of relief first. On

the other hand, the standard for relief under Rule 33 “is likely

more enticing to a prisoner than the provisions of § 2255.”

Prescott, 221 F.3d at 688. Under Rule 33, the district court

has broad discretion to grant a new trial “if the interests of

justice so require.” Fed. R. Crim. Proc. 33. Section 2255, by

contrast, authorizes the district court to grant relief only if

it finds that “the judgment was rendered without jurisdiction,

or that the sentence imposed was not authorized by law or

otherwise open to collateral attack, or that there has been such

a denial or infringement of the constitutional rights of the

prisoner as to render the judgment vulnerable to collateral

attack.” 28 U.S.C. § 2255. Thus, federal prisoners may well

prefer to seek relief in the first instance under Rule 33 rather

than § 2255. Once a Rule 33 motion has been filed and is

pending before the district court or the court of appeals, there

is a certain inefficiency in compelling a prisoner to initiate

new – and possibly duplicative – proceedings under § 2255.

However, AEDPA's one-year statute of limitations sometimes will

require just that. See Prescott, 221 F.3d at 689. The solution

is not, as Trenkler suggests, to read a tolling provision into

§ 2255. Rather, to the extent that the overlap between § 2255

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and Rule 33 creates the potential for inefficiency, district

courts are “well equipped” to alleviate that problem through

consolidation of the various motions for collateral relief. Id.7

2. Equitable Tolling

Trenkler argues that even if we conclude that he failed

to comply with AEDPA's statute of limitations, we should excuse

his tardiness on the basis of equitable tolling. A number of

courts have held that in “'rare and exceptional'” circumstances

equitable tolling may be available in a § 2255 case brought

under AEDPA. United States v. Patterson, 211 F.3d 927, 930 (5th

Cir. 2000) (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th

Cir. 1998)); accord, e.g., Dunlap v. United States, 250 F.3d

1001, 1006-07 (6th Cir. 2001); Green v. United States, 260 F.3d

78, 82-83 (2d Cir. 2001) (citing Smith v. McGinnis, 208 F.3d 13,

17 (2d Cir. 2000)); Prescott, 221 F.3d at 687-88; United States

v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (citing Taliani

v. Chrans, 189 F.3d 597 (7th Cir. 1999)); Sandvik v. United

States, 177 F.3d 1269, 1271 (11th Cir. 1999); Miller v. New

7 The Seventh Circuit has adopted a slightly different
approach: when the district court receives a Rule 33 motion, it
must ask the prisoner whether he intends to file motion under §
2255. If the answer is yes, the district court must delay
consideration of the Rule 33 motion until it receives the § 2255
motion, and consider both challenges at once. See O'Connor v.
United States, 133 F.3d 548, 551 (7th Cir. 1998).

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Jersey State Dept. of Corrections, 145 F.3d 616, 617-19 & n.1

(3d Cir. 1998); but see United States v. Pollard, --- F.3d ---,

2001 WL 1001093, at *9 (D.C. Cir. Aug. 7, 2001) (concluding that

Congress did not intend § 2255 to be subject to equitable

tolling). We have yet to address that question, and we decline

to do so here. See, e.g., Delaney, 2001 WL 1001086, at *6

(reserving question whether doctrine of equitable tolling is

available under § 2255 where facts of case did not support

application of doctrine). The district court, assuming arguendo

that equitable tolling might apply, prudently addressed the

issue and resolved it adversely to Trenkler. We review that

ruling for abuse of discretion, see id. at *5-*6, and affirm.

In other contexts, we have held that the doctrine of

equitable tolling is available only in rare cases where, for

example, “extraordinary circumstances beyond the claimant's

control prevented timely filing, or the claimant was materially

misled into missing the deadline.” Fradella v. Petricca, 183

F.3d 17, 21 (1st Cir. 1999); accord Bonilla v. Muebles J.J.

Alvarez, Inc., 194 F.3d 275, 279 (1st Cir. 1999); Torres v.

Superintendent of Police of Puerto Rico, 893 F.2d 404, 407-08

(1st Cir. 1990). Equitable tolling is not warranted where the

claimant simply “failed to exercise due diligence in preserving

his legal rights.” Irwin v. Dep't of Veterans Affairs, 498 U.S.

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89, 96 (1990); see also Wilson v. United States, 23 F.3d 559,

562 (1st Cir. 1994) (“We see no basis for extending the

exceptional doctrine of equitable tolling to a party who, by all

accounts, merely failed to exercise his rights.”). “In a

nutshell, equitable tolling is reserved for exceptional cases .

. . .” Chico-Velez v. Roche Prods., Inc., 139 F.3d 56, 59 (1st

Cir. 1998). Consistent with that view, those courts that have

permitted equitable tolling under § 2255 have applied it

sparingly, and have denied equitable tolling where, for example,

a § 2255 motion was filed only one day late because of confusion

over the applicable deadline, see Marcello, 212 F.3d at 1010, or

because counsel decided five days before the deadline to send

the motion via ordinary mail, see Sandvik, 177 F.3d at 1271-72.

Trenkler argues that he satisfies the exacting standard

for equitable tolling for a variety of reasons. First, he

states, without elaboration, that “compelling reasons of

personal and judicial economy compelled [him] to await a final

determination on his Motion for a New Trial before filing his

§2255 petition.” As the party seeking to invoke the doctrine of

equitable tolling, Trenkler bears the burden of establishing the

basis for it. I.V. Servs. of Am., Inc. v. Inn Dev. & Mgmt.,

Inc., 182 F.3d 51, 54 (1st Cir. 1999). Such conclusory

assertions rarely will suffice to meet that burden. However,

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even if adequately explained, Trenkler's argument would fall far

short of the showing needed to support equitable tolling.

Trenkler may well be correct that it would have been inefficient

for the district court to have passed on his § 2255 motion while

this court was considering his Rule 33 motion. That fact,

however, speaks only to whether the district court should have

decided Trenkler's § 2255 motion during the pendency of his Rule

33 motion, not when Trenkler should have filed it. As the

Fourth Circuit recently explained, “[c]onsolidation of motions

under Rule 33 and § 2255 is an option, and district courts are

well equipped to resolve these motions in a timely and expedient

manner.” Prescott, 221 F.3d at 689. More fundamentally,

however, the fact that a statute of limitations creates certain

inefficiencies or inconveniences hardly qualifies as an

“extraordinary circumstance” that “prevent[s]” a litigant from

complying with the strictures of the applicable limitations

period. Fradella, 183 F.3d at 21.

As a second justification for the application of

equitable tolling, Trenkler states that it was not his fault

that it took more than two years for his Rule 33 motion – which

was filed within § 2255's limitations period – to work its way

through the district court and then to this court on appeal.

Such a lengthy period of adjudication, Trenkler contends, was a

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“circumstance beyond [his] control that prevented timely

filing.” That argument might have some force if Trenkler

were, in fact, barred from filing a motion under § 2255 while

his Rule 33 motion was pending, or if federal prisoners were

required to exhaust such avenues of relief before filing a

motion under § 2255. However, as our analysis of Trenkler's

statutory arguments makes clear, neither of those propositions

is true.8 Put simply, nothing prevented Trenkler from filing a

§ 2255 motion while his Rule 33 motion was pending, just as

nothing compelled him to file a motion under Rule 33 in the

first place rather than seeking relief under § 2255. Therefore,

the fact that it took more than two years for his Rule 33 motion

to wend its way through the courts, although outside Trenkler's

control, provides no basis for equitable tolling.9 Cf. Prescott,

8Trenkler relies on language from United States v. Dorsey,
988 F. Supp. 917, 919 (D. Md. 1998), to the effect that a § 2255
motion should not be filed “prior to the completion of any
direct appeal.” As we explained with regard to Trenkler's
accrual argument, however, our decision affirming the dismissal
of his Rule 33 motion was not part of Trenkler's “direct
appeal.”
9 At oral argument, Trenkler's counsel suggested for the
first time that equitable tolling is appropriate here because
Trenkler's post-conviction counsel erred in 1995 when he filed
a motion under Rule 33 instead of § 2255. We express no view as
to the merits of that argument. “It is not enough merely to
mention a possible argument in the most skeletal way, leaving
the court to do counsel's work, create the ossature for the
argument, and put flesh on its bones.” United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Given Trenkler's

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221 F.3d at 688 (“Prescott's current predicament originated not

in his decision to request a new trial pursuant to Rule 33, but

his inattention to the limitation period of § 2255.”).

Trenkler's third argument for equitable tolling rests

on the timing of various decisions regarding the admissibility

of Dr. Phillips's testimony. That testimony was arguably

relevant to both Shay and Trenkler, as the government introduced

Shay's incriminating statements at both men's trials. Shay

attempted to introduce Dr. Phillips's testimony at his trial;

Trenkler did not. After Shay appealed his conviction to this

court, we held on June 22, 1995, that the district court erred

in refusing to admit Dr. Phillips's testimony under Rule 702.

We remanded the case to the district court so that it could

determine whether the testimony should have been admitted under

Rule 403. On January 16, 1998, the district court answered that

question in the affirmative, and ordered a new trial for Shay.

Trenkler argues that, since his § 2255 motion features

the claim that his trial attorney's failure to introduce Dr.

Phillips's testimony constituted ineffective assistance in

failure to raise the argument in either of his appellate briefs,
“we see no reason to abandon the settled appellate rule that
issues adverted to in a perfunctory manner, unaccompanied by
some effort at developed argumentation, are deemed waived.” Id.

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violation of the Sixth Amendment, the most “appropriate” and

efficient route was to “await a determination as to the

admissibility of the doctor's testimony.” Although that

argument suffers from several flaws, there is one that

predominates: the determination for which Trenkler claims he

needed to wait was made well before § 2255's statute of

limitations even began to run, when we held on June 22, 1995,

that the district court should have admitted Dr. Phillips's

testimony under Rule 702. Indeed, Trenkler's Rule 33 motion was

based entirely on the argument that he had “newly discovered”

that Dr. Phillips's testimony was admissible because of our

decision on June 22, 1995. That he felt it prudent to wait for

the completion of yet another round of litigation before filing

a motion under § 2255 does not excuse his failure to comply with

the one-year limitations period.

Finally, Trenkler argues that his sentence of life in

prison supports the application of equitable tolling to forgive

his untimely filing. Without minimizing the significance of the

life sentence imposed, we must reject that argument. Trenkler

cites no authority, nor do we find any, for the proposition that

equitable tolling is justified because of the severity of the

sentence imposed.

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 In sum, Trenkler has presented “what is at best a

garden variety claim of excusable neglect.” Irwin, 498 U.S. at

97. Assuming that the doctrine of equitable tolling applies, we

conclude that the district court did not abuse its discretion in

denying equitable tolling on those facts.

Affirmed.

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