Neverson v. Farquharson

United States Court of Appeals
For the First Circuit
No. 03-1385

TREVOR NEVERSON,

Petitioner, Appellant,

v.

STEPHEN FARQUHARSON; FREDERICK B. MACDONALD; LYNN BISSONNETTE,

Respondents, Appellees,

WILLIAM CUDWORTH, Warden of the Adult Correctional Institution,
Cranston, Rhode Island; IMMIGRATION AND NATURALIZATION SERVICE,

Respondents.

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

[Hon. William G. Young, Chief U.S. District Judge]

Before
Lynch, Lipez, and Howard, Circuit Judges.

John M. Thompson, with whom Thompson & Thompson, P.C. was on
brief, for petitioner.

Natalie S. Monroe, with whom Thomas F. Reilly, Attorney
General, was on brief, for respondent Bissonnette.

Brenda M. O'Malley, Trial Attorney, Office of Immigration
Litigation, with whom Peter D. Keisler, Assistant Attorney General,
Civil Division, and Linda S. Wernery, Senior Litigation Counsel,
were on brief, for respondents Farquharson, MacDonald, Cudworth,
and INS.

May 4, 2004
 LYNCH, Circuit Judge. Petitioner Trevor Neverson, a

native and citizen of Trinidad, was convicted of involuntary

manslaughter by a Massachusetts jury in 1990. After a delay of

several years, Neverson sought federal habeas corpus relief. The

district court held that Neverson's habeas petition was timely

under the doctrine of equitable tolling but denied the petition on

the merits.

We affirm on a different ground. This case presents a

question that this court has several times noted but declined to

resolve: whether 28 U.S.C. § 2244(d)(1), which imposes a one-year

limitations period on habeas corpus petitions by state prisoners,

is subject to the defense of equitable tolling.1 The district

judge, directed to consider that question by a previous panel of

this court, see Neverson v. Bissonnette, 261 F.3d 120, 127 (1st

Cir. 2001), held that the § 2244(d)(1) limitations period is

subject to equitable tolling and that Neverson qualifies for

protection under that doctrine. We hold that equitable tolling may

apply under § 2244(d)(1) in appropriate cases, but conclude that

the district court was not justified in tolling the § 2244(d)(1)

limitations period on the facts of this case.

1
See, e.g., David v. Hall, 318 F.3d 343, 346 (1st Cir. 2003);
Lattimore v. Dubois, 311 F.3d 46, 55 (1st Cir. 2002); Donovan v.
Maine, 276 F.3d 87, 92-93 (1st Cir. 2002); Delaney v. Matesanz, 264
F.3d 7, 14 (1st Cir. 2001); see also Brackett v. United States, 270
F.3d 60, 71 (1st Cir. 2001) (same, petitions by federal prisoners
under 28 U.S.C. § 2255).

-2-
 I.

We begin by noting what is at stake in this appeal.

Though framed as an attack on his state conviction under 28 U.S.C.

§ 2254, Neverson's habeas petition is at bottom an effort to

prevent his removal to Trinidad. While Neverson was in prison for

his 1990 Massachusetts manslaughter conviction, the INS2 instigated

removal proceedings against him and, in 1997, ordered him deported

-- a decision based in part on the fact of Neverson's manslaughter

conviction. Cf. 8 U.S.C. § 1227(a)(2)(A)(iii) (commission of an

aggravated felony by an alien is a ground for removal). Neverson

finished serving his Massachusetts prison sentence in March 2000.

Upon his release, he was immediately taken into INS custody, where

he remains today. Neverson now seeks relief from his manslaughter

conviction in order to attack his removal order -- if the writ

issues, he will petition the INS to reopen his deportation

proceeding and reconsider his eligibility for certain kinds of

relief from removal (e.g., asylum). To this end, Neverson amended

his § 2254 petition in the district court to add claims against the

INS and certain INS officials under 28 U.S.C. § 2241 (together, the

INS respondents).

2
In March 2003, the relevant functions of the INS were
transferred into the new Department of Homeland Security and
reorganized into the Bureau of Immigration and Customs Enforcement
(BICE). For simplicity, we refer to the agency throughout this
opinion as the INS.

-3-
 We recount the facts underlying Neverson's conviction,

together with the tangled history of state, immigration, and

federal habeas proceedings that followed. Because the timeliness

of Neverson's petition is at issue, the various dates are

important. Details that do not bear on our decision are omitted.3

A. Neverson's State Conviction

In 1987, a Massachusetts grand jury indicted Neverson for

the murder of Leshawna Wright, his infant stepdaughter. His first

trial, held in 1989, resulted in a deadlocked jury and a court-

ordered judgment of acquittal to the extent that the indictment

charged first-degree murder. In 1990, the Commonwealth tried

again. At the trial, the prosecution presented expert testimony

that "blunt force trauma" was the cause of the baby's death. The

child's injuries included fractured ribs, abrasions and contusions,

and severe damage to internal organs. Two medical experts

testified for the prosecution that these injuries were likely

inflicted by blunt, forceful blows, and that they were inconsistent

with a household accident. Further, despite minor discrepancies in

their testimony, both experts concluded that Leshawna's death

3
More extended discussions of the facts appear in the various
published opinions addressing Neverson's claims, including the
state appellate court decision upholding Neverson's conviction,
Commonwealth v. Neverson, 619 N.E.2d 344, 345 (Mass. App. Ct.
1993); this court's 2001 opinion remanding for consideration of
equitable tolling, Neverson v. Bissonnette, 261 F.3d 120, 122-24
(1st Cir. 2001); and the district court's opinion denying
Neverson's habeas petition on the merits, Neverson v. Bissonnette,
242 F. Supp. 2d 78, 82-83 (D. Mass. 2003).

-4-
occurred at a time when Neverson was home alone with the baby and

her stepbrother.

The defense's theory was that Leshawna had fallen from

the top of the bunk bed in the bedroom shared by the two children.

Neverson proposed to offer the testimony of Dr. James Masi, a

professor of physics and biomechanics. Dr. Masi was prepared to

testify that a child of Leshawna's size who fell from a height of

sixty-three inches, the distance between the top bunk and the

floor, would strike the floor with sufficient force that she would

probably not survive. Dr. Masi acknowledged on voir dire, however,

that his expertise was in physics, not in the medical consequences

of falls. For that reason, the trial judge barred Dr. Masi from

testifying to the likely medical consequences to Leshawna of a fall

from the bunk bed, though the judge was prepared to allow testimony

concerning the velocity and force with which the child would strike

the floor. Neverson elected not to have Dr. Masi testify; instead,

he took the stand and testified that he did not injure the child.

On July 24, 1990, the jury found Neverson guilty of

involuntary manslaughter but acquitted him of second-degree murder.

He was sentenced to serve sixteen to nineteen years in prison.

Neverson brought a timely appeal in the Massachusetts Appeals

Court, where he argued that the evidence was insufficient to

support the verdict and that the trial court erred in refusing to

allow Dr. Masi to testify. The court rejected both arguments,

-5-
highlighting the evidence offered by the prosecution's experts and

upholding the exclusion of Dr. Masi's proposed testimony in part

because it contained "obvious rubbish." Commonwealth v. Neverson,

619 N.E.2d 344, 345-46 (Mass. App. Ct. 1993). The Massachusetts

Supreme Judicial Court denied further appellate review on October

25, 1993. Commonwealth v. Neverson, 622 N.E.2d 1364 (Mass. 1993)

(table). Neverson's conviction became final when the ninety-day

period for seeking certiorari expired on January 23, 1994. See

Clay v. United States, 537 U.S. 522, 527 (2003) (discussing

finality for purposes of post-conviction relief).

B. Neverson's First Habeas Petition and State Post-Trial
Proceedings

On August 28, 1996, almost three years after the SJC

rejected his direct appeal, Neverson (acting pro se) filed his

first petition for habeas corpus under 28 U.S.C. § 2254. On

respondents' motion, the district court (Judge O'Toole) dismissed

the petition without prejudice because it included unexhausted

claims. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (federal

courts must dismiss "mixed" habeas petitions, i.e., those

containing both exhausted and unexhausted claims).4

Neverson then returned to state court to exhaust his

state post-conviction remedies. His pro se motion for a new trial,

filed on July 9, 1997, was denied by the trial judge. The

4
Neverson initially appealed the dismissal of his petition to
this court, but he later changed his mind and withdrew the appeal.

-6-
Massachusetts Appeals Court turned down Neverson's appeal of that

order, Commonwealth v. Neverson, 699 N.E.2d 28 (Mass. App. Ct.

1998) (table), and the SJC again denied further review,

Commonwealth v. Neverson, 700 N.E.2d 544 (Mass. 1998) (table).

C. Deportation Proceedings

At the same time, Neverson -- who had illegally entered

the United States in 1985 -- was also fighting deportation. In

1994, shortly after he began serving his Massachusetts prison term,

the INS began removal proceedings against Neverson for entering the

United States without inspection. Later, the agency asserted a

second ground for removal: that he had been convicted of an

aggravated felony (i.e., the manslaughter conviction). See 8

U.S.C. § 1227(a)(2)(A)(iii). On October 24, 1997, an immigration

judge found Neverson deportable on both counts, held him ineligible

for voluntary departure due to his manslaughter conviction, and

ordered his removal to Trinidad. The Board of Immigration Appeals

affirmed on December 3, 1998. Neverson did not seek judicial

review of that decision.

D. The Instant Habeas Petition

1. Dismissal under 28 U.S.C. § 2244(d)(1)

Meanwhile, on August 17, 1998, Neverson filed a new pro

se petition for habeas corpus that contained only exhausted claims.

The district court (Judge Lindsay) dismissed Neverson's petition as

time-barred under the Antiterrorism and Effective Death Penalty

-7-
Act, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (AEDPA). See

Neverson v. Bissonnette, No. CIVA9811719RCL, 1999 WL 33301665, at

*3 (D. Mass. Dec. 10, 1999). AEDPA imposed a one-year statute of

limitations for § 2254 claims. Codified at 28 U.S.C. § 2244(d)(1),

that limitations period expired for Neverson's purposes on April

24, 1997, one year after the date of AEDPA's enactment. Neverson,

1999 WL 33301665, at *2; see Gaskins v. Duval, 183 F.3d 8, 9 (1st

Cir. 1999) (allowing a one-year grace period beginning on the date

of AEDPA's enactment for prisoners whose convictions became final

prior to AEDPA).

In his arguments to the district court, Neverson

acknowledged AEDPA but argued that the § 2244(d)(1) period was

tolled while his first habeas petition was pending. Neverson

relied in part on 28 U.S.C. § 2244(d)(2), which tolls the one-year

limitations period during the pendency of "a properly filed

application for State post-conviction or other collateral review."

He contended that the reference to "other collateral review" in

§ 2244(d)(2) meant that the limitations period was tolled during

any prior federal habeas proceedings. If so, his second habeas

petition was timely.5

5
Neverson's first habeas petition was within the limitations
period, having been filed on August 28, 1996, or 126 days after the
period began to run. That first petition remained pending in
federal court for 118 days. Neverson's second, fully exhausted
habeas petition was filed on August 17, 1998, or 464 days after the
AEDPA period began to run. So if the limitations period was tolled
while Neverson's first habeas petition was pending in federal

-8-
 Judge Lindsay disagreed, holding that § 2244(d)(2)

applied only to state collateral proceedings and that, as a result,

the AEDPA limitations period had expired in April 1997, before

Neverson filed his state petition for post-conviction relief. See

1999 WL 33301665, at *3. Judge Lindsay also rejected Neverson's

argument that his second petition "relate[d] back" to his first

under Fed. R. Civ. P. 15(c). Id. But while he denied Neverson's

petition, Judge Lindsay granted a certificate of appealability on

both the tolling and relation-back issues. See id. Neverson then

perfected his appeal.

2. First Appeal and Remand

A panel of this court appointed counsel for Neverson and

heard argument on November 9, 2000. Shortly thereafter, the

Supreme Court granted certiorari in Duncan v. Walker, 531 U.S. 991

(2000) (mem.). Duncan presented one of the two questions raised by

Neverson's appeal: whether 28 U.S.C. § 2244(d)(2) meant that

AEDPA's one-year limitations period was tolled during prior federal

habeas corpus proceedings. Accordingly, we stayed Neverson's

appeal until June 2001, when the Supreme Court answered that

question in the negative. See Duncan v. Walker, 533 U.S. 167, 180-

81 (2001). Then, consistent with Duncan, this court upheld the

district court's rejection of Neverson's statutory tolling and

relation-back arguments. See Neverson, 261 F.3d at 125-26.

court, he used only 346 days out of his allotted 365.

-9-
 Nevertheless, we recognized that the separate doctrine of

equitable tolling, if available at all under § 2244(d)(1), might

salvage Neverson's claims. Id. at 126-27; see also Duncan, 533

U.S. at 183 (Stevens, J., concurring) (observing that nothing in

Duncan or in AEDPA "precludes a federal court from deeming the

limitations period tolled for [a federal habeas] petition as a

matter of equity"). Concluding that Neverson had raised an

equitable tolling argument before the district court but that the

court had not addressed it, we remanded the case with instructions

to consider whether equitable tolling is available under

§ 2244(d)(1) and, if so, whether it would save Neverson's petition.

261 F.3d at 127.

3. Remand: Acceptance of Equitable Tolling and Denial
on the Merits

On remand, the district court (Chief Judge Young) held

that equitable tolling should apply under § 2244(d)(1) and tolled

the limitations period for the 118 days that Neverson's first

habeas petition was pending before Judge O'Toole. The court also,

in an earlier order, allowed Neverson to amend his habeas petition

to include claims under 28 U.S.C. § 2241 challenging his

deportation. Then on February 4, 2003, after taking briefs and

hearing argument, the district court denied Neverson's habeas

-10-
petition on the merits. See Neverson v. Bissonnette, 242 F. Supp.

2d 78, 95 (D. Mass. 2003).6

The district court granted a certificate of appealability

"as to the propriety of equitable tolling and as to each of the

substantive grounds on which the court rejected the petitioner's

habeas claim." Neverson brought the instant appeal.

E. Provisional Stay of Removal

During the pendency of this appeal, Neverson's

immigration proceedings have been on hold. In March 2000, while

his first appeal was pending before this court, Neverson completed

his sentence for his Massachusetts manslaughter conviction. The

INS immediately took Neverson into custody and prepared to deport

him, acquiring the necessary travel documents and purchasing a one-

way ticket to Trinidad on American Airlines.

On Neverson's emergency motion, this court issued a

provisional stay on September 8, 2000 barring the INS from

deporting Neverson until we could hear and decide his case. When

Neverson's case was remanded to the district court, we specified

that the provisional stay was to remain in effect until "further

order of either the district court or, if another appeal ensues,

this court." 261 F.3d at 127.

6
The district court did not address the merits of Neverson's
§ 2241 claims against the INS respondents. When Neverson pointed
this out in a Rule 60(a) motion to reopen, the court denied the
motion and stated that its February 4, 2003 opinion had "addressed
al[l] the matters before it."

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 Nevertheless, on June 25, 2003, after the district court

had denied Neverson's petition on the merits, the INS announced its

intention to deport Neverson to Trinidad -- even though Neverson

had already noticed an appeal to this court and the district court

had already granted a certificate of appealability. Neverson

sought emergency relief from the district court, which issued an

order stating that it lacked jurisdiction to award relief but

clarifying that its February 4, 2003 opinion had not modified the

September 8, 2000 provisional stay. On July 2, 2003, this court

entered an order confirming that the INS was not permitted to

deport Neverson until further notice: "We agree with petitioner

that the provisional stay of deportation entered on September 8,

2000 remains in effect and that, so long as that is the case, any

attempt to execute his removal is barred."

II.

A. Appellate Jurisdiction

Before turning to the merits, we must address Neverson's

contention that this court lacks jurisdiction to consider the

Commonwealth's challenge to the district court's use of equitable

tolling under AEDPA. That issue is not properly before this court,

Neverson says, because the district court decided it in his favor

and the Commonwealth failed to file a cross-appeal.

We disagree. Neverson is correct that absent a cross-

appeal, a party "may not use his opponent's appeal as a vehicle for

-12-
attacking a final judgment in an effort to diminish the appealing

party's rights thereunder." Figueroa v. Rivera, 147 F.3d 77, 81

(1st Cir. 1998); see El Paso Natural Gas Co. v. Neztsosie, 526 U.S.

473, 479 (1999); United States v. Craven, 239 F.3d 91, 97 (1st Cir.

2001). But respondents here do not seek to alter the judgment of

the district court. On the contrary, the district court granted

all of the relief that respondents requested -- i.e., dismissal of

Neverson's petition with prejudice.7 Under these circumstances, a

cross-appeal would have been improper. See Alberty-Velez v.

Corporacion de Puerto Rico Para La Difusion Publica, 361 F.3d 1, 5

n.4 (1st Cir. 2004) ("A party may not appeal from a favorable

judgment.").

Here, respondents merely seek to defend the dismissal of

Neverson's petition on an alternate legal ground that is manifest

in the record. This they are entitled to do, even if it means

attacking the reasoning of the district court, see Neztsosie, 526

U.S. at 479, and even if they lost on the same argument below, see

Connell v. Trs. of the Pension Fund of the Ironworkers Dist.

Council, 118 F.3d 154, 156 n.5 (3d Cir. 1997) (applying this

principle in the statute of limitations context); Engleson v.

7
By comparison, if the district court had dismissed
Neverson's petition without prejudice, a cross-appeal would have
been necessary to convert the judgment to dismissal with prejudice
on statute of limitations grounds. See Tredway v. Farley, 35 F.3d
288, 296 (7th Cir. 1994) (in habeas case, dismissal without
prejudice could not be converted to dismissal with prejudice absent
timely cross-appeal).

-13-
Burlington N. R.R. Co., 972 F.2d 1038, 1041 (9th Cir. 1992) (same).

There is no defect in our appellate jurisdiction.

B. Equitable Tolling Under 28 U.S.C. § 2244(d)(1)

1. Availability of Equitable Tolling

The next question is the same one that this court

originally directed the district court to consider: "Is equitable

tolling available to extend the one-year limitation period

specified in section 2244(d)(1)?" Neverson, 261 F.3d at 127. This

court has several times noted this question but declined to answer

it. See supra note 1. In this case, because we earlier remanded

on this precise issue, because the district court held that

equitable tolling is available, and because respondents challenge

that conclusion, we will address it. Our review is de novo.

Almanzar v. Maloney, 281 F.3d 300, 303 (1st Cir. 2002) (a district

court's legal conclusions in a habeas proceeding are reviewed de

novo).

The doctrine of equitable tolling provides that in

exceptional circumstances, a statute of limitations "may be

extended for equitable reasons not acknowledged in the statute

creating the limitations period." David v. Hall, 318 F.3d 343,

345-46 (1st Cir. 2003); see Delaney v. Matesanz, 264 F.3d 7, 13-14

(1st Cir. 2001). Statutory filing deadlines are presumptively

subject to equitable tolling. See Irwin v. Dep't of Veterans

Affairs, 498 U.S. 89, 95-96 (1990) (referring to the "rebuttable

-14-
presumption of equitable tolling"); United States v. Locke, 471

U.S. 84, 94 n.10 (1985); see also Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 393 (1982) (filing a timely charge of

discrimination with the EEOC is "a requirement that, like a statute

of limitations, is subject to . . . equitable tolling").

The presumption that equitable tolling is available is

rebutted principally in two situations. First, deadlines that

define the court's jurisdiction may not be equitably tolled. See

Soriano v. United States, 352 U.S. 270, 276 (1957); David, 318 F.3d

at 345.8 Second, equitable tolling will not apply where there are

other indications that Congress intended to preclude it. See

United States v. Beggerly, 524 U.S. 38, 48 (1998); United States v.

Brockamp, 519 U.S. 347, 350-51 (1997); Jordan Hosp., Inc. v.

Shalala, 276 F.3d 72, 79-80 (1st Cir. 2002).

8
This court suggested over ten years ago that the focus in
Soriano and its progeny on whether the limitations period at issue
is "jurisdictional" might be inconsistent with the "rebuttable
presumption of equitable tolling" in Irwin. See Oropallo v. United
States, 994 F.2d 25, 29 n.4 (1st Cir. 1993). But there is no
necessary inconsistency between Soriano and Irwin (i.e., it may be
that when a time limit is phrased in jurisdictional terms, the
Irwin presumption is rebutted), and the Supreme Court after Irwin
has continued to characterize "jurisdictional" time limits as
ineligible for equitable tolling. See, e.g., Stone v. INS, 514
U.S. 386, 405 (1995). So, too, has this court. E.g., David, 318
F.3d at 345. In any event, the question underlying these doctrinal
pigeonholes is whether equitable tolling would be "inconsistent
with the text of the relevant statute," United States v. Beggerly,
524 U.S. 38, 48 (1998), and the extent to which a statutory
deadline is phrased in jurisdictional terms is relevant to that
determination.

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 There is no indication in the text of § 2244(d)(1) that

the one-year deadline is jurisdictional or that Congress meant to

preclude equitable tolling. The statute expressly describes the

one-year term as a "period of limitation." It does not "speak in

jurisdictional terms or refer in any way to the jurisdiction of the

district courts." Zipes, 455 U.S. at 394; see David, 318 F.3d at

346. Nor does 28 U.S.C. § 2241, the provision permitting district

courts to grant writs of habeas corpus, limit that power to cases

in which the petition has been timely filed. See Zipes, 455 U.S.

at 393. AEDPA's legislative history likewise makes clear that

Congress intended to create a statute of limitations for habeas

claims, not a jurisdictional bar. See Calderon v. U.S. Dist. Ct.

for the Cent. Dist. of Cal., 128 F.3d 1283, 1288-89 (9th Cir. 1997)

(summarizing the relevant legislative history), overruled on other

grounds, 163 F.3d 530, 539 (9th Cir. 1998) (en banc).

Respondent Bissonnette argues that by setting out a

variety of specific circumstances that will delay the running of

the statute, see § 2244(d)(1)(B)-(D), and by providing that the

one-year period is tolled during the pendency of state collateral

review, see § 2244(d)(2), Congress implicitly precluded tolling

based on other equitable considerations. Cf. Brockamp, 519 U.S. at

351-52 (holding that equitable tolling is not available under a tax

statute because, inter alia, the statute "sets forth explicit

exceptions to its basic time limits, and those very specific

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exceptions do not include 'equitable tolling'"). This is a

forceful objection, as this court has elsewhere acknowledged. See

David, 318 F.3d at 346 (noting the specific exceptions listed in

§ 2244(d)(1) and observing that "Congress likely did not conceive

that the courts would add new exceptions").

Nevertheless, we agree with the Fourth Circuit that

respondents' argument "reads too much into any negative inference

that may reasonably be drawn from the exceptions." Harris v.

Hutchinson, 209 F.3d 325, 329 (4th Cir. 2000). Congress's

inclusion of a few specific exceptions in § 2244(d)(1) does not

require the inference that the limitations period is, for all other

purposes, effectively a jurisdictional bar. Given that Congress

enacted § 2244(d)(1) against the background of the Irwin

presumption and elected to describe the one-year term as a "period

of limitation," the better conclusion is that Congress intended to

retain the flexibility afforded by the doctrine of equitable

tolling. See Young v. United States, 535 U.S. 43, 49-50 (2002)

(Congress must be presumed to draft limitations periods in light of

the "hornbook law that limitations periods are subject to equitable

tolling" (internal quotation marks omitted)).9

9
We also note that at least four Justices in Duncan v.
Walker, 533 U.S. 167 (2001), expressed the view that equitable
tolling is available under § 2244(d)(1). See id. at 183 (Stevens,
J., joined by Souter, J., concurring) ("[N]either the Court's
narrow holding, nor anything in the text or legislative history of
AEDPA, precludes a federal court from deeming the limitations
period tolled . . . as a matter of equity."); id. at 192 (Breyer,

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 We hold that the one-year limitations period in

§ 2244(d)(1) is not jurisdictional and, accordingly, can be subject

to equitable tolling in appropriate cases. Every other circuit to

address this question has reached the same conclusion. See

McClendon v. Sherman, 329 F.3d 490, 492 (6th Cir. 2003); Helton v.

Dep't of Corr., 259 F.3d 1310, 1312 (11th Cir. 2001); Smith v.

McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); Harris, 209 F.3d at 329-

30; Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000);

Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999) (but noting

that little practical room may exist under § 2244(d)(1) for

invoking the doctrine); Miller v. N.J. State Dep't of Corr., 145

F.3d 616, 617-18 (3d Cir. 1998); Davis v. Johnson, 158 F.3d 806,

810-12 (5th Cir. 1998); Miller v. Marr, 141 F.3d 976, 978 (10th

Cir. 1998); Calderon, 128 F.3d at 1288-89.10

2. Neverson's Petition

That equitable tolling is available in theory under

§ 2244(d)(1), however, does not mean the district court was correct

to toll the limitations period in Neverson's case. As the party

seeking to invoke equitable tolling, Neverson bears the burden of

J., joined by Ginsburg, J., dissenting) (describing the suggestion
that courts employ equitable tolling under § 2244(d)(1) as
"sound"). The majority did not deny that equitable tolling could
apply; it merely stated that it had no occasion to address the
issue. See 533 U.S. at 181.
10
Only the D.C. Circuit has not yet decided the question. See
United States v. Cicero, 214 F.3d 199, 202-03 (D.C. Cir. 2000)
(noting but reserving the issue in the § 2255 context).

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establishing the basis for it. Lattimore v. Dubois, 311 F.3d 46,

55 (1st Cir. 2002). We review the district court's decision to

invoke equitable tolling for abuse of discretion.11 Delaney, 264

F.3d at 13.

To preserve the usefulness of statutes of limitations as

rules of law, equitable tolling should be invoked only "sparingly."

Irwin, 498 U.S. at 95. It is not available to rescue a litigant

from his own lack of due diligence. See Baldwin County Welcome

Ctr. v. Brown, 466 U.S. 147, 151 (1984). "Equitable tolling . . .

is the exception rather than the rule; resort to its prophylaxis is

deemed justified only in extraordinary circumstances." Donovan v.

Maine, 276 F.3d 87, 93 (1st Cir. 2002) (quoting Delaney, 264 F.3d

at 14); see also Brackett v. United States, 270 F.3d 60, 67 (1st

Cir. 2001) (describing equitable tolling of § 2254 claims as a

"narrow safety valve[]" reserved for "instances of clear

injustice"). This means that, at a minimum, equitable tolling is

appropriate only when circumstances beyond the petitioner's control

have prevented him from filing on time. Lattimore, 311 F.3d at 55;

Delaney, 264 F.3d at 15. In the habeas context particularly, care

is required to avoid upsetting the "strong concern for finality"

embodied in § 2254. Brackett, 270 F.3d at 67.

11
We note that the courts of appeals disagree over the
standard of review that should govern equitable tolling issues in
habeas cases. See Rouse v. Lee, 339 F.3d 238, 247-48 & n.7 (4th
Cir. 2003) (discussing the split).

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 The district court equitably tolled the § 2244(d)(1)

period in Neverson's case because it felt Neverson had been

unfairly misled by a sea change in habeas law in the last decade.

When Judge O'Toole dismissed Neverson's first habeas petition in

1996, the accepted rule under Rose v. Lundy, supra, was that a

district court "must dismiss" any habeas petition like Neverson's

that presented both exhausted and unexhausted claims. See 455 U.S.

at 522. But in light of § 2244(d)(1) and the Supreme Court's

decision in Duncan, it is now apparent that a prisoner whose habeas

petition is dismissed under Rose v. Lundy can easily find himself

barred from obtaining any federal review of his petition when he

tries to return to federal court. See Duncan, 533 U.S. at 186

(Breyer, J., dissenting) (citing a 1995 Department of Justice study

indicating that, on average, district courts take 268 days to

dismiss habeas petitions on procedural grounds, and that 10% of

such petitions remain pending for longer than two years). The

district court noted that the First Circuit now recommends that

courts stay, not dismiss, mixed habeas petitions whenever "there is

a realistic danger that a second petition, filed after exhaustion

has occurred, will be untimely." Delaney, 264 F.3d at 14 n.5. If

Neverson's mixed petition had been treated that way, the district

court concluded, his fully exhausted petition would have been

timely.

-20-
 There is some force to this argument. In an opinion

published shortly after the district court equitably tolled

Neverson's petition, this court recognized "a growing consensus

that a stay is required when dismissal [of a mixed petition] could

jeopardize the petitioner's ability to obtain federal review."

Nowaczyk v. Warden, 299 F.3d 69, 79 (1st Cir. 2002) (emphasis in

original); see also Duncan, 533 U.S. at 182-83 (Stevens, J.,

concurring) ("[I]n our post-AEDPA world there is no reason why a

district court should not retain jurisdiction over a meritorious

claim and stay further proceedings pending the complete exhaustion

of state remedies. Indeed, there is every reason to do so . . .

when the failure to retain jurisdiction would foreclose federal

review of a meritorious claim because of the lapse of AEDPA's 1-

year limitations period.").

In fact, several of our sister circuits have approved

equitable tolling under § 2244(d)(1) where, as here, the petitioner

was never offered the option of a stay or warned of the hazards of

returning to state court without such a stay. See Brambles v.

Duncan, 330 F.3d 1197, 1203-04 (9th Cir. 2003), amended on other

grounds, 342 F.3d 898 (9th Cir. 2003); Hargrove v. Brigano, 300

F.3d 717, 719-21 (6th Cir. 2002); Zarvela v. Artuz, 254 F.3d 374,

382-83 (2d Cir. 2001); see also Wojcik v. Spencer, 198 F. Supp. 2d

1, 2-3 (D. Mass. 2002) (same). But the fate of this line of cases

is uncertain: in January 2004, the Supreme Court granted

-21-
certiorari to determine whether the district courts must offer the

alternative of a stay when dismissing a mixed habeas petition. See

Pliler v. Ford, 124 S. Ct. 981 (2004) (mem.).12

To this argument, Neverson adds the fact that Judge

O'Toole did not affirmatively advise him of his option under Rose

v. Lundy to abandon his unexhausted claims and proceed with his

exhausted claims only. Cf. Rose, 455 U.S. at 510; Nowaczyk, 299

F.3d at 75 (stating, albeit without analysis, that "Rose directed

district courts to offer [this] choice"). While this circuit has

not held that a district court's failure to provide such advice is

prejudicial error, it is certainly the wiser practice, and we

recommend that courts do so. One circuit has equitably tolled the

§ 2244(d)(1) period where a habeas petitioner was not so advised.

See Tillema v. Long, 253 F.3d 494, 503-04 (9th Cir. 2001).

Nevertheless, we conclude that the district court abused

its discretion in resorting to equitable tolling on the facts of

this case. That is because neither (1) the district court's

12
The question presented in Pliler is "[w]hether the dismissal
of . . . a 'mixed' habeas petition is improper unless the district
court informs the petitioner about the possibility of a stay of the
proceeding pending exhaustion of state remedies and advises the
petitioner with respect to [AEDPA's] statute of limitations in the
event of any refiling." Petition for Certiorari at i, Pliler v.
Ford, 2003 WL 22428760 (U.S. Aug. 8, 2003) (No. 03-221). Pliler
also presents the question whether a second habeas petition may
relate back to a first, unexhausted petition under Fed. R. Civ. P.
15(c), where the first habeas proceeding is no longer pending. Id.
This court decided that question against Neverson in his first
appeal. See Neverson, 261 F.3d at 126.

-22-
decision to dismiss rather than stay Neverson's mixed petition nor

(2) its failure to advise Neverson of his options under Rose v.

Lundy actually prevented Neverson from filing a timely habeas

petition. See Lattimore, 311 F.3d at 55 (equitable tolling "is

reserved for cases in which circumstances beyond the litigant's

control have prevented him from promptly filing"). Several

considerations compel this conclusion.

First, the SJC rejected Neverson's final direct appeal in

October 1993, yet he did not bring any collateral challenge (state

or federal) to his conviction until August 1996, four months after

AEDPA was enacted. Neverson offers no justification for this delay

of nearly three years. Most of Neverson's habeas claims do not

depend on after-discovered evidence. The only one that arguably

does is his contention that his trial counsel could and should have

found a medical expert who would be qualified to testify, and that

Neverson has since located an expert who was available at the time

of his trial. But no persuasive reason is given why Neverson could

not have searched earlier or presented this argument earlier.

If Neverson had brought his collateral attack during his

three years of unexplained delay, he could easily have exhausted

his state remedies and filed a perfected habeas petition in federal

court before the § 2244(d)(1) clock ran out.13 Equitable tolling

13
We note that it took Neverson only a year (from July 9, 1997
to July 27, 1998) to exhaust his state remedies, when at last he
pursued them.

-23-
in these circumstances is not warranted. See Delaney, 264 F.3d at

14 (equitable tolling not justified where, inter alia, petitioner

waited until two years after his conviction became final, and ten

months after AEDPA was enacted, to file a habeas petition).

Indeed, there is an odor of gamesmanship here, and the district

court erred in using its equitable discretion to relieve Neverson

of the consequences of his delay. Cf. Brackett, 270 F.3d at 70

(noting the incentives for prisoners to delay collateral challenges

until trial records are destroyed and witnesses become unavailable

or their memories fade).

Admittedly, Neverson was under no obligation prior to

AEDPA to act promptly in seeking habeas relief. But that is one of

the very problems Congress intended AEPDA to address, and

permitting equitable tolling on these facts would fly in the face

of that clear congressional purpose. "One of AEDPA's main purposes

was to compel habeas petitions to be filed promptly after

conviction and direct review . . . . 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." David,

318 F.3d at 346. There are no such exigent reasons here.

Even if there were a fair excuse for his pre-filing

delay, Neverson also inexplicably waited nearly seven months after

Judge O'Toole's dismissal of his initial habeas petition (from

December 24, 1996 to July 9, 1997) before he requested a new trial

-24-
in state court. When Judge O'Toole dismissed his initial habeas

petition, Neverson still had nearly four months (from December 24,

1996 to April 24, 1997) remaining under AEDPA in which to seek a

new trial in state court. By that time, AEDPA was in full force,

and Neverson is charged with knowledge of its requirements.

Lattimore, 311 F.3d at 55 (pro se habeas petitioner's ignorance of

AEDPA's requirements does not excuse an untimely filing). If

Neverson had sought a new trial promptly in state court, the

§ 2244(d)(1) period would have been tolled, see § 2244(d)(2), and

his second habeas petition -- which he managed to file only 21 days

after he exhausted state remedies -- would have been timely.

We hold that equitable tolling was not warranted on the

facts of this case and that Neverson's habeas petition is time-

barred under § 2244(d)(1).

C. Neverson's Habeas Claims

1. Section 2254 Claims

Our conclusion that Neverson's petition was untimely

marks the end of his attack on his Massachusetts conviction.

Nevertheless, because our decision will result in Neverson's

permanent removal from the United States,14 and because the Supreme

Court's eventual opinion in Pliler v. Ford, supra, might alter our

14
See 8 U.S.C. § 1326(b)(2) (prohibiting persons previously
deported after committing an aggravated felony from re-entering the
United States without the express prior consent of the Attorney
General).

-25-
view of the equitable tolling question, we wish to be clear that

there is no merit to Neverson's underlying habeas claims.

First, the district court properly rejected Neverson's

Sixth Amendment challenge to the state trial judge's limitation of

Dr. Masi's proposed testimony. The Sixth Amendment does not

prevent state trial judges from requiring a defendant's compliance

with rules of evidence, as long as those rules are not "arbitrary"

or "disproportionate to the purposes they are designed to serve."

United States v. Scheffer, 523 U.S. 303, 308 (1998). A rule

preventing experts from testifying beyond their qualifications is

neither. And even if the state court erred in barring Dr. Masi's

testimony as a matter of Massachusetts evidence law -- a

proposition that the district court felt "strains the bounds of

common sense," 242 F. Supp. 2d at 87 -- habeas relief is not

available for violations of state law. Estelle v. McGuire, 502

U.S. 62, 67-68 (1991).

Second, Neverson has no Sixth Amendment claim that his

trial counsel was ineffective, even if we were to bypass the

procedural default issues identified by the district court, see 242

F. Supp. 2d at 87-88, and overlook AEDPA's narrow standard of

review for claims adjudicated by the state courts, see 28 U.S.C.

§ 2254(d)(1). Neverson's principal claim of ineffective assistance

boils down to an assertion that his lawyer should have retained a

medical expert who could offer the testimony that Dr. Masi was

-26-
barred from giving (i.e., that the baby's death could have been

caused by a fall from the top bunk). The state trial court,

however, said that Neverson offered nothing but "unsubstantiated

speculation that . . . expert testimony on those issues could have

been obtained." In his habeas petition, Neverson says that a

person with the necessary expertise was available to testify. But

he has not offered any evidence of what that person would have

said, let alone shown that the lack of such testimony materially

prejudiced his defense. See 242 F. Supp. 2d at 91. Moreover,

whether to call a particular expert is normally the sort of

strategic decision that is reserved for trial counsel. Neverson's

fallback ineffective assistance theories are likewise unpersuasive.

Finally, Neverson's challenge to the sufficiency of the

evidence is meritless. The claim would fail on de novo review, let

alone under AEDPA. Cf. 28 U.S.C. §§ 2254(d), (e)(1). As the

district court found, Neverson's argument amounted to "a specious

attack on the admissibility of the medical examiner['s testimony]

and a brief speculative assault on the possible inferences one

might draw from the testimony of experts." 242 F. Supp. 2d at 94.

The evidence was more than sufficient for a reasonable jury to

conclude that Neverson caused the death of his baby. See Neverson,

619 N.E.2d at 345-46. His remaining assignments of error in his

state conviction are likewise without merit.

-27-
 2. Section 2241 Claims

This leaves Neverson's § 2241 claims against the INS

respondents. In their brief to this court, the INS respondents

argued that the district court never actually permitted Neverson to

amend his habeas petition to challenge his final order of

deportation. That assertion is flatly contradicted by the record,

as counsel for the INS acknowledged at oral argument. Such

misrepresentations of the record are poor advocacy and waste both

the court's and other litigants' time. We expect better from

counsel, including government counsel. Cf. Thomas v. Digital

Equip. Corp., 880 F.2d 1486, 1490-91 (1st Cir. 1989) (sanctioning

a party that made material misrepresentations of the record in its

appellate brief).

In any event, Neverson's § 2241 claims provide no basis

for vacating his deportation order. First, Neverson has withdrawn

his argument that the INS's use of his manslaughter conviction as

a ground for deportation represents an unauthorized retroactive

application of the Illegal Immigration Reform and Immigrant

Responsibility Act (IIRIRA). See Choeum v. INS, 129 F.3d 29, 37

(1st Cir. 1997) (holding that an IJ or BIA decision that occurs

after September 30, 1996 is an "action taken" that triggers

IIRIRA's aggravated felony rules). Second, to the extent

Neverson's § 2241 petition sought his release on bail pending his

removal, our decision today has rendered his argument moot.

-28-
 Finally, Neverson argues that the IJ abused her

discretion by denying discretionary relief from deportation under

§ 212(h) of the Immigration and Nationality Act, see 8 U.S.C.

§ 1182(h), due to extreme hardship to his citizen family members.

We doubt that this claim is cognizable in a § 2241 proceeding. See

Saint Fort v. Ashcroft, 329 F.3d 191, 203 (1st Cir. 2003) (an alien

may use § 2241 to challenge the INS's refusal to consider him for

discretionary relief, but not to challenge the agency's refusal to

exercise its discretion favorably). Regardless, the argument is

without merit. The IJ exhaustively reviewed the evidence relevant

to Neverson's request for a waiver under § 212(h) and concluded

that Neverson could not make the requisite showing of extreme

hardship. There was no error.

III.

The denial of Neverson's petition for habeas corpus is

affirmed, and the provisional stay of deportation entered by this

court on September 8, 2000 is dissolved. So ordered.

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