United States Court of Appeals
For the First Circuit
No. 05-1094
MELISSA JO CORDLE,
Petitioner, Appellant,
v.
BARBARA GUARINO,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Torruella, Circuit Judge,
Siler,* Senior Circuit Judge,
and Howard, Circuit Judge.
Kevin J. Reddington, for petitioner-appellant.
Maura D. McLaughlin, Assistant Attorney General, Criminal
Bureau, with whom Thomas F. Reilly, Attorney General, were on
brief, for respondent-appellee.
November 2, 2005
*
Of the Sixth Circuit, sitting by designation.
TORRUELLA, Circuit Judge. On March 23, 2004, the
district court issued an order dismissing defendant-appellant
Melissa Jo Cordle's habeas corpus petition for being time-barred
under the Anti-Terrorism and Effective Death Penalty Act of 1996
("AEDPA"), 28 U.S.C. § 2244. On September 1, 2004, the district
court granted a certificate of appealability on the issue of
"whether, in the circumstances of [Cordle's] case, the time
limitations of the AEDPA should be equitably tolled." Answering
that question in the negative, we affirm.
I.
On April 24, 1986, a Barnstable County Superior Court
jury convicted Cordle of two counts of first-degree murder and one
count of burglary. Cordle appealed directly to the Massachusetts
Supreme Judicial Court ("SJC") pursuant to Mass. Gen. Laws ch. 278,
§ 33E, arguing that the evidence was insufficient to support the
verdict and that the trial judge gave erroneous jury instructions.
On April 26, 1989, the SJC found that the evidence was sufficient
to support the jury's verdict but reversed Cordle's conviction due
to an error in the trial judge's jury instructions.1 See
Commonwealth v. Cordle, 537 N.E.2d 130 (Mass. 1989)("Cordle I").
Cordle was re-tried, and on August 19, 1989, she was again
convicted of two counts of first-degree murder and one count of
1
One of the justices dissented, arguing that the evidence was
insufficient to support the verdict.
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burglary.2 Cordle appealed her conviction directly to the SJC and
again argued that the evidence was insufficient to support her
conviction and that the trial judge's jury instructions allowed her
to be convicted without proof beyond a reasonable doubt as to each
and every element of the offenses of which she was charged. The
SJC affirmed on March 11, 1992. See Commonwealth v. Cordle, 587
N.E.2d 1372 (Mass. 1992)("Cordle II").3
On November 11, 2000, Cordle, who was represented by new
counsel, filed a motion for a new trial. This motion was denied on
December 18, 2000. Cordle appealed to a Single Justice Session of
the SJC, and on December 4, 2001, a single justice denied Cordle's
petition. On December 3, 2002, Cordle filed a habeas corpus
petition in the United States District Court for the District of
Massachusetts. On September 25, 2003, a United States Magistrate
Judge recommended that Cordle's petition be dismissed because it
was time-barred. On March 23, 2004, the district court followed
this recommendation and issued an order dismissing the petition as
time-barred.
2
At the second trial the prosecution presented additional
evidence of a threat that Cordle had made regarding one of the two
victims.
3
In Cordle II, the justice who had dissented in Cordle I authored
the opinion affirming Cordle's convictions. In the opinion, the
justice stated that he "acced[ed] to the precedent established in
Cordle I regarding the sufficiency of the evidence; additionally,
. . . the additional evidence of a specific threat to kill the
victims is more significant than the threats relied on by the court
in Cordle I." Cordle II, 587 N.E.2d at 1374 n.2.
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II.
We review the district court's decision regarding
equitable tolling in this habeas case for abuse of discretion.
Neverson v. Farquharson, 366 F.3d 32, 42 (1st Cir. 2004).
AEDPA, which was enacted on April 24, 1996, provides that
"[a] 1-year period of limitation shall apply to an application for
a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court." 28 U.S.C. § 2244(d)(1). While
"AEDPA's one-year limit runs from the time that the state court
judgment of conviction became final[,] . . . defendants . . .
convicted prior to AEDPA[] can file their petitions within one year
of AEDPA's effective date." David v. Hall, 318 F.3d 343, 344 (1st
Cir. 2003) (internal citation omitted). The SJC affirmed Cordle's
convictions on March 11, 1992; her convictions became final ninety
days thereafter. See Neverson, 366 F.3d at 36 (stating that a
defendant's "conviction became final when the ninety-day period for
seeking certiorari expired"). Because this date was before the
enactment of AEDPA, Cordle had one year from April 24, 1996 to file
a petition for habeas corpus. Thus, absent any tolling, the one-
year period ended on April 24, 1997.4
4
In her brief, Cordle implies that AEDPA's one-year period of
limitations did not begin to run until the SJC denied her motion
for a new trial on December 4, 2001. Under 28 U.S.C. § 2244(d)(2),
"the time during which a properly filed application for State post-
conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted" toward the one-
year limitations period. However, Cordle's motion for a new trial
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We have held that the one-year limitations period in
§ 2244(d)(1) may be equitably tolled. See Neverson, 366 F.3d at
41. "[E]quitable tolling . . . is the exception rather than the
rule; resort to its prophylaxis is deemed justified only in
extraordinary circumstances." Delaney v. Matesanz, 264 F.3d 7, 14
(1st Cir. 2001). "It is reserved for cases in which circumstances
beyond the litigant's control have prevented [her] from promptly
filing." Lattimore v. Dubois, 311 F.3d 46, 55 (1st Cir. 2002).
Cordle bears the burden of establishing a basis for equitable
tolling. Id.
Cordle's first argument for equitable tolling is that the
attorney who represented her at trial was "constitutionally
ineffective" in not filing a petition for habeas corpus or advising
her of any filing deadlines for a habeas petition. As this court
and other courts of appeals have explained, counsel's errors in
calculating the time limits or advising a petitioner of the
appropriate filing deadlines do not constitute extraordinary
circumstances warranting equitable tolling. See, e.g., David, 318
F.3d at 346; Howell v. Crosby, 415 F.3d 1250, 1252 (11th Cir. 2005)
was not filed until November 11, 2000, several years after her
AEDPA limitations period had already expired. "Section 2244(d)(2)
only stops, but does not reset, the [AEDPA] clock from ticking and
cannot revive a time period that has already expired." Dunker v.
Bissonnette, 154 F. Supp. 2d 95, 103 (D. Mass. 2001) (internal
quotation marks, brackets, and ellipsis omitted). Because Cordle's
motion for a new trial was filed well after her AEDPA's limitations
period had expired, it did not stop or reset the clock and does not
help Cordle on this appeal.
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(stating that "attorney negligence is not a basis for equitable
tolling, especially when the petitioner cannot establish his own
diligence in ascertaining the federal habeas filing deadline");
Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (equitable
tolling not warranted where counsel erroneously advised petitioner
of the filing deadline due to a misreading of the statute); Dunker
v. Bissonnette, 154 F. Supp. 2d 95, 107 (D. Mass. 2001) (stating
that usually, attorney errors are attributed to their clients).
In the instant case, Cordle has not shown how her
attorney's failure to file a habeas petition constituted anything
more than excusable neglect. See David, 318 F.3d at 346. This is
not a case where Cordle asked her counsel to file a habeas petition
but counsel failed to do so. See, e.g., Baldayaque v. United
States, 338 F.3d 145, 152 (2d Cir. 2003) (finding equitable tolling
appropriate where the petitioner's counsel failed to file a habeas
petition despite being told to do so). Further, Cordle has not
presented any evidence tending to show that she was diligent in
pursuing her rights. See Neverson, 366 F.3d at 42 (stating that
equitable tolling is "not available to rescue a litigant from [her]
own lack of due diligence"). As the government notes, Cordle did
not take any action regarding her convictions until November 11,
2000 when she filed a motion for a new trial. This was over eight
years after her conviction became final and over three years after
AEDPA's one-year period of limitations had expired. While Cordle
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argues that she lacked knowledge of the law and the filing
deadline, it is well settled in this circuit that "[i]gnorance of
the law alone, even for incarcerated pro se prisoners, does not
excuse an untimely [habeas] filing." Lattimore, 311 F.3d at 55.
In the same way, Cordle's ignorance does not excuse her untimely
habeas petition. Because any error by Cordle's attorney did not
constitute extraordinary circumstances and because Cordle has
failed to present any evidence showing that she was diligent in
pursuing her rights, we reject her argument that the limitations
period should be equitably tolled due to her counsel's failures to
inform her of her right to file a habeas petition and to timely
file a habeas petition.
Cordle next argues that the limitations period should be
equitably tolled because she has not previously had federal review
of her state convictions. This argument is easily disposed of, as
the fact that this is Cordle's first habeas petition has no bearing
in our consideration of whether any extraordinary circumstances
exist that warrant equitable tolling.
Cordle's final argument is that the state court's
resolution of her claims constituted an unreasonable application of
clearly established federal law because the evidence was
insufficient to support the verdict and because the trial judge's
jury instructions were constitutionally deficient. We agree with
the government that these arguments go to the merits of the habeas
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petition. They do not play a role in whether extraordinary
circumstances prevented Cordle from timely filing a habeas
petition.
In sum, Cordle had almost five years from the time that
her convictions became final to the time that her AEDPA limitations
period expired in which to file a habeas petition. She failed to
do so and has not made any showing that this failure was due to
extraordinary circumstances or circumstances beyond her control.
She has also failed to present any evidence tending to show that
she was diligent in pursuing her federal rights before AEDPA's
limitations period expired. We therefore hold that equitable
tolling was not warranted in Cordle's case and that her habeas
petition is time-barred.
III.
For the foregoing reasons, the district court's decision
is affirmed.
Affirmed.
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