Trapp v. Spencer

United States Court of Appeals
For the First Circuit

No. 05-2827

RANDALL TRAPP,

Petitioner, Appellant,

v.

LUIS SPENCER,
Superintendent, MCI -- Norfolk,

Respondent, Appellee.

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

[Hon. Patti B. Saris, U.S. District Judge]

Before

Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.

John M. Thompson, with whom Thompson & Thompson, P.C. was on
brief, for appellant.
Randall E. Ravitz, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief, for appellee.

March 1, 2007
 LYNCH, Circuit Judge. This case involves whether the

district court erred in not applying the equitable tolling

doctrine to excuse the late filing of a federal habeas petition

where (1) the public-defender counsel for the state prisoner

simply made a mistake as to the habeas limitations period, and

(2) the petitioner makes a claim that the totality of the

circumstances nonetheless warrants equitable tolling.

The Supreme Court has just rejected the argument that

because the mistake was made by a state public defender and the

defendant himself was diligent, the defendant should not be held

to the mistake of his lawyer. Lawrence v. Florida, 549 U.S. ___,

No. 05-8820, 2007 WL 505972, at *6 (Feb. 20, 2007). Lawrence

held that

[a]ttorney miscalculation is simply not
sufficient to warrant equitable tolling,
particularly in the postconviction context
where prisoners have no constitutional right
to counsel. . . . [Petitioner] argues that
his case presents special circumstances
because the state courts appointed and
supervised his counsel. But a State's effort
to assist prisoners in postconviction
proceedings does not make the State
accountable for a prisoner's delay.

Id. (citation omitted).

Trapp's main argument is slightly different from that

rejected in Lawrence. Trapp argues that Massachusetts has a

policy that whenever the state provides counsel to an indigent

person, that counsel is furnished with a guarantee of effective

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assistance. Thus, he argues, he was entitled to rely on his

attorney and should not be held responsible for her mistake. We

hold that this is a distinction without a difference. Lawrence

still governs. The result Trapp seeks would be utterly

inconsistent with Lawrence's rationale that equitable tolling is

rare and available only in extraordinary circumstances.

Trapp's second argument is that the totality of the

circumstances qualifies him for equitable tolling, an argument

rejected by the district court. We affirm the dismissal of the

petition for failure to comply with the limitations period.

I.

We briefly recount the facts, which are recited in

greater detail in Commonwealth v. Trapp [Trapp I], 485 N.E.2d 162

(Mass. 1985), and Commonwealth v. Trapp [Trapp II], 668 N.E.2d

327 (Mass. 1996), affirming Trapp's conviction for murder and his

life sentence.

On May 8, 1981, Randall Trapp stabbed to death Lawrence

Norton, a man he had met in a bar the night before. Following

the stabbing, which occurred in Norton's home, Trapp stole

Norton's landlord's money and the landlord's mother's car. Trapp

II, 668 N.E.2d at 329; Trapp I, 485 N.E.2d at 164. In 1982,

Trapp was tried before a jury in Massachusetts state court. At

trial, he defended on the ground that he lacked criminal

responsibility for his actions. Trapp I, 485 N.E.2d at 164. He

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presented expert testimony that the murder was the product of (1)

an organic brain abnormality (caused by earlier head traumas,

some of which were the result of beatings by his father) and (2)

psychological stress attributable to his wife's "deviant

behavior," which included working as a prostitute and a stripper

and being "openly and promiscuously bisexual." Id. at 164 & n.2.

Trapp was convicted of first-degree murder, armed robbery, and

larceny of a motor vehicle, id. at 163, but the conviction was

overturned on appeal because improper character evidence had been

admitted at trial, id. at 165.

Trapp was retried in 1987, and he again defended on the

basis that he was not criminally responsible. Trapp II, 668

N.E.2d at 329. During the seven-day trial, seven experts,

including three for the prosecution and four for the defense,

testified on the issue of Trapp's criminal responsibility. Id.

As part of their testimony, these experts offered their

interpretations of a computed axial tomography (CAT) scan of

Trapp's brain.1 In particular, Trapp's primary medical expert,

Dr. Vernon Mark, testified that the CAT scan showed an enlarged

area in the "right temporal horn" where "spinal fluid fill[ed]

within the temporal lobe." Trapp's experts offered testimony as

1
The prosecution also presented expert testimony on a BEAM
analysis that had been ordered by Trapp's trial counsel (but which
his counsel had not intended to use at trial). Trapp II, 668
N.E.2d at 332. The BEAM analysis, however, measures only activity
at the surface of the brain, while Trapp's apparent brain defect is
deep within the brain.

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to the effects of such an abnormality, and testified that Trapp

suffered from intermittent explosive disorder and organic

personality disorder. By contrast, the Commonwealth's primary

medical expert, Dr. Paul F. New, testified that Trapp's CAT scan

did not show an enlarged temporal horn or any brain abnormality.

The Commonwealth's additional experts offered testimony

consistent with Dr. New's. Trapp also presented the testimony of

lay witnesses, who described occasions prior to the homicide on

which Trapp had behaved strangely. Id. After deliberating for

two days, the jury convicted Trapp of first-degree murder based

on extreme atrocity or cruelty.2 Id. He was sentenced to a

mandatory term of life imprisonment.

Trapp appealed his conviction on a number of grounds.

He also moved in the state trial court for a new trial, claiming

that his trial counsel was ineffective because he failed to

present certain evidence at trial and because his presentation of

other evidence was not persuasive. The motion for a new trial

was denied, and Trapp's appeal therefrom was consolidated with

his appeal from his conviction. On July 31, 1996, the Supreme

Judicial Court (SJC) affirmed Trapp's convictions. Id. at 333.

Trapp then filed a petition for a writ of certiorari,

which was denied on December 16, 1996. See Trapp v.

2
Trapp also was again convicted of armed robbery and
larceny of a motor vehicle. Trapp II, 668 N.E.2d at 365 n.6.

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Massachusetts, 519 U.S. 1045 (1996). As we explain below, it was

at this point that the clock began to run on the one-year period

for the filing of a petition for a writ of habeas corpus in

federal court, subject to statutory exclusions. See 28 U.S.C.

§ 2244(d)(1).

On July 31, 1997, Trapp filed in the state trial court

a second motion for a new trial, based on the facts that he had

been "forced" to stand trial in prison clothing, that the record

had been "deficient at the time of his direct appeal," and that

the prosecution had used at trial results of a BEAM analysis that

Trapp's counsel originally had ordered but had not intended to

use and had not in fact used at trial.3 Trapp appended to his new

trial motion a motion requesting court-appointed counsel. The

motions were denied on September 7, 1997. On October 6, 1997,

Trapp filed a gate-keeper motion requesting leave to appeal the

denial of his motions for a new trial and for appointment of

counsel to the SJC. As grounds for a new trial he reasserted his

arguments that his constitutional rights had been violated when

he was forced to stand trial in prison clothing and when the

3
On direct appeal, Trapp had objected to the trial judge's
allowing discovery of these BEAM test results. See Trapp II, 668
N.E.2d at 332; see also supra note 1. The SJC held that even if it
had been error to permit the discovery, there had been no prejudice
to Trapp because the test results were used only in rebuttal, the
results themselves were not put into evidence, and the results did
not contain any testimonial statements by Trapp. Trapp II, 668
N.E.2d at 332.

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prosecution was permitted to discover and use the results of the

BEAM analysis.

On May 10, 1999, the Committee for Public Counsel

Services (CPCS) -- a Massachusetts state defender service that

provides legal counsel to indigent defendants -- assigned counsel

to Trapp's case. Trapp's counsel requested that the SJC stay

activity in Trapp's case pending resolution of motions to be

filed in the trial court. The SJC thus did not rule on Trapp's

still-pending gate-keeper motion.

On June 6, 2000, Trapp filed a motion in the state

trial court requesting funds to conduct additional tests on his

brain, including a positron emission tomography (PET) scan, a

more advanced imaging technique than the CAT scan available at

the time of Trapp's second trial.4 The state trial court denied

the motion and the subsequent motion for reconsideration.

Eventually, Trapp's family secured funds for a PET scan, which

was performed on June 25, 2001. The doctor who read the PET scan

stated that it showed "mildly decreased metabolism in the medial

aspects of the temporal lobes bilaterally," which was possibly

"related to memory impairment or . . . interictal seizure foci."

On October 5, 2001, Trapp filed in the state trial

court a motion for a new trial based on the results of the PET

scan, which he characterized as new evidence. The motion was

4
While a CAT scan reveals only the anatomical structure of
the brain, a PET scan apparently reveals brain functioning.

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denied on June 27, 2002. The motion judge found that Trapp had

failed to present any evidence of the qualifications of the

doctor who had read the PET scan and had failed to present a

"qualified expert's opinion . . . that the PET scan results

support[ed] the trial testimony of [Trapp]'s experts." Moreover,

he found the results of the PET scan to be "less than dramatic,"

questioned whether the PET scan was "probative of [Trapp's] brain

function twenty years earlier," and found that even if it were,

it was cumulative of other trial evidence. The motion judge

denied Trapp's motion for reconsideration, finding an additional

physician's affidavit submitted by Trapp to be "too flimsy to

provide a basis to change [his earlier] ruling."

Trapp appealed to the SJC. On April 27, 2004, a single

justice of the SJC treated the appeal as an application for leave

to appeal to the full court, which she denied. The justice held

that "[t]he results of the PET scan [were] not new evidence."

She stated that "the PET scan indicate[d] the same abnormality"

testified to at Trapp's second trial, and that "the PET scan

results [were] merely cumulative." She further noted the lack of

evidence "to establish that a PET scan conducted in 2001 [was]

probative of [Trapp]'s brain function twenty years earlier." The

SJC justice also denied Trapp's October 16, 1997 gate-keeper

motion on the ground that the SJC had already decided the issue.

On May 25, 2004, the single justice denied Trapp's motion for

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reconsideration. Trapp did not petition the United States

Supreme Court for certiorari.

One year later, on May 25, 2005, Trapp filed a petition

for a writ of habeas corpus in the United States District Court

for the District of Massachusetts.

Respondent Luis Spencer, Superintendent, MCI --

Norfolk, moved the district court to dismiss the petition as time

barred. See 28 U.S.C. § 2244(d)(1). Trapp conceded that the

petition was not timely filed because of an error on the part of

his counsel, but he requested that the district court equitably

toll the applicable limitations period and permit the petition.

In a careful, well-reasoned opinion, a United States Magistrate

Judge recommended that Trapp's petition be dismissed. On October

24, 2005, the district court adopted this recommendation and

dismissed the petition as time barred.

On February 6, 2006, the district court granted Trapp a

certificate of appealability on the issue of whether the doctrine

of equitable tolling should toll the one-year limitations period

provided for by 28 U.S.C. § 2244(d)(1) in Trapp's case.

II.

We review the district court's denial of equitable

tolling for abuse of discretion. Cordle v. Guarino, 428 F.3d 46,

47 (1st Cir. 2005); Neverson v. Farquharson, 366 F.3d 32, 42 (1st

Cir. 2004).

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A. Timeliness

We briefly explain why the petition is admittedly late

in order to assist counsel in avoiding late filing. AEDPA

provides for a one-year period of limitations during which "a

person in custody pursuant to the judgment of a State court" may

apply for federal habeas relief. 28 U.S.C. § 2244(d)(1). For

present purposes, the limitations period began to run on "the

date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such

review." Id. § 2244(d)(1)(A). When the Supreme Court denied

Trapp's petition for certiorari on December 16, 1996, Trapp's

conviction became final, and the AEDPA period of limitations

began to run. See Lawrence, 2007 WL 505972, at *2; Clay v.

United States, 537 U.S. 522, 527 (2003) (stating that in the

context of post-conviction relief, "[f]inality attaches when [the

Supreme] Court affirms a conviction on the merits on direct

review or denies a petition for a writ of certiorari").

Under 28 U.S.C. § 2244(d)(2), the limitations period is

tolled for 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." Section

2244(d)(2) does not reset the clock on the limitations period,

however, but merely stops it temporarily, until the relevant

applications for review are ruled upon. Cordle, 428 F.3d at 48

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n.4; Dunker v. Bissonnette, 154 F. Supp. 2d 95, 103 (D. Mass.

2001) ("Section 2244(d)(2) only stops, but does not reset, the

clock from ticking . . . [and] cannot revive a time period that

has already expired." (alteration and omission in original)

(quoting Sorce v. Artuz, 73 F. Supp. 2d 292, 294 (E.D.N.Y. 1999))

(internal quotation marks omitted)). Approximately 226 days

elapsed between the denial of Trapp's petition for certiorari and

his filing of a new trial motion on July 31, 1997. Even assuming

that the limitations period was tolled for the entire period from

July 31, 1997 until May 25, 2004, when the SJC ruled on Trapp's

gate-keeper petition, Trapp's petition for habeas relief was

untimely. There is no dispute as to this fact.

B. Equitable Tolling

In Lawrence, the Supreme Court again side-stepped the

question of whether equitable tolling ever applies to time limits

for the filing of federal habeas petitions by state prisoners,

and simply assumed arguendo that equitable tolling is available.

2007 WL 505972, at *6. Lawrence did say several useful things

about the doctrine.

For example, the Lawrence Court refused to vary its

interpretation of AEDPA's statutory tolling provision in light of

"an exceedingly rare inequity that Congress almost certainly was

not contemplating" when enacting the limitations period, and

stated that such situations "may well be cured by equitable

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tolling." Id. at *5. Next, the Court referred to the standards

for equitable tolling articulated in Pace v. DiGuglielmo, 544

U.S. 408, 418 (2005): a petitioner must show that he has been

pursuing his rights diligently and that some extraordinary

circumstance prevented him from making a timely filing.

Lawrence, 2007 WL 505972, at *6. Finally, Lawrence affirmed

without dissent the circuit court's finding that the petitioner

there had not otherwise made out a case of extraordinary

circumstances. Id. at *6-7; id. at *10 n.8 (Ginsburg, J.,

dissenting) (declining to reach the equitable tolling issue).

In another recent case, Wallace v. Kato, 549 U.S. ___,

No. 05-1240, 2007 WL 517122 (Feb. 21, 2007), the Supreme Court

made clear, albeit in the context of a § 1983 action, that

"[e]quitable tolling is a rare remedy to be applied in unusual

circumstances, not a cure-all for an entirely common state of

affairs." Id. at *7.

In this circuit, we have allowed for equitable tolling

of the § 2244(d)(1) limitations period in rare and extraordinary

cases. "[T]he one-year limitations period in § 2244(d)(1) is not

jurisdictional and, accordingly, can be subject to equitable

tolling in appropriate cases." Neverson, 366 F.3d at 41. Trapp

bears the burden of establishing a basis for equitable tolling.

Id.

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 In the habeas context in particular, courts must take

care "to avoid upsetting the 'strong concern for finality'

embodied in [28 U.S.C.] § 2254." Id. at 42 (quoting Brackett v.

United States, 270 F.3d 60, 67 (1st Cir. 2001)). Likewise, we

are acutely aware that "[o]ne of AEDPA's main purposes was to

compel habeas petitions to be filed promptly after conviction and

direct review." David v. Hall, 318 F.3d 343, 346 (1st Cir.

2003). As a result, 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) (alteration omitted) (quoting Delaney v.

Matesanz, 264 F.3d 7, 14 (1st Cir. 2001)) (internal quotation

marks omitted).

In applying the equitable tolling doctrine, an

important factor is the reason for the late filing. Generally,

in civil cases, "garden-variety" attorney negligence, even if

excusable, is not grounds for equitable tolling. Irwin v. Dep't

of Veterans' Affairs, 498 U.S. 89, 96 (1990). Rather, a

petitioner must demonstrate the existence of extraordinary

circumstances. Pace, 544 U.S. at 418.

This circuit, along with many others, has held that

"mistake by counsel in reading [AEDPA] or computing the time

limit is, at most, a routine error" and does not constitute

extraordinary circumstances warranting equitable tolling. David,

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318 F.3d at 346; see also Miranda v. Castro, 292 F.3d 1063, 1066-

68 (9th Cir. 2002); Smaldone v. Senkowski, 273 F.3d 133, 138-39

(2d Cir. 2001); Helton v. Sec'y for the Dep't of Corr., 259 F.3d

1310, 1313 (11th Cir. 2001) (per curiam); Kreutzer v. Bowersox,

231 F.3d 460, 463 (8th Cir. 2000); Harris v. Hutchinson, 209 F.3d

325, 330 (4th Cir. 2000); Taliani v. Chrans, 189 F.3d 597, 597-98

(7th Cir. 1999). The Supreme Court confirmed as much in

Lawrence. 2007 WL 505972, at *6 ("Attorney miscalculation is

simply not sufficient to warrant equitable tolling, particularly

in the postconviction context where prisoners have no

constitutional right to counsel.").

In David v. Hall, a case quite similar to the one

before us, the petitioner's attorney had misunderstood the

calculation of the AEDPA limitations period and had filed a

habeas petition after the limitations period had expired. 318

F.3d at 344. Like Trapp's attorney, the attorney in David filed

an affidavit stating that he could have filed the petition

earlier but was under the impression that he was not required to

do so. Id. at 345. David rejected the argument that equitable

tolling was warranted, stating, "If carelessness were an escape

hatch from statutes of limitations, they would hardly ever bar

claims." Id. at 346.

This does not mean, however, that attorney error never

can be among the grounds for equitable tolling. Several of our

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sister circuits have, on specific facts, found an attorney's

failure to file a timely habeas petition so egregious as to

warrant equitable tolling of the AEDPA limitations period.5 For

example, in Baldayaque v. United States, 338 F.3d 145 (2d Cir.

2003), the Second Circuit found an attorney's failure to file a

habeas petition when the petitioner's wife had hired him

specifically to do so sufficient to warrant equitable tolling.

Id. at 152-53. In Spitsyn v. Moore, 345 F.3d 796 (9th Cir.

2003), the Ninth Circuit found that equitable tolling was

appropriate when the petitioner's attorney ignored the statutory

deadline for filing a habeas petition and refused, after having

been terminated, to provide the petitioner with his case file,

thereby causing him to miss the deadline for filing a petition.

Id. at 798, 801. Moreover, both the Eighth and Second Circuits

have found equitable tolling to be appropriate when an attorney

deceived the petitioner by informing him that a timely petition

had been filed when in fact it had not. United States v. Martin,

408 F.3d 1089, 1093-95 (8th Cir. 2005); United States v. Wynn,

292 F.3d 226, 230 (5th Cir. 2002).

Likewise, some circuits have held that in particular

circumstances, otherwise unremarkable attorney error may warrant

equitable tolling. The Sixth Circuit, for example, has held that

5
We make no determination about the correctness of the
decisions that we describe here. We include them merely as
exemplars.

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if the law defining the limitations period is unclear,

"constitutional review should not be forfeited unless there has

been a lack of good faith diligence on the part of the

petitioner." Griffin v. Rogers, 399 F.3d 626, 636-38 (6th Cir.

2005).

Similarly, courts may be more willing to grant

equitable tolling in death penalty cases, particularly when the

petitioner has been diligent in pursuing his rights.6 See, e.g.,

Fahy v. Horn, 240 F.3d 239, 244-45 (3d Cir. 2001); cf. Gardner v.

Florida, 430 U.S. 349, 357 (1977) ("[D]eath is a different kind

of punishment from any other which may be imposed in this

country."); Woodson v. North Carolina, 428 U.S. 280, 305 (1976)

(opinion of Stewart, Powell, and Stevens, JJ.) ("[T]he penalty of

death is qualitatively different from a sentence of imprisonment,

however long."). But see Johnson v. McBride, 381 F.3d 587, 590-

91 (7th Cir. 2004) (rejecting the view that a different test

applies to capital cases); Rouse v. Lee, 339 F.3d 238, 253-56

(4th Cir. 2003) (en banc) (same). Trapp was not sentenced to

death.

We delineate here some of those factors that may

influence a court's decision whether or not to grant equitable

6
Although Lawrence was a capital case, the question of
whether equitable tolling was warranted because Lawrence had been
sentenced to death was not before the Court. See Petition for
Cert. at ii-iii, Lawrence, 549 U.S. ___, 2006 WL 776784.

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tolling in a habeas case.7 Under Pace and our own precedent,

relevant factors include:

1. The petitioner's own diligence in pursuing habeas relief, see,

e.g., Pace, 544 U.S. at 419; Lattimore v. Dubois, 311 F.3d 46, 55

(1st Cir. 2002);

2. Whether some extraordinary circumstance prevented the

petitioner from making a timely filing, see, e.g., Pace, 544 U.S.

at 418; Neverson, 366 F.3d at 43;

3. The petitioner's diligence in the pursuit of other

post-conviction remedies and the process already afforded in the

state system, see, e.g., Pace, 544 U.S. at 418-19; Delaney, 264

F.3d at 14-15;

4. Any prejudice to the prosecution that would result from

tolling and possible retrial, see David, 318 F.3d at 347;

5. The fact that equitable tolling is not available in cases of

dubious merit,8 see Lattimore, 311 F.3d at 55 (discussing

likelihood of success on the merits in determining that equitable

tolling was not warranted); Brackett, 270 F.3d at 71 (same),

overruled on other grounds by Johnson v. United States, 544 U.S.

295, 302 (2005); and

7
Trapp has not made an "actual innocence" argument. In
David, we cast a jaundiced eye on such arguments. See 318 F.3d at
347.
8
There is language in Cordle rejecting a prisoner's
attempt to use likelihood of success on the merits to excuse an
otherwise unjustified failure to meet the limitations period. 428
F.3d at 49. This should not be inconsistent with our rule that
equitable tolling is not available in cases of dubious merit.

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6. Whether or not the case is a capital case and whether or not

the petitioner has been sentenced to death, see David, 318 F.3d

at 346 n.4.

The district court's conclusion, based on consideration

of the totality of the circumstances (including all of the

factors enumerated above), was not an abuse of discretion.

The magistrate judge appropriately considered not only

the reason for the late filing, but concluded that the defendant

himself was not to blame and had been diligent. She also

considered whether the entire course of post-conviction

proceedings had been diligently pursued, given that the state

conviction became final with the denial of certiorari on December

16, 1996, but the federal habeas petition was not brought until

almost a decade later, in 2005. This is a significant

consideration in light of the finality concerns that motivated

Congress in enacting 28 U.S.C. § 2254. See Pace, 544 U.S. at 419

("Under long-established principles, petitioner's lack of

diligence precludes equity's operation."). The magistrate judge

made no error in concluding as a matter of fact that counsel had

not been particularly diligent in pursuing the state claims, or

for that matter, waiting until what counsel thought was the last

day on which to file the federal habeas petition. The magistrate

judge was careful to distinguish counsel's lack of diligence from

Trapp's own diligence, at least as to preserving Trapp's federal

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habeas claims. Further, she recognized the special conditions --

organic brain damage -- under which Trapp operated. Those

conditions were not, however, the cause of the late filing. See

Calderon v. U.S. Dist. Court, 163 F.3d 530, 541 (9th Cir. 1998)

(holding that a petitioner's mental incompetency can constitute

extraordinary circumstances warranting equitable tolling if it

interferes with his ability to communicate with his attorney),

overruled on other grounds by Woodford v. Garceau, 538 U.S. 202,

205-06 (2003).

The magistrate judge correctly considered as a factor

the prejudice the state would suffer if it were forced to

relitigate a murder case about events that had occurred twenty-

four years prior to the filing of the habeas petition.

The magistrate judge also correctly considered the

considerable process that had already been afforded to Trapp in

the state system. The issue of Trapp's criminal responsibility

was considered by the jury that convicted him, and the impact of

the PET scan evidence itself on the validity of Trapp's

conviction was considered and reconsidered by a motion judge and

a justice of the Supreme Judicial Court. The magistrate judge

set forth the reasons the state courts had rejected Trapp's

claims.

Finally, this was not a death penalty case in which

avoidance of error has a very high premium.

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 We make one more comment lest Trapp spend the remainder

of his years in state prison blaming his attorney for missing a

filing deadline. Trapp's petition had a low likelihood of

success. The state courts carefully considered Trapp's claims on

their merits. As the single SJC justice who ruled on Trapp’s

gate-keeper motion noted, Trapp's new evidence is consistent with

evidence presented at his trial. The brain abnormality

supposedly shown by the PET scan is the same abnormality

supposedly shown by the CAT scan and to which experts testified

at Trapp's trial. At the time, the prosecution did present an

alternative interpretation of Trapp's CAT scan, which may be

undermined by the PET scan. But the prosecution also presented

evidence at trial that at the time of the killing, Trapp had

acted rationally and shrewdly. There was evidence that Trapp had

robbed the owner of the home where the killing occurred, had

stolen the landlord's mother's car to flee the scene, and had

later abandoned the car. Trapp I, 485 N.E.2d at 164. There also

was evidence that Trapp had attempted to kidnap the landlord, who

knew that Norton was dead, and had pursued the landlord when he

had escaped, but had then fled when the landlord reached a

neighbor's home. Id. The jury that convicted Trapp considered

the issue of his brain abnormality and rejected the argument that

it excused his behavior. Moreover, it is not clear that a PET

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scan performed twenty years after the murder reflects the

condition of Trapp’s brain at the time of the crime.

Under these circumstances, the thoughtful analysis of

the district court and the magistrate judge was not an abuse of

discretion. The dismissal of Trapp's petition for habeas corpus

is affirmed.

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