Wood v. Spencer

United States Court of Appeals
For the First Circuit

No. 06-2591

KEVIN WOOD,

Petitioner, Appellant,

v.

LUIS S. SPENCER, SUPERINTENDENT,
M.C.I.-NORFOLK,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

[Hon. Leo T. Sorokin, U.S. Magistrate Judge]

Before

Torruella, Circuit Judge,
Selya and Tashima,* Senior Circuit Judges.

Leslie W. O'Brien for appellant.
Eva M. Badway, Assistant Attorney General, Commonwealth of
Massachusetts, with whom Martha Coakley, Attorney General, was on
brief, for appellee.

May 15, 2007

__________
*Of the Ninth Circuit, sitting by designation.
 SELYA, Senior Circuit Judge. This is a case of first

impression for this court. In it, a state prisoner challenges the

dismissal of his federal habeas petition as untimely. This

challenge rests on the proposition that the district court

misconstrued and misapplied two limitations-extending provisions

contained in the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA). See 28 U.S.C. §§ 2244(d)(1)(B), 2244(d)(1)(D).

We have not previously had the occasion to analyze those

provisions. We do so here and conclude that the petitioner has

failed to show either (i) that he exercised due diligence to

discover the statement that he claims was wrongfully withheld or

(ii) that this alleged discovery violation comprised an impediment

that prevented him from learning about, and acting upon, the

statement at an earlier date. Consequently, we affirm the

dismissal of the habeas petition as time-barred.

I. BACKGROUND

In July of 1991, an Essex County grand jury charged the

petitioner, Kevin Wood, with the murder of George Aulson and the

commission of related crimes. The charges arose from an altercation

that occurred between the two men late at night on July 7, 1991, in

Peabody, Massachusetts. While Wood acknowledged stabbing Aulson,

he insisted that Aulson had instigated the brawl and that the

killing was an act of self-defense. Pertinently, the police had

raided Aulson's home on the day before the stabbing, and Wood

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claimed that Aulson bore him ill will because he (Aulson) believed

that Wood had informed the authorities that Aulson was cultivating

marijuana on his property.

The case was tried in the state superior court. The jury

rejected Wood's claim of self-defense and found him guilty of

second-degree murder and malicious destruction of property. See

Mass. Gen. Laws ch. 265, § 1; id. ch. 266, § 127. The trial justice

sentenced Wood to life in prison.

Following his conviction, Wood moved unsuccessfully for

a new trial. His appeal to the Massachusetts Appeals Court (MAC)

proved equally fruitless. Commonwealth v. Wood, 638 N.E.2d 1372

(Mass. App. Ct. 1994). That was the end of the line in state court:

the Massachusetts Supreme Judicial Court (SJC) rejected Wood's

application for leave to seek further appellate review in November

of 1994.

After serving several years in a Massachusetts state

prison, Wood obtained new counsel. In the course of an

investigation that began in May of 2001, she interviewed Lt. Richard

Bettencourt of the Peabody police. During that interview, Wood's

counsel learned that Bettencourt had spoken with Aulson on the

evening of the fatal encounter — after the raid but before the

stabbing — and that Aulson had said, "I'll get the son of a bitch

who set me up." Counsel also learned that Bettencourt, who was not

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involved in the homicide probe, had passed this comment along to the

investigating officers.

In October of 2001, Wood's counsel moved in the superior

court for a new trial. She based that motion on (i) the

prosecution's alleged failure to disclose the Bettencourt

conversation and (ii) an alleged flaw in the jury instructions.

With respect to the first claim, she pointed out that although

Wood's trial counsel had made a discovery request for any statements

or other materials that might tend to support a finding that Aulson

was the initial aggressor, the prosecution never furnished the

defense with information anent the Bettencourt/Aulson conversation.

The state court judge gave the motion short shrift. The

MAC affirmed the denial of that motion. Commonwealth v. Wood, 818

N.E.2d 641 (Mass. App. Ct. 2004) (Table). On April 27, 2005, the

SJC again denied leave to seek further appellate review.

Roughly five and one-half months later — on October 5,

2005 — Wood filed a habeas petition in the federal district court.

See 28 U.S.C. § 2254. He named as the respondent the superintendent

of the penitentiary (M.C.I.-Norfolk) in which he was incarcerated.

Because the superintendent is sued in his official capacity, we

henceforth refer to the respondent as "the Commonwealth."

In federal court, Wood pressed the same two arguments that

he had advanced in his most recent round of state court initiatives:

that his rights had been violated through the prosecution's

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nondisclosure of the Bettencourt conversation, see Brady v.

Maryland, 373 U.S. 83, 87 (1963), and that the jury instructions had

improperly assigned him the burden of proving manslaughter (as an

alternative to murder), see Mullaney v. Wilbur, 421 U.S. 684, 704

(1975). The district judge, concurring with the recommendation of

a magistrate judge, held — without convening an evidentiary hearing

— that the habeas petition was untimely.1

The district court's reasoning was straightforward.

First, it noted that the AEDPA, save only in select circumstances,

prohibits inmates incarcerated pursuant to state court convictions

from seeking federal habeas relief more than one year after the

conclusion of direct review in the state system. See 28 U.S.C. §

2244(d)(1)(A). The court then explained that, while certain newly

discovered evidence may bring a case within an exception to the one-

year limitations period, that exception is only available to habeas

petitioners who have pursued relevant evidentiary leads with due

diligence. See id. § 2244(d)(1)(D). Because Wood (or, at least,

his counsel) appeared to have had knowledge of the existence of

Bettencourt's conversation with Aulson at the time of trial, this

exception did not apply. For the same reason, the court held the

exception for state-created impediments, see id. § 2244(d)(1)(B),

to be inapplicable.

1
For simplicity's sake, we do not distinguish further between
the district judge and the magistrate judge but, rather, take an
institutional view and refer only to "the district court."

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 This timely appeal ensued. The district court issued a

broadly worded certificate of appealability, see id. § 2253(c),

covering the general question of whether the petition was time-

barred. Where, as here, the district court has denied a habeas

petition on a procedural ground without taking evidence, we afford

de novo review. See Rodriguez v. Spencer, 412 F.3d 29, 32 (1st Cir.

2005). That standard applies with full force to the district

court's due diligence holding.

II. ANALYSIS

Wood's appeal focuses exclusively on his Brady claim; his

jury instruction claim is not before us. We begin our discussion

of the Brady claim by outlining the AEDPA's temporal limitations as

they apply to federal habeas petitions filed on behalf of state

prisoners.

Under section 2244(d)(1)(A), a state prisoner must file

for federal habeas relief within a one-year period that runs from

"the date on which the judgment became final by the conclusion of

direct review or the expiration of the time for seeking such

review." Because Congress did not enact the AEDPA until the mid-

1990s, courts have read into its text a grace period for state

prisoners who completed their odyssey through direct review prior

to April 24, 1996 (the AEDPA's effective date). Those persons are

allowed to use that date, rather than a date referable to direct

review, as the starting point for accrual of the one-year

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limitations period. See Carey v. Saffold, 536 U.S. 214, 217 (2002);

Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999).

Wood qualifies for this grace period. Even so, his window

for filing a federal habeas petition would seem to have closed on

April 24, 1997. That was well before he brought a federal habeas

proceeding.

In establishing the AEDPA limitations period, however,

Congress left room for some play in the joints. One such exception,

applicable in cases of certain newly discovered evidence, postpones

the commencement of the limitations period until "the date on which

the factual predicate of the claim or claims presented could have

been discovered through the exercise of due diligence." 28 U.S.C.

§ 2244(d)(1)(D). A second exception provides that if an impediment

to the filing of a habeas petition has been "created by State action

in violation of the Constitution or laws of the United States . .

. [and] if the applicant was prevented from filing by such State

action," the limitations period will not begin to run until the date

on which the impediment is removed. Id. § 2244(d)(1)(B).

These two exceptions — there is another, which is not

germane to this case — form the centerpiece of Wood's appeal.

Because the limitations period, once started, is tolled for any

period during which a convict is seeking state court relief with

respect to the pertinent claim, see id. § 2244(d)(2), Wood's federal

habeas petition is timely if either exception operated to forestall

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the start of the limitations period to the date on which his new

counsel interviewed Bettencourt.

Wood frames his argument in the alternative. At the

outset, he posits that the conversation between Bettencourt and

Aulson was a factual predicate to the nascent Brady claim that

undergirds his federal habeas petition — a factual predicate that

could not readily have been discovered absent disclosure by the

Commonwealth. Alternatively, he asseverates that the prosecution's

failure to disclose this (exculpatory) conversation constituted a

state-created impediment that prevented him from learning about the

evidence and, thus, from pursuing the claim until the interview took

place in 2001. In either event, he insists that the AEDPA clock

should be calibrated to the interview date. We address these

arguments sequentially.

A. Factual Predicate.

We need not linger long over Wood's assertion that the

Bettencourt conversation was a factual predicate to his Brady claim

and, thus, within the ambit of section 2244(d)(1)(D). In order to

qualify for this exception, a habeas petitioner must show that,

exercising due diligence, he could not have learned of the evidence

in question at a substantially earlier date. The district court

found that Wood could not meet this criterion. We agree.

Under ordinary circumstances — and there is no room for

the application of a different principle here — a lawyer's knowledge

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is attributed to her client. See, e.g., United States v. Desir, 273

F.3d 39, 44 (1st Cir. 2001). At the original criminal trial in this

case, the Commonwealth called Aulson's wife as a witness. While

cross-examining her, Wood's trial counsel posed a series of

questions concerning the Aulsons' activities on the night of the

slaying. When the witness recounted that the couple had gone to a

particular restaurant that evening, the attorney asked: "[While at

the restaurant] didn't [Aulson] go up to Officer Bettencourt of the

Peabody police and ask some questions of Officer Bettencourt?" The

witness replied that she had neither seen nor overheard this

exchange but acknowledged that it might have occurred. The

questioning then proceeded to other matters.

The district court found that this line of inquiry, which

was initiated by Wood's counsel and which Wood does not claim was

prompted by either the prosecutor's direct examination or any of

Mrs. Aulson's responses, demonstrated beyond hope of contradiction

that Wood's counsel knew (or, at least, had reason to believe) that

a conversation had taken place between Bettencourt and Aulson on the

night of the murder. This finding is unassailable.

The conclusion is inescapable, therefore, that Wood,

through his attorney, had notice in 1992 that such a conversation

had transpired. Given that knowledge, due diligence demanded that

he attempt to interview Bettencourt about the conversation at that

time. See Daniels v. Uchtman, 421 F.3d 490, 492 (7th Cir. 2005).

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In turn, the failure to exercise that diligence bars access to the

limitations-extending benefits of section 2244(d)(1)(D).

Wood attempts to parry this thrust by arguing, in effect,

that his trial counsel was obviously in the dark. Since self-

defense was the main issue at trial, this thesis runs, no tactical

rationale could explain the lawyer's failure to approach

Bettencourt. From this, Wood urges us to conclude that his counsel,

though aware that a conversation occurred, was not aware either of

its substance or of its possible import.

This argument is wide of the mark. The test of due

diligence under section 2244(d)(1)(D) is objective, not subjective.

See Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2001). Thus, we are

concerned less with what Wood's counsel believed and more with what

knowledge fairly may be imputed to him. See id. The lawyer plainly

was aware that some exchange had taken place between the decedent

and a local law enforcement officer on the same evening that the

fatal incident occurred. It was objectively unreasonable not to

pursue that lead (indeed, the fact that the lawyer chose to inquire

into the contents of the conversation when cross-examining a

potentially hostile witness is a solid indication that he realized

its potential relevance). That Mrs. Aulson could neither confirm

nor deny the occurrence of the conversation did not relieve Wood,

through his attorney, of the responsibility to take reasonable

measures to explore this area of inquiry.

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 That ends this aspect of the matter. Despite his

knowledge that a conversation had occurred, the record is devoid of

any suggestion that Wood's counsel expended the slightest effort —

let alone due diligence — to try to interview Bettencourt or

otherwise to ferret out the nature of Bettencourt's exchange with

the decedent. That inaction is incompatible with a finding of due

diligence. Hence, Wood cannot avail himself of the exception limned

in section 2244(d)(1)(D). See Daniels, 421 F.3d at 492 (concluding

that when the facts pertinent to a petitioner's Brady claim could

in the exercise of due diligence have been discovered at an earlier

date, that date marks the commencement of the AEDPA limitations

period); Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004)

(finding section 2244(d)(1)(D) inapplicable when the crucial

interview would, in the exercise of due diligence, have been

conducted years earlier).

B. State-Created Impediment.

Wood's more plausible argument is that the alleged Brady

violation constituted a state-created impediment that prevented him

from mounting his federal habeas petition until his new lawyer

independently discovered Aulson's statement to Bettencourt. See 28

U.S.C. § 2244(d)(1)(B). He contends that the withholding of this

(exculpatory) evidence comprised state action in violation of the

Constitution and that the resultant unavailability of Bettencourt's

account prevented him from advancing a viable federal habeas claim.

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He adds that since section 2244(d)(1)(B) is focused on government

conduct, he should be entitled to avail himself of its prophylaxis

regardless of whether his trial counsel should have uncovered the

Bettencourt conversation.

The Commonwealth counters that section 2244(d)(1)(B) does

not apply to Brady claims. In its view, this provision is designed

to extend the limitations period for cases in which a state directly

interferes with a prisoner's ability to file a habeas petition by,

say, denying him access to legal materials. See Shannon v. Newland,

410 F.3d 1083, 1087 (9th Cir. 2005) (noting that the overwhelming

majority of section 2244(d)(1)(B) cases are of this genre).

That "direct interference" argument cannot easily be

dismissed. Still, the word "impediment" is not defined in the

statute itself, nor is it self-elucidating. See Moore v. Battaglia,

476 F.3d 504, 506-07 (7th Cir. 2007). Moreover, two of our sister

circuits have entertained the possibility that section 2244(d)(1)(B)

might encompass Brady violations. See Williams v. Sims, 390 F.3d

958, 960 (7th Cir. 2004); Green v. Cain, 2001 WL 502806, at *1 (5th

Cir. 2001) (per curiam) (unpublished). Here, however, we need not

resolve this vexing question because we conclude that, even if

section 2244(d)(1)(B) does encompass Brady violations — a matter on

which we take no view — Wood is not entitled to relief. We explain

briefly.

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 Wood's most obvious problem involves whether his lack of

due diligence — an established fact here, see supra Part II(A) — is

dispositive of his state-created impediment inquiry. The statute

itself, 28 U.S.C. § 2244(d)(1)(B), focuses on government conduct and

does not contain an explicit diligence requirement. The Tenth

Circuit nonetheless has implied, in fairly strong terms, that

section 2244(d)(1)(B) does have a diligence requirement. See Clark

v. Oklahoma, 468 F.3d 711, 714 (10th Cir. 2006); Miller v. Marr, 141

F.3d 976, 978 (10th Cir. 1998). The Ninth Circuit, albeit without

much analysis, has implied the same. See Roy v. Lampert, 465 F.3d

964, 972 & n.3 (9th Cir. 2006) (regarding a section 2244(d)(1)(B)

argument as "identical" to an equitable tolling argument and

discussing at length the need for petitioners seeking equitable

tolling to demonstrate due diligence).

The petitioner resists this implication. In exhorting us

to refrain from imputing a diligence requirement into section

2244(d)(1)(B), he reminds us that courts normally presume that

"Congress acts intentionally and purposely when it includes

particular language in one section of a statute but omits it in

another." BFP v. Resolution Trust Corp., 511 U.S. 531, 537 (1994).

As he sees it, the inclusion of an express diligence requirement in

section 2244(d)(1)(D) is tantamount to an intentional exclusion of

such a requirement in section 2244(d)(1)(B). On this basis, Wood

urges us, in applying the latter exception, to disregard his lack

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of diligence and look only to the Commonwealth's obstructive

conduct.

But this case does not require us to decide the full

extent to which a due diligence requirement should be read into the

warp and woof of section 2244(d)(1)(B) — a question that we leave

for another day — because it is perfectly plain that, here, the

petitioner had the power to blunt the effect of any state-created

impediment. In a nutshell, that impediment did not "prevent" him

from the timely filing of an application for habeas relief.

In reaching this conclusion, a different canon of

statutory construction lights our path. It is common ground that

"[a]ll words and provisions of statutes are intended to have meaning

and are to be given effect." United States v. Ven-Fuel, Inc., 758

F.2d 741, 751 (1st Cir. 1985); accord Libby v. Magnusson, 177 F.3d

43, 48 (1st Cir. 1999). This means, of course, that we must eschew

any construction of section 2244(d)(1)(B) that would render a word

or phrase therein superfluous. Ven-Fuel, 758 F.2d at 751-52.

Wood's state-centric reading of section 2244(d)(1)(B) falls within

that proscription; it fails to give meaning to the second clause of

the statutory provision. That clause demands that a state-created

impediment must, to animate the limitations-extending exception,

"prevent" a prisoner from filing for federal habeas relief. See

Lloyd v. Van Natta, 296 F.3d 630, 633 (7th Cir. 2002) (emphasizing

this "plain language"). That gets the grease from the goose. The

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verb "prevent," in common parlance, means to frustrate, hold back,

or keep from happening. See, e.g., Merriam-Webster's Collegiate

Dictionary 984 (11th ed. 2003) (defining "prevent" as "to deprive

of power or hope of acting or succeeding" or more simply as "to keep

from happening"). The question, then, is whether Wood was

"prevented" from filing a federal habeas petition by reason of some

unconstitutional state action (here, the alleged Brady violation).

In answering that question, Wood's available alternatives

are of considerable relevance. After all, were someone to erect a

barrier across a highway, it would be impossible to decide whether

the barrier "prevented" a motorist from proceeding to his

destination without credible information as to the width of the

highway, the size of the barrier, and the dimensions of the vehicle.

If the barrier left ample room for the vehicle to pass, it could not

fairly be said to "prevent" the motorist's access to his

destination.

So it is here. There is no reliable way to measure the

obstructive effect of the alleged Brady violation without knowing

what other means of access to the same information were within

Wood's ken and available to him. Just as a person who has the

ability to drive around a barrier hardly can blame his delayed

arrival at his destination on the presence of the impediment, so too

the person who has notice that information exists and ready access

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to it hardly can blame his inaction on the state's failure to

deliver the information to him.

This case is a paradigmatic example of the point. Wood,

with the exercise of garden-variety diligence, could have learned

the content of the Bettencourt conversation and, thus, obliterated

the adverse effects of the Commonwealth's nondisclosure. Given this

circumstance, we cannot say that the state-created impediment

"prevented" Wood, in any meaningful sense, from filing for federal

habeas relief. Consequently, Wood may not avail himself of the

limitations-extending benefits of section 2244(d)(1)(B).

Let us be perfectly clear. We do not hold that section

2244(d)(1)(B) contains a hidden diligence requirement or that, in

terms of diligence, section 2244(d)(1)(D) is coterminous with the

"prevent" language of section 2244(d)(1)(B). We hold only that, on

the facts of this case, the Commonwealth's conduct cannot fairly be

said to have been the obstacle that prevented Wood from filing for

federal habeas relief.

III. CONCLUSION

We need go no further. The district court correctly

concluded that the petitioner, had he exercised due diligence, would

have had access to the information that he maintains he needed in

order to bring the claims asserted in his federal habeas petition

in a timely fashion. Moreover, it was his counsel's failure

adequately to pursue an available investigative lead, not government

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resistance, that prevented him from taking action earlier. Given

this scenario, the time for filing a federal habeas petition expired

some eight years before Wood repaired to the federal court.

Affirmed.

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