Neverson v. Farquharson

• Citation: 366 F.3d 32
• Decision Date: 04 May 2004
• Docket Number: No. 03-1385.,03-1385.
• Parties: 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.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

366 F.3d 32

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.

No. 03-1385.

United States Court of Appeals, First Circuit.

Heard February 2, 2004.

Decided May 4, 2004.

COPYRIGHT MATERIAL OMITTED

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.

Before LYNCH, LIPEZ, and HOWARD, Circuit Judges.

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.

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).

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 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, 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, 35 Mass.App.Ct. 913, 619 N.E.2d 344, 345-46 (1993). The Massachusetts Supreme Judicial Court denied further appellate review on October 25, 1993. Commonwealth v. Neverson, 416 Mass. 1106, 622 N.E.2d 1364 (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, 123 S.Ct. 1072, 155 L.Ed.2d 88 (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, 102 S.Ct. 1198, 71 L.Ed.2d 379 (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 Massachusetts Appeals Court turned down Neverson's appeal of that order, Commonwealth v. Neverson, 45 Mass.App.Ct. 1104, 699 N.E.2d 28 (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 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

Judge Li...