Delaney III v. Matesanz

• Decision Date: 09 November 2001
• Docket Number: No. 99-1972,99-1972
• Citation: 264 F.3d 7
• Parties: (1st Cir. 2001) CHARLES C. DELANEY III, Petitioner, Appellant, v. JAMES MATESANZ ET AL., Respondents, Appellees. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 7

264 F.3d 7 (1st Cir. 2001)

CHARLES C. DELANEY III, Petitioner, Appellant, v. JAMES MATESANZ ET AL., Respondents, Appellees.

No. 99-1972

United States Court of Appeals For the First Circuit

Heard Nov. 9, 2001

Decided September 5, 2001

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

[Hon. Robert E. Keeton, U.S. District Judge]

[Copyrighted Material Omitted] Elizabeth L. Prevett, Federal Defender Office, with whom Owen S. Walker, Federal Defender and Charles C. Delaney III, pro se ipso, were on brief, for appellant.

Catherine E. Sullivan, Assistant Attorney General, Commonwealth of Massachusetts, with whom Thomas F. Reilly, Attorney General, was on brief, for appellees.

Before Selya, Circuit Judge, Coffin and Stahl, Senior Circuit Judges,

SELYA, Circuit Judge.

Petitioner-appellant Charles C. Delaney III, a Massachusetts state prisoner, sought a writ of habeas corpus in the United States District Court for the District of Massachusetts, but voluntarily withdrew his application when the Commonwealth pointed out that it contained unexhausted claims. After pursuing all available state remedies, the petitioner returned to federal court. At that juncture, the court dismissed his new application as untimely under the one-year limitation period enacted as part of the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996).

The petitioner appeals this order, asseverating that the district court erred in refusing to toll the limitation period during the pendency of his original federal habeas petition; that absent such tolling the statutory limitation violates the Suspension Clause; and that, in all events, the district court abused its discretion by failing to resuscitate his time-barred claim on equitable grounds. Recent Supreme Court precedent holding that the relevant statutory provision, 28 U.S.C. § 2244(d)(1), may not be tolled by the pendency of federal, as opposed to state, post-conviction proceedings defeats the first of these asseverations. See Duncan v. Walker, 121 S. Ct. 2120, 2129 (2001). The second fails on the law. The third fails on the facts: even assuming, for argument's sake, that equitable tolling is available in the precincts patrolled by section 2244(d) -- a matter on which we take no view -- the district court supportably determined that the petitioner had not established a sufficiently compelling basis for remediation. Consequently, we uphold the district court's dismissal of the petitioner's application for habeas relief.

I. BACKGROUND

We retrace the relevant portions of the petitioner's journey through the procedural labyrinth that typifies modern habeas litigation. The facts are essentially uncontested.

In 1989, a Massachusetts jury found the petitioner guilty of murder in the second degree. The trial judge sentenced him to life imprisonment. On direct review, his conviction was sequentially affirmed by the Massachusetts Appeals Court and the Supreme Judicial Court. See Commonwealth v. Delaney, 616 N.E.2d 111 (Mass. App. Ct. 1993), aff'd, 639 N.E.2d 710 (Mass. 1994). The conviction became final on September 20, 1994.

On February 24, 1997, ten months after the AEDPA's effective date, the petitioner for the first time asked the federal district court for a writ of habeas corpus. See 28 U.S.C. § 2254. In this pro se petition (Petition No. 1), he reasserted various claims that he had presented to the state courts and added four new (unexhausted) claims. The Commonwealth promptly moved to dismiss this "mixed" petition. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding that a federal habeas court ordinarily should not adjudicate a "mixed" petition, i.e., one containing both exhausted and unexhausted claims); Adelson v. DiPaola, 131 F.3d 259, 261-62 (1st Cir. 1997) (same). The petitioner countered by moving to dismiss the action without prejudice. The district court granted the latter motion on May 2, 1997.

On June 6, 1997, the petitioner returned to state court and filed a motion for a new trial that raised two ineffective assistance of counsel claims. These claims were not the claims previously asserted in Petition No. 1, but, rather, were newly minted. The superior court denied this motion a few weeks later and, by March 27, 1998, the petitioner had exhausted all available state appellate remedies.

On April 10, 1998, the petitioner refiled for federal habeas relief, raising only the two ineffective assistance of counsel claims. Citing 28 U.S.C. § 2244(d)(1), the district court dismissed this application (Petition No. 2) as untimely. When the petitioner moved for reconsideration, the court withheld a ruling and asked us to consider whether Petition No. 2 was a "second or successive" habeas petition, and thus subject to the gatekeeping requirement of 28 U.S.C. § 2244(b)(3). See generally Pratt v. United States, 129 F.3d 54, 57-58 (1st Cir. 1997). Following the reasoning explicated in Slack v. McDaniel, 529 U.S. 473, 487 (2000), we advised the lower court that Petition No. 2 was not a "second or successive" petition and that, therefore, the gatekeeping regime did not apply.

The district court proceeded to deny the petitioner's motion for reconsideration on the merits. The court then granted a certificate of appealability. See 28 U.S.C. § 2253(c). We augmented the issues, appointed counsel for the petitioner, consolidated the case for argument with a case containing a similar limitation issue, and heard oral argument on November 9, 2000. Four days later, the Supreme Court granted certiorari to review the decision of the United States Court of Appeals for the Second Circuit in Walker v. Artuz, 208 F.3d 357 (2d Cir.), cert. granted sub nom. Duncan v. Walker, 121 S. Ct. 480 (2000). Because Duncan squarely raised the question of whether section 2244(d)(1) could be tolled by the pendency of federal, as well as state, post-conviction proceedings, we stayed our hand.

The Supreme Court decided Duncan on June 18, 2001. By order entered June 28, 2001, we vacated the stay previously entered in this case and the companion case. We resolved the companion case in an opinion filed on August 20, 2001, see Neverson v. Bissonnette, 261 F.3d 120 (1st Cir. 2001) [No. 00-1044], and now decide the petitioner's appeal.

II. ANALYSIS

Congress enacted the AEDPA on April 24, 1996, in part to combat increasingly pervasive abuses of the federal courts' habeas jurisdiction. Felker v. Turpin, 518 U.S. 651, 664 (1996). Pertinently, the AEDPA imposed a one-year limitation period applicable to state prisoners' habeas applications. See 28 U.S.C. § 2244(d)(1). This period of limitation normally begins to accrue on "the date on which the [state court] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A).

The courts have determined that this language encompasses a one-year grace period within which state prisoners may file federal habeas petitions to test the correctness of convictions that became final before the AEDPA's effective date. See Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999) (per curiam); see also Duncan 121 S. Ct. at 2130 n.1 (Stevens, J., concurring) (collecting cases to like effect from other circuits). Accordingly, the petitioner had until April 24, 1997, to file an application for federal habeas relief. He docketed Petition No. 1 within that window of opportunity, but he voluntarily withdrew that petition. He did not propound Petition No. 2 until April 10, 1998 (nearly a year after the grace period had run its course). Hence, that petition was time-barred, as the district court ruled, absent some sufficiently excusatory circumstance.

The petitioner's principal attempt to rescue his habeas application implicates 28 U.S.C. § 2244(d)(2), which provides that "[t]he 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 any period of limitation under [section 2244(d)]." But this provision is of no help to the petitioner: although it plainly tolls the limitation period from and after June 6, 1997 (the date upon which he moved for a new trial in state court), the one-year period already had elapsed by that date.

In an attempt to overcome this obstacle, the petitioner contends that the reference in section 2244(d)(2) to "other collateral review" includes not only state collateral review proceedings but also federal habeas proceedings. If that were so, the pendency of Petition No. 1 would have tolled the limitation period from the date of filing (February 24, 1997) to the date of dismissal (May 2, 1997), and this hiatus, coupled with the tolling that accompanied the petitioner's pursuit of post-conviction remedies in the state courts during the period from June 6, 1997, through March 27, 1998, would have rendered Petition No. 2 timely (i.e., filed within one year of April 24, 1996, after subtracting "tolled" periods). As a first fallback position, the petitioner maintains that the statutory limitation period, if construed otherwise, violates the Constitution. As a second fallback, he asserts that even if his reading of section 2244(d)(2) proves overly sanguine and the provision nonetheless is constitutional, the district judge erred in refusing to apply principles of equitable tolling to assure his day in court. We address each of these arguments.

A. Statutory Tolling.

The question of what Congress meant when it wrote that the AEDPA's limitation period, 28 U.S.C. § 2244(d)(1), would be tolled while a state prisoner pursued "State post-conviction or other collateral review," id. § 2244(d)(2), is no longer open. The Duncan Court made it crystal clear that the adjective "State" qualifies both of the phrases that follow. 121 S. Ct. at 2128. Accordingly, section 2244(d)(2), properly construed, "toll[s]...