Donovan v. State of Maine

• Decision Date: 06 December 2001
• Docket Number: No. 01-1367,01-1367
• Citation: 276 F.3d 87
• Parties: (1st Cir. 2002) DANIEL J. DONOVAN, Petitioner, Appellant, v. STATE OF MAINE, Respondent, Appellee. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 87

276 F.3d 87 (1st Cir. 2002)

DANIEL J. DONOVAN, Petitioner, Appellant, v. STATE OF MAINE, Respondent, Appellee.

No. 01-1367

United States Court of Appeals For the First Circuit

Heard Dec. 6, 2001

Decided January 10, 2002

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. D. Brock Hornby, U.S. District Judge. Hon. David M. Cohen, U.S. Magistrate Judge

Darla J. Mondou for appellant.

Donald W. Macomber, Assistant Attorney General, with whom G. Steven Rowe, Attorney General, and Charles K. Leadbetter, State Solicitor, were on brief, for appellee.

Before Selya, Circuit Judge, Rosenn^* and Cyr, Senior Circuit Judges.

SELYA, Circuit Judge.

This appeal is the latest in an ever-lengthening line of cases trailing in the wake of Congress's enactment of a limitation period for the filing of federal habeas petitions. See, e.g., Delaney v. Matesanz, 264 F.3d 7 (1st Cir. 2001); Neverson v. Bissonnette, 261 F.3d 120 (1st Cir. 2001); Gaskins v. Duval, 183 F.3d 8 (1st Cir. 1999) (per curiam). The limitation period is part of the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 214 (1996). The statute of limitations for federal review of state prisoners' habeas applications is codified at 28 U.S.C. § 2244(d)(1).

Under this provision, "[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). With exceptions not relevant here, this one-year limitation period starts 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. Applying this formulation, the United States District Court for the District of Maine dismissed as time-barred a habeas application filed by petitioner-appellant Daniel J. Donovan, a state prisoner.¹ Donovan now invites us to reinstate his application. We decline the invitation.

I. Background

On February 5, 1996, a state-court jury convicted the petitioner of gross sexual assault. See Me. Rev. Stat. Ann. tit. 17-A, § 253 (Supp. 1996). The trial judge sentenced him to a term of twenty years (five suspended) and ordered him incarcerated. Maine's highest court (the Law Court) affirmed the conviction on August 8, 1997. State v. Donovan, 698 A.2d 1045, 1049 (Me. 1997).

On February 12, 1998, the petitioner delivered to state correctional authorities a pro se petition for post-conviction relief. That petition was docketed in the state superior court five days later. The court appointed counsel and, after an evidentiary hearing, concluded that the petition was groundless. The petitioner filed a notice of appeal which, under Maine law, doubled as a request for a certificate of probable cause (CPC). See Me. Rev. Stat. Ann. tit. 15, § 2131(1). On December 22, 1999, the Law Court denied the CPC, thus terminating the appeal.²

On September 23, 2000, the petitioner, acting pro se, delivered to prison authorities an application seeking federal habeas relief. See 28 U.S.C. § 2254. This application was docketed in the federal district court three days later. Citing the one-year limitation period, the court rejected it, but granted a certificate of appealability. Id. § 2253(c). This appeal ensued. Before us, the petitioner is represented by counsel.

II. Framing the Issues

Any discussion of timeliness must start with the Law Court's rejection of the petitioner's direct appeal on August 8, 1997. Giving the petitioner the benefit of the ninety-day grace period for seeking certiorari review by the United States Supreme Court, 28 U.S.C. § 2101(c), the district court ruled that the one-year statute of limitations began to accrue on the day after this grace period ended: November 7, 1997. The court counted forward 101 days and then stopped the accrual process as of February 17, 1998 -- the date on which the petitioner filed for state post-conviction relief. See id. § 2244(d)(2) (tolling the limitation period for such time as "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment . . . is pending"); see also Neverson, 261 F.3d at 125 (explaining the operation of this tolling provision).

Noting that the Law Court denied a CPC (and, thus, ended the petitioner's quest for state post-conviction relief) on December 22, 1999, the court resumed the count as of December 23. At that point, there were 264 days left within which to seek federal habeas review. The court determined that this 264-day window closed on September 11, 2000. The petitioner's federal habeas application is deemed filed, under the prisoner mailbox rule, on September 23, 2000. See Nara v. Frank, 264 F.3d 310, 315 (3d Cir. 2001) (explaining that "if an inmate is confined in an institution, his notice of appeal (or federal habeas petition) will be timely if it is deposited in the institution's internal mail system on or before the last day for filing"); see also Houston v. Lack, 487 U.S. 266, 276 (1988); Morales-Rivera v. United States, 184 F.3d 109, 110-11 (1st Cir. 1999) (per curiam). The petitioner did not act until after that date. Thus, the court considered his federal habeas action time-barred (twelve days late) absent a showing of some sufficiently excusatory set of circumstances. Discerning none, the court dismissed the application.

The petitioner charts two routes to a potential safe harbor. First, he questions the count itself, saying that his application for federal habeas review would have been adjudged timely had the court given him the benefit of all excluded periods. Second, he asseverates that equitable tolling should apply to extend the limitation period and assigns error to the district court's rejection of that asseveration. We follow each of these routes to its logical conclusion.

III. Timeliness

The petitioner's argument for timeliness hinges on his contention that the district court made three separate computational errors. First, the petitioner maintains that he delivered his state petition for post-conviction review to prison authorities on February 12, 1998, and that under the prisoner mailbox rule, the district court should have given him the benefit of the five days that elapsed between that date and the date on which his petition was docketed in the state superior court. Second, he attempts to invoke Federal Rule of Civil Procedure 6(e), arguing that, inasmuch as he received notice of the denial of his direct appeal by mail, the district court should have given him the benefit of three additional days in calculating the expiration of the time for seeking certiorari review in the United States Supreme Court. Finally, he asserts that his petition for state post-conviction review was pending until he received notice of the denial of the CPC, and that the district court should have given him the benefit of the five days that elapsed from the effective date of the Law Court's order (December 22, 1999) to the date of receipt of notice (December 27, 1999). Since no two of these contentions yield the twelve days needed to bring the petitioner's federal habeas application within the limitation period, the petitioner must prevail on all of them to succeed on his timeliness initiative.

We need not tarry. Because we find the petitioner's second and third contentions meritless, his timeliness argument fails. Consequently, it is unnecessary for us to express an opinion on the applicability vel non of the prisoner mailbox rule to a state-court petition for post-conviction relief.³

A. Additional Time due to Mailing

Citing Federal Rule of Civil Procedure 6(e), the petitioner theorizes that three days should be added to the one-year deadline for filing his federal habeas application.⁴ His thinking runs along the following lines. As the district court recognized, section 2244(d)(1) provides for tolling during the ninety-day period in which the petitioner would have been allowed to ask the United States Supreme Court to grant certiorari to review the Law Court's denial of his direct appeal (the fact that the petitioner did not seek certiorari is immaterial). The petitioner concludes that this ninety-day period did not expire on November 6, 1997 (as determined by the district court), but, rather, on November 9, 1997. In support of this conclusion, he notes that notice of the adverse judgment was mailed to him and suggests that, due to this circumstance, the habeas court should have invoked Rule 6(e) and waited three days before starting to count the ninety-day period. The respondent counters that this claim was not raised below and urges us to hold that it has been forfeited. See, e.g., Clauson v. Smith, 823 F.2d 660, 666 (1st Cir. 1987).

Because the forfeiture question is murky, we choose to address the claim head-on. We recently have recognized "[t]he prevailing view . . . that Rule 6(e) does not apply to statutes of limitation." Berman v. United States, 264 F.3d 16, 19 (1st Cir. 2001). This is because Rule 6(e), in terms, "is centrally concerned with what a 'party' does and a 'party' operates within the framework of an existing case. By contrast, statutes of limitation . . . govern the time for commencing an action." Id. That rationale is dispositive here.

28 U.S.C. § 2101(d), in conjunction with Supreme Court Rule 13(1), merely establishes a ninety-day interval within which an aggrieved litigant may file a petition for certiorari following entry of a judgment of a state court of last resort.⁵ Neither the certiorari statute nor the implementing Supreme Court rule triggers the prophylaxis of Rule 6(e) because neither of them, in the language of that rule, requires a party to take any action "within a prescribed period of time after the service of a notice" upon the party. Rather, both unambiguously require filing within ninety days after entry of a judgment. Given this...