Ii v. Ficco

• Decision Date: 05 August 2010
• Docket Number: No. 07-1998.,07-1998.
• Citation: 615 F.3d 35
• Parties: James RIVA, II, Petitioner, Appellant, v. Edward FICCO, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

615 F.3d 35

James RIVA, II, Petitioner, Appellant,

v.Edward FICCO, Respondent, Appellee.

No. 07-1998.

United States Court of Appeals,First Circuit.

Heard June 8, 2010.

Decided Aug. 5, 2010.

COPYRIGHT MATERIAL OMITTED.

Randy Gioia, by appointment of the court, with whom Elizabeth Billowitz and Law Office of Randy Gioia were on brief, for appellant.

Annette C. Benedetto, Assistant Attorney General, Commonwealth of Massachusetts, with whom Martha Coakley, Attorney General, was on brief, for appellee.

Before HOWARD, SELYA and THOMPSON, Circuit Judges.

SELYA, Circuit Judge.

This case presents a question of first impression in this circuit: Can mental illness equitably toll the one-year statute of limitations for the filing of a state prisoner's habeas petition contained in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1)? We hold that the district court correctly answered this question in the affirmative. We nonetheless hold that the district court's further determination that the petitioner was not entitled to equitable tolling rests on too unsteady a foundation. Consequently, we vacate the order dismissing the habeas petition and remand for further proceedings.

I. BACKGROUND

This case is fact-intensive, so we take pains to mine the record and recite the relevant background in some detail. The facts themselves are largely undisputed (although they support conflicting inferences).

The petitioner, James Riva, II, suffers from paranoid schizophrenia. His history of severe mental illness dates back to his adolescence. His condition has required intermittent hospitalization since 1974.

On April 10, 1980, the petitioner killed his grandmother while under a paranoid delusion that, if he did not, he would fall prey to a society of vampires. He was found competent to stand trial in state court and, on October 30, 1981, a jury convicted him of second-degree murder, arson, and assault and battery on a police officer. The trial justice sentenced him to life imprisonment.

Four days later, the petitioner was committed to Bridgewater State Hospital (Bridgewater), where he remained until January 24, 1989. At that point, he was transferred to the general prison population. His stay there was short-lived; he was sent back to Bridgewater on September 6, 1990, after he assaulted a correctional officer while under a paranoid delusion that the officer had been draining fluid from the petitioner's spine. The petitioner was charged criminally for the assault, but was found not guilty by reason of insanity.

The petitioner remained at Bridgewater until August of 1999. During this interlude, he attempted to challenge his convictions in both state and federal courts. His trial counsel, John Spinale, filed a timely notice of appeal and motions for new trial and to revise or revoke the sentence. The trial justice denied the latter two motions, and Spinale withdrew as counsel. Attorney Willie Davis handled the appeal. The Massachusetts Appeals Court (MAC) affirmed both the convictions and the denial of the motion for new trial. Commonwealth v. Riva, 18 Mass.App.Ct. 713, 469 N.E.2d 1307, 1312 (1984). On January 4, 1985, the Supreme Judicial Court (SJC) denied the petitioner's application for leave to obtain further appellate review (ALOFAR). Commonwealth v. Riva, 393 Mass. 1105, 474 N.E.2d 181 (1985) (table).

In 1987 the petitioner, acting pro se, filed an application for a writ of habeas corpus in the federal district court. The court dismissed the application on the ground that it contained unexhausted claims. We affirmed. Riva v. Getchell, 873 F.2d 1434 (1st Cir.1989) (table).

On June 2, 1988, the petitioner, again acting pro se, filed a second motion for new trial. The state superior court appointed Dana Alan Curhan as counsel. Curhan filed an amended motion for new trial or post-conviction relief. The superior court denied the amended motion. The petitioner's counselled appeal was unsuccessful, Commonwealth v. Riva, 34 Mass.App.Ct. 1126, 615 N.E.2d 606 (1993) (table), and the SJC refused to grant an ALOFAR, Commonwealth v. Riva, 416 Mass. 1102, 618 N.E.2d 1364 (1993) (table).

Although Curhan's representation ended at that juncture, the petitioner was undaunted. On August 2, 1993, he filed a pro se motion to revise or revoke his sentence. His newly appointed counsel, Richard Passalacqua, filed a third motion for new trial on May 11, 1995. The superior court denied this motion approximately three months later, and Passalacqua withdrew as counsel.

The petitioner appealed pro se, but the MAC eventually dismissed the appeal for want of prosecution. On October 28, 1996, the superior court denied the petitioner's pro se motion to revise or revoke his sentence.

Meanwhile, the petitioner was attacking on a second front. On February 1, 1996, he repaired to the federal district court and filed another pro se application for habeas relief. The district court originally dismissed this case for insufficiency of service of process but later reopened it. The reopening came to naught, as the petitioner, apparently concerned about exhaustion, moved for a voluntary dismissal on November 25, 1996. See Fed.R.Civ.P. 41(a). The district court granted that motion. Riva v. DuBois, No. 96-10273 (D.Mass. Feb. 21, 1997) (unpublished order).

The petitioner's father hired Barbara Smith as counsel to prepare a third federal habeas petition. Smith died before completing the task, but on January 6, 1998, her law firm filed the habeas petition (quite possibly without the petitioner's consent). Because no authorization had been obtained to file a successive habeas petition, the district court transferred the case to this court. ¹ We dismissed the petition for failure to prosecute. Riva v. Nelson, No. 99-1071 (1st Cir. Oct. 28, 1999) (unpublished order).

On March 17, 1999, the petitioner, acting pro se, filed a fourth new trial motion. The superior court denied this motion on December 13, 1999. The MAC affirmed that order, Commonwealth v. Riva, 752 N.E.2d 242 (Mass.App.Ct.2001) (table), and the SJC denied an ALOFAR, Commonwealth v. Riva, 434 Mass. 1105, 752 N.E.2d 240 (2001) (table).

On October 15, 2001, the petitioner, acting pro se, filed the habeas petition with which we are concerned. The district court appointed counsel and ultimately dismissed the petition as untimely.

Riva v. Ficco, No. 01-12061, 2007 WL 954771, at *6 (D.Mass. Mar.28, 2007). The court held that the AEDPA statute of limitations was not tolled on the basis of the petitioner's mental illness. Id. It reasoned that the petitioner's prolific filings in both state and federal courts demonstrated a capacity to comply with the filing deadline. Id. at *5. The court did not address the petitioner's claim that his actual innocence trumped the Commonwealth's limitations defense. The district court issued a certificate of appealability, 28 U.S.C. § 2253(c), and this timely appeal ensued.

II. ANALYSIS

The AEDPA states in pertinent part that 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.” Id. § 2244(d)(1). The statute expressly provides that the limitations period is tolled by a “properly filed application for State post-conviction or other collateral review.” Id. § 2244(d)(2). Equitable tolling is not mentioned.

The essence of equitable tolling is that, “in exceptional circumstances, a statute of limitations ‘may be extended for equitable reasons not acknowledged in the statute creating the limitations period.’ ” Neverson v. Farquharson, 366 F.3d 32, 40 (1st Cir.2004) (quoting David v. Hall, 318 F.3d 343, 345-46 (1st Cir.2003)). After this case was briefed and argued, the Supreme Court determined that the AEDPA limitations period is subject to equitable tolling in appropriate circumstances. See Holland v. Florida, ---U.S. ----, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010). The Holland Court recognized that the “exercise of a court's equity powers ... must be made on a case-by-case basis,” id. at 2563 (quoting Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964)), and instructed lower courts to “exercise judgment in light of prior precedent, but with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case,” id.

This court has not yet responded to Holland. We have cautioned, however, in a pre- Holland habeas case, that equitable tolling “is the exception rather than the rule,” and that “resort to its prophylaxis is deemed justified only in extraordinary circumstances.” Delaney v. Matesanz, 264 F.3d 7, 14 (1st Cir.2001). These admonitions are consistent with the teachings of Holland.

A habeas petitioner bears the burden of establishing the basis for equitable tolling. Holland, 130 S.Ct. at 2562. To carry this burden, he must demonstrate “ ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)); see Trapp v. Spencer, 479 F.3d 53, 61 (1st Cir.2007) (listing additional factors that may, in a given case, influence a habeas court's decision about whether to grant equitable tolling).

In the case at hand, we must decide whether the petitioner's mental illness constitutes an extraordinary circumstance that equitably tolls the AEDPA limitations period. This inquiry is binary. First, we must decide whether, as a general proposition, mental illness can qualify as an acceptable basis for equitable tolling. If so, we then must decide whether the petitioner's mental illness warrants equitable tolling. We take the two halves of the inquiry in order.

Although this court has yet to address the generic question of whether mental illness can constitute a ground for equitable...