Neverson v. Bissonnette

• Citation: 261 F.3d 120
• Decision Date: 09 November 2000
• Docket Number: No. 00-1044,00-1044
• Parties: (1st Cir. 2001) TREVOR NEVERSON, Petitioner, Appellant, v. LYNN BISSONNETTE, Respondent, Appellee. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 120

261 F.3d 120 (1st Cir. 2001)

TREVOR NEVERSON, Petitioner, Appellant, v. LYNN BISSONNETTE, Respondent, Appellee.

No. 00-1044

United States Court of Appeals For the First Circuit

Heard November 9, 2000

Decided August 20, 2001

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

[Hon. Reginald C. Lindsay, U.S. District Judge]

[Copyrighted Material Omitted] John M. Thompson, by appointment of the court, with whom Trevor Neverson, pro se ipso, was on brief, for appellant.

William J. Meade, Assistant Attorney General, Commonwealth of Massachusetts, with whom Thomas F. Reilly, Attorney General, was on brief, for appellee.

Brenda M. O'Malley, Attorney, Office of Immigration Litigation, U.S. Dep't of Justice, with whom David W. Ogden, Acting Assistant Attorney General, and Terri J. Scadron, Senior Litigation Counsel, were on brief, for provisional respondent (Commissioner, Immigration and Naturalization Service).

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

SELYA, Circuit Judge.

In 1987, a Hampden County, Massachusetts grand jury indicted petitioner-appellant Trevor Neverson, a native of Trinidad, for the murder of his fifteen-month-old stepdaughter, Leshawna Wright. His first trial resulted in a court-ordered judgment of acquittal as to so much of the indictment as alleged first-degree murder. The trial judge sent the remaining charges (second-degree murder and the lesser included offense of manslaughter) to the jury. The jury deadlocked and the judge declared a mistrial. The petitioner's subsequent attempts to terminate the case on grounds of evidentiary insufficiency and double jeopardy were unavailing. See Neverson v. Commonwealth, 546 N.E.2d 876 (Mass. 1989) (affirming lower court rulings).

On retrial, a new jury found the petitioner guilty of manslaughter. The trial judge sentenced him to serve a lengthy prison term. The conviction and sentence were affirmed on appeal. See Commonwealth v. Neverson, 619 N.E.2d 344 (Mass. App. Ct.), rev. denied 622 N.E.2d 1364 (Mass. 1993).

On August 28, 1996, the petitioner repaired to the federal district court and filed an application for habeas corpus relief under 28 U.S.C. § 2254 (Petition No. 1). On December 24, 1996, the district court (O'Toole, J.) dismissed the petition without prejudice because it contained some unexhausted claims. 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 initially filed a notice of appeal, but apparently thought better of it and withdrew the appeal on September 3, 1997.

In the meantime, the petitioner moved for a new trial in the state court. He filed his motion on July 11, 1997, but the state trial judge denied it, and the petitioner's efforts to overturn that adverse ruling came to naught. See Commonwealth v. Neverson, 699 N.E.2d 28 (Mass. App. Ct.) (table), rev. denied, 700 N.E.2d 544 (Mass. 1998) (table).

On August 17, 1998, the petitioner returned to the federal district court and filed the instant application for habeas relief (Petition No. 2). On October 13, 1998, the respondent, a state correctional official, moved to dismiss the petition as time-barred under 28 U.S.C. § 2244(d)(1). The district court (Lindsay, J.) dismissed Petition No. 2 as untimely. The court simultaneously granted a certificate of appealability (COA), 28 U.S.C. § 2253(c), on two issues: (1) Does the pendency in federal court of a prior dismissed habeas petition toll the statute of limitations for the purposes of a subsequent petition? (2) Does the filing of a subsequent habeas petition relate back to a prior petition which raised the same issues, but was dismissed without prejudice? The petitioner promptly perfected an appeal.

After an initial round of pro se briefing, we appointed counsel and set a new briefing schedule. At about the same time, a new development occurred. The petitioner had entered the United States illegally in 1985. In 1994, the Immigration and Naturalization Service (INS) sought to deport him for this illegal entry. See 8 U.S.C. § 1227(a)(1)(B). Three years later, the INS lodged an additional charge based on his commission of an aggravated felony (the manslaughter conviction). See id. § 1227(a)(2)(A)(iii). The necessary administrative proceedings resulted in a finding of deportability and a denial of the petitioner's applications for adjustment of status and/or waiver of deportability.

The petitioner completed his term of immurement on the manslaughter conviction in the spring of 2000. Because the deportation proceedings were still hanging fire, the INS took him into custody. On August 31, 2000, the petitioner asked us for a stay of deportation. We granted the stay temporarily and agreed, in effect, to treat the INS as a provisional respondent in the pending appeal, so that a nettlesome issue -- whether deportation would moot the petitioner's habeas appeal -- could be considered. Expedited briefing on this issue followed.

Neverson's appeal was consolidated for oral argument with a case containing a similar limitation issue, namely, Delaney v. Matesanz, No. 99-1972. We heard oral argument in both cases 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. 2000), cert. granted sub nom. Duncan v. Walker, 121 S. Ct. 480 (2000). Because that case squarely raised the question of whether 28 U.S.C. § 2244(d)(1) -- 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) -- could be tolled by the pendency of federal as well as state post-conviction proceedings, we stayed both Neverson's and Delaney's pending appeals. The Supreme Court spoke on June 18, 2001, see Duncan v. Walker, 121 S. Ct. 2120 (2001), and we vacated the stay ten days later. We now resolve Neverson's appeal (reserving Delaney's case for treatment in a separate opinion).

As all parties recognize, the AEDPA applies to this case. Congress enacted that statute 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). Among other things, the AEDPA imposed, for the first time, a limitation period applicable to state prisoners' habeas applications.¹ According to 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). 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).²

The petitioner's manslaughter conviction became final before the AEDPA's effective date. In respect to such convictions, we have construed the AEDPA to encompass a one-year grace period within which state prisoners may file federal habeas petitions testing the constitutionality of convictions that became final before the AEDPA's effective date. 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) (enumerating cases to like effect from other circuits). Accordingly, the petitioner had until April 24, 1997 to file his application for federal habeas relief. He docketed Petition No. 1 within that time frame, but that petition was dismissed and he voluntarily abandoned his appeal from the order of dismissal. He did not propound Petition No. 2 until August 17, 1998 (over a year after the grace period had expired). Hence, that petition was time-barred, as the district court ruled, unless some sufficiently excusatory circumstance existed.

The petitioner makes four efforts to salvage Petition No. 2: these efforts involve, respectively, statutory interpretation, the Suspension Clause, "relation back," and equitable tolling. We address them in order.

The petitioner's statutory interpretation argument 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)]." Although this provision plainly tolls the limitation period from and after July 11, 1997 (the date upon which the petitioner moved for a new trial in state court), the one-year grace period already had expired by that date. Without more, then, Petition No. 2 was beyond the temporal pale. See Fields v. Johnson, 159 F.3d 914, 915-16 (5th Cir. 1998) (per curiam).

Seeking to avoid this pitfall, 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. Building on that foundation, he argues that the pendency of Petition No. 1 tolled the limitation period from the date of filing (August 28, 1996) to the date of the withdrawal of his notice of appeal (September 3, 1997). In his view, this hiatus, coupled with the tolling that accompanied his pursuit of post-conviction remedies in the state courts during the period from July 11, 1997 through July 27, 1998, rendered Petition No. 2 timeous (i.e., filed within one year of April 24, 1996, after subtracting "tolled" periods).

We reject this argument. To the extent that the petitioner asks us to determine 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...