Trapp v. Spencer

• Decision Date: 01 March 2007
• Docket Number: No. 05-2827.,05-2827.
• Parties: Randall TRAPP, Petitioner, Appellant, v. Luis SPENCER, Superintendent, MCI—Norfolk, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

479 F.3d 53

Randall TRAPP, Petitioner, Appellant, v. Luis SPENCER, Superintendent, MCI—Norfolk, Respondent, Appellee.

No. 05-2827.

United States Court of Appeals, First Circuit.

Heard November 8, 2006.

Decided March 1, 2007.

John M. Thompson, with whom Thompson & Thompson, P.C. was on brief, for appellant.

Randall E. Ravitz, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for appellee.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

This case involves whether the district court erred in not applying the equitable tolling doctrine to excuse the late filing of a federal habeas petition where (1) the public-defender counsel for the state prisoner simply made a mistake as to the habeas limitations period, and (2) the petitioner makes a claim that the totality of the circumstances nonetheless warrants equitable tolling.

The Supreme Court has just rejected the argument that because the mistake was made by a state public defender and the defendant himself was diligent, the defendant should not be held to the mistake of his lawyer. Lawrence v. Florida, 549 U.S. ___, 127 S.Ct. 1079, ___, ___ L.Ed.2d ___, ___ (2007). Lawrence held that

[a]ttorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel.... [Petitioner] argues that his case presents special circumstances because the state courts appointed and supervised his counsel. But a State's effort to assist prisoners in postconviction proceedings does not make the State accountable for a prisoner's delay.

Id. (citation omitted).

Trapp's main argument is slightly different from that rejected in Lawrence. Trapp argues that Massachusetts has a policy that whenever the state provides counsel to an indigent person, that counsel is furnished with a guarantee of effective assistance. Thus, he argues, he was entitled to rely on his attorney and should not be held responsible for her mistake. We hold that this is a distinction without a difference. Lawrence still governs. The result Trapp seeks would be utterly inconsistent with Lawrence's rationale that equitable tolling is rare and available only in extraordinary circumstances.

Trapp's second argument is that the totality of the circumstances qualifies him for equitable tolling, an argument rejected by the district court. We affirm the dismissal of the petition for failure to comply with the limitations period.

I.

We briefly recount the facts, which are recited in greater detail in Commonwealth v. Trapp [Trapp I], 396 Mass. 202, 485 N.E.2d 162 (1985), and Commonwealth v. Trapp [Trapp II], 423 Mass. 356, 668 N.E.2d 327 (1996), affirming Trapp's conviction for murder and his life sentence.

On May 8, 1981, Randall Trapp stabbed to death Lawrence Norton, a man he had met in a bar the night before. Following the stabbing, which occurred in Norton's home, Trapp stole Norton's landlord's money and the landlord's mother's car. Trapp II, 668 N.E.2d at 329; Trapp I, 485 N.E.2d at 164. In 1982, Trapp was tried before a jury in Massachusetts state court. At trial, he defended on the ground that he lacked criminal responsibility for his actions. Trapp I, 485 N.E.2d at 164. He presented expert testimony that the murder was the product of (1) an organic brain abnormality (caused by earlier head traumas, some of which were the result of beatings by his father) and (2) psychological stress attributable to his wife's "deviant behavior," which included working as a prostitute and a stripper and being "openly and promiscuously bisexual." Id. at 164 & n. 2. Trapp was convicted of first-degree murder, armed robbery, and larceny of a motor vehicle, id. at 163, but the conviction was overturned on appeal because improper character evidence had been admitted at trial, id. at 165.

Trapp was retried in 1987, and he again defended on the basis that he was not criminally responsible. Trapp II, 668 N.E.2d at 329. During the seven-day trial, seven experts, including three for the prosecution and four for the defense, testified on the issue of Trapp's criminal responsibility. Id. As part of their testimony, these experts offered their interpretations of a computed axial tomography (CAT) scan of Trapp's brain.¹ In particular, Trapp's primary medical expert, Dr. Vernon Mark, testified that the CAT scan showed an enlarged area in the "right temporal horn" where "spinal fluid fill[ed] within the temporal lobe." Trapp's experts offered testimony as to the effects of such an abnormality, and testified that Trapp suffered from intermittent explosive disorder and organic personality disorder. By contrast, the Commonwealth's primary medical expert, Dr. Paul F. New, testified that Trapp's CAT scan did not show an enlarged temporal horn or any brain abnormality. The Commonwealth's additional experts offered testimony consistent with Dr. New's. Trapp also presented the testimony of lay witnesses, who described occasions prior to the homicide on which Trapp had behaved strangely. Id. After deliberating for two days, the jury convicted Trapp of first-degree murder based on extreme atrocity or cruelty.² Id. He was sentenced to a mandatory term of life imprisonment.

Trapp appealed his conviction on a number of grounds. He also moved in the state trial court for a new trial, claiming that his trial counsel was ineffective because he failed to present certain evidence at trial and because his presentation of other evidence was not persuasive. The motion for a new trial was denied, and Trapp's appeal therefrom was consolidated with his appeal from his conviction. On July 31, 1996, the Supreme Judicial Court (SJC) affirmed Trapp's convictions. Id. at 333.

Trapp then filed a petition for a writ of certiorari, which was denied on December 16, 1996. See Trapp v. Massachusetts, 519 U.S. 1045, 117 S.Ct. 618, 136 L.Ed.2d 542 (1996). As we explain below, it was at this point that the clock began to run on the one-year period for the filing of a petition for a writ of habeas corpus in federal court, subject to statutory exclusions. See 28 U.S.C. § 2244(d)(1).

On July 31, 1997, Trapp filed in the state trial court a second motion for a new trial, based on the facts that he had been "forced" to stand trial in prison clothing, that the record had been "deficient at the time of his direct appeal," and that the prosecution had used at trial results of a BEAM analysis that Trapp's counsel originally had ordered but had not intended to use and had not in fact used at trial.³ Trapp appended to his new trial motion a motion requesting court-appointed counsel. The motions were denied on September 7, 1997. On October 6, 1997, Trapp filed a gate-keeper motion requesting leave to appeal the denial of his motions for a new trial and for appointment of counsel to the SJC. As grounds for a new trial he reasserted his arguments that his constitutional rights had been violated when he was forced to stand trial in prison clothing and when the prosecution was permitted to discover and use the results of the BEAM analysis.

On May 10, 1999, the Committee for Public Counsel Services (CPCS)—a Massachusetts state defender service that provides legal counsel to indigent defendants—assigned counsel to Trapp's case. Trapp's counsel requested that the SJC stay activity in Trapp's case pending resolution of motions to be filed in the trial court. The SJC thus did not rule on Trapp's still-pending gate-keeper motion.

On June 6, 2000, Trapp filed a motion in the state trial court requesting funds to conduct additional tests on his brain, including a positron emission tomography (PET) scan, a more advanced imaging technique than the CAT scan available at the time of Trapp's second trial.⁴ The state trial court denied the motion and the subsequent motion for reconsideration. Eventually, Trapp's family secured funds for a PET scan, which was performed on June 25, 2001. The doctor who read the PET scan stated that it showed "mildly decreased metabolism in the medial aspects of the temporal lobes bilaterally," which was possibly "related to memory impairment or ... interictal seizure foci."

On October 5, 2001, Trapp filed in the state trial court a motion for a new trial based on the results of the PET scan, which he characterized as new evidence. The motion was denied on June 27, 2002. The motion judge found that Trapp had failed to present any evidence of the qualifications of the doctor who had read the PET scan and had failed to present a "qualified expert's opinion ... that the PET scan results support[ed] the trial testimony of [Trapp]'s experts." Moreover, he found the results of the PET scan to be "less than dramatic," questioned whether the PET scan was "probative of [Trapp's] brain function twenty years earlier," and found that even if it were, it was cumulative of other trial evidence. The motion judge denied Trapp's motion for reconsideration, finding an additional physician's affidavit submitted by Trapp to be "too flimsy to provide a basis to change [his earlier] ruling."

Trapp appealed to the SJC. On April 27, 2004, a single justice of the SJC treated the appeal as an application for leave to appeal to the full court, which she denied. The justice held that "[t]he results of the PET scan [were] not new evidence." She stated that "the PET scan indicate[d] the same abnormality" testified to at Trapp's second trial, and that "the PET scan results [were] merely cumulative." She further noted the lack of evidence "to establish that a PET scan conducted in 2001[was] probative of [Trapp]'s brain function twenty years earlier." The SJC justice also denied Trapp's October 16, 1997 gate-keeper motion on the ground that the SJC had already decided the issue. On May 25, 2004, the single justice denied Trapp's motion for reconsideration. Trapp did not petition the United States...