Trenkler v. U.S.A.

• Decision Date: 02 August 2001
• Docket Number: No. 00-1657,00-1657
• Citation: 268 F.3d 16
• Parties: (1st Cir. 2001) ALFRED W. TRENKLER, Petitioner, Appellant, v. UNITED STATES OF AMERICA, Respondent, Appellee. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 16

268 F.3d 16 (1st Cir. 2001)

ALFRED W. TRENKLER, Petitioner, Appellant, v. UNITED STATES OF AMERICA, Respondent, Appellee.

No. 00-1657

United States Court of Appeals For the First Circuit

Heard Aug. 2, 2001

Decided October 16, 2001

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

[Hon. Rya W. Zobel, U.S. District Judge] Charles W. Rankin, with whom Bruce W. Edmands, Richard S. Jacobs and Mahoney Hawkes LLP, were on brief, for appellant.

Kevin P. McGrath, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, and David S. Mackey, Special Assistant United States Attorney, were on brief, for appellee.

Before Boudin, Chief Judge, Selya and Lipez, Circuit Judges.

LIPEZ, Circuit Judge.

This case requires us to address the interaction between two avenues of relief from a federal conviction and sentence: 28 U.S.C. § 2255, which permits a motion to set aside a sentence allegedly imposed in violation of the Constitution or federal law, and Rule 33 of the Federal Rules of Criminal Procedure, which permits a motion for a new trial on the basis of newly discovered evidence. In particular, we must decide whether the one-year statute of limitations for § 2255 motions imposed by the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) ("AEDPA"), either is tolled during the pendency of a Rule 33 motion based on newly discovered evidence, or, in the alternative, does not commence until the possibility of relief under Rule 33 is exhausted.

Like the district court, we conclude that the statute of limitations for a § 2255 motion begins to run upon the completion of a prisoner's direct appeal from the judgment of conviction, notwithstanding any subsequent proceedings under Rule 33. We also agree with the district court that there is no statutory basis for tolling the limitations period while the prisoner seeks post-conviction relief under Rule 33. Finally, assuming the availability of equitable tolling, we conclude that the district court did not abuse its discretion in finding that the circumstances of this case do not present any grounds for application of that doctrine.

I.

On June 24, 1993, a federal grand jury returned a three-count superceding indictment against Alfred Trenkler and Thomas Shay, charging them with illegal receipt and use of an explosive in violation of 18 U.S.C. §§ 844(d) and (i), and conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371 (an original, sealed indictment had been issued against both men on December 16, 1992). Trenkler moved to sever the cases, and Shay was tried first. At his trial, Shay sought to call Dr. Robert Phillips as an expert witness. Dr. Phillips was prepared to testify that Shay suffered from a mental disorder that caused him to tell self-aggrandizing lies, making his various incriminating statements unreliable. The district court excluded Dr. Phillips's testimony on the ground that it did not satisfy the standards for expert testimony set forth in Rule 702 of the Federal Rules of Evidence. Shay was convicted, and on appeal he argued that the district court erred in refusing to admit the testimony. We agreed, holding on June 22, 1995, that it was a "clear error in judgment for the district court to exclude the testimony under any plausible interpretation of Rule 702." United States v. Shay, 57 F.3d 126, 133-34 (1st Cir. 1995). On remand, the district court rejected the government's argument that Fed. R. Evid. 403 provided an alternate basis for excluding Dr. Phillips's testimony, and ordered a new trial for Shay. Shay eventually pled guilty, and was sentenced to 12 years in prison.

At the same time that Shay was appealing his conviction, Trenkler's trial was proceeding in the district court. Shay's incriminating statements were introduced against Trenkler, as they tended to show that Shay had been involved in the bombing and had not acted alone. Trenkler's trial counsel did not attempt to use Dr. Phillips's testimony to undermine Shay's statements, believing that any effort to introduce the doctor's testimony would be futile in light of the district court's refusal to admit it at Shay's trial. Trenkler was convicted on all counts of the indictment on November 29, 1993, and sentenced to life in prison. We affirmed his conviction on July 18, 1995. United States v. Trenkler, 61 F.3d 45 (1st Cir. 1995) (Trenkler I). He did not file a petition for certiorari.

On December 22, 1995, Trenkler moved for a new trial under Rule 33, which permits such a motion to be filed up to three years after a verdict when it is "based on newly discovered evidence."¹ Trenkler argued that our decision in Shay rendered Dr. Phillips's testimony "newly discovered evidence" within the meaning of Rule 33. He explained that, although he was aware of Dr. Phillips's testimony at the time of his trial, he did not know until our decision on June 22, 1995, that the testimony was admissible. The district court denied the motion, reasoning that Trenkler's trial counsel's belief that the testimony would not be admitted did not make it unavailable, and that our conclusion that the testimony was admissible in Shay's case did not render it "newly discovered." We affirmed in an unpublished opinion issued on January 6, 1998. United States v. Trenkler, No. 97-1239, 1998 WL 10265 (1st Cir. Jan. 6, 1998) (Trenkler II).

Trenkler then filed the instant motion under § 2255 to set aside his conviction on the ground that his trial counsel's failure to offer Dr. Phillips's testimony violated his Sixth Amendment right to effective assistance of counsel. After AEDPA, such a motion generally must be filed within one year of "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(1).² For prisoners whose convictions became final before AEDPA was enacted, we have held that the limitations period expires on April 24, 1997, one year after the statute's effective date. Rogers v. United States, 180 F.3d 349, 355 (1st Cir. 1999). The district court concluded that Trenkler's § 2255 motion was subject to that deadline, his conviction having become final in 1995, when we affirmed it in Trenkler I. Accordingly, it dismissed the § 2255 motion - filed on January 5, 1999 - as time-barred. This appeal followed.³

II.

Trenkler argues that a timely filed Rule 33 motion affects § 2255's statute of limitations in one of two ways. First, he contends that a conviction is not "final" for purposes of § 2255(1) until the prisoner has exhausted the possibility of relief under Rule 33. Second, he argues that even if the limitations period commences at the conclusion of appellate review of the judgment of conviction, the statute of limitations is suspended during the pendency of any subsequent Rule 33 motion by virtue of tolling provisions imported from other sections of AEDPA. If we reject those statutory arguments, Trenkler proposes a third ground for relief, arguing that the doctrine of equitable tolling excuses his failure to file his § 2255 motion within the one-year period.

We analyze Trenkler's claims in turn. We review the issues of statutory interpretation de novo, United States v. Michaud, 243 F.3d 84, 85-86 (1st Cir. 2001), and the district court's denial of equitable tolling for an abuse of discretion, Delaney v. Matesanz, 264 F.3d 7, 13-14 (1st Cir. Sept. 5, 2001) (explaining that district court's rejection of equitable tolling "on the facts" is reviewed for abuse of discretion); Borden v. Paul Revere Life Ins. Co., 935 F.2d 370, 377 (1st Cir. 1991) ("[F]ashioning or withholding equitable relief . . . rests uniquely within the discretion of the trial court.").

A. Accrual

Trenkler's first argument focuses on when the statute of limitations began to run. Here, the relevant accrual date is the date on which Trenkler's conviction became "final" within the meaning of § 2255(1). Although Trenkler accepts the prevailing view that a conviction becomes "final" upon the completion of direct review, he insists that the proceedings before the district court and this court with regard to his Rule 33 motion were part of his "direct appeal." Accordingly, he argues that the statute of limitations did not begin to run until January 6, 1998, when we affirmed the district court's denial of his Rule 33 motion.

Although we have not addressed the question directly, we consistently have treated Rule 33 motions filed after the opportunity for direct appeal as a form of collateral attack on a conviction rather than part of the process of direct review. Thus, in Dirring v. United States, 353 F.2d 519, 520 (1st Cir. 1965), we held that the district court did not err in refusing to appoint counsel to prosecute the defendant's post-appeal Rule 33 motion for a new trial. We explained that:

Appellant had counsel 'through appeal,' as required by the Criminal Justice Act, 18 U.S.C. § 3006A(c). We do not construe that phase to include motions for a new trial. Nor do we so interpret the Sixth Amendment. There must be an end. After final conviction the appointment of counsel must rest in the discretion of the court.

Id. We reaffirmed that holding in United States v. Tajeddini, 945 F.2d 458, 470 (1st Cir. 1991) (per curiam), abrogated on other grounds by Roe v. Flores-Ortega, 528 U.S. 470 (2000), stating that "a federally convicted defendant is not entitled under the Criminal Justice Act, 18 U.S.C. § 3006A, or the Sixth Amendment, to appointment of counsel on a motion for a new trial." That rule, we continued, applies to any Rule 33 motion based on newly discovered evidence and filed after the opportunity for direct appeal has expired, regardless of whether the defendant pursued a direct appeal and lost, or simply neglected to file a notice of appeal within the applicable period: "We do not see why the convicted defendant who foregoes a direct appeal and whose conviction has become final should...