United States Court of Appeals For the First Circuit

No. 99-1972

CHARLES C. DELANEY III,

Petitioner, Appellant,

v.

JAMES MATESANZ ET AL.,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin and Stahl, Senior Circuit Judges,

Owen S. Walker, Federal Defender, with whom Elizabeth L. Prevett, Federal Defender Office, and Charles C. Delaney III, pro se ipso, were on brief, for appellant. Catherine E. Sullivan, Assistant Attorney General, Commonwealth of Massachusetts, with whom Thomas F. Reilly, Attorney General, was on brief, for appellees.

September 5, 2001 SELYA, Circuit Judge. Petitioner-appellant Charles C.

Delaney III, a Massachusetts state prisoner, sought a writ of

habeas corpus in the United States District Court for the

District of Massachusetts, but voluntarily withdrew his

application when the Commonwealth pointed out that it contained

unexhausted claims. After pursuing all available state

remedies, the petitioner returned to federal court. At that

juncture, the court dismissed his new application as untimely

under the one-year limitation period enacted as part of the

Antiterrorism and Effective Death Penalty Act (AEDPA),

Stat. 1214 (Apr. 24, 1996).

The petitioner appeals this order, asseverating that

the district court erred in refusing to toll the limitation

period during the pendency of his original federal habeas

petition; that absent such tolling the statutory limitation

violates the Suspension Clause; and that, in all events, the

district court abused its discretion by failing to resuscitate

his time-barred claim on equitable grounds. Recent Supreme

Court precedent holding that the relevant statutory provision,

(d)(1), may not be tolled by the pendency of

federal, as opposed to state, post-conviction proceedings

defeats the first of these asseverations. See Duncan v. Walker,

(2001). The second fails on the law. The

-3- third fails on the facts: even assuming, for argument's sake,

that equitable tolling is available in the precincts patrolled

by section 2244(d) — a matter on which we take no view — the

district court supportably determined that the petitioner had

not established a sufficiently compelling basis for remediation.

Consequently, we uphold the district court's dismissal of the

petitioner's application for habeas relief.

I. BACKGROUND

We retrace the relevant portions of the petitioner's

journey through the procedural labyrinth that typifies modern

habeas litigation. The facts are essentially uncontested.

In 1989, a Massachusetts jury found the petitioner

guilty of murder in the second degree. The trial judge

sentenced him to life imprisonment. On direct review, his

conviction was sequentially affirmed by the Massachusetts

Appeals Court and the Supreme Judicial Court. See Commonwealth

v. Delaney,

(Mass. App. Ct. 1993), aff'd,

(Mass. 1994). The conviction became final on

September 20, 1994.

On February 24, 1997, ten months after the AEDPA's

effective date, the petitioner for the first time asked the

federal district court for a writ of habeas corpus. See

. In this pro se petition (Petition No. 1), he

-4- reasserted various claims that he had presented to the state

courts and added four new (unexhausted) claims. The

Commonwealth promptly moved to dismiss this "mixed" petition.

See Rose v. Lundy,

(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,

(1st Cir.

1997) (same). The petitioner countered by moving to dismiss the

action without prejudice. The district court granted the latter

motion on May 2, 1997.

On June 6, 1997, the petitioner returned to state court

and filed a motion for a new trial that raised two ineffective

assistance of counsel claims. These claims were not the claims

previously asserted in Petition No. 1, but, rather, were newly

minted. The superior court denied this motion a few weeks later

and, by March 27, 1998, the petitioner had exhausted all

available state appellate remedies.

On April 10, 1998, the petitioner refiled for federal

habeas relief, raising only the two ineffective assistance of

counsel claims. Citing

(d)(1), the district

court dismissed this application (Petition No. 2) as untimely.

When the petitioner moved for reconsideration, the court

withheld a ruling and asked us to consider whether Petition No.

-5- 2 was a "second or successive" habeas petition, and thus subject

to the gatekeeping requirement of

(b)(3). See

generally Pratt v. United States,

(1st Cir.

1997). Following the reasoning explicated in Slack v. McDaniel,

(2000), we advised the lower court that

Petition No. 2 was not a "second or successive" petition and

that, therefore, the gatekeeping regime did not apply.

The district court proceeded to deny the petitioner's

motion for reconsideration on the merits. The court then

granted a certificate of appealability. See

(c). We augmented the issues, appointed counsel for the

petitioner, consolidated the case for argument with a case

containing a similar limitation issue, and heard oral argument

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,

(2d Cir.), cert. granted sub nom. Duncan v. Walker,

(2000). Because Duncan squarely raised the question of

whether section 2244(d)(1) could be tolled by the pendency of

federal, as well as state, post-conviction proceedings, we

stayed our hand.

The Supreme Court decided Duncan on June 18, 2001. By

order entered June 28, 2001, we vacated the stay previously

-6- entered in this case and the companion case. We resolved the

companion case in an opinion filed on August 20, 2001, see

Neverson v. Bissonnette, ___ F.3d ___ (1st Cir. 2001) [No. 00-

1044], and now decide the petitioner's appeal.

II. ANALYSIS

Congress enacted the AEDPA on April 24, 1996, in part

to combat increasingly pervasive abuses of the federal courts'

habeas jurisdiction. Felker v. Turpin,

(1996). Pertinently, the AEDPA imposed a one-year limitation

period applicable to state prisoners' habeas applications. See

(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."

§

2244(d)(1)(A).

The courts have determined that this language

encompasses a one-year grace period within which state prisoners

may file federal habeas petitions to test the correctness of

convictions that became final before the AEDPA's effective date.

See Gaskins v. Duval,

(1st Cir. 1999) (per

curiam); see also Duncan, 121 S. Ct. at 2130 n.1 (Stevens, J.,

concurring) (collecting cases to like effect from other

circuits). Accordingly, the petitioner had until April 24,

-7- 1997, to file an application for federal habeas relief. He

docketed Petition No. 1 within that window of opportunity, but

he voluntarily withdrew that petition. He did not propound

Petition No. 2 until April 10, 1998 (nearly a year after the

grace period had run its course). Hence, that petition was

time-barred, as the district court ruled, absent some

sufficiently excusatory circumstance.

The petitioner's principal attempt to rescue his habeas

application implicates

(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)]." But

this provision is of no help to the petitioner: although it

plainly tolls the limitation period from and after June 6, 1997

(the date upon which he moved for a new trial in state court),

the one-year period already had elapsed by that date.

In an attempt to overcome this obstacle, 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. If that were

so, the pendency of Petition No. 1 would have tolled the

limitation period from the date of filing (February 24, 1997) to

-8- the date of dismissal (May 2, 1997), and this hiatus, coupled

with the tolling that accompanied the petitioner's pursuit of

post-conviction remedies in the state courts during the period

from June 6, 1997, through March 27, 1998, would have rendered

Petition No. 2 timely (i.e., filed within one year of April 24,

1996, after subtracting "tolled" periods). As a first fallback

position, the petitioner maintains that the statutory limitation

period, if construed otherwise, violates the Constitution. As

a second fallback, he asserts that even if his reading of

section 2244(d)(2) proves overly sanguine and the provision

nonetheless is constitutional, the district judge erred in

refusing to apply principles of equitable tolling to assure his

day in court. We address each of these arguments.

A. Statutory Tolling.

The question of what Congress meant when it wrote that

the AEDPA's limitation period,

(d)(1), would be

tolled while a state prisoner pursued "State post-conviction or

other collateral review,"

§ 2244(d)(2), is no longer open.

The Duncan Court made it crystal clear that the adjective

"State" qualifies both of the phrases that follow. 121 S. Ct.

at 2128. Accordingly, section 2244(d)(2), properly construed,

"toll[s] the limitation period for the pursuit of state remedies

[but] not during the pendency of applications for federal

-9- review." Id. It follows inexorably that "an application for

federal habeas corpus review is not an 'application for State

post-conviction or other collateral review' within the meaning

of

(d)(2)."

; accord Neverson, ___

F.3d at ___ [slip op. at 8-9]. This means, of course, that the

pendency of Petition No. 1 did not toll the limitation period

(and, therefore, did not render Petition No. 2 timeous).

B. The Suspension Clause.

The petitioner rejoins that so restrictive an

interpretation of the statutory tolling provision renders the

AEDPA's limitation period constitutionally suspect under the

Suspension Clause. Duncan does not foreclose this argument —

the Suspension Clause was not raised in that case — so we

address it here.

The Suspension Clause states that "[t]he Privilege of

the Writ of Habeas Corpus shall not be suspended, unless when in

Cases of Rebellion or Invasion the public Safety may require

it." U.S. Const. art. 1 § 9, cl. 2. In Felker,

, the Court noted that the purpose of the writ has changed

over time. In 1789, the writ was designed primarily to protect

against the power of the Executive to hold someone captive

without trial, INS v. St. Cyr,

(2001), and

it was not until 1867 that Congress extended the writ to include

-10- state prisoners who challenged their convictions on

constitutional or statutory grounds. See Felker,

. Because the current writ is so different from the one

known to the Framers, some jurists have questioned whether — and

to what extent — the Suspension Clause applies to the modern

habeas remedy. E.g., Freeman v. Page,

(7th

Cir.), cert. denied,

(2000). The Supreme Court

has yet to answer that question,1 and we need not do so today.

Even assuming, for purposes of our inquiry, that the

Suspension Clause applies, reasonable limits on the use and

application of the habeas remedy do not work an unconstitutional

suspension of the writ. See United States v. Barrett,

While the historical puzzle remains unsolved, the Justices apparently harbor divergent views about the sweep of the Suspension Clause. In a set of opinions analyzing the interaction between the Illegal Immigration Reform and Immigrant Responsibility Act,

Stat. 3009-546, and the AEDPA, Justice Stevens, writing for a five-member majority, interpreted these statutes as allowing habeas relief for certain aliens, predicting that any other reading would raise serious constitutional questions under the Suspension Clause. St. Cyr, 121 S. Ct. at 2282; Calcano-Martinez v. INS,

(2001) (adopting St. Cyr's Suspension Clause analysis). Justice Scalia, in dissents joined by Chief Justice Rehnquist and Justice Thomas, posited that the Suspension Clause does not affirmatively guarantee a right to habeas corpus, but simply prohibits temporary withholding of the writ. See St. Cyr,

(Scalia, J., dissenting); Calcano-Martinez,

(Scalia, J., dissenting). Justice O'Connor filed separate dissents in both cases, taking no position on the specific meaning and application of the Suspension Clause. See St. Cyr,

(O'Connor, J., dissenting); Calcano- Martinez, 121 S. Ct. at 2270 (O'Connor, J., dissenting).

-11- 34, 53 (1st Cir. 1999), cert. denied,

(2000). The

Court has held, for example, that the AEDPA's stringent

restrictions on second habeas petitions do not run afoul of the

Suspension Clause. See Felker,

. We believe

that the same reasoning applies to the AEDPA's time-limiting

provisions. We therefore join several of our sister circuits in

holding that the AEDPA's one-year limitation period does not, as

a general matter, offend the Suspension Clause. See Wyzykowski

v. Dep't of Corrs.,

(11th Cir. 2000);

Lucidore v. New York State Div. of Parole,

(2d

Cir.), cert. denied,

(2000); Turner v. Johnson,

(5th Cir.), cert. denied,

(1999); Miller v. Marr,

(10th Cir. 1998).2

The question reduces, then, to whether the tolling

provision,

(d)(2), as interpreted by the Duncan

Court, renders the AEDPA's limitation period vulnerable to the

petitioner's attack. We think not. The AEDPA's one-year

statute of limitation is part of "a complex and evolving body of

equitable principles informed and controlled by historical

2Some courts have suggested that the AEDPA's built-in limitation period might violate the Suspension Clause if a prisoner-petitioner could make a showing of actual innocence. See, e.g., Wyzykowski,

; Lucidore,

. Because Delaney makes no such proffer, we need not reach this question.

-12- usage, statutory developments, and judicial decisions." Felker,

(quoting McCleskey v. Zant,

(1991)). Rather than rendering the limitation period more

onerous, the tolling provision relaxes its rigors. That the

provision is not as generous as the petitioner might like does

not undermine the reasonableness of the framework that Congress

chose to erect. It follows that the tolling provision falls

well within the heartland of the evolutionary process described

by the Felker Court.

To sum up, the one-year limitation period of section

2244(d)(1), as embellished by the tolling provision of section

2244(d)(2), does not suspend the writ because, when read in

tandem, these provisions neither gut the writ of habeas corpus

nor render it impuissant to test the legality of a prisoner's

detention. See Swain v. Pressley,

(1977)

(describing the contours of the Suspension Clause). Tolling the

limitation period during the pendency of state post-conviction

proceedings leaves habeas petitioners with a reasonable

opportunity to have their claims heard on the merits. See

Lucidore,

. From the standpoint of the

Suspension Clause, no more is exigible.3

3Relatedly, the petitioner asserts that the limitation period, as embroidered by the tolling provision, has an impermissibly retroactive effect. This argument is hopeless,

-13- We add a postscript. The Suspension Clause applies (if

at all) only when Congress totally bars an individual or a group

from access to habeas relief. See Barrett,

.

Here, the petitioner had ample opportunity, both before and

after Congress passed the AEDPA, to exhaust state court remedies

and seek federal habeas review. That he had those opportunities

and did not seasonably avail himself of them is, in itself,

enough to doom his constitutional challenge. See Molo v.

Johnson,

(5th Cir. 2000) (per curiam) (holding

that the Suspension Clause was not violated when nothing

prevented the prisoner from filing his application before the

statute of limitation expired).

C. Equitable Tolling.

In the district court, the petitioner argued, in the

alternative, that the court should deem the limitation period

tolled as a matter of equity. The court entertained this

argument but rejected it on the merits. The petitioner renews

the argument on appeal, positing that the district court erred

in refusing to rejuvenate his time-barred habeas application.

see Rogers v. United States,

(1st Cir. 1999), cert. denied,

(2000) (rejecting similar retroactivity argument); Libby v. Magnusson,

(1st Cir. 1999) (same); cf. Pratt,

(discussing retroactivity in the context of second or successive habeas petitions), and we reject it out of hand.

-14- We review the district court's ruling for abuse of

discretion. See United States v. Patterson,

(5th Cir. 2000); see also Borden v. Paul Revere Life Ins. Co.,

(1st Cir. 1991) ("[F]ashioning or withholding

equitable relief . . . rests uniquely within the discretion of

the trial court."). This is a highly deferential standard, but

not an unbounded one. See United States v. Roberts,

(1st Cir. 1992); Indep. Oil & Chem. Workers, Inc. v.

Procter & Gamble Mfg. Co.,

(1st Cir. 1988).

The concurring opinion in Duncan furnishes at least

some support for the view that, in an appropriate case,

equitable tolling may be available to soften the rigors of

section 2244(d)(1). There, Justice Stevens, writing for himself

and Justice Souter, took the position that "neither the Court's

narrow holding [in Duncan], nor anything in the text or

legislative history of AEDPA, precludes a federal court from

deeming the limitations period tolled for such a petition as a

matter of equity." Duncan, 121 S. Ct. at 2130 (Stevens, J.,

concurring). This is interesting food for thought,4 but we need

not resolve today whether courts ever can apply equitable

4 Post-Duncan, at least one court of appeals has held that equitable tolling is available to habeas petitioners in respect to section 2244(d)(1)'s one-year limitation period. See Zarvela v. Artuz,

(2d Cir. 2001).

-15- tolling to ameliorate the AEDPA's one-year statute of

limitations. In this case, the district court squarely

confronted the petitioner's equitable tolling claim and rejected

it on the facts. Assuming, arguendo, the availability of

equitable tolling, the record makes manifest that the district

court acted within its proper province in withholding such

relief.

The party who seeks to invoke equitable tolling bears

the burden of establishing the basis for it. Carter v. W.

Publ'g Co.,

, 1265 (11th Cir. 2000); I.V. Servs. of

Am., Inc. v. Inn Dev. & Mgmt., Inc.,

(1st Cir.

1999). In the AEDPA environment, courts have indicated that

equitable tolling, if available at all, is the exception rather

than the rule; resort to its prophylaxis is deemed justified

only in extraordinary circumstances. E.g., United States v.

Marcello,

(7th Cir.), cert. denied,

(2000); Davis v. Johnson,

(5th Cir.

1998), cert. denied,

(1999); Sandvik v. United

States,

(11th Cir. 1999). The district

court found that the petitioner did not meet this benchmark, and

the argument to the contrary is not compelling.

The petitioner maintains that he is entitled to

equitable tolling because he diligently pursued judicial

-16- remedies. Even if the district court were obligated to apply

equitable tolling for an attentive applicant, the facts of

record here do not corroborate the petitioner's contention that

he was diligent. He waited over two years after his conviction

became final (and ten months after the AEDPA's effective date)

to promulgate his first federal habeas petition. He did nothing

during that protracted period to exhaust state remedies as to

the ineffective assistance of counsel claims that he now seeks

to advance. Indeed, his first habeas application ignored those

claims and, at any rate, he withdrew that application in the

face of the AEDPA's known one-year limitation period, without

asking the district court to retain jurisdiction.5 He did not

file a proper habeas application until April of 1998 — more than

eleven months after the AEDPA's limitation period had expired.

5 The petitioner perhaps could have improved his position by requesting that the district court stay, rather than dismiss, Petition No. 1. See Duncan, 121 S. Ct. at 2130 (Stevens, J., concurring) (observing that "there is no reason why a district court should not retain jurisdiction over a meritorious claim and stay further proceedings pending the complete exhaustion of state remedies"); Neverson, ___ F.3d at ___ n.3 [slip op. at 11 n.3] (describing such an approach as "preferable" in cases involving "mixed" petitions); see also Zarvela v. Artuz,

(2d Cir. 2001); Freeman,

; Calderon v. United States Dist. Ct.,

(9th Cir. 1998). We especially commend such an approach to the district courts in instances in which the original habeas petition, though unexhausted, is timely filed, but there is a realistic danger that a second petition, filed after exhaustion has occurred, will be untimely.

-17- The district court was well aware of these facts and

took them into account in addressing the petitioner's plea for

equitable tolling. Judge Keeton noted that while the petitioner

had pursued a variety of claims over a nine-year period, he had

not done so in an especially assiduous fashion. See Delaney v.

Matesanz, No. 98-10635-REK, slip op. at 7 (D. Mass. Nov. 6,

1998) (unpublished). In addition, Judge Keeton found no

extraordinary circumstances that might suffice to excuse the

petitioner's failure to comply with the temporal deadline: no

one lulled the petitioner into a false belief that he had more

than the allotted time to file, or otherwise misled him.

We need not rehearse all the details of the decision

below. What matters is that the judge plainly considered all

the pertinent factors and no impertinent ones. Given his

thorough explanation, we cannot say that his refusal to apply

principles of equitable tolling to salvage the petitioner's

time-barred habeas application constituted a plain mistake in

judgment. After all, "the principles of equitable tolling . .

. do not extend to what is at best a garden variety claim of

excusable neglect." Irwin v. Dep't of Veterans Affairs,

(1990).

The petitioner makes a final plea. He says that

because he was a pro se prisoner, ignorant of the applicable

-18- law, the lower court should have tolled the limitation period.

We reject this plea. In the context of habeas claims, courts

have been loath to excuse late filings simply because a pro se

prisoner misreads the law. E.g., Marsh v. Soares,

(10th Cir. 2000), cert. denied,

(2001) (refusing to toll the AEDPA's limitation period because

a pro se petitioner did not understand the dictates of the

statutory scheme); Jones v. Morton,

(3d

Cir. 1999) (explaining that misunderstanding the effect of

filing a prior unexhausted federal habeas petition does not

warrant equitable tolling); Fisher v. Johnson,

(5th Cir. 1999), cert. denied,

(2001)

("[I]gnorance of the law, even for an incarcerated pro se

petitioner, generally does not excuse prompt filing.").

In this instance, the district court had good reason

to follow this line of authority. The court specifically

remarked that the petitioner was no ordinary pro se litigant;

his submissions, in the court's view, displayed a clear

understanding of the AEDPA amendments. See Delaney, supra, slip

op. at 7. We are reluctant to second-guess this fact-sensitive

judgment. While judges are generally lenient with pro se

litigants, the Constitution does not require courts to undertake

-19- heroic measures to save pro se litigants from the readily

foreseeable consequences of their own inaction.

Even where available, equitable tolling is normally

appropriate only when circumstances beyond a litigant's control

have prevented him from filing on time. Bonilla v. Muebles J.J.

Alvarez, Inc.,

(1st Cir. 1999) (addressing

equitable tolling in the context of the ADA). In the usual

case, a court may deny a request for equitable tolling unless

the proponent shows that he was actively misled or prevented "in

some extraordinary way from asserting his rights." Patterson,

(citation omitted). In short, equitable

tolling is strong medicine, not profligately to be dispensed.

In this case, the Commonwealth did not mislead the

petitioner, nor has he alleged any exceptional circumstances

that prevented him from filing his habeas petition on time.

Accordingly, the lower court acted within its discretion in

declining to excuse the petitioner's non-compliance with the

legislatively-mandated limitation period.

III. CONCLUSION

We need go no further. The Supreme Court's

interpretation of section 2244(d)(2) permits courts to toll the

limitation period only while state collateral review is pending.

See Duncan, 121 S. Ct. at 2128-29; Neverson, ___ F.3d at ___

-20- [slip op. at 8-9]. The instant petition therefore fails because

the petitioner did not bring it within this constitutionally

permissible interval. Moreover, no extraordinary circumstances

prevented him from protecting his own interests, so the district

court did not abuse its discretion in declining to apply

equitable tolling to resuscitate his time-barred habeas case.

Affirmed.

-21-