United States Court of Appeals For the First Circuit

No. 22-1206

OWEN MCCANTS,

Petitioner, Appellant,

v.

NELSON ALVES, Superintendent of MCI Norfolk,

Respondent, Appellee.

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

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Kayatta, Lynch, and Howard, Circuit Judges.

Judith H. Mizner for appellant. Tara Lyn Johnston, Assistant Attorney General of Massachusetts, Criminal Bureau, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellee.

May 9, 2023 KAYATTA, Circuit Judge. Owen McCants filed a petition

for habeas relief alleging that he is actually innocent of some of

the crimes that formed the necessary predicate for his subsequent

conviction and life sentence in Massachusetts state prison as a

habitual offender. The district court dismissed his petition,

concluding that it was time-barred. It then granted a certificate

of appealability on the question of whether, by showing that a

change in law rendered him actually innocent, McCants could avoid

the time bar that otherwise precludes his petition. For the

following reasons, we affirm the district court's dismissal of the

petition for a writ of habeas corpus. In so doing, we do not

decide whether the actual innocence "gateway" defined in McQuiggin

v. Perkins,

(2013), is available in a section 2254

proceeding for an actual innocence claim based on a change in law.

We decide only that McCants has not come close to showing actual

innocence, even assuming such a gateway is available.

I.

A.

McCants was arrested in either December 1973 or January

1974. This discrepancy does not appear to be material other than

to evidence how much relevant information has been lost to the

passage of time. A surviving police record described an incident

in which a man forced his way into an apartment, raped both women

living there, and forced one of the women to perform an "unnatural

- 2 - act" (fellatio) on him. The man took $90, told the women he would

call them, and left. He called the next day and one of the women

met him at a cafe, where she identified McCants to detectives as

her attacker. McCants was eventually charged with two counts of

rape, two counts of unnatural and lascivious acts, and two counts

of unarmed robbery.

McCants went to trial on these charges in April 1974.

No records, other than basic docket information, appear to be

available from this trial. The Massachusetts Superior Court, in

a 2017 decision addressing a collateral motion filed in that court,

described the trial as follows:

Both sides report evidence presented at trial of a prolonged overnight sexual assault of two roommates in a Brighton apartment. The attacker took cash and the telephone number, promising to call. Following police and medical involvement that day, one of the victims did receive a call to meet her assailant at an Allston bar. Reinforced by undercover detectives at the bar, that victim was able to identify the approaching Mr. McCants as her attacker. The defense at trial was that the women consented.

The jury acquitted McCants on the two rape charges, but

convicted him on two counts of unnatural and lascivious acts and

two counts of unarmed robbery.1 McCants was sentenced to four

prison terms of three to five years each, to be served

1 Some of the court decisions regarding McCants describe this conviction as for armed robbery, but it appears to have been for unarmed robbery.

- 3 - concurrently. Although he applied for and was granted appellate

counsel, he did not appeal these convictions.

McCants was later convicted of other rape, kidnapping,

and robbery charges, first in November 1974 and then again in 2002.

Following the 2002 convictions, and based on those convictions

along with the May and November 1974 convictions, McCants was also

convicted of being a habitual criminal. As a result, he is now

serving a life sentence in state prison.

B.

In 2014, McCants filed in Massachusetts Superior Court

a pro se "Motion to Vacate Conviction and Enter New Judgment

Pursuant to M.R. Crim. P. 30(a) and 30(b)" challenging his May

1974 convictions for robbery and unnatural and lascivious acts,

even though he had long ago completed his entire sentence on those

convictions. McCants argued, among other things, that because the

jury acquitted him on the rape charge, it necessarily found that

the sex was consensual.2 He therefore argued that the judge should

have reduced the robbery indictment to larceny, because if the sex

was consensual no force could have been used to take the money.

He also argued that this purported finding of consent meant that

2 The record does not contain McCants's state court filings, so our recitation of his arguments is based on the Massachusetts courts' descriptions of his motions.

- 4 - his convictions for unnatural and lascivious acts should be

vacated.

In February 2017, the Massachusetts Superior Court

denied McCants's motion, which it construed as a motion for a new

trial. The court rejected McCants's argument that an inference

could be drawn from the acquittal on the rape charges that the

jury believed the women had consented to intercourse. Rather, it

asserted, "Mr. McCants'[s] pure speculation that the jury believed

the two women consented to sex with him is just that, and nothing

more. . . . That the jury found Mr. McCants not guilty of rape

simply means the Commonwealth did not sustain its burden beyond a

reasonable doubt on all of the elements of that crime." The jury

had, however, found McCants guilty beyond a reasonable doubt on

the unnatural and lascivious acts and robbery charges, and McCants

"offered no record basis to believe there was insufficient evidence

for the jury to do so."

McCants appealed, and the Massachusetts Appeals Court

affirmed. Commonwealth v. McCants,

(Mass. App. Ct.

2017) (unpublished table decision). The appeals court rejected

McCants's argument that the not guilty verdict on the rape charges

meant that the jury believed that all sex acts were consensual.

It stated that "[t]he not guilty verdicts permit a conclusion that

the jury decided the Commonwealth had not proved the elements of

rape beyond a reasonable doubt -- nothing more." Id. at *1. It

- 5 - further added, "[t]he motion judge correctly concluded that the

defendant's claim that the jury believed the 'sex' was consensual

was 'pure speculation' without factual support." Id. The

Massachusetts Supreme Judicial Court (SJC) denied McCants's

application for further review. Commonwealth v. McCants,

(Mass. 2018) (Table).

McCants then filed additional motions for postconviction

relief in 2019. He argued again that his 1974 convictions for

unnatural and lascivious acts should be vacated because the

acquittal on the rape charge meant that the jury believed all acts

were consensual. Commonwealth v. McCants,

, at *1

(Mass. App. Ct. 2020) (unpublished table decision). He relied in

part on a Massachusetts case decided after his conviction,

Commonwealth v. Balthazar,

(Mass. 1974)

[hereinafter Balthazar (SJC)], which limited the statute under

which McCants was convicted to certain "unnatural and lascivious

acts" performed without consent. See McCants, 144 N.E.3d at *1.

The Superior Court again denied his motions. Id. at *2. The

Massachusetts Appeals Court affirmed, noting that the same issues

had been raised in the 2014 motion and that McCants "raise[d] no

new factual or legal issue." Id. The SJC once again denied

further review. Commonwealth v. McCants,

(Mass.

2020) (Table).

- 6 - McCants then filed a petition for a writ of habeas corpus

pursuant to

in federal district court in August

2020. As he had in the state courts, he suggested that because

the jury in 1974 had acquitted him of rape, it must have accepted

his consent defense, and would therefore have found that the

unnatural and lascivious acts with which he was charged were

consensual as well had a consent instruction been given.

Respondent Nelson Alves moved to dismiss the petition, asserting

that it was time-barred. On July 30, 2021, the magistrate judge

assigned to McCants's case issued a Report and Recommendation (R&R)

finding that the petition was untimely and recommending that it be

dismissed. The decision noted that McCants had not alleged that

he was "actually innocent" of the crime for which he was convicted,

which under the Supreme Court's decision in McQuiggin might allow

a petition to be considered despite its untimeliness. The district

court accepted the R&R, dismissed the petition, and denied a

certificate of appealability on September 16, 2021.

McCants then filed an objection to the R&R, arguing that

he had in fact raised a claim of actual innocence. He cited our

decision in Balthazar v. Superior Court,

(1st

Cir. 1978) [hereinafter Balthazar (1st Cir.)], to argue that the

statute prohibiting unnatural and lascivious acts was

unconstitutionally vague when he was convicted, and thus he was

convicted of conduct that was not a crime.

- 7 - The district court overruled the objection and dismissed

McCants's petition again on November 16, 2021, reasoning that

McCants had "failed to present compelling evidence of his

innocence" in part because he presented "no evidence, new or old"

on whether the conduct forming the basis of the conviction for

unnatural and lascivious acts was consensual. The district court

nevertheless granted a certificate of appealability on April 7,

2022. It stated that "[r]easonable jurists can debate" whether

the new rule established in Balthazar (SJC) -- which excluded

consensual private conduct from the reach of the unnatural and

lascivious acts statute -- applies retroactively to McCants's

collateral challenge.

We read the district court's order to imply that the

question is whether that new rule applies because, if it does,

McCants might make a showing of actual innocence that would allow

his petition to be heard although it is untimely. We therefore

find that the certificate allows us to consider the actual

innocence question as a whole. See Holmes v. Spencer,

(1st Cir. 2012) (considering a question on appeal from a

denial of a habeas petition because it was "fundamentally

intertwined" with the question on which a certificate of

appealability was granted). In any event, to the extent that the

certificate of appealability in this case did not encompass

McCants's claim that his untimely filing may be excused due to a

- 8 - showing of actual innocence, this panel may sua sponte expand the

certificate, especially where (as here) the issue was adequately

briefed by the parties.

II.

A.

We review a district court's dismissal of a petition for

a writ of habeas corpus de novo. Dorisca v. Marchilli,

(1st Cir. 2019) (concluding that where district court was

not asked to, and did not, hold evidentiary hearing, review of

dismissal was de novo). In this case, we review the district

court's determination that McCants's petition was untimely and

that he has made no showing that would allow the court to excuse

that untimeliness.

1.

There is a one-year statute of limitations on filing a

petition for a writ of habeas corpus for someone who, like McCants,

is "in custody pursuant to the judgment of a State court."3

(d)(1). That limitation runs from the latest of four

different events specified in the statute.

If a petitioner

3 There is no dispute that McCants is physically in the custody of the Commonwealth of Massachusetts. However, the parties dispute, and we express no opinion on, whether he is "in custody" on the relevant conviction for purposes of the federal statutory requirement. See Daniels v. United States,

(2001); Lackawanna Cnty. Dist. Att'y v. Coss,

, 401– 02 (2001).

- 9 - fails to file within any of those time frames, a court may apply

equitable tolling if the petitioner shows "'(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way' and prevented timely filing."

Holland v. Florida,

(2010) (quoting Pace v.

DiGuglielmo,

(2005)). Alternatively, if a

petitioner makes a "credible showing of actual innocence," an

equitable exception can excuse lack of compliance with the statute

of limitations. McQuiggin,

.

2.

McCants concedes that his petition was filed "beyond any

of the limitation periods set out in

(d)(1)." He

also does not pursue any argument that equitable tolling should be

applied. Thus, McCants's failure to file within the time limit

can only be excused if he qualifies for the actual innocence

exception.

The Supreme Court established this exception in

McQuiggin, holding that a showing of actual innocence can serve as

a "gateway" that allows an otherwise time-barred petition to be

considered.

. To pass through this gateway, the

Court held, a petitioner must meet the standard articulated in

Schlup v. Delo,

(1995): The petitioner must show

that "new evidence shows 'it is more likely than not that no

reasonable juror would have convicted [the petitioner].'"

- 10 - McQuiggin,

(alteration in original) (quoting

Schlup,

). The Court "stress[ed] . . . that the

Schlup standard is demanding."

. Further, it

cautioned that while delay did not disqualify a petitioner from

making an actual innocence claim, a reviewing court can consider

the length and timing of any delay in evaluating the claim, and a

delay might weigh against a petitioner in certain circumstances.

at 399–400. The Court concluded by admonishing that "[t]he

gateway should open only when a petition presents 'evidence of

innocence so strong that a court cannot have confidence in the

outcome of the trial unless the court is also satisfied that the

trial was free of nonharmless constitutional error.'"

at 401

(quoting Schlup,

).

While McQuiggin made clear that the actual innocence

gateway may be available where a petitioner proffers new evidence

that meets the Schlup standard, McCants offers no new evidence.

Rather, he claims that the SJC's ruling that the statute under

which he was convicted "must be construed to be inapplicable to

private, consensual conduct of adults" renders him actually

innocent, Balthazar (SJC),

, or alternatively

that this circuit's ruling that the statute was unconstitutionally

vague prior to 1972 has the same effect, Balthazar (1st Cir.),

.

- 11 - The Supreme Court, in Bousley v. United States,

, 623–24 (1998), held that a change in law -- rather than new

evidence -- could provide the basis for an actual innocence claim

to overcome a procedural default that would otherwise defeat a

petition for relief under

, which governs federal

prisoners' habeas petitions. It noted, though, that the petitioner

would have to meet the Schlup standard as applied to the claimed

changed law in order to succeed on his actual innocence claim.

See Bousley,

. At least one circuit has relied on

Bousley to allow an actual innocence exception to the statute of

limitations bar in a section 2254 proceeding where a petitioner

"show[s] in light of subsequent case law that he cannot, as a legal

matter, have committed the alleged crime." Vosgien v. Persson,

, 1134–35 (9th Cir. 2014). The state in this case

says that it "does not concede that a change in state law may

always open the actual-innocence gateway in a section 2254 case"

(emphasis added). But the issue is whether such a change can open

the door in this particular section 2254 case. On that issue the

state takes no position. Instead, it argues that even if Bousley

applies fully to an attempt to avoid the limitations bar in this

section 2254 case -- and even if Balthazar (SJC) applies

retroactively to McCants -- McCants loses because he fails to show,

as required by Bousley, that "in light of all the evidence," "it

is more likely than not that no reasonable juror would have

- 12 - convicted him."

(quoting Schlup,

-

28). As we will explain, we agree.

B.

1.

McCants’s principal claim of innocence goes as follows:

the available description of the evidence admitted at his trial

"strongly suggests that consent was the only contested issue on

the rape charges"; therefore, the subsequent acquittal on the rape

charges "strongly suggest[s]" that the jurors found that the

alleged victims consented to intercourse with McCants; thus, had

the jury been instructed that lack of consent was also an element

of the unnatural and lascivious acts charges, acquittals on those

charges would have resulted as well; and Balthazar (SJC), decided

shortly after McCants's trial, confirmed for the first time that

lack of consent was such an element. See

(holding

that

"must be construed to be

inapplicable to private, consensual conduct of adults").4 Thus,

McCants argues, it is more likely than not that no reasonable juror

would have voted to convict him on the unnatural and lascivious

acts charges if a consent instruction had been given, as required

4We reject the state's argument that McCants waived any claim of innocence based on Balthazar (SJC). We are required to construe pro se filings liberally, and McCants raised the consent issue in his habeas petition. Moreover, the district court granted a certificate of appealability on the specific question of whether Balthazar (SJC) applies retroactively.

- 13 - after Balthazar (SJC). See Commonwealth v. Reilly,

(Mass. App. Ct. 1977).

We see several flaws in this argument. For present

purposes it suffices to say that the argument relies too much on

conjecture to posit what would have happened at trial had the

government been required to prove a lack of consent for the alleged

unnatural and lascivious acts. McCants's argument can be seen as

essentially asserting that if a person consents to intercourse,

then that person also consents to more or less any other sex act

in which two adults might engage. Certainly many reasonable jurors

would reject such a categorical presumption. And any context-

specific showing that would render such a presumption more probable

in a particular case would turn on specific facts and

circumstances, including the nature and timing of the acts, the

parties’ communications, and so on -- evidence of all of which is

absent from the record. See Bousley,

; Riva v.

Ficco,

(1st Cir. 2015) (noting admonition to

"consider a claim of actual innocence 'in light of all the

evidence'" (quoting Schlup,

)).

McCants asserts that he has done enough by presenting

what he contends is a reasonable inference, noting that on a motion

to dismiss his habeas petition the court must draw all reasonable

inferences in his favor. But this does not mean that a court is

required to accept McCants's desired conclusion regarding the

- 14 - meaning of a jury verdict handed down fifty years ago, especially

absent any facts or evidence from which to draw that conclusion.

Nor does he claim that he will be able to present any more reliable

evidence of events that transpired fifty years ago. This strikes

us as a step beyond a reasonable inference. Cf. Aubut v. Maine,

(1st Cir. 1970) (explaining that "[t]he petition

should set out substantive facts that will enable the court to see

a real possibility of constitutional error," because "[w]ere the

rule otherwise, every state prisoner could obtain a hearing by

filing a complaint composed . . . of generalizations and

conclusions").

In any event, the standard for accessing the actual

innocence gateway has been described as "demanding," and

successful claims of actual innocence "rare." McQuiggin,

. Given these admonitions, we think something more is

needed than the unsupported and speculative conclusion McCants

attempts to draw. Nor does the labeling of the state's challenge

to McCants's petition as a motion to dismiss relieve McCants of

his obligation to state facts that point to a "real possibility of

constitutional error." Rules Governing § 2254 Cases, Rule 4

advisory comm. note (quoting Aubut,

); see

Rule 2(c) (mandating that petition must "specify all the grounds

for relief available to the petitioner," and must "state the facts

supporting each ground"); see also Mayle v. Felix,

,

- 15 - 655 (2005) (noting higher pleading standard when evaluating

application of Federal Rule of Civil Procedure 15 in habeas

proceedings).

McCants bears the responsibility for the lengthy delay

that has rendered a record unavailable. And while a supported

claim of actual innocence may prevent a delay from itself serving

as a bar, we are not willing to let a petitioner exploit that delay

to undo a verdict by advancing tenuous speculation that can no

longer be reliably evaluated against other evidence in the record.

See McQuiggin, 569 U.S. at 399–400 (explaining that reviewing court

can take delay into account when evaluating actual innocence

claim); see also Schlup,

(noting that a court may

consider how the timing of the habeas submission may bear on the

reliability of the claim). Thus, even assuming that Balthazar

(SJC) applies retroactively on collateral review, and that it could

serve as the basis for a section 2254 claim, McCants has not

asserted a plausible claim of actual innocence based on this case.5

5 For similar reasons, McCants's claim that he is entitled to a new trial based on the SJC's decision in Commonwealth v. Hill,

(1979), is unavailing. In Hill, the SJC remanded a case on direct appeal for a new trial where the petitioner had been convicted of unnatural and lascivious acts, but acquitted of rape.

. Even setting aside the difference in posture, in Hill the SJC had information about the proceedings below, such as what instructions the jury heard.

As we have described, similar information is not available regarding McCants's case.

- 16 - 2.

McCants's other theory for establishing actual innocence

attacks the clarity of the statute prohibiting unnatural and

lascivious acts as it had been construed at the time of his

conviction. In Balthazar (1st Cir.), we affirmed the grant of

habeas relief to the defendant, who was convicted of forcing

another to engage in nonconsensual fellatio in violation of the

statute criminalizing unnatural and lascivious acts. Balthazar

(1st Cir.),

. We found that at the time of

Balthazar's conduct, the unnatural and lascivious acts statute was

unconstitutionally vague because "the language of the

statute . . . had no well defined, well understood and generally

accepted meaning," and "it had not been defined with sufficient

particularity by judicial construction or applied to petitioner's

conduct."

. We thus affirmed Balthazar's release.

McCants argues that the determination that section 35 was

unconstitutionally vague applies equally to him, so he is actually

innocent because "he could not be convicted for violating an

unconstitutionally vague statute."

We see several flaws in this argument as well. Most

notably, although Balthazar (1st Cir.) found that the statute

prohibiting unnatural and lascivious acts was unconstitutionally

vague in July 1972 -- when Balthazar committed his acts -- it also

clarified that "subsequent decisions narrowing the definition of

- 17 - conduct proscribed" by the unnatural and lascivious acts statute

had "render[ed] the statute sufficiently precise to survive a

constitutional vagueness attack as applied today to the same

conduct." Id.; see Balthazar v. Superior Ct.,

(D. Mass. 1977). Balthazar (1st Cir.) noted that in December

1972, a Massachusetts appeals court affirmed a conviction under

the unnatural and lascivious acts statute for nonconsensual

fellatio. Commonwealth v. Deschamps,

, 428–29 (Mass.

App. Ct. 1972). McCants committed his acts and was convicted after

the Deschamps decision came down.6

The district court recognized the significance of this

timing in its order granting a certificate of appealability,

explaining that because McCants was convicted after Deschamps, at

the time he acted he "had notice that fellatio was statutorily

prohibited" under the unnatural and lascivious acts statute. We

agree. Although McCants argues that Deschamps broke no new ground,

both Balthazar (1st Cir.) and Balthazar (SJC) treated Deschamps as

providing sufficient notice for constitutional vagueness purposes

that nonconsensual fellatio was prohibited under the statute. See

Balthazar (1st Cir.), 573 F.3d at 702; Balthazar (SJC),

. McCants might conceivably be able to claim that the law

6 The record conflicts as to whether McCants committed his acts in December 1973 or January 1974. Regardless, the acts postdate the decision in Deschamps, which came down in December 1972.

.

- 18 - was unconstitutionally vague as applied to consensual fellatio.

But this alternative theory of actual innocence ultimately leads

right back to the question of consent; namely, whether McCants has

a suitable basis for contending that in light of all the evidence,

no reasonable juror would have convicted him had the government

been required to prove lack of consent. And without a transcript

or any other records from his trial, McCants has no way to make

such a showing. McCants has therefore failed to show that he makes

out a claim of actual innocence based on his assertion that the

statute was unconstitutionally vague at the time of his conviction.

III.

Because we conclude that McCants could not establish

that he qualifies for the actual innocence gateway under the

exception defined in McQuiggin even if the gateway applied in a

section 2254 proceeding to a claim of innocence based on a change

in law, we find that his failure to timely file his habeas petition

may not be excused on this basis. Because McCants has conceded

that his petition is not otherwise timely and he does not qualify

for any other exception, we find that his habeas petition is time-

barred. We need not consider the state's alternative argument

that McCants is not "in custody" on the conviction he seeks to

- 19 - challenge as required under

and cases interpreting

that requirement.

For the foregoing reasons, we affirm the order of the

district court.

- 20 -