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4,579,021 | Larry BLUE, Petitioner, Appellant, v. Sean MEDEIROS, Respondent, Appellee. | Blue v. Medeiros | 2019-01-04 | 18-1066P | U.S. Court of Appeals for the First Circuit | {"judges": "Thompson, Selya, Lipez", "parties": "", "opinions": [{"author": "THOMPSON, Circuit Judge.", "type": "010combined", "text": "United States Court of Appeals\n For the First Circuit\n\n\nNo. 18-1066\n\n LARRY BLUE,\n\n Petitioner, Appellant,\n\n v.\n\n SEAN MEDEIROS,\n\n Respondent, Appellee.\n\n\n APPEAL FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. Allison D. Burroughs, U.S. District Judge]\n\n\n Before\n\n Thompson, Selya, and Lipez,\n Circuit Judges.\n\n\n Ashley P. Allen, with whom Patricia A. DeJuneas and Sibbison\n& DeJuneas were on brief, for appellant.\n Eva M. Badway, Assistant Attorney General, with whom Maura\nHealey, Attorney General, was on brief, for appellee.\n\n\n January 4, 2019\n\f THOMPSON, Circuit Judge.\n\n The Antiterrorism and Effective Death Penalty Act of\n\n1996 (\"AEDPA\"), 28 U.S.C. § 2244(d)(1), establishes a one-year\n\nstatute of limitations for a state prisoner to file a federal\n\nhabeas corpus petition under 28 U.S.C. § 2254. The one-year period\n\ngenerally starts when a prisoner's conviction becomes final, but\n\nmay be tolled, pursuant to the statute, during the time in \"which\n\na properly filed application for State post-conviction or other\n\ncollateral review with respect to the pertinent judgment or claim\n\nis pending.\" Id. § 2244(d)(2).\n\n Petitioner Larry Blue, a Massachusetts prison inmate,\n\nfiled a petition for habeas corpus relief which the district court\n\ndismissed as time-barred under AEDPA's statute of limitations.\n\nPetitioner now seeks reconsideration of that ruling based on two\n\ntolling theories. First, Petitioner argues that the statute of\n\nlimitations should be statutorily tolled during the month-plus-\n\nlong pendency of his motion to stay the execution of his sentence,\n\nbecause that motion, he urges, constitutes an application for\n\ncollateral review under § 2244(d)(2). Second, Petitioner argues,\n\nessentially, that unique circumstances surrounding his conviction\n\njustify equitable tolling of the time between the finality of his\n\nCommonwealth convictions and the filing of his habeas petition.\n\nFor reasons explained below, we reject these arguments and affirm\n\nthe dismissal of Petitioner's habeas corpus petition.\n - 2 -\n\f I. Background\n\n Because dates are crucial to our evaluation of\n\nPetitioner's claims, we ask the reader's patience as we detail the\n\ntravel of the proceedings below. On August 18, 2010, following a\n\ntrial by jury, Petitioner was convicted of multiple Massachusetts\n\nstate law crimes, including drug trafficking, drug possession, and\n\nunlicensed firearm and ammunition possession. Thereafter, he\n\npleaded guilty to additional related charges and was handed a\n\ncumulative sentence of up to ten years and a day to serve.\n\n Petitioner pursued various avenues of post-conviction\n\nrelief in the Commonwealth courts.1 On June 14, 2012, Petitioner\n\nfiled a direct appeal of his convictions, based in part on\n\narguments previously raised and rejected by the trial court that\n\nthere were defects in the search warrants that led to his arrest.\n\nAdditionally, Petitioner premiered a new argument challenging the\n\nconstitutionality of Massachusetts's gun licensing regime.\n\n While Petitioner's appeal was pending, revelations of\n\nwidespread misconduct at the Commonwealth's crime lab, the William\n\nA. Hinton State Laboratory Institute, came to light with state-\n\nemployed chemist Annie Dookhan in the maelstrom of the scandal.\n\nIn response to these disclosures, in August 2012, Massachusetts's\n\n\n 1\n First, he filed a motion for a new trial, based on his\nassertion that the court reporter was unable to produce a full\ntranscript of his trial. This motion was denied the following day\nwhen the parties collaborated to reconstruct the missing record.\n - 3 -\n\fgovernor shuttered the lab and ordered an independent\n\ninvestigation.2 Dookhan, after being hit with multiple indictments\n\nfor falsifying drug test results, lying about her credentials, and\n\nperjuring herself in court (including during Petitioner's trial),\n\neventually pled guilty to twenty-seven counts on November 22, 2013.\n\n Meanwhile, the Appeals Court of Massachusetts denied\n\nPetitioner's direct appeal on September 27, 2013. Commonwealth v.\n\nBlue, 994 N.E.2d 817 (Table), 2013 WL 5377118 (Mass. App. Ct.\n\n2013). First, it cited its agreement with the trial court's\n\nreasoning for the denial of Petitioner's search warrant\n\nsuppression motions. And next, it pointed out the futility of\n\nPetitioner's constitutional challenge, noting the state's gun\n\nlicensing regime had already been given the green light by the\n\nMassachusetts Supreme Judicial Court (\"SJC\"). Id. Hoping to\n\nchange minds, Petitioner filed a motion for rehearing, but the\n\nappeals court promptly denied it.\n\n Soldiering on, Petitioner sought further appellate\n\nreview with the SJC in October 2013. However, that application\n\nwas summarily denied without discussion on November 21, 2013.\n\nCommonwealth v. Blue, 998 N.E.2d 342 (Mass. 2013) (Table). Ninety\n\n\n\n 2 Not long after the Dookhan misconduct was made public, an\nentry in the trial court docket reflects that Petitioner filed a\nmotion to stay the execution of his sentence on March 12, 2013.\nThe docket notation reads \"(Drug Lab)\"; the motion was withdrawn\nin June 2013.\n - 4 -\n\fdays later, on February 19, 2014, Petitioner's convictions became\n\nfinal; that is the moment the AEDPA statute of limitations clock\n\nbegan to tick.3\n\n In the wake of the Dookhan fiasco, Petitioner filed with\n\nthe trial court a second motion to stay the execution of his\n\nsentence, pursuant to Massachusetts Rule of Criminal Procedure 31\n\n(\"Rule 31\").4 In that February 21, 2014 filing he asserted his\n\nbelief that Dookhan's misconduct would likely result in the grant\n\nof a new trial on all charges given (1) the unreliability of the\n\nlaboratory testing supporting his drug convictions and (2) the\n\noverall taint Dookhan's perjured testimony cast on his\n\nconvictions, due to the prosecutor weaving together the drug\n\ndealing and the gun possession throughout the trial. In a\n\nmemorandum in support of his stay motion, Petitioner announced his\n\nintention to file a renewed motion for a new trial \"shortly,\" based\n\non Dookhan's perjury and other grounds.\n\n\n\n\n 3 Cordle v. Guarino, 428 F.3d 46, 48 (1st Cir. 2005) (\"The\nSJC affirmed [the] convictions on March 11, 1992; her convictions\nbecame final ninety days thereafter.\").\n 4 The Commonwealth's investigation into the Hinton Lab came\nto an end, concluding that, while Dookhan was \"the sole bad actor\"\nat the lab, poor and inadequate training, protocols, and management\nhad allowed her conduct to go undetected for years. It was\nconservatively estimated that Dookhan worked on close to 34,000\ncases during her years at the lab. Commonwealth v. Charles, 992\nN.E.2d 999, 1003 (Mass. 2013).\n - 5 -\n\f Back at the SJC, while Petitioner's motion to stay was\n\npending, the Commonwealth high court weighed in on the Dookhan\n\ndebacle: in cases where Dookhan had served as a primary or\n\nsecondary chemist for drug analysis, all defendants were entitled\n\nto a conclusive presumption that her conduct was egregious and\n\nattributable to the Commonwealth. Commonwealth v. Scott, 5 N.E.3d\n\n530, 535 (Mass. 2014). That presumption notwithstanding, soon\n\nafter the Scott opinion issued, Petitioner's motion for a stay of\n\nthe execution of his sentence was denied on March 27, 2014. The\n\ntrial court found that Petitioner's firearms convictions were\n\nunaffected by Dookhan's misconduct and as such, he was unlikely to\n\nreceive a new trial.\n\n Undeterred, on May 5, 2014, Petitioner filed a second\n\nmotion for a new trial based on two theories. First, he framed\n\nthe revelation of Dookhan's perjury as \"newly-discovered\n\nevidence,\" casting doubt on the fairness of his conviction. (For\n\nall intents and purposes, this taint argument is the same one that\n\nhad just been rejected by the court in response to his stay\n\nmotion.) His second argument, ineffective assistance of counsel,\n\nwas essentially a repackaging of the earlier defective search\n\nwarrant claims.5\n\n\n\n 5Petitioner alleged that the warrants failed to establish\ntimely probable cause because of their technical shortcomings, and\nthat his attorney was ineffective for failing to properly argue\n - 6 -\n\f On January 20, 2015, acting on Petitioner's new trial\n\nmotion, the trial court granted it as to the drug charges, and\n\ndenied it as to the gun charges. Commenting on the drug\n\nconvictions, the court conceded that, even though extensive\n\nevidence supported Petitioner's drug charges aside from Dookhan's\n\nperjured testimony, her testimony had, nonetheless, tainted the\n\ndrug convictions. As for the gun charges, the court found no\n\nconnection between Dookhan's testimony and those convictions.\n\nFinally, the trial court dismissed the ineffective assistance\n\nclaim, describing it as not distinct from Petitioner's prior search\n\nwarrant claims, and writing:\n\n [T]he Appeals Court implicitly rejected the defendant's\n instant claim . . . and made rejection explicit when it\n refused the defendant's petition for rehearing. The\n issue is settled and need not be considered on its merits\n here.\n\nTwo days later Petitioner appealed the partial denial to the\n\nappellate court, and sought further review after this first appeal\n\nwas denied. Commonwealth v. Blue, 46 N.E.3d 114 (Table), 2016 WL\n\n757758 (Mass. App. Ct. 2016). The Commonwealth nolle prossed the\n\ndrug charges at the end of January 2015.6 And, on April 27, 2016,\n\n\n\nthe defects -- an interpretive gloss that he had not explicitly\nraised before.\n\n 6 \"Nolle prossed\" comes from the Latin phrase \"nolle\nprosequi,\" translated as \"we shall no longer prosecute.\" In this\ncontext, it means that the Commonwealth dropped all the drug\ncharges against Petitioner.\n\n - 7 -\n\fthe SJC entered a final denial of Petitioner's application for\n\nfurther appellate review of his motion for a new trial.7\n\n Almost eleven months8 later, on March 20, 2017,\n\nPetitioner filed his federal petition for a writ of habeas corpus,\n\npremised solely on his allegations of ineffective assistance of\n\ncounsel.9 On the motion of Respondent Norfolk prison\n\nsuperintendent Sean Medeiros, the district court dismissed the\n\npetition as time-barred under AEDPA. Blue v. Medeiros, No. 17-\n\ncv-10464-ADB, 2017 WL 5297910, at *1 (D. Mass. Nov. 13, 2017). In\n\nso doing the district court held that Petitioner's motion to stay\n\nthe execution of his sentence did not toll AEDPA's one-year time\n\nlimit, under 28 U.S.C. § 2244(d)(2), because it was not an\n\n\"application for . . . collateral review.\" The court held further\n\nthat Petitioner was not entitled to equitable tolling because the\n\nissues created by the Hinton Lab misconduct did not impose a bar\n\n\n\n 7 There is no dispute that the AEDPA statute of limitations\nwas tolled for the almost two-year period that his motion for a\nnew trial was pending, from May 5, 2014, through April 27, 2016.\n\n 8 327 days, to be precise.\n 9 Again, Petitioner alleged that the search warrants\nunderlying his arrest and conviction failed to establish probable\ncause, and that trial counsel failed to argue this effectively.\nThese arguments are not before us in this appeal. Peralta v.\nUnited States, 597 F.3d 74, 83 (1st Cir. 2010) (general rule is\nthat \"a court of appeals should not consider the merits of an issue\nadvanced by a habeas petitioner unless a COA [certificate of\nappealability] first has been obtained with respect to that issue\"\n(quoting Bui v. DiPaolo, 170 F.3d 232, 237 (1st Cir. 1999))).\n - 8 -\n\fto Petitioner filing a motion for a new trial concurrently with\n\nhis motion for stay of execution (recall Petitioner's stay motion\n\nwas filed on February 21, 2014, while his new trial motion was not\n\nfiled until May 5, 2014); and because, even after his motion for\n\na new trial was denied and the Commonwealth had abandoned the drug\n\ncharges, Petitioner allowed eleven months to pass by before filing\n\nthe petition for the writ of habeas corpus.\n\n In his present appeal, Petitioner advances two\n\narguments relative to the timeliness of his habeas petition; we\n\ntake each in turn. Because the district court denied Petitioner\n\nrelief \"on a procedural ground without taking evidence,\" we apply\n\nde novo review. Holmes v. Spencer (Holmes I), 685 F.3d 51, 58\n\n(1st Cir. 2012) (quoting Wood v. Spencer, 487 F.3d 1, 3 (1st Cir.\n\n2007)).\n\n II. Statutory Tolling\n\n First, Petitioner argues that his motion to stay the\n\nexecution of his sentence tolled AEDPA's statute of limitations,\n\nbecause it is a properly filed application for \"collateral review\"\n\nas contemplated by 28 U.S.C. § 2244(d)(2). In support of his\n\nassertion that \"the plain meaning\" of AEDPA's tolling provision\n\n\"includes post-conviction motions [like a motion to stay] heard by\n\nthe trial judge,\" Petitioner cites Wall v. Kholi (Kholi III), 562\n\nU.S. 545 (2011). To better understand Petitioner's argument, a\n\nbrief discussion of Kholi is in order.\n - 9 -\n\f Khalil Kholi was convicted by the Rhode Island Superior\n\nCourt of repeated acts of sexual assault on his two young step-\n\ndaughters and received two consecutive life sentences. He appealed\n\nthe convictions and simultaneously filed a motion to reduce his\n\nsentence; both were unsuccessful. State v. Kholi, 706 A.2d 1326\n\n(R.I. 1998); State v. Kholi, 672 A.2d 429 (R.I. 1996).\n\n Kholi then filed a petition for a writ of habeas corpus\n\nin the federal district court, which denied relief after finding\n\nthe petition time-barred by AEDPA. Kholi v. Wall (Kholi I), No.\n\n07-346S, 2008 WL 60194 (D.R.I. Jan. 3, 2008). In so concluding,\n\nthe court held that Kholi's motion to reduce his sentence, brought\n\npursuant to Rule 35 of Rhode Island's criminal procedure rules,10\n\ndid not constitute an application for \"collateral review\" under\n\nAEDPA, and thus did not toll the limitations period. Instead, the\n\ncourt reasoned that \"a motion for correction or reduction of\n\nsentence contemplates the defendant returning to the same court,\n\nand pleading for mercy before the same judge that imposed the\n\noriginal sentence and thus, is not 'collateral' within the meaning\n\nof AEDPA.\" Id. at *3 (citing Walkowiak v. Haines, 272 F.3d 234,\n\n237-38 (4th Cir. 2001)).\n\n Kholi appealed and we reversed, holding that \"a state\n\npost-conviction motion for a sentence reduction, in the nature of\n\n\n\n 10 R.I. Super. Ct. R. Crim. P. 35 (a).\n - 10 -\n\fa plea for discretionary leniency, comes within the [AEDPA]\n\nstatutory sweep.\" Kholi v. Wall (Kholi II), 582 F.3d 147, 156\n\n(1st Cir. 2009). In reaching this conclusion, we stressed the\n\nimportance of encouraging state prisoners to exhaust state court\n\nremedies before seeking federal habeas review. Id. at 155.\n\n The state of Rhode Island sought further review and the\n\nSupreme Court granted certiorari. Kholi III, 562 U.S. at 551-53.\n\nIn affirming our ruling the Court carefully parsed the AEDPA\n\ntolling language. Defining the phrase \"collateral review\" in the\n\nAEDPA context, the Court stated, \"[v]iewed as a whole, then,\n\n'collateral review' of a judgment or claim means a judicial\n\nreexamination of a judgment or claim in a proceeding outside of\n\nthe direct review process.\" Id. at 553. In considering whether a\n\nRule 35 motion would trigger collateral review, the Supreme Court\n\nanalyzed the meanings of the words \"collateral\" and \"review.\" Id.\n\nat 555-56.\n\n Reasoning that a motion to reduce the sentence was\n\ntraditionally viewed as a collateral challenge, and was in no\n\ninstance a part of the direct review process, the Court quickly\n\ndetermined that the motion was collateral. Id. at 555. The Court\n\nthen moved on to examine its understanding of the word \"review.\"\n\nBased on the operation of the state's criminal rule, the motion\n\nwould require a \"judicial reexamination of the sentence to\n\ndetermine whether a more lenient sentence is proper\" and it\n - 11 -\n\ftherefore resulted in a review. Id. Consequently, the Court\n\ndetermined that Kholi's motion to reduce his sentence constituted\n\nan application for collateral review which triggered AEDPA's\n\ntolling provision. Id. at 556; see also Holmes I, 685 F.3d at 60;\n\nKholi II, 582 F.3d at 153 (\"Taking into account this quotidian\n\nunderstanding, it seems self-evident that a motion for a sentence\n\nreduction in the nature of a plea for discretionary leniency is a\n\nmotion that seeks post-conviction 'review' of a sentence and, thus,\n\nis a motion that falls squarely within the plain meaning of section\n\n2244(d)(2).\").\n\n As our Petitioner would have it, his Massachusetts Rule\n\n31 motion to stay execution of sentence is no different from the\n\nRule 35 motion discussed in Kholi III, and as such the district\n\ncourt erred when it deemed AEDPA's tolling provision not triggered.\n\nHowever, while we agree with Petitioner that his motion is,\n\nassuredly, a collateral one, we find it does not have the power to\n\ngenerate a review. As the government correctly suggests, we must\n\nturn to Massachusetts law to explain why. Carey v. Saffold, 536\n\nU.S. 214, 223 (2002) (\"[F]or purposes of applying a federal statute\n\nthat interacts with state procedural rules, we look to how a state\n\nprocedure functions . . . .\"); Lewis v. Jeffers, 497 U.S. 764,\n\n780-81 (1990) (urging deference to a state court's \"application of\n\nits own law\" in habeas context).\n\n\n - 12 -\n\f Rule 31 allows a trial judge or a single justice of the\n\nCommonwealth's appellate court to make a discretionary ruling\n\nstaying the imposition of a sentence during the pendency of an\n\nappeal.11 While the ruling on the stay will not be reversed absent\n\nan abuse of discretion, the judge generally requires a\n\ndemonstration that the defendant has a reasonable likelihood of\n\nsuccess on appeal. See Commonwealth v. Levin, 388 N.E.2d 1207,\n\n1208 (Mass. App. Ct. 1979). That means evaluating whether or not\n\nthe appeal is frivolous, or whether it is \"an appeal which presents\n\nan issue which is worthy of presentation to an appellate court,\n\none which offers some reasonable possibility of a successful\n\ndecision in the appeal.\" Id. at 1209. More recently, the SJC has\n\ndescribed this analysis as a \"pure question of law or legal\n\njudgment,\" which in no way prejudges \"the merits of the defendant's\n\ndirect appeal.\" Commonwealth v. Mattier, 49 N.E.3d 227, 228-29\n\n(Mass. 2016) (quoting Commonwealth v. Allen, 392 N.E.2d 1027, 1033\n\n(Mass. 1979)).12\n\n We have noted in the past that not all filings by a\n\ncriminal defendant which seek to advance a challenge to a judgment\n\n\n 11 The order is temporary and automatically expires upon\naffirmation of the conviction, unless it is extended by the\nappellate court. It may also be revoked. Rule 31(a), (b).\n 12 In addition to the merits evaluation, the judge\nentertaining the motion must also consider issues relating to\nsecurity, such as the defendant's risk of flight or likelihood of\ncommitting new criminal acts. Levin, 388 N.E.2d at 1210.\n - 13 -\n\fof conviction constitute a collateral review for AEDPA purposes.\n\nRodriguez v. Spencer, 412 F.3d 29, 37 (1st Cir. 2005) (petition\n\nfor extraordinary relief not application for collateral review);\n\nVoravongsa v. Wall, 349 F.3d 1, 7 (1st Cir. 2003) (pro se motion\n\nfor appointment of state post-conviction counsel not collateral\n\nreview); see also Bridges v. Johnson, 284 F.3d 1201, 1203 (11th\n\nCir. 2002) (application before a state sentence review panel not\n\ncollateral review); Adeline v. Stinson, 206 F.3d 249, 252 (2d Cir.\n\n2000) (motion to revive an appeal not collateral review).\n\nSimilarly here, from our perspective, the Rule 31 screening process\n\nlacks the indicia of a \"review\" for this reason: Even though a\n\njudge must take a peek at the underlying claim to see if the merits\n\nare hopeless, she has no authority to either alter the judgment or\n\nchange the sentence. See Kholi II, 582 F.3d at 151 (in the typical\n\ncase, application for post-conviction relief that \"does not seek\n\nto alter (or even to reexamine) the judgment\" does not toll\n\nstatute).\n\n For these reasons, after a fresh review of Petitioner's\n\nclaims, we hold that a motion to stay the execution of a sentence,\n\nunder Rule 31, does not constitute a motion for collateral review,\n\nand its filing does not trigger AEDPA's tolling provisions.13\n\n\n 13\n Even if the statute of limitations were tolled during the\npendency of his motion to stay the execution of his sentence, he\nstill goes over the statutory time limit. He has a short two\ndays between the date his convictions became final and the date he\n - 14 -\n\f III. Equitable Tolling\n\n Petitioner's second argument -- that equitable tolling\n\napplies to his habeas filing -- is grounded in principles of equity\n\nand fairness, and is primarily focused on the disruption in the\n\nCommonwealth's administration of justice caused by Dookhan's\n\ndeceitful misconduct.14 In claiming that his petition for habeas\n\ncorpus relief should be permitted to go forward, Petitioner offers\n\nthe following argument: \"The lower court presumed that equitable\n\ntolling can only apply to the time immediately preceding the filing\n\nof the habeas corpus petition, rather than to any period of time\n\nafter a conviction becomes final. . . .As far as petitioner is\n\naware, there is no requirement that the petitioner show a permanent\n\nimpediment from filing or to justify the year in which petitioner\n\nhas to file his application for a writ of habeas corpus.\"\n\nPetitioner's argument, then, seems to have two parts which go like\n\nthis. First, he says that the 75 days between February 19, 2014,\n\nthe date his convictions became final, up to May 5, 2014, when he\n\nfiled his motion for a new trial, must be equitably tolled because\n\n\n\n\nfiled his motion for a stay. Then, 39 days elapse between the\ndenial of his motion to stay and the filing of his motion for a\nnew trial. If you add those 41 days to the 327 days he waited\nbetween the final exhaustion of all state court review and the\ndate he filed the present writ, you get 368 days -- three days\nover the statutory time limit.\n 14\n As mentioned earlier, based on Scott, 5 N.E.3d at 535, this\nconduct may be attributed to the Commonwealth.\n - 15 -\n\fduring this time he was diligently pursuing state-court relief,\n\nand yet was thwarted by the difficulties posed by the Hinton Lab\n\ninvestigation. As he tells it: \"The magnitude of the problem\n\neffectively reopened and called into question thousands of\n\nconvictions. What followed were delays in post-conviction\n\nhearings, discovery issues, and an on-going, ultimately fifteen-\n\nmonth, investigation by the Office of the Inspector General into\n\nthe Hinton State Drug Laboratory that concluded on March 4, 2014.\"\n\n Second, as for the time from April 27, 2016 to March 20,\n\n2017, when Petitioner filed his habeas petition, he seems to be\n\ncontending that this period should be excluded altogether from our\n\nequitable tolling analysis. We consider Petitioner's contentions,\n\nkeeping in mind the guiding principles discussed next.\n\n To establish a basis for equitable tolling, a habeas\n\npetitioner must demonstrate that he or she has diligently pursued\n\nher rights, but some extraordinary circumstance, or obstacle,\n\nprevented timely filing. Holland v. Florida, 560 U.S. 631, 649\n\n(2010); Holmes I, 685 F.3d at 62. The diligence prong covers those\n\naffairs within the petitioner's control, while the extraordinary-\n\ncircumstances prong covers matters outside his control. Menominee\n\nIndian Tribe of Wis. v. United States, 136 S. Ct. 750, 755-57\n\n(2016). It is up to the petitioner to establish \"a causal\n\nrelationship between the extraordinary circumstances on which the\n\nclaim for equitable tolling rests and the lateness of his filing.\"\n - 16 -\n\fValverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000).\n\nAdditionally, \"we apply equitable tolling on a case-by-case basis,\n\navoiding mechanical rules and favoring flexibility.\" Ortega\n\nCandelaria v. Orthobiologics LLC, 661 F.3d 675, 680 (1st Cir.\n\n2011). That said, equitable tolling is applied infrequently,\n\nHolmes I, 685 F.3d at 62, and abuse-of-discretion is the lens\n\nthrough which we review an equitable tolling decision, Holmes v.\n\nSpencer (Holmes II), 822 F.3d 609, 612 (1st Cir. 2016). This\n\nstandard of review is nuanced; \"within it, abstract questions of\n\nlaw are reviewed de novo, findings of raw fact are reviewed for\n\nclear error, and judgment calls receive a classically deferential\n\nreception.\" Holmes I, 685 F.3d at 62 (quoting Riva v. Ficco, 615\n\nF.3d 35, 40 (1st Cir. 2010)).\n\n In support of his two-part equitable tolling theory (to\n\nremind the reader: the period between the date of his final\n\nconviction and the date he filed his motion for a new trial should\n\nbe equitably tolled in full, and the eleven-month post new trial\n\ndenial period should be ignored altogether), Petitioner cites to\n\nHolmes I. Accordingly, closer scrutiny of that case is warranted.\n\n In Holmes I, habeas petitioner Holmes sought both\n\nstatutory and equitable tolling: statutory for a period during\n\n\n\n\n - 17 -\n\fwhich his motion to revise or revoke his sentence was pending;15\n\nequitable for the same period based on the obstacles imposed by\n\nhis incarceration, and by the incorrect legal filing he made in\n\nreliance on misleading advice from his lawyer during plea\n\nbargaining. Holmes I, 685 F.3d at 55-56. On appeal this court\n\naffirmed the district court in part, agreeing that, while Holmes's\n\nmotion to revise or revoke his sentence was in fact an application\n\nfor collateral review under AEDPA (based on the newly-minted Kholi\n\nIII decision), it still was not \"properly\" filed under\n\nMassachusetts law (his filing did not specify the grounds upon\n\nwhich the motion was based as Rule 29 requires)16 and so did not\n\ntrigger the statutory tolling mechanism within the meaning of 28\n\nU.S.C. § 2244(d)(2). Id. at 60-61. However, we remanded the\n\nmatter to the district court to review its equitable tolling\n\nruling, pointing out that Holmes's belief that he had in fact\n\nproperly filed his motion to revise or revoke his sentence might,\n\n\n\n\n 15\n Holmes's motion was brought pursuant to Massachusetts Rule\nof Criminal Procedure 29, a rule indistinguishable from Rhode\nIsland's Rule 35 discussed in Kholi III.\n 16\n An application is \"properly filed\" for AEDPA purposes \"when\nits delivery and acceptance are in compliance with the applicable\nlaws and rules governing filings.\" Holmes I, 685 F.3d at 67\n(quoting Artuz v. Bennett, 531 U.S. 4, 8 (2000)).\n\n - 18 -\n\fafter Kholi III, provide an equitable basis for excluding the time\n\nthe motion was pending.17 Id. at 63-66.\n\n Petitioner is correct that our Holmes I decision spends\n\nmuch time and analysis scrutinizing the almost nine-year period\n\nbetween Holmes's guilty plea and the final denial of\n\nreconsideration from the Commonwealth court, during which time he\n\nargued that he faced extraordinary obstacles (a lot was going on\n\nduring those nine years). Then, extrapolating from the focus of\n\nthat discussion, Petitioner posits that the additional seven-month\n\nperiod between the final ruling by the Commonwealth court and the\n\ndate Holmes filed his petition for habeas corpus must not have\n\nbeen relevant to our equitable tolling analysis. \"There was no\n\nweight given to, or even mention of, the seven months it took\n\n[Holmes] to file his habeas petition after his conviction became\n\nfinal,\" Petitioner writes in his brief. Therefore, according to\n\nPetitioner, it logically follows that in his case, the eleven-\n\nmonth period between the conclusion of the Commonwealth court\n\nreview and the filing of his habeas petition is not relevant to\n\n\n\n\n 17This court rejected Holmes's arguments that allegedly bad\nadvice from his lawyer, coupled with the disadvantages of\nincarceration, justified equitable tolling, suggesting sua sponte\na third ground for equitable tolling instead. As it turned out,\non remand, the district court held that there was no basis for\nequitable tolling and again denied Holmes's petition as untimely.\nThe ruling was affirmed by this court in Holmes II. 822 F.3d at\n612.\n - 19 -\n\four assessment of extraordinary circumstances or diligence when it\n\ncomes to an equitable tolling analysis.\n\n Unfortunately, Petitioner misconstrues our Holmes I\n\nrationale. A careful read makes it clear that we considered the\n\nentire period leading up to the filing of the habeas petition when\n\nwe wrote, \"[t]he timeliness of Holmes's federal habeas petition,\n\nthen, hinges on whether there are any grounds for excluding at\n\nleast twenty-two of the remaining thirty-four unaccounted months\n\nbetween May 1, 1998 [the date of Holmes's guilty plea] and April\n\n9, 2008 [the filing date of the habeas petition].\" Id. at 57. Of\n\ncourse, given the procedural intricacies that animated Holmes's\n\njourney through the Commonwealth criminal justice system, we had\n\nreason to more closely examine the months during which Holmes\n\nclaimed he was prevented by circumstances outside of his control\n\nfrom filing his habeas petition; but unquestionably, as clearly\n\nnoted in our decision, the full period was taken into account in\n\ncalculating the operation of the AEDPA time limit. Id. at 57-61.\n\nThus, with Holmes I's timing calculus properly understood, we\n\nreturn to Petitioner's argument.\n\n To briefly recap the timeline: approximately three\n\nyears and a month went by between the date Petitioner's convictions\n\nbecame final and the date he filed his habeas petition.18 After\n\n\n 18In its argument on equitable tolling, the government comes\nup with a different set of calculations. The government starts\n - 20 -\n\fPetitioner's motion for a new trial was finally denied, eleven\n\nmonths went by before the present motion got filed. Even if we\n\nwere to accept Petitioner's argument that the entire Dookhan\n\ndebacle posed an insurmountable obstacle to Petitioner's filing a\n\ntimely habeas proceeding prior to the SJC's final resolution of\n\nhis motion for a new trial on April 27, 2016, he nevertheless can\n\npoint to no fact which demonstrates any obstacle, extraordinary or\n\notherwise, that hindered his filing of a habeas petition during\n\nthe final eleven months. Nor can he point to any behavior on his\n\npart that would demonstrate reasonable diligence in pursuing his\n\nrights during the final eleven months. When Petitioner's motion\n\nfor a new trial was denied, it should have been clear to him that\n\nall state-court avenues for relief had been exhausted. That is\n\nthe moment he needed to move swiftly to preserve his federal rights\n\nas the Hinton Lab misconduct could no longer be described as\n\n\n\n\nthe clock on November 21, 2013, the date that Petitioner's\napplication for further state-level appellate review was denied.\nThe government concludes then that 165 days elapsed before\nPetitioner filed his motion for a new trial. This court has\ngenerally determined that the judgment becomes final after an\nadditional ninety days have elapsed to allow for the filing of a\npetition for certiorari, see Neverson v. Farquharson, 366 F.3d 32,\n36 (1st Cir. 2004), starting the AEDPA clock then after that\nninety-day period. With its argument, the government seeks to\nunderscore that the Petitioner also had this ninety-day period\navailable during which he might have filed his motion for a new\ntrial, thereby undermining Petitioner's diligence argument. The\ngovernment does not press an argument about this clock-starting\ndate, and, in any case, this discrepancy is not determinative of\nthe outcome.\n - 21 -\n\fimpeding his ability to seek post-conviction review. See Neverson\n\nv. Farquharson, 366 F.3d 32, 44 (1st Cir. 2004). As the government\n\ncorrectly points out, the Commonwealth nolle prossed Petitioner's\n\ndrug charges in January 2015. As these were the only charges\n\ndirectly affected by Dookhan's malfeasance, the putative obstacle\n\nposed by the Hinton Lab issues dematerialized over a year before\n\nhis motion for a new trial was denied. Petitioner's argument that\n\nthe gun-related convictions were tainted by the prosecutor's\n\nclosing remarks at trial (connecting the drugs with the gun) had\n\nbeen repeatedly rejected by the Commonwealth courts by April 2016\n\n-- twice by the trial court, once by the appellate court, and\n\nfinally by the SJC. As a result, Petitioner's hope, or misguided\n\nbelief, that this theory might provide him a lifeline could no\n\nlonger be reasonably understood as an obstacle preventing him from\n\npursuing his federal remedy.\n\n IV. Conclusion\n\n Because we find that Petitioner's motion to stay the\n\nexecution of his sentence was not a request for collateral review\n\nand so did not toll the one-year statute of limitations in the\n\nAntiterrorism and Effective Death Penalty Act, and because we find\n\nno reason to disrupt the district court's discretionary ruling on\n\nequitable tolling, we affirm the dismissal of Petitioner's\n\npetition for a writ of habeas corpus as time-barred.\n\n\n - 22 -", "resource_uri": "https://www.courtlistener.com/api/rest/v4/opinions/4356274/", "author_raw": "THOMPSON, Circuit Judge."}]} | THOMPSON | SELYA | LIPEZ | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4579021/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [
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"content": "You are an expert legal coding assistant trained to classify U.S. federal Courts of Appeals\ncases using an adaptation of the Supreme Court Database (SCDB_2023_01) codebook. You follow the coding procedure\nin the codebook step by step and use the precise definitions of terms presented in the code... | |||
4,579,761 | "PREP TOURS, INC., Plaintiff-Appellant, v. AMERICAN YOUTH SOCCER ORGANIZATION; Downey AYSO Region 24(...TRUNCATED) | PREP Tours Inc. v. American Youth Soccer Org. | 2019-01-08 | 17-1223P | U.S. Court of Appeals for the First Circuit | "{\"judges\": \"Torruella, Lipez, Barron\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"t(...TRUNCATED) | TORRUELLA | LIPEZ | BARRON | 1 | {} | 4 | 0 | 2 | 0 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4579761/ | Published | 1 | 1 | 0 | 0 | 1 | 2,019 | 1 | [{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of App(...TRUNCATED) | |||
4,580,183 | UNITED STATES of America, Appellee, v. Hilton RÍOS-RIVERA, Defendant, Appellant. | United States v. Rios-Rivera | 2019-01-09 | 15-2116P | U.S. Court of Appeals for the First Circuit | "{\"judges\": \"Howard, Thompson, Barron\", \"parties\": \"\", \"opinions\": [{\"author\": \"HOWARD,(...TRUNCATED) | HOWARD | THOMPSON | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580183/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of App(...TRUNCATED) | |||
4,580,184 | "UNITED STATES of America, Appellee, v. Enrico M. PONZO, A/K/A Henry Ponzo, A/K/A Michael P. Petrill(...TRUNCATED) | United States v. Ponzo | 2019-01-09 | 17-2153P | U.S. Court of Appeals for the First Circuit | "{\"judges\": \"Lynch, Stahl, Barron\", \"parties\": \"\", \"opinions\": [{\"author\": \"BARRON, (...TRUNCATED) | LYNCH | STAHL | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580184/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of App(...TRUNCATED) | |||
4,580,185 | UNITED STATES of America, Appellee, v. Johvanny AYBAR-ULLOA, Defendant, Appellant. | United States v. Aybar-Ulloa | 2019-01-09 | 15-2377P | U.S. Court of Appeals for the First Circuit | "{\"judges\": \"Torruella, Lynch, Barron\", \"parties\": \"\", \"opinions\": [{\"author\": \"BARRON,(...TRUNCATED) | TORRUELLA | LYNCH | BARRON | 1 | {} | 2 | 0 | 1 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580185/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of App(...TRUNCATED) | |||
4,580,620 | UNITED STATES, Appellee, v. Aletsys CALDERÓN-LOZANO, Defendant, Appellant. | United States v. Calderon-Lozano | 2019-01-10 | 17-1977P | U.S. Court of Appeals for the First Circuit | "{\"judges\": \"Lynch, Lipez, Katzmann\", \"parties\": \"\", \"opinions\": [{\"author\": \"KATZMANN,(...TRUNCATED) | LYNCH | LIPEZ | KATZMANN | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580620/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of App(...TRUNCATED) | |||
4,580,621 | Amma Adu GYAMFI, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent. | Gyamfi v. Whitaker | 2019-01-10 | 18-1093P | U.S. Court of Appeals for the First Circuit | "{\"judges\": \"Thompson, Kayatta, Barron\", \"parties\": \"\", \"opinions\": [{\"author\": \"THOMPS(...TRUNCATED) | THOMPSON | KAYATTA | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4580621/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of App(...TRUNCATED) | |||
4,581,697 | "Thomas GUILFOILE, Plaintiff, Appellant, v. John M. SHIELDS, Sr.; Shields Pharmacy, LLC, D/B/A Shiel(...TRUNCATED) | Guilfoile v. Shields | 2019-01-15 | 17-1610P | U.S. Court of Appeals for the First Circuit | "{\"judges\": \"Howard, Lipez, Barron\", \"parties\": \"\", \"opinions\": [{\"author\": \"\", \"type(...TRUNCATED) | HOWARD | LIPEZ | BARRON | 1 | {} | 4 | 0 | 0 | 2 | 2 | null | https://www.courtlistener.com/api/rest/v4/clusters/4581697/ | Published | 1 | 1 | 0 | 1 | 0 | 2,019 | 1 | [{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of App(...TRUNCATED) | |||
4,582,212 | "SCOTTSDALE INSURANCE COMPANY, Plaintiff, Appellant, v. Timothy L. BYRNE, as Co-Chairman of the Boar(...TRUNCATED) | Scottsdale Insurance Company v. Byrne | 2019-01-16 | 18-1526P | U.S. Court of Appeals for the First Circuit | "{\"judges\": \"Lynch, Stahl, Barron\", \"parties\": \"\", \"opinions\": [{\"author\": \"STAHL, Circ(...TRUNCATED) | LYNCH | STAHL | BARRON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4582212/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of App(...TRUNCATED) | |||
4,582,213 | "Nereida RIVERA-COLÓN, Plaintiff, Appellant, v. AT&T MOBILITY PUERTO RICO, INC.; Ángel Couvertier-(...TRUNCATED) | Rivera-Colon v. AT&T Mobility Puerto Rico, Inc | 2019-01-16 | 17-2036P | U.S. Court of Appeals for the First Circuit | "{\"judges\": \"Howard, Torruella, Thompson\", \"parties\": \"\", \"opinions\": [{\"author\": \"THOM(...TRUNCATED) | HOWARD | TORRUELLA | THOMPSON | 1 | {} | 1 | 0 | 0 | 0 | 1 | null | https://www.courtlistener.com/api/rest/v4/clusters/4582213/ | Published | 1 | 0 | 0 | 0 | 0 | 2,019 | 1 | [{"content":"You are an expert legal coding assistant trained to classify U.S. federal Courts of App(...TRUNCATED) |
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