*3 TORRUELLA, Before LIPEZ, and HOWARD, Judges. Circuit TORRUELLA, Circuit Judge. Petitioner-Appellant Alex Holmes (“Holmes”) petition filed federal for a writ of corpus to challenge his con- viction and sentence for murder in Massa- chusetts. The district court' dismissed petition as untimely under the Antiterrorism and Penalty Effective Death (“AEDPA”) one-year Act’s statute of limi- 2244(d). tations. 28 U.S.C. ap- Holmes pealed the dismissal of his petition. We agree'with the district court that Holmes’s timely was not filed under AED- However, PA. we remand to the district court to consider whether the statute of limitations be equitably should tolled. Background I.
The Commonwealth of Massachusetts charged Holmes and two other defendants with first-degree murder in death (“Richardson”). Todd Richardson Holmes pled guilty to the first-degree murder However, charge. 1,1998, Holmes guilty pled second-degree murder. The prison, sentenced Holmes to life in the mandatory sentence in Massachusetts for second-degree murder. See Mass. 265, § Gen. Laws ch. 2. Holmes claims pled that he guilty because trial coun- sel, Graham, (“Graham”), Stewart Jr. told him that the prosecutor proposed had pled if guilty deal: Holmes to second-de- gree prosecutor murder and decided z/the that she wanted information from Holmes regarding others who have been in- Janet Pumphrey peti- Hetherwick volved in killing, Richardson’s Holmes tioner. would able to reduce his sentence prisoners given Revoke were these forms to Revise or under tenced
filing Motion (“Rule 29”). MCI-Concord; how- they when arrived at 29P. Mass. R.Crim. record, ever, no there is evidence sentencing, Holmes sent After his themselves, regard- other than the forms Institution Correctional the Massachusetts ing this issue. (“MCI-Concord”). Concord, MA While never that the Rule requested 17, 1998, there, Holmes filed on June forward for a hear- brought Motion be pur- or Revoke Sentence Motion to Revise judge. in front of the (the Motion”). sentencing “Rule suant to *4 Moreover, out, as it Rule turns Holmes’s identify any not Motion did The Rule 29 29 Motion was futile. Because second- instead, simply it grounds; underlying degree mandatory murder life carries Af- attaches an stated that “the defendant sentence, judge the trial had no discretion motion re- Support fidavit in this and sentencing, authority in and thus had no to supplemental to right file serves the revise or revoke Holmes’s sentence. See appointed counsel, affidavit, through when Cowan, 546, Mass. Commonwealth requested.” The Affida- hearing a court (1996). 425, Similarly, 664 N.E.2d submitted with his Rule 29 vit that Holmes anticipated coop- post-sentencing Holmes’s in similarly lacking detail. Motion was government with the not eration could simply that Holmes The Affidavit stated a basis for serve as his 29 Motion. rights and all due preserve wished “to Barclay, 424 Mass. See Commonwealth me under the Massachusetts Rules (1997) (observ- 377, 1127, N.E.2d stated, Procedure.” It also “[a]t Criminal prohibits law the Massachusetts time, through appropriate the counsel or conduct post-sentencing consideration motion, request I upon will my own ruling when on a motion to or re- revise brought this forward heard matter be voke). sentencing the judge.” claims in Holmes June of Both Motion accompanying and the in the through prison his research law appear boilerplate to forms. Affidavit library,1 futility he learned of the of his typewritten Both are documents with 14, 2000, August Motion. Rule 29 On to spaces in which information is be filled pro separate Holmes filed motion to se spaces hand. The Motion contains his a new guilty plea withdraw obtain name, which his Holmes hand-wrote trial, alleging that Graham was constitu- number, in which docket he was tionally ineffective. Mass. P. See R.Crim. sentence, sentenced, the date of and the 30”). (“Rule that his Holmes claims he Affi- date filed Motion itself. The discovery futility Rule 29 spaces davit contains for the same infor- what him prompted Motion is to file charge mation plus underlying and the Motion. Rule 30 not sentence. The record does reflect who Holmes, gave the forms what informa- On a letter Graham sent Holmes, given tion was or what informa- in response to Holmes to letters Holmes him regarding tion was even available to had him on sent December Reply April the forms. Holmes’s Brief to this 2003. confirmed that Graham negotiations, newly-sen- during plea Court states that all Holmes and Gra- Junction”), prison It is 1. not clear which was in Cedar but the record does Holmes presently serving when this. he learned He is when there indicate Holmes was transferred his life at the Massachusetts Correc sentence from MCI-Concord. (“MCI- tional Institution Cedar Junction prosecutor (“SJC”), pos- ham with cial Court discussed the SJC denied Holmes’s final sibility petition a motion to revise and for reconsideration prosecutor September if the decided she want- 2007. revoke However, from ed information Holmes. 9, 2008, April On pro Holmes filed a se accepted Graham denied that Holmes petition for a writ of corpus in the plea solely possi- on the basis deal U.S. District Court for District of Mas rather, said he had bility; Graham advised pursuant sachusetts to 28 U.S.C. plea accept second-de- Holmes four raised claims ineffective gree murder whether regardless of assistance of counsel. Ground One of prosecutor wanted information because was that he was induced “facing a significant Holmes was risk of to plead guilty faulty based on Graham’s degree first murder conviction.” addi- assurance that Holmes would be able tion, Graham said he had been “nei- reduce his sentence via a Rule 29 motion. pessimistic optimistic regarding ther nor through Two Grounds Four raised various *5 revoke,” that the revise and he had complaints about alleged deficiencies it a “reported possibility as [Holmes] pre-trial Graham’s strategy and his inves by mentioned the prosecutor.” tigation of Respondents the case. Luis Spencer, Superintendent of MCI-Cedar Holmes wrote on back Graham June Junction, and Coakley, Attorney Martha 14, 2003, insisting that Graham had “as- of General (collectively, Massachusetts him judge grant sured” that the would “Respondents”), moved dismiss prosecu- motion to revise and if the revoke on ground that it tor wanted information from Holmes re- untimely was under AEDPA. (“Mitchell”), garding Nakia Mitchell anoth- possible suspect killing. er Richardson’s imposes AEDPA a one-year statute of 25, 2003, August In on response, Graham petitions limitations on federal habeas filed that denied he had “assured” Holmes that prisoners. state See U.S.C. judge grant 2244(d)(1). would a motion to revise § one-year period That com- and revoke. Graham also reiterated that petitioner’s when the mences conviction any (or there never commitment from was becomes final when could prosecutor information use Holmes’s reasonably have discovered the ba- factual prosecu- about Mitchell. “Since she claim, [the sis for whichever occurs to proceed,” alia, tor] decided not Graham later), excludes, but any inter time wrote, “there not and possi- is not during application which has an he bility of motion to revise or re- [a pending collateral review before the state “Therefore,” continued, (2). Graham voke].” 2244(d)(1), § courts. Id. at Respon- or judge “whether would would not have dents contended Holmes’s Rule 30 point.” allowed such a motion is a moot motion did not save cor- Holmes’s habeas pus petition from untimeliness because August On Holmes filed an Holmes filed Rule 30 motion after Motion Guilty Amended to Withdraw Plea one-year period AEDPA’s had limitations and for New Trial. This amended Rule already expired. 30 Motion included the claim that Holmes motion, pled guilty opposition would not have had he In to Respondents’ known Motion, argued that the Rule 29 Motion would have been Holmes that his Rule 29 (less on futile. After successive denials the Rule filed June than two court, guilty plea), motion the trial the intermedi- months after his tolled the court, Supreme ate and the AEDPA of limitations. appellate Judi- statute Holmes were time-barred re- plea agreement, of limitations the statute argued also time- whether Ground One was gardless because tolled equitably be should ly or As to the timeliness Ground on Rule not. never ruled state trial court One, argued that Holmes’s opposi Respondents In to Holmes’s response Motion. discovery alleged of Graham’s error re- Reply Memoran tion, filed a Respondents possibility of Rule 29 motion garding the their motion to dismiss. support dum predicate” giving rise 29 Mo was not the “factual argued that the Rule Respondents purposes to Holmes’s claim for the statute of limitations. tion not toll the did 2244(d)(1)(D); rather, ar- Respondents § position, Respondents of this support prose- gued alleged Massa that the deal with the the District of cited to cases from predicate the factual for the that a Rule 29 motion cutor was that held chusetts Therefore, Respondents argued, claim. seeking “post-conviction was not motion 1,May by 28 since knew of the deal as required as review” collateral (the 2244(d)(2). See, guilty), the e.g., Phillips pled v. 1998 date he statute § U.S.C. (D.Mass. expired have of limitations would still Spencer, F.Supp.2d 2007). 1,1999. argued Respondents also equita statute of limitations should if Respondents argued further even bly tolled. 29 motion was impossibility 2244(d)(1)(D) predicate” the district court the “factual On October *6 he purposes, to Holmes failed to show that Respondents’ motion dismiss. denied that under could not have “discovered” this fact The court noted 28 U.S.C. 2244(d)(1)(D), one-year “through diligence” § statute of the exercise of due Respondents to begin AEDPA before the summer of 2000. limitations under on factual noted when Holmes filed his Rule 29 run from “the date which the that 17, 1998, at predicate presented claim or claims motion on.June he stated that hear- through request have some later date he would a could been discovered diligence.” ing sentencing judge. The held front of the How- exercise of due court ever, requested hearing question regarding that there was a factual Holmes never explained why never he did not do so. when Holmes could have discovered Gra- and alleged Respondents argued the Rule that had Holmes re- regarding ham’s mistake have quested hearing, 29 Motion. court then held that dis- he would learned The Moreover, this that futile. Re- inappropriate missal would be until his motion was question spondents was The court did contended that Holmes did not resolved. why so adequately explain long Rule 29 or toll- it took address Holmes’s ing arguments. impossibility discover Rule through Motion own in the his research filed a Renewed Motion Respondents library. 6, First, February Re Dismiss on 2009. counsel, Holmes, at spondents represented that Holmes’s now contended 2244(d)(1)(D) rely § filed an to the tempt Opposition to toll Renewed Motion 5, only applied Oppo- of limitations to to Dismiss on March 2009. his statute sition, petition, argued of his which was the Holmes that the fact of the Ground One impossibility as Rule was provided claim that Graham ineffective 29 Motion claim, predicate” Rule Motion. the “factual for his and suggesting sistance Respondents argued Two he could not have discovered argued that Grounds that Four, until of 2000. through which all related to com this fact the summer plaints argued also that the statute about Graham’s assistance before Holmes —Kholi, --, U.S. tolled due equitably limitations should be 131 S.Ct. (2011). alleged ineffective assistance
to Graham’s L.Ed.2d 252 trying pursue Holmes was and because II. Discussion Finally, while claims incarcerated.
his argued that least one long Holmes as as at appeal, For of this purposes parties corpus petition in his habeas was claim agree that Holmes’s conviction became fi- timely. timely, his entire was 1,May nal on 1998. They agree also did not renew his Holmes qualified his Rule 30 Motion an applica- as statute of the Rule Motion tolled the review, tion for collateral thereby exclud- limitations. August interval between September 2007 from district court AEDPA’s granted
The the Renewed one-year calculus.2 See September to Dismiss on 2009. 28 U.S.C. Motion (2). § 2244(d)(1), The The court held that Holmes failed to show timeliness then, regarding discovery petition, his claim of Holmes’s federal habeas hinges error accrued in 2000. The on whether there are grounds Graham’s also held that excluding twenty-two Graham’s claims under least through thirty-four Two Four time- remaining Grounds were unaccounted months ques- barred. The court did not reach the between April whether peti- tion of the timeliness of the two such proposes bases under the claim-by- (1) should be tion determined on a provisions AEDPA itself: that the granted claim basis. The district court did not period begin limitation even run (“COA”), of Appealability Certificate see 28 until August when he discovered 2253(c), appeal U.S.C. and this followed. factual purported basis for primary viz., claim, that his trial attorney’s Holmes filed his appeal, After Court (2) erroneous; 29 advice Wall, its decision in issued Kholi v. the statute of limitations was tolled while *7 we which concluded “that the of a his Rule 29 Motion was pending. In the post-conviction state motion to reduce an alternative, argues that the statute sentence, imposed plea in the of a nature of equitably limitations should be tolled. discretionary the AED leniency, tolls arguments analyze these in turn. 147, period.” limitations F.3d PA’s 582 Cir.2009). (1st Therefore, this 149 Court Scope Appeal A. Issues on of appointment ordered the of counsel for proceeding Before to the parties Holmes and directed the to brief substance Kholi, case, whether, clarify of this we first question of which issues the under properly Rule 29 the limita are before this Court. 28 Motion tolled Under 2253(c), Later, period. § U.S.C. there can appeal tions while this case was be no Supreme upheld still the from a final order a pending, Court federal habeas court’s decision in Wall v. corpus proceeding challenging Kholi See a state convenience, 11, September the reader’s we set forth 2007: For After a succession of chronology a here dates: relevant timely appeals, peti- the SJC denies the final 1,May pleads guilty 1998: Petitioner is tion for reconsideration of the Rule 30 mo- imprisonment. tion, life sentenced to exhausting petitioner’s thereby the state 17, June 1998: Rule 29 to revise or motion remedies. revoke filed in the trial court. 9, April Petition for federal 2008: habeas re- 14, August 2000: Rule 30 motion to withdraw lief filed. plea guilty and obtain a new trial filed in the court. trial 58 Kholi, whether, under the 29 Motion district court either the unless
court action
Thus, that
Appeals
period.
the limitations
judge
a Court
tolled
judge
a
Court,
the
identify
must
The COA
before this
even
issues COA.
issue is
28
appealed.
U.S.C.
to be
issues
it was
mentioned
the COA.
though
2253(c)(3).3
rule is
‘a
general
“The
§
Finally,
question
the
of whether
statute
not consider
appeals
should
court
is
equitably
of limitations should be
tolled
by a habeas
of an issue advanced
merits
ques
with
fundamentally intertwined
first
been
unless
COA
has
See,
v.
e.g.,
tion
timeliness.
Sistrunk
” Per
to that issue.’
respect
obtained with
(3d
184,
Rozum,
F.3d
189-92
Cir.
674
(1st
States,
F.3d
v.
597
83
alta United
2012) (considering
petitioner’s eq
a habeas
Cir.2010) (emphasis
original) (quoting
tolling argument where the COA
uitable
(1st
DiPaolo,
170
237
v.
F.3d
Bui
petition
[the
review
“whether
limited
Cir.1999)). However,
this Court has
ac
petition
timely
filed
er’s] habeas
scope of the COA
expand
discretion
2244(d)(1)(D)”);
cording to 28 U.S.C.
sponte, particularly for
issue
sua
States,
Fed.
United
238
Humphreys
adequately briefed. See Joost
parties have
(6th Cir.2007)
(suggesting
Appx.
(1st
States,
Fed.Appx.
v. United
have held that the use
several courts
Cir.2007)
scope
the COA
(expanding
“equitable tolling” in the COA
of the words
sponte
affirm on the basis of the
sua
consideration of a
preclude
does not
the COA was
merits
a claim where
petitioner’s
arguments).
timeliness
habeas
initially
granted solely
determine
Thus,
wheth
this Court is free
consider
petition)
habeas
petitioner’s
timeliness
er
AEDPA
of limitations
statute
Varner,
(citing
Villot
tolled in this case.
should be
(3d Cir.2004)).
n. 13
Here,
granted
district court
a COA
Limita-
Application
B.
of Statute of
The
is
identifying two issues.
first
tions
statutory impossibility of the
“whether the
“Where,
here, the
as
district
decisive” of the
Motion] should be
[Rule
proce
has
on a
denied
Thus,
question of
question.
timeliness
evidence,
taking
without
we
ground
dural
discovery
whether Holmes’s
of Graham’s
Spencer,
novo review.” Wood v.
afford de
predi-
in 2000
a “factual
alleged error
(1st Cir.2007).
F.3d
the AEDPA stat-
purposes
cate” for the
*8
limitations
of
is
this
properly
ute
before
Discovery
1.
of Factual Predicate
on which the
Court. The second issue
is
granted
district court
a COA whether
2244(d)(1),
§
the stat-
Under
U.S.C.
petition
of Holmes’s
should
timeliness
ute
limitations runs from the “latest”
of
claim-by-claim
be determined on
basis.
specified
of
dates. One such date
several
above,
predi-
Furthermore,
is “the date on which
factual
as
after
noted
cate
could have
appeal,
[habeas claim]
of
Holmes filed his
this Court direct-
question
through
been
exercise
ed the
to brief the
discovered
parties
petition
a valid claim of the
3.
the district
denies
whether
states
“[W]hen
right,
ju-
procedural grounds
denial of a constitutional
without
reaching
prisoner’s underlying
reason would find it debatable wheth-
constitu-
rists of
claim,
(and
proce-
er
correct in its
tional
a COA
issue
the district court was
should
McDaniel,
ruling.”
U.S.
appeal
may
Slack v.
the district court’s order
dural
478,
1595,
taken)
shows,
least,
However, triggers. as begins [¶]... Time argument ] Holmes’s mis when (or prisoner construes the language through of the statute. knows diligence 2244(d)(1)(D)’s discover) § interpreted have could important facts, refer phrase ence to the “factual predicate” to when prisoner recognizes their legal “evidentiary events[,] mean facts or significance.”). Thus, events, in all rulings legal not court consequences of discovery Holmes’s that his attorney’s ad States, the facts.” Brackett v. United 270 vice was allegedly misleading, while unfor (1st Cir.2001), F.3d abrogated on tunate, ultimately is unavailing under the grounds by other Johnson v. United 2244(d)(1)(D). § language of States, 544 U.S. 125 S.Ct. (2005). Here, L.Ed.2d 542 Holmes claims 2. Rule 29 Motion that Graham’s strategy guilty to enter a above, As discussed reject we plea and file a Rule 29 motion was consti one-year that the began clock
tutionally deficient. principal The facts run August of 2000. The statute of upon which this claim is predicated —that began limitations thus to run on originally trial; go intended to 1998, the date Holmes’s conviction became attorney that his instead him convinced However, final. under 28 U.S.C. plead guilty; and that this course of action 2244(d)(2), during “[t]he time which a expectation influenced of a sub application for post- State sequent known, sentence reduction —were filed conviction or other collateral review with latest, by at the the date of his conviction respect to the pertinent judgment or claim on May 1998. That advice pending shall not be flawed, counted toward have been potentially and could period limitation form under [section the foundation for an ineffective as *9 2244(d) added). claim, (emphasis ]” legal sistance are the Holmes ar- consequences gues Motion, of those his Rule 29 facts—matters of like his law that are Rule 2244(d)(1)(D). Motion, beyond purview § 30 an application was for See collateral Brackett, 69; review, 270 F.3d at Murphy v. and therefore tolled the limitation Strack, (2d Cir.2001) Fed.Appx. 9 period 73 while the Rule 29 motion pend- was order) (“The (summary predicates factual ing.4 dismiss,
4. Holmes made this
in the district
reply
but elected not to assert it in
opposition
original
court in
to his
motion to
the Commonwealth’s renewed motion to dis-
‘collateral
application
law is an
for
a Rule 29 land
is whether
threshold issue
The
triggers
tolling pro
AEDPA’s
AED-
scope
review1
within
motion comes
vision.”).
at all—in other
tolling provision
PA’s
characterized
words,
it should be
whether
provision
Kholi concerned
post-conviction
for State
“application
anas
law, Rhode Is
procedural
Rhode Island
At
review.” See id.
collateral
or other
Rule of Criminal Pro
Superior
land
Court
court dismissed
the district
the time when
35(a).
Kholi,
at 151.
See
582 F.3d
cedure
prece
prevailing
petition,
the habeas
However,
why
holding
we see no reason
its
to revise or
that motion
suggested
dent
apply
equal
with
force here.
should not
type
post-conviction
not the
revoke was
(nor
Indeed,
can discern no basis
do
we
envisioned
for
review
application
one)
meaningfully
for
parties supply
2244(d)(2),
not exclude
and thus would
§
rule from
distinguishing the Massachusetts
statutory limitations
from the
time
Accordingly, we
Rhode Island rule.5
See,
F.Supp.2d
e.g., Phillips, 477
period.
that a motion to revise or revoke
conclude
29 motion is
(holding that a Rule
at 306
Rule of
sentence under Massachusetts
2244(d)(2)
§
attack” under
not a “collateral
29(a)
Procedure
constitutes
re
Criminal
of the under
part
parcel
it is
because
or other
quest
post-conviction
for “State
in which the defendant
lying proceeding
meaning
collateral review” within
sentenced);
Dennehy,
Ledoux
2244(d)(2).
§
AEDPA. See 28 U.S.C.
(D.Mass.2004);
F.Supp.2d
99-100
Thus,
29 Motion was a
Holmes’s Rule
00-12020-RWZ,
Hall,
Bland v.
No.
request
post-conviction
for “State
other
(D.Mass.
2002).
*2
at
WL
meaning of
collateral review” within the
order,
court’s
a week of
district
Within
limitations,
AEDPA. To toll the statute of
Wall,
however,
582 F.3d
we issued Kholi
— however,
the motion must have been
(1st
Kholi,
Cir.2009), aff'd,
Wall v.
In
to deter-
“properly filed.” Id.
order
--,
131 S.Ct.
179 L.Ed.2d
U.S.
whether
the motion was
(2011).
mine
In Kholi we held that “the
filed,
law.
we must look to Massachusetts
motion to reduce an
post-conviction
a state
Bennett,
4, 8, 121
sentence,
Artuz v.
531 U.S.
See
imposed
plea
the nature of
(2000)
(holding
62 Kholi—an today ac the effect of regarding not equitable for reasons limitations the district of issue that was never before language in the statute knowledged the Farquharson, may grounds find that there be v. 366 court—we See Neverson itself. (1st Cir.2004). limita- tolling Its of application, equitably 40 for statute F.3d surrounding and however, exceptional to rare tions circumstances is limited due to the cases; tolling exception is “the Motion. equitable filing Holmes’s Rule 29 ... to its [and] than rule resort rather Response Arguments 1. Raised in in justified only ex is deemed
prophylaxis
Motion
Dismiss
Renewed
traordinary
Trapp v.
circumstances.”
(1st Cir.2007)
53, 59
Spencer,
that “the
Holmes first claims
omitted).
(internal
To
citation
establish
extraordinary
unique
circumstances
and
tolling in the fed
foundation
to a
sentence based
plea
case—a
life
context,
must
eral habeas
trial
incompetent
on
advice of
egregiously
“ ‘(1)
pursu
that he has been
demonstrate
require equitable intervention.”
counsel—
(2)
and
rights diligently,
his
that some
misapplies
relevant
This
extraordinary
in his
circumstance stood
AEDPA’s statute of limitations
standard.
prevented timely
Hol
way’
filing.”
merely because
equitably
will not be
tolled
— U.S.-,
Florida,
v.
130 S.Ct.
land
underlying grounds
habeas relief
(2010)
2549, 2562,
(quot
130
177 L.Ed.2d
rather,
extraordinary;
are
the “extraordi
DiGuglielmo,
v.
ing Pace
U.S.
nary
must
that actu
circumstance”
be one
418, 125 S.Ct.
both
Equitable tolling
requires
also
Holmes
hand-wrote certain bio-
which
extraordinary
show “that some
circum-
The Motion lists
information.
graphical
way
prevented
stood
stance
address, with a
as Holmes’s
MCI-Concord
(internal quota-
timely filing.” Id.
*14
his cell
Holmes hand-wrote
in which
space
omitted).
have noted that
tion marks
We
that,
likely
quite
It thus seems
number.
AEDPA
equitable tolling may apply to
claims, prison
provided
officials
as Holmes
“actively misled” in a
prisoner
where a
was
If in
boilerplate forms.
him with these
filing
him
way that caused
to miss
case,
may
then Holmes
fact this was the
Delaney,
The dissent argu garding procedure Holmes’s Rule 29 at the time pointless because would The dissent cites has no merit. ment Holmes filed his motion were far from have re of cases in which courts number they ambiguous, clear. At best were light of a apply equitable fused they filing at worst hinted that Holmes’s faulty by pris advice reliance on prisoner’s Thus, acceptable. assuming was even However, post at 70-71. on staff. See every op- Holmes had availed himself of faulty the cited cases deal with most of portunity prison to conduct research in the deadline; further regarding advice library, law it is no means clear that he more, cases, the record in some of these could have ever discovered that his motion made clear that the either had “properly filed” under then-exist- proper explic information or was access ing Massachusetts law. rely on the advice offered. itly told not Schriro, Fed.Appx. Alexander v. See III. Conclusion (9th Cir.2009) (no equitable tolling reject that the prison paralegal gave faulty advice where run in began statute of limitations Au deadline, about and where record showed gust of and affirm the district prisoner paralegals was told that holding *16 court’s that the statute of limita advice); give legal Henderson v. could 1, run began May tions on 1998. We Nooth, 3:07-CV-01823-JO, 2012 WL No. properly hold that a filed motion under (D.Or. 2012) (no 1801736, 16, May *4 at Mass. P. 29 is a motion seeking R.Crim. tolling despite faulty information equitable “post-conviction or collateral review” for where record prison paralegal from AEDPA purposes. We further hold that given prior writ prisoner showed that was Motion in Rule 29 Holmes filed limita one-year notice of statute of ten 07-CV-3942, “properly case was not filed” and thus tions); Napoli, No. Elliott v. (E.D.N.Y. 4, does not toll the statute of a *2 limitations as at 2010 WL Hudson, 2010); matter of law under AEDPA. re No. 1:07-CV James v. (N.D.Oh. mand, however, -3651, 11 at with 2009 WL *8 instructions for the 2009). Here, contrast, in there is Jan. District Court to consider whether there Rule 29 Motion question no grounds equitable tolling, taking are filed; timely the issue is whether it was for Holmes’s de into account reasons “properly filed.” lay requesting hearing in a on his Rule 29 information Motion as well as whatever something “properly out if is Figuring given regarding have been likely a somewhat more filed” is to be propriety of his Rule 29 Motion when question simply calculating than difficult remanding, it in he filed so we application “proper- deadline. An is emphasize that it is Holmes’s burden to purposes AEDPA “when its ly filed” for put equitable to show that forth evidence delivery acceptance compliance are in it to justified, is but we leave govern- laws and rules applicable with the to determine what steps district court Artuz, ing filings.” 531 U.S. taken, needed, if to further de should be dissent, Contrary to the we S.Ct. 361. velop the record. clear, far at least on the think it is from Whalem/Hunt Cf. (9th Cir.2000) Early, 233 F.3d us, before that Holmes had a record “appropri (remanding to district court for opportunities remedy any “wealth of development equita ate of the record” on verify appropriate filing error and to that “the tolling question, observing ble Post at 70. As we noted procedures.” position substantially changes a better after opening district (cid:127) See, develop legal the facts and assess their briefs are e.g., submitted. United instance”). in the significance first v. Vazquez-Rivera, States 407 F.3d (1st Cir.2005). parties question The did not address the timeliness of a habeas peti- of whether the Nor, equally precedent, under settled do claim-by- tion should be addressed on a generally we arguments credit that are Thus, necessary, if it claim basis. becomes to in a perfunctory “adverted manner [or] the District Court should address this is- unaccompanied by some effort at devel- sue. oped argumentation,” regardless of where they appear party’s briefs. United part
AFFIRMED in and REMANDED Zannino, (1st States v. proceedings. for further Cir.1990). frequent As we have had occa- HOWARD, Judge (dissenting). Circuit observe, sion to a court should not be left work, to “do counsel’s create the ossature Because our decision to remand rests for the argument, put flesh on its wholly a claim relief that readers, bones.” Id. We are not mind us, I respectfully is not before by unilaterally assume that burden cul- dissent. tivating an appellant’s claims raises host principles securely “There are few more concerns, procedural both and substan- settled in this court than principle tive. that, exceptional which holds absent cir cumstances, These are familiar appellant general appli- rules of cannot raise an cability, argument for the administered with as much reply first time force brief.” N. in the Specialty Am. Ins. Co. v. habeas context as in La other. *17 (1st Cir.2001). Indeed, 35, palme, 258 F.3d we have shown no reluctance to held, long waived, have regularity arguments “with a deem including equita- border monotonous,” ing claims, on the argu tolling such ble belatedly that were or waived, ments are deemed and with good otherwise inadequately by petition- raised reason: an appellee conscionably cannot seeking See, ers federal habeas relief. expected respond, Dickhaut, be meaningful e.g., 547, Glacken v. 585 F.3d fashion, (1st Cir.2009) allegations claims and of which 551 (holding that a habeas it has no prior Mgmt. notice. petitioner Waste Hold argument waived an to which he ings, Inc. Mowbray, v. F.3d only 299 devoted a single line in opening (1st Cir.2000); brief); see Pignons Amand, also S.A. DeBurgo de v. St. 587 F.3d (1st Mecanique Cir.2009) v. Corp., Polaroid 701 F.2.d 3 72 n. 14 (finding a claim (1st Cir.1979) J.) (“In (Breyer, preparing arguably comprised only waived where it arguments, briefs and appellee is enti four sentences of petitioner’s the habeas rely tled to on the appellant’s brief); States, content of an opening Trenkler v. United (1st scope Cir.2001) (deem- brief for the appealed, the issues 268 F.3d 26 n. 9 appellant and generally may not preserve ing a perfunctory equitable waived tolling merely by claim referring to it in a reply claim raised argu- for the first time at oral argument.”). ment); brief or at oral Maintaining Cockrell, see also McClaran v. (5th this adversarial balance throughout the ap Fed.Appx. *1 WL Cir.2003) pellate process interest, is a compelling (holding equitable that a new one that should be only tolling argument contravened under raised for the first time extenuating beyond par circumstances in a petitioner’s habeas reply brief had control, e.g., ties’ applicable waived); Castro, where the law been Gomez v. 47 Fed. Cir.2002) (same); (9th tolling argument plainly equitable 2n. Appx. long-standing to clear either of these fails Agosto-Alicea, Rivera-Muriente cf. brief- petitioner’s hurdles. The procedural Cir.1992) (“[The (1st non- 349, 354 F.2d two, and unequivocal advances equi- not make [the] did appellant] —he two, equitable for only cognizable grounds opening in his brief. argument table (1) egregious nature allegedly relief: surfaced for Rather, asseveration advice; Rule 29 and of his trial counsel’s It is well reply in his brief. time first (2) li- purportedly draconian prison’s court, reason which good in this settled ably dispatched Both are brary policies. here, legal not be rehearsed need that should be the majority, in an the first time made for end of it. comes too late reply brief appellant’s Instead, we solicit further deliberation addressed.”). be need not tolling argument: equitable on a “third” be contrary, these rules should theOn pris- petitioner that the was misled equitable in the realm of potent especially boilerplate Rule 29 forms. The trou- on’s identify an claim must tolling, where the raised, all, is, if at only claim was ble “rare” timely filing that is both obstacle single time in a sentence of for the first something “extraordinary”; typically, brief, only and then petitioner’s reply record, the face of the obvious on patently Rule 29 to the merits of his relation by a easily disregarded and therefore asserting that his Specifically, claim. dilatory intent. See some claimant absent filed under Rule 29 motion was (1st 53, 59 Trapp Spencer, law, *18 necessary for traditionally development Matesanz, Delaney v. establishing....” not, as appeal. This is consideration Cir.2001). (1st 7, 14 F.3d of a majority suggests, simple case the here, “necessary la- Yet, failing apply the record is devoid the although party rather, example a classic circum- it is discernibly exceptional any bel”— inadequate argument.7 In es- by stances, waiver we remand for consideration change in the outcome would discre- the ultimate majority notes that we have the 7. The circumstances, tion, Vega party’s to overlook States v. certain favor." United in assisted See, e.g., Cir.2005). argument. Molina, (1st by inadequate waiver 534 n. 407 F.3d (1st Segarra, 590 F.3d Since, Costa-Urena acknowledges, it "can- majority as the Cir.2009). are absent Those circumstances be" even if this say what the result should not unfettered, not and Such discretion is here. resuscitated, argument and equitable tolling is previ- sparingly. we have As be used should special presents case none because this stated, be reluctant ously "courts should typically the basis for form circumstances supporting affirmatively identifying and act waiver, see, Org. e.g., overlooking Nat’l been, but were arguments that could have McKee, (1st Marriage, Inc. v. 669 F.3d minimum, not, party. At a bare made Cir.2012) by inadequate (overlooking waiver circum- reserved for action should be such an importance of issues argument because of some likelihood in which there is stances sence, appellant’s requirements we manufacture the respect timeliness with to his claim, effectively precluding appellee the Here, subsequent federal petition. by con- delivering satisfactory from response. trast, petitioner (maybe instructed This, think, beyond proper prov- I is our file, erroneously) being how to rather than ince, join I and therefore cannot in re- so; already properly told he had done manding ground.8 on this itself, the advice came not from the court but from equitable tolling
Even if this claim had some heretofore unidentified properly preserved, staff; been prison member of the prison and perhaps petitioner had advised the that his boiler- importantly, petitioner most still had a with plate complied forms the strictures of opportunities wealth of remedy any er- remand, we should not still be- verify ror appropriate filing and to apparent it far from cause is that such procedures (including opportunities to con- qualifies an extraordinary conduct as cir- research). independent duct his own In trigger cumstance sufficient to equitable words, prison’s other actions here did relief. petitioner’s not foreclose the ability to scratch, Starting from as it given must motion, file his Rule 29 and con- failure petitioner’s to cite relevant sequently, timely peti- file the federal whatsoever, authority majority sug tion now at issue. Thaler, gests that Williams 400 Fed. academic, These are distinctions (5th Cir.2010),
Appx. 886 might inform the they indeed form the basis for several district court’s tolling analysis. federal decisions on somewhat analogous Thaler, however, distinguishable in sev Schriro, facts. Alexander v. 312 Fed. There, eral "critical respects. the state (9th Appx. Cir.2009), for example, no court had repeatedly petitioner notified the extraordinary circumstances were found that his state habeas was pending, where a prison member of the staff offered already when fact it had been denied. misleading advice to a federal peti Because there was no alternative source tioner in calculating the information, applicable limita for the or additional action period. tions Distinguishing petitioner from cases could have taken to error, remedy prison where “a wrongful the court’s official’s misleading conduct virtually impossible prevents advice made it petitioner for the filing,” from to meet stringent AEDPA’s court explained case, that “in this dolent; expended raised and extent of resources upon important the rule is founded Costa-Urena, expansive litigation); fairness, judicial considerations of economy, (overlooking at 30 inadequate argu- waiver wisdom.”). practical likely ment where change would *19 outcome); Leavitt, United States v. 925 majority suggests The that because v. Kholi 516, (1st Cir.1991) F.2d (overlooking Wall, (1st Cir.2009) yet had by inadequate argument waiver of a sentenc- decided, petitioner be had no cause to ing guidelines guidelines issue where the raise the issue before the district court. That new, relatively purely were the issue was le- be, it but does not excuse his failure to gal, sentencing and the differences were so brief, opening appellate do so in his where we great bring as to miscarriage about a serious explicitly requested that counsel discuss the justice legally right), of if he is I see no reason Kholi, light Rule 29 issues in of or his failure to take such a course of action here. See brief, sufficiently reply to do so in his after the Harwood, Nat'l Ass’n Social Workers v. of expressly pro- Commonwealth had called the 622, (1st Cir.1995) ("[T]he F.3d raise-or- validity cedural of 29 motion into principle [may waive. not] dismissed as a question. pettifogging technicality trap or a for the in- any dinary way circumstance that stood not do or fail to do did [prison staff] requirement with the time compliance for actually impossible made it that thing Ro justifies equitable tolling.”); and now file on time.” Id. at 975 petitioner] [the Artuz, man v. No. omitted); 00-CIV-1400-DLC, see also (internal citations (S.D.N.Y. 22, *2 Aug. at 1201392, WL Nooth, No. 3:07-CV-01823- Henderson 2000) (finding prison law clerks’ erro (D.Or. 1801736, at *4 JO, 2012 WL request neous advice a state FOIA 2012) ad 16, (finding filing that erroneous would toll AEDPA’s statute of limitations member, staff “while prison vice from a circumstance). extraordinary not an unfortunate,” does not rise to extremely extraordinary circumstances course, level This, of is not intended to be an impossible it “ma[k]e because it did not applicable collection of authori- exhaustive time”); Madison v. to file on petitioner provide. ty; petitioner that was for Hulihan, 09-CV-337, Nonetheless, 2012 WL No. pursuant prevailing to the 2012) (E.D.N.Y. *4 March authority, likely prison’s at it is that the al- legedly filing where inaccurate advice—whether (rejecting equitable claim of encompassed forms lacked infor mere dissemination state-provided habeas or, worst, in-' boilerplate forms at also filing requirements, mation about AEDPA eluded verbal assurances that such forms impedi “a state-created holding purposes were sufficient [only] equitable tolling can ment warrant —does extraordinarily high not rise to the level state ‘effec rare instance where the required application for the pursu tively petitioner from prohibits’ tolling. Dulaney v. United ing petition”); a habeas
States, 6:08-cv-00859, 6:09-cv00372, Nos. Finally, though significantly, no less (S.D.W.Va. *2 Sep at 2011 WL prison’s even if the actions do constitute an 2011) (refusing apply equita tember circumstance, extraordinary petitioner corpus sup forms tolling where habeas ble pur- he has still failed demonstrate that to inform plied by prison appeared rights diligently during sued his the more (in error) that he could not file petitioner two-year gap than between June until he com his federal habeas 17, 2000, when he remained August began his state sentence and serv pleted despite pending Rule 29 motion. idle sentence); Napo Elliott v. his federal for the mo- only The conceivable basis li, 07-CV-3942, 2010 WL at No. anticipated coopera- petitioner’s tion—the 2010) (E.D.N.Y. 4,May (“Simply, falling *2 government tion with the on another nonlawyer incompetence victim to the petitioner well known to the case—was ... an [prison library extraor staff] originally the time that the motion was Hudson, circumstance.”); James dinary employed that simply filed. Had he 1:07-CV-3651, 111637, at No. 2009 WL *8 knowledge requested hearing within 2009) (“The (N.D.Oh. that, time, fact Jan. all period a reasonable of these ascertaining easily the relevant instead of himself issues could have been averted. law, majority rely [pris chose to nor the petitioner] Neither [the for this library provide acceptable explanation clerks for such critical informa on] inactivity.9 period that choice an extraor- extended tion does not make *20 that, the oth- only during wanted information from him” about majority states 9. The time, period inactivity, two-year A inter- correspondence his trial er case. Holmes's with only by correspondence rupted occasional attorney "suggests that Holmes have attorney, waiting prosecutor with his trial does seem meet to learn whether the been reasons, any I would excise these For tolling putative equitable
treatment well- join the court’s otherwise
argument, order of and affirm the opinion,
reasoned
the district court. America,
UNITED STATES
Appellee,
v. CLARK, Defendant,
Matthew
Appellant.
No. 11-1479. Appeals,
United States Court
First Circuit.
Heard 2012. July
Decided diligence necessary ing Pursuing rights the level of reasonable remand. one's with rea See, ground equitable tolling. e.g., a claim of diligence prongs sonable is one two (3d Kyler, LaCava 277-78 high must show to meet the Cir.2005) (deciding appel- not to remand the tolling. equitable burden Holland Flor evidentiary lant’s habeas hear- ida, -U.S.-, 2549, 2562, 130 S.Ct. availability equitable tolling on the (2010) (holding "petitioner that a L.Ed.2d 130 twenty-one lapse where he allowed months to only he is entitled to shows if between the of a state court motion and pursuing rights ... that he has been dili status). subsequent inquiry as to its added). gently....”) (emphasis Holmes did event, it should not be left to the court to attempt showing not even to make that here. support- comb record for favorable facts notes Massachusetts Cir.2007) eq (restricting application “the Motion and Affida- only [Rule 29] “extraordinary tolling doctrine to uitable filed are hand- petitioner] vit which [the circumstances”). Thus, truly ex without forms, pro- which are onto xeroxed written beyond the something ceptional reason — they ar- incoming prisoners when vided petitioner’s last might that this notion Nowhere is this prison].” rive at [the should not revive apple at the bite —-we justification eq- as a statement framed tolling ar tardy perfunctory remediation, cursory and its nature uitable seeks to party “the who guments which level begin approach does not even the burden of doctrine] invoke bears [the