Sena v. Kenneway ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1471
DENNIS SENA,
Petitioner, Appellant,
v.
STEVEN KENNEWAY, Superintendent, MCI-Shirley,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
[Hon. Judith G. Dein, U.S. Magistrate Judge]
Before
Lynch, Selya, and Kayatta,
Circuit Judges.
Elizabeth Prevett, with whom Jonathan Scott Lauer was on
brief, for appellant.
Gabriel Thornton, Assistant Attorney General, with whom Maura
Healey, Attorney General of Massachusetts, was on brief, for
appellee.
May 12, 2021
SELYA, Circuit Judge. Federal habeas review for state
prisoners is subject to a one-year limitations period, which
generally runs either from the conclusion of direct review or the
expiration of the time allotted for seeking direct review. See 28
U.S.C. § 2244(d)(1)(A). The Supreme Court has recognized, though,
that this one-year period sometimes may not provide a sufficient
interval for the exhaustion of a state prisoner's claims in state
court. See Rhines v. Weber, 544 U.S. 269, 275 (2005). To guard
against injustice, the Court has approved a procedure — commonly
known as a motion for a stay and abeyance — through which a state
prisoner may file his federal habeas petition and seek additional
time, subject to certain preconditions, to exhaust his state
remedies. See id. at 277-78. One such precondition requires the
petitioner to show good cause for his failure to have exhausted a
particular claim or claims in state court. See id. at 277.
In this case, the district court, rejecting a magistrate
judge's recommendation, held that petitioner-appellant Dennis
Sena, a state prisoner, had not satisfied the good cause
requirement.1 The court proceeded to deny the petitioner's motion
for a stay in abeyance and dismissed his habeas petition. See
Sena v. Kenneway, No. 19-10254, 2020 WL 1429849, at *2-3 (D. Mass.
1 The petitioner's name is spelled in the record both as
"Sena" and "Senna". Like the district court, we employ throughout
the spelling used by the petitioner in his habeas petition.
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Mar. 24, 2020). The petitioner appeals. Concluding, as we do,
that the district court acted within the wide margins of its
discretion, we affirm.
I. BACKGROUND
We sketch the relevant facts and travel of the case.
Our tale begins at a convenience store in Boston, Massachusetts,
where a brawl erupted in the early hours of May 19, 2012. One
participant, Zachary Fritz-Kill, sustained knife wounds, and an
individual who attempted to intervene was rewarded by having his
tires slashed.
When the police arrived at the scene, at least one
eyewitness identified the petitioner as the knife-wielding
perpetrator. Fritz-Kill, who had consumed a heady mix of drugs
and alcohol in the hours preceding the brawl, was taken to a nearby
hospital. Although Fritz-Kill had previously been diagnosed as
having a bipolar disorder, he attributed his erratic behavior at
the convenience store to his use of cocaine.
The petitioner was subsequently indicted by a
Massachusetts grand jury, which charged him with assault and
battery with a dangerous weapon, see Mass. Gen. Laws ch. 265,
§ 15A(b); assault and battery with a dangerous weapon, causing
serious bodily injury, see id. ch. 265, § 15A(c)(i); and malicious
destruction of property, see id. ch. 266, § 127. All three counts
were coupled with a charge that the petitioner was an "habitual
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criminal," having been convicted and sentenced to terms of
immurement of more than three years on at least two earlier
occasions.2 Id. ch. 279, § 25(a). The "habitual criminal"
designation paved the way for the imposition of statutory maximum
sentences should the petitioner be convicted of the felonies
charged in the indictment. See id.
Maintaining his innocence, the petitioner proceeded to
trial in Suffolk County Superior Court in March of 2015. The
Commonwealth relied on witness and victim testimony (including the
testimony of Fritz-Kill, who identified the petitioner as his
attacker). The defense tried to discredit Fritz-Kill's testimony
by emphasizing how mind-altering substances may have affected his
recollection. But when the defense attempted to introduce expert
testimony to this effect, the trial court rejected the proffer —
which it variously characterized as conjectural, irrelevant, and
untimely.
The first trial proved indecisive: the jury deadlocked,
and the trial court declared a mistrial. A second trial ensued,
and the trial court (in the person of the same trial justice) again
excluded the petitioner's proffered expert testimony. The second
2 Sena had previously been convicted of armed assault with
intent to murder, see Mass. Gen. Laws ch. 265, § 18(b); possession
of a dangerous weapon, see id. ch. 269 § 10(b); distribution of
cocaine, see id. ch. 94C, § 32A(a); armed assault with an intent
to rob, see id. ch. 265, § 18(b); and possession of a firearm
without a license, see id. ch. 269, § 10(a).
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jury acquitted the petitioner on the property-destruction count
but found him guilty on the other two counts. The petitioner
waived his right to have a jury adjudicate his "habitual criminal"
status; the trial court found the designation apt; and the court
sentenced the petitioner to the statutory maximum for each offense
of conviction — ten years for assault and battery with a dangerous
weapon and fifteen years for assault and battery with a dangerous
weapon, causing serious bodily injury — to run concurrently.
The petitioner appealed to the Massachusetts Appeals
Court (the MAC) on diverse grounds. As relevant here, he
maintained that the trial court abused its discretion in excluding
his proffered expert witness. In formulating this claim, though,
the petitioner's appellate counsel challenged only the trial
court's determination that the testimony was not relevant. No
challenge was advanced as to the concurrent finding that the
proffer was untimely, notwithstanding that the trial court had
cited timeliness as a separate (and independently sufficient)
ground for its exclusion of the evidence.
The MAC treated this omission as "essentially
conced[ing] that the evidence was not timely" and deemed the claim
waived. Commonwealth v. Senna, 2017 WL 4856593, at *2 (Mass. App.
Ct. 2017) (unpublished table decision). The Supreme Judicial Court
(the SJC) denied the petitioner's application for leave to seek
further appellate review (ALOFAR) on December 21, 2017, see
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Commonwealth v. Senna, 94 N.E.3d 853 (Mass. 2017) (table decision),
thus leaving the MAC decision as the final state-court decision.
Undaunted by the SJC's denial of his ALOFAR, the
petitioner requested that the Massachusetts public defender
agency, the Committee for Public Counsel Services (CPCS), provide
him with new counsel to file a motion for a new trial under Rule
30 of the Massachusetts Rules of Criminal Procedure.3 This rule
authorizes the granting of a new trial to persons confined in
derogation of either federal or state law, see Rodriguez v.
Spencer, 412 F.3d 29, 33-34 (1st Cir. 2005), and represents the
"exclusive vehicle for postconviction relief" in the Massachusetts
state courts after direct review has been exhausted, id. at 34(quoting Leaster v. Commonwealth, 432 N.E.2d 708, 709 (Mass.
1982)). CPCS declined the petitioner's request and notified him
on June 18, 2018, that he would have to proceed pro se. The agency
apparently based this decision on input from the petitioner's
erstwhile appellate counsel, who advised it that a Rule 30 motion
was not warranted because she already had raised the expert
testimony issue on direct appeal. She failed to mention, however,
that incomplete argumentation — the failure to challenge the
3 The record does not contain the exact date that the
petitioner first contacted CPCS but we assume, favorably to him,
that he made his request for the appointment of counsel soon after
his ALOFAR was denied.
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timeliness of the proffer — led the MAC to dismiss the claim as
waived.
The petitioner responded by filing a complaint against
his former appellate counsel with the Massachusetts Board of Bar
Overseers (the Board). At the same time, he beseeched CPCS to
reconsider. On February 6, 2019, CPCS yielded to the petitioner's
importunings and assigned him state post-conviction counsel. His
new lawyer determined that the petitioner could raise potentially
meritorious issues in a Rule 30 motion, including a claim that his
former appellate counsel rendered ineffective assistance by
causing the unintentional forfeiture of a potentially viable
ground for appeal (the trial court's exclusion of the proffered
expert testimony).
Two days after the appointment of his new state post-
conviction counsel, the petitioner, acting pro se, filed a habeas
petition in the United States District Court for the District of
Massachusetts. See 28 U.S.C. § 2254. This petition, submitted
approximately six weeks before the expiration of the one-year
federal limitations period, named the superintendent of the
correctional institution in which the petitioner was incarcerated
as the respondent and asserted eight distinct grounds for relief.
Simultaneous with this submission, the petitioner moved to stay
the habeas petition and hold it in abeyance. This request stemmed
from what the petitioner deemed to be the "mixed" nature of his
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petition, which in his view included both exhausted and unexhausted
claims (his ineffective assistance of appellate counsel claim
being among the latter).4 See Neverson v. Bissonnette, 261 F.3d
120, 123 (1st Cir. 2001) (citing Rose v. Lundy, 455 U.S. 509, 522
(1982)).
We pause at this juncture to put the significance of the
"mixed" nature of the petition into perspective. Federal law
incorporates the doctrine that a federal habeas court will
entertain a state prisoner's petition for habeas relief "only after
all state remedies available [for the claim] have been exhausted."
Ex parte Hawk, 321 U.S. 114, 117 (1944) (per curiam). Although
Congress codified this doctrine in 1948, see Act of June 25, 1948,
ch. 646, § 1, 62 Stat. 869, 967 (current version at 28 U.S.C.
§ 2254(b)-(c)), it remained uncertain whether a federal habeas
court could adjudicate petitions that contained a mix of both
exhausted and unexhausted claims. The Supreme Court resolved this
uncertainty in Lundy. See 455 U.S. at 522. The Lundy Court
construed the exhaustion principle as "[r]equiring [the]
dismissal" of mixed petitions. Id. at 519.
Withal, the Court did not demand that federal habeas
courts dismiss such mixed filings wholesale. As an alternative,
4 The Commonwealth disputes the characterization of the
petition as "mixed," suggesting that none of the petitioner's
claims have been exhausted. We assume, as did the district court,
that the petition contained both exhausted and unexhausted claims.
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a district court could allow the petitioner to withdraw unexhausted
claims. See id. at 520. Those petitioners who opted for dismissal
(without prejudice) could later "come back to federal court to
present their perfected petitions with relative ease." Rhines,
544 U.S. at 274. This structure, though, became problematic with
the advent of new legislation. The Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) codified the strict exhaustion
requirement articulated in Lundy, see 28 U.S.C. § 2254(b)(1)(A),
and added a one-year statute of limitations for federal habeas
petitions, see 28 U.S.C. § 2244(d)(1)(A).
The interplay between the exhaustion requirement and
this newly enacted limitations period created a potential catch-
22: habeas petitioners whose "timely but mixed petition[s]" were
dismissed by federal courts for want of exhaustion might, depending
on the timing of the dismissal, find themselves without adequate
time to exhaust their state-court remedies and still return within
the limitations period to federal court. Rhines, 544 U.S. at 275.
Necessity is said to be the mother of invention, see Plato, The
Republic of Plato 369C (Benjamin Jowett trans., Project Gutenberg
2017) (1894), and federal courts soon devised a way to alleviate
the harsh effects of this catch-22. They began to stay mixed
habeas petitions and to hold them in abeyance in lieu of dismissal.
See, e.g., Gaskins v. Duval, 336 F. Supp. 2d 66, 68 (D. Mass.
2004); Kilburn v. Maloney, 164 F. Supp. 2d 117, 119 (D. Mass.
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2001). This procedure provided a mechanism through which federal
habeas petitioners could satisfy exhaustion obligations without
defaulting on AEDPA's one-year limitations period.
In Rhines, the Supreme Court approved this use of the
stay-and-abeyance procedure, see id. at 278, but stipulated that
district courts should only resort to it in "limited
circumstances," id. at 277. The Court set out three preconditions
for the grant of a stay and abeyance to a habeas petitioner.
First, the petitioner must show good cause for his failure to have
exhausted a particular claim in state court. See id. Second, the
petitioner must show that the particular claim is not "plainly
meritless." Id. Third, the petitioner must show that he has not
engaged in any "abusive litigation tactics or intentional delay"
touching upon the prosecution of the claim. Id. at 278.
The erection of this tripartite framework brings us back
to the case at hand. The district court appointed counsel for the
petitioner and referred both his stay-and-abeyance motion and the
respondent's motion to dismiss to a magistrate judge. The
petitioner subsequently withdrew six of the eight claims contained
in his habeas petition. The petitioner's remaining two claims
included his unexhausted ineffective assistance of counsel claim
and an exhausted claim.5 After a hearing, the magistrate judge
5 The exhausted claim is not at issue here, and any discussion
of it would be superfluous.
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issued a report and recommendation, in which she found all three
elements of the Rhines framework satisfied and recommended
granting the stay and abeyance and denying the motion to dismiss.
Pertinently, she reasoned that the petitioner's time-consuming
efforts to secure post-conviction counsel comprised good cause for
his failure to exhaust state-court remedies.
The respondent objected, and the district court — on de
novo review, see Fed. R. Civ. P. 72(b)(3) — rejected the magistrate
judge's recommendation. Although the court acknowledged that
Rhines "did not define precisely what constitutes 'good cause'"
for a failure to exhaust, it determined that the petitioner had
not made the required showing. Sena, 2020 WL 1429849, at *2. In
the court's estimation, the considerations cited by the magistrate
judge were insufficient to excuse the petitioner's prolonged
inaction, particularly in light of evidence that he could
competently self-advocate for the merits of his ineffective
assistance claim. See id. The court stated:
[P]roceeding pro se "does not excuse a
petitioner from the exhaustion requirement."
[Lundy], 455 U.S. at 520 ("Just as pro se
petitioners have managed to use the federal
habeas machinery, so too should they be able
to master this straightforward exhaustion
requirement.") . . . . Furthermore, Sena
filed a habeas petition pro se in this Court
just two days after counsel was appointed to
pursue his claims in state court. In that
petition, Sena articulated his claim of
ineffective assistance of counsel which
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demonstrates that he had both the opportunity
and ability to pursue state court collateral
relief while awaiting the appointment of
counsel. His failure to do so for more than
six months while he sought the appointment of
counsel does not amount to "good cause"
sufficient to excuse compliance with the
exhaustion requirement.
Id. The court proceeded to deny the stay-and-abeyance motion and
— since the petitioner made no request to continue on his lone
exhausted claim, see supra note 4 — dismissed the mixed habeas
petition for want of exhaustion. See Sena, 2020 WL 1429849, at
*2-3. This timely appeal followed.
II. ANALYSIS
The district court's decision turned solely on what it
determined to be the petitioner's failure to satisfy the good cause
element of the Rhines framework,6 see Sena, 2020 WL 1429849, at
*2, and the petitioner's appeal focuses exclusively on that
element.
We review the district court's determination that the
petitioner failed to show good cause for abuse of discretion. See
Rhines, 544 U.S. at 278. Abuse of discretion is not a monolithic
standard: "within it, abstract questions of law are reviewed de
The district court did not comment on the magistrate judge's
6
recommended finding that the petitioner had not engaged in any
abusive litigation tactics or intentional delay. See Sena, 2020
WL 1429849, at *2. The court expressed some skepticism about the
recommended finding that the petitioner's ineffective assistance
of counsel claim was not plainly meritless, see id., but did not
resolve the issue.
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novo, findings of raw fact are reviewed for clear error, and
judgment calls receive a classically deferential reception." Riva
v. Ficco, 615 F.3d 35, 40 (1st Cir. 2010). In the absence of a
material error of law — and no such error is evident here — the
contours of judicial discretion are "broad — but . . . not
absolute." Indep. Oil & Chem. Workers of Quincy, Inc. v. Procter
& Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988). "Abuse
occurs when a material factor deserving significant weight is
ignored, when an improper factor is relied upon, or when all proper
and no improper factors are assessed, but the court makes a serious
mistake in weighing them." Id.Rhines supplies the beacon by which we must steer. Even
so, the Court's opinion says little about what circumstances may
suffice to excuse a habeas petitioner's failure to exhaust state-
court remedies ahead of his federal filing. After Rhines, the
Supreme Court has addressed the stay-and-abeyance good cause
requirement only once. See Pace v. DiGuglielmo, 544 U.S. 408, 416
(2005). There, the Court stated, in dictum, that even though a
petitioner had not acted diligently, "reasonable confusion about
whether a state filing would be timely will ordinarily constitute
'good cause' for [a petitioner] to file in federal court" for a
stay and abeyance. Id.Other reported cases do not offer much further
elucidation. See, e.g., Dixon v. Baker, 847 F.3d 714, 720 (9th
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Cir. 2017) ("The caselaw concerning what constitutes 'good cause'
under Rhines has not been developed in great detail."); Heleva v.
Brooks, 581 F.3d 187, 192 (3rd Cir. 2009) (concluding that "[t]he
full range of circumstances in which a habeas petitioner is
eligible for stay-and-abeyance is not yet clear"). Our own
jurisprudence on the subject is likewise thin. We have held that
the strategic omission of claims on direct appeal does not
constitute good cause for the failure to exhaust those claims.
See Clements v. Maloney, 485 F.3d 158, 170-71 (1st Cir. 2007).
So, too, we have held that good cause was not shown when a failure
to exhaust resulted from "[i]gnorance of the law." Josselyn v.
Dennehy, 475 F.3d 1, 5 (1st Cir. 2007). Importantly, however,
Josselyn involved a petitioner who was represented by counsel
throughout, and we reserved the issue of how strictly this holding
should be applied to pro se petitioners. See id. at 5 n.3; cf.
Rhines, 544 U.S. at 279 (Stevens, J., concurring) (warning against
construing the good cause requirement so strictly as to "trap the
unwary pro se petitioner").
Against this mottled backdrop, we turn to the district
court's finding that the petitioner failed to satisfy the good
cause requirement. The court placed substantial weight on the
lengthy interval during which the petitioner could have filed his
Rule 30 motion in the state court, but did not. See Sena, 2020 WL
1429849, at *2. That delay was an appropriate integer in the good
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cause calculus: when determining good cause in a variety of
contexts, courts typically gauge the scope of the moving party's
delay and measure it against that party's window of opportunity
within which to act. See, e.g., Steir v. Girl Scouts of the USA,
383 F.3d 7, 12 (1st Cir. 2004) ("Regardless of the context, the
longer a plaintiff delays, the more likely the motion to amend [a
complaint] will be denied [for lack of good cause] . . . ."); Gen.
Cont. & Trading Co. v. Interpole, Inc., 899 F.2d 109, 112 (1st
Cir. 1990) (holding timing of motion relevant to setting aside
entry of default for good cause).
In this case, the petitioner made no move to initiate
state-court proceedings during the seven-plus months after CPCS
notified him that it would not furnish him with representation.
The district court reasonably could interpret this extended
quiescence as militating against a showing of good cause. After
all, a movant's "diligence or lack of diligence" often serves as
the "dominant criterion" in a good cause analysis. Miceli v.
JetBlue Airways Corp., 914 F.3d 73, 86 (1st Cir. 2019) (citation
omitted).
Of course, each case must be evaluated on its own facts,
and a movant's delay must be viewed in light of the particular
circumstances. See, e.g., Gen. Cont. & Trading Co., 899 F.2d at
112 (disclaiming any "mechanical formula" for determining good
cause). Here, for instance, the petitioner asserts that the
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district court should have treated his pursuit of appointed counsel
as a proxy for diligence. CPCS's recalcitrance, he says, was a
delay-creating external circumstance that cannot fairly be
attributed to him. See, e.g., Doe v. Jones, 762 F.3d 1174, 1182
(10th Cir. 2014); Jalowiec v. Bradshaw, 657 F.3d 293, 304–05 (6th
Cir. 2011). Relatedly, the petitioner says that his former
appellate counsel's misleading representation to CPCS exacerbated
this external factor.
The petitioner's proposed application of this tenet to
his situation misses the mark. The difficulties that the
petitioner encountered in his dealings with CPCS, though obviously
frustrating, did not negate his ability to file a Rule 30 motion.
The petitioner was free to proceed pro se to file his motion, and
Massachusetts law makes pellucid that "an indigent defendant has
no constitutional entitlement to the assistance of appointed
counsel in preparing or presenting a postconviction motion for a
new trial." Parker v. Commonwealth, 863 N.E.2d 40, 42 (Mass.
2007).
In sum, the petitioner was bound by the same general set
of procedural expectations that apply to litigants represented by
counsel. See Lundy, 455 U.S. at 520; see also Delaney v. Matesanz,
264 F.3d 7, 15 (1st Cir. 2001) ("While judges are generally lenient
with pro se [habeas petitioners], the Constitution does not require
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courts to undertake heroic measures to save pro se litigants from
the readily foreseeable consequences of their own inaction.").
This is not to say that the petitioner's pro se status
is unimportant. A district court charged with making a good cause
determination must factor a habeas petitioner's pro se status, as
well as his attributes, skill sets, and circumstances, into its
decisional calculus. See Ellison v. Rogers, 484 F.3d 658, 662 (3d
Cir. 2007); see also Josselyn, 475 F.3d 1 at 5 n.3.
Because pro se litigants are not fungible, however, each
case must be evaluated on its own facts. See SAI v. Transp. Sec.
Admin., 843 F.3d 33, 36 (1st Cir. 2016); see also Pruitt v. Mote,
503 F.3d 647, 655 (3rd Cir. 2007). A pro se litigant who has
demonstrated a capacity for understanding and articulating the
issues may reasonably be extended fewer allowances than a pro se
litigant who is hopelessly out of his depth. See Delaney, 264
F.3d at 15; Evangelista v. Sec'y of HHS, 826 F.2d 136, 142-43 (1st
Cir. 1987). Consequently, because every pro se litigant is
different, the significance of his unrepresented status is
necessarily a matter of degree.
In this instance, the period of delay was substantial —
and the sheer length of the delay militated against a finding of
good cause. See Guzmán-Ruíz v. Hernández-Colón, 406 F.3d 31, 35
(1st Cir. 2005) (describing three-month delay as fatal to claim
that good cause existed for failure to file timely opposition to
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summary judgment motion). With this in mind, we think that the
district court acted within the wide margins of its discretion in
determining that the petitioner could — and should — have gone
forward with his Rule 30 motion despite his pro se status.
Although the petitioner had no control over CPCS's grudging
attitude toward the appointment of counsel, nothing impeded him
from acting in his own behalf while he was lobbying CPCS to
reconsider its initial turn down. Here, moreover, it is critical
to the analysis that the district court supportably found that the
petitioner was capable of acting to his own behoof at all times
after his receipt of CPCS's rejection letter.7 See Sena, 2020 WL
1429849, at *2.
In this regard, the court attributed great significance
to the habeas petition, filed pro se, which competently articulated
the petitioner's claims (including his ineffective assistance of
counsel claim). This petition, the court concluded, adequately
evinced the petitioner's ability "to pursue state court collateral
relief while awaiting the appointment of counsel." Id. Such a
conclusion was reasonable under the circumstances: placed along
7 Of course, the petitioner actually had a period of roughly
thirteen months within which to act between the date that the SJC
denied his ALOFAR (December 21, 2017) and the date on which he
filed the stay-and-abeyance motion (February 8, 2019). The
district court, however, seems to have given less weight to the
portion of this period that preceded his receipt of CPCS's
rejection letter (which was dated June 18, 2018).
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the continuum of pro se submissions, the habeas petition fairly
can be described as well-crafted.
If more was needed, the petitioner's complaint to the
Board — written shortly after the petitioner received CPCS's
rejection letter — similarly reflected his ability to self-
advocate. In it, the petitioner lucidly set forth arguments as to
how his former attorney "mishandled" various issues, along with an
accurate chronology of the events that undergirded his ineffective
assistance claim. Further, the letter featured appendices of "case
law . . . [and] references to the exact pages from [trial]
transcripts to support each issue."
To cinch the matter, the petitioner's initial request to
CPCS for the appointment of counsel was for the expressed purpose
of filing a Rule 30 motion, and CPCS's June 2018 rejection letter
advised the petitioner specifically that he could pursue that
motion without an attorney. CPCS's letter ensured that the
petitioner knew of his opportunity to proceed pro se. See
O'Connell v. Hyatt Hotels of P.R., 357 F.3d 152, 155 (1st Cir.
2004) (finding no good cause for delay when plaintiffs were "aware
of their [procedural] obligation"); cf. Ellison, 484 F.3d at 662(deeming habeas petitioner not "unwary" when he had been apprised
of how to pursue post-conviction relief). From the petitioner's
materials, coupled with the length of the delay and the fact that
he was no stranger to the criminal justice system, the district
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court plausibly could conclude — as it did — that he was capable
of proceeding pro se with his Rule 30 motion in a more timely
fashion.
The petitioner attempts to undermine the inferences
drawn by the district court by characterizing the cause of his
delay as "reasonable confusion" about timing. This
characterization draws on dictum from Pace, 544 U.S. at 416, but
the attempted analogy compares plums to pomegranates. The Pace
Court expressed approval (hypothetically) for a stay and abeyance
for an imagined habeas petitioner who was "reasonably confus[ed]"
about how state courts would apply recently enacted filing
prerequisites to an application for post-conviction relief. Id.
That is a far cry from the case at hand. The Rule 30 procedure is
straightforward and its essentials (including the applicable
filing requirements) have remained constant since at least 1979.
See Reporter's Notes to Mass. R. Crim. P. 30(a) (delineating 1979
adoption of simplified post-conviction procedure). Nor was there
any reason to doubt the applicability of the one-year federal
limitations period.
The petitioner also complains that he would have had
great difficulty in mounting an ineffective assistance of counsel
claim pro se. The district court disagreed, see Sena, 2020 WL
1429849, at *2, and its conclusion appears to be a reasoned choice
between plausible alternatives. The petitioner's correspondence
- 20 -
to the Board shows that the petitioner had the ability to describe
his former appellate counsel's allegedly deficient performance
clearly — and that was the essence of his ineffective assistance
claim.
Battling on, the petitioner invokes a provision of
Massachusetts law to the effect that any grounds for post-
conviction relief not included in a defendant's Rule 30 motion are
deemed waived. See Mass. R. Crim. P. 30(c)(2). From this starting
point, the petitioner asserts that he risked forfeiting
unidentified claims by filing his Rule 30 motion without the
benefit of counsel. This assertion is triply flawed. For one
thing, it overlooks that, under Massachusetts practice, a Rule 30
motion may be amended and, in any event, the state court may permit
the filing of second or successive Rule 30 motions. See id.;
Commonwealth v. Ellis, 57 N.E.3d 1000, 1018 (Mass. 2016). For
another thing, the expectation established by the Lundy Court, 455
U.S. at 520 — that pro se habeas petitioners must be held
accountable for navigating the usual channels of the "federal
habeas machinery," including the strict exhaustion requirement —
encompasses the reality that some petitioners will have more
challenging claims to advance than others.
Third, and finally, the petitioner's assertion proves
too much: virtually any pro se litigant can be said to be at
increased risk of forfeiture when contrasted with one represented
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by counsel. See Evangelista, 826 F.2d at 143 ("It is rare indeed
that veteran counsel . . . cannot train an eagle eye to discern
something that could have been done better, or more convincingly,
or not at all."); Yeoman v. Pollard, 875 F.3d 832, 836 (7th Cir.
2017). If "good cause" were to be construed as broadly as the
petitioner urges, any habeas petitioner could justifiably delay
his filing for as long as he maintained even the faintest hope of
retaining counsel.
When all is said and done, the district court's
determination that good cause did not exist for the petitioner's
delay rests on an assessment that is inherently fact-sensitive.
We think that this determination passes muster when viewed through
the deferential prism of the standard of review. For aught that
appears, the district court took into account all the proper
factors (and no improper factors) when working its decisional
calculus. Although the question is close, we discern no principled
basis for second-guessing the district court's determination.
The petitioner has one last shot in his sling. He says,
in effect, that even if the district court considered all the
proper factors and no improper ones, it nonetheless seriously
misgauged the appropriate balance. See Indep. Oil & Chem. Workers,
864 F.2d at 929. In his view, the court should have afforded
greater weight to factors such as his pro se status and his
blamelessness for the difficulty in securing appointed counsel and
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less weight to the length of the delay in moving forward with a
Rule 30 motion. Here, however, striking the good cause balance
was "susceptible of two rational (though opposite) conclusions."
United States v. Myers, 294 F.3d 203, 208 (1st Cir. 2002). In
such circumstances, "the tie-breaker often will be the standard of
review." Id. This is such a case. Given the evidence of the
petitioner's competence, the lack of any impediment to his
proceeding pro se in state court, his awareness that a Rule 30
motion had to be filed, and the length of time during which the
petitioner eschewed the filing of such a motion, we are not at
liberty to superimpose our judgment upon that of the district
court.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
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