Holmes v. Spencer , 822 F.3d 609 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-1216
ALEX HOLMES,
Petitioner, Appellant,
v.
LEWIS SPENCER, MAURA HEALEY,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Howard, Chief Judge,
Souter, Associate Justice,*
and Lipez, Circuit Judge.
Janet Hetherwick Pumphrey for appellant.
Christopher Hurld, Assistant Attorney General, with whom
Maura Healey, Attorney General of Massachusetts, was on brief, for
appellee.
May 6, 2016
* Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. Alex Holmes appeals the
dismissal of his untimely habeas corpus petition, after the
district court determined that there was no basis for equitable
tolling of the limitations period. We affirm.
I
This case has been here before, see Holmes v. Spencer,
685 F.3d 51 (1st Cir. 2012), and in presenting its background we
borrow liberally from our earlier opinion. Massachusetts charged
Holmes with first-degree murder, and on May 1, 1998, he pleaded
guilty to murder in the second degree in return for the mandatory
sentence of life imprisonment with the possibility of parole. He
claims (in one version) that he offered the plea because his trial
counsel told him that the prosecutor had proposed a private deal:
if Holmes pleaded, and if the prosecutor sought and obtained
information from him about others involved in the murder, he could
reduce his sentence by filing a motion to revise or revoke under
Massachusetts Rule of Criminal Procedure 29. According to his
testimony, he was led to believe this course of action was so
imminent that he would be brought back for resentencing in about
thirty days.
In June 1998, although he had not heard from the
prosecutor, Holmes filed a Rule 29 motion that identified no
underlying grounds and was accompanied by a similarly
uninformative affidavit stating only that, "[a]t the appropriate
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time, . . . I will request that this matter be brought forward and
heard by the sentencing judge." Both the motion and affidavit are
boilerplate forms, typewritten documents with spaces to be filled
in by hand. When the case was first before us, Holmes said that
this paperwork was given to all newly sentenced convicts on arrival
at prison. There was no evidence to this effect, however.
Holmes never requested that his Rule 29 motion be
"brought forward" for a hearing. But he claims that in June 2000,
after two years of silence since filing the motion, he learned
from a friend in the prison law library that the motion was futile:
because second-degree murder carries a mandatory sentence of life
imprisonment, the judge had no authority to "revise or revoke."
On learning this, Holmes did take action, first by
renewing correspondence with his trial counsel, who denied that
Holmes had made the plea deal solely on the prospect of filing a
successful Rule 29 motion. The lawyer maintained that he had
advised Holmes to accept a proposal to plead to the lesser offense
regardless of the prosecutor's possible request for information
because, if convicted of first-degree murder, Holmes would face
mandatory life imprisonment but without the possibility of parole.
Counsel also denied having assured Holmes that the judge would
grant a Rule 29 motion and contradicted any claim that the
prosecutor had ever committed to use information obtained from
Holmes.
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After litigating unsuccessfully in the state courts, in
2008 Holmes filed a federal habeas corpus petition alleging, among
other things, that his trial counsel was ineffective for inducing
him to plead guilty on the assurance that he would be able to
reduce his sentence through the Rule 29 process. The district
court dismissed the petition as untimely under the one-year statute
of limitations imposed by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1)(A).
On appeal, we upheld the district court's determination
that Holmes's petition was untimely. All agreed that Holmes's
conviction became final on May 1, 1998, and that (for reasons
immaterial here) certain periods between 2000 and 2007 were
excluded from the calculation. Among the disputed questions on
appeal was whether the June 1998 filing of the Rule 29 motion also
stopped AEDPA's limitations clock, under the provision that "[t]he
time during which a properly filed application for State post-
conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period
of limitation." Id. § 2244(d)(2). We concluded that the barebones
character of Holmes's Rule 29 motion failed to qualify it as
"properly filed" and thus rendered it inadequate to toll the
running of the limitations period under the terms of that
provision.
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We remanded, however, for the district court to consider
whether the running time should nonetheless be tolled on equitable
grounds. Given that equitable tolling requires a habeas petitioner
to demonstrate as necessary conditions for relief that (1) he has
been pursuing his rights diligently, and (2) some extraordinary
circumstance prevented timely filing,1 we mentioned what the
district court might look for. We said that we were troubled "by
the possibility that at the time Holmes filed his Rule 29 [m]otion,
he was led to believe that his [m]otion was in fact properly
filed." Holmes, 685 F.3d at 63. As to diligence, we reasoned
that, "[i]f Holmes did what he reasonably thought was necessary to
preserve his rights by filing a placeholder motion, based on
information he received from prison officials, then he can hardly
be faulted for not acting more 'diligently' than he did." Id. at
65. And as to the need to show extraordinary circumstances, we
raised the possibility that, "[i]f in fact prison officials
intentionally or inadvertently caused Holmes to believe that his
filing was sufficient, this might qualify as an 'extraordinary
circumstance.'" Id. In sum, we asked the district court to take
into account "the reasons for Holmes's delay in requesting a
1Holmes addresses these conditions, not as mandatory, but as
significant factors, citing Trapp v. Spencer, 479 F.3d 53 (1st
Cir. 2007). But on this point Trapp has been overtaken by Holland
v. Florida, 560 U.S. 631, 649 (2010), as most recently underscored
by Menominee Indian Tribe of Wisconsin v. United States, 136 S.
Ct. 750, 756 (2016).
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hearing on his Rule 29 [m]otion as well as whatever information
Holmes may have been given regarding the propriety of his Rule 29
[m]otion when he filed it in 1998." Id. at 67.
On remand, after taking evidence, the district court
found equitable tolling unwarranted, owing to Holmes's failure to
show either diligence or an extraordinary circumstance. Starting
from the predicate that "Holmes expected to be brought back in to
court within a month" after filing his Rule 29 motion, "[h]is
complete lack of action or effort to research his legal status at
all for two years after [its] filing" demonstrated a want of
diligence. And as for the prison's possible influence on his
behavior, the court found that Holmes "himself sought out the [Rule
29] form from the library and did not suggest anyone in the prison
gave him advice regarding it." There being no extraordinary
circumstance standing in Holmes's way, the district court
explained, "[a]fter his initial filing, over the course of the two
years before he took any action, [he] still had a wealth of
opportunities to remedy any error and to verify the appropriate
filing procedures (including opportunities to conduct his own
independent research)." (internal quotation marks omitted). The
court denied habeas relief, and Holmes appealed.
II
"We review the district court's decision to deny
equitable tolling for abuse of discretion" in applying the two
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necessary conditions already mentioned: the adequacy of the
federal habeas petitioner's demonstration of diligence in pursuing
his rights and the existence of some extraordinary circumstance
standing in the way of timely filing his petition. Holmes, 685
F.3d at 62. Here, there was no abuse of discretion in the district
court's conclusion that Holmes failed to satisfy either one.
On the matter of diligence, for two years after filing
his Rule 29 motion with no response (despite Holmes's claimed
expectation of relief within the month), he took no action; he
made no effort to research the status of the motion and did not
even try to ask his trial counsel what was going on. Holmes points
out that it was not until June 2000 that he learned of his motion's
futility. But this says nothing to explain his inaction in the
lengthening silence after filing the motion that he allegedly
expected would bring him back into court in a month.
The record equally well supports the court's conclusion
that no extraordinary circumstances extenuated the delay, and its
findings assuage the concerns that led us to remand. It was
Holmes's prior claim that prison officials handed out boilerplate
Rule 29 forms to all new inmates that led us to worry that the
prison staff may have intentionally or inadvertently caused Holmes
to believe that his mere filing was sufficient. But the district
court found that Holmes himself sought out the Rule 29 form and
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raised no suggestion that anyone in the prison gave him advice
about it.
Before us, Holmes presses three claims of extraordinary
circumstances: that he was affirmatively misled by both the
prosecutor and his trial counsel, and that he had limited access
to the prison law library. But we rejected the second and third
claims the last time he was here. See id. ("The advice given to
Holmes by his counsel, regardless of its level of alleged
incompetence, did not stand in his way and prevent the timely
filing of his habeas petition." (alterations and internal
quotation marks omitted)); id. at 63 ("If we tolled AEDPA's
limitation period every time a prisoner with no legal training had
his library time strictly regulated, § 2244(d) might as well not
exist; few prisoners are lawyers, and few prisons offer their
occupants unfettered library access."). And the record belies the
first claim, that the prosecutor led him astray. There is no
evidence of any representation by the prosecutor directly to
Holmes, and his trial counsel explained that he and the prosecutor
never spoke of anything more than a chance of later sentence
modification.
We can glean no relevant possibility in any of Holmes's
subsidiary arguments.
III
The judgment of the district court is AFFIRMED.
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