Opinion
Civil Action No. 00-10199-GAO.
December 5, 2001
MEMORANDUM AND ORDER
Respondent James Matesanz has moved to dismiss petitioner Gary Mosso's petition for writ of habeas corpus for untimeliness. In response, Mosso claims that his case presents extraordinary circumstances warranting equitable tolling of the "statute of limitations" period applicable under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), enacted in 1996. See 28 U.S.C. § 2244(d). Assuming that the AEDPA's limitations period is susceptible to equitable tolling, see Delaney v. Matesanz, 264 F.3d 7, 14 (1st Cir. 2001), Mosso's circumstances do not justify the application of the doctrine.
On June 26, 1984, a Massachusetts Superior Court jury found Mosso guilty of first degree murder, and he was sentenced to life imprisonment. On May 13, 1987, the Massachusetts Supreme Judicial Court ("SJC") affirmed Mosso's conviction. Thereafter, Mosso sought to file a motion for new trial, but experienced difficulty finding a lawyer who would pay sufficient attention to the case. Eventually, an attorney for Mosso filed such a motion on February 12, 1998, almost eleven years after the conviction became final. On March 18, 1998, the motion was denied, and on August 31, 1999, a single justice of the SJC denied Mosso leave to appeal that denial. Mosso filed this petition for a writ of habeas corpus on January 26, 2000.
Subject to some exceptions not applicable here, habeas petitioners must file their petitions within one year of the date on which their convictions became final. 28 U.S.C. § 2244(d)(1). Petitioners whose convictions became final prior to the AEDPA's enactment have a one-year grace period beginning as of the AEDPA's effective date to file their petitions. Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999). That grace period elapsed on April 24, 1997. Id. If Mosso had filed his motion for a new trial in the state court before the grace period ended he could have had the benefit of the AEDPA's statutory tolling provisions. See § 2244(d)(2). However, Mosso did not file his motion for a new trial until February, 1998, about ten months after the grace period had expired. Thus, Mosso's only chance to overcome the time bar established by § 2244(d) is the equitable tolling doctrine.
Though the First Circuit has expressly reserved the question whether the AEDPA is susceptible to equitable tolling, see Delaney, 264 F.3d at 14; Neverson v. Bissonnette, 261 F.3d 120, 127 (1st Cir. 2001), several other Circuits have permitted equitable tolling of the AEDPA's statute of limitations when the petitioner can show his habeas petition was delayed due to extreme hardship or unusual circumstances. See e.g., United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.), cert. denied, 531 U.S. 878 (2000); Sandvik v. United States, 177 F.3d 1269, 1271-72 (11th Cir. 1999); Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999); Miller v. New Jersey State Dep't of Corrs., 145 F.3d 616, 618 (3d Cir. 1998). The Third Circuit has explained the common approach taken by the courts to the question: "[E]quitable tolling is proper only when the . . . petitioner has in some extraordinary way . . . been prevented from asserting his or her rights. The petitioner must show that he or she exercised reasonable diligence in investigating and bringing [the] claims. Mere excusable neglect is not sufficient." Miller, 145 F.3d at 618-19 (citations and internal quotations omitted) (alterations in original). Therefore, assuming that the limitations rule can be equitably tolled, this Court must examine both whether there were extraordinary circumstances which prevented timely filing and whether Mosso acted diligently in light of the circumstances.
Confusion or indolence by a habeas petitioner's attorney generally has not been recognized as an extraordinary circumstance sufficient to apply equitable tolling. The Fourth, Seventh, and Eighth Circuits have all held that counsel's failure to properly understand or calculate a statute of limitations ordinarily does not warrant equitable tolling. See Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000) ("counsel's confusion about the applicable statute of limitations does not warrant equitable tolling"); Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) (counsel's mistake in interpreting the AEDPA does not justify equitable tolling); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999) (counsel's miscalculation of the statute of limitations does not justify equitable tolling). Similarly, foot-dragging by an attorney does not warrant equitable tolling. See Johnson v. McCaughtry, 265 F.3d 559, 566 (7th Cir. 2001). In sum, equitable tolling generally is not appropriate when attorney error or sluggishness is the sole reason for the petition's untimeliness. Cf., Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001) (bad advice by attorney, combined with petitioner's mental health problems might warrant equitable tolling).
Even if an attorney's inattention to a matter could qualify as an extraordinary circumstance, equitable tolling is not appropriate unless the petitioner also can show that he acted diligently after the attorney's failures came to light. See e.g. Hizbullahankhamon v. Walker, 255 F.3d 65, 67 (2d Cir. 2001) (holding that "the one-year limitations period should not be equitably tolled during the initial period petitioner spent in solitary confinement because petitioner failed to exercise reasonable diligence upon his return to standard confinement where he had access to legal materials"); United States v. Saro, 252 F.3d 449, 455 (D.C. Cir. 2001) (stating that "when a prisoner proffers no reason whatsoever for his failure to file by an already-extended deadline, additional equitable tolling is plainly unwarranted and the district court need conduct no further factfinding on the subject"); Akins v. United States, 204 F.3d 1086, 1089-90 (11th Cir. 2000) (prison lockdowns and lost legal papers did not justify equitable tolling because petitioner was not diligent during the time when legal materials were available to him). These cases indicate that once a prisoner becomes aware of his attorney's failure to act, he has an obligation to diligently seek alternate ways to advance his case.
Mosso has not identified extraordinary circumstances, nor has he acted diligently enough, to justify equitable tolling. His appointed attorney's failure to appreciate the existence or application of the limitations is not an extraordinary circumstance. As discussed above, at least two circuits have determined that an attorney's failure to recognize the importance of the statute of limitations, by itself, is insufficient to invoke equitable tolling. See Kreutzer, 231 F.3d at 463; Harris, 209 F.3d at 330. Further, Mosso's petition makes clear that he himself knew that court filings are governed by considerations of timeliness. Apparently, Mosso repeatedly expressed concerns about diligence and timeliness to his attorney during the more than thirteen years that have elapsed since the SJC affirmed Mosso's conviction. Mosso cannot claim that he was unaware of the problems posed by the continuing delay.
Mosso's case is comparable to the recent Seventh Circuit decision in Johnson, 265 F.3d. at 566. Like Mosso, the prisoner in Johnson had an attorney who refused to act expeditiously, yet the Seventh Circuit explained:
A lawyer's mistake is not an extraordinary circumstance justifying the application of equitable tolling. [The petitioner] argues that his case is unique because he was incarcerated, and therefore was unable to demand better representation from his counsel. . . . Unfortunately, many clients, whether in prison or not, must vigilantly oversee the actions of their attorneys and, if necessary, take matters into their own hands.
Id. (citations omitted). Similarly, if Mosso was frustrated by his attorney's failure to act throughout the 1990s, he was under an obligation either to seek other counsel or to file his motion pro se. His contention that a particular judge presiding in the Superior Court was hostile to pro se motions is no reason why the latter course was not available. (Indeed, filing his own motion might have been a way to provoke the appointment of attentive counsel.)
Mosso's lack of diligence is also reflected in the number of years that passed without action by him or by counsel on his behalf before the enactment of the statute of limitations. The Eleventh Circuit has held that a petitioner did not act diligently when "he had over four years before Congress adopted the AEDPA one-year period of limitation, at least seven months after he obtained the sentencing hearing transcript, and at least six months after the effective date of the AEDPA" to file a habeas petition. Akins, 204 F.3d at 1089. Mosso attempts to excuse his delay by arguing that he needed to file his state motion for a new trial before he could file this petition, and that this motion was not filed until 1998. Therefore, he argues, he could not have been expected to file a habeas petition in this court anytime prior to 1998. But that argument does nothing to explain his lack of diligence in filing the necessary motion for a new trial.
Respondent's motion to dismiss for untimeliness under 28 U.S.C. § 2244(d) is GRANTED.