276 F.3d 87 (1st Cir.

2002)

DANIEL J. DONOVAN, Petitioner, Appellant,

v.
STATE OF MAINE, Respondent, Appellee.
No. 01-1367

United States Court of Appeals For the First Circuit

Heard Dec. 6, 2001
Decided January 10, 2002

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MAINE. Hon. D. Brock Hornby, U.S. District Judge. Hon.
David M. Cohen, U.S. Magistrate Judge Darla J. Mondou for appellant.
Donald W. Macomber, Assistant Attorney General, with whom G. Steven
Rowe, Attorney General, and Charles K. Leadbetter, State Solicitor, were
on brief, for appellee.
Before Selya, Circuit Judge, Rosenn* and Cyr, Senior Circuit Judges.
SELYA, Circuit Judge.

This appeal is the latest in an ever-lengthening line of cases trailing in the wake
of Congress's enactment of a limitation period for the filing of federal habeas
petitions. See, e.g., Delaney v. Matesanz, 264 F.3d 7 (1st Cir. 2001); Neverson
v. Bissonnette, 261 F.3d 120 (1st Cir. 2001); Gaskins v. Duval, 183 F.3d 8 (1st
Cir. 1999) (per curiam). The limitation period is part of the Antiterrorism and
Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 214
(1996). The statute of limitations for federal review of state prisoners' habeas
applications is codified at 28 U.S.C. 2244(d)(1).

Under this provision, "[a] 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court." 28 U.S.C. 2244(d)(1). With exceptions not
relevant here, this one-year limitation period starts to accrue on "the date on
which the [state-court] judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review." Id. Applying this

formulation, the United States District Court for the District of Maine
dismissed as time-barred a habeas application filed by petitioner-appellant
Daniel J. Donovan, a state prisoner.1 Donovan now invites us to reinstate his
application. We decline the invitation.
I.
Background
3

On February 5, 1996, a state-court jury convicted the petitioner of gross sexual

assault. See Me. Rev. Stat. Ann. tit. 17-A, 253 (Supp. 1996). The trial judge
sentenced him to a term of twenty years (five suspended) and ordered him
incarcerated. Maine's highest court (the Law Court) affirmed the conviction on
August 8, 1997. State v. Donovan, 698 A.2d 1045, 1049 (Me. 1997).

On February 12, 1998, the petitioner delivered to state correctional authorities a

pro se petition for post-conviction relief. That petition was docketed in the state
superior court five days later. The court appointed counsel and, after an
evidentiary hearing, concluded that the petition was groundless. The petitioner
filed a notice of appeal which, under Maine law, doubled as a request for a
certificate of probable cause (CPC). See Me. Rev. Stat. Ann. tit. 15, 2131(1).
On December 22, 1999, the Law Court denied the CPC, thus terminating the
appeal.2

On September 23, 2000, the petitioner, acting pro se, delivered to prison
authorities an application seeking federal habeas relief. See 28 U.S.C. 2254.
This application was docketed in the federal district court three days later.
Citing the one-year limitation period, the court rejected it, but granted a
certificate of appealability. Id. 2253(c). This appeal ensued. Before us, the
petitioner is represented by counsel.
II.
Framing the Issues

Any discussion of timeliness must start with the Law Court's rejection of the
petitioner's direct appeal on August 8, 1997. Giving the petitioner the benefit of
the ninety-day grace period for seeking certiorari review by the United States
Supreme Court, 28 U.S.C. 2101(c), the district court ruled that the one-year
statute of limitations began to accrue on the day after this grace period ended:

November 7, 1997. The court counted forward 101 days and then stopped the
accrual process as of February 17, 1998 -- the date on which the petitioner filed
for state post-conviction relief. See id. 2244(d)(2) (tolling the limitation
period for such time as "a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment . . . is pending");
see also Neverson, 261 F.3d at 125 (explaining the operation of this tolling
provision).
7

Noting that the Law Court denied a CPC (and, thus, ended the petitioner's quest
for state post-conviction relief) on December 22, 1999, the court resumed the
count as of December 23. At that point, there were 264 days left within which
to seek federal habeas review. The court determined that this 264-day window
closed on September 11, 2000. The petitioner's federal habeas application is
deemed filed, under the prisoner mailbox rule, on September 23, 2000. See
Nara v. Frank, 264 F.3d 310, 315 (3d Cir. 2001) (explaining that "if an inmate
is confined in an institution, his notice of appeal (or federal habeas petition)
will be timely if it is deposited in the institution's internal mail system on or
before the last day for filing"); see also Houston v. Lack, 487 U.S. 266, 276
(1988); Morales-Rivera v. United States, 184 F.3d 109, 110-11 (1st Cir. 1999)
(per curiam). The petitioner did not act until after that date. Thus, the court
considered his federal habeas action time-barred (twelve days late) absent a
showing of some sufficiently excusatory set of circumstances. Discerning none,
the court dismissed the application.

The petitioner charts two routes to a potential safe harbor. First, he questions
the count itself, saying that his application for federal habeas review would
have been adjudged timely had the court given him the benefit of all excluded
periods. Second, he asseverates that equitable tolling should apply to extend the
limitation period and assigns error to the district court's rejection of that
asseveration. We follow each of these routes to its logical conclusion.
III.
Timeliness

The petitioner's argument for timeliness hinges on his contention that the
district court made three separate computational errors. First, the petitioner
maintains that he delivered his state petition for post-conviction review to
prison authorities on February 12, 1998, and that under the prisoner mailbox
rule, the district court should have given him the benefit of the five days that
elapsed between that date and the date on which his petition was docketed in

the state superior court. Second, he attempts to invoke Federal Rule of Civil
Procedure 6(e), arguing that, inasmuch as he received notice of the denial of his
direct appeal by mail, the district court should have given him the benefit of
three additional days in calculating the expiration of the time for seeking
certiorari review in the United States Supreme Court. Finally, he asserts that his
petition for state post-conviction review was pending until he received notice of
the denial of the CPC, and that the district court should have given him the
benefit of the five days that elapsed from the effective date of the Law Court's
order (December 22, 1999) to the date of receipt of notice (December 27,
1999). Since no two of these contentions yield the twelve days needed to bring
the petitioner's federal habeas application within the limitation period, the
petitioner must prevail on all of them to succeed on his timeliness initiative.
10

We need not tarry. Because we find the petitioner's second and third
contentions meritless, his timeliness argument fails. Consequently, it is
unnecessary for us to express an opinion on the applicability vel non of the
prisoner mailbox rule to a state-court petition for post-conviction relief.3
A. Additional Time due to Mailing

11

Citing Federal Rule of Civil Procedure 6(e), the petitioner theorizes that three
days should be added to the one-year deadline for filing his federal habeas
application.4 His thinking runs along the following lines. As the district court
recognized, section 2244(d)(1) provides for tolling during the ninety-day period
in which the petitioner would have been allowed to ask the United States
Supreme Court to grant certiorari to review the Law Court's denial of his direct
appeal (the fact that the petitioner did not seek certiorari is immaterial). The
petitioner concludes that this ninety-day period did not expire on November 6,
1997 (as determined by the district court), but, rather, on November 9, 1997. In
support of this conclusion, he notes that notice of the adverse judgment was
mailed to him and suggests that, due to this circumstance, the habeas court
should have invoked Rule 6(e) and waited three days before starting to count
the ninety-day period. The respondent counters that this claim was not raised
below and urges us to hold that it has been forfeited. See, e.g., Clauson v.
Smith, 823 F.2d 660, 666 (1st Cir. 1987).

12

Because the forfeiture question is murky, we choose to address the claim headon. We recently have recognized "[t]he prevailing view . . . that Rule 6(e) does
not apply to statutes of limitation." Berman v. United States, 264 F.3d 16, 19
(1st Cir. 2001). This is because Rule 6(e), in terms, "is centrally concerned with
what a 'party' does and a 'party' operates within the framework of an existing
case. By contrast, statutes of limitation . . . govern the time for commencing an

action." Id. That rationale is dispositive here.

13

28 U.S.C. 2101(d), in conjunction with Supreme Court Rule 13(1), merely

establishes a ninety-day interval within which an aggrieved litigant may file a
petition for certiorari following entry of a judgment of a state court of last
resort.5 Neither the certiorari statute nor the implementing Supreme Court rule
triggers the prophylaxis of Rule 6(e) because neither of them, in the language
of that rule, requires a party to take any action "within a prescribed period of
time after the service of a notice" upon the party. Rather, both unambiguously
require filing within ninety days after entry of a judgment. Given this structure,
Rule 6(e) cannot serve to enlarge the time period for filing a petition for
certiorari following entry of a judgment affirming a criminal conviction. See 1
James Wm. Moore, Moore's Federal Practice 6.05[3] at 6-35 (3d ed. 1999)
(explaining that Rule 6(e) does not apply to time periods that begin with the
filing in court of a judgment or an order); see also Flint v. Howard, 464 F.2d
1084, 1087 (1st Cir. 1972) (per curiam). Consequently, there is no basis for
additional tolling.
B.
Pendency

14

The tolling provision contained in 28 U.S.C. 2244(d)(2) speaks in terms of

periods of time during which an application for state post-conviction review is
"pending." The petitioner argues that his state-court petition for post-conviction
review was "pending" within the meaning of this statute until his counsel
received notice that the Law Court had denied the application for a CPC.

15

This argument is refuted by the unambiguous text of the Maine post-conviction

review statute. That statute specifically provides that "[d]enial" of a CPC
concludes the proceeding. Me. Rev. Stat. Ann. tit. 15, 2131(1) (stating
explicitly that denial "constitutes finality"). Thus, the petition for postconviction relief was pending only until the Law Court denied the application
for a CPC. This occurred when the order of denial was entered on the Law
Court's docket, i.e., on December 22, 1997. See supra note 2.

16

We think that this construction is compelled by the Maine statute. Moreover,

this construction is a natural one. Courts seem uniformly to have assumed,
without extended discussion, that the date of judgment, rather than the date that
notice of judgment is received, controls for computational purposes under 28
U.S.C. 2244(d)(2). E.g., Adams v. LeMaster, 223 F.3d 1177, 1180 (10th Cir.

2000); Williams v. Cain, 217 F.3d 303, 309-11 (5th Cir. 2000). Confirming this
intuition, the Second Circuit recently addressed the problem and held, in the
context of a New York statute that is much more opaque than its Maine
counterpart, that the date of judgment governs.6 Geraci v. Senkowski, 211 F.3d
6, 9 (2d Cir. 2000). Hence, the district court did not err in resuming the count
on December 23, 1997.
IV. Equitable Tolling
17

The petitioner's fallback position is that the district court should have applied
the doctrine of equitable tolling to permit his federal habeas petition to proceed.
The district court entertained this possibility but rejected it on the merits. We
review that ruling for abuse of discretion, mindful of the "highly deferential"
nature of our oversight. Delaney, 264 F.3d at 13-14.

18

There is, of course, a threshold question: whether, as a matter of law, equitable

tolling is available, even in a factually appropriate case, in respect to section
2244(d)(1). This question is not free from doubt. See id. at 14 (discussing the
matter and declining to resolve it). Like Delaney, the case at hand does not
require us to decide whether a federal court ever can apply equitable tolling to
ameliorate the AEDPA's one-year limitation period. Here, the district court
squarely confronted the petitioner's equitable tolling claim and rejected it on
the facts. Assuming, for argument's sake, that equitable tolling is available in
theory, the record compels the conclusion that the district court did not abuse its
discretion in withholding that anodyne.

19

The party who seeks to invoke equitable tolling bears the devoir of persuasion
and must, therefore, establish a compelling basis for awarding such relief. Id.
We have made it pellucid "that equitable tolling, if available at all, is the
exception rather than the rule; [and that] resort to its prophylaxis is deemed
justified only in extraordinary circumstances." Id. The district court found that
the petitioner had not demonstrated the existence of extraordinary
circumstances such as would warrant equitable tolling. We test that finding.

20

The petitioner premises his claim of equitable tolling on a delay in obtaining

the transcript of the evidentiary hearing held in the state superior court in
connection with his state petition for post-conviction review. That delay was
unfortunate -- but largely beside the point. After all, the district court explicitly
found that the petitioner did not need that transcript in order to file a federal
habeas application and this finding has deep roots in the record.

21

The habeas application merely realleged two grounds asserted in pleadings

previously filed on the petitioner's behalf in the state post-conviction
proceedings. All that the petitioner had to do to place those averments in issue
in the federal court proceeding was to "set forth in summary form the facts
supporting each of the grounds." Rules Governing Section 2254 Cases in the
United States District Courts, 4.2(c). In addition, the petitioner had attended the
post-conviction evidentiary hearing and, thus, knew what had transpired at that
session. Given the lack of any need for particularity, citation to the transcript
was unnecessary in order to allege the grounds for federal habeas relief. It
follows that the state court's delay in furnishing the petitioner with the
transcript did not establish a basis for equitable tolling. See Gassler v. Bruton,
255 F.3d 492, 495 (8th Cir. 2001) (rejecting equitable tolling argument based
on alleged delay in receipt of a transcript); Brown v. Cain, 112 F. Supp. 2d 585,
587 (E.D. La. 2000) (holding transcript unnecessary to prepare habeas petition);
Fadayiro v. United States, 30 F. Supp. 2d 772, 779-80 (D.N.J. 1998) (holding
delay in receiving transcripts not sufficiently extraordinary to justify application
of equitable tolling); United States v. Van Poyck, 980 F. Supp. 1108, 1110-11
(C.D. Cal. 1997) (holding delay in receipt of transcript not an "extraordinary
circumstance[]" sufficient to justify equitable tolling).

22

We need not cite book and verse in connection with the district court's finding.
What matters is that the court painstakingly weighed and analyzed the totality
of the circumstances (including the "delayed transcript" claim) and reached a
rational -- though not inevitable -- conclusion. Given the court's detailed
explanation, there is no principled way in which we can disturb its considered
refusal to apply the doctrine of equitable tolling to resurrect the petitioner's
time-barred habeas application. Cf. Irwin v. Dep't of Veterans Affairs, 498 U.S.
89, 96 (1990) (explaining that equitable tolling "do[es] not extend to what is at
best a garden variety claim of excusable neglect").

23

If more were needed -- and we doubt that it is -- the district court also found
that the petitioner had received his copy of the evidentiary hearing transcript no
later than July 24, 2000. At that point, he had more than seven weeks left in the
limitation period within which to prepare and file his federal habeas
application. We agree with the lower court that the petitioner has not adequately
shown why that interval was insufficient to permit timely filing.

24

The petitioner's assertion that his pro se status somehow entitles him to
equitable tolling is wide of the mark. While pro se pleadings are to be liberally
construed, see, e.g., Johnson v. Rodriguez, 943 F.2d 104, 107 (1st Cir. 1991),
the policy of liberal construction cannot plausibly justify a party's failure to file

a habeas petition on time. Indeed, we rejected a virtually identical argument in

Delaney, explaining that, "[i]n the context of habeas claims, courts have been
loath to excuse late filings simply because a pro se prisoner misreads the law."
264 F.3d at 15 (citing representative cases).
25

To sum up, the district court found that the petitioner had no compelling need
for the hearing transcript in order to prepare his federal habeas application; and
that, in all events, the petitioner dawdled for nearly two months after receiving
it before he filed his application. In view of these supportable findings, we
discern no abuse of discretion in the court's ultimate conclusion that the
petitioner did not establish the kind of extraordinary circumstances that are
necessary to justify equitable tolling. After all, "equitable tolling is strong
medicine, not profligately to be dispensed," id., and the trial court's judgment
about so fact bound a matter is entitled to considerable respect.
V. Conclusion

26

We need go no further. As the district court found, the habeas petition was
time-barred and equitable tolling was not available to salvage it. The court,
therefore, properly terminated the proceeding.

27

Affirmed.

Notes:
*

Of the Third Circuit, sitting by designation.

The dismissal occurred after the district judge accepted and largely adopted the
detailed report and recommendation of a magistrate judge. For simplicity's
sake, we do not distinguish between the two judicial officers. Rather, we take
an institutional view and refer to the findings and determinations below as those
of the district court.

The Law Court's order was dated December 20, 1999, but not entered on the
court's docket until two days later. In our view, the latter date controls.

Courts have disagreed about whether this is a question of state or federal law.
Compare Adams v. LeMaster, 223 F.3d 1177, 1181 (10th Cir. 2000)
(concluding that state law governs and, thus, that the prisoner mailbox rule
ought not to be applied to a state-court petition for post-conviction relief when
determining tolling under 28 U.S.C. 2244(d)(2)), with Saffold v. Newland,

250 F.3d 1262, 1268-69 (9th Cir. 2001) (holding to the contrary), cert. granted,
122 S. Ct. 393 (Oct. 15, 2001). We need not decide that question here. We note
in passing, however, that to the extent (if at all) this is a question of state law,
the Law Court has reserved decision on whether to adopt the prisoner mailbox
rule. See Finch v. State, 736 A.2d 1043, 1043 n.1 (Me. 1999).
4

The rule provides:

Whenever a party has the right or is required to do some act or take some
proceedings within a prescribed period after the service of a notice or other
paper upon the party and the notice or paper is served upon the party by mail, 3
days shall be added to the prescribed period.
Fed. R. Civ. P. 6(e) (2000) (amended Dec. 1, 2001).

The applicable statute provides:

The time for appeal or application for a writ of certiorari to review the
judgment of a State court in a criminal case shall be as prescribed by rules of
the Supreme Court.
28 U.S.C. 2101(d). The applicable court rule is to the same effect:
. . . [A] petition for a writ of certiorari to review a judgment in any case, civil or
criminal, entered by a state court of last resort is timely when it is filed with the
Clerk of this Court within 90 days after entry of the judgment.
Sup. Ct. R. 13(1).

The lone authority relied upon by the petition for a contrary reading of section
2244(d)(2) is Bennett v. Artuz, 199 F.3d 116 (2d Cir. 1999). That decision, at
first blush, contains language supportive of the petitioner's position, see id. at
120, but that language was clarified by the Second Circuit in Geraci v.
Senkowski, 211 F.3d 6, 9 (2d Cir. 2000). As clarified, Bennett does not advance
the petitioner's cause. Indeed, the Geraci court rejected an argument virtually
identical to the one made by the present petitioner. See id.