Opinion
CIVIL ACTION NO. 07-11126-GAO.
October 10, 2007
OPINION AND ORDER
Thomas S. King, filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on June 7, 2007. The respondent has moved to dismiss on the basis that the petition is procedurally time-barred under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). 28 U.S.C. § 2244(d)(1). In response, the petitioner asks that this Court equitably toll the one-year period of limitation because his appellate counsel failed to inform him of the fact that his direct appeal had been completed or of the fact that the one-year limitations period imposed by AEDPA had begun to run. The petitioner asserts it was only upon his contacting the Committee for Public Counsel Services to obtain court-appointed appellate counsel that he became aware of the fact that his direct appeal had been completed.
The petitioner was convicted in the Massachusetts Superior Court on December 5, 2003 for forcible rape of a child under sixteen years of age and indecent assault and battery of a child under fourteen years of age. After transferring the petitioner's appeal sua sponte, the Supreme Judicial Court ("SJC") affirmed his conviction on September 29, 2005. Commonwealth v. King, 834 N.E.2d 1175 (Mass. 2005). The petitioner's subsequent petition for writ of certiorari was denied by the U.S. Supreme Court on February 27, 2006. King v. Massachusetts, 546 U.S. 1216 (2006).
On May 29, 2007, the petitioner, acting pro se, filed a motion for a new trial in the Superior Court, which was denied on June 8, 2007. The petitioner appealed both denials to the Massachusetts Appeals Court ("Appeals Court"), where the matter apparently still pends.
An application for a writ of habeas corpus must be filed one-year from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time seeking such review." 28 U.S.C. § 2244(d)(1)(A). The petitioner's conviction became final on February 27, 2006, the date of the U.S. Supreme Court's denial of his petition for the writ of certiorari. Accordingly, the one-year limitations period required the petitioner to file a petition for habeas corpus in this Court by February 27, 2007. Although the running of the limitations period is suspended during the time when "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending," § 2244(d)(2), that provision does not help the petitioner because the limitations period had already expired before he filed his new trial motion.
The First Circuit has recognized that equitable tolling of § 2244(d)(1)'s limitations period may be appropriate, but only in the "rare and extraordinary cases" in light of Congress's expressed preference for finality. See Trapp v. Spencer, 479 F.3d 53, 59 (1st Cir. 2007) (stating that "equitable tolling `is the exception rather than the rule; resort to its prophylaxis is deemed justified only in extraordinary circumstances'" (quotingDonovan v. Maine, 276 F.3d 87, 93 (1st Cir. 2002))). See also Lawrence v. Florida, ___ U.S. ___, 125 S.Ct. 1079, 1085 (2007) (assuming without deciding that equitable tolling is available to a habeas petitioner and stating that to be entitled to equitable tolling a petitioner would have to show "`(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing.") (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
The petitioner argues that the "extraordinary" circumstance preventing him from making a timely filing was his ignorance of the law due to his appellate counsel's lack of communication. Whether his misunderstanding of what would constitute timely filing of a habeas petition stemmed from his own unfamiliarity with the limitations period or from an error committed by his prior appellate counsel, the First Circuit has made clear that neither ground is sufficiently "extraordinary" to justify equitable tolling. See Trapp, 479 F.3d at 60 (characterizing misreading ADEPA or mis-computing its limitations period by an attorney as a routine error, which "does not constitute extraordinary circumstances warranting equitable tolling") andLattimore v. Dubois, 311 F.3d 46, 55 (1st Cir. 2002) ("Ignorance of the law alone, even for incarcerated pro se prisoners, does not excuse an untimely filing."); see also Neverson v. Farquharson, 366 F.3d 32, 44 (1st Cir. 2004) (citing Lattimore approvingly for the proposition that a pro se habeas petitioner's ignorance of AEDPA does not excuse untimely filing).
In short, the petitioner's suggested reasons for tolling the limitations period are insufficient under the precedents, and the time for filing the petition expired several months before it was actually filed. Therefore, the respondent's motion to dismiss (dkt. no. 5) is GRANTED and the petitioner's motion to assert equitable tolling (dkt. no. 7) is DENIED. The petitioner's motions to appoint counsel (dkt. no. 11) and proceed in forma pauperis (dkt. no. 13) are MOOT.
It is SO ORDERED.