Holmes v. Spencer

United States Court of Appeals For the First Circuit

No. 09-2431 ALEX HOLMES, Petitioner, Appellant, v. LEWIS SPENCER, MARTHA COAKLEY, Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Rya W. Zobel, U.S. District Judge]

Before Torruella, Lipez, and Howard, Circuit Judges.

Janet Hetherwick Pumphrey for petitioner. Anne M. Thomas, Assistant Attorney General, Criminal Bureau, with whom Martha Coakley, Attorney General, was on brief for respondents.

July 16, 2012 TORRUELLA, Circuit Judge. Petitioner-Appellant Alex

Holmes ("Holmes") filed a federal petition for a writ of habeas

corpus to challenge his conviction and sentence for murder in

Massachusetts. The district court dismissed Holmes's petition as

untimely under the Antiterrorism and Effective Death Penalty Act's

("AEDPA") one-year statute of limitations. 28 U.S.C. § 2244 (d).

Holmes appealed the dismissal of his petition. We agree with the

district court that Holmes's petition was not timely filed under

AEDPA. However, we remand to the district court to consider

whether the statute of limitations should be equitably tolled.

I. Background The Commonwealth of Massachusetts charged Holmes and two

other defendants with first-degree murder in the death of Todd

Richardson ("Richardson"). Holmes pled not guilty to the first-

degree murder charge. However, on May 1, 1998, Holmes pled guilty

to second-degree murder. The court sentenced Holmes to life in

prison, the mandatory sentence in Massachusetts for second-degree

murder. See Mass. Gen. Laws ch. 265, § 2 . Holmes claims that he

pled guilty because his trial counsel, Stewart Graham, Jr.

("Graham"), told him that the prosecutor had proposed a deal: if

Holmes pled guilty to second-degree murder and if the prosecutor

decided that she wanted information from Holmes regarding others

who may have been involved in Richardson's killing, Holmes would be -2- able to reduce his sentence by filing a Motion to Revise or Revoke

under Mass. R. Crim. P. 29 ("Rule 29").

After his sentencing, Holmes was sent to the

Massachusetts Correctional Institution at Concord, MA ("MCI-

Concord"). While there, on June 17, 1998, Holmes filed a Motion to

Revise or Revoke Sentence pursuant to Rule 29 (the "Rule 29

Motion"). The Rule 29 Motion did not identify any underlying

grounds; instead, it simply stated that "the defendant attaches an

Affidavit in Support of this motion and reserves the right to file

a supplemental affidavit, through appointed counsel, when a court

hearing is requested." The Affidavit that Holmes submitted with

his Rule 29 Motion was similarly lacking in detail. The Affidavit

simply stated that Holmes wished "to preserve any and all rights

due me under the Massachusetts Rules of Criminal Procedure." It

also stated, "[a]t the appropriate time, through counsel or upon my

own motion, I will request that this matter be brought forward and

heard by the sentencing judge."

Both the Motion and the accompanying Affidavit appear to

be boilerplate forms. Both are typewritten documents with spaces

in which information is to be filled in by hand. The Motion

contains spaces in which Holmes hand-wrote his name, the docket

number, the court in which he was sentenced, the date of sentence,

and the date he filed the Motion itself. The Affidavit contains

spaces for the same information plus the underlying charge and the -3- sentence. The record does not reflect who gave the forms to

Holmes, what information was given to Holmes, or what information

was even available to him regarding the forms. Holmes's Reply

Brief to this Court states that in 1998, all newly-sentenced

prisoners were given these forms when they arrived at MCI-Concord;

however, there is no evidence in the record, other than the forms

themselves, regarding this issue.

Holmes never requested that the Rule 29 Motion be brought

forward for a hearing in front of the sentencing judge. Moreover,

as it turns out, Holmes's Rule 29 Motion was futile. Because

second-degree murder carries a mandatory life sentence, the trial

judge had no discretion in sentencing, and thus had no authority to

revise or revoke Holmes's sentence. See Commonwealth v. Cowan, 664

N.E.2d 425, 427 (Mass. 1996). Similarly, Holmes's anticipated

post-sentencing cooperation with the government could not serve as

a basis for his Rule 29 Motion. See Commonwealth v. Barclay, 676

N.E.2d 1127, 1129 (Mass. 1997) (observing that Massachusetts law

prohibits the consideration of post-sentencing conduct when ruling

on a motion to revise or revoke).

Holmes claims that in June of 2000, through his research

in the prison law library,1 he learned of the futility of his Rule

1 It is not clear which prison Holmes was in when he learned this. He is presently serving his life sentence at the Massachusetts Correctional Institution at Cedar Junction ("MCI-Cedar Junction"), but the record does not indicate when Holmes was transferred there from MCI-Concord.

-4- 29 Motion. On August 14, 2000, Holmes filed pro se a separate

motion to withdraw his guilty plea and obtain a new trial, alleging

that Graham was constitutionally ineffective. See Mass. R. Crim.

P. 30 ("Rule 30"). Holmes claims that his discovery of the

futility of his Rule 29 Motion is what prompted him to file his

Rule 30 Motion.

On May 11, 2003, Graham sent a letter to Holmes in

response to letters Holmes had sent him on December 31, 2002 and

April 28, 2003. Graham confirmed that during plea negotiations,

Holmes and Graham discussed with the prosecutor the possibility of

filing a motion to revise and revoke if the prosecutor decided she

wanted information from Holmes. However, Graham denied that Holmes

accepted the plea deal solely on the basis of this possibility;

rather, Graham said he had advised Holmes to accept the plea to

second-degree murder regardless of whether the prosecutor wanted

information because Holmes was "facing a significant risk of a

first degree murder conviction." In addition, Graham said that he

had been "neither optimistic nor pessimistic regarding the revise

and revoke," and that he had "reported it to [Holmes] as a

possibility mentioned by the prosecutor."

Holmes wrote back to Graham on June 14, 2003, insisting

that Graham had "assured" him that the judge would grant the motion

to revise and revoke if the prosecutor wanted information from

Holmes regarding Nakia Mitchell ("Mitchell"), another possible -5- suspect in Richardson's killing. In response, on August 25, 2003,

Graham denied that he had "assured" Holmes that the judge would

grant a motion to revise and revoke. Graham also reiterated that

there was never any commitment from the prosecutor to use Holmes's

information about Mitchell. "Since she [the prosecutor] decided

not to proceed," Graham wrote, "there was not and is not any

possibility of filing [a motion to revise or revoke]."

"Therefore," Graham continued, "whether a judge would or would not

have allowed such a motion is a moot point."

On August 4, 2004, Holmes filed an Amended Motion to

Withdraw Guilty Plea and for a New Trial. This amended Rule 30

Motion included the claim that Holmes would not have pled guilty

had he known that the Rule 29 Motion would have been futile. After

successive denials of the Rule 30 motion by the trial court, the

intermediate appellate court, and the Supreme Judicial Court

("SJC"), the SJC denied Holmes's final petition for reconsideration

on September 11, 2007.

On April 9, 2008, Holmes filed a pro se petition for a

writ of habeas corpus in the U.S. District Court for the District

of Massachusetts pursuant to 28 U.S.C. § 2254 . Holmes raised four

claims of ineffective assistance of counsel. Ground One of

Holmes's petition was that he was induced to plead guilty based on

Graham's faulty assurance that Holmes would be able to reduce his

sentence via a Rule 29 motion. Grounds Two through Four raised -6- various complaints about alleged deficiencies in Graham's pre-trial

strategy and his investigation of the case. Respondents Luis

Spencer, Superintendent of MCI-Cedar Junction, and Martha Coakley,

Attorney General of Massachusetts (collectively, "Respondents"),

moved to dismiss Holmes's petition on the ground that it was

untimely under AEDPA.

AEDPA imposes a one-year statute of limitations on

federal habeas petitions filed by state prisoners. See 28 U.S.C.

§ 2244 (d)(1). That one-year period commences when the petitioner's

conviction becomes final (or when the petitioner could have

reasonably discovered the factual basis for his habeas claim,

whichever occurs later), but excludes, inter alia, any time during

which he has an application for collateral review pending before

the state courts. Id. at § 2244(d)(1), (2). Respondents contended

that Holmes's Rule 30 motion did not save Holmes's habeas corpus

petition from untimeliness because Holmes filed the Rule 30 motion

after AEDPA's one-year limitations period had already expired.

In opposition to Respondents' motion, Holmes argued that

his Rule 29 Motion, filed on June 17, 1998 (less than two months

after his guilty plea), tolled the AEDPA statute of limitations.

Holmes also argued that the statute of limitations should be

equitably tolled because the state trial court never ruled on his

Rule 29 Motion. In response to Holmes's opposition, Respondents

filed a Reply Memorandum in support of their motion to dismiss.

-7- Respondents argued that the Rule 29 Motion did not toll the statute

of limitations. In support of this position, Respondents cited to

cases from the District of Massachusetts that held that a Rule 29

motion was not a motion seeking "post-conviction or collateral

review" as required by 28 U.S.C. § 2244 (d)(2). See, e.g., Phillips

v. Spencer, 477 F. Supp. 2d 306, 310 (D. Mass. 2007). Respondents

also argued that the statute of limitations should not be equitably

tolled.

On October 1, 2008, the district court denied

Respondents' motion to dismiss. The court noted that under 28

U.S.C. § 2244 (d)(1)(D), the one-year statute of limitations under

AEDPA may begin to run from "the date on which the factual

predicate of the claim or claims presented could have been

discovered through the exercise of due diligence." The court held

that there was a factual question regarding when Holmes could have

discovered Graham's alleged mistake regarding the Rule 29 Motion.

The court then held that dismissal would be inappropriate until

this question was resolved. The court did not address Holmes's

Rule 29 or equitable tolling arguments.

Respondents filed a Renewed Motion to Dismiss on

February 6, 2009. First, Respondents contended that Holmes's

attempt to rely on § 2244(d)(1)(D) to toll the statute of

limitations only applied to Ground One of his petition, which was

the claim that Graham provided ineffective assistance by suggesting -8- the Rule 29 Motion. Respondents argued that Grounds Two through

Four, which all related to complaints about Graham's assistance

before the plea agreement, were time-barred regardless of whether

Ground One was timely or not. As to the timeliness of Ground One,

Respondents argued that Holmes's discovery of Graham's alleged

error regarding the possibility of a Rule 29 motion was not the

"factual predicate" giving rise to Holmes's claim for the purposes

of § 2244(d)(1)(D); rather, Respondents argued that the alleged

deal with the prosecutor was the factual predicate for the claim.

Therefore, Respondents argued, since Holmes knew of the deal as of

May 1, 1998 (the date he pled guilty), the statute of limitations

would still have expired on May 1, 1999.

Respondents further argued that even if the impossibility

of the Rule 29 motion was the "factual predicate" for § 2244(d)

(1)(D) purposes, Holmes failed to show that he could not have

"discovered" this fact "through the exercise of due diligence"

before the summer of 2000. Respondents noted that when Holmes

filed his Rule 29 motion on June 17, 1998, he stated that at some

later date he would request a hearing in front of the sentencing

judge. However, Holmes never requested a hearing and never

explained why he did not do so. Respondents argued that had Holmes

requested a hearing, he would have learned that his motion was

futile. Moreover, Respondents contended that Holmes did not

adequately explain why it took so long to discover the -9- impossibility of a Rule 29 Motion through his own research in the

library.

Holmes, now represented by counsel, filed an Opposition

to the Renewed Motion to Dismiss on March 5, 2009. In his

Opposition, Holmes argued that the fact of the impossibility of the

Rule 29 Motion was the "factual predicate" for his claim, and

argued that he could not have discovered this fact until the summer

of 2000. Holmes also argued that the statute of limitations should

be equitably tolled due to Graham's alleged ineffective assistance

and because Holmes was trying to pursue his claims while

incarcerated. Finally, Holmes argued that as long as at least one

claim in his habeas corpus petition was timely, his entire petition

was timely. Holmes did not renew his argument that the Rule 29

Motion tolled the statute of limitations.

The district court granted the Renewed Motion to Dismiss

on September 16, 2009. The court held that Holmes failed to show

that his claim regarding his discovery of Graham's error accrued in

2000. The court also held that Graham's claims under Grounds Two

through Four were time-barred. The court did not reach the

question of whether the timeliness of the petition should be

determined on a claim-by-claim basis. The district court granted

a Certificate of Appealability ("COA"), see 28 U.S.C. § 2253 (c),

and this appeal followed.

-10- After Holmes filed his appeal, this Court issued its

decision in Kholi v. Wall, in which we concluded "that the filing

of a state post-conviction motion to reduce an imposed sentence, in

the nature of a plea for discretionary leniency, tolls the AEDPA's

limitations period." 582 F.3d 147, 149 (1st Cir. 2009).

Therefore, this Court ordered the appointment of counsel for Holmes

and directed the parties to brief the question of whether, under

Kholi, Holmes's Rule 29 Motion tolled the limitations period.

Later, while this case was still pending, the Supreme Court upheld

this court's decision in Kholi. See Wall v. Kholi, 131 S. Ct. 1278

(2011).

II. Discussion For purposes of this appeal, the parties agree that

Holmes's conviction became final on May 1, 1998. They also agree

that his Rule 30 Motion qualified as an application for collateral

review, thereby excluding the interval between August 14, 2000 and

September 11, 2007 from AEDPA's one-year calculus.2 See 28 U.S.C.

2 For the reader's convenience, we set forth here a chronology of the relevant dates:

May 1, 1998: Petitioner pleads guilty and is sentenced to life imprisonment.

June 17, 1998: Rule 29 motion to revise or revoke filed in the trial court.

August 14, 2000: Rule 30 motion to withdraw guilty plea and obtain a new trial filed in the trial court.

September 11, 2007: After a succession of timely appeals, the SJC -11- § 2244(d)(1), (2). The timeliness of Holmes's federal habeas

petition, then, hinges on whether there are any grounds for

excluding at least twenty-two of the remaining thirty-four

unaccounted months between May 1, 1998 and April 9, 2008. Holmes

proposes two such bases under the provisions of AEDPA itself: (1)

that the limitation period did not even begin to run until August

of 2000, when he discovered the purported factual basis for his

primary habeas claim, viz., that his trial attorney's Rule 29

advice was erroneous; and (2) that the statute of limitations was

tolled while his Rule 29 Motion was pending. In the alternative,

Holmes argues that the statute of limitations should be equitably

tolled. We analyze these arguments in turn.

A. Scope of Issues on Appeal Before proceeding to the substance of this case, we first

clarify which issues are properly before this Court. Under 28

U.S.C. § 2253 (c), there can be no appeal from a final order in a

federal habeas corpus proceeding challenging a state court action

unless either the district court judge or a judge on a Court of

Appeals issues a COA. The COA must identify the issues to be

appealed. 28 U.S.C. § 2253 (c)(3).3 "The general rule is that 'a

denies the final petition for reconsideration of the Rule 30 motion, thereby exhausting the petitioner's state remedies.

April 9, 2008: Petition for federal habeas relief filed. 3 "[W]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying -12- court of appeals should not consider the merits of an issue

advanced by a habeas petitioner unless a COA first has been

obtained with respect to that issue.'" Peralta v. United States, 597 F.3d 74, 83 (1st Cir. 2010) (emphasis in original) (quoting Bui

v. DiPaolo, 170 F.3d 232, 237 (1st Cir. 1999)). However, this

Court has the discretion to expand the scope of the COA sua sponte,

particularly for an issue the parties have adequately briefed. See

Joost v. United States, 226 F. App'x 12, 12 (1st Cir. 2007)

(expanding the scope of the COA sua sponte to affirm on the basis

of the merits of a claim where the COA was initially granted solely

to determine the timeliness of petitioner's habeas petition)

(citing Villot v. Varner, 373 F.3d 327 , 337 n.13 (3d Cir. 2004)).

Here, the district court granted a COA identifying two

issues. The first is "whether the statutory impossibility of the

[Rule 29 Motion] should be decisive" of the timeliness question.

Thus, the question of whether Holmes's discovery of Graham's

alleged error in 2000 is a "factual predicate" for the purposes of

the AEDPA statute of limitations is properly before this Court.

The second issue on which the district court granted a COA is

constitutional claim, a COA should issue (and an appeal of the district court's order may be taken) if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 478 (2000).

-13- whether the timeliness of Holmes's petition should be determined on

a claim-by-claim basis.

Furthermore, as noted above, after Holmes filed his

appeal, this Court directed the parties to brief the question of

whether, under Kholi, the Rule 29 Motion tolled the limitations

period. Thus, that issue is properly before this Court, even

though it was not mentioned in the COA. Finally, the question of

whether a statute of limitations should be equitably tolled is

fundamentally intertwined with the question of timeliness. See,

e.g., Sistrunk v. Rozum, 674 F.3d 181, 184, 189-92 (3d Cir. 2012)

(considering a habeas petitioner's equitable tolling argument where

the COA limited review to "whether [the petitioner's] habeas

petition was timely filed according to 28 U.S.C. § 2244 (d)(1)(D)");

Humphreys v. United States, 238 F. App'x 134, 138 (6th Cir. 2007)

(suggesting that several courts have held that the use of the words

"equitable tolling" in the COA does not preclude the consideration

of a habeas petitioner's timeliness arguments). Thus, this Court

is free to consider whether the AEDPA statute of limitations should

be tolled in this case.

B. Application of Statute of Limitations "Where, as here, the district court has denied a habeas

petition on a procedural ground without taking evidence, we afford

de novo review." Wood v. Spencer, 487 F.3d 1, 3 (1st Cir. 2007).

-14- 1. Discovery of Factual Predicate Under 28 U.S.C. § 2244 (d)(1), the statute of limitations

runs from the "latest" of several specified dates. One such date

is "the date on which the factual predicate of the [habeas claim]

could have been discovered through the exercise of due diligence."

Id. § 2244(d)(1)(D). Holmes argues that the factual predicate for

his primary ineffective assistance of counsel claim is the "fact"

that the alleged deal with the prosecutor regarding the Rule 29

Motion was precluded as a matter of law. Further, he argues that

he could not have discovered this fact through the exercise of due

diligence until the summer of 2000. Thus, Holmes argues, the

statute of limitations on his habeas claim did not even start to

run until he filed his Rule 30 Motion in August of 2000.

However, Holmes's argument misconstrues the language of

the statute. We have interpreted § 2244(d)(1)(D)'s reference to

the phrase "factual predicate" to mean "evidentiary facts or

events[,] and not court rulings or legal consequences of the

facts." Brackett v. United States, 270 F.3d 60, 69 (1st Cir.

2001), abrogated on other grounds by Johnson v. United States, 544

U.S. 295 (2005). Here, Holmes claims that Graham's strategy to

enter a guilty plea and file a Rule 29 motion was constitutionally

deficient. The principal facts upon which this claim is predicated

-- that Holmes originally intended to go to trial; that his

attorney instead convinced him to plead guilty; and that this -15- course of action was influenced by his expectation of a subsequent

sentence reduction -- were known, at the latest, by the date of his

conviction on May 1, 1998. That this advice may have been flawed,

and could potentially form the foundation for an ineffective

assistance claim, are the legal consequences of those facts --

matters of law that are beyond the purview of § 2244(d)(1)(D). See

Brackett, 270 F.3d at 69 ; Murphy v. Strack, 9 F. App'x 71, 73 (2d

Cir. 2001) (summary order) ("The factual predicates of [the

petitioner's] claims are that he testified at his trial and that

his attorney told him he was required to testify. . . . What [the

petitioner] contends he did not know prior to 1999 was not a

factual matter but rather a matter of law, i.e., his constitutional

right not to testify. The latter is beyond the scope of § 2244(d)

(1)(D)."); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000)

("Unlike some state systems, which start the [limitation period]

only when a party knows (or should recognize) that a legal wrong

has been done, [§ 2244(d)(1)(D)] use[s] objective indicators as

triggers. [. . .] Time begins when the prisoner knows (or through

diligence could discover) the important facts, not when the

prisoner recognizes their legal significance."). Thus, in all

events, Holmes's discovery that his attorney's advice was allegedly

misleading, while unfortunate, is ultimately unavailing under the

language of § 2244(d)(1)(D).

-16- 2. Rule 29 Motion As discussed above, we reject Holmes's argument that the

one-year clock began to run in August of 2000. The statute of

limitations thus began to run on May 1, 1998, the date Holmes's

conviction became final. However, under 28 U.S.C. § 2244 (d)(2),

"[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 under [section 2244(d)]" (emphasis added).

Holmes argues that his Rule 29 Motion, like his Rule 30 Motion, was

an application for collateral review, and therefore tolled the

limitation period while the Rule 29 motion was pending.4 The threshold issue is whether a Rule 29 motion comes

within the scope of AEDPA's tolling provision at all -- in other

words, whether it should be characterized as an "application for

State post-conviction or other collateral review." See id. At the

time when the district court dismissed the habeas petition, the

4 Holmes made this argument in the district court in opposition to his original motion to dismiss, but elected not to assert it in reply to the Commonwealth's renewed motion to dismiss. While it could be argued that Holmes forfeited this claim, we do not believe the circumstances warrant a finding of forfeiture here. In response to Holmes's original Rule 29 argument, Respondents cited case law from the District of Massachusetts holding that a Rule 29 motion is not an "application for State post-conviction or other collateral review" within the meaning of § 2244(d)(2). Those cases were good law at the time. This Court revived the Rule 29 issue when it sua sponte ordered the parties to address the effect of Kholi.

-17- prevailing precedent suggested that a motion to revise or revoke

was not the type of post-conviction application for review

envisioned by § 2244(d)(2), and thus would not exclude any time

from the statutory limitations period. See, e.g., Phillips, 477 F.

Supp. 2d at 306 (holding that a Rule 29 motion is not a "collateral

attack" under § 2244(d)(2) because it is part and parcel of the

underlying proceeding in which the defendant was sentenced); Ledoux

v. Dennehy, 327 F. Supp. 2d 97, 99-100 (D. Mass. 2004); Bland v.

Hall, No. 00-12020-RWZ, 2002 WL 989532 , at *2 (D. Mass. May 14,

2002). Within a week of the district court's order, however, we

issued Kholi v. Wall, 582 F.3d 147 (1st Cir. 2009), aff'd, Wall v.

Kholi, 131 S. Ct. 1278 (2011). In Kholi we held that "the filing

of a state post-conviction motion to reduce an imposed sentence, in

the nature of a plea for discretionary leniency, tolls the AEDPA's

limitations period." 582 F.3d at 149 ; see also Wall, 131 S. Ct. at

1287 ("[A] motion to reduce sentence under Rhode Island law is an

application for 'collateral review' that triggers AEDPA's tolling

provision.").

Kholi concerned a provision of Rhode Island procedural

law, Rhode Island Superior Court Rule of Criminal Procedure 35(a).

See Kholi, 582 F.3d at 151 . However, we see no reason why its

holding should not apply with equal force here. Indeed, we can

discern no basis (nor do the parties supply one) for meaningfully -18- distinguishing the Massachusetts rule from the Rhode Island rule.5

Accordingly, we conclude that a motion to revise or revoke sentence

under Massachusetts Rule of Criminal Procedure 29(a) constitutes a

request for "State post-conviction or other collateral review"

within the meaning of AEDPA. See 28 U.S.C. § 2244 (d)(2).

Thus, Holmes's Rule 29 Motion was a request for "State

post-conviction or other collateral review" within the meaning of

AEDPA. To toll the statute of limitations, however, the motion

must have been "properly filed." Id. In order to determine

whether the motion was properly filed, we must look to

Massachusetts law. See Artuz v. Bennett, 531 U.S. 4, 8 (2000)

(holding that an application for post-conviction review is

"properly filed" for § 2244(d)(2) purposes when "its delivery and

acceptance are in compliance with the applicable laws and rules

governing filings").

5 For the sake of comparison, we include the pertinent language of the two rules:

Rhode Island Rule 35(a):

"The court may correct an illegal sentence at any time. The court may correct a sentence imposed in an illegal manner and it may reduce any sentence when a motion is filed. . . ." R.I. Super. Ct. Rule Crim. Proc. 35(a).

Massachusetts Rule 29(a):

"The trial judge upon his own motion or the written motion of a defendant . . . may, upon such terms and conditions as he shall order, revise or revoke such sentence if it appears that justice may not have been done." Mass. R. Crim. P. 29(a).

-19- Respondents argue that Holmes's Rule 29 Motion was

improper under Commonwealth v. DeJesús, in which the SJC stated

that "to be properly filed, a [Rule 29] motion to revise or revoke

must be accompanied by an affidavit, or otherwise indicate the

grounds on which it is based." 795 N.E.2d 547, 552 (Mass. 2003)

(emphasis added). Here, it is undisputed that Holmes's Rule 29

Motion and accompanying Affidavit did not specify the grounds on

which the Motion was based. Therefore, Respondents argue, under

DeJesús, the Rule 29 Motion was not "properly filed" and did not

toll the statute of limitations. Holmes counters by noting that

DeJesús, which was the first case to expressly delineate such a

stringent filing requirement, was decided more than five years

after he filed his Rule 29 motion. Therefore, he argues, it would

be unfair to apply DeJesús retroactively to his Rule 29 Motion.

We sympathize somewhat with Holmes's argument that

applying DeJesús retroactively would be unfair. Nevertheless, we

must look to Massachusetts law to decide whether to apply DeJesús

retroactively, see Artuz, 531 U.S. at 8 , and Massachusetts law

favors Respondents. Several Massachusetts courts have applied

DeJesús retroactively to Rule 29 motions that were filed prior to

the issuance of the DeJesús decision in 2003. See, e.g.,

Commonwealth v. Fenton F., 809 N.E.2d 1005, 1011 (Mass. 2004)

(finding that a trial attorney's failure to file a Rule 29 motion

in 1993, where he believed that no grounds existed to reduce the -20- defendant's sentence, was not ineffective assistance of counsel

because "one cannot file a motion to revise or revoke without

stating the grounds on which it is based"); Commonwealth v.

Niditch, 883 N.E.2d 341 , at *1 (Mass. App. Ct. 2008) (unpublished

order) (noting that defendant's "perfunctory" motion to revise or

revoke, filed on January 6, 1998, was improper because it was not

"accompanied by an affidavit, [and did not] otherwise indicate the

grounds on which it [was] based"); Commonwealth v. Glover, 823

N.E.2d 436 , at *1 (Mass. App. Ct. 2005) (unpublished order)

(holding that a Rule 29 motion filed prior to DeJesús was

"defective in that it was not accompanied by the required affidavit

as specified by [R]ule 29(b), [and] did [not] adequately state the

grounds for relief in order to be considered properly filed"); see

also Commonwealth v. Hernandez, 868 N.E.2d 183 , at *1 (Mass. App.

Ct. 2007) (unpublished order) ("The defendant argues that [R]ule 29

allows a defendant to file a revise and revoke motion and then, at

some unspecified time later, to file supplemental affidavits that

activate the originally filed motion. We disagree with this novel

construction of [R]ule 29."). But see Commonwealth v. Oliver, 905

N.E.2d 604 , at *1 (Mass. App. Ct. 2009) (unpublished order)

(signaling, in dicta, a reluctance to apply the standard from

DeJesús to a Rule 29 motion filed in 1999, and denying the motion

on other grounds). We therefore conclude that DeJesús does apply

to Holmes's Rule 29 Motion, and further conclude that, under -21- DeJesús, the motion was not "properly filed" for AEDPA purposes,

and therefore cannot serve as a tolling mechanism under 28 U.S.C.

§ 2244 (d)(2).

C. Equitable Tolling As a fallback position, Holmes maintains that the

district court should have resuscitated his otherwise time-barred

petition as a matter of equity. Generally, the doctrine of

equitable tolling enables a court to extend a statute of

limitations for equitable reasons not acknowledged in the language

of the statute itself. See Neverson v. Farquharson, 366 F.3d 32,

40 (1st Cir. 2004). Its application, however, is limited to rare

and exceptional cases; equitable tolling is "the exception rather

than the rule . . . [and] resort to its prophylaxis is deemed

justified only in extraordinary circumstances." Trapp v. Spencer, 479 F.3d 53, 59 (1st Cir. 2007) (internal citation omitted). To

establish a foundation for equitable tolling in the federal habeas

context, a petitioner must demonstrate "'(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way' and prevented timely filing."

Holland v. Florida, 130 S. Ct. 2549 , 2562 (2010) (quoting Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005)). "We apply equitable

tolling on a case-by-case basis, avoiding mechanical rules and

favoring flexibility." Ortega Candelaria v. Orthobiologics LLC, -22- 661 F.3d 675, 680 (1st Cir. 2011) (citing Holland, 130 S. Ct. at

2563).

We review the district court's decision to deny equitable

tolling for abuse of discretion. See Riva v. Ficco, 615 F.3d 35,

40 (1st Cir. 2010). "Abuse of discretion is not a monolithic

standard of review; within it, abstract questions of law are

reviewed de novo, findings of raw fact are reviewed for clear

error, and judgment calls receive a classically deferential

reception." Id.

Holmes raises two arguments that he made in the district

court in response to Respondents' Renewed Motion to Dismiss: (1)

that the statute should be equitably tolled because of Graham's

alleged ineffective assistance; and (2) that the statute should be

equitably tolled because he was incarcerated. We reject both of

these arguments. However, in light of our holding today regarding

the effect of Kholi -- an issue that was never before the district

court -- we find that there may be grounds for equitably tolling

the statute of limitations due to the circumstances surrounding the

filing of Holmes's Rule 29 Motion.

1. Arguments Raised in Response to Renewed Motion to Dismiss Holmes first claims that "the unique and extraordinary

circumstances of this case -- a plea to a life sentence based on

egregiously incompetent advice of trial counsel -- require

equitable intervention." This argument misapplies the relevant -23- standard. AEDPA's statute of limitations will not be equitably

tolled merely because the underlying grounds for habeas relief are

extraordinary; rather, the "extraordinary circumstance" must be one

that actually caused the untimely filing. See Holland, 130 S. Ct.

at 2562; Barreto-Barreto v. United States, 551 F.3d 95, 101 (1st

Cir. 2008) (noting that the "extraordinary circumstances" standard

focuses on the circumstances surrounding the late filing of the

habeas petition, rather than the circumstances surrounding the

underlying action). The advice given to Holmes by his counsel,

regardless of its level of alleged incompetence, did not "st[an]d

in his way and prevent [the] timely filing" of his habeas petition.

Holland, 130 S. Ct. at 2562.

Second, Holmes contends that he is entitled to equitable

tolling because he was incarcerated, had no prior legal training,

and received limited access to the prison's purportedly scant

selection of legal resources. These circumstances are not

extraordinary. To be sure, in unusual cases, certain limitations

of imprisonment may rise to the level of "extraordinary

circumstance" -- for example, where a penitentiary's library does

not possess the legal materials necessary to adequately pursue

relief, see, e.g., Moore v. Battaglia, 476 F.3d 504, 506-08 (7th

Cir. 2007) -- but such is not the case here. Holmes does not

specify how the prison library's materials were inadequate, nor

does he allege that they were withheld from use altogether. In -24- fact, he presents nothing to differentiate his conditions of

imprisonment from those of any other inmate. 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. "[T]he usual problems

inherent in being incarcerated do not justify equitable tolling."

Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir. 2003). See

also Baker v. Norris, 321 F.3d 769, 771-72 (8th Cir. 2003) (no

tolling where prisoner granted only limited access to library);

Delaney v. Matesanz, 264 F.3d 7, 15 (1st Cir. 2001) (no equitable

tolling where the prisoner was acting pro se, and proclaimed

himself to have been ignorant of the applicable law).

2. Equitable Tolling in Light of Kholi As discussed above, see Section II(B)(2), supra, we have

held, in light of Kholi, that a motion to revise or revoke a

sentence under Mass. R. Crim. P. 29(a) constitutes a request for

"State post-conviction or other collateral review" within the

meaning of AEDPA. See 28 U.S.C. § 2244 (d)(2). We have further

held that Holmes's Rule 29 Motion was not "properly filed" for

AEDPA purposes because neither the Motion nor the accompanying

Affidavit specified the grounds on which the Motion was based. If

the Rule 29 Motion was not "properly filed," then the statutory

tolling mechanism of § 2244(d)(2), which is triggered only by -25- "properly filed application for State post-conviction or other

collateral review" (emphasis added), does not apply, and Holmes's

petition is untimely. We are troubled, however, by the possibility

that at the time Holmes filed his Rule 29 Motion, he was led to

believe that his Motion was in fact properly filed, even though it

would later prove to have been improper. Thus, there may be a

basis in equity for excluding the time during which Holmes's Rule

29 Motion was pending from the statutory limitations period.

A Rule 29 motion must be filed within sixty days after

"the imposition of a sentence . . . receipt by the trial court of

a rescript issued upon affirmance of the judgment or dismissal of

the appeal, . . . [or] entry of any order or judgment of an

appellate court denying review of, or having the effect of

upholding, a judgment of conviction." Mass. R. Crim. P. 29(a).

Holmes claims that in 1998, when he filed his motion, the practice

of filing a "placeholder" motion and affidavit to satisfy the 60-

day filing deadline was standard. He advances three arguments in

support of this position. First, Holmes contends that the practice

of filing placeholder motions had been tacitly endorsed by

Massachusetts courts. Second, Holmes argues that the practice was

recognized as standard among criminal defense attorneys. Finally,

he contends that prison procedures in 1998 reflected the widespread

acceptance of this practice.

-26- First, Holmes identifies two cases to support the

proposition that prior to DeJesús, Massachusetts courts tacitly

permitted the filing of unsupported Rule 29 motions. See

Commonwealth v. McGuinness, 658 N.E.2d 150 (Mass. 1995);

Commonwealth v. Bland, 724 N.E.2d 723 (Mass. App. Ct. 2000).

However, each is inapposite. In McGuinness, the defendant filed a

Rule 29 motion at the court's behest, for reasons proffered by the

trial judge, thus obviating the need to provide any underlying

grounds. 658 N.E.2d at 150-51 . Even less helpful, in Bland, the

defendant's motion to revise or revoke did include a substantive,

albeit ultimately inadequate, foundation. 724 N.E.2d at 724 n.3.

Furthermore, our own independent survey of Massachusetts cases only

confirms the dearth of jurisprudential support. We found a single

case, Commonwealth v. Amirault, 612 N.E.2d 631 (Mass. 1993), in

which the merits of a Rule 29 motion were considered where no

supporting affidavits were filed. There, however, the court

acknowledged but declined to address the Commonwealth's argument

that the motion was facially defective for its failure to present

any basis for relief, instead disposing of the motion on

alternative grounds. Id. at 633 n.6.

Holmes next contends that filing a placeholder Rule 29

motion was considered standard practice by the criminal defense bar

in Massachusetts in 1998. Holmes points to the following excerpt

from a 1990 edition of Massachusetts Criminal Defense:

-27- [S]imply file the [Rule 29] motion with a cover letter to the clerk indicating that the defendant is not requesting a hearing or any other action at that time. Even in cases where at the time of imposition of sentence the possibility of a subsequent reduction may appear extremely remote or nonexistent, the passage of time may reveal circumstances that were overlooked and should have been considered at the time sentence was imposed.

Blumenson, Fisher & Kanstroom, Massachusetts Criminal Defense,

§ 43.3D, at 44-10 (1990) (emphasis added). The 1998 edition of the

same treatise notes: "The Rule 29 procedure is designed to address

precisely this problem, but it is unavailable unless a timely

motion is filed, and often the deadline for filing such a motion

passes before the ultimate and meritorious grounds for relief are

discovered." 2 Eric Blumenson, et al., Massachusetts Criminal

Practice § 44.3C, at 547 (2d ed. 1998). The manual goes on to

advise that "[w]here a defendant does not seek an immediate hearing

or ruling on the motion, an affidavit is still required to preserve

the defendant's rights under the rule. A more complete

supplemental affidavit could be offered at a later time when the

defendant requests hearing on the motion." Id. at 548 (emphasis

added).

It is true that the treatise cited by Holmes does not

explicitly say that a Rule 29 motion that does not list the grounds

on which it is based is properly filed. However, if an affidavit

is needed to "preserve the defendant's rights," id. at 548, but the

facts underlying the motion might not be discovered until after the -28- 60-day deadline, common sense suggests that the most prudent course

of action for a prisoner was to file a placeholder Rule 29 motion

and affidavit.6 We find that this fact lends some support to

Holmes's contention that the Rule 29 Motion he filed in 1998

accorded with standard practice at the time.

Finally, Holmes claims that in 1998, all newly-sentenced

prisoners were given boilerplate motions and supporting affidavits

when they arrived at MCI-Concord. Holmes points to no rule or

regulation showing that this was the case; however, Holmes's Rule

29 Motion and Affidavit are in the record, and they appear to

support Holmes's position. Both the Motion and Affidavit appear to

be standard forms that were given to Holmes by prison officials;

both are type-written forms with spaces in which Holmes hand-wrote

certain biographical information. The Motion lists MCI-Concord as

Holmes's address, with a space in which Holmes hand-wrote his cell

number. It thus seems quite likely that, as Holmes claims, prison

officials provided him with these boilerplate forms. If in fact

this was the case, then Holmes may have been led to believe that

his filing of a placeholder Motion and Affidavit was sufficient for

Rule 29, even if it was not actually so.

6 Indeed, the 1998 edition of Massachusetts Criminal Practice stated: "In the absence of serious and substantial reasons not to file a motion [such as impossibility] . . . it is arguable that the standards for effective representation require defense counsel to file a timely motion to revise and revoke the sentence . . . ." Id. at 547.

-29- If Holmes was led to believe in 1998 that it was standard

practice to file a placeholder motion and affidavit, then he may

have a plausible claim for equitable relief. Equitable tolling

requires that Holmes demonstrate "that he has been pursuing his

rights diligently." Holland, 130 S. Ct. at 2562 (internal

quotation marks omitted). However, the diligence required for

equitable tolling purposes is "'reasonable diligence,' not

'maximum feasible diligence.'" Id. at 2565 (quoting Lonchar v.

Thomas, 517 U.S. 314, 326 (1996); Starns v. Andrews, 524 F.3d 612,

618 (5th Cir. 2008)). If 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. It

is true, as the dissent notes, that after filing his placeholder

motion Holmes failed to request a hearing for over two years.

However, Holmes's correspondence with Graham suggests that Holmes

may have been waiting to learn whether the prosecutor wanted

information from him about Mitchell. If so, Holmes's delay may not

be incompatible with a showing of diligence, but that is a

determination best left to the District Court to make in the first

instance.

Equitable tolling also requires Holmes to show "that some

extraordinary circumstance stood in his way and prevented timely

filing." Id. at 2562 (internal quotation marks omitted). We have -30- noted that equitable tolling may apply to AEDPA where a prisoner

was "actively misled" in a way that caused him to miss the filing

deadline. Delaney, 264 F.3d at 15 . If in fact prison officials

intentionally or inadvertently caused Holmes to believe that his

filing was sufficient, this might qualify as an "extraordinary

circumstance."

The Fifth Circuit addressed a somewhat similar situation

in Williams v. Thaler, 400 Fed. App'x 886 (5th Cir. 2010). There,

the petitioner was repeatedly misinformed by the state court system

that his state habeas petition was pending when, in fact, it had

already been denied. Id. at 887 . When the petitioner eventually

learned the truth, he promptly filed a federal habeas petition, and

the Fifth Circuit held that equitable tolling was appropriate. See id. at 892-93 .

Here, we cannot say what the result should be because the

record does not contain sufficient facts. There is nothing in the

record to indicate what additional information, if any, Holmes was

given about the filing requirements under Rule 29. In particular,

we do not know if Holmes was told the boilerplate forms he filed

were sufficient for Rule 29 purposes, or if he was told that more

detail was required. The district court had no reason to consider

the facts surrounding the filing of the Rule 29 Motion because

prior to Kholi, the Rule 29 issue was a non-starter; even if the

court had invoked equitable principles to treat the motion as -31- "properly filed," the motion would not have counted as a motion

seeking "post-conviction or collateral review" for AEDPA purposes.

Now, however, in light of our holding regarding the treatment of

Rule 29 motions under Kholi, the calculus has changed.

The dissent argues that we should not consider any

equitable tolling argument with respect to the Rule 29 Motion

because Holmes has waived any such argument. The dissent first

faults Holmes for not having argued that his Rule 29 Motion was

properly filed until his reply brief. See post at 38, 43 n.8

(Howard, J., dissenting). In particular, the dissent notes that

this court explicitly instructed the parties to address the effect

of Kholi in their opening briefs. See post at 43 n.8. Holmes did

address Kholi in his opening brief in arguing that his Rule 29

Motion was a motion seeking "post-conviction or collateral review."

However, at the time Holmes filed his opening brief, the

Commonwealth had never before argued that his Rule 29 Motion was

not "properly filed." This argument first appeared in the

Commonwealth's brief to this Court. In response, in his reply

brief, Holmes argued that his Rule 29 Motion was "properly filed."

Thus, Holmes raised the argument that his motion was "properly

filed" at the earliest point when it was logical to do so, and it

would make no sense to fault him for not having raised it sooner.

The dissent also contends that the equitable tolling

argument is waived because Holmes failed to sufficiently develop -32- it. See post at 38-39. The dissent invokes the familiar rule from

United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990), that

arguments "adverted to in a perfunctory manner [or] unaccompanied

by some effort at developed argumentation" are waived. See post at

39. It is true that in his reply brief, Holmes never explicitly

referred to "equitable tolling" or "equity" in relation to his

argument that his motion was properly filed. However, Holmes

argued in his reply brief that it would be "fundamentally unfair"

to retroactively apply the DeJesús decision and find that his

motion was not properly filed. We have noted that "[i]n a proper

case, the doctrine of equitable tolling ensures fundamental

fairness." Morris v. Government Dev. Bank, 27 F.3d 746, 750 (1st

Cir. 1994). Thus, we have no trouble reading Holmes's argument as

an appeal to equity, even though Holmes did not use the precise

words "equitable tolling" or "equity." We acknowledge that

Holmes's argument relating to the boilerplate forms could have been

more developed. However, "in certain circumstances we have the

discretion to overlook waiver by inadequate argument." Costa-Urena

v. Segarra, 590 F.3d 18, 30 (1st Cir. 2009) (citation omitted).

This case is a prime candidate for an exercise of such discretion.

Holmes's reply brief reveals enough of the raw materials of an

equitable tolling issue that we will not ignore the issue simply

because Holmes did not put the necessary label on it.

-33- Furthermore, this is not a situation in which we need to

apply the waiver rule to prevent prejudice to the Commonwealth due

to lack of notice. See post at 38. As noted above, the

Commonwealth first raised the issue of the impropriety of Holmes's

Rule 29 Motion in its brief to this Court. The Commonwealth could

hardly claim that it did not have notice that Holmes might respond

to this argument in his reply brief. Cf. Walker v. Exeter Region

Coop. Sch. Dist., 284 F.3d 42, 47 (1st Cir. 2002) (where appellees

raised argument in opening brief, "prudence dictated that

[appellants] counter with a reply brief showing that the

[appellees] were wrong"). Additionally, since we are instructing

Holmes to make his argument to the district court in the first

instance, the Commonwealth will have ample opportunity to respond.

The dissent also suggests that a remand would be

pointless because Holmes's argument has no merit. The dissent

cites a number of cases in which courts have refused to apply

equitable tolling in light of a prisoner's reliance on faulty

advice by prison staff. See post at 44-46. However, most of the

cited cases deal with faulty advice regarding a filing deadline;

furthermore, in some of these cases, the record made clear that the

petitioner either had access to proper information or was

explicitly told not to rely on the advice offered. See Alexander

v. Schriro, 312 F. App'x 972, 975 (9th Cir. 2009) (no equitable

tolling where prison paralegal gave faulty advice about deadline, -34- and where record showed that prisoner was told that paralegals

could not give legal advice); Henderson v. Nooth, No.

3:07-CV-01823-JO, 2012 WL 1801736 , at *4 (D. Or. May 16, 2012) (no

equitable tolling despite faulty information from prison paralegal

where record showed that prisoner was given prior written notice of

one-year statute of limitations); Elliott v. Napoli, No.

07-CV-3942, 2010 WL 1816406 , at *2 (E.D.N.Y. May 4, 2010); James v.

Hudson, No. 1:07-CV-3651, 2009 WL 111637 , 11 at *8 (N.D. Oh. Jan.

15, 2009). Here, in contrast, there is no question that Holmes's

Rule 29 Motion was timely filed; the issue is whether it was

"properly filed."

Figuring out if something is "properly filed" is likely

to be a somewhat more difficult question than simply calculating a

filing deadline. An application is "properly filed" for AEDPA

purposes "when its delivery and acceptance are in compliance with

the applicable laws and rules governing filings." Artuz, 531 U.S.

at 8 . Contrary to the dissent, we think it is far from clear, at

least on the record before us, that Holmes had a "wealth of

opportunities to remedy any error and to verify the appropriate

filing procedures." Post at 44. As we noted above, the case law

and commentary regarding Rule 29 procedure at the time Holmes filed

his motion were far from clear. At best they were ambiguous, and

at worst they hinted that Holmes's filing was acceptable. Thus,

even assuming Holmes had availed himself of every opportunity to -35- conduct research in the prison law library, it is by no means clear

that he could have ever discovered that his motion was not

"properly filed" under then-existing Massachusetts law.

III. Conclusion We reject Holmes's argument that the statute of

limitations began to run in August of 2000, and affirm the district

court's holding that the statute of limitations began to run on May

1, 1998. We hold that a properly filed motion under Mass. R. Crim.

P. 29 is a motion seeking "post-conviction or collateral review"

for AEDPA purposes. We further hold that the Rule 29 Motion Holmes

filed in this case was not "properly filed" and thus does not toll

the statute of limitations as a matter of law under AEDPA. We

remand, however, with instructions for the District Court to

consider whether there are grounds for equitable tolling, taking

into account the reasons for Holmes's delay in requesting a hearing

on his Rule 29 Motion as well as whatever information Holmes may

have been given regarding the propriety of his Rule 29 Motion when

he filed it in 1998. In so remanding, we emphasize that it is

Holmes's burden to put forth evidence to show that equitable

tolling is justified, but we leave it to the district court to

determine what steps should be taken, if needed, to further develop

the record. Cf. Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th

Cir. 2000) (remanding to district court for "appropriate

development of the record" on equitable tolling question, observing -36- that "the district court is in a better position to develop the

facts and assess their legal significance in the first instance").

The parties did not address the question of whether the

timeliness of a habeas petition should be addressed on a claim-by-

claim basis. Thus, if it becomes necessary, the District Court

should address this issue.

AFFIRMED in part and REMANDED for further proceedings.

"Dissenting opinion follows"

-37- HOWARD, Circuit Judge (dissenting). Because our decision

to remand rests wholly on a claim for equitable relief that is not

properly before us, I respectfully dissent.

"There are few principles more securely settled in this

court than the principle which holds that, absent exceptional

circumstances, an appellant cannot raise an argument for the first

time in a reply brief." N. Am. Specialty Ins. Co. v. Lapalme, 258

F.3d 35, 45 (1st Cir. 2001). We have long held, "with a regularity

bordering on the monotonous," that such arguments are deemed

waived, and with good reason: an appellee cannot conscionably be

expected to respond, in any meaningful fashion, to claims and

allegations of which it has no prior notice. Waste Mgmt. Holdings,

Inc. v. Mowbray, 208 F.3d 288, 299 (1st Cir. 2000); see also

Pignons S.A. de Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st

Cir. 1979) (Breyer, J.) ("In preparing briefs and arguments, an

appellee is entitled to rely on the content of an appellant's brief

for the scope of the issues appealed, and appellant generally may

not preserve a claim merely by referring to it in a reply brief or

at oral argument."). Maintaining this adversarial balance

throughout the appellate process is a compelling interest, one that

should be contravened only under extenuating circumstances beyond

the parties' control, e.g., where the applicable law substantially

changes after the opening briefs are submitted. See, e.g., United

States v. Vázquez-Rivera, 407 F.3d 476 , 487 (1st Cir. 2005).

-38- Nor, under equally settled precedent, do we generally

credit arguments that are "adverted to in a perfunctory manner [or]

unaccompanied by some effort at developed argumentation,"

regardless of where they appear in a party's briefs. United States

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). As we have had

frequent occasion to observe, a court should not be left to "do

counsel's work, create the ossature for the argument, and put flesh

on its bones." Id. We are not mind readers, and to assume that

burden by unilaterally cultivating an appellant's claims raises a

host of concerns, both procedural and substantive.

These are familiar rules of general applicability,

administered with as much force in the habeas context as in any

other. Indeed, we have shown no reluctance to deem arguments

waived, including equitable tolling claims, that were belatedly or

otherwise inadequately raised by petitioners seeking federal habeas

relief. See, e.g., Glacken v. Dickhaut, 585 F.3d 547, 551 (1st

Cir. 2009) (holding that a habeas petitioner waived an argument to

which he devoted only a single line in his opening brief); DeBurgo

v. St. Amand, 587 F.3d 61 , 72 n. 14 (1st Cir. 2009) (finding a

claim arguably waived where it comprised only four sentences of the

habeas petitioner's opening brief); Trenkler v. United States, 268

F.3d 16 , 26 n. 9 (1st Cir. 2001) (deeming waived a perfunctory

equitable tolling claim raised for the first time at oral

argument); see also McClaran v. Cockrell, 58 Fed. App'x 595 , at *1 -39- (5th Cir. 2003) (holding that a new equitable tolling argument

raised for the first time in a habeas petitioner's reply brief had

been waived); Gomez v. Castro, 47 Fed. App'x 821 , 822 n. 2 (9th

Cir. 2002) (same); c.f. Rivera-Muriente v. Agosto-Alicea, 959 F.2d

349, 354 (1st Cir. 1992) ("[The non-habeas appellant] did not make

[the] equitable tolling argument in his opening brief. Rather, the

asseveration surfaced for the first time in his reply brief. It is

well settled in this court, for good reason which need not be

rehearsed here, that a legal argument made for the first time in an

appellant's reply brief comes too late and need not be

addressed.").

On the contrary, these rules should be especially potent

in the realm of equitable tolling, where the claim must identify an

obstacle to timely filing that is both "rare" and "extraordinary";

typically, something patently obvious on the face of the record,

and therefore not easily disregarded by a claimant absent some

dilatory intent. See Trapp v. Spencer, 479 F.3d 53, 59 (1st Cir.

2007) (restricting application of the equitable tolling doctrine to

"extraordinary circumstances"). Thus, without a truly exceptional

reason -- something beyond the notion that this might be a

petitioner's last bite at the apple -- we should not revive tardy

or perfunctory equitable tolling arguments which "the party who

seeks to invoke [the doctrine] bears the burden of establishing

. . . ." Delaney v. Matesanz, 264 F.3d 7, 14 (1st Cir. 2001).

-40- Yet, here, although the record is devoid of any

discernibly exceptional circumstances, we remand for consideration

of an equitable tolling argument that plainly fails to clear either

of these long-standing procedural hurdles. The petitioner's

briefing is unequivocal -- he advances two, and only two,

cognizable grounds for equitable relief: (1) the allegedly

egregious nature of his trial counsel's Rule 29 advice; and (2) the

prison's purportedly draconian library policies. Both are ably

dispatched by the majority, and that should be the end of it.

Instead, we solicit further deliberation on a "third"

equitable tolling argument: that the petitioner was misled by the

prison's boilerplate Rule 29 forms. The trouble is, this claim was

only raised, if at all, for the first time in a single sentence of

the petitioner's reply brief, and then only in relation to the

merits of his Rule 29 claim. Specifically, in asserting that his

Rule 29 motion was properly filed under Massachusetts law, the

petitioner notes only that "the [Rule 29] Motion and Affidavit

which [the petitioner] filed are hand-written onto xeroxed forms,

which are provided to incoming prisoners when they arrive at [the

prison]." Nowhere is this statement framed as a justification for

equitable remediation, and its cursory nature does not even begin

to approach the level of development traditionally necessary for

consideration on appeal. This is not, as the majority suggests, a

simple case of a party failing to apply the "necessary label" -- -41- rather, it is a classic example of waiver by inadequate argument.7

In essence, we manufacture the appellant's claim, effectively

precluding the appellee from delivering a satisfactory response.

This, I think, is beyond our proper province, and therefore I

cannot join in remanding on this ground.8

7 The majority notes that we have the discretion, in certain circumstances, to overlook waiver by inadequate argument. See, e.g., Costa-Urena v. Segarra, 590 F.3d 18, 30 (1st Cir. 2009). Those circumstances are absent here. Such discretion is not unfettered, and should be used sparingly. As we have previously stated, "courts should be reluctant to act affirmatively in identifying and supporting arguments that could have been, but were not, made by a party. At a bare minimum, such an action should be reserved for circumstances in which there is some likelihood that the ultimate outcome would change in the assisted party's favor." United States v. Vega Molina, 407 F.3d 511 , 534 n.7 (1st Cir. 2005). Since, as the majority acknowledges, it "cannot say what the result should be" even if this equitable tolling argument is resuscitated, and because this case presents none of the special circumstances that typically form the basis for overlooking waiver, see, e.g., Nat'l Org. for Marriage, Inc. v. McKee, 669 F.3d 34, 43

(1st Cir. 2012) (overlooking waiver by inadequate argument because of importance of issues raised and extent of resources expended in expansive litigation); Costa-Urena, 590 F.3d at 30 (overlooking waiver by inadequate argument where argument would likely change the outcome); United States v. Leavitt, 925 F.2d 516, 517 (1st Cir. 1991) (overlooking waiver by inadequate argument of a sentencing guidelines issue where the guidelines were relatively new, the issue was purely legal, and the sentencing differences were so great as to bring about a serious miscarriage of justice if he is legally right), I see no reason to take such a course of action here. See Nat'l Ass'n of Social Workers v. Harwood, 69 F.3d 622, 627 (1st Cir. 1995) ("[T]he raise-or-waive principle [may not] be dismissed as a pettifogging technicality or a trap for the indolent; the rule is founded upon important considerations of fairness, judicial economy, and practical wisdom."). 8 The majority suggests that because Kholi v. Wall, 582 F.3d 147

(1st Cir. 2009) had yet to be decided, the petitioner had no cause to raise the issue before the district court. That may be, but it does not excuse his failure to do so in his opening appellate brief, where we explicitly requested that counsel discuss the Rule -42- Even if this equitable tolling claim had been properly

preserved, and the prison had advised the petitioner that his

boilerplate forms complied with the strictures of Rule 29, we still

should not remand, because it is far from apparent that such

conduct qualifies as an extraordinary circumstance sufficient to

trigger equitable relief.

Starting from scratch, as it must given the petitioner's

failure to cite any relevant authority whatsoever, the majority

suggests that Williams v. Thaler, 400 Fed. App'x 886 (5th Cir.

2010), might inform the district court's equitable tolling

analysis. Thaler, however, is distinguishable in several critical

respects. There, the state court had repeatedly notified the

petitioner that his state habeas petition was pending, when in fact

it had already been denied. Because there was no alternative

source for the information, or additional action that the

petitioner could have taken to remedy the error, the court's

misleading advice made it virtually impossible for the petitioner

to meet AEDPA's stringent timeliness requirements with respect to

his subsequent federal petition. Here, by contrast, the petitioner

was instructed (maybe erroneously) how to file, rather than being

told that he had already properly done so; the advice came not from

the court itself, but from some heretofore unidentified member of

29 issues in light of Kholi, or his failure to do so sufficiently in his reply brief, after the Commonwealth had expressly called the procedural validity of his Rule 29 motion into question.

-43- the prison staff; and perhaps most importantly, the petitioner

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). In other words, the

prison's actions here did not foreclose the petitioner's ability to

properly file his Rule 29 motion, and consequently, to timely file

the federal petition now at issue.

These distinctions are not academic, and indeed they form

the basis for several federal decisions on somewhat analogous

facts. In Alexander v. Schriro, 312 Fed. App'x 972 (9th Cir.

2009), for example, no extraordinary circumstances were found where

a member of the prison staff offered misleading advice to a federal

habeas petitioner in calculating the applicable limitations period.

Distinguishing from cases where "a prison official's wrongful

conduct prevents a petitioner from filing," the court explained

that "in this case, the [prison staff] did not do or fail to do

anything that actually made it impossible for [the petitioner] to

file on time." Id. at 975 (internal citations omitted); see also

Henderson v. Nooth, No. 3:07-CV-01823-JO, 2012 WL 1801736 , at *4

(D. Or. May 16, 2012) (finding that erroneous filing advice from a

prison staff member, "while extremely unfortunate," does not rise

to the level of extraordinary circumstances because it did not

"ma[k]e it impossible for petitioner to file on time"); Madison v.

Hulihan, No. 09-CV-337, 2012 WL 1004780 , at *4 (E.D.N.Y. March 23, -44- 2012) (rejecting claim of equitable tolling where state-provided

habeas forms lacked information about AEDPA filing requirements,

and holding that "a state-created impediment can warrant equitable

tolling [only] in the rare instance where the state 'effectively

prohibits' the petitioner from pursuing a habeas petition");

Dulaney v. United States, Nos. 6:08-cv-00859, 6:09-cv00372, 2011 WL

4436639 , at *2 (S.D. W. Va. September 23, 2011) (refusing to apply

equitable tolling where habeas corpus forms supplied by the prison

appeared to inform petitioner (in error) that he could not file his

federal habeas petition until he completed his state sentence and

began serving his federal sentence); Elliott v. Napoli, No. 07-CV-

3942, 2010 WL 1816406 , at *2 (E.D.N.Y. May 4, 2010) ("Simply,

falling victim to the incompetence of nonlawyer [prison library

staff] is . . . not an extraordinary circumstance."); James v.

Hudson, No. 1:07-CV-3651, 2009 WL 111637 , at *8 (N.D. Oh. Jan. 15,

2009) ("The fact that, instead of himself ascertaining the relevant

law, [the petitioner] chose to rely on [prison] library clerks for

such critical information does not make that choice an

extraordinary circumstance that stood in the way of compliance with

the time requirement and now justifies equitable tolling."); Roman

v. Artuz, No. 00-CIV-1400-DLC, 2000 WL 1201392 , at *2 (S.D.N.Y.

Aug. 22, 2000) (finding that prison law clerks' erroneous advice

that a state FOIA request would toll AEDPA's statute of limitations

was not an extraordinary circumstance).

-45- This, of course, is not intended to be an exhaustive

collection of applicable authority; that was for the petitioner to

provide. Nonetheless, pursuant to the prevailing authority, it is

likely that the prison's allegedly inaccurate filing advice --

whether that encompassed the mere dissemination of boilerplate

forms or, at worst, also included verbal assurances that such forms

were sufficient for filing purposes -- does not rise to the

extraordinarily high level required for the application of

equitable tolling.

Finally, though no less significantly, even if the

prison's actions do constitute an extraordinary circumstance, the

petitioner has still failed to demonstrate that he pursued his

rights diligently during the more than two-year gap between June

17, 1998 and August 17, 2000, when he remained idle despite his

pending Rule 29 motion. The only conceivable basis for the motion

-- the petitioner's anticipated cooperation with the government on

another case -- was well known to the petitioner at the time that

the motion was originally filed. Had he simply employed that

knowledge and requested a hearing within a reasonable period of

time, all of these issues could easily have been averted. Neither

the petitioner nor the majority provide an acceptable explanation

for this extended period of inactivity.9

9 The majority states only that, during this time, Holmes's correspondence with his trial attorney "suggests that Holmes may have been waiting to learn whether the prosecutor wanted -46- For these reasons, I would excise any treatment of the

putative equitable tolling argument, join the court's otherwise

well-reasoned opinion, and affirm the order of the district court.

information from him" about the other case. A two-year period of inactivity, interrupted only by occasional correspondence with his trial attorney, does not seem to meet the level of reasonable diligence necessary to ground a claim of equitable tolling. See, e.g., LaCava v. Kyler, 398 F.3d 271, 277-78 (3d Cir. 2005) (deciding not to remand the appellant's habeas petition for an evidentiary hearing on the availability of equitable tolling where he allowed twenty-one months to lapse between the filing of a state court motion and his subsequent inquiry as to its status). In any event, it should not be left to the court to comb the record for favorable facts supporting remand. Pursuing one's rights with reasonable diligence is one of two prongs that the petitioner must show to meet the high burden for equitable tolling. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (holding that a "petitioner is entitled to equitable tolling only if he shows . . . that he has been pursuing his rights diligently . . . .") (emphasis added). Holmes did not even attempt to make that showing here.

-47-