United States Court of Appeals

For the First Circuit

No. 01-1367

DANIEL J. DONOVAN,

Petitioner, Appellant,

v.

STATE OF MAINE,

Respondent, Appellee.

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]

Before

 Selya, Circuit Judge,

Rosenn* and Cyr, Senior Circuit Judges.

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.

January 10, 2002
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*Of the Third Circuit, sitting by designation.
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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 timebarred a habeas application filed by petitioner-appellant Daniel
1The 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.

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J. Donovan, a state prisoner.1 Donovan now invites us to

reinstate his application. We decline the invitation.

I.

Background

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).
2The 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.

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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
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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).

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
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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
3Courts 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

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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.

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
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).

4The 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).

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A.

Additional Time due to Mailing

Citing Federal Rule of Civil Procedure 6(e), the

petitioner theorizes that three days should be added to the oneyear 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
5The 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

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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).

Because the forfeiture question is murky, we choose to

address the claim head-on. 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.

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
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).

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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
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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 postconviction 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.

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.

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
6The 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.

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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

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.

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).
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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 oneyear 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.

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.

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
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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.

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.
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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).

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").

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
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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.

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).

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
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trial court's judgment about so factbound a matter is entitled

to considerable respect.

V.

Conclusion

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.

Affirmed.