United States Court of Appeals

For the First Circuit

No. 07-1998

JAMES RIVA, II,

Petitioner, Appellant,

v.

EDWARD FICCO,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark L. Wolf, U.S. District Judge]

Before

Howard, Selya and Thompson, Circuit Judges.

Randy Gioia, by appointment of the court, with whom Elizabeth

Billowitz and Law Office of Randy Gioia were on brief, for

appellant.

Annette C. Benedetto, Assistant Attorney General, Commonwealth

of Massachusetts, with whom Martha Coakley, Attorney General, was

on brief, for appellee.

August 5, 2010
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SELYA, Circuit Judge. This case presents a question of

first impression in this circuit: Can mental illness equitably toll

the one-year statute of limitations for the filing of a state

prisoner's habeas petition contained in the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.

§ 2244(d)(1)? We hold that the district court correctly answered

this question in the affirmative. We nonetheless hold that the

district court's further determination that the petitioner was not

entitled to equitable tolling rests on too unsteady a foundation.

Consequently, we vacate the order dismissing the habeas petition

and remand for further proceedings.

I. BACKGROUND

This case is fact-intensive, so we take pains to mine the

record and recite the relevant background in some detail. The

facts themselves are largely undisputed (although they support

conflicting inferences).

The petitioner, James Riva, II, suffers from paranoid

schizophrenia. His history of severe mental illness dates back to

his adolescence. His condition has required intermittent

hospitalization since 1974.

On April 10, 1980, the petitioner killed his grandmother

while under a paranoid delusion that, if he did not, he would fall

prey to a society of vampires. He was found competent to stand

trial in state court and, on October 30, 1981, a jury convicted him
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of second-degree murder, arson, and assault and battery on a police

officer. The trial justice sentenced him to life imprisonment.

Four days later, the petitioner was committed to

Bridgewater State Hospital (Bridgewater), where he remained until

January 24, 1989. At that point, he was transferred to the general

prison population. His stay there was short-lived; he was sent

back to Bridgewater on September 6, 1990, after he assaulted a

correctional officer while under a paranoid delusion that the

officer had been draining fluid from the petitioner's spine. The

petitioner was charged criminally for the assault, but was found

not guilty by reason of insanity.

The petitioner remained at Bridgewater until August of

1999. During this interlude, he attempted to challenge his

convictions in both state and federal courts. His trial counsel,

John Spinale, filed a timely notice of appeal and motions for new

trial and to revise or revoke the sentence. The trial justice

denied the latter two motions, and Spinale withdrew as counsel.

Attorney Willie Davis handled the appeal. The Massachusetts

Appeals Court (MAC) affirmed both the convictions and the denial of

the motion for new trial. Commonwealth v. Riva, 469 N.E.2d 1307,

1312 (Mass. App. Ct. 1984). On January 4, 1985, the Supreme

Judicial Court (SJC) denied the petitioner's application for leave

to obtain further appellate review (ALOFAR). Commonwealth v. Riva,

474 N.E.2d 181 (Mass. 1985) (table).
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In 1987 the petitioner, acting pro se, filed an

application for a writ of habeas corpus in the federal district

court. The court dismissed the application on the ground that it

contained unexhausted claims. We affirmed. Riva v. Getchell, 873

F.2d 1434 (1st Cir. 1989) (table).

On June 2, 1988, the petitioner, again acting pro se,

filed a second motion for new trial. The state superior court

appointed Dana Alan Curhan as counsel. Curhan filed an amended

motion for new trial or post-conviction relief. The superior court

denied the amended motion. The petitioner's counselled appeal was

unsuccessful, Commonwealth v. Riva, 615 N.E.2d 606 (Mass. App. Ct.

1993) (table), and the SJC refused to grant an ALOFAR, Commonwealth

v. Riva, 618 N.E.2d 1364 (Mass. 1993) (table).

Although Curhan's representation ended at that juncture,

the petitioner was undaunted. On August 2, 1993, he filed a pro se

motion to revise or revoke his sentence. His newly appointed

counsel, Richard Passalacqua, filed a third motion for new trial on

May 11, 1995. The superior court denied this motion approximately

three months later, and Passalacqua withdrew as counsel. 

The petitioner appealed pro se, but the MAC eventually

dismissed the appeal for want of prosecution. On October 28, 1996,

the superior court denied the petitioner's pro se motion to revise

or revoke his sentence.
 This order was improvident. Both prior habeas petitions 1

were dismissed for want of exhaustion. Because neither was

adjudicated on the merits, the third petition was not "successive"

within the meaning of the habeas statute, 28 U.S.C. § 2244(b). See

Slack v. McDaniel, 529 U.S. 473, 487 (2000); Pratt v. United

States, 129 F.3d 54, 60 (1st Cir. 1997).

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Meanwhile, the petitioner was attacking on a second

front. On February 1, 1996, he repaired to the federal district

court and filed another pro se application for habeas relief. The

district court originally dismissed this case for insufficiency of

service of process but later reopened it. The reopening came to

naught, as the petitioner, apparently concerned about exhaustion,

moved for a voluntary dismissal on November 25, 1996. See Fed. R.

Civ. P. 41(a). The district court granted that motion. Riva v.

DuBois, No. 96-10273 (D. Mass. Feb. 21, 1997) (unpublished order).

The petitioner's father hired Barbara Smith as counsel to

prepare a third federal habeas petition. Smith died before

completing the task, but on January 6, 1998, her law firm filed the

habeas petition (quite possibly without the petitioner's consent).

Because no authorization had been obtained to file a successive

habeas petition, the district court transferred the case to this

court. We dismissed the petition for failure to prosecute. Riva 1

v. Nelson, No. 99-1071 (1st Cir. Oct. 28, 1999) (unpublished

order).

On March 17, 1999, the petitioner, acting pro se, filed

a fourth new trial motion. The superior court denied this motion
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on December 13, 1999. The MAC affirmed that order, Commonwealth v.

Riva, 752 N.E.2d 242 (Mass. App. Ct. 2001) (table), and the SJC

denied an ALOFAR, Commonwealth v. Riva, 752 N.E.2d 240 (Mass. 2001)

(table).

On October 15, 2001, the petitioner, acting pro se, filed

the habeas petition with which we are concerned. The district court

appointed counsel and ultimately dismissed the petition as untimely.

Riva v. Ficco, No. 01-12061, 2007 WL 954771, at *6 (D. Mass. Mar.

28, 2007). The court held that the AEDPA statute of limitations was

not tolled on the basis of the petitioner's mental illness. Id.

It reasoned that the petitioner's prolific filings in both state and

federal courts demonstrated a capacity to comply with the filing

deadline. Id. at *5. The court did not address the petitioner's

claim that his actual innocence trumped the Commonwealth's

limitations defense. The district court issued a certificate of

appealability, 28 U.S.C. § 2253(c), and this timely appeal ensued.

II. ANALYSIS

The AEDPA states in pertinent part that 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." Id. § 2244(d)(1). The statute expressly provides that the

limitations period is tolled by a "properly filed application for

State post-conviction or other collateral review." Id.

§ 2244(d)(2). Equitable tolling is not mentioned.
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The essence of equitable tolling is that, "in exceptional

circumstances, a statute of limitations 'may be extended for

equitable reasons not acknowledged in the statute creating the

limitations period.'" Neverson v. Farquharson, 366 F.3d 32, 40 (1st

Cir. 2004) (quoting David v. Hall, 318 F.3d 343, 345-46 (1st Cir.

2003)). After this case was briefed and argued, the Supreme Court

determined that the AEDPA limitations period is subject to equitable

tolling in appropriate circumstances. See Holland v. Florida, 130

S. Ct. 2549, 2560 (2010). The Holland Court recognized that the

"exercise of a court's equity powers . . . must be made on a caseby-case basis," id. at 2563 (quoting Baggett v. Bullitt, 377 U.S.

360, 375 (1964)), and instructed lower courts to "exercise judgment

in light of prior precedent, but with awareness of the fact that

specific circumstances, often hard to predict in advance, could

warrant special treatment in an appropriate case," id. 

This court has not yet responded to Holland. We have

cautioned, however, in a pre-Holland habeas case, that equitable

tolling "is the exception rather than the rule," and that "resort

to its prophylaxis is deemed justified only in extraordinary

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

2001). These admonitions are consistent with the teachings of

Holland.

A habeas petitioner bears the burden of establishing the

basis for equitable tolling. Holland, 130 S. Ct. at 2562. To carry
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this burden, he 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." Id. (quoting Pace

v. DiGuglielmo, 544 U.S. 408, 418 (2005)); see Trapp v. Spencer, 479

F.3d 53, 61 (1st Cir. 2007) (listing additional factors that may,

in a given case, influence a habeas court's decision about whether

to grant equitable tolling).

In the case at hand, we must decide whether the

petitioner's mental illness constitutes an extraordinary

circumstance that equitably tolls the AEDPA limitations period.

This inquiry is binary. First, we must decide whether, as a general

proposition, mental illness can qualify as an acceptable basis for

equitable tolling. If so, we then must decide whether the

petitioner's mental illness warrants equitable tolling. We take the

two halves of the inquiry in order.

Although this court has yet to address the generic

question of whether mental illness can constitute a ground for

equitable tolling in a habeas case, some other courts of appeals

have answered that question in the affirmative. See, e.g.,

Bolarinwa v. Williams, 593 F.3d 226, 231 (2d Cir. 2010); Hunter v.

Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009) (per curiam); Laws v.

Lamarque, 351 F.3d 919, 923 (9th Cir. 2003). No circuit has held

to the contrary. Moreover, our own case law points in the same

direction; in a different context, we recognized that mental illness
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can equitably toll a federal statute of limitations. See Nunnally

v. MacCausland, 996 F.2d 1, 5 (1st Cir. 1993) (per curiam) (applying

equitable tolling in the context of the Civil Service Reform Act).

We see no reason for refusing to extend that principle to the AEDPA

context. We hold, therefore, that mental illness can constitute an

extraordinary circumstance, which may prevent a habeas petitioner

from understanding and acting upon his legal rights and thereby

equitably toll the AEDPA limitations period.

We proceed now to the second dimension of our inquiry.

Mental illness does not per se toll the AEDPA limitations period.

See Bolarinwa, 593 F.3d at 232; Hunter, 587 F.3d at 1308. There

must be some causal link between a petitioner's mental illness and

his ability seasonably to file for habeas relief. See, e.g.,

Bolarinwa, 593 F.3d at 232 (requiring that petitioner "demonstrate

that her particular disability constituted an 'extraordinary

circumstance' severely impairing her ability to comply with the

filing deadline, despite her diligent efforts to do so"); Hunter,

587 F.3d at 1308 (stating that "the alleged mental impairment must

have affected the petitioner's ability to file a timely habeas

petition"); Laws, 351 F.3d at 923 (allowing tolling so long as the

"petitioner's mental incompetence in fact caused him to fail to meet

the AEDPA filing deadline"); cf. Holland, 130 S. Ct. at 2562

(requiring a habeas petitioner to show that "some extraordinary

circumstance . . . prevented timely filing").
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In our view, a habeas petitioner satisfies the causation

requirement if he can show that, during the relevant time frame, he

suffered from a mental illness or impairment that so severely

impaired his ability either effectively to pursue legal relief to

his own behoof or, if represented, effectively to assist and

communicate with counsel. See Nunnally, 996 F.2d at 6-7 (framing

the question as "whether plaintiff's mental condition rendered her

incapable of rationally cooperating with any counsel, and/or

pursuing her claim on her own during the limitations period"). If

a habeas petitioner satisfies this standard, he should not be held

strictly accountable for complying with the AEDPA's filing deadline.

In the case at hand, the district court ruled that the

petitioner's mental illness was not sufficiently disabling to toll

the limitations period. Riva, 2007 WL 954771, at *6. We review a

district court's determination about whether a particular set of

facts warrants equitable tolling of the AEDPA's statute of

limitations for abuse of discretion. See Cordle v. Guarino, 428

F.3d 46, 47 (1st Cir. 2005); Neverson, 366 F.3d at 42. 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. See United States v. Lewis, 517

F.3d 20, 24 (1st Cir. 2008); Roger Edwards, LLC v. Fiddes & Son

Ltd., 427 F.3d 129, 132 (1st Cir. 2005).
 Under Massachusetts practice such a motion must be filed no 2

later than sixty days from the date of sentencing or such later

date when an appellate court either affirms the conviction or

denies review. See Mass. R. Crim. P. 29(a). 

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With this prelude, we turn to the time line in this case.

The petitioner's conviction became final in 1985, well before

Congress passed the AEDPA. Thus, the petitioner was entitled to a

one-year grace period running from April 24, 1996 (the AEDPA's

effective date) within which to seek federal habeas relief. See

Delaney, 264 F.3d at 10; Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir.

1999) (per curiam).

The petitioner did not file the instant habeas petition

until October 15, 2001. That was beyond the one-year grace period.

Thus, absent tolling, the statute of limitations would have expired

on April 24, 1997.

The petitioner's second motion to revise or revoke his

sentence is of no help to him. Even though that motion was pending

on April 24, 1996, it did not toll the limitations period because

it was not a "properly filed application for State post-conviction

or other collateral review." 28 U.S.C. § 2244(d)(2). The motion

to revise or revoke was filed in 1993, several years beyond the

period designated for the filing of such a motion. It follows that 2

the motion was untimely, and an untimely state post-conviction

motion is not properly filed. See Pace, 544 U.S. at 414; Artuz v.

Bennett, 531 U.S. 4, 8 (2000).
 The district court incorrectly stated that the statute of 3

limitations began to run anew on December 13, 1999, when the

superior court denied the motion. See Riva, 2007 WL 954771, at *4.

Tolling continued, however, as long as the state courts had the

motion under review. See Currie v. Matesanz, 281 F.3d 261, 266

(1st Cir. 2002) (explaining that a motion for new trial filed in

Massachusetts remains pending from the time it is first filed until

the time when the SJC denies further review). 

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The intervening period was partially tolled, however, by

the pendency of the petitioner's fourth new trial motion in state

court, so the clock did not run from March 17, 1999 (the date on

which that motion was filed) to June 7, 2001 (the date on which the

SJC denied the ALOFAR). The petitioner does not allege that the 3

four-month period between the latter date and his filing of the

instant petition for a writ of habeas corpus was tolled.

Consequently, the petition is time-barred unless the petitioner can

show that his mental illness tolled the limitations period during

most of the time span from April 24, 1996, to March 17, 1999 — what

we shall call the "tolling period."

The medical reports in the record indicate quite clearly

that the petitioner suffered from a debilitating mental illness

throughout the tolling interval. After his conviction, he was

committed to Bridgewater for a total of seventeen years, including

most recently from 1990 to 1999. The documented symptoms of his

paranoid schizophrenia included "bizarre delusions of a persecutory

nature, paranoid ideation, auditory hallucinations and somatic

terrors."
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The petitioner's annual master treatment plan, prepared

on June 28, 1996, confirms the incidence of these symptoms during

the tolling period. For example, the plan indicates that the

petitioner underwent "recent experiences of auditory and visual

hallucinations" and "urges to consume blood and flesh of others."

It also describes his "poor, schizotypal presentation combined with

[an] inability to manage bizarre impulses," which made him "a very

high danger to himself and others." Under the heading "Identified

Problem(s)," the plan notes a "delusional system marked by

violent/paranoid ideation."

The petitioner's position is further bolstered by the

testimonial evidence. In the district court, the petitioner

presented expert testimony vouchsafing that his mental illness

precluded him from consistently and effectively pursuing legal

relief until August of 1999 (that is, throughout the tolling

period). His symptoms did not subside until the doctors changed his

treatment protocol — a change that led to his discharge from

Bridgewater in August of 1999.

The petitioner's medical expert, Dr. Montgomery C. Brower,

is a forensic psychiatrist and former deputy medical director at

Bridgewater. He interviewed the petitioner in 2006 and reviewed the

medical records and court filings. In an affidavit submitted to the

district court, Dr. Brower explained that the petitioner was treated

with anti-psychotic medications during his stay at Bridgewater and
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that, although his acute psychotic symptoms improved with

medication, he nonetheless "continued to experience, and at times

act upon, an obsessional preoccupation with the delusion that he

needed to obtain and consume human flesh." Dr. Brower explained

that "this residual psychosis interfered with Mr. Riva's ability to

sustain the attention and effort necessary for him consistently and

effectively to pursue legal review on his own behalf." It was not

until the petitioner's treatment with a new drug, Zyprexa, beginning

in May of 1999, that his "delusional preoccupation with obtaining

and consuming human flesh progressively diminished, fading away

completely within nine months to a year."

Dr. Brower also examined the petitioner's writings made

both before and after his treatment with Zyprexa. The psychiatrist

concluded that "[d]ocuments written after . . . show better

organization and greater fluency and flexibility in Mr. Riva's

thinking."

The Commonwealth offered no expert testimony, so Dr.

Brower's views are uncontradicted. Those views are consistent with

the petitioner's affidavit, in which he declares that before the

administration of Zyprexa, "I experienced periods of lucidity during

which I was able to read, write, and think about my legal case.

These periods of lucidity were frequently disrupted by my

preoccupation with obtaining and consuming human flesh. Thus,
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before August 1999, I could not focus long and well enough to

properly attend to my legal case."

The district court rejected the testimony of Dr. Brower,

relying instead on (i) the court filings made by the petitioner from

1985 to 1999 and (ii) observations about the petitioner's

intelligence (contained in the 1999 Bridgewater discharge summary).

See Riva, 2007 WL 954771, at *5-6. Although a trial court need not

accept uncontradicted expert testimony, see, e.g., Parrilla-López

v. United States, 841 F.2d 16, 19 (1st Cir. 1988), it must

articulate a reasoned basis for refusing to do so. The district

court's reasoning was flawed.

For one thing, the court's analysis of the petitioner's

filings contains several factual errors. The court stated that the

petitioner filed four pro se habeas petitions between 1985 and 1999.

Riva, 2007 WL 954771, at *5. In fact, the petitioner filed three

habeas petitions during that interval, only two of which were filed

pro se. The court further stated that the petitioner made three pro

se filings during the tolling period, referencing a 1996 motion for

new trial, a 1998 petition for habeas corpus, and a 1999 petition

for habeas corpus. Id. There was no 1996 pro se motion for new

trial. The record reflects that the petitioner's counsel filed a

motion for new trial in 1995, and the petitioner filed a pro se

motion for new trial on March 17, 1999 (which tolled the running of

the limitations period). To be sure, there was a 1998 habeas
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petition, but it was not filed pro se. There was no habeas petition

filed in 1999.

Courts should not be held to a standard of perfection, and

small factual errors — even a series of small factual errors — do

not necessarily undermine a trial court's ruling. But everything

depends on context. Here, the court's factual errors are

significant because, in the aggregate, they cast doubt upon its

primary reason for rejecting the petitioner's uncontradicted expert

testimony: the district court reasoned that the petitioner's

"repeated submissions to courts" during the tolling period

manifested his ability effectively to exercise his legal rights.

Id. at *6. The court's misapprehension of the relevant facts shakes

our confidence in this conclusion.

Withal, there is one pro se filing reflected in the record

during the tolling period: the petitioner's request voluntarily to

dismiss his 1996 habeas petition based on exhaustion concerns. This

filing tends to indicate the petitioner's understanding of his legal

rights. But that motion, too, must be weighed in context. The

record indicates that the petitioner never served the respondent in

that case and, for aught that appears, never made any substantive

filings.

The petitioner's 1998 habeas petition also falls within

the tolling period. That petition, however, was drafted and filed

by counsel retained by the petitioner's father. There is no
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evidence that the petitioner communicated with counsel regarding

this filing; indeed, the petitioner alleges, again without

contradiction in the record, that the petition was filed without his

consent. This is borne out, at least inferentially, by the fact

that the petition was dismissed for want of prosecution.

A second — and deeper — flaw in the district court's

analysis is its heavy reliance on the fact of the petitioner's

filings as opposed to either their content or their quality. This

flaw is exacerbated by two other data points: the court's failure

to address the petitioner's ability to sustain the lucidity

necessary to effectively pursue legal redress once filings were

effected, and its failure to consider whether the counselled filings

enjoyed the petitioner's effective participation.

To illustrate, the district court relied on the fact that

the petitioner, either pro se or through counsel, had taken a direct

appeal and filed four new trial motions in the state courts. Id.

at *5. Yet the court did not discount these filings at all despite

the petitioner's obvious insanity at certain critical times (e.g.,

while counsel was pressing the second motion for new trial, the

petitioner assaulted a correctional officer under a paranoid

delusion and was recommitted to Bridgewater).

By the same token, the district court did not take into

account that, after the petitioner's third motion for new trial was

denied and the petitioner's counsel withdrew, the petitioner's pro
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se appeal was dismissed on February 23, 1996, for want of

prosecution. That dismissal, ignored by the district court, tends

to support Dr. Brower's conclusion that, during the tolling period,

the petitioner's "residual psychosis interfered with [his] ability

to sustain the attention and effort necessary for him consistently

and effectively to pursue legal review on his own behalf."

The final cause for concern involves the district court's

reliance on a report of the petitioner's intelligence. The court

reasoned that the petitioner's mental illness did not prevent him

from complying with the filing deadline in part because his "overall

cognitive abilities fall in the upper end of the average range." Id.

But this is something of a non-sequitur. The petitioner is not

claiming that he lacked the intelligence to comprehend and act upon

his legal rights but, rather, that he lacked the sanity necessary

to consistently and effectively pursue his legal rights. 

There is no necessary correlation between intelligence and

sanity, and the petitioner's claim does not depend on his IQ. In

fact, the very report that contained the information about the

petitioner's high intelligence noted that his "test profile reflects

considerable test scatter, suggestive of uneven and disrupted

functioning." And Dr. Brower concluded that the petitioner's high

IQ substantiated the diagnosis of schizophrenia because the large

discrepancy between the petitioner's verbal and performance IQ

"typically indicates an organic abnormality in the functioning of
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the left hemisphere of the brain," which is "associated with

schizotypal personality disorder and schizophrenia." 

We have held that when a district court "plainly

consider[s] all the pertinent factors and no impertinent ones," and

provides a "thorough explanation" of its reasoning, its "refusal to

apply principles of equitable tolling to salvage the petitioner's

time-barred habeas application" does not constitute an abuse of

discretion. Delaney, 264 F.3d at 15; see Donovan v. Maine, 276 F.3d

87, 93 (1st Cir. 2002). Here, however, the lower court failed to

consider relevant factors such as the content and quality of the

petitioner's court filings. To compound this oversight, the court

relied on an impertinent factor: the petitioner's raw intelligence.

Finally, the court's explanation for rejecting the uncontroverted

expert testimony depended on mischaracterizations of the facts.

These difficulties, in combination, counsel against a finding that

the district court acted within the encincture of its discretion in

rejecting the petitioner's claim of equitable tolling.

Let us be perfectly clear. This is a complex case, in

which various pieces of evidence point in different directions. It

is a close call as to whether or not equitable tolling is warranted,

and we do not suggest what that call ultimately should be. Here,

however, there are simply too many unanswered questions to permit

the judgment below to stand. Accordingly, we vacate the judgment

and remand to the district court for further development of the
 The petitioner argues in the alternative that his actual 4

innocence tolled the statute of limitations. See David, 318 F.3d

at 347-48 (expressing skepticism as to whether a habeas

petitioner's actual innocence can override the AEDPA's limitations

period). The district court did not pass upon this claim. On

remand, the district court should consider it. See Kuenzel v.

Allen, 488 F.3d 1341, 1343 n.3 (11th Cir. 2007) (per curiam); see

also López López v. Aran, 844 F.2d 898, 910 n.16 (1st Cir. 1988).

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record with a view toward determining whether the petitioner's

mental illness so severely impaired his ability effectively to

pursue legal relief, either on his own behalf or through counsel,

as to warrant equitable tolling of the AEDPA limitations period.4

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we vacate the judgment and remand for further proceedings consistent

with this opinion.

Vacated and remanded.