United States Court of Appeals 

For the First Circuit 

No. 18-1066 

LARRY BLUE, 

Petitioner, Appellant, 

v. 

SEAN MEDEIROS, 

Respondent, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Allison D. Burroughs, U.S. District Judge] 

Before 

Thompson, Selya, and Lipez, 

Circuit Judges. 

Ashley P. Allen, with whom Patricia A. DeJuneas and Sibbison 

& DeJuneas were on brief, for appellant. 

Eva M. Badway, Assistant Attorney General, with whom Maura 

Healey, Attorney General, was on brief, for appellee. 

January 4, 2019 
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THOMPSON, Circuit Judge. 

The Antiterrorism and Effective Death Penalty Act of 

1996 ("AEDPA"), 28 U.S.C. § 2244(d)(1), establishes a one-year 

statute of limitations for a state prisoner to file a federal 

habeas corpus petition under 28 U.S.C. § 2254. The one-year period 

generally starts when a prisoner's conviction becomes final, but 

may be tolled, pursuant to the statute, during the time in "which 

a properly filed application for State post-conviction or other 

collateral review with respect to the pertinent judgment or claim 

is pending." Id. § 2244(d)(2). 

 Petitioner Larry Blue, a Massachusetts prison inmate, 

filed a petition for habeas corpus relief which the district court 

dismissed as time-barred under AEDPA's statute of limitations. 

Petitioner now seeks reconsideration of that ruling based on two 

tolling theories. First, Petitioner argues that the statute of 

limitations should be statutorily tolled during the month-pluslong pendency of his motion to stay the execution of his sentence, 

because that motion, he urges, constitutes an application for 

collateral review under § 2244(d)(2). Second, Petitioner argues, 

essentially, that unique circumstances surrounding his conviction 

justify equitable tolling of the time between the finality of his 

Commonwealth convictions and the filing of his habeas petition. 

For reasons explained below, we reject these arguments and affirm 

the dismissal of Petitioner's habeas corpus petition. 
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I. Background 

 Because dates are crucial to our evaluation of 

Petitioner's claims, we ask the reader's patience as we detail the 

travel of the proceedings below. On August 18, 2010, following a 

trial by jury, Petitioner was convicted of multiple Massachusetts 

state law crimes, including drug trafficking, drug possession, and 

unlicensed firearm and ammunition possession. Thereafter, he 

pleaded guilty to additional related charges and was handed a 

cumulative sentence of up to ten years and a day to serve.

 Petitioner pursued various avenues of post-conviction 

relief in the Commonwealth courts.1 On June 14, 2012, Petitioner 

filed a direct appeal of his convictions, based in part on 

arguments previously raised and rejected by the trial court that 

there were defects in the search warrants that led to his arrest. 

Additionally, Petitioner premiered a new argument challenging the 

constitutionality of Massachusetts's gun licensing regime.

 While Petitioner's appeal was pending, revelations of 

widespread misconduct at the Commonwealth's crime lab, the William 

A. Hinton State Laboratory Institute, came to light with stateemployed chemist Annie Dookhan in the maelstrom of the scandal. 

In response to these disclosures, in August 2012, Massachusetts's 

 1 First, he filed a motion for a new trial, based on his 

assertion that the court reporter was unable to produce a full 

transcript of his trial. This motion was denied the following day 

when the parties collaborated to reconstruct the missing record. 
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governor shuttered the lab and ordered an independent 

investigation.2 Dookhan, after being hit with multiple indictments 

for falsifying drug test results, lying about her credentials, and 

perjuring herself in court (including during Petitioner's trial), 

eventually pled guilty to twenty-seven counts on November 22, 2013. 

 Meanwhile, the Appeals Court of Massachusetts denied 

Petitioner's direct appeal on September 27, 2013. Commonwealth v. 

Blue, 994 N.E.2d 817 (Table), 2013 WL 5377118 (Mass. App. Ct. 

2013). First, it cited its agreement with the trial court's 

reasoning for the denial of Petitioner's search warrant 

suppression motions. And next, it pointed out the futility of 

Petitioner's constitutional challenge, noting the state's gun 

licensing regime had already been given the green light by the 

Massachusetts Supreme Judicial Court ("SJC"). Id. Hoping to 

change minds, Petitioner filed a motion for rehearing, but the 

appeals court promptly denied it. 

 Soldiering on, Petitioner sought further appellate 

review with the SJC in October 2013. However, that application 

was summarily denied without discussion on November 21, 2013. 

Commonwealth v. Blue, 998 N.E.2d 342 (Mass. 2013) (Table). Ninety 

 2 Not long after the Dookhan misconduct was made public, an 

entry in the trial court docket reflects that Petitioner filed a 

motion to stay the execution of his sentence on March 12, 2013. 

The docket notation reads "(Drug Lab)"; the motion was withdrawn 

in June 2013. 
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days later, on February 19, 2014, Petitioner's convictions became 

final; that is the moment the AEDPA statute of limitations clock 

began to tick.3

 In the wake of the Dookhan fiasco, Petitioner filed with 

the trial court a second motion to stay the execution of his 

sentence, pursuant to Massachusetts Rule of Criminal Procedure 31 

("Rule 31").4 In that February 21, 2014 filing he asserted his 

belief that Dookhan's misconduct would likely result in the grant 

of a new trial on all charges given (1) the unreliability of the 

laboratory testing supporting his drug convictions and (2) the 

overall taint Dookhan's perjured testimony cast on his 

convictions, due to the prosecutor weaving together the drug 

dealing and the gun possession throughout the trial. In a 

memorandum in support of his stay motion, Petitioner announced his 

intention to file a renewed motion for a new trial "shortly," based 

on Dookhan's perjury and other grounds. 

 3 Cordle v. Guarino, 428 F.3d 46, 48 (1st Cir. 2005) ("The 

SJC affirmed [the] convictions on March 11, 1992; her convictions 

became final ninety days thereafter."). 

 4 The Commonwealth's investigation into the Hinton Lab came 

to an end, concluding that, while Dookhan was "the sole bad actor" 

at the lab, poor and inadequate training, protocols, and management 

had allowed her conduct to go undetected for years. It was 

conservatively estimated that Dookhan worked on close to 34,000 

cases during her years at the lab. Commonwealth v. Charles, 992 

N.E.2d 999, 1003 (Mass. 2013). 
- 6 - 

 Back at the SJC, while Petitioner's motion to stay was 

pending, the Commonwealth high court weighed in on the Dookhan 

debacle: in cases where Dookhan had served as a primary or 

secondary chemist for drug analysis, all defendants were entitled 

to a conclusive presumption that her conduct was egregious and 

attributable to the Commonwealth. Commonwealth v. Scott, 5 N.E.3d 

530, 535 (Mass. 2014). That presumption notwithstanding, soon 

after the Scott opinion issued, Petitioner's motion for a stay of 

the execution of his sentence was denied on March 27, 2014. The 

trial court found that Petitioner's firearms convictions were 

unaffected by Dookhan's misconduct and as such, he was unlikely to 

receive a new trial. 

 Undeterred, on May 5, 2014, Petitioner filed a second 

motion for a new trial based on two theories. First, he framed 

the revelation of Dookhan's perjury as "newly-discovered 

evidence," casting doubt on the fairness of his conviction. (For 

all intents and purposes, this taint argument is the same one that 

had just been rejected by the court in response to his stay 

motion.) His second argument, ineffective assistance of counsel, 

was essentially a repackaging of the earlier defective search 

warrant claims.5 

 5 Petitioner alleged that the warrants failed to establish 

timely probable cause because of their technical shortcomings, and 

that his attorney was ineffective for failing to properly argue 
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 On January 20, 2015, acting on Petitioner's new trial 

motion, the trial court granted it as to the drug charges, and 

denied it as to the gun charges. Commenting on the drug 

convictions, the court conceded that, even though extensive 

evidence supported Petitioner's drug charges aside from Dookhan's 

perjured testimony, her testimony had, nonetheless, tainted the 

drug convictions. As for the gun charges, the court found no 

connection between Dookhan's testimony and those convictions. 

Finally, the trial court dismissed the ineffective assistance 

claim, describing it as not distinct from Petitioner's prior search 

warrant claims, and writing: 

[T]he Appeals Court implicitly rejected the defendant's 

instant claim . . . and made rejection explicit when it 

refused the defendant's petition for rehearing. The 

issue is settled and need not be considered on its merits 

here. 

Two days later Petitioner appealed the partial denial to the 

appellate court, and sought further review after this first appeal 

was denied. Commonwealth v. Blue, 46 N.E.3d 114 (Table), 2016 WL 

757758 (Mass. App. Ct. 2016). The Commonwealth nolle prossed the 

drug charges at the end of January 2015.6 And, on April 27, 2016, 

 

the defects -- an interpretive gloss that he had not explicitly 

raised before. 

6 "Nolle prossed" comes from the Latin phrase "nolle 

prosequi," translated as "we shall no longer prosecute." In this 

context, it means that the Commonwealth dropped all the drug 

charges against Petitioner. 
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the SJC entered a final denial of Petitioner's application for 

further appellate review of his motion for a new trial.7

 Almost eleven months8 later, on March 20, 2017, 

Petitioner filed his federal petition for a writ of habeas corpus, 

premised solely on his allegations of ineffective assistance of 

counsel.9 On the motion of Respondent Norfolk prison 

superintendent Sean Medeiros, the district court dismissed the 

petition as time-barred under AEDPA. Blue v. Medeiros, No. 17-

cv-10464-ADB, 2017 WL 5297910, at *1 (D. Mass. Nov. 13, 2017). In 

so doing the district court held that Petitioner's motion to stay 

the execution of his sentence did not toll AEDPA's one-year time 

limit, under 28 U.S.C. § 2244(d)(2), because it was not an 

"application for . . . collateral review." The court held further 

that Petitioner was not entitled to equitable tolling because the 

issues created by the Hinton Lab misconduct did not impose a bar 

 7 There is no dispute that the AEDPA statute of limitations 

was tolled for the almost two-year period that his motion for a 

new trial was pending, from May 5, 2014, through April 27, 2016. 

8 327 days, to be precise. 

9 Again, Petitioner alleged that the search warrants 

underlying his arrest and conviction failed to establish probable 

cause, and that trial counsel failed to argue this effectively. 

These arguments are not before us in this appeal. Peralta v. 

United States, 597 F.3d 74, 83 (1st Cir. 2010) (general rule is 

that "a court of appeals should not consider the merits of an issue 

advanced by a habeas petitioner unless a COA [certificate of 

appealability] first has been obtained with respect to that issue" 

(quoting Bui v. DiPaolo, 170 F.3d 232, 237 (1st Cir. 1999))).
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to Petitioner filing a motion for a new trial concurrently with 

his motion for stay of execution (recall Petitioner's stay motion 

was filed on February 21, 2014, while his new trial motion was not 

filed until May 5, 2014); and because, even after his motion for 

a new trial was denied and the Commonwealth had abandoned the drug 

charges, Petitioner allowed eleven months to pass by before filing 

the petition for the writ of habeas corpus. 

 In his present appeal, Petitioner advances two 

arguments relative to the timeliness of his habeas petition; we 

take each in turn. Because the district court denied Petitioner 

relief "on a procedural ground without taking evidence," we apply 

de novo review. Holmes v. Spencer (Holmes I), 685 F.3d 51, 58 

(1st Cir. 2012) (quoting Wood v. Spencer, 487 F.3d 1, 3 (1st Cir. 

2007)). 

II. Statutory Tolling 

First, Petitioner argues that his motion to stay the 

execution of his sentence tolled AEDPA's statute of limitations, 

because it is a properly filed application for "collateral review" 

as contemplated by 28 U.S.C. § 2244(d)(2). In support of his 

assertion that "the plain meaning" of AEDPA's tolling provision 

"includes post-conviction motions [like a motion to stay] heard by 

the trial judge," Petitioner cites Wall v. Kholi (Kholi III), 562 

U.S. 545 (2011). To better understand Petitioner's argument, a 

brief discussion of Kholi is in order. 
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Khalil Kholi was convicted by the Rhode Island Superior 

Court of repeated acts of sexual assault on his two young stepdaughters and received two consecutive life sentences. He appealed 

the convictions and simultaneously filed a motion to reduce his 

sentence; both were unsuccessful. State v. Kholi, 706 A.2d 1326 

(R.I. 1998); State v. Kholi, 672 A.2d 429 (R.I. 1996). 

Kholi then filed a petition for a writ of habeas corpus

in the federal district court, which denied relief after finding 

the petition time-barred by AEDPA. Kholi v. Wall (Kholi I), No. 

07-346S, 2008 WL 60194 (D.R.I. Jan. 3, 2008). In so concluding, 

the court held that Kholi's motion to reduce his sentence, brought 

pursuant to Rule 35 of Rhode Island's criminal procedure rules,10

did not constitute an application for "collateral review" under 

AEDPA, and thus did not toll the limitations period. Instead, the 

court reasoned that "a motion for correction or reduction of 

sentence contemplates the defendant returning to the same court, 

and pleading for mercy before the same judge that imposed the 

original sentence and thus, is not 'collateral' within the meaning 

of AEDPA." Id. at *3 (citing Walkowiak v. Haines, 272 F.3d 234, 

237-38 (4th Cir. 2001)). 

Kholi appealed and we reversed, holding that "a state 

post-conviction motion for a sentence reduction, in the nature of 

 10 R.I. Super. Ct. R. Crim. P. 35 (a).
- 11 - 

a plea for discretionary leniency, comes within the [AEDPA] 

statutory sweep." Kholi v. Wall (Kholi II), 582 F.3d 147, 156 

(1st Cir. 2009). In reaching this conclusion, we stressed the 

importance of encouraging state prisoners to exhaust state court 

remedies before seeking federal habeas review. Id. at 155. 

The state of Rhode Island sought further review and the 

Supreme Court granted certiorari. Kholi III, 562 U.S. at 551-53. 

In affirming our ruling the Court carefully parsed the AEDPA 

tolling language. Defining the phrase "collateral review" in the 

AEDPA context, the Court stated, "[v]iewed as a whole, then, 

'collateral review' of a judgment or claim means a judicial 

reexamination of a judgment or claim in a proceeding outside of 

the direct review process." Id. at 553. In considering whether a 

Rule 35 motion would trigger collateral review, the Supreme Court 

analyzed the meanings of the words "collateral" and "review." Id. 

at 555-56. 

Reasoning that a motion to reduce the sentence was 

traditionally viewed as a collateral challenge, and was in no 

instance a part of the direct review process, the Court quickly 

determined that the motion was collateral. Id. at 555. The Court 

then moved on to examine its understanding of the word "review." 

Based on the operation of the state's criminal rule, the motion 

would require a "judicial reexamination of the sentence to 

determine whether a more lenient sentence is proper" and it 
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therefore resulted in a review. Id. Consequently, the Court 

determined that Kholi's motion to reduce his sentence constituted 

an application for collateral review which triggered AEDPA's 

tolling provision. Id. at 556; see also Holmes I, 685 F.3d at 60; 

Kholi II, 582 F.3d at 153 ("Taking into account this quotidian 

understanding, it seems self-evident that a motion for a sentence 

reduction in the nature of a plea for discretionary leniency is a 

motion that seeks post-conviction 'review' of a sentence and, thus, 

is a motion that falls squarely within the plain meaning of section 

2244(d)(2)."). 

As our Petitioner would have it, his Massachusetts Rule 

31 motion to stay execution of sentence is no different from the 

Rule 35 motion discussed in Kholi III, and as such the district 

court erred when it deemed AEDPA's tolling provision not triggered. 

However, while we agree with Petitioner that his motion is, 

assuredly, a collateral one, we find it does not have the power to 

generate a review. As the government correctly suggests, we must 

turn to Massachusetts law to explain why. Carey v. Saffold, 536 

U.S. 214, 223 (2002) ("[F]or purposes of applying a federal statute 

that interacts with state procedural rules, we look to how a state 

procedure functions . . . ."); Lewis v. Jeffers, 497 U.S. 764, 

780-81 (1990) (urging deference to a state court's "application of 

its own law" in habeas context). 
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Rule 31 allows a trial judge or a single justice of the 

Commonwealth's appellate court to make a discretionary ruling 

staying the imposition of a sentence during the pendency of an 

appeal.11 While the ruling on the stay will not be reversed absent 

an abuse of discretion, the judge generally requires a 

demonstration that the defendant has a reasonable likelihood of 

success on appeal. See Commonwealth v. Levin, 388 N.E.2d 1207, 

1208 (Mass. App. Ct. 1979). That means evaluating whether or not 

the appeal is frivolous, or whether it is "an appeal which presents 

an issue which is worthy of presentation to an appellate court, 

one which offers some reasonable possibility of a successful 

decision in the appeal." Id. at 1209. More recently, the SJC has 

described this analysis as a "pure question of law or legal 

judgment," which in no way prejudges "the merits of the defendant's 

direct appeal." Commonwealth v. Mattier, 49 N.E.3d 227, 228-29 

(Mass. 2016) (quoting Commonwealth v. Allen, 392 N.E.2d 1027, 1033 

(Mass. 1979)).12

We have noted in the past that not all filings by a 

criminal defendant which seek to advance a challenge to a judgment 

 11 The order is temporary and automatically expires upon 

affirmation of the conviction, unless it is extended by the 

appellate court. It may also be revoked. Rule 31(a), (b). 

12 In addition to the merits evaluation, the judge 

entertaining the motion must also consider issues relating to 

security, such as the defendant's risk of flight or likelihood of 

committing new criminal acts. Levin, 388 N.E.2d at 1210.
- 14 - 

of conviction constitute a collateral review for AEDPA purposes. 

Rodriguez v. Spencer, 412 F.3d 29, 37 (1st Cir. 2005) (petition 

for extraordinary relief not application for collateral review); 

Voravongsa v. Wall, 349 F.3d 1, 7 (1st Cir. 2003) (pro se motion 

for appointment of state post-conviction counsel not collateral 

review); see also Bridges v. Johnson, 284 F.3d 1201, 1203 (11th 

Cir. 2002) (application before a state sentence review panel not 

collateral review); Adeline v. Stinson, 206 F.3d 249, 252 (2d Cir. 

2000) (motion to revive an appeal not collateral review). 

Similarly here, from our perspective, the Rule 31 screening process 

lacks the indicia of a "review" for this reason: Even though a 

judge must take a peek at the underlying claim to see if the merits 

are hopeless, she has no authority to either alter the judgment or 

change the sentence. See Kholi II, 582 F.3d at 151 (in the typical 

case, application for post-conviction relief that "does not seek 

to alter (or even to reexamine) the judgment" does not toll 

statute). 

For these reasons, after a fresh review of Petitioner's 

claims, we hold that a motion to stay the execution of a sentence, 

under Rule 31, does not constitute a motion for collateral review, 

and its filing does not trigger AEDPA's tolling provisions.13 

 13 Even if the statute of limitations were tolled during the 

pendency of his motion to stay the execution of his sentence, he 

still goes over the statutory time limit. He has a short two 

days between the date his convictions became final and the date he 
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III. Equitable Tolling 

Petitioner's second argument -- that equitable tolling 

applies to his habeas filing -- is grounded in principles of equity 

and fairness, and is primarily focused on the disruption in the 

Commonwealth's administration of justice caused by Dookhan's 

deceitful misconduct.14 In claiming that his petition for habeas

corpus relief should be permitted to go forward, Petitioner offers 

the following argument: "The lower court presumed that equitable 

tolling can only apply to the time immediately preceding the filing 

of the habeas corpus petition, rather than to any period of time 

after a conviction becomes final. . . .As far as petitioner is 

aware, there is no requirement that the petitioner show a permanent 

impediment from filing or to justify the year in which petitioner 

has to file his application for a writ of habeas corpus." 

Petitioner's argument, then, seems to have two parts which go like 

this. First, he says that the 75 days between February 19, 2014, 

the date his convictions became final, up to May 5, 2014, when he 

filed his motion for a new trial, must be equitably tolled because 

 

filed his motion for a stay. Then, 39 days elapse between the 

denial of his motion to stay and the filing of his motion for a 

new trial. If you add those 41 days to the 327 days he waited 

between the final exhaustion of all state court review and the 

date he filed the present writ, you get 368 days -- three days 

over the statutory time limit. 

 14 As mentioned earlier, based on Scott, 5 N.E.3d at 535, this 

conduct may be attributed to the Commonwealth. 
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during this time he was diligently pursuing state-court relief, 

and yet was thwarted by the difficulties posed by the Hinton Lab 

investigation. As he tells it: "The magnitude of the problem 

effectively reopened and called into question thousands of 

convictions. What followed were delays in post-conviction 

hearings, discovery issues, and an on-going, ultimately fifteenmonth, investigation by the Office of the Inspector General into 

the Hinton State Drug Laboratory that concluded on March 4, 2014." 

Second, as for the time from April 27, 2016 to March 20, 

2017, when Petitioner filed his habeas petition, he seems to be 

contending that this period should be excluded altogether from our 

equitable tolling analysis. We consider Petitioner's contentions, 

keeping in mind the guiding principles discussed next. 

To establish a basis for equitable tolling, a habeas

petitioner must demonstrate that he or she has diligently pursued 

her rights, but some extraordinary circumstance, or obstacle, 

prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 

(2010); Holmes I, 685 F.3d at 62. The diligence prong covers those 

affairs within the petitioner's control, while the extraordinarycircumstances prong covers matters outside his control. Menominee 

Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 755-57 

(2016). It is up to the petitioner to establish "a causal 

relationship between the extraordinary circumstances on which the 

claim for equitable tolling rests and the lateness of his filing." 
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Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000). 

Additionally, "we apply equitable tolling on a case-by-case basis, 

avoiding mechanical rules and favoring flexibility." Ortega 

Candelaria v. Orthobiologics LLC, 661 F.3d 675, 680 (1st Cir. 

2011). That said, equitable tolling is applied infrequently, 

Holmes I, 685 F.3d at 62, and abuse-of-discretion is the lens 

through which we review an equitable tolling decision, Holmes v. 

Spencer (Holmes II), 822 F.3d 609, 612 (1st Cir. 2016). This 

standard of review is nuanced; "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." Holmes I, 685 F.3d at 62 (quoting Riva v. Ficco, 615 

F.3d 35, 40 (1st Cir. 2010)). 

 In support of his two-part equitable tolling theory (to 

remind the reader: the period between the date of his final 

conviction and the date he filed his motion for a new trial should 

be equitably tolled in full, and the eleven-month post new trial 

denial period should be ignored altogether), Petitioner cites to 

Holmes I. Accordingly, closer scrutiny of that case is warranted. 

 In Holmes I, habeas petitioner Holmes sought both 

statutory and equitable tolling: statutory for a period during 
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which his motion to revise or revoke his sentence was pending;15 

equitable for the same period based on the obstacles imposed by 

his incarceration, and by the incorrect legal filing he made in 

reliance on misleading advice from his lawyer during plea 

bargaining. Holmes I, 685 F.3d at 55-56. On appeal this court 

affirmed the district court in part, agreeing that, while Holmes's 

motion to revise or revoke his sentence was in fact an application 

for collateral review under AEDPA (based on the newly-minted Kholi 

III decision), it still was not "properly" filed under 

Massachusetts law (his filing did not specify the grounds upon 

which the motion was based as Rule 29 requires)16 and so did not 

trigger the statutory tolling mechanism within the meaning of 28 

U.S.C. § 2244(d)(2). Id. at 60-61. However, we remanded the 

matter to the district court to review its equitable tolling 

ruling, pointing out that Holmes's belief that he had in fact 

properly filed his motion to revise or revoke his sentence might, 

 15 Holmes's motion was brought pursuant to Massachusetts Rule 

of Criminal Procedure 29, a rule indistinguishable from Rhode 

Island's Rule 35 discussed in Kholi III. 

16 An application is "properly filed" for AEDPA purposes "when 

its delivery and acceptance are in compliance with the applicable 

laws and rules governing filings." Holmes I, 685 F.3d at 67 

(quoting Artuz v. Bennett, 531 U.S. 4, 8 (2000)). 

 
- 19 - 

after Kholi III, provide an equitable basis for excluding the time 

the motion was pending.17 Id. at 63-66. 

Petitioner is correct that our Holmes I decision spends 

much time and analysis scrutinizing the almost nine-year period 

between Holmes's guilty plea and the final denial of 

reconsideration from the Commonwealth court, during which time he 

argued that he faced extraordinary obstacles (a lot was going on 

during those nine years). Then, extrapolating from the focus of 

that discussion, Petitioner posits that the additional seven-month 

period between the final ruling by the Commonwealth court and the 

date Holmes filed his petition for habeas corpus must not have 

been relevant to our equitable tolling analysis. "There was no 

weight given to, or even mention of, the seven months it took 

[Holmes] to file his habeas petition after his conviction became 

final," Petitioner writes in his brief. Therefore, according to 

Petitioner, it logically follows that in his case, the elevenmonth period between the conclusion of the Commonwealth court 

review and the filing of his habeas petition is not relevant to 

 17 This court rejected Holmes's arguments that allegedly bad 

advice from his lawyer, coupled with the disadvantages of 

incarceration, justified equitable tolling, suggesting sua sponte

a third ground for equitable tolling instead. As it turned out, 

on remand, the district court held that there was no basis for 

equitable tolling and again denied Holmes's petition as untimely. 

The ruling was affirmed by this court in Holmes II. 822 F.3d at 

612. 
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our assessment of extraordinary circumstances or diligence when it 

comes to an equitable tolling analysis. 

Unfortunately, Petitioner misconstrues our Holmes I 

rationale. A careful read makes it clear that we considered the 

entire period leading up to the filing of the habeas petition when 

we wrote, "[t]he 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 [the date of Holmes's guilty plea] and April 

9, 2008 [the filing date of the habeas petition]." Id. at 57. Of 

course, given the procedural intricacies that animated Holmes's 

journey through the Commonwealth criminal justice system, we had 

reason to more closely examine the months during which Holmes 

claimed he was prevented by circumstances outside of his control 

from filing his habeas petition; but unquestionably, as clearly 

noted in our decision, the full period was taken into account in 

calculating the operation of the AEDPA time limit. Id. at 57-61. 

Thus, with Holmes I's timing calculus properly understood, we 

return to Petitioner's argument. 

To briefly recap the timeline: approximately three 

years and a month went by between the date Petitioner's convictions 

became final and the date he filed his habeas petition.18 After 

 18 In its argument on equitable tolling, the government comes 

up with a different set of calculations. The government starts 
- 21 - 

Petitioner's motion for a new trial was finally denied, eleven 

months went by before the present motion got filed. Even if we 

were to accept Petitioner's argument that the entire Dookhan 

debacle posed an insurmountable obstacle to Petitioner's filing a 

timely habeas proceeding prior to the SJC's final resolution of 

his motion for a new trial on April 27, 2016, he nevertheless can 

point to no fact which demonstrates any obstacle, extraordinary or 

otherwise, that hindered his filing of a habeas petition during 

the final eleven months. Nor can he point to any behavior on his 

part that would demonstrate reasonable diligence in pursuing his 

rights during the final eleven months. When Petitioner's motion 

for a new trial was denied, it should have been clear to him that 

all state-court avenues for relief had been exhausted. That is 

the moment he needed to move swiftly to preserve his federal rights 

as the Hinton Lab misconduct could no longer be described as 

 

the clock on November 21, 2013, the date that Petitioner's 

application for further state-level appellate review was denied. 

The government concludes then that 165 days elapsed before 

Petitioner filed his motion for a new trial. This court has 

generally determined that the judgment becomes final after an 

additional ninety days have elapsed to allow for the filing of a 

petition for certiorari, see Neverson v. Farquharson, 366 F.3d 32, 

36 (1st Cir. 2004), starting the AEDPA clock then after that 

ninety-day period. With its argument, the government seeks to 

underscore that the Petitioner also had this ninety-day period 

available during which he might have filed his motion for a new 

trial, thereby undermining Petitioner's diligence argument. The 

government does not press an argument about this clock-starting 

date, and, in any case, this discrepancy is not determinative of 

the outcome. 
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impeding his ability to seek post-conviction review. See Neverson 

v. Farquharson, 366 F.3d 32, 44 (1st Cir. 2004). As the government 

correctly points out, the Commonwealth nolle prossed Petitioner's 

drug charges in January 2015. As these were the only charges 

directly affected by Dookhan's malfeasance, the putative obstacle 

posed by the Hinton Lab issues dematerialized over a year before 

his motion for a new trial was denied. Petitioner's argument that 

the gun-related convictions were tainted by the prosecutor's 

closing remarks at trial (connecting the drugs with the gun) had 

been repeatedly rejected by the Commonwealth courts by April 2016 

-- twice by the trial court, once by the appellate court, and 

finally by the SJC. As a result, Petitioner's hope, or misguided 

belief, that this theory might provide him a lifeline could no 

longer be reasonably understood as an obstacle preventing him from 

pursuing his federal remedy. 

IV. Conclusion 

Because we find that Petitioner's motion to stay the 

execution of his sentence was not a request for collateral review 

and so did not toll the one-year statute of limitations in the 

Antiterrorism and Effective Death Penalty Act, and because we find 

no reason to disrupt the district court's discretionary ruling on 

equitable tolling, we affirm the dismissal of Petitioner's 

petition for a writ of habeas corpus as time-barred.