United States Court of Appeals

For the First Circuit

No. 20-1471

DENNIS SENA,

Petitioner, Appellant,

v.

STEVEN KENNEWAY, Superintendent, MCI-Shirley,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

[Hon. Judith G. Dein, U.S. Magistrate Judge]

Before

Lynch, Selya, and Kayatta,

Circuit Judges.

Elizabeth Prevett, with whom Jonathan Scott Lauer was on 

brief, for appellant.

Gabriel Thornton, Assistant Attorney General, with whom Maura 

Healey, Attorney General of Massachusetts, was on brief, for 

appellee.

May 12, 2021
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SELYA, Circuit Judge. Federal habeas review for state 

prisoners is subject to a one-year limitations period, which 

generally runs either from the conclusion of direct review or the 

expiration of the time allotted for seeking direct review. See 28 

U.S.C. § 2244(d)(1)(A). The Supreme Court has recognized, though, 

that this one-year period sometimes may not provide a sufficient

interval for the exhaustion of a state prisoner's claims in state 

court. See Rhines v. Weber, 544 U.S. 269, 275 (2005). To guard 

against injustice, the Court has approved a procedure — commonly 

known as a motion for a stay and abeyance — through which a state 

prisoner may file his federal habeas petition and seek additional 

time, subject to certain preconditions, to exhaust his state 

remedies. See id. at 277-78. One such precondition requires the 

petitioner to show good cause for his failure to have exhausted a 

particular claim or claims in state court. See id. at 277.

In this case, the district court, rejecting a magistrate 

judge's recommendation, held that petitioner-appellant Dennis 

Sena, a state prisoner, had not satisfied the good cause 

requirement.1 The court proceeded to deny the petitioner's motion 

for a stay in abeyance and dismissed his habeas petition. See

Sena v. Kenneway, No. 19-10254, 2020 WL 1429849, at *2-3 (D. Mass. 

1 The petitioner's name is spelled in the record both as 

"Sena" and "Senna". Like the district court, we employ throughout 

the spelling used by the petitioner in his habeas petition.
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Mar. 24, 2020). The petitioner appeals. Concluding, as we do, 

that the district court acted within the wide margins of its 

discretion, we affirm.

I. BACKGROUND

We sketch the relevant facts and travel of the case. 

Our tale begins at a convenience store in Boston, Massachusetts, 

where a brawl erupted in the early hours of May 19, 2012. One 

participant, Zachary Fritz-Kill, sustained knife wounds, and an 

individual who attempted to intervene was rewarded by having his 

tires slashed.

When the police arrived at the scene, at least one 

eyewitness identified the petitioner as the knife-wielding 

perpetrator. Fritz-Kill, who had consumed a heady mix of drugs 

and alcohol in the hours preceding the brawl, was taken to a nearby 

hospital. Although Fritz-Kill had previously been diagnosed as 

having a bipolar disorder, he attributed his erratic behavior at 

the convenience store to his use of cocaine.

The petitioner was subsequently indicted by a 

Massachusetts grand jury, which charged him with assault and 

battery with a dangerous weapon, see Mass. Gen. Laws ch. 265, 

§ 15A(b); assault and battery with a dangerous weapon, causing 

serious bodily injury, see id. ch. 265, § 15A(c)(i); and malicious 

destruction of property, see id. ch. 266, § 127. All three counts

were coupled with a charge that the petitioner was an "habitual 
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criminal," having been convicted and sentenced to terms of 

immurement of more than three years on at least two earlier 

occasions.2 Id. ch. 279, § 25(a). The "habitual criminal" 

designation paved the way for the imposition of statutory maximum 

sentences should the petitioner be convicted of the felonies 

charged in the indictment. See id.

Maintaining his innocence, the petitioner proceeded to 

trial in Suffolk County Superior Court in March of 2015. The 

Commonwealth relied on witness and victim testimony (including the 

testimony of Fritz-Kill, who identified the petitioner as his 

attacker). The defense tried to discredit Fritz-Kill's testimony 

by emphasizing how mind-altering substances may have affected his 

recollection. But when the defense attempted to introduce expert 

testimony to this effect, the trial court rejected the proffer —

which it variously characterized as conjectural, irrelevant, and 

untimely.

The first trial proved indecisive: the jury deadlocked,

and the trial court declared a mistrial. A second trial ensued, 

and the trial court (in the person of the same trial justice) again 

excluded the petitioner's proffered expert testimony. The second 

2 Sena had previously been convicted of armed assault with 

intent to murder, see Mass. Gen. Laws ch. 265, § 18(b); possession 

of a dangerous weapon, see id. ch. 269 § 10(b); distribution of 

cocaine, see id. ch. 94C, § 32A(a); armed assault with an intent 

to rob, see id. ch. 265, § 18(b); and possession of a firearm 

without a license, see id. ch. 269, § 10(a).
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jury acquitted the petitioner on the property-destruction count

but found him guilty on the other two counts. The petitioner 

waived his right to have a jury adjudicate his "habitual criminal" 

status; the trial court found the designation apt; and the court 

sentenced the petitioner to the statutory maximum for each offense 

of conviction — ten years for assault and battery with a dangerous 

weapon and fifteen years for assault and battery with a dangerous 

weapon, causing serious bodily injury — to run concurrently.

The petitioner appealed to the Massachusetts Appeals 

Court (the MAC) on diverse grounds. As relevant here, he 

maintained that the trial court abused its discretion in excluding 

his proffered expert witness. In formulating this claim, though, 

the petitioner's appellate counsel challenged only the trial

court's determination that the testimony was not relevant. No 

challenge was advanced as to the concurrent finding that the 

proffer was untimely, notwithstanding that the trial court had 

cited timeliness as a separate (and independently sufficient) 

ground for its exclusion of the evidence.

The MAC treated this omission as "essentially 

conced[ing] that the evidence was not timely" and deemed the claim 

waived. Commonwealth v. Senna, 2017 WL 4856593, at *2 (Mass. App. 

Ct. 2017) (unpublished table decision). The Supreme Judicial Court 

(the SJC) denied the petitioner's application for leave to seek 

further appellate review (ALOFAR) on December 21, 2017, see
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Commonwealth v. Senna, 94 N.E.3d 853 (Mass. 2017) (table decision), 

thus leaving the MAC decision as the final state-court decision.

Undaunted by the SJC's denial of his ALOFAR, the 

petitioner requested that the Massachusetts public defender 

agency, the Committee for Public Counsel Services (CPCS), provide 

him with new counsel to file a motion for a new trial under Rule 

30 of the Massachusetts Rules of Criminal Procedure.3 This rule 

authorizes the granting of a new trial to persons confined in 

derogation of either federal or state law, see Rodriguez v.

Spencer, 412 F.3d 29, 33-34 (1st Cir. 2005), and represents the 

"exclusive vehicle for postconviction relief" in the Massachusetts 

state courts after direct review has been exhausted, id. at 34 

(quoting Leaster v. Commonwealth, 432 N.E.2d 708, 709 (Mass. 

1982)). CPCS declined the petitioner's request and notified him

on June 18, 2018, that he would have to proceed pro se. The agency

apparently based this decision on input from the petitioner's

erstwhile appellate counsel, who advised it that a Rule 30 motion 

was not warranted because she already had raised the expert 

testimony issue on direct appeal. She failed to mention, however, 

that incomplete argumentation — the failure to challenge the 

3 The record does not contain the exact date that the 

petitioner first contacted CPCS but we assume, favorably to him, 

that he made his request for the appointment of counsel soon after 

his ALOFAR was denied.
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timeliness of the proffer — led the MAC to dismiss the claim as 

waived.

The petitioner responded by filing a complaint against 

his former appellate counsel with the Massachusetts Board of Bar 

Overseers (the Board). At the same time, he beseeched CPCS to 

reconsider. On February 6, 2019, CPCS yielded to the petitioner's 

importunings and assigned him state post-conviction counsel. His 

new lawyer determined that the petitioner could raise potentially 

meritorious issues in a Rule 30 motion, including a claim that his 

former appellate counsel rendered ineffective assistance by 

causing the unintentional forfeiture of a potentially viable 

ground for appeal (the trial court's exclusion of the proffered 

expert testimony).

Two days after the appointment of his new state postconviction counsel, the petitioner, acting pro se, filed a habeas 

petition in the United States District Court for the District of 

Massachusetts. See 28 U.S.C. § 2254. This petition, submitted 

approximately six weeks before the expiration of the one-year 

federal limitations period, named the superintendent of the 

correctional institution in which the petitioner was incarcerated

as the respondent and asserted eight distinct grounds for relief. 

Simultaneous with this submission, the petitioner moved to stay 

the habeas petition and hold it in abeyance. This request stemmed 

from what the petitioner deemed to be the "mixed" nature of his
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petition, which in his view included both exhausted and unexhausted 

claims (his ineffective assistance of appellate counsel claim 

being among the latter).4 See Neverson v. Bissonnette, 261 F.3d 

120, 123 (1st Cir. 2001) (citing Rose v. Lundy, 455 U.S. 509, 522 

(1982)).

We pause at this juncture to put the significance of the

"mixed" nature of the petition into perspective. Federal law 

incorporates the doctrine that a federal habeas court will

entertain a state prisoner's petition for habeas relief "only after 

all state remedies available [for the claim] have been exhausted." 

Ex parte Hawk, 321 U.S. 114, 117 (1944) (per curiam). Although 

Congress codified this doctrine in 1948, see Act of June 25, 1948, 

ch. 646, § 1, 62 Stat. 869, 967 (current version at 28 U.S.C. 

§ 2254(b)-(c)), it remained uncertain whether a federal habeas 

court could adjudicate petitions that contained a mix of both 

exhausted and unexhausted claims. The Supreme Court resolved this 

uncertainty in Lundy. See 455 U.S. at 522. The Lundy Court 

construed the exhaustion principle as "[r]equiring [the] 

dismissal" of mixed petitions. Id. at 519.

Withal, the Court did not demand that federal habeas 

courts dismiss such mixed filings wholesale. As an alternative, 

4 The Commonwealth disputes the characterization of the 

petition as "mixed," suggesting that none of the petitioner's 

claims have been exhausted. We assume, as did the district court, 

that the petition contained both exhausted and unexhausted claims.
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a district court could allow the petitioner to withdraw unexhausted 

claims. See id. at 520. Those petitioners who opted for dismissal 

(without prejudice) could later "come back to federal court to 

present their perfected petitions with relative ease." Rhines, 

544 U.S. at 274. This structure, though, became problematic with 

the advent of new legislation. The Antiterrorism and Effective 

Death Penalty Act of 1996 (AEDPA) codified the strict exhaustion 

requirement articulated in Lundy, see 28 U.S.C. § 2254(b)(1)(A), 

and added a one-year statute of limitations for federal habeas 

petitions, see 28 U.S.C. § 2244(d)(1)(A).

The interplay between the exhaustion requirement and 

this newly enacted limitations period created a potential catch22: habeas petitioners whose "timely but mixed petition[s]" were 

dismissed by federal courts for want of exhaustion might, depending 

on the timing of the dismissal, find themselves without adequate

time to exhaust their state-court remedies and still return within 

the limitations period to federal court. Rhines, 544 U.S. at 275. 

Necessity is said to be the mother of invention, see Plato, The 

Republic of Plato 369C (Benjamin Jowett trans., Project Gutenberg 

2017) (1894), and federal courts soon devised a way to alleviate 

the harsh effects of this catch-22. They began to stay mixed 

habeas petitions and to hold them in abeyance in lieu of dismissal. 

See, e.g., Gaskins v. Duval, 336 F. Supp. 2d 66, 68 (D. Mass. 

2004); Kilburn v. Maloney, 164 F. Supp. 2d 117, 119 (D. Mass. 
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2001). This procedure provided a mechanism through which federal 

habeas petitioners could satisfy exhaustion obligations without

defaulting on AEDPA's one-year limitations period.

In Rhines, the Supreme Court approved this use of the 

stay-and-abeyance procedure, see id. at 278, but stipulated that 

district courts should only resort to it in "limited 

circumstances," id. at 277. The Court set out three preconditions 

for the grant of a stay and abeyance to a habeas petitioner. 

First, the petitioner must show good cause for his failure to have

exhausted a particular claim in state court. See id. Second, the 

petitioner must show that the particular claim is not "plainly 

meritless." Id. Third, the petitioner must show that he has not 

engaged in any "abusive litigation tactics or intentional delay"

touching upon the prosecution of the claim. Id. at 278. 

The erection of this tripartite framework brings us back 

to the case at hand. The district court appointed counsel for the 

petitioner and referred both his stay-and-abeyance motion and the 

respondent's motion to dismiss to a magistrate judge. The 

petitioner subsequently withdrew six of the eight claims contained 

in his habeas petition. The petitioner's remaining two claims 

included his unexhausted ineffective assistance of counsel claim 

and an exhausted claim.5 After a hearing, the magistrate judge 

5 The exhausted claim is not at issue here, and any discussion 

of it would be superfluous.
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issued a report and recommendation, in which she found all three 

elements of the Rhines framework satisfied and recommended 

granting the stay and abeyance and denying the motion to dismiss. 

Pertinently, she reasoned that the petitioner's time-consuming

efforts to secure post-conviction counsel comprised good cause for 

his failure to exhaust state-court remedies.

The respondent objected, and the district court — on de 

novo review, see Fed. R. Civ. P. 72(b)(3) — rejected the magistrate 

judge's recommendation. Although the court acknowledged that 

Rhines "did not define precisely what constitutes 'good cause'" 

for a failure to exhaust, it determined that the petitioner had 

not made the required showing. Sena, 2020 WL 1429849, at *2. In 

the court's estimation, the considerations cited by the magistrate 

judge were insufficient to excuse the petitioner's prolonged 

inaction, particularly in light of evidence that he could 

competently self-advocate for the merits of his ineffective 

assistance claim. See id. The court stated:

[P]roceeding pro se "does not excuse a 

petitioner from the exhaustion requirement." 

[Lundy], 455 U.S. at 520 ("Just as pro se

petitioners have managed to use the federal 

habeas machinery, so too should they be able 

to master this straightforward exhaustion 

requirement.") . . . . Furthermore, Sena 

filed a habeas petition pro se in this Court 

just two days after counsel was appointed to 

pursue his claims in state court. In that 

petition, Sena articulated his claim of 

ineffective assistance of counsel which 
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demonstrates that he had both the opportunity 

and ability to pursue state court collateral 

relief while awaiting the appointment of 

counsel. His failure to do so for more than 

six months while he sought the appointment of 

counsel does not amount to "good cause"

sufficient to excuse compliance with the 

exhaustion requirement.

Id. The court proceeded to deny the stay-and-abeyance motion and

— since the petitioner made no request to continue on his lone 

exhausted claim, see supra note 4 — dismissed the mixed habeas 

petition for want of exhaustion. See Sena, 2020 WL 1429849, at 

*2-3. This timely appeal followed.

II. ANALYSIS

The district court's decision turned solely on what it 

determined to be the petitioner's failure to satisfy the good cause 

element of the Rhines framework,6 see Sena, 2020 WL 1429849, at 

*2, and the petitioner's appeal focuses exclusively on that 

element.

We review the district court's determination that the 

petitioner failed to show good cause for abuse of discretion. See

Rhines, 544 U.S. at 278. Abuse of discretion is not a monolithic 

standard: "within it, abstract questions of law are reviewed de 

6 The district court did not comment on the magistrate judge's 

recommended finding that the petitioner had not engaged in any 

abusive litigation tactics or intentional delay. See Sena, 2020 

WL 1429849, at *2. The court expressed some skepticism about the 

recommended finding that the petitioner's ineffective assistance 

of counsel claim was not plainly meritless, see id., but did not 

resolve the issue.
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novo, findings of raw fact are reviewed for clear error, and 

judgment calls receive a classically deferential reception." Riva

v. Ficco, 615 F.3d 35, 40 (1st Cir. 2010). In the absence of a 

material error of law — and no such error is evident here — the 

contours of judicial discretion are "broad — but . . . not 

absolute." Indep. Oil & Chem. Workers of Quincy, Inc. v. Procter 

& Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir. 1988). "Abuse 

occurs when a material factor deserving significant weight is 

ignored, when an improper factor is relied upon, or when all proper 

and no improper factors are assessed, but the court makes a serious 

mistake in weighing them." Id.

Rhines supplies the beacon by which we must steer. Even 

so, the Court's opinion says little about what circumstances may

suffice to excuse a habeas petitioner's failure to exhaust statecourt remedies ahead of his federal filing. After Rhines, the 

Supreme Court has addressed the stay-and-abeyance good cause 

requirement only once. See Pace v. DiGuglielmo, 544 U.S. 408, 416

(2005). There, the Court stated, in dictum, that even though a 

petitioner had not acted diligently, "reasonable confusion about 

whether a state filing would be timely will ordinarily constitute 

'good cause' for [a petitioner] to file in federal court" for a 

stay and abeyance. Id.

Other reported cases do not offer much further 

elucidation. See, e.g., Dixon v. Baker, 847 F.3d 714, 720 (9th 
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Cir. 2017) ("The caselaw concerning what constitutes 'good cause' 

under Rhines has not been developed in great detail."); Heleva v. 

Brooks, 581 F.3d 187, 192 (3rd Cir. 2009) (concluding that "[t]he 

full range of circumstances in which a habeas petitioner is 

eligible for stay-and-abeyance is not yet clear"). Our own 

jurisprudence on the subject is likewise thin. We have held that 

the strategic omission of claims on direct appeal does not 

constitute good cause for the failure to exhaust those claims. 

See Clements v. Maloney, 485 F.3d 158, 170-71 (1st Cir. 2007). 

So, too, we have held that good cause was not shown when a failure 

to exhaust resulted from "[i]gnorance of the law." Josselyn v. 

Dennehy, 475 F.3d 1, 5 (1st Cir. 2007). Importantly, however, 

Josselyn involved a petitioner who was represented by counsel 

throughout, and we reserved the issue of how strictly this holding 

should be applied to pro se petitioners. See id. at 5 n.3; cf.

Rhines, 544 U.S. at 279 (Stevens, J., concurring) (warning against 

construing the good cause requirement so strictly as to "trap the 

unwary pro se petitioner").

Against this mottled backdrop, we turn to the district 

court's finding that the petitioner failed to satisfy the good 

cause requirement. The court placed substantial weight on the 

lengthy interval during which the petitioner could have filed his 

Rule 30 motion in the state court, but did not. See Sena, 2020 WL 

1429849, at *2. That delay was an appropriate integer in the good 
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cause calculus: when determining good cause in a variety of 

contexts, courts typically gauge the scope of the moving party's 

delay and measure it against that party's window of opportunity

within which to act. See, e.g., Steir v. Girl Scouts of the USA, 

383 F.3d 7, 12 (1st Cir. 2004) ("Regardless of the context, the 

longer a plaintiff delays, the more likely the motion to amend [a 

complaint] will be denied [for lack of good cause] . . . ."); Gen. 

Cont. & Trading Co. v. Interpole, Inc., 899 F.2d 109, 112 (1st 

Cir. 1990) (holding timing of motion relevant to setting aside 

entry of default for good cause).

In this case, the petitioner made no move to initiate 

state-court proceedings during the seven-plus months after CPCS 

notified him that it would not furnish him with representation. 

The district court reasonably could interpret this extended 

quiescence as militating against a showing of good cause. After 

all, a movant's "diligence or lack of diligence" often serves as 

the "dominant criterion" in a good cause analysis. Miceli v.

JetBlue Airways Corp., 914 F.3d 73, 86 (1st Cir. 2019) (citation 

omitted).

Of course, each case must be evaluated on its own facts, 

and a movant's delay must be viewed in light of the particular 

circumstances. See, e.g., Gen. Cont. & Trading Co., 899 F.2d at 

112 (disclaiming any "mechanical formula" for determining good 

cause). Here, for instance, the petitioner asserts that the 
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district court should have treated his pursuit of appointed counsel 

as a proxy for diligence. CPCS's recalcitrance, he says, was a 

delay-creating external circumstance that cannot fairly be 

attributed to him. See, e.g., Doe v. Jones, 762 F.3d 1174, 1182 

(10th Cir. 2014); Jalowiec v. Bradshaw, 657 F.3d 293, 304–05 (6th 

Cir. 2011). Relatedly, the petitioner says that his former 

appellate counsel's misleading representation to CPCS exacerbated 

this external factor. 

The petitioner's proposed application of this tenet to 

his situation misses the mark. The difficulties that the 

petitioner encountered in his dealings with CPCS, though obviously 

frustrating, did not negate his ability to file a Rule 30 motion. 

The petitioner was free to proceed pro se to file his motion, and 

Massachusetts law makes pellucid that "an indigent defendant has 

no constitutional entitlement to the assistance of appointed 

counsel in preparing or presenting a postconviction motion for a 

new trial." Parker v. Commonwealth, 863 N.E.2d 40, 42 (Mass. 

2007).

In sum, the petitioner was bound by the same general set

of procedural expectations that apply to litigants represented by 

counsel. See Lundy, 455 U.S. at 520; see also Delaney v. Matesanz, 

264 F.3d 7, 15 (1st Cir. 2001) ("While judges are generally lenient 

with pro se [habeas petitioners], the Constitution does not require 
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courts to undertake heroic measures to save pro se litigants from 

the readily foreseeable consequences of their own inaction."). 

This is not to say that the petitioner's pro se status 

is unimportant. A district court charged with making a good cause 

determination must factor a habeas petitioner's pro se status, as 

well as his attributes, skill sets, and circumstances, into its 

decisional calculus. See Ellison v. Rogers, 484 F.3d 658, 662 (3d 

Cir. 2007); see also Josselyn, 475 F.3d 1 at 5 n.3. 

Because pro se litigants are not fungible, however, each 

case must be evaluated on its own facts. See SAI v. Transp. Sec. 

Admin., 843 F.3d 33, 36 (1st Cir. 2016); see also Pruitt v. Mote, 

503 F.3d 647, 655 (3rd Cir. 2007). A pro se litigant who has 

demonstrated a capacity for understanding and articulating the 

issues may reasonably be extended fewer allowances than a pro se 

litigant who is hopelessly out of his depth. See Delaney, 264 

F.3d at 15; Evangelista v. Sec'y of HHS, 826 F.2d 136, 142-43 (1st 

Cir. 1987). Consequently, because every pro se litigant is 

different, the significance of his unrepresented status is 

necessarily a matter of degree.

In this instance, the period of delay was substantial —

and the sheer length of the delay militated against a finding of 

good cause. See Guzmán-Ruíz v. Hernández-Colón, 406 F.3d 31, 35 

(1st Cir. 2005) (describing three-month delay as fatal to claim 

that good cause existed for failure to file timely opposition to 
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summary judgment motion). With this in mind, we think that the 

district court acted within the wide margins of its discretion in 

determining that the petitioner could — and should — have gone 

forward with his Rule 30 motion despite his pro se status. 

Although the petitioner had no control over CPCS's grudging 

attitude toward the appointment of counsel, nothing impeded him 

from acting in his own behalf while he was lobbying CPCS to 

reconsider its initial turn down. Here, moreover, it is critical 

to the analysis that the district court supportably found that the 

petitioner was capable of acting to his own behoof at all times 

after his receipt of CPCS's rejection letter.7 See Sena, 2020 WL 

1429849, at *2. 

In this regard, the court attributed great significance

to the habeas petition, filed pro se, which competently articulated 

the petitioner's claims (including his ineffective assistance of 

counsel claim). This petition, the court concluded, adequately 

evinced the petitioner's ability "to pursue state court collateral 

relief while awaiting the appointment of counsel." Id. Such a 

conclusion was reasonable under the circumstances: placed along 

7 Of course, the petitioner actually had a period of roughly 

thirteen months within which to act between the date that the SJC 

denied his ALOFAR (December 21, 2017) and the date on which he 

filed the stay-and-abeyance motion (February 8, 2019). The 

district court, however, seems to have given less weight to the 

portion of this period that preceded his receipt of CPCS's 

rejection letter (which was dated June 18, 2018).
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the continuum of pro se submissions, the habeas petition fairly

can be described as well-crafted.

If more was needed, the petitioner's complaint to the 

Board — written shortly after the petitioner received CPCS's 

rejection letter — similarly reflected his ability to selfadvocate. In it, the petitioner lucidly set forth arguments as to 

how his former attorney "mishandled" various issues, along with an 

accurate chronology of the events that undergirded his ineffective 

assistance claim. Further, the letter featured appendices of "case 

law . . . [and] references to the exact pages from [trial] 

transcripts to support each issue." 

To cinch the matter, the petitioner's initial request to 

CPCS for the appointment of counsel was for the expressed purpose 

of filing a Rule 30 motion, and CPCS's June 2018 rejection letter 

advised the petitioner specifically that he could pursue that 

motion without an attorney. CPCS's letter ensured that the

petitioner knew of his opportunity to proceed pro se. See

O'Connell v. Hyatt Hotels of P.R., 357 F.3d 152, 155 (1st Cir.

2004) (finding no good cause for delay when plaintiffs were "aware

of their [procedural] obligation"); cf. Ellison, 484 F.3d at 662

(deeming habeas petitioner not "unwary" when he had been apprised

of how to pursue post-conviction relief). From the petitioner's

materials, coupled with the length of the delay and the fact that

he was no stranger to the criminal justice system, the district
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court plausibly could conclude — as it did — that he was capable

of proceeding pro se with his Rule 30 motion in a more timely

fashion. 

The petitioner attempts to undermine the inferences 

drawn by the district court by characterizing the cause of his 

delay as "reasonable confusion" about timing. This 

characterization draws on dictum from Pace, 544 U.S. at 416, but 

the attempted analogy compares plums to pomegranates. The Pace

Court expressed approval (hypothetically) for a stay and abeyance 

for an imagined habeas petitioner who was "reasonably confus[ed]" 

about how state courts would apply recently enacted filing 

prerequisites to an application for post-conviction relief. Id. 

That is a far cry from the case at hand. The Rule 30 procedure is 

straightforward and its essentials (including the applicable 

filing requirements) have remained constant since at least 1979. 

See Reporter's Notes to Mass. R. Crim. P. 30(a) (delineating 1979 

adoption of simplified post-conviction procedure). Nor was there 

any reason to doubt the applicability of the one-year federal 

limitations period.

The petitioner also complains that he would have had 

great difficulty in mounting an ineffective assistance of counsel 

claim pro se. The district court disagreed, see Sena, 2020 WL 

1429849, at *2, and its conclusion appears to be a reasoned choice 

between plausible alternatives. The petitioner's correspondence 
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to the Board shows that the petitioner had the ability to describe 

his former appellate counsel's allegedly deficient performance 

clearly — and that was the essence of his ineffective assistance 

claim.

Battling on, the petitioner invokes a provision of 

Massachusetts law to the effect that any grounds for postconviction relief not included in a defendant's Rule 30 motion are 

deemed waived. See Mass. R. Crim. P. 30(c)(2). From this starting 

point, the petitioner asserts that he risked forfeiting 

unidentified claims by filing his Rule 30 motion without the 

benefit of counsel. This assertion is triply flawed. For one 

thing, it overlooks that, under Massachusetts practice, a Rule 30 

motion may be amended and, in any event, the state court may permit 

the filing of second or successive Rule 30 motions. See id.; 

Commonwealth v. Ellis, 57 N.E.3d 1000, 1018 (Mass. 2016). For 

another thing, the expectation established by the Lundy Court, 455 

U.S. at 520 — that pro se habeas petitioners must be held 

accountable for navigating the usual channels of the "federal 

habeas machinery," including the strict exhaustion requirement —

encompasses the reality that some petitioners will have more 

challenging claims to advance than others. 

Third, and finally, the petitioner's assertion proves 

too much: virtually any pro se litigant can be said to be at 

increased risk of forfeiture when contrasted with one represented 
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by counsel. See Evangelista, 826 F.2d at 143 ("It is rare indeed 

that veteran counsel . . . cannot train an eagle eye to discern 

something that could have been done better, or more convincingly, 

or not at all."); Yeoman v. Pollard, 875 F.3d 832, 836 (7th Cir.

2017). If "good cause" were to be construed as broadly as the

petitioner urges, any habeas petitioner could justifiably delay

his filing for as long as he maintained even the faintest hope of

retaining counsel.

When all is said and done, the district court's

determination that good cause did not exist for the petitioner's

delay rests on an assessment that is inherently fact-sensitive. 

We think that this determination passes muster when viewed through

the deferential prism of the standard of review. For aught that

appears, the district court took into account all the proper

factors (and no improper factors) when working its decisional

calculus. Although the question is close, we discern no principled

basis for second-guessing the district court's determination. 

The petitioner has one last shot in his sling. He says, 

in effect, that even if the district court considered all the 

proper factors and no improper ones, it nonetheless seriously 

misgauged the appropriate balance. See Indep. Oil & Chem. Workers, 

864 F.2d at 929. In his view, the court should have afforded 

greater weight to factors such as his pro se status and his 

blamelessness for the difficulty in securing appointed counsel and 
- 23 -

less weight to the length of the delay in moving forward with a 

Rule 30 motion. Here, however, striking the good cause balance 

was "susceptible of two rational (though opposite) conclusions." 

United States v. Myers, 294 F.3d 203, 208 (1st Cir. 2002). In 

such circumstances, "the tie-breaker often will be the standard of 

review." Id. This is such a case. Given the evidence of the 

petitioner's competence, the lack of any impediment to his 

proceeding pro se in state court, his awareness that a Rule 30 

motion had to be filed, and the length of time during which the 

petitioner eschewed the filing of such a motion, we are not at 

liberty to superimpose our judgment upon that of the district 

court.

III. CONCLUSION

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

the judgment of the district court is 

Affirmed.