APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Rya W. Zobel, U.S. District Judge]
Janet Hetherwick Pumphrey for appellant.
Christopher Hurld, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellee.
Before Howard, Chief Judge, Souter, Associate Justice, [*] and Lipez, Circuit Judge.
Souter, Associate Justice.
Alex Holmes appeals the dismissal of his untimely habeas corpus petition, after the district court determined that there was no basis for equitable tolling of the limitations period. We affirm.
This case has been here before, see Holmes v. Spencer, 685 F.3d 51 (1st Cir. 2012), and in presenting its background we borrow liberally from our earlier opinion. Massachusetts charged Holmes with first-degree murder, and on May 1, 1998, he pleaded guilty to murder in the second degree in return for the mandatory sentence of life imprisonment with the possibility of parole. He claims (in one version) that he offered the plea because his trial counsel told him that the prosecutor had proposed a private deal: if Holmes pleaded, and if the prosecutor sought and obtained information from him about others involved in the murder, he could reduce his sentence by filing a motion to revise or revoke under Massachusetts Rule of Criminal Procedure 29. According to his testimony, he was led to believe this course of action was so imminent that he would be brought back for resentencing in about thirty days.
In June 1998, although he had not heard from the prosecutor, Holmes filed a Rule 29 motion that identified no underlying grounds and was accompanied by a similarly uninformative affidavit stating only that, "[a]t the appropriate time, . . . I will request that this matter be brought forward and heard by the sentencing judge." Both the motion and affidavit are boilerplate forms, typewritten documents with spaces to be filled in by hand. When the case was first before us, Holmes said that this paperwork was given to all newly sentenced convicts on arrival at prison. There was no evidence to this effect, however.
Holmes never requested that his Rule 29 motion be "brought forward" for a hearing. But he claims that in June 2000, after two years of silence since filing the motion, he learned from a friend in the prison law library that the motion was futile: because second-degree murder carries a mandatory sentence of life imprisonment, the judge had no authority to "revise or revoke."
On learning this, Holmes did take action, first by renewing correspondence with his trial counsel, who denied that Holmes had made the plea deal solely on the prospect of filing a successful Rule 29 motion. The lawyer maintained that he had advised Holmes to accept a proposal to plead to the lesser offense regardless of the prosecutor's possible request for information because, if convicted of first-degree murder, Holmes would face mandatory life imprisonment but without the possibility of parole. Counsel also denied having assured Holmes that the judge would grant a Rule 29 motion and contradicted any claim that the prosecutor had ever committed to use information obtained from Holmes.
After litigating unsuccessfully in the state courts, in 2008 Holmes filed a federal habeas corpus petition alleging, among other things, that his trial counsel was ineffective for inducing him to plead guilty on the assurance that he would be able to reduce his sentence through the Rule 29 process. The district court dismissed the petition as untimely under the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1)(A).
On appeal, we upheld the district court's determination that Holmes's petition was untimely. All agreed that Holmes's conviction became final on May 1, 1998, and that (for reasons immaterial here) certain periods between 2000 and 2007 were excluded from the calculation. Among the disputed questions on appeal was whether the June 1998 filing of the Rule 29 motion also stopped AEDPA's limitations clock, under the provision that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation." Id. § 2244(d)(2). We concluded that the barebones character of Holmes's Rule 29 motion failed to qualify it as "properly filed" and thus rendered it inadequate to toll the running of the limitations period under the terms of that provision.
We remanded, however, for the district court to consider whether the running time should nonetheless be tolled on equitable grounds. Given that equitable tolling requires a habeas petitioner to demonstrate as necessary conditions for relief that (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstance prevented timely filing,  we mentioned what the district court might look for. We said that we were troubled "by the possibility that at the time Holmes filed his Rule 29 [m]otion, he was led to believe that his [m]otion was in fact properly filed." Holmes, 685 F.3d at 63. As to diligence, we reasoned that, "[i]f Holmes did what he reasonably thought was necessary to preserve his rights by filing a placeholder motion, based on information he received from prison officials, then he can hardly be faulted for not acting more 'diligently' than he did." Id. at 65. And as to the need to show extraordinary circumstances, we raised the possibility that, "[i]f in fact prison officials intentionally or inadvertently caused Holmes to believe that his filing was sufficient, this might qualify as an 'extraordinary ...