Hullum v. Maloney ( 1999 )

USCA1 Opinion

       [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 99-1184



                          LANCE HULLUM,



                      Plaintiff, Appellant,



                                v.



                   MICHAEL T. MALONEY, ET AL.,



                     Defendants, Appellees.







          APPEAL FROM THE UNITED STATES DISTRICT COURT



               FOR THE DISTRICT OF MASSACHUSETTS



          [Hon. Joseph L. Tauro, U.S. District Judge]







                             Before



                    Selya, Boudin and Lynch,

                        Circuit Judges.









     Lance Hullum on brief pro se.

     Thomas F. Reilly, Attorney General, and Susanne G. Levsen,

Assistant Attorney General, Criminal Bureau, on brief for

appellees.











September 16, 1999















            Per Curiam. Petitioner Lance Hullum appeals from the

  dismissal of his habeas petition filed under 28 U.S.C. § 2254.

  The  district court, applying the one-year limitations period

  introduced by the Antiterrorism and Effective Death Penalty Act

  of 1996 (AEDPA), see 28 U.S.C. § 2244(d), concluded that the

  petition was time-barred, see Hullum v. Maloney, 14 F. Supp. 2d

  164 (D. Mass. 1998) (adopting report of the magistrate-judge).

  It thereafter granted a certificate of appealability (COA).  We

  affirm but on different grounds.

            Petitioner, who seeks to challenge a 1990

  Massachusetts conviction, filed the instant pro se petition on

  February 12, 1998 (or possibly some days earlier).  Even with

  the grace period included, see, e.g., Gaskins v. Duval, ___

  F.3d ___, 1999 WL 447129 (1st Cir. July 7, 1999), and even with

  the period during which state remedies were being pursued

  excluded, see 28 U.S.C. § 2244(d)(2), his petition was late.

  Respondent filed a motion to dismiss on this basis.  By way of

  opposition, petitioner explained as follows: that he had been

  confined since 1994 in the "department disciplinary unit" (DDU)

  at MCI-Cedar Junction; that the main prison library did not

  "start sending" a copy of AEDPA to DDU inmates until "late

  1997" and that he did not learn thereof until early 1998; that

  he otherwise lacked access to "almost all important

  information" regarding the Act, as well as to updated legal

  materials or any form of legal assistance; and that he would

  have filed a timely petition had he known of the one-year

  requirement.  For these reasons, he sought to invoke the

  statutory provision that tolls the running of the limitations

  period until

                      the date on which the impediment to filing

            an application created by State action in

            violation of the Constitution or laws of

            the United States is removed, if the

            applicant was prevented from filing by

            such State action.



  28 U.S.C. § 2244(d)(1)(B).  Petitioner's factual assertions

  have not been contested.

            The district court construed these allegations as

  setting forth a predicate claim of denial of the right of

  access to the courts, in violation of Lewis v. Casey, 518 U.S.

  343 (1996), and Bounds v. Smith, 430 U.S. 817 (1977).  It then

  concluded that no viable such claim had been presented, such

  that § 2244(d)(1)(B) was inapplicable.  The court emphasized

  two factors in this regard.  It found that petitioner had not

  "diligently pursued his federal claims," noting in particular

  that two extended periods of time had elapsed (of nearly 29 and

  13 months, respectively) when no state court proceeding was

  pending.  See 14 F. Supp. 2d at 166.  And it determined that

  any deficiencies in the library system had not "prevented"

  petitioner from pursuing those claims.  In this regard, it

  noted, inter alia, that the federal claims were identical to

  those raised earlier in state court, and that petitioner had

  initiated or pursued other court actions during the relevant

  period.  See id. at 166-67.

            This structure of analysis raises questions.  First,

  if petitioner's improbable allegations are accepted as true and

  we assume that he had no reasonable means of learning of the

  limitations period in timely fashion, was he thereby

  "prevented" from filing his petition within the meaning of §

  2244(d)(1)(B)?  Cf. Lewis, 518 U.S. at 351 (explaining that a

  right-of-access claim might be established by showing "that a

  complaint ... was dismissed for failure to satisfy some

  technical requirement which, because of deficiencies in the

  prison's legal assistance facilities, [the inmate] could not

  have known"); Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir.

  1999) ("[i]n the right circumstances, a delay in receiving

  information might call for equitable tolling--such as if the

  prison did not obtain copies of AEDPA for months and months").

  Second, must a petitioner act with "due diligence" in order to

  invoke § 2244(d)(1)(B) (as suggested in Miller v. Marr, 141

  F.3d 976, 978 (10th Cir.), cert. denied, 119 S. Ct. 210 (1998)),

  or alternatively to state a claim under Lewis (as suggested by

  the district court)?  Cf. Miller v. New Jersey State Dep't of

  Corrections, 145 F.3d 616, 618-19 (3d Cir. 1998) (requiring

  diligence in order to invoke equitable tolling); 28 U.S.C. §

  2244(d)(1)(D) (setting forth explicit diligence requirement).

            Resolving these questions is not necessary here

  because petitioner's three substantive claims prove to be

  frivolous.  His central claim is that a provision in his plea

  agreement--that he receive treatment as a sexual offender at

  Bridgewater State Hospital--was never honored, thereby

  rendering his guilty plea invalid.  See, e.g., Santobello v.

  United States, 404 U.S. 257 (1971).  Petitioner states that all

  pertinent facts "appear on the face of the plea hearing

  transcript."  Brief at 27.  Yet that transcript, a copy of

  which he has supplied to this court, makes it clear that this

  claim fails for at least three reasons.  First, the stipulation

  in question provided--not that petitioner would receive such

  treatment--but that the court would so recommend.  Second, the

  court subsequently did just that.  Most important, this

  stipulation was not part of the plea agreement, but was reached

  only after the plea had been accepted.  The fact that

  petitioner apparently ended up not receiving treatment thus

  provides no basis for challenging his plea.

            Petitioner also complains that he is innocent of the

  crimes and that his trial attorney should have engaged a DNA

  expert.  Yet the scattered findings on which he relies from

  certain serology reports are of no consequence, particularly in

  light of the factual proffer articulated by the government (and

  accepted by petitioner) at the change-of-plea hearing.  These

  claims, even apart from the procedural hurdles they face, see,

  e.g., United States v. Broce, 488 U.S. 563, 569-74 (1989),

  prove utterly baseless.

            We therefore choose to affirm on the basis that the

  petition is substantively meritless.  To the extent that the

  grant of the COA might be thought to confine our review to the

  limitations issue, we would add the following.  A right-of-

  access challenge requires a showing that a "nonfrivolous" legal

  claim has been frustrated or impeded.  Lewis, 518 U.S. at 353.

  Petitioner, having failed to present a nonfrivolous claim,

  cannot make such a showing.  For that reason, § 2244(d)(1)(B)

  is inapplicable, which in turn means that his petition was also

  properly dismissed on limitations grounds.

            Affirmed.