James Head v. Eric Wilson

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 5, 2015 Decided June 26, 2015
No. 13-5171
JAMES M. HEAD,
APPELLANT
v.
ERIC D. WILSON, WARDEN,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-00706)
Rosanna M. Taormina, Assistant Federal Public
Defender, argued the cause for the appellant. A.J. Kramer,
Federal Public Defender, was with her on brief.
Peter S. Smith, Assistant United States Attorney, argued
the cause for the appellee. Ronald C. Machen, Jr., United
States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt
and Thomas S. Rees, Assistant United States Attorneys, were
with him on brief.
Before: HENDERSON, PILLARD and WILKINS, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge
HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: In 1980, a
District of Columbia (D.C.) Superior Court jury convicted
James M. Head of numerous violent crimes, including first-
degree murder. Thirty-two years after his conviction and
nearly fifteen years after expiration of the one-year statute of
limitations contained in the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110
Stat. 1214, Head petitioned the district court for a writ of
habeas corpus, arguing that his lawyer was ineffective. Head
contends that AEDPA’s limitations period was tolled until
2009 because, until our decision in Williams v. Martinez, our
case law barred him from bringing his ineffective assistance
of appellate counsel (IAAC) claim in federal court. See 586
F.3d 995, 1000 (D.C. Cir. 2009). We disagree and we
therefore affirm the district court’s denial of Head’s petition
and dismissal of the action.
I. STATUTORY BACKGROUND
This case, although straightforward on the merits,
involves the interplay among D.C.’s collateral-review statute,
D.C. Code § 23-110, AEDPA’s one-year statute of
limitations, 28 U.S.C. § 2244(d)(1), and the case law
interpreting both. For that reason, a quick overview of the
legal landscape is in order.
A. D.C. CODE § 23-110
In 1970, the Congress enacted the D.C. Court Reform
and Criminal Procedure Act of 1970 (Act), Pub. L. No. 91-
358, 84 Stat. 473, which “created a new local court system”
and transferred responsibility for resolving D.C.–law claims
from district court to superior court. Swain v. Pressley, 430
3
U.S. 372, 375 (1977). The Act also included the predecessor
to section 23-110 of the D.C. Code. See Pub. L. No. 91-358,
tit. II, § 210(a), 84 Stat. at 608–09. Section 23-110
establishes the procedure by which a person sentenced by the
superior court can seek collateral review of his conviction or
sentence. 1 Section 23-110 also gives the superior court
exclusive jurisdiction of virtually all collateral challenges:
An application for a writ of habeas corpus in
behalf of a prisoner who is authorized to apply
for relief by motion pursuant to this section
shall not be entertained . . . by any Federal or
State court if it appears that the applicant has
failed to make a motion for relief under this
section or that the Superior Court has denied
him relief.
D.C. Code § 23-110(g); see also Swain, 430 U.S. at 377–78
(rejecting argument that section 23-110 only mandates
exhaustion of D.C. remedies and holding instead that it vests
exclusive jurisdiction in D.C. Superior Court).
1
Section 23-110(a) allows “[a] prisoner in custody under
sentence of the Superior Court” to “move the court to vacate, set
aside, or correct the sentence” on the ground that:
(1) the sentence was imposed in violation of the
Constitution of the United States or the laws of the
District of Columbia, (2) the court was without
jurisdiction to impose the sentence, (3) the
sentence was in excess of the maximum authorized
by law, [or] (4) the sentence is otherwise subject to
collateral attack.
D.C. Code § 23-110(a).
4
Although section 23-110 largely divests the federal
courts of habeas jurisdiction, it contains a safety valve to
blunt the risk of a Suspension Clause violation.2 Specifically,
section 23-110(g) provides that a prisoner sentenced in the
superior court can seek a federal writ of habeas corpus if it
“appears that the remedy by motion is inadequate or
ineffective to test the legality of his detention.” D.C. Code
§ 23-110(g). Section 23-110(g), however, left open a
question that then went unresolved for many years: If a
prisoner is barred from pursuing a claim under section 23-110
but can nonetheless pursue the same claim in the D.C. court
system through a different procedure, does section 23-110’s
safety valve allow him to file a federal habeas petition or does
the safety valve apply only if every route to D.C. court review
is foreclosed?
The answer developed—slowly—through cases
addressing prisoners who sought to raise IAAC claims on
collateral review. More than three decades ago, the D.C.
Court of Appeals held that IAAC claims “are not within the
purview of [section] 23-110.” Streater v. United States
(Streater I), 429 A.2d 173, 174 (D.C. 1980) (per curiam). It
so held because section 23-110 “provides no basis upon
which the trial court may review appellate proceedings.” Id.;
see also Watson v. United States, 536 A.2d 1056, 1060 (D.C.
1987) (en banc) (noting impropriety of “lower court . . .
pass[ing] judgment on the efficacy of the appellate review”).
Years later, the D.C. Court of Appeals clarified that the
2
See U.S. CONST. art. I, § 9, cl. 2 (“The Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.”). The U.S.
Supreme Court upheld section 23-110 against a Suspension Clause
challenge based on the safety-valve provision. Swain, 430 U.S. at
381.
5
proper procedural vehicle for raising an IAAC claim is a
“motion . . . to recall the mandate” filed directly in the D.C.
Court of Appeals. Watson, 536 A.2d at 1060; see also Long
v. United States, 83 A.3d 369, 377–78 (D.C. 2013).
It was not until 2009 that we squarely addressed whether
section 23-110(g) gave the district court habeas jurisdiction to
hear IAAC claims that, as explained, cannot be raised by a
section 23-110 motion but can nonetheless be raised by a
motion to recall the mandate. In Williams, we held that the
terms of section 23-110(g) “make[] clear” that it “only divests
federal courts of jurisdiction to hear habeas petitions by
prisoners who could have raised viable claims pursuant to
section 23-110(a).” 586 F.3d at 998 (emphasis added). In
other words, even if there is another mechanism in the D.C.
court system that a prisoner can use to collaterally attack his
sentence or conviction, section 23-110’s safety valve is
triggered so long as “the Superior Court lacks authority to
entertain a section 23-110” motion for that particular claim.
Id. (emphasis added). In reaching this conclusion, we
recognized that our case law from the early 1980s
“anticipated precisely th[is] situation.” Id. at 999 (citing
Streater v. Jackson (Streater II), 691 F.2d 1026, 1028 (D.C.
Cir. 1982)). We further observed that our earlier case law
“seemed to have assumed that the [federal] district court
would have jurisdiction to entertain” an IAAC claim, even
though it had not affirmatively settled the issue. Id. For this
reason, we took the next step in Williams and expressly
“recognize[d] another [exception]” to section 23-110(g)’s
divestiture of federal-court jurisdiction and allowed the
petitioner’s IAAC claim to proceed in district court. Id. at
1000.
 6
B. AEDPA
Although Williams clarified that section 23-110’s safety-
valve provision authorizes federal habeas jurisdiction of an
IAAC claim brought by a prisoner sentenced in superior
court, a would-be federal habeas petitioner must still comply
with the strictures of AEDPA—the federal court’s “labyrinth”
collateral review procedure, Maynard v. Boone, 468 F.3d 665,
669 (10th Cir. 2006). For example, AEDPA contains a one-
year statute of limitations that typically runs from the date a
prisoner’s state-court judgment becomes final, 3 either by
conclusion of direct review (i.e., denial of certiorari by the
U.S. Supreme Court) or by expiration of the time for seeking
direct review. 28 U.S.C. § 2244(d)(1)(A). Prisoners like
Head, whose convictions became final before AEDPA’s
effective date (April 24, 1996), were granted “a one-year
grace period from that date in which to file a [federal habeas]
motion—yielding a filing deadline of April 24, 1997.”
United States v. Saro, 252 F.3d 449, 451 (D.C. Cir. 2001).
Because obstacles may prevent a prisoner from filing a
timely habeas petition, AEDPA expressly contemplates that
the limitations period may be tolled. See 28 U.S.C.
§ 2244(d)(1)(B)–(D). One provision tolls AEDPA’s
limitations period until “the date on which [an] impediment to
filing an application created by State action in violation of the
Constitution or laws of the United States is removed, if the
3
AEDPA recognizes that “a court of the District is a state
court.” See Madley v. U.S. Parole Comm’n, 278 F.3d 1306, 1308
(D.C. Cir. 2002); Garris v. Lindsay, 794 F.2d 722, 724 n.8 (D.C.
Cir. 1986) (same); see also Milhouse v. Levi, 548 F.2d 357, 360 n.6
(D.C. Cir. 1976) (“[T]his Court has treated local courts as ‘state’
courts for the purposes of exhaustion and federal habeas corpus
jurisdiction.”).
7
applicant was prevented from filing by such State action.” Id.
§ 2244(d)(1)(B). Neither this Court nor our sister circuits
have precisely defined “impediment” under section
2244(d)(1)(B); “[t]he limited case law applying [it] has dealt
almost entirely with the conduct of state prison officials who
interfere with inmates’ ability to prepare and to file habeas
petitions by denying access to legal materials.” Shannon v.
Newland, 410 F.3d 1083, 1087 (9th Cir. 2005); see, e.g.,
Critchley v. Thaler, 586 F.3d 318, 320 (5th Cir. 2009) (state
court failure to process timely mailed petition “constitutes a
state-created impediment”); Egerton v. Cockrell, 334 F.3d
433, 438–39 (5th Cir. 2003) (prison law library’s failure to
provide copy of AEDPA “constitutes an impediment”)
(quotation marks omitted). Writing for a plurality in
Lackawanna County District Attorney v. Coss, Justice
O’Connor suggested that section 2244(d)(1)(B) may apply if
a state court “without justification, refuse[s] to rule on a
constitutional claim that has been properly presented to it.”
532 U.S. 394, 405 (2001).
In addition to statutory tolling provisions, AEDPA’s
statute of limitations, which is not a jurisdictional bar, can be
equitably tolled. See Holland v. Florida, 560 U.S. 631, 645
(2010). That said, equitable tolling is appropriate only if a
petitioner shows “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood
in his way and prevented timely filing.” United States v.
Baxter, 761 F.3d 17, 30–31 (D.C. Cir. 2014) (quoting
McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013)). “To
count as sufficiently ‘extraordinary,’ ” we have held that “the
circumstances that caused a litigant’s delay must have been
beyond [his] control”; in other words, the delay “cannot be a
product of that litigant’s own misunderstanding of the law or
tactical mistakes in litigation.” Menominee Indian Tribe of
Wis. v. United States, 764 F.3d 51, 58 (D.C. Cir. 2014).
8
Indeed, “[w]hen a deadline is missed as a result of a ‘garden
variety claim of excusable neglect’ or a ‘simple
miscalculation,’ equitable tolling is not justified.” Id.
(quoting Holland, 560 U.S. at 651).
II. PROCEDURAL HISTORY
Head’s case began in 1980, when a D.C. Superior Court
jury convicted him of two counts of felony murder, two
counts of first-degree murder, four counts of armed
kidnapping and two counts of armed robbery. Head v. United
States (Head I), 451 A.2d 615, 618 (D.C. 1982). “[N]ot
earlier than December 3, 1982,” Head filed what the D.C.
courts ultimately construed as his first section 23-110 motion.
Head v. United States (Head II), 489 A.2d 450, 450 n.1 (D.C.
1985). Between the 1982 filing and 2011, Head filed no
fewer than five additional collateral attacks under section 23-
110. 4 He first made an IAAC claim via section 23-110
motion in 1989, see Head III, 626 A.2d at 1383, and he made
the claim again in a 1991 motion to recall the mandate, id. at
1384.
On June 6, 2008, Head filed another section 23-110
motion in D.C. Superior Court. While it was pending, we
issued our opinion in Williams (on November 13, 2009) and
denied rehearing en banc (on December 23, 2009). See
Williams, 586 F.3d 995. The superior court then denied
Head’s section 23-110 motion on January 25, 2010, and Head
appealed the denial to the D.C. Court of Appeals. While that
4
Head’s efforts have not been entirely for naught; since his
conviction, his armed kidnapping convictions were vacated for
insufficient evidence, see Head I, 451 A.2d at 618–19, and his
felony murder convictions were vacated because they merged with
his premeditated murder convictions, see Head v. United States
(Head III), 626 A.2d 1382, 1383, 1387 n.11 (D.C. 1993).
9
appeal was pending, the United States Supreme Court denied
certiorari in Williams. See Williams v. Martinez, 559 U.S.
1042 (2010) (mem.). The D.C. Court of Appeals eventually
affirmed the Superior Court’s denial of Head’s section 23-110
motion on June 10, 2011, and the Supreme Court denied
Head’s subsequent petition for certiorari on January 23, 2012.
On April 16, 2012—within one year of the Supreme
Court’s denial of his petition for certiorari—Head filed a
petition for writ of habeas corpus in district court. In his
federal habeas petition, Head argued, inter alia, that the
lawyer representing him on the direct appeal of his 1980
conviction was constitutionally ineffective. Recognizing that
the passage of thirty-two years since his conviction affected
the timeliness of his petition, Head argued that Williams
created a “new circumstance” and removed an “impediment”
that had prevented him from filing a timely petition. Pet. for
Writ of Habeas Corpus 4. Because his section 23-110 motion
was pending when Williams became final, Head further
insisted that AEDPA’s one-year statute of limitations did not
start to run until the Supreme Court denied his petition for
certiorari on January 23, 2012.
The district court ordered the Government to respond to
Head’s habeas petition, but eventually denied the petition as
untimely, reasoning that his “convictions became final before
the AEDPA” was enacted and, therefore, “it is the effective
date of the AEDPA, not . . . Williams, which determined the
start date of the one-year limitations period.” 5 Head v.
5
The district court recognized some confusion existed
regarding whether Head’s convictions became final in 1987 (when
his direct appeal concluded) or in 1995 (when his kidnapping
conviction was vacated). Head IV, 944 F. Supp. 2d at 42 n.1.
Because both dates predate AEDPA’s effective date, we agree with
the district court that, for Head’s instant petition, it makes no
10
Wilson (Head IV), 944 F. Supp. 2d 40, 43 (D.D.C. 2013). On
May 29, 2013, Head filed a timely notice of appeal and a
motion for certificate of appealability (COA) with this Court.6
We referred Head’s COA motion to the district court, see
United States v. Mitchell, 216 F.3d 1126, 1130 (D.C. Cir.
2000), which denied it. Head renewed his COA motion
before us, 7 which we granted “as to the district court’s
determination that the habeas petition was untimely.” Order
Granting Certificate of Appealability (Jan. 13, 2014). Our
review is de novo. See United States v. Cicero, 214 F.3d 199,
202 (D.C. Cir. 2000).
difference whether his convictions became final in 1995 or 1987.
See id.
6
Under AEDPA, a prisoner cannot appeal a district court’s
denial of a habeas petition unless he first secures a COA from
either the district court or the court of appeals. 28 U.S.C.
§ 2253(c); see Gonzalez v. Thaler, 132 S. Ct. 641, 650 n.5 (2012).
To do so, he must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). The showing
requires a petitioner to demonstrate that “jurists of reason would
find it debatable whether the applicant states a valid claim of the
denial of a constitutional right.” United States v. Arrington, 763
F.3d 17, 23 (D.C. Cir. 2014) (brackets omitted). If “a district court
denies relief in a § 225[4] case on procedural grounds without
reaching the merits of the claim . . . the applicant must additionally
show that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id. (quotation
marks omitted). The court of appeals has no jurisdiction unless and
until a court grants a COA. See id. at 22.
7
A few days after he renewed his COA motion before us,
Head filed another COA motion in district court. The district court
denied Head’s motion via minute order on September 23, 2013.
11
III. ANALYSIS
Head admits that, in the absence of tolling, AEDPA’s
statute of limitations expired nearly fifteen years ago.
Consequently, we must decide whether our 2009 decision in
Williams either (1) removed an “impediment” that was
“created by State action” and violated “the Constitution or
laws of the United States” under AEDPA, see 28 U.S.C.
§ 2244(d)(1)(B); or (2) constituted an “extraordinary
circumstance” within our equitable tolling jurisprudence,
Menominee Indian Tribe, 764 F.3d at 58. 8 Under either
theory, Head cannot succeed unless our pre–Williams case
law prevented him from filing a timely federal habeas
petition.
A. THE EFFECT OF WILLIAMS
Although they suffer from their own unique deficiencies,
see infra § III.B, Head’s twin tolling arguments are doomed
by a common flaw—nothing in our pre–Williams
jurisprudence prevented Head from pursuing his IAAC claim
in a timely federal habeas petition. To the contrary, we
emphasized in Williams that, since the 1980s, our case law
“seemed to have assumed that the district court would have
jurisdiction to entertain” IAAC claims, notwithstanding
section 23-110’s otherwise broad prohibition of federal
jurisdiction. 586 F.3d at 998–99 (discussing Streater II, 691
F.2d at 1028); see also Whiteside v. United States, 775 F.3d
180, 186 (4th Cir. 2014) (en banc) (no tolling if earlier
8
The Government concedes that, if AEDPA’s statute of
limitations was tolled until our Williams decision became final, the
pendency of Head’s section 23-110 motion further tolled AEDPA’s
statute of limitations and, therefore, his habeas petition would be
timely.
12
precedent “strongly foreshadowed” intervening change in
law). In other words, Williams simply made explicit what had
already been implicit: when the D.C. Court of Appeals barred
prisoners from raising IAAC claims under section 23-110 in
the early 1980s, the plain terms of section 23-110(g) opened
the door to federal habeas review for those claims. See
Williams, 586 F.3d at 998. Indeed, no case prevented the
petitioner in Williams from timely raising his IAAC claim in
his federal habeas petition and, when he raised it, we agreed
that the district court had jurisdiction to hear it. See id. at
1000; see also Whiteside, 775 F.3d at 186.
Head raises two counter-arguments, neither of which we
find persuasive. First, he points to our isolated statement in
Williams that “we have already recognized some exceptions
under section 23-110(g), and today we recognize another.”
Williams, 586 F.3d at 1000 (emphasis added). But it does not
follow that our express “recogni[tion]” in Williams that IAAC
claims are cognizable in federal court means that they were
categorically foreclosed before. Id. In fact, Williams, read in
toto, makes plain that we did no more than make explicit our
earlier “assum[ption]” that a prisoner sentenced in superior
court can raise an IAAC claim in federal court,
notwithstanding section 23-110’s broad language barring
federal jurisdiction. Id. at 999 (citing Streater II, 691 F.2d at
1028).
Second, Head cites Collier v. United States, No. 99-5120,
1999 WL 1336229 (D.C. Cir. Dec. 15, 1999) (per curiam), as
evidencing that IAAC claims were barred before Williams. In
Collier, an unpublished order, we denied a pro se petitioner’s
request for a COA after the district court dismissed his habeas
petition, which petition contained an IAAC claim. Id. at *1.
We first observed that the petitioner had “properly pursued a
motion to recall mandate, which is an appropriate collateral
13
procedure for presenting an ineffective assistance of appellate
counsel claim.” Id. We then reasoned that the petitioner had
not “demonstrated that his local remedy was inadequate or
ineffective” because “[f]ailure to prevail in that court does not
render his local remedies inadequate or ineffective.” Id.
Therefore, we concluded that he had failed to make the
requisite “showing of a denial of a substantial constitutional
right” for the issuance of a COA. Id.
Head’s reliance on Collier suffers from a trio of defects.
As a threshold matter, Collier is an unpublished order entered
before January 1, 2002. Accordingly, our rules mandate that
Collier is “not to be cited as precedent,” see D.C. CIR. R.
32.1(b)(1)(A), 9 and we do not rely on it as such, see D.C. CIR.
R. 36(e)(2) (“[A] panel’s decision to issue an unpublished
disposition means that the panel sees no precedential value in
that disposition.”); see also Nat’l Classification Comm. v.
United States, 765 F.2d 164, 170 (D.C. Cir. 1985)
(“[U]npublished opinion . . . has no precedential effect with
respect to other parties.”). Next, it appears that the petitioner
in Collier argued that the “local remedy” provided by the
D.C. Court of Appeals “was inadequate or ineffective”
because he “fail[ed] to prevail” on his motion to recall the
mandate. Collier, 1999 WL 1336229, at *1. Nothing in
Collier suggests that the petitioner argued that he had no
adequate local remedy because section 23-110 review was
unavailable and nothing in Collier suggests that, had he made
9
Our rules distinguish between unpublished dispositions
entered before January 1, 2002, which “are not to be cited as
precedent,” D.C. CIR. R. 32.1(b)(1)(A), and those entered on or
after January 1, 2002, which “may be cited as precedent,” D.C. CIR.
R. 32.1(b)(1)(B), even though the issuing “panel’s decision to issue
an unpublished disposition means that the panel sees no
precedential value in that disposition,” D.C. CIR. R. 36(e)(2).
14
that claim—which we not only addressed and endorsed in
Williams but also anticipated in Streater II—we would have
held that federal habeas jurisdiction was lacking. Finally, and
most importantly, we decided Collier on December 15, 1999,
more than two years after AEDPA’s statute of limitations
expired on April 24, 1997. “Needless to say,” Head “could
not have let the deadline pass in reliance upon an order that
the court had not yet entered.” Baxter, 761 F.3d at 31.
This sweeping defect controls our disposition of Head’s
statutory and equitable tolling arguments. Nevertheless, there
are additional problems with both arguments, which problems
we briefly discuss.
B. TOLLING
AEDPA’s one-year statute of limitations is tolled until
removal of (1) an “impediment” that was (2) “created by State
action” and that (3) violated “the Constitution or laws of the
United States.” 28 U.S.C. § 2244(d)(1)(B). Even if our pre–
Williams jurisprudence rendered doubtful federal court
jurisdiction, Head has failed to satisfy any of these three
statutory requirements. First, we agree with the Fourth
Circuit that “the term ‘impediment,’ as found in
§ 2244(d)(1)(B),” and “the term ‘futile’ ” are “far from
synonymous.” Minter v. Beck, 230 F.3d 663, 666 (4th Cir.
2000). In other words, “an effort by [the petitioner] to obtain
habeas relief prior to” a favorable change in law “may have
been incapable of producing a successful result” but so long
as “the effort itself was still possible,” no “impediment”
exists. Id. Indeed, the “Supreme Court has recognized in the
analogous context of proving ‘cause’ for procedural default of
a habeas claim” that “futility cannot constitute cause if it
means simply that a claim was unacceptable to that particular
court at that particular time.” Id. (quoting Bousley v. United
15
States, 523 U.S. 614, 623 (1998)). Simply put, futility “is not
a valid justification for filing an untimely § 2254 petition.”
Id.
Second, our pre–Williams jurisprudence is plainly not
“State action.” 28 U.S.C. § 2244(d)(1)(B). Even assuming
that Head was prevented from pursuing his IAAC claim in
federal court, it was our construction, as a federal court, of
section 23-110, that allegedly prevented him from doing so.
Recognizing this problem, Head shifts course in his reply
brief and argues that we should construe section 23-110 itself
as the state action that impeded his timely filing. Because we
generally do not consider arguments made for the first time in
a reply brief, we find that Head has forfeited it. See Holland
v. Bibeau Const. Co., 774 F.3d 8, 14 (D.C. Cir. 2014).
Third, even if Head could demonstrate an “impediment”
that was “created by State action,” he has failed to show that
such an impediment violated “the Constitution or laws of the
United States.” Id. Indeed, his only attempt to so
demonstrate is buried in a footnote in his reply brief, where he
argues that section 23-110(g)’s “bar to federal jurisdiction
implicates the Suspension Clause.” Pet’r’s Reply Br. 4 n.2
(citing Swain, 430 U.S. at 381). Even if we were to consider
an argument Head makes only in a footnote 10 in his reply
brief, he would still have to demonstrate a Suspension Clause
violation by showing that a motion to recall the mandate was
not an “adequate substitute” for a federal writ of habeas
corpus. See INS v. St. Cyr, 533 U.S. 289, 305 (2001). He
makes no attempt to do so.
10
See Nat’l Oilseed Processors Ass’n v. OSHA, 769 F.3d
1173, 1184 (D.C. Cir. 2014) (“[T]he court generally declines to
consider an argument if a party buries it in a footnote and raises it
in only a conclusory fashion.”).
16
Head’s equitable tolling argument fares no better. The
Fourth Circuit has described equitable tolling as appropriate
only in “rare instances where—due to circumstances external
to the party’s own conduct—it would be unconscionable to
enforce the limitation period against the party and gross
injustice would result.” Whiteside, 775 F.3d at 184. Our case
law is in accord: “To count as sufficiently ‘extraordinary’ to
support equitable tolling, the circumstances that caused a
litigant’s delay must have been beyond its control.”
Menominee Indian Tribe, 764 F.3d at 58.
Here again, we find the rationale of our sister circuit
persuasive. In Whiteside, the Fourth Circuit, sitting en banc,
examined whether a federal habeas petitioner was, for the
purpose of equitable tolling, “prevented from timely filing by
. . . unfavorable precedent that would have governed his claim
had he” timely filed. 775 F.3d at 185. Answering in the
negative, the Whiteside Court held that the equitable tolling
standard “focuses not on whether unfavorable precedent
would have rendered a timely claim futile, but on whether a
factor beyond the defendant’s control prevented him from
filing within the limitations period at all.” Id. Indeed, “[t]he
demands of finality oblige a petitioner to raise those claims
that might possibly have merit even where he thinks the court
will be unsympathetic.” Id. (brackets and quotation marks
omitted); see also Minter, 230 F.3d at 666–67 (change in law
not impediment to filing habeas petition and thus insufficient
to equitably toll AEDPA statute of limitations).
The Fourth Circuit’s reasoning in Whiteside is consistent
with cases from other circuits 11 and with our own recognition
11
See, e.g., Lo v. Endicott, 506 F.3d 572, 575 (7th Cir. 2007)
(intervening change in law not new factual predicate sufficient to
reset statute of limitations period under AEDPA); E.J.R.E. v.
United States, 453 F.3d 1094, 1098 (8th Cir. 2006) (intervening
17
that a party is “not excused from timely filing its claim
because . . . the law might be inhospitable” inasmuch as “the
only sure way to determine whether a suit can be maintained
is to try it.” Menominee Indian Tribe, 764 F.3d at 61
(brackets omitted). At most, Head’s argument reduces to a
claim that our pre–Williams jurisprudence—because it was
arguably unsettled—contributed to his “misunderstanding of
the law” and prompted a “mistake[n]” belief that, had he filed
a federal habeas petition before April 24, 1997, the federal
court would have dismissed it in reliance on section 23-110.
Id. As we have made plain, that argument is far from enough
to support equitable tolling. See id.
For the foregoing reasons, we affirm the district court’s
judgment.
So ordered.
change in law insufficient to reset statute of limitations period
under AEDPA and declining to equitably toll statute of limitations);
Shannon v. Newland, 410 F.3d 1083, 1088–90 (9th Cir. 2005)
(same).