Filed: Jun. 06, 2000
Latest Update: Feb. 21, 2020
Summary: and Lipez, Circuit Judge. 1999) (memorandum and order).prejudice.Engineering Co., 45 F.3d 588, 593 (1st Cir.under state law, as petitioner contends.case, this is not such a case.is a first petition which was filed after AEDPA's enactment.lacked knowledge of limitations period).
[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1345
ALCIDE H. SAUCIER,
Petitioner, Appellant,
v.
WARDEN, NEW HAMPSHIRE STATE PRISON,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Lynch, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lipez, Circuit Judge.
Alcide H. Saucier on brief pro se.
Philip T. McLaughlin, Attorney General, and Christopher H.M.
Carter, Assistant Attorney General, on brief for appellee.
JUNE 5, 2000
Per Curiam. Petitioner Alcide H. Saucier appeals
from the district court's dismissal of his habeas petition
under 28 U.S.C. § 2254 for lack of exhaustion. For reasons
already stated in our order dated November 10, 1999, we
agree with petitioner that he has exhausted his state
remedies. We nonetheless affirm dismissal of the petition
on the ground that it is untimely. In our November order,
we directed briefing on this question because it appeared
that petitioner had not filed his petition within the one-
year grace period for habeas claims accruing before the
enactment of the Anti-Terrorism and Effective Death Penalty
Act ("AEDPA"). See Gaskins v. Duval, 183 F.3d 8, 9 (1st
Cir. 1999) (memorandum and order). We now conclude that the
petition was untimely and that it should be dismissed with
prejudice.
First, while the state failed to assert the
limitations defense in its answer to the petition, we
conclude that it has not waived the defense. Given the
early stage of proceedings, the state might yet have raised
the defense by amending its answer or filing a motion for
summary judgment. In its order dismissing the petition, the
district court mentioned the limitations period as bearing
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on any future petition, alerting both the state and
petitioner to this issue (albeit not with reference to the
instant petition). Significantly, in his brief petitioner
has not asserted any prejudice attributable to the late
raising of the defense. For these reasons, we hold that
there has been no waiver. See Williams v. Ashland
Engineering Co., 45 F.3d 588, 593 (1st Cir. 1995) (finding
no waiver of an affirmative defense raised before the close
of discovery and before summary judgment proceedings where
the plaintiff could anticipate litigation of the issue, had
an opportunity to respond, and was not unfairly prejudiced
by the late assertion of the defense); accord Conjugal
Partnership v. Conjugal Partnership,
22 F.3d 391, 400 (1st
Cir. 1994) ("it is settled that '[w]hen there is no
prejudice and when fairness dictates, the strictures of [the
raise or waive] rule may be relaxed") (citation omitted).
Second, the petitioner has not shown that he timely
filed his petition, as he suggests. Finality under §
2244(d)(1)(A) occurs on the "conclusion of direct review or
the expiration of the time for seeking such review," but is
not determined by the time for filing a new trial motion
under state law, as petitioner contends. Section
2244(d)(1)(D) does not apply because the petitioner knew the
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factual predicates for his claims by the time his probation
was revoked, an event which occurred prior to AEDPA's
enactment. Hence, he was obligated to file his claims
within the one-year grace period. His failure to obtain
documents of record to substantiate his claims until May
1997 does not alter that fact, especially since he
apparently made no effort to obtain those documents until
that time.
Finally, even if this court were to hold that the
limitations period may be equitably tolled in an appropriate
case, this is not such a case. The detrimental reliance
claims considered in Libby v. Magnusson, 177 F.3d 43 (1st
Cir. 1999), and Pratt v. United States,
129 F.3d 54 (1st
Cir. 1997), cert. denied,
523 U.S. 1123 (1998), are
distinguishable. The petitioners in those cases had filed
a second post-AEDPA petition and claimed that their filing
had been affected by pre-AEDPA law, so that application of
AEDPA to their second petitions would have an impermissible
retroactive effect. In contrast, the petition at issue here
is a first petition which was filed after AEDPA's enactment.
We also note that this pro se petitioner's ignorance of the
limitations period, allegedly based on now invalid case law,
would not justify equitable tolling. See Harris v.
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Hutchinson, -- F.3d -- , 2000 WL 345398 *5-*6 (4th Cir.
2000) (no equitable tolling where counsel erroneously
advised petitioner that limitations period began at
conclusion of post-conviction proceedings); Smith v.
McGinnis,
208 F.3d 13, 16-18 (2d Cir. 2000) (per curiam) (no
equitable tolling where pro se petitioner erroneously
believed that filing federal petition could await exhaustion
of state remedies); Felder v. Johnson,
204 F.3d 168, 171-73
(5th Cir. 2000) (no equitable tolling where pro se inmate
lacked knowledge of limitations period).
We affirm dismissal of the 28 U.S.C. § 2254
petition, but we remand to the district court with the
direction that it modify its judgment of dismissal to be
with prejudice.
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