The Petitioner, Tony B. Gaskins ("Gaskins"), brought thishabeas corpus petition (the "Petition") under 28 U.S.C. § 2254 toattack collaterally his conviction of first-degree murder in theMassachusetts Superior Court sitting in and for the County ofEssex. This Court dismissed the Petition for failure to exhauststate remedies, and subsequently denied Gaskins's Motion ToVacate the Dismissal Order [Doc. No. 42]. Gaskins then moved thisCourt to reconsider its order denying that motion. The Courtdenied this motion on July 27, 2004. This memorandum explainswhy.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts of Gaskins's state criminal case are recounted inCommonwealth v. Gaskins, 419 Mass. 809 (1995). The relevantfactual and procedural history up to and including this Court's March 28, 2000 dismissal of Gaskins's Petition is recounted inGaskins v. Duval, 89 F. Supp. 2d 139 (D. Mass. 2000).
On December 3, 2003, Gaskins moved this Court to vacate itsdismissal order, to restore the Petition to the docket, and tostay the Petition until he finished exhausting his stateremedies. Mot. To Vacate [Doc. No. 42]. The Court denied thismotion on December 5, 2003. On December 18, 2003, Gaskins filedthe present motion for the Court to reconsider its order ofDecember 5, 2003. Mot. To Reconsider [Doc. No. 43]. TheRespondent, Ronald T. Duval, did not oppose the motion.
A. Vacating the Dismissal Order
Under 28 U.S.C. § 2244(d), which codifies certain changes tothe law embodied in the Antiterrorism and Effective Death PenaltyAct of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, a oneyear statute of limitations applies to federal habeas challengesto state court convictions. That period is tolled for "[t]he timeduring which a properly filed application for Statepostconviction or other collateral review with respect to thepertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2).The Supreme Court has held that "other collateral review" refersonly to state proceedings, and thus that the limitation period isnot tolled during federal habeas proceedings. Duncan v.Walker, 533 U.S. 167, 172 (2001). Under 28 U.S.C. § 2254(b)(1)(A), a state prisoner must exhaustall available state remedies before pursuing habeas relief infederal courts. Prior to AEDPA's passage, when a district courtencountered a "mixed petition," that is, a petition containingboth exhausted and unexhausted claims, it would typically offerthe petitioner two options: amend the petition to delete anyunexhausted claims, or return to state court to present theunexhausted claims there. See Rose v. Lundy, 455 U.S. 509,510 (1982).
Under AEDPA, however, state prisoners with mixed petitions facean increased danger of forfeiting their claims. If a prisonerdeletes unexhausted claims from her petition, she may well bebarred from bringing those claims at a later date, because ofAEDPA's limitation on second or successive petitions. Under22 U.S.C. § 2244(b), state prisoners may only bring such petitionsin limited circumstances, subject to strict proceduralrequirements. On the other hand, if the prisoner agrees todismissal of her Petition so she can exhaust her remainingclaims, she runs the risk of running afoul of the one yearlimitation period. As this Court has discussed elsewhere, federalcourts typically take a long time to resolve habeas petitions,even those that are dismissed for failure to exhaust, and it isquite common for resolution to take over a year. Kane v.Winn, 319 F. Supp. 2d 162, 216-17 & nn. 86-87 (D. Mass. 2004).Because the pendency of a federal habeas petition does not toll the one year limitation period, dismissal of a mixed petitionmore than a year after the filing of the petition would almostalways foreclose future federal review of the claims raisedtherein, at least in cases where equitable tolling was notavailable.
The courts of appeals, including the First Circuit, haveapproved a "stay and abeyance" procedure to protect habeaspetitioners from falling into this trap. E.g., Neverson v.Farquharson, 366 F.3d 32, 42-43 (1st Cir. 2004). Rather thandismissing a mixed petition, a district court may stayproceedings while the petitioner returns to state court toresolve his unexhausted claims. Id. at 42. The First Circuit inparticular has strongly recommended this practice, particularlywhere dismissal might result in prejudice, and has recommendedthat courts explain to pro se petitioners the proceduraloptions available to them and the legal consequences thereof.Id. at 42-43; Delaney v. Matesanz, 264 F.3d 7, 14 n. 5 (1stCir. 2001). Justices Stevens, Souter, Ginsburg, and Breyer haveall endorsed the stay and abeyance procedure, see Duncan,533 U.S. at 183 (Stevens, J., concurring, joined by Souter, J.);id. at 192 (Breyer, J., dissenting, joined by Ginsburg, J.),and Justice O'Connor has noted the practice's widespreadacceptance in a manner that suggests she approves of it, or atleast does not consider it to be beyond the power of the districtcourts, see Pliler v. Ford, 124 S. Ct. 2441, 2448 (2004)(O'Connor, J., concurring). The other four justices have not addressed thepractice's propriety. See Pliler, 124 S. Ct. at 2446(plurality opinion).
Although the stay and abeyance procedure is widely accepted andencouraged, district courts are not required to inform pro sepetitioners of its availability, or to explain other proceduraloptions, although it may be that petitioners who areaffirmatively misled by a district judge are entitled to relief.Id. at 2445-46. It is unclear what effect Pliler has on theline of cases holding that the stay and abeyance procedure "isrequired when dismissal could jeopardize the petitioner'sability to obtain federal review." Nowaczyk v. Warden,299 F.3d 69, 79 (1st Cir. 2002) (collecting cases that have held asmuch).
This Court now uses the stay and abeyance procedure regularly,but it did not use the procedure at the time it dismissedGaskins's petition. Equitable tolling is sometimes available incases where a court failed to use the procedure, and it ispossible that, were Gaskins to refile the Petition at theconclusion of his state proceedings, it would be appropriate totoll equitably the period when the Petition was before thisCourt. See Neverson, 366 F.3d at 43-44 (providing guidelinesfor determining the appropriateness of equitable tolling).Gaskins does mention the possibility of equitable tolling, butwhat he is really seeking is something quite different. Gaskins's Motion To Vacate is, first and foremost, an attemptto place his Petition in the posture it would have occupied hadthe Court followed the stay and abeyance procedure on March 28,2000, instead of dismissing the Petition. Strictly speaking, itis a motion for relief from a final order under Federal Rule ofCivil Procedure 60(b).1 Under Rule 60(b): On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . ., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. According to the First Circuit: Relief under Rule 60(b) is "extraordinary in nature" and is therefore "granted sparingly." To succeed on a Rule 60(b) motion, the movant must show that (1) the motion is timely, (2) exceptional circumstances justify granting extraordinary relief, and (3) vacating the judgment will not cause unfair prejudice to the opposing party. In addition, the movant must show that granting the motion will not be an "empty exercise" by demonstrating that the underlying claim for relief is likely to succeed on the merits.Caisse v. DuBois, 346 F.3d 213, 215 (1st Cir. 2003)(citations omitted). District courts have broad discretion inresolving Rule 60(b) motions. Id. at 215-16 (citing Karak v. BursawOil Corp., 288 F.3d 15, 19 (1st Cir. 2002)).
The first question is whether Gaskins filed his original MotionTo Vacate "within a reasonable time." The "reasonable time"requirement comes directly out of the language of Rule 60(b),which also specifies a limitation period of one year for motionsbased on mistake, inadvertence, surprise, excusable neglect,newly discovered evidence, fraud, or misrepresentation. Rule60(b)(1)-(3). Rule 60(b) motions filed within less than one yearcan still sometimes run afoul of the "reasonable time"requirement, whether or not they fall within Rule 60(b)(1)-(3),depending on the circumstances. Cotto v. United States,993 F.2d 274, 280 (1st Cir. 1993). For Rule 60 motions that falloutside those provisions, periods of more than one year may alsosometimes be reasonable. Id.
Gaskins's case almost certainly fails under "excusableneglect," given that he could have discovered the legal predicatefor his motion at the time of the dismissal order, or at least atthe time that Duncan v. Walker was decided. Even if he couldnot have been expected to seek vacation of the dismissal orderuntil the opinions in Duncan v. Walker were issued, thatdecision came down on June 18, 2001, almost two and a half yearsbefore Gaskins filed his original Rule 60(b) motion. Under theone year limitation period that applies to excusable neglectcases, Gaskins's original Rule 60(b) motion was untimely. Even if Gaskins tried to fit his motion under the "any otherreason" prong, it would be untimely under the "reasonable time"standard. The legal predicate for the motion existed for at leastthe nearly two and a half years between the Duncan decision andGaskins's filing of the Motion To Vacate. Although courts mustmake allowances for pro se litigants, and particularly forprisoners, it is still a litigant's responsibility to seekdesired relief in a timely manner.
Because Gaskins's original motion was untimely, the Court neednot address the interesting questions raised by the "exceptionalcircumstances" and "unfair prejudice" inquiries. It remains foranother day to decide, for example, whether Rule 60(b) reliefwould ever be appropriate as a substitute for equitable tolling,in a case where the latter was not available.
B. Filing a New Habeas Case (or Recharacterizing the Motion toVacate)
Gaskins has one final option. He could file a new habeaspetition, with a request that the Court apply the stay andabeyance procedure. Procedurally, a new habeas petition wouldstop the AEDPA limitations clock on the date of filing, and allthe time since AEDPA's effective date that Gaskins has beenchallenging his convictions in the courts of the Commonwealthwould be excluded. If Gaskins were to finish exhausting hisclaims in the state courts, without obtaining relief, this Courtwould presumably then have to determine whether Gaskins is eligible for equitable tolling of the period during which hisoriginal Petition was pending in the federal courts. If equitabletolling were not available, then Gaskins's federal habeas claimswould be time-barred.
Since the date of his original conviction, Gaskins has promptlypursued his remedies, and has never in any way abused the writ ofhabeas corpus. He has proposed that, should the Court allow hisMotion To Reconsider, he will provide the Court with regularupdates on his state proceedings, and will promptly pursue hisfederal claims, should the state courts deny him relief. He hasconsistently acted in good faith, and there can be little doubtthat the equities favor him.
Given that the Court ideally should have applied the stay andabeyance procedure in 2000, that Gaskins has consistently actedin good faith, and that his liberty is at stake, the Court wouldbe entirely willing to permit Gaskins to file a renewed habeaspetition, which the Court would then immediately stay and hold inabeyance until Gaskins finishes exhausting his administrativeremedies. With matters in their present posture, however, thisCourt cannot render an advisory opinion concerning equitabletolling, and it is inappropriate for the Court to recharacterizeGaskins's Motion To Vacate in this manner without his permission,however. See Castro v. United States, 124 S. Ct. 786, 789(2003). Therefore, the Court denied Gaskins's Motion ToReconsider in its entirety, leaving his case closed. Should Gaskins wish to file a new habeas petition and to request thatthe Court stay proceedings until he has finished exhausting stateremedies, he may do so.
Moreover, Gaskins may also file a motion asking the Court toreconsider its order dismissing his December 3, 2003 Motion ToVacate, and to treat that Motion To Vacate as a newly filedhabeas petition. Gaskins would still have to pay a new habeaspetition filing fee, and the Court would also request that hefile a new habeas petition in addition to the motion toreconsider. Should the Court grant the motion to reconsider, theeffect would be to toll the AEDPA limitations period as ofDecember 3, 2003 (the date Gaskins filed his Motion To Vacate),rather than as of the date when he files his new petition. Thedifference may be an academic one, of course, if Gaskins files anew habeas petition before he is through exhausting stateremedies, because the time between December 3, 2003, and the dateof filing the new habeas petition would be excluded anyway.
For the reasons detailed above, Gaskins's Motion To Reconsider,[Docket No. 43] was DENIED.
1. This is a true Rule 60(b) motion and does not raise any ofthe problems associated with second or successive habeaspetitions disguised as Rule 60(b) motions. See Rodwell v.Pepe, 324 F.3d 66, 67 (1st Cir. 2003).