YOUNG, C.J.

February 24, 1999

James F. Connors, Jr. ("Connors") petitions this Court for habeas corpus relief pursuant to 28 U.S.C. §2254. Connors asserts that his conviction in state court for unarmed burglary was constitutionally defective because (1) the indictment he was convicted under failed to identify a specific felony that he intended to commit while breaking and entering, (2) his guilty plea was predicated on ineffective assistance of counsel and prosecutorial misconduct, (3) the Massachusetts Appeals Court ("the Appeals Court") wrongfully inferred that he intended to steal while breaking and entering, and (4) the Appeals Court addressed the merits of the Motion to Correct Illegal Sentence despite the absence of a contested evidentiary hearing thereon. Connors argues that these procedural failings represent violations of his constitutional due process and equal protection rights, as well as his Sixth Amendment right to counsel.

Allowing appropriate deference to the courts of the Commonwealth of Massachusetts, see 28 U.S.C. §2254 (e)(1), the following facts appear from the record:

On March 30, 1989, a Middlesex County Grand Jury indicted Connors for unarmed burglary. The indictment specifically read that Connors "in the night time did break and enter the dwelling house . . . with intent therein to commit a felony." On November 2, 1989, upon advice of counsel, and following a plea colloquy before Justice Robert A. Barton, Connors entered a plea of guilty to unarmed burglary. Judge Barton sentenced Connors to a term of twelve to twenty years, to be served concurrent with another sentence.

Several years later, on November 15, 1996, Connors filed a Motion to Correct Illegal Sentence pursuant to Mass. R. Civ. P. 30. He claimed that his guilty plea was premised on the errant advice of counsel, who had failed to notice that the indictment did not list any specific felony that Connors intended to commit upon breaking and entering. Likewise, he claimed that the prosecutor in the can engaged in misconduct by informing Judge Barton that larceny was the intended crime, when the indictment was in fact silent as to the specific crime intended.

Judge Barton denied the motion without a hearing, being "satisfied beyond a reasonable doubt that the plea was made voluntarily with knowledge of its consequences, [and] with an understanding of the nature of the charge." A motion for reconsideration was likewise denied on December 9, 1996. Connors filed a timely notice of appeal with the Appeals Court on January 6, 1997. Connors argued, in addition to the grounds advanced in his Rule 30 motion, that Judge Barton violated his constitutional rights by failing to hold an evidentiary hearing when ruling on the motion. The Appeals Court affirmed Judge Barton's ruling on August 28, 1997. See Commonwealth v. Connors, 43 Mass. App. Ct. 1109 (1997) (table). Finally, on October 23, 1997, the Massachusetts Supreme Judicial Court denied Connors' Application for Further Appellate Review, which raised the additional argument that the Appeals Court committed clear error by proceeding to address the merits of his Rule 30 motion.¹ This habeas petition followed several months later on August 24, 1998.

The parties devote exclusive attention in their briefs to the substantive issues presented by Connors' petition, without considering the applicable statute of limitations. See 28 U.S.C. §2244 (d). Because Connors' petition appears to be barred by section 2244 (d), the Court raises the issue sua sponte. See Street v. Vose, 936 F.2d 38, 39 (1st Cir. 1991) (holding that a district court may dismiss sua sponte "a complaint which states a claim that appears to have expired under the applicable statute of limitations").

A. The Habeas Limitations Period

Effective April 24, 1996, see Montero v. Cobb, 937 F.Supp. 88, 92 D. Mass. 1996), the Antiterrorism and Effective Death Penalty Act of 1996 (the "Act"), Pub. L. No. 104-132, 110 Stat. 1214, §101, 105, amended the statutes governing habeas corpus petitions for prisoners in both state and federal custody and imposed a one year statute of limitations period on the filing of all non-capital habeas petitions in the federal courts. See 28 U.S.C. §§2244(d) (1), 2255.² While this may seem a straight-forward concept actual application of the habeas limitations period has given rise to a series of difficult interpretive questions.³

A threshold question raised by the Act was whether the limitations period applies to prisoners whose convictions became final before the Act's effective date. Connors, whose conviction became final on December 2, 1989,⁴ well before the Act's effective date, falls into this category of petitioners. Early opinions addressing the issue adopted divergent approaches. Compare Duarte v. Hershberger, 947 F.Supp. 146, 148-49 (D. N.J. 1996) (creating a one year grace period after the effective date of the Act to file a section 2255 petition that would otherwise be untimely) Smith v. United States, 945 F.Supp. 1439, 1441 (D. Col. 1996) (same with respect to a section 2255 petition); Flowers v. Hanks, 941 F.Supp. 765, 771 (N.D. Ind. 1996) (same) with Clarke v. United States, 955 F.Supp. 593, 595-97 (E.D. Va. 1997) (one year limitation period applies to all §2255 petitions filed after effective date of the Act, including those based upon convictions that became final more than one year prior to its effective date), vacated, 162 F.3d 1156 (4th Cir. 1998) (table); Curtis v. Class, 939 F.Supp. 703, 708 (D. S.D. 1996) (same with respect to §2254 petitions) Harold v. United States 932 F.Supp. 705, 706 (D. Md. 1996) (same), vacated, 162 F.3d 1156 (4th Cir. 1998) (table); United States v. Bazemore, 929 F.Supp. 1567, 1569-70 (S.D. Ca. 1996) (same).

With relative haste, however, a judicial majority emerged in support of the conclusion that "[the Act's] one year statute or limitation cannot be applied retroactively to extinguish claims that [would be] technically time barred before the effective date of [the Act]." Flanagan v. Johnson, 154 F.3d 196, 199-200 (5th Cir. 1998) (collecting cases). This conclusion primarily served to raise another difficult interpretive question: if the Act's one year statute of limitations does not apply to petitioners in Connors' class, what, if any, limitations period does apply? Again, divergent approaches were adopted. The Second Circuit, for instance, appeared to adopt an ad hoc approach which sought to afford each petitioner, on a case-by-case basis, a "reasonable period" of time. See Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997).⁵ Other courts have opted for a more objective approach that affords petitioners one year from the Act's effective date. See. e.g., United States v. Flores, 135 F.3d 1000, 1005-06 (5th Cir. 1998). Thus, the Act, which the Supreme Court has noted "is not a silk purse of the art of statutory drafting," Lindh v. Murphy, 521 U.S. 320, 336 (1997), threatened to create judicial discord once again.

At this point, however, a strong consensus can be identified in favor of the following bright-line approach: petitioners whose convictions became final before the effective date of the Act are entitled to a one-year "judicial grace period" running from the effective date, April 24, 1996.⁶ See Paige v. United States, 163 F.3d 1046, 1047 (8th Cir. 1998); Brown v. Angelone, 150 F.3d 370, 374 (4th Cir. 1998); Ross v. Artuz, 150 F.3d at 100-02; Flores, 135 F.3d at 1005-06; Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998); United States v. Simmonds, 111 F.3d 737, 745-46 (10th Cir. 1997); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996) (dicta), rev'd on other grounds, 521 U.S. 320 (1997). Although the First Circuit has yet to express its view on the issue, district courts in this Circuit are included among those that follow the one year approach. See Alves v. Matesans, 20 F.Supp.2d 135, 136 (D. Mass. 1998) (Tauro, C.J.); Zuluaga, 971 F.Supp. at 619. This Court will continue the practice in this case, in large part because it agrees with the candid reasoning of the Fourth Circuit: "[C]onsidering that the courts have now been grappl[ing] with AEDPA and the time-bar limitation for two years, it is not untoward to allow inmates one year to understand and comply with these new provisions." Brown, 150 F.3d at 375 (citations and internal quotation marks omitted)

Thus, Connors had one year from April 24, 1996 to file his application. Absent tolling of the limitations period, then, Connors' petition would have been untimely when filed on August 24, 1998.

B. Pendency of State Post-Conviction Proceedings

Another question raised by the Act, and also implicated by Connors' petition, concerns the tolling of the limitations period during times when state post-conviction proceedings are pending.⁷ Unlike the previous interpretive questions, however, this one has yet to receive a satisfactory answer. Section 2244(6)(2) provides:

The 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 under this subsection.

25 U.S.C. §2244(d) (2). The difficulty with this subsection is that it appears to contain a mechanism whereby prisoners can toll the federal limitations period at will. Indeed, some courts have noted that the tolling provision has the potential to give prisoners a "reset" button for the statute of limitations period. See, e.g., Valentine v. Senkowski, 966 F.Supp. 239, 241 (S.D.N.Y. 1997) ("The practical effect of [the tolling provision] may be that a post-conviction state remedy, which may be filed at any time, will be used to revive a right to federal relief which otherwise would be time barred . . . "). This is especially true in a state like Massachusetts, where prisoners can file a motion to correct an allegedly illegal sentence at any time as of right. See Mass. R. Crim. p. 30. Although a prisoner waives any claims not made in his original motion, see Mass. R. Grim. P. 30(c)(2), the "proper filing" of a subsequent motion might be sufficient to toll the federal habeas statute, even if it obviously violates the state waiver rule. The rub lies in the fact that "proper filing" may be construed to mean only the filing of a post-conviction motion according to the most basic state procedural rules, irrespective of the substance of the motion. "Such a rule would allow petitioners to obtain an extension at will, simply by filing a frivolous second post-conviction petition before the one year period ran." United States ex rel. Morcan v. Gilmore, 26 F.Supp.2d 1035, 1041 (N.D. Ill. 1998).

To combat this apparent flaw in the Act's drafting, some courts have held that a "properly filed application" must be non-frivolous, in addition to meeting state procedural rules such as the time and place of filing. See, e.g., Valentine, 966 F.Supp. at 241 ("[T]his Court assumes that [state post-conviction motions] , although always timely, must also be non-frivolous in order to be 'properly filed . . . .'"); Hill v. Keane, 984 F.Supp. 157, 159 (E.D.N.Y. 1997) (no tolling for state petition that was dismissed for raising claims that could have been raised on direct appeal). In this manner, the prisoner is denied the ability to "reset" the limitations period by filing baseless state proceedings such as repetitive Mass. R. Crim. P. 30 motions.

The majority of courts to address the problem, however, have viewed the "non-frivolous" determination as impermissibly intrusive of state proceedings because it requires a substantive inspection of the petitioner's state motion. See, e.g., Lovasz v. Vaughn, 134 P.36 146, 149 (3rd Cir. 1998) ("[W]e reject the notion that a meritless (state post-conviction motion] cannot constitute a 'properly filed application.'") . Moreover, refusal to toll on the basis of the filing of a state post-conviction motion would encourage the filing of federal habeas petitions before State post-conviction proceedings have been pursued, a result which runs contrary to deeply-held principles of comity. See Coleman v. Thompson, 501 U.S. 722, 731 (1991).⁸

Thus, the majority of courts toll the limitations period so long as the state post-conviction motion is "submitted in compliance with basic state filing requirements, such as the rules governing the time and place of filing." Souch, 21 F.Supp.2d at 1087. This is so even when the state court dismissed as frivolous a successive post-conviction application for failing to raise claims in the first application, see Ellis v. Johnson, 11 F.Supp.2d 695, 698 (N.D. Tex. 1998), or when a petitioner had filed as many as seven unsuccessful state post-conviction applications, see Souch, 21 F.Supp.2d at 1088. In short, though they recognize the potential for prisoners to abuse the tolling provision, the majority of courts ultimately hold that the problem is one for Congress to solve. See, e.g., United States ex rel. Morgan, 26 F.Supp.2d at 1040. As will be seen, however, there may yet be a middle road that avoids both the problem of abuse of the tolling provision and the necessity of intrusion into state proceedings.

C. Calculating the Limitations Period

The Valentine Court's fear of frivolous state motions being used to extend the federal limitations period was based on the view that whenever a state post-conviction motion was "properly filed," the federal limitations period would run for a full year from the date the post-conviction motion was denied. See Valentine, 966 F.Supp. at 241 ("It is clear . . . that the 1-year period of limitations does not begin to run until after direct review has been completed and state post-conviction review has been . . . exhausted."); see also Powell v. Williams, 981 F.Supp. 1409, 1414 (D. N.M. 1997) ("[A] prisoner whose state conviction became final in 1982 and who missed the [one year grace period], but who filed a state court habeas petition today, would be afforded one year after the completion of his state proceedings to file a federal petition."); Unites States ex rel. Morgan, 26 F.Supp.2d at 1037 (adopting the Valentine reasoning for commencement of the limitations period). It is only under this view that the tolling provision of section 2244(d)(2) truly becomes a "reset" button.

The alternative, and this Court believes better, view is that the limitations period begins to run once conviction is final (or from the date of the Act's enactment for earlier convictions), and then is suspended, but not reset, during the pendency of a state motion. Thus, over time, the prisoner's one-year limitations period would be used up regardless of the number of state motions filed. See Flanagan, 154 F.3d at 199, n.1 ("The mere existence of an application for state habeas relief does not . . . prevent the one year period of limitation from beginning until the state habeas application is finally decided.") (dicta); Galindo, 19 F.Supp.2d at 709 (counting for purposes of the limitations period the time between the Act's effective date and the filing of a state application); Hughes, 967 F.Supp. at 778 (counting the interval between the conclusion of one state collateral proceeding and the beginning of another).

In this case, for instance, Connors waited from April 24, 1996 (the Act's effective date) until November 15, 1996 to file his Mass. R. Crim. P. 30 motion. Further consideration of that motion was denied by the Supreme Judicial Court on October 23, 1997, and Connors did not file his section 2254 petition until August 24, 1998. Thus, Connors' petition is time-barred because state post-conviction proceedings were only pending for approximately 12 of the 28 months that passed between the Act's effective date and the filing of the section 2254 petition. Rather than being reset on October 23, 1997 when the Supreme Judicial Court denied further review, the limitations period merely began running again (with approximately seven months already used up).

Unlike the approach taken in Valentine, this alternative view comports well with the language of the statute. Section 2244(d) treats direct review of convictions differently from post-conviction proceedings. Under section 2244(d)(1)(A), the limitations period does not begin to run until 'the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." In contrast, under section 2244(d)(2), the statute merely provides that "[t]he time during which a [state post-conviction proceeding] is pending shall not be counted toward any period of limitation . . . ." Thus, the natural reading of the statute is that the exhaustion of direct review starts the one year period while the pendency of collateral review merely suspends, not resets, it. In this manner, the one year limitations period will eventually pass regardless of the number of state post-conviction motions filed and without unnecessary intrusion into state proceedings.⁹

Thus, this Court holds that the limitations period under section 2244(d) is only suspended by the pendency of state post-conviction proceedings. Upon the conclusion of those proceedings, the limitations period will continue apace, including any time that was accrued prior to the filing of the state motion. In that manner, the inmate's "reset" button turns out to be, upon close inspection of the statute, only a "pause" button and thus the cause for concern over abuse of the tolling provision significantly dissipates.¹⁰ In this case, Connors did not press the "pause" button long enough, as over 16 months have run against the statute of limitations.

For the foregoing reasons, this Court hereby DISMISSES Connors' section 2254 petition for habeas corpus relief as untimely filed under section 2244 (d).

/s/ WILLIAM C. YOUNG

UNITED STATES DISTRICT JUDGE

YOUNG, D.J.

February 24, 1999

Pursuant to the Memorandum and Order of February 24 1999, the Court DISMISSES the Plaintiff's section 2254 petition for habeas corpus relief as untimely filed under section 2244(d). Judgment shall, and hereby does, enter for the Defendant.

/s/ Elizabeth Smith, Deputy Clerk

Approved as to form:

/s/ WILLIAM G. YOUNG
UNITED STATES DISTRICT JUDGE

FOOTNOTES

¹Connors' complaint with respect to the Rule 30 motion stems from a misundertanding of the procedure for post-conviction relief. Believing that an evidentiary hearing was required under Rule 30(a), Connors first argued to the Appeals Court that Judge Barton erred in failing to provide one. Then Connors argued that the Appeals court erred by treating his Motion to Correct Illegal Sentence as a motion under Rule 30(b) rather than under Rule 30(a), a distinction which in Connors' view means the difference between required and discretionary evidentiary hearings. In fact, however, there is only one type of motion, a Rule 30 motion, and evidentiary hearings are not required under the Rule. Instead, they are discretionary with the presiding judge who may rule on the motion "on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised by the motion or affidavits." Mass.R.Crim. 30(c)(3).

²As amended, §2244(d) provides a one-year statute of limitations period that runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) 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;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. §2244(d)(1); see also 28 U.S.C. §2255 (providing a nearly identical period for petitions filed under §2255).

³One not so difficult question came from a literalist petitioner who argued that the Act's limitations period "does not apply to him because his case does not fall under the category of terrorism nor does it involve a death penalty." Griffin v. Endicott, 932 F.Supp. 231, 232 (E.D. Wis. 1996). Those savvy to the legislative process might dismiss this contention as naive, yet it raises an important question: Why should sweeping changes to one of the most robust common law traditions be effected under the auspices of an "Anti-Terrorism and Effective Death Penalty Act"?

⁴Because Connors did not appeal his conviction, the Court uses the last day on which he could have sought direct review. That date is thirty days after Connors's November 2, 1989 guilty plea. See Mass R.App.P. 4(b) (allowing thirty days to appeal in criminal cases).

⁵This approach, which was subject to some criticism, see, e.g., United States v. Flores, 135 F.3d 1000, 1005 (5th Cir. 1998), has subsequently been abandoned by the Second Circuit, see Ross v. Artuz, 150 F.3d 97, 100-102 (2d Cir. 1998).

⁶Naturally, there has been some quibbling over the exact date from which the one year period runs. See Flanagan, 154 F.3d at 201 (noting that courts disagree whether April 23 or April 24, 1997 is the cut-off date for habeas filings stemming from preenactment convictions). This Court took the road less traveled by offering April 25, 1997 as the final date. See Zuluaga, 971 by offering April 25, 1997 as the final date. See Zuluaga, 971 F.Supp. at 619. Upon further consideration, however, this Court accepts the logic of those courts which have held that Fed.R.Civ.P. 6(a) applies to the judicially-created limitations period, and that therefore petitions from prisoners whose convictions became final before April 24, 1996 must be filed on or before April 24, 1997. See, e.g., Flanagan, 154 F.3d at 201-202.

⁷Technically, the tolling provision of §2244(d)(2) need not apply at all to the judicially-created one year grace period for pre-enactment convictions. In the interest of parallel treatment, however, this Court will proceed as if petitioners in Connors' category were covered by the statutory provision.

⁸Other considerations weighing in favor of tolling the limitations period irrespective of the frivolous nature of state motions include: avoiding the uncertainty that would result form the somewhat arbitrary standard of finding state applications non-frivolous, see Hughes v. Irvin, 967 F.Supp. 775, 778-79 (E.D.N.Y. 1997); affording a liberal interpretation to §2254 and §2255 petitions, which are often drafted by pro se inmates, see Galindo v. Johnson, 19 F.Supp.2d 697, 704 (W.D. Tex. 1998); and avoiding the abrogation of an entire body of federal law that has developed around the specific question of what impact state procedural bars have on federal habeas review, see Souch v. Harkins, 21 F.Supp.2d 1083, 1087-88 (D. Ariz. 1998).

⁹One might argue that the rule will still encourage inmates to file habeas petitions instead of state post-conviction proceedings. See United States ex rel. Morgan, 26 F.Supp.2d at 1037. this is only true if the prisoner intends to take longer than one year to prepare her state post-conviction application. Otherwise, as soon as the state motion is filed, the federal clock stops ticking and remains stopped regardless of the length of time the prisoner is made to wait in the state courts.

¹⁰Of course, theoretically, a prisoner may file state court petitions with such regularity and promptness that the limitations period is, for all practical purposes, never used up. This Court both recognizes and dismisses that possibility, confident that between the state and federal courts a fair and efficient resolution would be found in such a situation.