                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 12-1500

                           CARLOS DOMINGUEZ,

                       Petitioner, Appellant,

                                     v.

                        RONALD DUVAL, ET AL.,

                       Respondents, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]


                                  Before

                      Thompson, Circuit Judge,
                    Souter,* Associate Justice,
                     and Stahl, Circuit Judge.


     Deirdre L. Thurber for appellant.
     Anne M. Thomas, Assistant Attorney General, with whom Martha
Coakley, Attorney General, and Janine Lopez, Legal Intern, were on
brief, for appellee.


                              July 23, 2013




     *
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
            SOUTER,    Associate    Justice.       The     appellant,       Carlos

Dominguez, was convicted in a Massachusetts court of the second

degree murder of Sao Sun.         After the Massachusetts Appeals Court

affirmed the conviction and the Supreme Judicial Court denied

further appellate review, Dominguez filed a petition in the United

States District Court for relief on habeas corpus, 28 U.S.C.

§ 2254, which was dismissed for untimely filing in the absence of

any apparent justification for equitable tolling of the one-year

statute of limitations, id. § 2244(d)(1).           We affirm.

            The facts of the offense accepted by the Appeals Court

and the district court, and not contested here, show that early one

morning a resident of Grove Street in Chelsea, Massachusetts, went

to the window after hearing cries from the street.                  He saw that

they were coming from an Asian man being chased by two men he

described as Hispanic.          He identified the Asian as Sao Sun, an

habitual    scavenger    around     the     neighborhood,    61     years    old,

emaciated, weighing about a hundred pounds or a little over, with

a heart condition.       Somewhat later, the victim was found dead a

short distance away on a side street running off Grove, at a spot

connected by a trail of blood to the place where the witness had

seen him running.       The cause of death was a stab wound in one

shoulder.    When the police searched Dominguez’s apartment they

found   clothing      covered    with     Sun’s   blood    hidden     behind    a

refrigerator,    and    after     initial     denials     Dominguez    admitted


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inflicting the stab wound. Although he was younger than the victim

and outweighed him by some forty pounds, he said he had “cut” Sun

in self-defense after the victim had attacked him with a stick,

thrown the stick at him and lunged at him.

          In this appeal from dismissal of the habeas petition for

late filing, the untimeliness is uncontested, and the sole issue is

whether it was error for the district court to refuse equitable

tolling of the running of the time, a matter we review for abuse of

discretion.    Holmes v. Spencer, 685 F.3d 51, 62 (1st Cir. 2012).

To obtain tolling, as held available in Holland v. Florida, 130

S.Ct. 2549, 2560 (2010), a petitioner bears a substantial burden to

establish an exception to the statutory rule by showing that he

exercised reasonable diligence in trying to preserve his rights but

was prevented from timely filing by extraordinary circumstances,

id. at 2562.    This court has flagged illuminating considerations

that are especially helpful in evaluating a petitioner’s call for

equity in a close case.      Trapp v. Spencer, 479 F.3d 53, 61 (1st

Cir. 2007).

          The    district    court   found   that   Dominguez   satisfied

Holland’s diligence requirement but thought that the circumstances

were “unlikely” to qualify as extraordinary enough to excuse

missing the deadline.       After consulting the Trapp protocol, the

court dismissed the untimely petition for want of a persuasive




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basis in equity to do otherwise.           We have no quarrel with either

conclusion.

            The one-year limitation period ending on December 9,

2010, had nearly expired on November 23, when counsel sent the

habeas petition to Dominguez for signature, addressed to him at a

New Jersey prison where prior mail had been sent and delivered.

The envelope was back in counsel’s office on December 3, unopened,

with a “Return to Sender” stamp.           After verifying that Dominguez

was still at the New Jersey prison, counsel mailed it again on

December 6 for expedited delivery.          This time it was accepted and

returned to the lawyer by the deadline, but it was not received at

the district court until the following day.

            The sequence smacks of the inefficiencies too endemic to

incarceration to qualify as extraordinary. See Holmes, 685 F.3d at

63 (“[The] usual problems inherent in being incarcerated do not

justify equitable tolling.” (internal quotation marks omitted));

cf. Sandvik v. United States, 177 F.3d 1269, 1272 (11th Cir. 1999)

(finding a mailing delay not to be grounds for equitable tolling).

Indeed, the only variant on the common theme of prison mail delay

here is the erroneous return, but although that fact may be enough

to present a discretionary judgment call, the district court

correctly saw the Trapp considerations as counting against tolling.

            Trapp   identified   five      points      bearing   on   a   court’s

equitable   discretion   to   toll,       three   of    them   in   addition   to


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Holland’s    diligence     and   character-of-the-circumstances    as

extraordinary or not.      479 F.3d at 61.    As to those three, the

district court held that diligence in exhausting state remedies and

absence of prejudice to the prosecution favored tolling here.     But

Trapp’s remaining factor is the apparent merit of the claims that

would be pressed if the petition should be entertained, tolling not

being in order for claims of dubious merit.       The district court

soundly held that on this ground Dominguez was not entitled to

equitable relief.

            The first of Dominguez’s constitutional claims is the

conceded error of admitting the autopsy report into evidence

through the testimony of a doctor who was not present at the

autopsy and could not support the report’s conclusions from any

independent examination of his own.       See Crawford v. Washington,

541 U.S. 36 (2004).      The only question is whether the error was

harmless, as the Massachusetts Appeals Court held. The deferential

standard requiring a habeas petitioner to show a state court’s

unreasonable application of Supreme Court law or unreasonable

finding of fact, see 28 U.S.C. § 2254(d)(1), (2), boils down here

to the need to demonstrate that the error caused actual prejudice

amounting to a “substantial and injurious effect or influence in

determining the jury’s verdict.”       Brecht v. Abrahamson, 507 U.S.

619, 637 (1993) (internal quotation marks omitted); Fry v. Pliler,

551 U.S. 112, 119-20 (2007).     This Dominguez cannot do.


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             The   report    itself   consisted         largely    of   clinical

observations without significance to the contested issues, and

Dominguez agreed with its conclusion that the shoulder stab wound

was the cause of death by bleeding.              The argument for prejudice

consequently addresses not the contents of the report but the

absence of the examining pathologist, whom Dominguez would have

liked   to   ask   whether   the   nature   of    the    wound    supported   his

testimony that he had knifed Sun only in defending himself when Sun

lunged at him after throwing a stick.                   But not only is the

substance of the pathologist’s hypothetical testimony a matter of

pure speculation, the possibility that any such testimony would

have swayed the jury toward accepting Dominguez’s account is

downright unrealistic.       Dominguez was younger than the sickly 61

year-old Sun and outweighed him by a good forty pounds; no stick or

other weapon was observed by the witness or found at the scene, and

there is no evidentiary basis to suggest that the knife stab might

actually have been a response to a lunge by an unarmed man of Sun’s

frail build.       Dominguez’s complaint of prejudice from lack of

testimonial support for his version of the facts cannot be taken

seriously.

             The second claim is of a violation of the state’s

obligation to disclose evidence favorable to the defense under

Brady v. Maryland, 373 U.S. 83 (1963), raised by motion for new

trial that was denied by the trial court in a ruling sustained by


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the Appeals Court.        The district court found the merit of this

claim “dubious” on the required Brady element of a showing by the

petitioner of a “reasonable probability” of a different final

result if the evidence had been made known at trial, United States

v. Bagley, 473 U.S. 667, 682 (1985)(opinion of Blackmun, J.); id.

at 685 (White, J., concurring in part and concurring in the

judgment); see also Pennsylvania v. Ritchie, 480 U.S. 39, 57

(1987). The court doubted, that is, that the petitioner could show

that the undisclosed evidence “undermines confidence in the outcome

of the trial.”    Bagley, 473 U.S. at 678 (opinion of Blackmun, J.).

On habeas, of course, a state defendant must demonstrate the

unreasonableness of a state court’s conclusion that he had not so

shown. Here, on the contrary, the district court was again correct

in doubting that Dominguez could carry this two-fold burden.

            The evidence in question is the information that about

six months before the victim’s death his son had been convicted of

murdering   a   member    of   a   local   gang.   Dominguez    argues   that

apprizing the jury of this fact would have lent plausibility to his

own testimony that Sun attacked him, supposedly because Sun might

have thought Dominguez was in some way associated with the earlier

murder   victim   or     somehow   instrumental    in   his   son’s   earlier

conviction.     The answer to this argument, as in the case of the

Crawford claim, is that it is pure speculation, made up of whole




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cloth.   Knowledge of the son’s conviction does nothing to disturb

confidence in the soundness of the guilty verdict.

           Because   these   underlying   issues   are   devoid   of   any

apparent merit, Trapp supports the district court’s denial of

equitable tolling under the one-year limitation statute, and the

petition was correctly dismissed as untimely.

           The judgment of the district court is affirmed.

           It is so ordered.




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