
USCA1 Opinion

	




       [NOT FOR PUBLICATIONNOT TO BE CITED AS PRECEDENT]                 United States Court of Appeals                     For the First CircuitNo. 99-1184                          LANCE HULLUM,                      Plaintiff, Appellant,                                v.                   MICHAEL T. MALONEY, ET AL.,                                                     Defendants, Appellees.                                                                                                          APPEAL FROM THE UNITED STATES DISTRICT COURT                                               FOR THE DISTRICT OF MASSACHUSETTS                                          [Hon. Joseph L. Tauro, U.S. District Judge]                                                                                                                             Before                                                    Selya, Boudin and Lynch,                        Circuit Judges.                                                                                                                                     Lance Hullum on brief pro se.     Thomas F. Reilly, Attorney General, and Susanne G. Levsen,Assistant Attorney General, Criminal Bureau, on brief forappellees.September 16, 1999                                                                            Per Curiam. Petitioner Lance Hullum appeals from the  dismissal of his habeas petition filed under 28 U.S.C. § 2254.   The  district court, applying the one-year limitations period  introduced by the Antiterrorism and Effective Death Penalty Act  of 1996 (AEDPA), see 28 U.S.C. § 2244(d), concluded that the  petition was time-barred, see Hullum v. Maloney, 14 F. Supp. 2d  164 (D. Mass. 1998) (adopting report of the magistrate-judge).   It thereafter granted a certificate of appealability (COA).  We  affirm but on different grounds.            Petitioner, who seeks to challenge a 1990  Massachusetts conviction, filed the instant pro se petition on  February 12, 1998 (or possibly some days earlier).  Even with  the grace period included, see, e.g., Gaskins v. Duval, ___  F.3d ___, 1999 WL 447129 (1st Cir. July 7, 1999), and even with  the period during which state remedies were being pursued  excluded, see 28 U.S.C. § 2244(d)(2), his petition was late.   Respondent filed a motion to dismiss on this basis.  By way of  opposition, petitioner explained as follows: that he had been  confined since 1994 in the "department disciplinary unit" (DDU)  at MCI-Cedar Junction; that the main prison library did not  "start sending" a copy of AEDPA to DDU inmates until "late  1997" and that he did not learn thereof until early 1998; that  he otherwise lacked access to "almost all important  information" regarding the Act, as well as to updated legal  materials or any form of legal assistance; and that he would  have filed a timely petition had he known of the one-year  requirement.  For these reasons, he sought to invoke the  statutory provision that tolls the running of the limitations  period until                      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.    28 U.S.C. § 2244(d)(1)(B).  Petitioner's factual assertions  have not been contested.            The district court construed these allegations as  setting forth a predicate claim of denial of the right of  access to the courts, in violation of Lewis v. Casey, 518 U.S.  343 (1996), and Bounds v. Smith, 430 U.S. 817 (1977).  It then  concluded that no viable such claim had been presented, such  that § 2244(d)(1)(B) was inapplicable.  The court emphasized  two factors in this regard.  It found that petitioner had not  "diligently pursued his federal claims," noting in particular  that two extended periods of time had elapsed (of nearly 29 and  13 months, respectively) when no state court proceeding was  pending.  See 14 F. Supp. 2d at 166.  And it determined that  any deficiencies in the library system had not "prevented"  petitioner from pursuing those claims.  In this regard, it  noted, inter alia, that the federal claims were identical to  those raised earlier in state court, and that petitioner had  initiated or pursued other court actions during the relevant  period.  See id. at 166-67.             This structure of analysis raises questions.  First,  if petitioner's improbable allegations are accepted as true and  we assume that he had no reasonable means of learning of the  limitations period in timely fashion, was he thereby  "prevented" from filing his petition within the meaning of §  2244(d)(1)(B)?  Cf. Lewis, 518 U.S. at 351 (explaining that a  right-of-access claim might be established by showing "that a  complaint ... was dismissed for failure to satisfy some  technical requirement which, because of deficiencies in the  prison's legal assistance facilities, [the inmate] could not  have known"); Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir.  1999) ("[i]n the right circumstances, a delay in receiving  information might call for equitable tolling--such as if the  prison did not obtain copies of AEDPA for months and months").   Second, must a petitioner act with "due diligence" in order to  invoke § 2244(d)(1)(B) (as suggested in Miller v. Marr, 141  F.3d 976, 978 (10th Cir.), cert. denied, 119 S. Ct. 210 (1998)),  or alternatively to state a claim under Lewis (as suggested by  the district court)?  Cf. Miller v. New Jersey State Dep't of  Corrections, 145 F.3d 616, 618-19 (3d Cir. 1998) (requiring  diligence in order to invoke equitable tolling); 28 U.S.C. §  2244(d)(1)(D) (setting forth explicit diligence requirement).            Resolving these questions is not necessary here  because petitioner's three substantive claims prove to be  frivolous.  His central claim is that a provision in his plea  agreement--that he receive treatment as a sexual offender at  Bridgewater State Hospital--was never honored, thereby  rendering his guilty plea invalid.  See, e.g., Santobello v.  United States, 404 U.S. 257 (1971).  Petitioner states that all  pertinent facts "appear on the face of the plea hearing  transcript."  Brief at 27.  Yet that transcript, a copy of  which he has supplied to this court, makes it clear that this  claim fails for at least three reasons.  First, the stipulation  in question provided--not that petitioner would receive such  treatment--but that the court would so recommend.  Second, the  court subsequently did just that.  Most important, this  stipulation was not part of the plea agreement, but was reached  only after the plea had been accepted.  The fact that  petitioner apparently ended up not receiving treatment thus  provides no basis for challenging his plea.              Petitioner also complains that he is innocent of the  crimes and that his trial attorney should have engaged a DNA  expert.  Yet the scattered findings on which he relies from  certain serology reports are of no consequence, particularly in  light of the factual proffer articulated by the government (and  accepted by petitioner) at the change-of-plea hearing.  These  claims, even apart from the procedural hurdles they face, see,  e.g., United States v. Broce, 488 U.S. 563, 569-74 (1989),  prove utterly baseless.             We therefore choose to affirm on the basis that the  petition is substantively meritless.  To the extent that the  grant of the COA might be thought to confine our review to the  limitations issue, we would add the following.  A right-of-  access challenge requires a showing that a "nonfrivolous" legal  claim has been frustrated or impeded.  Lewis, 518 U.S. at 353.   Petitioner, having failed to present a nonfrivolous claim,  cannot make such a showing.  For that reason, § 2244(d)(1)(B)  is inapplicable, which in turn means that his petition was also  properly dismissed on limitations grounds.             Affirmed.
