          United States Court of Appeals
                       For the First Circuit


No. 11-1888

                           ROGER HERBERT,

                       Petitioner, Appellant,

                                 v.

                         THOMAS DICKHAUT,
     Superintendent of Souza Baranowski Correctional Center,

                        Respondent, Appellee.



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

              [Hon. Nancy Gertner, U.S. District Judge]


                               Before

                         Lynch, Chief Judge,
                  Lipez and Howard, Circuit Judges.


     Jay Markell for appellant.
     Eva M. Badway, Assistant Attorney General, with whom Martha
Coakley, Attorney General, was on brief, for appellee.



                         September 19, 2012
          LIPEZ,   Circuit   Judge.      This    appeal   requires   us   to

determine whether a petition for habeas corpus was timely filed

within   the    one-year   limitations     period     provided   by       the

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").

See 28 U.S.C. § 2244(d)(1).      The district court found that the

petitioner, Roger Herbert, filed his petition within the one-year

window because the running of the limitations period was tolled by

proceedings in Massachusetts state court.            However, the court

rejected the petition on its merits.            Herbert appealed, and we

affirm the district court's judgment, albeit on different grounds.

For the reasons described below, we find Herbert's petition barred

by AEDPA's one-year limitations period.

                                  I.

          In 1991, a Massachusetts jury convicted Herbert of armed

robbery and first-degree felony murder.1 Herbert appealed, and his

conviction was affirmed on November 9, 1995, by the Massachusetts

Supreme Judicial Court ("SJC").        Commonwealth v. Herbert, 656

N.E.2d 899 (Mass. 1995).     He did not appeal to the United States

Supreme Court.     On February 6, 1996, the ninety-day period for

filing a petition for certiorari expired and Herbert's conviction

became final.    See Neverson v. Farquharson, 366 F.3d 32, 36 (1st

Cir. 2004).



     1
       An appendix setting forth all of the relevant dates follows
this opinion.

                                 -2-
            On December 17, 1996, Herbert mailed motions for a new

trial and appointment of counsel to the Suffolk County Superior

Court.   The motion for appointment of counsel was docketed on

December 19, 1996, but, for some undetermined reason, the motion

for a new trial was never docketed.2   The court took no action on

either motion.   Six years later, Herbert filed renewed motions for

a new trial and appointment of counsel, both of which were docketed

on December 19, 2002.    The court denied both motions on November

20, 2003.

            On February 10, 2004, pursuant to Massachusetts law,

Herbert sought permission from a single "gatekeeper" justice of the

SJC to appeal the Superior Court's judgment denying the motion for

a new trial to the full SJC.   See Mass. Gen. Laws ch. 278, § 33E.3

On July 15, 2004, the gatekeeper justice denied Herbert's request

to appeal.     Herbert then filed a motion asking the gatekeeper

justice to reconsider; the justice declined to do so, denying the

motion on August 4, 2004.   Finally, on September 3, 2004, Herbert

sought to appeal the gatekeeper's decision to the full SJC, which


     2
       Although the motion for a new trial was never received or
docketed, the district court found after an evidentiary hearing
that there was ample evidence that it was mailed on December 17,
1996. Appellee does not challenge this factual finding on appeal.
     3
        Section 33E provides that, in the case of motions for a new
trial filed with the Superior Court in capital cases, "no appeal
[to the full SJC] shall lie . . . unless the appeal is allowed by
a single justice . . . on the ground that it presents a new and
substantial question which ought to be determined by the full
court."

                                -3-
dismissed    his appeal    on   December    12, 2005.     Commonwealth      v.

Herbert, 838 N.E.2d 1236 (Mass. 2005).

            On January 5, 2006, Herbert filed a petition for a writ

of habeas corpus under 28 U.S.C. § 2254 with the United States

District Court for the District of Massachusetts.                 He raised

numerous issues, but the court found that only two were preserved:

first, an argument that the trial court erred in admitting a

confession    that   he   alleged   was    involuntary,   and,   second,    an

argument that the jury selection process was racially biased.               In

a written decision on respondent's motion to dismiss, the district

court determined that the petition was timely filed, explaining

that the one-year limitations period was tolled by Herbert's

original motion for a new trial, his subsequent section 33E request

to the gatekeeper justice, and his final appeal to the full SJC.

Herbert v. Dickhaut, 724 F. Supp. 2d 132, 138-41 (D. Mass. 2010).

However, in a later decision, the court denied the petition on its

merits, finding that any error was insufficient to justify granting

Herbert's habeas petition. Herbert v. Dickhaut, No. 06-10036, 2011

WL 3021770, at *12, *14 (D. Mass. July 21, 2011).                Acting on a

certificate of appealability granted by the district court as to

both preserved issues, Herbert now appeals.

                                     II.

            AEDPA    provides   a   one-year    limitations      period    for

petitions seeking federal review of state convictions alleged to


                                     -4-
violate the Constitution or federal law.             28 U.S.C. § 2244(d)(1).

The statute identifies several triggering events for the one-year

period, including "the date on which the judgment became final by

the conclusion of direct review or the expiration of the time for

seeking such review."       Id. § 2244(d)(1)(A).       However, we have held

that "for causes of action accruing before the effective date of

AEDPA[, April 24, 1996], there is a one year grace period running

from that date in which to file a [petition]."              Gaskins v. Duval,

183 F.3d 8, 9 (1st Cir. 1999).

            This one-year limitations period is tolled in "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 . . . ."      28 U.S.C. § 2244(d)(2).        "[A] state's

procedural rules control whether an application for state post-

conviction   relief    is    pending    under   §    2244(d)(2)."       Drew   v.

MacEachern, 620 F.3d 16, 21 (1st Cir. 2010) (citing Carey v.

Saffold, 536 U.S. 214, 220 (2002)).              Thus, "an application for

[state] post-conviction relief is pending from the time it is first

filed until [the time it is] finally disposed of and further

appellate    review   is    unavailable      under   the   particular   state's

procedures."    Id. (alterations in original) (quoting Currie v.

Matesanz, 281 F.3d 261, 263 (1st Cir. 2002))(internal quotation

marks omitted)).




                                       -5-
           In    Massachusetts,    a    "gatekeeper"    justice's    decision

pursuant to section 33E, "whether it is to permit or prohibit an

appeal, is final and unreviewable."           Commonwealth v. Smith, 951

N.E.2d 322, 328 (Mass. 2011).          Thus, in Massachusetts, the denial

of a section 33E motion marks the end of the pendency of an

application for post-conviction relief.         See Drew, 620 F.3d at 21.

                                    III.

A.   Waiver

           We are initially confronted with Herbert's argument that

respondent waived his limitations defense by failing to appeal or

cross-appeal the district court's determination that the petition

was timely filed.4     This argument is meritless.        Respondent could

not have appealed the district court's decision on its limitations

argument, rendered prior to its decision on the merits.             As we have

explained, a limitations period defense "cannot be pursued by

interlocutory appeal."       Rivera-Ramos v. Roman, 156 F.3d 276, 282

(1st Cir. 1998); see also Pedraza v. Shell Oil Co., 942 F.2d 48,

54-55 (1st Cir. 1991) (noting that there is no exception to the

final judgment rule for an order rejecting a dispositive motion

arguing   that   a   claim   is   time-barred).        Furthermore,    having

succeeded in obtaining a dismissal of Herbert's petition on the



     4
       Herbert is inconsistent in characterizing this argument as
one of waiver or forfeiture. However, insofar as he argues that
respondent is not entitled to raise a limitations defense, he makes
a waiver argument and we analyze it as such.

                                       -6-
merits, respondent could not cross-appeal the district court's

finding that the petition was timely. A cross-appeal is "improper"

where    "the   district   court     granted    all    of   the   relief   that

respondents requested -- i.e., dismissal of [appellee's] petition

with prejudice."     Neverson, 366 F.3d at 39.

            There   can    be   no   waiver    where    a   party   lacked   an

opportunity to raise an argument. Since the waiver argument fails,

we turn to the Commonwealth's next argument, which is that the

district court erred when it held the petition was timely. The

Commonwealth did not argue this to the district court, but has on

appeal and we may affirm on any ground made manifest in the record.

Id.

B.    The Limitations Period

            The district court found that Herbert's petition was

timely because the limitations period was tolled by his attempts to

seek state post-conviction relief.            In particular, it found that

the period was tolled by: 1) the mailing of Herbert's motion for a

new trial on December 17, 1996; 2) the filing of a section 33E

petition with a gatekeeper justice on February 10, 2004; and 3)

Herbert's attempt to appeal the gatekeeper's denial to the full

SJC.    In so finding, the court acknowledged that the last of these

three periods was particularly problematic.                 We turn to that

period, and the question of whether the limitations period was

properly tolled after July 15, 2004, the date when the gatekeeper


                                      -7-
justice denied Herbert leave to appeal to the full SJC.     The court

found that this time was tolled because its reading of the SJC's

precedents suggested that there was a chance that the full SJC

would find that Herbert's appeal fit into a narrow exception to the

Massachusetts rule that a single justice's denial of a petition for

leave to appeal is final and unreviewable.

            The district court relied on the SJC's decision in

Haberek v. Commonwealth, 657 N.E.2d 228 (Mass. 1995), to determine

that the full SJC may have been willing to consider Herbert's

appeal.   In that case, as here, the appellant sought to appeal his

conviction to the full SJC despite the fact that a gatekeeper

justice had denied his section 33E petition for leave to appeal.

He raised an issue that Herbert raised in his state-court appeal

and in his § 2254 petition -- the fact that "the same counsel was

both the trial attorney and the appellate attorney, [therefore] the

ineffective assistance of counsel claim could not have been raised

earlier."   Id. at 229.   The full SJC heard the appeal and concluded

that, in light of the appellant's ineffective assistance claim,

"[i]t was error for the trial judge to deny without a hearing the

defendant's motion for a new trial."     Id.   In reaching the merits

of the motion for a new trial, the SJC mentioned, but did not

reconcile, the fact that the gatekeeper justice had denied the

appellant's motion for leave to appeal.    It offered no explanation

of its decision to overlook the gatekeeper's decision and consider


                                  -8-
the appeal. Shortly after the SJC's decision in petitioner's case,

it overruled Haberek, putting an end to any perception that Haberek

created an exception to the rule that the decision of a gatekeeper

justice is final and unreviewable.         See Commonwealth v. Cook, 857

N.E.2d 31 (Mass. 2006).

           Pointing to the Haberek decision, the district court in

this case explained that "Herbert's appeal fell squarely within the

narrow exception carved out by Haberek; he sought review of the

gatekeeper justice's ruling that denied him relief with respect to

the same form of ineffective assistance of counsel as was at issue

in Haberek."    Herbert, 724 F. Supp. 2d at 140.         Thus, it concluded

"as a matter of state law as it existed at the time of Herbert's

appeal,   a    capital   appellant    asserting    a   unique   ineffective

assistance of counsel claim could legitimately appeal a gatekeeper

justice's denial to the full SJC."         Id. at 141.

           However, this supposed exception notwithstanding, the SJC

observed in this case that "[t]he single justice denied [Herbert's]

application on the separate and independent ground[] that it was

untimely."    Herbert, 838 N.E.2d at 1237.        Under Massachusetts law,

"a gatekeeper petition pursuant to [section 33E must] be filed

within thirty days of the denial of a motion for a new trial."

Mains v. Commonwealth, 739 N.E.2d 1125, 1131 n.10 (Mass. 2000).

Herbert's motion for a new trial was denied on November 20, 2003,

and his gatekeeper petition was not filed until February 10, 2004


                                     -9-
-- fifty-three days late.    This late filing provides an alternate

basis for the gatekeeper's decision to reject Herbert's section 33E

petition,    and   Massachusetts    courts   have   made   clear   that   a

gatekeeper's decision is "'final and unreviewable,' even when the

single justice bases his opinion on procedural grounds, such as

when a gatekeeper petition is dismissed as untimely."          Drew, 620

F.3d at 21 (citation omitted) (quoting Herbert, 838 N.E.2d at 1237)

(citing Commonwealth v. Nassar, 908 N.E.2d 371, 372-73 (Mass.

2009)).     Herbert does not argue that a rejection on the basis of

untimeliness is appealable.

            Accordingly, whether or not it was proper to toll the

time between the belated filing of Herbert's section 33E petition

and the "gatekeeper" justice's decision on July 15, 2004,5 see

Currie, 281 F.3d at 268 ("In capital cases, an application for

leave to appeal is a necessary step toward perfecting a post-

conviction appeal to the SJC.      It is, therefore, part of the appeal

process . . . ."), the time after this decision should be counted

against AEDPA's limitations period.6         It is undisputed that the


     5
       In Currie we discussed, but did not resolve, the issue of
whether time between the expiration of a period to appeal and the
filing of a belated appeal should be tolled. See 281 F.3d at 269
& n.10. We will not resolve this issue here because it has no
bearing on the ultimate timeliness of Herbert's petition.
     6
       We also have yet to address the issue of whether a motion
for reconsideration continues to toll the AEDPA limitations period
after a gatekeeper justice denies a section 33E petition for leave
to appeal to the full SJC. We will not resolve the issue here
because, even if we were to determine that this time should be

                                   -10-
time between the effective date of AEDPA and Herbert's motion for

a new trial is counted against the limitations period. This period

amounts to 237 days.7     Because the limitations period began to run

again when the gatekeeper justice rejected Herbert's section 33E

petition, another 540 days passed before Herbert filed the instant

§ 2254 petition.8    Thus, a total of 777 non-tolled days are counted

against Herbert, putting his petition well outside of AEDPA's one-

year limitations period.

            For the foregoing reasons, the judgment of the district

court is affirmed.

            So ordered.




tolled, it would shave only twenty-one days from the time counted
against the limitations period. Thus, this period does not affect
the timeliness of Herbert's petition.
     7
         April 24, 1996, to December 17, 1996.
     8
         July 15, 2004, to January 6, 2006.

                                  -11-
                            Appendix

Date            Event
Mar. 8, 1991    Herbert is convicted.
Nov. 9, 1995    Herbert's conviction is affirmed by the SJC.
Feb. 6, 1996    Herbert's conviction becomes final upon
                expiration of period for filing a petition for
                certiorari with the United States Supreme Court.
Apr. 24, 1996   AEDPA becomes effective.
Dec. 17, 1996   Herbert files motions for a new trial and for
                appointment of counsel.
Dec. 19, 1996   Herbert's motion for appointment of counsel is
                received and docketed.
Dec. 19, 2002   Herbert files renewed motions for a new trial
                and for appointment of counsel.
Nov. 20, 2003   Herbert's motion for a new trial is denied by
                the trial court.
Feb. 10, 2004   Herbert seeks leave from a gatekeeper justice of
                the SJC to appeal his motion for a new trial to
                the full SJC.
July 15, 2004   The gatekeeper justice denies leave to appeal.
July 29, 2004   Herbert files a motion to reconsider with the
                gatekeeper justice.
Aug. 4, 2004    The gatekeeper justice denies the motion to
                reconsider.
Sept. 3, 2004   Herbert appeals the gatekeeper justice's
                decision to the full SJC.
Dec. 12, 2005   The SJC dismisses Herbert's appeal.
Jan. 5, 2006    Herbert files the petition for habeas corpus at
                issue here.




                              -12-
