          United States Court of Appeals
                       For the First Circuit


No. 15-1216

                            ALEX HOLMES,

                       Petitioner, Appellant,

                                 v.

                    LEWIS SPENCER, MAURA HEALEY,

                      Respondents, Appellees.


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

              [Hon. Rya W. Zobel, U.S. District Judge]


                               Before

                        Howard, Chief Judge,
                    Souter, Associate Justice,*
                     and Lipez, Circuit Judge.


     Janet Hetherwick Pumphrey for appellant.
     Christopher Hurld, Assistant Attorney General, with whom
Maura Healey, Attorney General of Massachusetts, was on brief, for
appellee.


                            May 6, 2016




     * Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
             SOUTER, Associate Justice.               Alex Holmes appeals the

dismissal    of    his    untimely   habeas      corpus     petition,      after   the

district court determined that there was no basis for equitable

tolling of the limitations period.               We affirm.

                                           I

             This case has been here before, see Holmes v. Spencer,

685 F.3d 51 (1st Cir. 2012), and in presenting its background we

borrow liberally from our earlier opinion.                  Massachusetts charged

Holmes with first-degree murder, and on May 1, 1998, he pleaded

guilty to murder in the second degree in return for the mandatory

sentence of life imprisonment with the possibility of parole.                      He

claims (in one version) that he offered the plea because his trial

counsel told him that the prosecutor had proposed a private deal:

if Holmes pleaded, and if the prosecutor sought and obtained

information from him about others involved in the murder, he could

reduce his sentence by filing a motion to revise or revoke under

Massachusetts Rule of Criminal Procedure 29.                      According to his

testimony, he was led to believe this course of action was so

imminent that he would be brought back for resentencing in about

thirty days.

             In    June   1998,    although      he   had   not    heard   from    the

prosecutor, Holmes filed a Rule 29 motion that identified no

underlying        grounds    and     was       accompanied     by    a     similarly

uninformative affidavit stating only that, "[a]t the appropriate


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time, . . . I will request that this matter be brought forward and

heard by the sentencing judge."           Both the motion and affidavit are

boilerplate forms, typewritten documents with spaces to be filled

in by hand.     When the case was first before us, Holmes said that

this paperwork was given to all newly sentenced convicts on arrival

at prison.    There was no evidence to this effect, however.

             Holmes     never   requested    that   his   Rule   29     motion    be

"brought forward" for a hearing.           But he claims that in June 2000,

after two years of silence since filing the motion, he learned

from a friend in the prison law library that the motion was futile:

because second-degree murder carries a mandatory sentence of life

imprisonment, the judge had no authority to "revise or revoke."

             On learning this, Holmes did take action, first by

renewing correspondence with his trial counsel, who denied that

Holmes had made the plea deal solely on the prospect of filing a

successful Rule 29 motion.              The lawyer maintained that he had

advised Holmes to accept a proposal to plead to the lesser offense

regardless of the prosecutor's possible request for information

because, if convicted of first-degree murder, Holmes would face

mandatory life imprisonment but without the possibility of parole.

Counsel also denied having assured Holmes that the judge would

grant   a   Rule   29    motion   and    contradicted     any   claim    that    the

prosecutor had ever committed to use information obtained from

Holmes.


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             After litigating unsuccessfully in the state courts, in

2008 Holmes filed a federal habeas corpus petition alleging, among

other things, that his trial counsel was ineffective for inducing

him to plead guilty on the assurance that he would be able to

reduce his sentence through the Rule 29 process.               The district

court dismissed the petition as untimely under the one-year statute

of limitations imposed by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1)(A).

             On appeal, we upheld the district court's determination

that Holmes's petition was untimely.           All agreed that Holmes's

conviction became final on May 1, 1998, and that (for reasons

immaterial     here)   certain   periods   between    2000   and     2007   were

excluded from the calculation.         Among the disputed questions on

appeal was whether the June 1998 filing of the Rule 29 motion also

stopped AEDPA's limitations clock, under the provision that "[t]he

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." Id. § 2244(d)(2). We concluded that the barebones

character of Holmes's Rule 29 motion failed to qualify it as

"properly filed" and thus rendered it inadequate to toll the

running   of    the    limitations   period   under   the    terms    of    that

provision.




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            We remanded, however, for the district court to consider

whether the running time should nonetheless be tolled on equitable

grounds. Given that equitable tolling requires a habeas petitioner

to demonstrate as necessary conditions for relief that (1) he has

been pursuing his rights diligently, and (2) some extraordinary

circumstance     prevented    timely   filing,1     we   mentioned   what   the

district court might look for.         We said that we were troubled "by

the possibility that at the time Holmes filed his Rule 29 [m]otion,

he was led to believe that his [m]otion was in fact properly

filed."    Holmes, 685 F.3d at 63.         As to diligence, we reasoned

that, "[i]f Holmes did what he reasonably thought was necessary to

preserve his rights by filing a placeholder motion, based on

information he received from prison officials, then he can hardly

be faulted for not acting more 'diligently' than he did."              Id. at

65.   And as to the need to show extraordinary circumstances, we

raised    the   possibility   that,    "[i]f   in   fact   prison    officials

intentionally or inadvertently caused Holmes to believe that his

filing was sufficient, this might qualify as an 'extraordinary

circumstance.'"     Id.   In sum, we asked the district court to take

into account "the reasons for Holmes's delay in requesting a


      1Holmes addresses these conditions, not as mandatory, but as
significant factors, citing Trapp v. Spencer, 479 F.3d 53 (1st
Cir. 2007). But on this point Trapp has been overtaken by Holland
v. Florida, 560 U.S. 631, 649 (2010), as most recently underscored
by Menominee Indian Tribe of Wisconsin v. United States, 136 S.
Ct. 750, 756 (2016).


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hearing on his Rule 29 [m]otion as well as whatever information

Holmes may have been given regarding the propriety of his Rule 29

[m]otion when he filed it in 1998."            Id. at 67.

             On remand, after taking evidence, the district court

found equitable tolling unwarranted, owing to Holmes's failure to

show either diligence or an extraordinary circumstance.                Starting

from the predicate that "Holmes expected to be brought back in to

court within a month" after filing his Rule 29 motion, "[h]is

complete lack of action or effort to research his legal status at

all for two years after [its] filing" demonstrated a want of

diligence.     And as for the prison's possible influence on his

behavior, the court found that Holmes "himself sought out the [Rule

29] form from the library and did not suggest anyone in the prison

gave him advice regarding it."              There being no extraordinary

circumstance       standing    in   Holmes's    way,   the    district      court

explained, "[a]fter his initial filing, over the course of the two

years before he took any action, [he] still had a wealth of

opportunities to remedy any error and to verify the appropriate

filing procedures (including opportunities to conduct his own

independent research)."        (internal quotation marks omitted).           The

court denied habeas relief, and Holmes appealed.

                                       II

             "We   review     the   district    court's     decision   to    deny

equitable tolling for abuse of discretion" in applying the two


                                        - 6 -
necessary     conditions   already   mentioned:   the   adequacy   of   the

federal habeas petitioner's demonstration of diligence in pursuing

his rights and the existence of some extraordinary circumstance

standing in the way of timely filing his petition.           Holmes, 685

F.3d at 62.    Here, there was no abuse of discretion in the district

court's conclusion that Holmes failed to satisfy either one.

            On the matter of diligence, for two years after filing

his Rule 29 motion with no response (despite Holmes's claimed

expectation of relief within the month), he took no action; he

made no effort to research the status of the motion and did not

even try to ask his trial counsel what was going on.       Holmes points

out that it was not until June 2000 that he learned of his motion's

futility.     But this says nothing to explain his inaction in the

lengthening silence after filing the motion that he allegedly

expected would bring him back into court in a month.

            The record equally well supports the court's conclusion

that no extraordinary circumstances extenuated the delay, and its

findings assuage the concerns that led us to remand.               It was

Holmes's prior claim that prison officials handed out boilerplate

Rule 29 forms to all new inmates that led us to worry that the

prison staff may have intentionally or inadvertently caused Holmes

to believe that his mere filing was sufficient.         But the district

court found that Holmes himself sought out the Rule 29 form and




                                     - 7 -
raised no suggestion that anyone in the prison gave him advice

about it.

              Before us, Holmes presses three claims of extraordinary

circumstances:       that   he   was    affirmatively    misled      by    both   the

prosecutor and his trial counsel, and that he had limited access

to the prison law library.             But we rejected the second and third

claims the last time he was here.              See id. ("The advice given to

Holmes   by    his   counsel,      regardless     of   its   level    of    alleged

incompetence, did not stand in his way and prevent the timely

filing   of    his   habeas      petition."       (alterations    and      internal

quotation marks omitted)); id. at 63 ("If we tolled AEDPA's

limitation period every time a prisoner with no legal training had

his library time strictly regulated, § 2244(d) might as well not

exist; few prisoners are lawyers, and few prisons offer their

occupants unfettered library access.").             And the record belies the

first claim, that the prosecutor led him astray.                     There is no

evidence of any representation by the prosecutor directly to

Holmes, and his trial counsel explained that he and the prosecutor

never spoke of anything more than a chance of later sentence

modification.

              We can glean no relevant possibility in any of Holmes's

subsidiary arguments.

                                         III

              The judgment of the district court is AFFIRMED.


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