Sena v. Kenneway

          United States Court of Appeals
                     For the First Circuit


No. 20-1471

                          DENNIS SENA,

                     Petitioner, Appellant,

                               v.

          STEVEN KENNEWAY, Superintendent, MCI-Shirley,

                      Respondent, Appellee.


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

         [Hon. Nathaniel M. Gorton, U.S. District Judge]
          [Hon. Judith G. Dein, U.S. Magistrate Judge]


                             Before

                   Lynch, Selya, and Kayatta,
                        Circuit Judges.


     Elizabeth Prevett, with whom Jonathan Scott Lauer was on
brief, for appellant.
     Gabriel Thornton, Assistant Attorney General, with whom Maura
Healey, Attorney General of Massachusetts, was on brief, for
appellee.


                          May 12, 2021
              SELYA, Circuit Judge.       Federal habeas review for state

prisoners is subject to a one-year limitations period, which

generally runs either from the conclusion of direct review or the

expiration of the time allotted for seeking direct review.              See 

(d)(1)(A).        The Supreme Court has recognized, though,

that this one-year period sometimes may not provide a sufficient

interval for the exhaustion of a state prisoner's claims in state

court.       See Rhines v. Weber, 

 (2005).        To guard

against injustice, the Court has approved a procedure — commonly

known as a motion for a stay and abeyance — through which a state

prisoner may file his federal habeas petition and seek additional

time, subject to certain preconditions, to exhaust his state

remedies.      See 

.       One such precondition requires the

petitioner to show good cause for his failure to have exhausted a

particular claim or claims in state court.           See 

.

              In this case, the district court, rejecting a magistrate

judge's      recommendation,   held     that   petitioner-appellant     Dennis

Sena,    a    state   prisoner,   had    not   satisfied   the   good   cause

requirement.1      The court proceeded to deny the petitioner's motion

for a stay in abeyance and dismissed his habeas petition.                 See

Sena v. Kenneway, No. 19-10254, 

, at *2-3 (D. Mass.




     1 The petitioner's name is spelled in the record both as
"Sena" and "Senna". Like the district court, we employ throughout
the spelling used by the petitioner in his habeas petition.


                                      - 2 -
Mar. 24, 2020).      The petitioner appeals.     Concluding, as we do,

that the district court acted within the wide margins of its

discretion, we affirm.

I. BACKGROUND

            We sketch the relevant facts and travel of the case.

Our tale begins at a convenience store in Boston, Massachusetts,

where a brawl erupted in the early hours of May 19, 2012.                 One

participant, Zachary Fritz-Kill, sustained knife wounds, and an

individual who attempted to intervene was rewarded by having his

tires slashed.

            When the police arrived at the scene, at least one

eyewitness     identified   the    petitioner   as   the    knife-wielding

perpetrator.      Fritz-Kill, who had consumed a heady mix of drugs

and alcohol in the hours preceding the brawl, was taken to a nearby

hospital.    Although Fritz-Kill had previously been diagnosed as

having a bipolar disorder, he attributed his erratic behavior at

the convenience store to his use of cocaine.

            The    petitioner     was   subsequently   indicted      by    a

Massachusetts grand jury, which charged him with assault and

battery with a dangerous weapon, see Mass. Gen. Laws ch. 265,

§ 15A(b); assault and battery with a dangerous weapon, causing

serious bodily injury, see id. ch. 265, § 15A(c)(i); and malicious

destruction of property, see id. ch. 266, § 127.           All three counts

were coupled with a charge that the petitioner was an "habitual


                                   - 3 -
criminal,"    having   been    convicted      and   sentenced    to    terms   of

immurement of more than three years on at least two earlier

occasions.2     Id.    ch.   279,    § 25(a).       The   "habitual    criminal"

designation paved the way for the imposition of statutory maximum

sentences should the petitioner be convicted of the felonies

charged in the indictment.          See id.

            Maintaining his innocence, the petitioner proceeded to

trial in Suffolk County Superior Court in March of 2015.                       The

Commonwealth relied on witness and victim testimony (including the

testimony of Fritz-Kill, who identified the petitioner as his

attacker).    The defense tried to discredit Fritz-Kill's testimony

by emphasizing how mind-altering substances may have affected his

recollection.    But when the defense attempted to introduce expert

testimony to this effect, the trial court rejected the proffer —

which it variously characterized as conjectural, irrelevant, and

untimely.

            The first trial proved indecisive:            the jury deadlocked,

and the trial court declared a mistrial.              A second trial ensued,

and the trial court (in the person of the same trial justice) again

excluded the petitioner's proffered expert testimony.                 The second


     2 Sena had previously been convicted of armed assault with
intent to murder, see 

(b); possession
of a dangerous weapon, see 

 ch. 269 § 10(b); distribution of
cocaine, see id. ch. 94C, § 32A(a); armed assault with an intent
to rob, see id. ch. 265, § 18(b); and possession of a firearm
without a license, see id. ch. 269, § 10(a).


                                     - 4 -
jury acquitted the petitioner on the property-destruction count

but found him guilty on the other two counts.                    The petitioner

waived his right to have a jury adjudicate his "habitual criminal"

status; the trial court found the designation apt; and the court

sentenced the petitioner to the statutory maximum for each offense

of conviction — ten years for assault and battery with a dangerous

weapon and fifteen years for assault and battery with a dangerous

weapon, causing serious bodily injury — to run concurrently.

           The petitioner appealed to the Massachusetts Appeals

Court   (the   MAC)   on   diverse    grounds.       As   relevant     here,    he

maintained that the trial court abused its discretion in excluding

his proffered expert witness.         In formulating this claim, though,

the   petitioner's    appellate      counsel   challenged      only    the   trial

court's determination that the testimony was not relevant.                      No

challenge was advanced as to the concurrent finding that the

proffer was untimely, notwithstanding that the trial court had

cited timeliness as a separate (and independently sufficient)

ground for its exclusion of the evidence.

           The    MAC      treated    this     omission     as     "essentially

conced[ing] that the evidence was not timely" and deemed the claim

waived.   Commonwealth v. Senna, 

, at *2 (Mass. App.

Ct. 2017) (unpublished table decision). The Supreme Judicial Court

(the SJC) denied the petitioner's application for leave to seek

further   appellate     review   (ALOFAR)      on   December     21,   2017,   see


                                     - 5 -
Commonwealth v. Senna, 

 (Mass. 2017) (table decision),

thus leaving the MAC decision as the final state-court decision.

          Undaunted   by    the   SJC's    denial   of   his   ALOFAR,   the

petitioner   requested     that   the   Massachusetts    public    defender

agency, the Committee for Public Counsel Services (CPCS), provide

him with new counsel to file a motion for a new trial under Rule

30 of the Massachusetts Rules of Criminal Procedure.3             This rule

authorizes the granting of a new trial to persons confined in

derogation of either federal or state             law, see Rodriguez     v.

Spencer, 

 (1st Cir. 2005), and represents the

"exclusive vehicle for postconviction relief" in the Massachusetts

state courts after direct review has been exhausted, 

 at 34

(quoting Leaster v. Commonwealth, 

 (Mass.

1982)).   CPCS declined the petitioner's request and notified him

on June 18, 2018, that he would have to proceed pro se.           The agency

apparently based this decision on input from the petitioner's

erstwhile appellate counsel, who advised it that a Rule 30 motion

was not warranted because she           already   had raised the expert

testimony issue on direct appeal.        She failed to mention, however,

that incomplete argumentation — the failure to challenge the




     3  The record does not contain the exact date that the
petitioner first contacted CPCS but we assume, favorably to him,
that he made his request for the appointment of counsel soon after
his ALOFAR was denied.


                                  - 6 -
timeliness of the proffer — led the MAC to dismiss the claim as

waived.

            The petitioner responded by filing a complaint against

his former appellate counsel with the Massachusetts Board of Bar

Overseers (the Board).      At the same time, he beseeched CPCS to

reconsider.     On February 6, 2019, CPCS yielded to the petitioner's

importunings and assigned him state post-conviction counsel.               His

new lawyer determined that the petitioner could raise potentially

meritorious issues in a Rule 30 motion, including a claim that his

former    appellate   counsel   rendered   ineffective      assistance     by

causing   the   unintentional   forfeiture   of    a    potentially   viable

ground for appeal (the trial court's exclusion of the proffered

expert testimony).

            Two days after the appointment of his new state post-

conviction counsel, the petitioner, acting pro se, filed a habeas

petition in the United States District Court for the District of

Massachusetts.     See 

.         This petition, submitted

approximately six weeks before the expiration of the one-year

federal   limitations    period,   named   the    superintendent      of   the

correctional institution in which the petitioner was incarcerated

as the respondent and asserted eight distinct grounds for relief.

Simultaneous with this submission, the petitioner moved to stay

the habeas petition and hold it in abeyance.           This request stemmed

from what the petitioner deemed to be the "mixed" nature of his


                                   - 7 -
petition, which in his view included both exhausted and unexhausted

claims (his ineffective assistance of appellate counsel claim

being among the latter).4         See Neverson v. Bissonnette, 

 (1st Cir. 2001) (citing Rose v. Lundy, 

(1982)).

            We pause at this juncture to put the significance of the

"mixed" nature of the petition into perspective.                 Federal law

incorporates   the    doctrine     that   a   federal   habeas   court    will

entertain a state prisoner's petition for habeas relief "only after

all state remedies available [for the claim] have been exhausted."

Ex parte Hawk, 

 (1944) (per curiam).               Although

Congress codified this doctrine in 1948, see Act of June 25, 1948,

ch. 646, § 1, 

, 967 (current version at 

(b)-(c)), it remained uncertain whether a federal habeas

court could adjudicate petitions that contained a mix of both

exhausted and unexhausted claims.         The Supreme Court resolved this

uncertainty in Lundy.       See 

.           The Lundy Court

construed    the     exhaustion     principle    as     "[r]equiring     [the]

dismissal" of mixed petitions.        

.

            Withal, the Court did not demand that federal habeas

courts dismiss such mixed filings wholesale.             As an alternative,


     4  The Commonwealth disputes the characterization of the
petition as "mixed," suggesting that none of the petitioner's
claims have been exhausted. We assume, as did the district court,
that the petition contained both exhausted and unexhausted claims.


                                    - 8 -
a district court could allow the petitioner to withdraw unexhausted

claims. See 

.   Those petitioners who opted for dismissal

(without prejudice) could later "come back to federal court to

present their perfected petitions with relative ease."      Rhines,

.   This structure, though, became problematic with

the advent of new legislation.    The Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA) codified the strict exhaustion

requirement articulated in Lundy, see 

(b)(1)(A),

and added a one-year statute of limitations for federal habeas

petitions, see 

(d)(1)(A).

          The interplay between the exhaustion requirement and

this newly enacted limitations period created a potential catch-

22:   habeas petitioners whose "timely but mixed petition[s]" were

dismissed by federal courts for want of exhaustion might, depending

on the timing of the dismissal, find themselves without adequate

time to exhaust their state-court remedies and still return within

the limitations period to federal court.    Rhines, 

.

Necessity is said to be the mother of invention, see Plato, The

Republic of Plato 369C (Benjamin Jowett trans., Project Gutenberg

2017) (1894), and federal courts soon devised a way to alleviate

the harsh effects of this catch-22.        They began to stay mixed

habeas petitions and to hold them in abeyance in lieu of dismissal.

See, e.g., Gaskins v. Duval, 

 (D. Mass.

2004); Kilburn v. Maloney, 

 (D. Mass.


                               - 9 -
2001).   This procedure provided a mechanism through which federal

habeas petitioners could satisfy exhaustion obligations without

defaulting on AEDPA's one-year limitations period.

           In Rhines, the Supreme Court approved this use of the

stay-and-abeyance procedure, see id. at 278, but stipulated that

district   courts     should     only    resort     to     it      in   "limited

circumstances," id. at 277.       The Court set out three preconditions

for the grant of a stay and abeyance to a habeas petitioner.

First, the petitioner must show good cause for his failure to have

exhausted a particular claim in state court.             See id.    Second, the

petitioner must show that the particular claim is not "plainly

meritless."    Id.   Third, the petitioner must show that he has not

engaged in any "abusive litigation tactics or intentional delay"

touching upon the prosecution of the claim.           Id. at 278.

           The erection of this tripartite framework brings us back

to the case at hand.    The district court appointed counsel for the

petitioner and referred both his stay-and-abeyance motion and the

respondent's   motion   to     dismiss   to   a   magistrate       judge.    The

petitioner subsequently withdrew six of the eight claims contained

in his habeas petition.         The petitioner's remaining two claims

included his unexhausted ineffective assistance of counsel claim

and an exhausted claim.5        After a hearing, the magistrate judge


     5 The exhausted claim is not at issue here, and any discussion
of it would be superfluous.


                                   - 10 -
issued a report and recommendation, in which she found all three

elements    of    the   Rhines       framework        satisfied   and    recommended

granting the stay and abeyance and denying the motion to dismiss.

Pertinently, she reasoned that the petitioner's time-consuming

efforts to secure post-conviction counsel comprised good cause for

his failure to exhaust state-court remedies.

            The respondent objected, and the district court — on de

novo review, see Fed. R. Civ. P. 72(b)(3) — rejected the magistrate

judge's recommendation.           Although the court acknowledged that

Rhines "did not define precisely what constitutes 'good cause'"

for a failure to exhaust, it determined that the petitioner had

not made the required showing.             Sena, 

, at *2.          In

the court's estimation, the considerations cited by the magistrate

judge   were     insufficient     to   excuse     the     petitioner's     prolonged

inaction,      particularly     in     light     of    evidence   that    he   could

competently      self-advocate       for   the    merits     of   his    ineffective

assistance claim.       See 

      The court stated:

            [P]roceeding pro se "does not excuse a
            petitioner from the exhaustion requirement."
            [Lundy], 

 ("Just as pro se
            petitioners have managed to use the federal
            habeas machinery, so too should they be able
            to master this straightforward exhaustion
            requirement.") . . . .     Furthermore, Sena
            filed a habeas petition pro se in this Court
            just two days after counsel was appointed to
            pursue his claims in state court.    In that
            petition, Sena articulated his claim of
            ineffective assistance of counsel which


                                       - 11 -
            demonstrates that he had both the opportunity
            and ability to pursue state court collateral
            relief while awaiting the appointment of
            counsel. His failure to do so for more than
            six months while he sought the appointment of
            counsel does not amount to "good cause"
            sufficient to excuse compliance with the
            exhaustion requirement.

   The court proceeded to deny the stay-and-abeyance motion and

— since the petitioner made no request to continue on his lone

exhausted claim, see supra note 4 — dismissed the mixed habeas

petition for want of exhaustion.          See Sena, 

, at

*2-3.     This timely appeal followed.

II. ANALYSIS

            The district court's decision turned solely on what it

determined to be the petitioner's failure to satisfy the good cause

element of the Rhines framework,6 see Sena, 

, at

*2,   and   the   petitioner's   appeal    focuses   exclusively   on   that

element.

            We review the district court's determination that the

petitioner failed to show good cause for abuse of discretion.           See

Rhines, 

.     Abuse of discretion is not a monolithic

standard:     "within it, abstract questions of law are reviewed de


      The district court did not comment on the magistrate judge's
      6

recommended finding that the petitioner had not engaged in any
abusive litigation tactics or intentional delay. See Sena, 

, at *2. The court expressed some skepticism about the
recommended finding that the petitioner's ineffective assistance
of counsel claim was not plainly meritless, see 

 but did not
resolve the issue.


                                  - 12 -
novo, findings of raw fact are reviewed for clear error, and

judgment calls receive a classically deferential reception."                   Riva

v. Ficco, 

 (1st Cir. 2010).                In the absence of a

material error of law — and no such error is evident here — the

contours    of     judicial     discretion   are    "broad   —   but    . . . not

absolute."       Indep. Oil & Chem. Workers of Quincy, Inc. v. Procter

& Gamble Mfg. Co., 

 (1st Cir. 1988).                         "Abuse

occurs when a material factor deserving significant weight is

ignored, when an improper factor is relied upon, or when all proper

and no improper factors are assessed, but the court makes a serious

mistake in weighing them."          

            Rhines supplies the beacon by which we must steer.                 Even

so, the Court's opinion says little about what circumstances may

suffice to excuse a habeas petitioner's failure to exhaust state-

court remedies ahead of his federal filing.                  After Rhines, the

Supreme    Court    has   addressed    the     stay-and-abeyance       good    cause

requirement only once.          See Pace v. DiGuglielmo, 

(2005).    There, the Court stated, in dictum, that even though a

petitioner had not acted diligently, "reasonable confusion about

whether a state filing would be timely will ordinarily constitute

'good cause' for [a petitioner] to file in federal court" for a

stay and abeyance.        

            Other     reported      cases    do    not   offer   much     further

elucidation.       See, e.g., Dixon v. Baker, 

 (9th


                                      - 13 -
Cir. 2017) ("The caselaw concerning what constitutes 'good cause'

under Rhines has not been developed in great detail."); Heleva v.

Brooks, 

 (3rd Cir. 2009) (concluding that "[t]he

full range of circumstances in which a habeas petitioner is

eligible for stay-and-abeyance is not yet clear").                 Our own

jurisprudence on the subject is likewise thin.           We have held that

the   strategic   omission   of   claims   on   direct   appeal   does   not

constitute good cause for the failure to exhaust those claims.

See Clements v. Maloney, 

 (1st Cir. 2007).

So, too, we have held that good cause was not shown when a failure

to exhaust resulted from "[i]gnorance of the law."            Josselyn v.

Dennehy, 

 (1st Cir. 2007).            Importantly, however,

Josselyn involved a petitioner who was represented by counsel

throughout, and we reserved the issue of how strictly this holding

should be applied to pro se petitioners.          See 

 at 5 n.3; cf.

Rhines, 

 (Stevens, J., concurring) (warning against

construing the good cause requirement so strictly as to "trap the

unwary pro se petitioner").

           Against this mottled backdrop, we turn to the district

court's finding that the petitioner failed to satisfy the good

cause requirement.     The court placed substantial weight on the

lengthy interval during which the petitioner could have filed his

Rule 30 motion in the state court, but did not.          See Sena, 

, at *2.    That delay was an appropriate integer in the good


                                  - 14 -
cause calculus:     when determining good cause in a variety of

contexts, courts typically gauge the scope of the moving party's

delay and measure it against that party's window of opportunity

within which to act.     See, e.g., Steir v. Girl Scouts of the USA,

 (1st Cir. 2004) ("Regardless of the context, the

longer a plaintiff delays, the more likely the motion to amend [a

complaint] will be denied [for lack of good cause] . . . ."); Gen.

Cont. & Trading Co. v. Interpole, Inc., 

 (1st

Cir. 1990) (holding timing of motion relevant to setting aside

entry of default for good cause).

            In this case, the petitioner made no move to initiate

state-court proceedings during the seven-plus months after CPCS

notified him that it would not furnish him with representation.

The   district   court   reasonably   could   interpret   this    extended

quiescence as militating against a showing of good cause.            After

all, a movant's "diligence or lack of diligence" often serves as

the "dominant criterion" in a good cause analysis.               Miceli v.

JetBlue Airways Corp., 

 (1st Cir. 2019) (citation

omitted).

            Of course, each case must be evaluated on its own facts,

and a movant's delay must be viewed in light of the particular

circumstances.    See, e.g., Gen. Cont. & Trading Co., 

 (disclaiming any "mechanical formula" for determining good

cause).     Here, for instance, the petitioner asserts that the


                                - 15 -
district court should have treated his pursuit of appointed counsel

as a proxy for diligence.          CPCS's recalcitrance, he says, was a

delay-creating      external   circumstance         that   cannot     fairly   be

attributed to him.      See, e.g., Doe v. Jones, 

(10th Cir. 2014); Jalowiec v. Bradshaw, 

, 304–05 (6th

Cir. 2011).        Relatedly, the petitioner says that                his former

appellate counsel's misleading representation to CPCS exacerbated

this external factor.

            The petitioner's proposed application of this tenet to

his    situation    misses   the   mark.      The    difficulties      that    the

petitioner encountered in his dealings with CPCS, though obviously

frustrating, did not negate his ability to file a Rule 30 motion.

The petitioner was free to proceed pro se to file his motion, and

Massachusetts law makes pellucid that "an indigent defendant has

no    constitutional   entitlement    to     the    assistance   of    appointed

counsel in preparing or presenting a postconviction motion for a

new trial."        Parker v. Commonwealth, 

 (Mass.

2007).

            In sum, the petitioner was bound by the same general set

of procedural expectations that apply to litigants represented by

counsel. See Lundy, 

; see also Delaney v. Matesanz,

 (1st Cir. 2001) ("While judges are generally lenient

with pro se [habeas petitioners], the Constitution does not require




                                    - 16 -
courts to undertake heroic measures to save pro se litigants from

the readily foreseeable consequences of their own inaction.").

          This is not to say that the petitioner's pro se status

is unimportant.     A district court charged with making a good cause

determination must factor a habeas petitioner's pro se status, as

well as his attributes, skill sets, and circumstances, into its

decisional calculus.     See Ellison v. Rogers, 

 (3d

Cir. 2007); see also Josselyn, 

 at 5 n.3.

          Because pro se litigants are not fungible, however, each

case must be evaluated on its own facts.          See SAI v. Transp. Sec.

Admin., 

 (1st Cir. 2016); see also Pruitt v. Mote,

 (3rd Cir. 2007).             A pro se litigant who has

demonstrated a capacity for understanding and articulating the

issues may reasonably be extended fewer allowances than a pro se

litigant who is hopelessly out of his depth.            See Delaney, 

; Evangelista v. Sec'y of HHS, 

 (1st

Cir. 1987).       Consequently, because every pro se litigant is

different,    the   significance    of   his    unrepresented   status   is

necessarily a matter of degree.

          In this instance, the period of delay was substantial —

and the sheer length of the delay militated against a finding of

good cause.    See Guzmán-Ruíz v. Hernández-Colón, 

(1st Cir. 2005) (describing three-month delay as fatal to claim

that good cause existed for failure to file timely opposition to


                                   - 17 -
summary judgment motion).            With this in mind, we think that the

district court acted within the wide margins of its discretion in

determining that the petitioner could — and should — have gone

forward    with   his    Rule   30   motion     despite    his    pro    se   status.

Although    the   petitioner     had    no    control     over    CPCS's      grudging

attitude toward the appointment of counsel, nothing impeded him

from acting in his own behalf while he was lobbying CPCS to

reconsider its initial turn down.             Here, moreover, it is critical

to the analysis that the district court supportably found that the

petitioner was capable of acting to his own behoof at all times

after his receipt of CPCS's rejection letter.7                   See Sena, 

, at *2.

            In this regard, the court attributed great significance

to the habeas petition, filed pro se, which competently articulated

the petitioner's claims (including his ineffective assistance of

counsel claim).         This petition, the court concluded, adequately

evinced the petitioner's ability "to pursue state court collateral

relief while awaiting the appointment of counsel."                      

    Such a

conclusion was reasonable under the circumstances:                      placed along




     7 Of course, the petitioner actually had a period of roughly
thirteen months within which to act between the date that the SJC
denied his ALOFAR (December 21, 2017) and the date on which he
filed the stay-and-abeyance motion (February 8, 2019).        The
district court, however, seems to have given less weight to the
portion of this period that preceded his receipt of CPCS's
rejection letter (which was dated June 18, 2018).


                                       - 18 -
the continuum of pro se submissions, the habeas petition fairly

can be described as well-crafted.

            If more was needed, the petitioner's complaint to the

Board — written shortly after the petitioner received CPCS's

rejection    letter    —   similarly   reflected    his   ability   to    self-

advocate.    In it, the petitioner lucidly set forth arguments as to

how his former attorney "mishandled" various issues, along with an

accurate chronology of the events that undergirded his ineffective

assistance claim. Further, the letter featured appendices of "case

law . . . [and] references to the exact pages from [trial]

transcripts to support each issue."

            To cinch the matter, the petitioner's initial request to

CPCS for the appointment of counsel was for the expressed purpose

of filing a Rule 30 motion, and CPCS's June 2018 rejection letter

advised the petitioner specifically that he could pursue that

motion without an attorney.            CPCS's letter ensured        that the

petitioner   knew     of   his   opportunity   to   proceed   pro   se.     See

O'Connell v. Hyatt Hotels of P.R., 

 (1st Cir.

2004) (finding no good cause for delay when plaintiffs were "aware

of their [procedural] obligation"); cf. Ellison, 

(deeming habeas petitioner not "unwary" when he had been apprised

of how to pursue post-conviction relief).            From the petitioner's

materials, coupled with the length of the delay and the fact that

he was no stranger to the criminal justice system, the district


                                    - 19 -
court plausibly could conclude — as it did — that he was capable

of proceeding pro se with his Rule 30 motion in a more timely

fashion.

              The petitioner       attempts to     undermine the     inferences

drawn by the district court by characterizing the cause of his

delay    as     "reasonable        confusion"      about   timing.        This

characterization draws on dictum from Pace, 

, but

the attempted analogy compares plums to pomegranates.                 The Pace

Court expressed approval (hypothetically) for a stay and abeyance

for an imagined habeas petitioner who was "reasonably confus[ed]"

about   how    state    courts     would   apply   recently   enacted   filing

prerequisites to an application for post-conviction relief.                

That is a far cry from the case at hand.            The Rule 30 procedure is

straightforward        and   its   essentials    (including   the   applicable

filing requirements) have remained constant since at least 1979.

See Reporter's Notes to Mass. R. Crim. P. 30(a) (delineating 1979

adoption of simplified post-conviction procedure).             Nor was there

any reason to doubt the applicability of the one-year federal

limitations period.

              The petitioner also complains that he would have had

great difficulty in mounting an ineffective assistance of counsel

claim pro se.      The district court disagreed, see Sena, 

, at *2, and its conclusion appears to be a reasoned choice

between plausible alternatives.            The petitioner's correspondence


                                      - 20 -
to the Board shows that the petitioner had the ability to describe

his former appellate counsel's allegedly deficient performance

clearly — and that was the essence of his ineffective assistance

claim.

             Battling       on,    the    petitioner         invokes   a   provision      of

Massachusetts       law     to    the    effect       that   any   grounds    for      post-

conviction relief not included in a defendant's Rule 30 motion are

deemed waived.          See Mass. R. Crim. P. 30(c)(2).            From this starting

point,      the    petitioner          asserts        that    he   risked     forfeiting

unidentified claims by filing his Rule 30 motion without the

benefit of counsel.              This assertion is triply flawed.                 For one

thing, it overlooks that, under Massachusetts practice, a Rule 30

motion may be amended and, in any event, the state court may permit

the filing of second or successive Rule 30 motions.                               See id.;

Commonwealth v. Ellis, 

 (Mass. 2016).                               For

another thing, the expectation established by the Lundy Court, 

    —    that    pro    se    habeas     petitioners       must   be    held

accountable for navigating the usual channels of the "federal

habeas machinery," including the strict exhaustion requirement —

encompasses the reality that some petitioners will have more

challenging claims to advance than others.

             Third, and finally, the petitioner's assertion proves

too much:         virtually any pro se litigant can be said to be at

increased risk of forfeiture when contrasted with one represented


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by counsel.   See Evangelista, 

 ("It is rare indeed

that veteran counsel . . . cannot train an eagle eye to discern

something that could have been done better, or more convincingly,

or not at all."); Yeoman v. Pollard, 

 (7th Cir.

2017).   If "good cause" were to be construed as broadly as the

petitioner urges, any habeas petitioner could justifiably delay

his filing for as long as he maintained even the faintest hope of

retaining counsel.

          When   all    is   said    and     done,   the   district   court's

determination that good cause did not exist for the petitioner's

delay rests on an assessment that is inherently fact-sensitive.

We think that this determination passes muster when viewed through

the deferential prism of the standard of review.             For aught that

appears, the district court took into account all the proper

factors (and no improper factors) when working its decisional

calculus. Although the question is close, we discern no principled

basis for second-guessing the district court's determination.

          The petitioner has one last shot in his sling.              He says,

in effect, that even if the district court considered all the

proper factors and no improper ones, it nonetheless seriously

misgauged the appropriate balance. See Indep. Oil & Chem. Workers,

.       In his view, the court should have afforded

greater weight to factors such as his pro se status and his

blamelessness for the difficulty in securing appointed counsel and


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less weight to the length of the delay in moving forward with a

Rule 30 motion.      Here, however, striking the good cause balance

was "susceptible of two rational (though opposite) conclusions."

United States v. Myers, 

 (1st Cir. 2002).                 In

such circumstances, "the tie-breaker often will be the standard of

review."    

    This is such a case.       Given the evidence of the

petitioner's      competence,   the   lack   of   any   impediment   to   his

proceeding pro se in state court, his awareness that a Rule 30

motion had to be filed, and the length of time during which the

petitioner eschewed the filing of such a motion, we are not at

liberty to superimpose our judgment upon that of the district

court.

III. CONCLUSION

            We need go no further. For the reasons elucidated above,

the judgment of the district court is




Affirmed.




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