268 F.3d 16 (1st Cir.

2001)

ALFRED W. TRENKLER, Petitioner, Appellant,

v.
UNITED STATES OF AMERICA, Respondent, Appellee.
No. 00-1657

United States Court of Appeals For the First Circuit

Heard Aug. 2, 2001
Decided October 16, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Charles W. Rankin, with whom Bruce W. Edmands, Richard S. Jacobs
and Mahoney Hawkes LLP, were on brief, for appellant.
Kevin P. McGrath, Assistant United States Attorney, with whom Donald
K. Stern, United States Attorney, and David S. Mackey, Special Assistant
United States Attorney, were on brief, for appellee.
Before Boudin, Chief Judge, Selya and Lipez, Circuit Judges.
LIPEZ, Circuit Judge.

This case requires us to address the interaction between two avenues of relief
from a federal conviction and sentence: 28 U.S.C. 2255, which permits a
motion to set aside a sentence allegedly imposed in violation of the Constitution
or federal law, and Rule 33 of the Federal Rules of Criminal Procedure, which
permits a motion for a new trial on the basis of newly discovered evidence. In
particular, we must decide whether the one-year statute of limitations for
2255 motions imposed by the Antiterrorism and Effective Death Penalty Act,
Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) ("AEDPA"), either is
tolled during the pendency of a Rule 33 motion based on newly discovered
evidence, or, in the alternative, does not commence until the possibility of relief
under Rule 33 is exhausted.

Like the district court, we conclude that the statute of limitations for a 2255
motion begins to run upon the completion of a prisoner's direct appeal from the
judgment of conviction, notwithstanding any subsequent proceedings under
Rule 33. We also agree with the district court that there is no statutory basis for
tolling the limitations period while the prisoner seeks post-conviction relief
under Rule 33. Finally, assuming the availability of equitable tolling, we
conclude that the district court did not abuse its discretion in finding that the
circumstances of this case do not present any grounds for application of that
doctrine.
I.

On June 24, 1993, a federal grand jury returned a three-count superceding

indictment against Alfred Trenkler and Thomas Shay, charging them with
illegal receipt and use of an explosive in violation of 18 U.S.C. 844(d) and
(i), and conspiracy to commit an offense against the United States in violation
of 18 U.S.C. 371 (an original, sealed indictment had been issued against both
men on December 16, 1992). Trenkler moved to sever the cases, and Shay was
tried first. At his trial, Shay sought to call Dr. Robert Phillips as an expert
witness. Dr. Phillips was prepared to testify that Shay suffered from a mental
disorder that caused him to tell self-aggrandizing lies, making his various
incriminating statements unreliable. The district court excluded Dr. Phillips's
testimony on the ground that it did not satisfy the standards for expert
testimony set forth in Rule 702 of the Federal Rules of Evidence. Shay was
convicted, and on appeal he argued that the district court erred in refusing to
admit the testimony. We agreed, holding on June 22, 1995, that it was a "clear
error in judgment for the district court to exclude the testimony under any
plausible interpretation of Rule 702." United States v. Shay, 57 F.3d 126, 13334 (1st Cir. 1995). On remand, the district court rejected the government's
argument that Fed. R. Evid. 403 provided an alternate basis for excluding Dr.
Phillips's testimony, and ordered a new trial for Shay. Shay eventually pled
guilty, and was sentenced to 12 years in prison.

At the same time that Shay was appealing his conviction, Trenkler's trial was
proceeding in the district court. Shay's incriminating statements were
introduced against Trenkler, as they tended to show that Shay had been
involved in the bombing and had not acted alone. Trenkler's trial counsel did
not attempt to use Dr. Phillips's testimony to undermine Shay's statements,
believing that any effort to introduce the doctor's testimony would be futile in
light of the district court's refusal to admit it at Shay's trial. Trenkler was
convicted on all counts of the indictment on November 29, 1993, and sentenced
to life in prison. We affirmed his conviction on July 18, 1995. United States v.

Trenkler, 61 F.3d 45 (1st Cir. 1995) (Trenkler I). He did not file a petition for
certiorari.
5

On December 22, 1995, Trenkler moved for a new trial under Rule 33, which
permits such a motion to be filed up to three years after a verdict when it is
"based on newly discovered evidence."1 Trenkler argued that our decision in
Shay rendered Dr. Phillips's testimony "newly discovered evidence" within the
meaning of Rule 33. He explained that, although he was aware of Dr. Phillips's
testimony at the time of his trial, he did not know until our decision on June 22,
1995, that the testimony was admissible. The district court denied the motion,
reasoning that Trenkler's trial counsel's belief that the testimony would not be
admitted did not make it unavailable, and that our conclusion that the testimony
was admissible in Shay's case did not render it "newly discovered." We
affirmed in an unpublished opinion issued on January 6, 1998. United States v.
Trenkler, No. 97-1239, 1998 WL 10265 (1st Cir. Jan. 6, 1998) (Trenkler II).

Trenkler then filed the instant motion under 2255 to set aside his conviction
on the ground that his trial counsel's failure to offer Dr. Phillips's testimony
violated his Sixth Amendment right to effective assistance of counsel. After
AEDPA, such a motion generally must be filed within one year of "the date on
which the judgment of conviction becomes final." 28 U.S.C. 2255(1).2 For
prisoners whose convictions became final before AEDPA was enacted, we
have held that the limitations period expires on April 24, 1997, one year after
the statute's effective date. Rogers v. United States, 180 F.3d 349, 355 (1st Cir.
1999). The district court concluded that Trenkler's 2255 motion was subject to
that deadline, his conviction having become final in 1995, when we affirmed it
in Trenkler I. Accordingly, it dismissed the 2255 motion - filed on January 5,
1999 - as time-barred. This appeal followed.3
II.

Trenkler argues that a timely filed Rule 33 motion affects 2255's statute of
limitations in one of two ways. First, he contends that a conviction is not "final"
for purposes of 2255(1) until the prisoner has exhausted the possibility of
relief under Rule 33. Second, he argues that even if the limitations period
commences at the conclusion of appellate review of the judgment of
conviction, the statute of limitations is suspended during the pendency of any
subsequent Rule 33 motion by virtue of tolling provisions imported from other
sections of AEDPA. If we reject those statutory arguments, Trenkler proposes a
third ground for relief, arguing that the doctrine of equitable tolling excuses his
failure to file his 2255 motion within the one-year period.

We analyze Trenkler's claims in turn. We review the issues of statutory

interpretation de novo, United States v. Michaud, 243 F.3d 84, 85-86 (1st Cir.
2001), and the district court's denial of equitable tolling for an abuse of
discretion, Delaney v. Matesanz, 264 F.3d 7, 13-14 (1st Cir. Sept. 5, 2001)
(explaining that district court's rejection of equitable tolling "on the facts" is
reviewed for abuse of discretion); Borden v. Paul Revere Life Ins. Co., 935
F.2d 370, 377 (1st Cir. 1991) ("[F]ashioning or withholding equitable relief . . .
rests uniquely within the discretion of the trial court.").
A. Accrual

Trenkler's first argument focuses on when the statute of limitations began to

run. Here, the relevant accrual date is the date on which Trenkler's conviction
became "final" within the meaning of 2255(1). Although Trenkler accepts the
prevailing view that a conviction becomes "final" upon the completion of direct
review, he insists that the proceedings before the district court and this court
with regard to his Rule 33 motion were part of his "direct appeal." Accordingly,
he argues that the statute of limitations did not begin to run until January 6,
1998, when we affirmed the district court's denial of his Rule 33 motion.

10

Although we have not addressed the question directly, we consistently have

treated Rule 33 motions filed after the opportunity for direct appeal as a form of
collateral attack on a conviction rather than part of the process of direct review.
Thus, in Dirring v. United States, 353 F.2d 519, 520 (1st Cir. 1965), we held
that the district court did not err in refusing to appoint counsel to prosecute the
defendant's post-appeal Rule 33 motion for a new trial. We explained that:

11

Appellant had counsel 'through appeal,' as required by the Criminal Justice Act,
18 U.S.C. 3006A(c). We do not construe that phase to include motions for a
new trial. Nor do we so interpret the Sixth Amendment. There must be an end.
After final conviction the appointment of counsel must rest in the discretion of
the court.

12

Id. We reaffirmed that holding in United States v. Tajeddini, 945 F.2d 458, 470
(1st Cir. 1991) (per curiam), abrogated on other grounds by Roe v. FloresOrtega, 528 U.S. 470 (2000), stating that "a federally convicted defendant is
not entitled under the Criminal Justice Act, 18 U.S.C. 3006A, or the Sixth
Amendment, to appointment of counsel on a motion for a new trial." That rule,
we continued, applies to any Rule 33 motion based on newly discovered
evidence and filed after the opportunity for direct appeal has expired, regardless
of whether the defendant pursued a direct appeal and lost, or simply neglected

to file a notice of appeal within the applicable period: "We do not see why the
convicted defendant who foregoes a direct appeal and whose conviction has
become final should be treated differently from the defendant who has chosen
to appeal with respect to entitlement to counsel, on a collateral attack of that
conviction." Id.; see also United States v. Lee, 513 F.2d 423, 424 (D.C. Cir.
1975) (holding that right to counsel does not extend to Rule 33 motion based on
newly discovered evidence and filed after direct appeal); United States v.
Birrell, 482 F.2d 890, 892 (2d Cir. 1973) (same); cf. Kitchen v. United States,
227 F.3d 1014, 1019 (7th Cir. 2000) (noting that Rule 33 motion filed after
completion of direct appeal "'plainly is "collateral" in the usual sense of that
term'" (quoting United States v. Woods, 169 F.3d 1077, 1078 (7th Cir. 1999)).
13

Only the Sixth Circuit has addressed the precise question whether Rule 33
motions are included in the process of direct review when they are based on
newly discovered evidence and filed after direct appeal either has or could have
been taken. In Johnson v. United States, 246 F.3d 655 (6th Cir. 2001), it held
that such "delayed" Rule 33 motions should be treated as collateral challenges
to the judgment of conviction and, as such, "do not affect the finality of a
judgment for purposes of the AEDPA." Id. at 658 n.4, 659. The court found
support for that conclusion in Rule 4(b) of the Federal Rules of Appellate
Procedure. See id. at 658-59. Rule 4(b)(1) provides that a defendant's notice of
appeal in a criminal case normally must be filed within ten days of the entry of
judgment. Subsection 4(b)(3)(A) modifies that general rule, stating that if a
defendant files a Rule 33 motion within the ten-day period,4 the notice of
appeal need only be filed within ten days of the entry of the order disposing of
that motion. Subsection 4(b)(3)(C) then provides that "[a] valid notice of appeal
is effective - without amendment - to appeal from an order disposing of" a Rule
33 motion filed in accordance with subsection (A). Rule 4(b) thus effectively
incorporates Rule 33 motions into the process of direct appeal, but only when
they are filed within ten days of entry of the judgment of conviction. The lack
of any analogous provisions to so incorporate motions based on newly
discovered evidence and filed outside the ten-day period strongly suggests that
such motions are not properly considered part of the direct appeal.

14

That inference is strengthened when one considers the practical effects of

Trenkler's proposed rule. Presumably, treating "delayed" Rule 33 motions
based on newly discovered evidence as part of the process of direct review
would mean that no conviction could be deemed final for purposes of
2255(1) until the expiration of the three-year period for filing such motions. Or,
perhaps, a prisoner's conviction could become final if the court of appeals
affirmed the judgment of conviction and the Supreme Court denied certiorari,
and then lose its finality if the prisoner later claimed to have discovered new

evidence, only to become final again once the Rule 33 motion was adjudicated.
Either possibility is unacceptable. The first approach "severely undercut[s]
Congress' intent in enacting the AEDPA by greatly extending the time in which
a petition may properly bring a 2255 challenge." Johnson, 246 F.3d at 659.
The second permits "every defendant seeking to file an untimely 2255 motion
[to] do an end-run around the AEDPA limitation period by filing a timely, but
ultimately meritless, Rule 33 motion." Id.
15

We will not adopt an interpretation of the term "final" in 2255(1) that so

clearly conflicts with the purpose of the AEDPA statute of limitations.
Accordingly, we hold that a Rule 33 motion for a new trial is not part of the
"direct appeal" from a judgment of conviction unless incorporated into that
appeal by virtue of Rule 4(b). Therefore, Trenkler's direct appeal consisted only
of his appeal to this court in Trenkler I, and his conviction became final either
on September 5, 1995, when we issued our mandate in that case, or on
December 5, 1995, when the time for filing a petition for certiorari expired.5
As both dates predate AEDPA, the limitations period began to run on AEDPA's
effective date, April 24, 1996.
B. Tolling

16

Trenkler argues that even if the statute of limitations began to run on AEDPA's
effective date, it was tolled during the pendency of his Rule 33 motion. He
offers two bases for that conclusion.
1. Statutory Tolling

17

First, Trenkler suggests that we should import into 2255 the tolling provision
contained in 28 U.S.C. 2244(d)(2). Section 2244(d)(1) prescribes a one-year
limitations period for petitions filed by state prisoners under 28 U.S.C. 2254,
the state-conviction counterpart of 2255. Like motions filed under 2255,
2254 petitions for release from state custody generally must be filed within one
year of "the date the conviction became final by the conclusion of direct review
or the expiration of the time for seeking such review." 28 U.S.C. 2244(d)(1)
(A). However, 2244(d)(2) provides that the statute of limitations for 2254
petitions is tolled while "a properly filed application for State post-conviction
or other collateral review with respect to the pertinent judgment or claim is
pending." Trenkler asks us to read a similar tolling provision into 2255 for
federal prisoners filing Rule 33 motions for a new trial on the basis of newly
discovered evidence. Congress, he argues, did not intend to adopt different
rules for federal and state prisoners; its failure to include an explicit tolling

provision in 2255 to mirror that in 2244(d)(2) was simply an oversight that

we should correct here.
18

We decline that invitation. It has long been settled that "[w]here Congress
includes particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or exclusion." Russello v.
United States, 464 U.S. 16, 23 (1983) (internal quotation marks omitted). Thus,
the omission in 2255 of the tolling language that is present in 2244(d)(2)
gives rise to a negative inference that the statute of limitations for 2255 is not
tolled while federal prisoners pursue other forms of post-conviction relief. See
United States v. Prescott, 221 F.3d 686, 689 (4th Cir. 2000) ("Rather than
providing support for [tolling under 2255], we believe that 2244(d)(2)
counsels against tolling in the present case.").

19

Trenkler argued in his brief that the interpretive canon described in Russello
has no application here because "in a world of silk purses and pigs' ears,
[AEDPA] is not a silk purse in the art of statutory drafting." Lindh v. Murphy,
521 U.S. 320, 326 (1997). As Trenkler's counsel acknowledged at oral
argument, that argument was largely foreclosed by Duncan v. Walker, 121 S.
Ct. 2120 (2001), in which the Supreme Court relied on that same canon in
interpreting 2244(d)(2).6 Moreover, even without resort to Russello, we
would find ample cause to conclude that Congress's decision to provide for
tolling in 2244(d)(2) but not 2255 was an intentional one. Federal habeas
corpus review of state convictions under 2254 implicates principles of comity
that are inapplicable in the context of federal review of federal convictions
under 2255. "Comity . . . dictates that when a prisoner alleges that his
continued confinement for a state court conviction violates federal law, the
state courts should have the first opportunity to review this claim and provide
any necessary relief." O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); see
also 28 U.S.C. 2254(b)(1) (requiring state prisoners to exhaust available state
post-conviction remedies before filing 2254 petition for federal relief). As the
Supreme Court explained in Duncan, the tolling provision contained in
2244(d)(2) reflects Congress's attempt to promote the exhaustion requirement
while preserving a meaningful opportunity for state prisoners to seek federal
review. 121 S. Ct. at 2128. In the absence of an explicit tolling provision, state
prisoners could obtain relief in federal court only in the unlikely event that they
were able to exhaust all available state review within the one-year limitations
period for 2254 petitions.

20

Federal prisoners like Trenkler do not face the same problem. Nothing in
AEDPA obligated Trenkler to exhaust the opportunity for relief under Rule 33

before seeking review of his conviction and sentence under 2255. He was
free to file a 2255 motion immediately without fear that it would be dismissed
for failure to exhaust available post-conviction remedies. We acknowledge,
however, that the availability of post-conviction relief under Rule 33 and under
AEDPA can create some uncertainty for federal prisoners who, like Trenkler,
must decide whether to seek relief under Rule 33 or 2255. On one hand, the
strict statute of limitations for 2255 motions counsels in favor of pursuing that
avenue of relief first. On the other hand, the standard for relief under Rule 33
"is likely more enticing to a prisoner than the provisions of 2255." Prescott,
221 F.3d at 688. Under Rule 33, the district court has broad discretion to grant a
new trial "if the interests of justice so require." Fed. R. Crim. Proc. 33. Section
2255, by contrast, authorizes the district court to grant relief only if it finds that
"the judgment was rendered without jurisdiction, or that the sentence imposed
was not authorized by law or otherwise open to collateral attack, or that there
has been such a denial or infringement of the constitutional rights of the
prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C.
2255. Thus, federal prisoners may well prefer to seek relief in the first instance
under Rule 33 rather than 2255. Once a Rule 33 motion has been filed and is
pending before the district court or the court of appeals, there is a certain
inefficiency in compelling a prisoner to initiate new - and possibly duplicative proceedings under 2255. However, AEDPA's one-year statute of limitations
sometimes will require just that. See Prescott, 221 F.3d at 689. The solution is
not, as Trenkler suggests, to read a tolling provision into 2255. Rather, to the
extent that the overlap between 2255 and Rule 33 creates the potential for
inefficiency, district courts are "well equipped" to alleviate that problem
through consolidation of the various motions for collateral relief. Id. 7
2. Equitable Tolling
21

Trenkler argues that even if we conclude that he failed to comply with

AEDPA's statute of limitations, we should excuse his tardiness on the basis of
equitable tolling. A number of courts have held that in "'rare and exceptional'"
circumstances equitable tolling may be available in a 2255 case brought
under AEDPA. United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000)
(quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)); accord, e.g.,
Dunlap v. United States, 250 F.3d 1001, 1006-07 (6th Cir. 2001); Green v.
United States, 260 F.3d 78, 82-83 (2d Cir. 2001) (citing Smith v. McGinnis,
208 F.3d 13, 17 (2d Cir. 2000)); Prescott, 221 F.3d at 687-88; United States v.
Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) (citing Taliani v. Chrans, 189
F.3d 597 (7th Cir. 1999)); Sandvik v. United States, 177 F.3d 1269, 1271 (11th
Cir. 1999); Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 61719 & n.1 (3d Cir. 1998); but see United States v. Pollard, (D.C. Cir. Aug. 7,

2001) (concluding that Congress did not intend 2255 to be subject to equitable
tolling). We have yet to address that question, and we decline to do so here.
See, e.g., Delaney, 264 F.3d at 13-14 (reserving question whether doctrine of
equitable tolling is available under 2255 where facts of case did not support
application of doctrine). The district court, assuming arguendo that equitable
tolling might apply, prudently addressed the issue and resolved it adversely to
Trenkler. We review that ruling for abuse of discretion, see id. at 13-14, and
affirm.
22

In other contexts, we have held that the doctrine of equitable tolling is available
only in rare cases where, for example, "extraordinary circumstances beyond the
claimant's control prevented timely filing, or the claimant was materially
misled into missing the deadline." Fradella v. Petricca, 183 F.3d 17, 21 (1st Cir.
1999); accord Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 279 (1st Cir.
1999); Torres v. Superintendent of Police of Puerto Rico, 893 F.2d 404, 407-08
(1st Cir. 1990). Equitable tolling is not warranted where the claimant simply
"failed to exercise due diligence in preserving his legal rights." Irwin v. Dep't of
Veterans Affairs, 498 U.S. 89, 96 (1990); see also Wilson v. United States, 23
F.3d 559, 562 (1st Cir. 1994) ("We see no basis for extending the exceptional
doctrine of equitable tolling to a party who, by all accounts, merely failed to
exercise his rights."). "In a nutshell, equitable tolling is reserved for exceptional
cases . . . ." Chico-Velez v. Roche Prods., Inc., 139 F.3d 56, 59 (1st Cir. 1998).
Consistent with that view, those courts that have permitted equitable tolling
under 2255 have applied it sparingly, and have denied equitable tolling
where, for example, a 2255 motion was filed only one day late because of
confusion over the applicable deadline, see Marcello, 212 F.3d at 1010, or
because counsel decided five days before the deadline to send the motion via
ordinary mail, see Sandvik, 177 F.3d at 1271-72.

23

Trenkler argues that he satisfies the exacting standard for equitable tolling for a
variety of reasons. First, he states, without elaboration, that "compelling reasons
of personal and judicial economy compelled [him] to await a final
determination on his Motion for a New Trial before filing his 2255 petition."
As the party seeking to invoke the doctrine of equitable tolling, Trenkler bears
the burden of establishing the basis for it. I.V. Servs. of Am., Inc. v. Inn Dev. &
Mgmt., Inc., 182 F.3d 51, 54 (1st Cir. 1999). Such conclusory assertions rarely
will suffice to meet that burden. However, even if adequately explained,
Trenkler's argument would fall far short of the showing needed to support
equitable tolling. Trenkler may well be correct that it would have been
inefficient for the district court to have passed on his 2255 motion while this
court was considering his Rule 33 motion. That fact, however, speaks only to
whether the district court should have decided Trenkler's 2255 motion during

the pendency of his Rule 33 motion, not when Trenkler should have filed it. As
the Fourth Circuit recently explained, "[c]onsolidation of motions under Rule
33 and 2255 is an option, and district courts are well equipped to resolve
these motions in a timely and expedient manner." Prescott, 221 F.3d at 689.
More fundamentally, however, the fact that a statute of limitations creates
certain inefficiencies or inconveniences hardly qualifies as an "extraordinary
circumstance" that "prevent[s]" a litigant from complying with the strictures of
the applicable limitations period. Fradella, 183 F.3d at 21.
24

As a second justification for the application of equitable tolling, Trenkler states

that it was not his fault that it took more than two years for his Rule 33 motion which was filed within 2255's limitations period - to work its way through the
district court and then to this court on appeal. Such a lengthy period of
adjudication, Trenkler contends, was a "circumstance beyond [his] control that
prevented timely filing."

25

That argument might have some force if Trenkler were, in fact, barred from
filing a motion under 2255 while his Rule 33 motion was pending, or if
federal prisoners were required to exhaust such avenues of relief before filing a
motion under 2255. However, as our analysis of Trenkler's statutory
arguments makes clear, neither of those propositions is true.8 Put simply,
nothing prevented Trenkler from filing a 2255 motion while his Rule 33
motion was pending, just as nothing compelled him to file a motion under Rule
33 in the first place rather than seeking relief under 2255. Therefore, the fact
that it took more than two years for his Rule 33 motion to wend its way through
the courts, although outside Trenkler's control, provides no basis for equitable
tolling.9 Cf. Prescott, 221 F.3d at 688 ("Prescott's current predicament
originated not in his decision to request a new trial pursuant to Rule 33, but his
inattention to the limitation period of 2255.").

26

Trenkler's third argument for equitable tolling rests on the timing of various
decisions regarding the admissibility of Dr. Phillips's testimony. That testimony
was arguably relevant to both Shay and Trenkler, as the government introduced
Shay's incriminating statements at both men's trials. Shay attempted to
introduce Dr. Phillips's testimony at his trial; Trenkler did not. After Shay
appealed his conviction to this court, we held on June 22, 1995, that the district
court erred in refusing to admit Dr. Phillips's testimony under Rule 702. We
remanded the case to the district court so that it could determine whether the
testimony should have been admitted under Rule 403. On January 16, 1998, the
district court answered that question in the affirmative, and ordered a new trial
for Shay.

27

Trenkler argues that, since his 2255 motion features the claim that his trial
attorney's failure to introduce Dr. Phillips's testimony constituted ineffective
assistance in violation of the Sixth Amendment, the most "appropriate" and
efficient route was to "await a determination as to the admissibility of the
doctor's testimony." Although that argument suffers from several flaws, there is
one that predominates: the determination for which Trenkler claims he needed
to wait was made well before 2255's statute of limitations even began to run,
when we held on June 22, 1995, that the district court should have admitted Dr.
Phillips's testimony under Rule 702. Indeed, Trenkler's Rule 33 motion was
based entirely on the argument that he had "newly discovered" that Dr.
Phillips's testimony was admissible because of our decision on June 22, 1995.
That he felt it prudent to wait for the completion of yet another round of
litigation before filing a motion under 2255 does not excuse his failure to
comply with the one-year limitations period.

28

Finally, Trenkler argues that his sentence of life in prison supports the
application of equitable tolling to forgive his untimely filing. Without
minimizing the significance of the life sentence imposed, we must reject that
argument. Trenkler cites no authority, nor do we find any, for the proposition
that equitable tolling is justified because of the severity of the sentence
imposed.

29

In sum, Trenkler has presented "what is at best a garden variety claim of

excusable neglect." Irwin, 498 U.S. at 97. Assuming that the doctrine of
equitable tolling applies, we conclude that the district court did not abuse its
discretion in denying equitable tolling on those facts.

30

Affirmed.

Notes:
1

Under Rule 33, "[a] motion for a new trial based on any other grounds [than
newly discovered evidence] may be made only within 7 days after the verdict or
finding of guilty or within such further time as the court may fix during the 7day period."

As amended by AEDPA, 2255 provides that:

A 1-year statute of limitations shall apply to a motion under this section. The
limitations period shall begin to run from the latest of--

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a motion by such
governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.
28 U.S.C. 2255. The parties agree that only subsection (1) is at issue here.
3

To assist the reader of this opinion, we set forth a chronology of important

dates:
Dec, 12, 1992: Trenkler and Shay were indicted.
June 24, 1993: The grand jury returned the superceding, three-count indictment.
July 27, 1993: Shay was convicted at trial.
Nov. 29, 1993: Trenkler was convicted at trial.
June 22, 1995: We vacated Shay's conviction on direct appeal and remanded his
case to the district court.
July 18, 1995: We affirmed Trenkler's conviction on direct appeal (Trenkler I).
Sept. 5, 1995: Our mandate issued in Trenkler I.
Dec. 5, 1995: The period during which Trenkler could have filed a petition for
certiorari to review our decision in Trenkler I ended.
Dec. 22, 1995: Trenkler filed a Rule 33 motion based on newly discovered
evidence.
Apr. 24, 1996: AEDPA's effective date; one-year statute of limitations began to
run.
Feb. 4, 1997: The district court denied Trenkler's Rule 33 motion.

Apr. 24, 1997: The one-year statute of limitations running from AEDPA's
effective date ended.
Jan. 6, 1998: We affirmed the district court's denial of Trenkler's Rule 33
motion (Trenkler II).
Jan. 16, 1998: The district court ordered a new trial for Shay.
Jan. 5, 1999: Trenkler filed the 2255 motion under consideration.
4

Unless based on newly discovered evidence, a Rule 33 motion must be filed

within seven days of the entry of judgment, and so always will fall within that
ten-day period. See supra note 1. Rule 33 motions based on newly discovered
evidence, however, may be filed up to three years after the entry of judgment.
Accordingly, Rule 4(b)(3)(A)(ii) provides that "if based on newly discovered
evidence," a Rule 33 motion will operate to toll the deadline for filing a notice
of appeal "only if the motion is made no later than 10 days after the entry of the
judgment."

We have yet to decide when a conviction becomes "final" under 2255(1)

where, as here, the prisoner opted not to seek certiorari review in the Supreme
Court after his conviction was affirmed in the court of appeals. Compare
United States v. Torres, 211 F.3d 836, 839-40 (4th Cir. 2000) (holding that
conviction becomes final when court of appeals' mandate issues), and Gendron
v. United States, 154 F.3d 672, 674 (7th Cir. 1998) (same), with United States
v. Garcia, 210 F.3d 1058, 1060-61 (9th Cir. 2000) (holding that conviction
becomes final when time for seeking certiorari expires), United States v.
Gamble, 208 F.3d 536, 537 (5th Cir. 2000) (same), United States v. Burch, 202
F.3d 1274, 1279 (10th Cir. 2000) (same), and Kapral v. United States, 166 F.3d
565, 571 (3d Cir. 1999) (same). We need not address that issue here, as
Trenkler's 2255 motion was untimely under either approach.

In Duncan, the Supreme Court held that the phrase "State post-conviction and
other collateral review" in 2244(d)(2) embraces only "other collateral review"
in state court, reasoning that Congress's specific reference to both "state" and
"federal" review in other provisions of AEDPA indicated that its omission of
the word "federal" in 2244(d)(2) was intentional. See 121 S. Ct. at 2124-25.

The Seventh Circuit has adopted a slightly different approach: when the district
court receives a Rule 33 motion, it must ask the prisoner whether he intends to
file motion under 2255. If the answer is yes, the district court must delay
consideration of the Rule 33 motion until it receives the 2255 motion, and
consider both challenges at once. See O'Connor v. United States, 133 F.3d 548,
551 (7th Cir. 1998).

Trenkler relies on language from United States v. Dorsey, 988 F. Supp. 917,
919 (D. Md. 1998), to the effect that a 2255 motion should not be filed "prior
to the completion of any direct appeal." As we explained with regard to
Trenkler's accrual argument, however, our decision affirming the dismissal of
his Rule 33 motion was not part of Trenkler's "direct appeal."

At oral argument, Trenkler's counsel suggested for the first time that equitable
tolling is appropriate here because Trenkler's post-conviction counsel erred in
1995 when he filed a motion under Rule 33 instead of 2255. We express no
view as to the merits of that argument. "It is not enough merely to mention a
possible argument in the most skeletal way, leaving the court to do counsel's
work, create the ossature for the argument, and put flesh on its bones." United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Given Trenkler's failure to
raise the argument in either of his appellate briefs, "we see no reason to
abandon the settled appellate rule that issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation, are
deemed waived." Id.