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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Robert E. Keeton, U.S. District Judge]

Petitioner-appellant Charles C. Delaney III, a Massachusetts state prisoner, sought a writ of habeas corpus in the United States District Court for the District of Massachusetts, but voluntarily withdrew his application when the Commonwealth pointed out that it contained unexhausted claims. After pursuing all available state remedies, the petitioner returned to federal court. At that juncture, the court dismissed his new application as untimely under the one-year limitation period enacted as part of the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996).

The petitioner appeals this order, asseverating that the district court erred in refusing to toll the limitation period during the pendency of his original federal habeas petition; that absent such tolling the statutory limitation violates the Suspension Clause; and that, in all events, the district court abused its discretion by failing to resuscitate his time-barred claim on equitable grounds. Recent Supreme Court precedent holding that the relevant statutory provision, 28 U.S.C. � 2244(d)(1), may not be tolled by the pendency of federal, as opposed to state, post-conviction proceedings defeats the first of these asseverations. See Duncan v. Walker, 121 S. Ct. 2120, 2129 (2001). The second fails on the law. The third fails on the facts: even assuming, for argument’s sake, that equitable tolling is available in the precincts patrolled by section 2244(d) – a matter on which we take no view – the district court supportably determined that the petitioner had not established a sufficiently compelling basis for remediation. Consequently, we uphold the district court’s dismissal of the petitioner’s application for habeas relief.

 
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