Paul Markun v. USA CV-99-199-B 07/13/99

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Paul R . Markun

v. Civil No. 99-199-B

United States of America

O R D E R

Motions filed pursuant to

are subject to

a one-year statute of limitations that in this case began to run

on the date on which the judgment of conviction [became] final."

Petitioner Paul Markun's conviction was summarily affirmed

by the First Circuit Court of Appeals and judgment was entered on

December 5, 1997. He did not file a timely certiorari petition

with the Supreme Court. His conviction thus became "final" for

1 A claim based on

may be maintained more than one year after the date on which the petitioner's conviction became final if (1) the petitioner was prevented from making the motion earlier by illegal governmental action; (2) the Supreme Court recognized the right on which the petition is based after petitioner's conviction became final and the right is made retroactively applicable to cases on collateral review; or (3) petitioner could not reasonably have discovered the facts on which his claim is based until after his conviction became final.

. None of these exceptions apply in this case. purposes of the statute of limitations on March 5, 1998, when the

time for filing a petition for writ of certiorari with the United

States Supreme Court expired. See Kapral v. United States,

(3rd Cir. 1999); but see Gendron v. United States,

(7th Cir. 1998), cert, denied by Ahitow v.

Glass, 119 S. C t . 1758 (1999), (conviction becomes "final" when

mandate issues from court of appeals unless petitioner files a

timely petition for writ of certiorari). Since the earliest date

that Markun could be deemed to have filed his federal petition

was more than a year later, on April 25, 1999, when he placed the

petition in the prison mail system, see Nichols v. Bowersox,

, 1073 (8th Cir. 1999) (applying "prison mailbox" rule

to habeas corpus petition), his petition appears to be barred by

the one-year statute of limitations.

Although the First Circuit has not yet addressed the issue,

see Libbv v. Maqnuson, ___ F.3d ___ ,

*8 n.2 (1st

Cir. 1999) (leaving issue unresolved), several other courts have

held that the habeas corpus statute of limitations is subject to

eguitable tolling. See Miller v. Mar r ,

(10th

Cir. 1998); Davis v. Johnson,

(5th Cir. 1998);

Miller v. New Jersey State Dep't of Corrections,

(3rd Cir. 1998). The facts of this case, however, do not

- 2 - justify the application of the equitable tolling doctrine.

Although Markun might claim that the running of the statute

should be equitably tolled until April 1 9 , 1998, when he

allegedly learned that the First Circuit had rejected his appeal,

it is doubtful that a lawyer's failure to tell his client that

his appeal has been rejected is the type of "rare and exceptional

circumstance" that would support an equitable tolling argument.

See Fisher v. Johnson,

(5th Cir. 1999); see

also Mandarino v. United States,

*1-2 (S.D.N.Y.

1998) (declining to apply equitable tolling where delay was

caused by counsel's failure to inform client that certiorari

petition had been denied). In any event, Markun cannot save his

claim by invoking equitable tolling because he failed to file his

§ 2255 petition for more than a year after he admits that he

learned that the appeal had been rejected. Any argument for

equitable tolling that Markun might make based on the pendency of

his untimely filings with the Court of Appeals and the Supreme

Court also would be unavailing because he waited more than five

months to file his § 2255 petition after the last of his untimely

filings had been rejected. Such an unjustified delay prevents

him from relying on equitable tolling. See Fisher,

(declining to apply equitable tolling where petitioner had ample time to file habeas corpus petition after circumstances

preventing filing were resoled.

I propose to dismiss Markun's petition on the ground that it

is barred by the statute of limitations unless, on or before

August 1, 1999, he files a memorandum detailing why the statute

of limitations does not bar his claim.

SO ORDERED.

Paul Barbadoro Chief Judge

July 13, 1999

cc: Paul R. Markun, pro se Peter E. Papps, Esg.

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