Morehouse v. NHSP CV-01-93-B 03/25/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Patrick Morehouse

v. Civil No. 01-93-B Opinion No.

Warden, NH State Prison

MEMORANDUM AND ORDER

On March 16, 2001, Patrick Morehouse filed a federal habeas

corpus petition challenging his 1981 conviction for attempted

first degree murder. The Warden of the New Hampshire State

prison has moved to dismiss the petition on the ground that it is

barred by the one-year statute of limitation that governs habeas

corpus claims. See

(d)(1).

BACKGROUND

Morehouse was found guilty of attempted first degree murder

in the Hillsborough County Superior Court on May 14, 1981.1

1 Morehouse was first convicted in 1979. The New Hampshire Supreme Court vacated the initial conviction, however, because it determined that the trial court gave the jury an erroneous reasonable doubt instruction. See State v. Morehouse,

(1980). Shortly thereafter, he was sentenced to a prison term of not more

than 30 years, nor less than 10 years. The New Hampshire Supreme

Court summarily affirmed his conviction and sentence on August

25, 1981.2

Morehouse first attempted to collaterally attack his 1981

conviction by filing a habeas corpus petition with this court on

March 6, 1996. He claimed that his conviction should be vacated

because: (1) his trial counsel was ineffective; (2) the

prosecution presented insufficient evidence to support his

conviction; (3) the trial court violated his right to due process

of law by giving him an enhanced sentence based on the "cruelty

and depravity" of his crime; (4) he was not notified prior to the

trial that he could face an enhanced sentence; (5) the sentencing

judge erred in failing to specify the facts on which he relied in

2 Before acting on Morehouse's appeal, the supreme court directed his appellate counsel to "file a memorandum explaining why the issues in this case are different from those considered by the court in [Morehouse's appeal of his first conviction]." Counsel responded by informing the court that "the issues which would be briefed and argued in the [second] appeal would be identical to those argued and briefed in [the first appeal]." Because the court had previously rejected the issues Morehouse intended to raise in his second appeal, the court apparently determined that it could resolve the second appeal without further briefing.

- 2 - issuing the enhanced sentence; and (6) his appellate counsel was

ineffective.

On May 16 , 1996, the Magistrate Judge directed Morehouse to

file an amended petition demonstrating that he had exhausted

state court remedies with respect to his six claims for relief.

In response, Morehouse asked the court to dismiss his ineffective

assistance claims without prejudice and determine that he had

exhausted his remaining claims. The Magistrate Judge granted his

request on August 27, 1996.

On December 10, 1996, Morehouse filed a motion asking the

court to reinstate his dismissed ineffective assistance claims

and allow him to add a new claim that the New Hampshire Supreme

Court had violated his right to due process of law by summarily

affirming his conviction. I denied the motion because I

determined that I could not act on his petition if I allowed it

to include the unexhausted claims.

Morehouse renewed his request to amend his petition to

include the unexhausted claims at a hearing on July 30, 1997.

Although I informed Morehouse that I would have to dismiss his

entire petition if I granted his request, he nevertheless

- 3 - insisted that I permit him to amend his petition to include the

unexhausted claims so that he could immediately appeal my order

dismissing his petition. Ultimately, I granted his motion to

amend and dismissed his petition because it contained unexhausted

claims. The First Circuit Court of Appeals rejected Morehouse's

appeal on December 17, 1997.

Morehouse filed a certiorari petition with the New Hampshire

Supreme Court on December 29, 1997, raising several claims he had

included in his federal habeas corpus petition as well as several

new claims. After the supreme court rejected his petition,

Morehouse filed a second habeas corpus petition with this court

on May 11, 1998. Judge McAuliffe ultimately dismissed this

petition on April 9, 1999 because he determined that Morehouse's

certiorari petition did not satisfy the exhaustion requirement.

The First Circuit Court of Appeals affirmed Judge McAuliffe's

ruling on September 17, 1999.

Morehouse filed a habeas corpus petition in the Merrimack

County Superior Court on September 24, 1999. The Superior Court

dismissed his petition and the New Hampshire Supreme Court

declined to hear his appeal on August 21, 2000.

- 4 - Morehouse filed his current habeas corpus petition with this

court on March 16, 2001.

ANALYSIS

Congress enacted the Antiterrorism and Effective Death

Penalty Act ("AEDPA") in 1996. The Act, which went into effect

on April 24, 1996, included a one-year statute of limitations for

habeas corpus petitions. See

2 4 4 (d)(1). Because

Morehouse's conviction became final before Congress enacted

AEDPA, the one-year limitation period for his claims began to run

when AEDPA went into effect. See Currie v. Matesanz,

(1st Cir. 2002). Morehouse thus had until April 24,

1997 to file his habeas corpus petition.

AEDPA provides 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 under this

section."

(d)(2)(emphasis added). While this

statutory tolling provision covers periods in which a collateral

challenge is pending in state court, it does not apply to

- 5 - challenges initiated in federal court. Neverson v. Bissonnette,

(1st Cir. 2001). Morehouse accordingly cannot

rely on AEDPA's statutory tolling provision because a federal

habeas corpus petition is not covered under the provision and he

did not attempt to challenge his conviction in state court until

after the limitation period had expired. Thus, Morehouse's

current petition will be time-barred unless he can demonstrate

that the limitation period should be equitably tolled during the

pendency of his first federal habeas corpus proceeding.

The First Circuit has not yet determined whether a habeas

corpus petitioner can ever rely on equitable tolling to save a

habeas corpus claim that is otherwise barred by AEDPA's statute

of limitation. See Donovan v. State of Maine,

(1st Cir. 2002); Neverson,

. The court has held,

however, that "equitable tolling, if available at all, is the

exception rather than the rule; resort to its prophylaxis is

deemed justified only in extraordinary circumstances." Delaney

v. Matesanz,

(1st Cir. 2001). The Ninth Circuit

has further explained that the doctrine is available only if

" 'extraordinary circumstances beyond a prisoner's control make it

- 6 - impossible to file a petition on time.'" Malcom v. Pavne,

(9th Cir. 2002) (quoting Calderon v. United

States District C t . for the Cent. Dist. of C a l .,

,

541 (9th Cir. 1997) (en banc)) (internal quotation marks

omitted); see also Kreutzer v. Bowersox,

(8th

Cir. 2000) (confusion concerning applicable statute of limitation

not a basis for equitable tolling), cert, denied, 122 S. C t . 145

(20 0 1 ) .

Morehouse has been unable to identify any extraordinary

circumstances that would justify the use of equitable tolling to

save his untimely claims. He waited more than 15 years after his

conviction became final before he attempted to seek collateral

review of his conviction. Moreover, after he filed his first

federal habeas corpus petition, the court repeatedly advised him

of his obligation to comply with the exhaustion requirement

before proceeding with his unexhausted claims in federal court.

Morehouse was informed that he could either take a dismissal of

all of his claims without prejudice so that he could later raise

them in a single federal petition after exhausting state

remedies, or take a dismissal of only his unexhausted claims

- 7 - without prejudice so that he could litigate his exhausted claims

in federal court while pursuing his unexhausted claims in state

court. Morehouse started down the second path when he initially

asked the court to dismiss his unexhausted claims without

prejudice, but he failed to take any action to preserve his

unexhausted claims by promptly pursuing them in state court where

they would have been protected by AEDPA's statutory tolling

provision. See 28 U.S.C.§ 2 2 4 4 (d)(2). Instead, after the

statute of limitation had run, he asked the court to reinstate

his unexhausted claims even though he was informed that his

request would result in the dismissal of his entire petition.

Morehouse thus has no one but himself to blame for the situation

in which he now finds himself.

If, on these facts, I were to allow Morehouse to invoke

equitable tolling to save his claim, I would undermine AEDPA's

exhaustion requirement and make equitable tolling the rule in

cases where a petitioner files his claims in federal court

without first complying with the requirement that he exhaust his

state court remedies. A claimant is simply not entitled to

invoke equitable tolling when he finds that his claims are time- barred because of his own failure to take available steps to

comply with the exhaustion requirement that would have preserved

his claims for review. See Delaney,

(rejecting

equitable tolling claim based on pro se status of petitioner and

ignorance of the applicable law).

CONCLUSION

Respondent's motion to dismiss (document no. 10) is granted.

SO ORDERED.

Paul Barbadoro Chief Judge

March 25, 2002

cc: Patrick Morehouse, pro se Malinda Lawrence, Esq.

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