Blackmer v. Warden, NHSP CV-03-275-PB 12/09/04

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Paul Blackmer

v. Civil No. 03-275-PB Opinion No.

Warden, New Hampshire State Prison

MEMORANDUM AND ORDER

On May 30, 2003, Paul Blackmer, appearing pro se, filed a

petition for a writ of habeas corpus pursuant to

(Doc. No. 3).1 In this petition Blackmer challenges his 1997

state court convictions for possession of a controlled substance

with intent to sell and conspiracy to possess a controlled

substance with intent to sell. Respondent Jane Coplan, Warden of

1 A pro se prisoner's petition for a writ of habeas corpus is considered filed "on the date it is deposited in the prison's internal mail-system for forwarding to the district court." Morales-Rivera v. United States,

(1st Cir. 1999); see Houston v. Lack,

(1988) . For the purpose of this Memorandum and Order, I treat Blackmer's petition as having been given to prison officials for filing, and therefore having been filed, on May 30, 2003, the date that appears on the petition, rather than on June 3, 2003, the date on which it was stamped "filed" by this court's clerk. See Adeline v. Stinson,

, 251 n.l (2d Cir. 2000) . the New Hampshire State Prison, has moved for summary judgment

(Doc. No. 65), arguing that the petition is barred by the one-

year statute of limitations that governs federal habeas corpus

claims. See

(d)(1). Because I determine that

Blackmer's claims are time-barred, I grant the Warden's motion.

I. BACKGROUND2

A. The Trial

The police arrested Blackmer in April 1994 after observing

him retrieve two packages containing nearly fifty pounds of

marijuana from a United Parcel Service ("UPS") office in Laconia.

Blackmer, 149 N.H. at 48 (2003). A grand jury indicted Blackmer

in June 1994 for possession of marijuana with the intent to sell

and conspiracy to possess marijuana with the intent to sell. Id.

A superseding indictment followed in October 1994, but the state

nol pressed the indictments. Id. In May 1996, another grand

jury reindicted Blackmer for possession of marijuana with intent

to sell and conspiracy to possess marijuana with intent to sell.

2 The facts of the case are taken in part from State v. Blackmer,

,

(2003) . Additional details have been provided by consulting the submissions of the parties.

- 2 - based on the 1994 UPS incident.3

On October 3, 1997, a

Belknap County jury convicted Blackmer of these charges. He was

sentenced on December 23, 1997 to a prison term of not more than

30 years, nor less than 15 years.

B. The Direct Appeal

Blackmer's standby counsel filed a Notice of Appeal on his

behalf in March 1998. (Ex. 2) .4 Thereafter, on June 1, 1998,

Blackmer, now acting pro se, filed a Motion to Amend Notice of

Appeal Filed with Exception ("Motion to Amend"), and submitted 19

additional issues to the supreme court as part of his appeal.

(Ex. 3). On October 6, 1998, the supreme court ordered that it

would treat Blackmer's June 1, 1998 Motion to Amend as an amended

notice of appeal.

3 In May 1996, Blackmer was also indicted for conspiracy to possess marijuana with the intent to sell stemming from activities alleged to have occurred between December 1995 and January 1996. Blackmer,

. This charge was severed from the charges at issue here.

Blackmer was then tried and convicted by a jury on this separate charge.

On January 10, 2003, the New Hampshire Supreme Court affirmed his conviction.

. Blackmer's current petition does not challenge this conviction.

4 All citations to "Ex." refer to the exhibits included in the Appendix to the Respondent's Memorandum of Law in Support of Her Motion for Summary Judgment, III.

- 3 - At the heart of Blackmer's Motion to Amend, and indeed at

the heart of each of his post-conviction pleadings, is his firm

belief that his June 1994 indictment, and his subsequent

conviction, resulted solely from what he claims was the perjured

grand jury testimony of DEA Special Agent Michael Scott Connolly.

In his submissions, Blackmer refers to Connolly's testimony as

the "Brady material" issue. (Ex. 3, 55 (2)g, (2)h, (4)). He

remains resolute in his view that the State is required, under

Brady v. Maryland,

(1963) to disclose whether

Connolly committed perjury before the grand jury. Blackmer also

argues that in refusing to disclose the answer to this question,

the State committed prosecutorial misconduct by suppressing

potentially exculpatory evidence, thereby resulting in a

malicious prosecution and a wrongful conviction. (Ex. 3). In

effect, Blackmer maintains that he was unable to mount an

adequate defense at trial and has been unable to appropriately

appeal his conviction without a response from the State to his

claim that Connolly committed perjury. (Ex. 4).

Prior to briefing, Blackmer filed a "Motion to Stay Appeal

and Remand to Resolve Brady Material Answer Issue," again

requesting an answer to his question regarding Connolly's grand

- 4 - jury testimony. (Ex. 16, at 4). On July 11, 2000, the New

Hampshire Supreme Court denied this motion. (Ex. 17). The

supreme court also ordered Blackmer to file his appellate brief

on or before August 27, 2000, without further continuance.5 (Ex.

17). On August 10, 2000, Blackmer notified the supreme court

that he did not intend to file a brief in support of his appeal.

(See Ex. 9).

Subseguently, on December 19, 2000 (clerk's notice dated

December 27, 2000), the New Hampshire Supreme Court dismissed

Blackmer's appeal for failure to file a brief pursuant to N.H.

Sup. C t . R. 16(12) ("Failure of the appealing party to file a

brief shall constitute a waiver of the appeal . . . and the case

shall be dismissed."). (Ex. 9). In response, on January 16,

2001, Blackmer filed a "Motion to Reconsider Dismissal of

Appeal," again arguing that he was unable to properly prepare his

appeal without an answer to the Brady material guestion. (Ex.

5 This was the second briefing schedule in this case. On June 18, 1999, the New Hampshire Supreme Court ordered Blackmer to file his appellate brief no later than August 2, 1999. In response, Blackmer instructed his appointed appellate defender not to file a brief on his behalf, until the Brady material issue was resolved. Then, on July 19, 1999, Blackmer filed a motion to remove his appellate defender. Four days later the supreme court suspended briefing in the case.

- 5 - 10). Blackmer purportedly placed this motion in the prison

mailbox on January 12, 2001 .6 (Pet'r Obj. to Res't Mot. for

Summ. J. I, at 4, Doc. No. 57). The supreme court denied the

motion on September 25, 2001 (clerk's notice dated September 26,

2001). (Ex. 11).

C. The Motions for Injunctive Relief

In August 2000, while his direct appeal was pending,

Blackmer filed identical "Motion[s] for Injunctive Relief" in

Coos County Superior Court and Merrimack County Superior Court.

(Ex. 13 & Ex. 14). In these motions, which in effect operate as

a collateral attack on his conviction, Blackmer lodged two

complaints and prayed for relief on two fronts. First, he

charged that the library at the Northern N.H. Correctional

Facility was inadeguate for his legal research, and therefore

reguested a transfer to the Concord facility. Second, he renewed

his reguest that the court order the State to disclose the answer

to his Brady material guestion. The motion filed in Coos County

was dismissed on November 8, 2000, and the Motion filed in

6 Blackmer claims that he did not receive notice of the supreme court's dismissal of his appeal until January 3, 2001 (Pet'r Obj. to Res't Mot. for Summ. J. I, at 4, Doc. No. 57).

- 6 - Merrimack County was denied on October 17, 2000. Blackmer did

not appeal from either ruling.

D. State Court Habeas Petition

Blackmer also filed a petition for a writ of habeas corpus

in state superior court. (Ex. 5). In a November 3, 2000 order

denying Blackmer's petition, the superior court concluded that

after its review of all pleadings, materials, and other existing

records relating to the claim, Blackmer would be unable to

demonstrate the elements necessary to establish a denial of his

rights under either the United States Constitution or the New

Hampshire Constitution. (Ex. 6). The superior court further

noted that the issues raised in Blackmer's petition should be

raised in his direct appeal. (Ex. 6). Six days later, on

November 9, 2000, Blackmer filed a motion in superior court

asking the court to reconsider its order denying his habeas

petition. (Ex. 7). This motion was denied on November 29, 2000.

(Ex. 8). Blackmer did not appeal from this ruling.

E. The Petition for Modification of Order and _____ the Motion to Resubmit

On or about October 20, 2001, Blackmer filed a "Petition for

Modification of Order" in Belknap County Superior Court,

- 7 - requesting modification of a July 25, 1997 pre-trial Order. (Ex.

12). Blackmer again raised the Brady material issue in this

motion but requested that the pre-trial Order be changed to read:

"The State's [SECOND] Motion to Reconsider Order on Standing is

DENIED." (Ex. 12). The superior court denied this motion on

November 14, 2001. Almost 10 months later, on September 8, 2002,

Blackmer filed a "Motion to Resubmit 'Petition for Modification

of Order,'" pressing the court, yet again, to resolve the Brady

material issue. (Ex. 18). The superior court denied that motion

on October 1, 2002. (Ex. 20, at 1). Blackmer appealed the

ruling to the New Hampshire Supreme Court in late October, 2002.

On February 18, 2003, the supreme court declined to accept the

appeal.

F. The Federal Habeas Petition

Blackmer filed a petition for a writ of habeas corpus in

this court on May 29, 2003. In August 2003, the Magistrate Judge

reviewed Blackmer's petition pursuant to L.R. 4.3(2) and

determined that it raised the following grounds for relief: (1)

ineffective assistance of counsel at trial; (2) denial of counsel

at trial; (3) illegal search and seizure; (4) denial of the right

to present evidence at trial and on appeal; (5) prosecutorial misconduct and suppression of exculpatory evidence; and (6)

denial of meaningful access to the courts. (Doc. No. 7). The

Magistrate Judge ordered Blackmer to provide the court with

documentation demonstrating that he had exhausted his state

remedies. Blackmer timely complied with that order. The

Magistrate Judge thereafter dismissed Blackmer's claim that he

had been denied access to the courts, (Doc. No. 12), and ordered

the petition served on the respondent as to the five remaining

claims. (Doc. No. 13).

III. ANALYSIS

The Warden argues that Blackmer's federal habeas petition is

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

petitions. The Warden's position is that the statute began to

run on April 9, 2001, 90 days after she claims that Blackmer's

conviction became final in state court. She further argues that

none of Blackmer's applications for post-conviction or other

collateral review tolled the limitations period. Therefore, she

asserts that his May 23, 2003 federal habeas petition is time-

barred because it was filed long after the limitations period had

run. Blackmer advances two main arguments in his objection to the

Warden's motion. First, he asserts that the limitations period

has not yet begun to run because the Warden has failed to provide

him with information that he needs to file an effective petition.

Blackmer's second argument is that his federal habeas petition is

timely because the limitations period should have been tolled

while his petition for modification of order and his motion to

resubmit were pending. I begin by providing a summary of the

applicable law and then analyze each of Blackmer's arguments in

turn.

A. The Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996

("AEDPA") includes a one-year statute of limitations for federal

review of state prisoners' habeas applications. See

(d)(1). Section (d)(1) provides that the one-year

limitations period shall run from the latest of--

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such state action;

- 10 - (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(d)(1).

The AEDPA also includes a provision that tolls the

limitations period for that period of time "during which a

properly filed application for State post-conviction relief or

other collateral review with respect to the pertinent judgment or

claim is pending."

(d)(2). An application that

is not "properly filed," however, cannot toll the limitations

period. The United States Supreme Court has held that an

application for state post-conviction or other collateral review

is "properly filed" within the meaning of section 2244(d)(2)

"when its delivery and acceptance are in compliance with the

applicable laws and rules governing filings. These [rules]

usually prescribe . . . the form of the document, the time limits

upon its delivery, the court and office in which it must be

lodged, and the reguisite filing fee." Artuz v. Bennett, 531

- 11 - U.S. 4, 8 (2000). A state post-conviction proceeding is

considered "pending" from the time "it is first filed until

finally disposed of and further appellate review is unavailable

under the particular state's procedures." Adeline,

(guoting Bennett v. Artuz,

(2d Cir. 1999),

aff'd, Artuz v. Bennett,

(2000)).

Finally, although the statutory tolling provision can stop

the limitations clock from running, this "provision does not . .

. 'revive' the limitations period (i.e., restart the clock at

zero); it can only serve to pause a clock that has not yet fully

run." Vroman v. Brigano,

(6th Cir. 2003)

(guoting Rashid v. Khulman,

(S.D.N.Y.

1998)). Thus, once the limitations period has expired,

collateral petitions for state review can no longer serve to

avoid the statute of limitations. See

B. Analysis

1. Accrual

The New Hampshire Supreme Court dismissed Blackmer's direct

appeal for failure to file an appellate brief on December 19,

2000. The clerk's notice of the decision is dated December 27,

- 12 - 2000, and under New Hampshire law, this date is controlling.

See, e.g. N.H. Sup. C t . R. 7; N.H. Super. C t . R. 59-A(l).

Blackmer then had 10 days, until January 8, 2001, to file a

motion for rehearing or reconsideration. See N.H. Sup. C t . R.

22(2) (establishing deadlines for rehearing and reconsideration

motions) and N.H. Sup. C t . R. 27 (establishing time computation

rules). Thus, as the Warden correctly notes, Blackmer's

conviction became final in state court the following day, January

9, 2001. From January 9, 2001, Blackmer then had 90 days within

which he could have sought a writ of certiorari from the United

States Supreme Court. See Donovan, 276 F.3d at 91. That he

chose not to seek such review has no bearing on the determination

of when his conviction became final. Id. Accordingly, his

conviction became final under Section 2241(d) (1) (D) on April 9,

2001. 7

7 Blackmer contends that his conviction in state court did not become final until September 25, 2001, when the New Hampshire Supreme Court denied his motion to reconsider dismissal of his appeal. I reject this contention because his motion to reconsider was not timely filed. See N.H. Sup. C t . R. 22(2) (reguiring that a motion to reconsider be filed within 10 days of the date of the opinion). I decline to discuss this particular dispute in greater detail because it has no effect on my conclusion that Blackmer's petition is time-barred.

- 13 - Blackmer nevertheless invokes Section 2241(d)(1)(D) in

arguing that the limitations period has not yet begun to run

because the state prevented him from discovering the factual

predicate for his claim.8 His argument is that his claim is

predicated on Special Agent Connolly's perjury and, since the

state has failed to admit that the perjury occurred, it has

deprived him of information that he needs to bring his claim.

This argument is meritless. The limitations period begins to run

under Section 2244(d)(1)(D) when a defendant discovers or

8 Blackmer also alleges that the New Hampshire courts have "sguandered" jurisdiction in this matter and are therefore unfit to conduct a review of his case. This argument is rooted in his contention that he was denied the assistance of counsel during his direct appeal. Blackmer is incorrect. Prior to January 1, 2004, when N.H. Sup. C t . R. 7 was amended to provide for mandatory appeals in certain circumstances, the right to appeal in New Hampshire was "limited to the right to obtain a discretionary determination by [the Supreme Court] as to whether it will accept the appeal." State v. Cooper,

(1985). Pursuant to this rule, indigent defendants are provided counsel for preparing appeals to the Supreme Court at the State's expense.

-A:l. In this case, the State appointed an appellate defender to assist Blackmer in preparing his notice of appeal and his appellate brief. Prior to filing the brief, however, Blackmer instructed his attorney not to file the brief and then, on his own initiative, filed a motion to have his attorney removed. See note 7, supra. Accordingly, Blackmer's claim that the State has denied him the assistance of counsel in preparing his appeal is unsupported by the record and therefore rings hollow.

- 14 - reasonably should have discovered the factual predicate for his

claim. It does not require that the defendant have received an

admission from the state that a claim has merit before the

statute begins to run. It is obvious from the record that

Blackmer was well aware of the factual basis for his claim of

perjury when his direct appeal was pending before the New

Hampshire Supreme Court. Section 2241(d)(1)(D) thus will not

save Blackmer's claim from being subject to the statute of

limitations.

Because § 2244(d)(1)(D) is inapplicable, the statute of

limitations accrued on April 9, 2001 when Blackmer's conviction

became final under § 2244(d)(1)(A).

2. Tolling

Blackmer also argues that the statute of limitations was

tolled during the periods in which his petition for modification

of order and his motion to resubmit were pending in state court.9

As I have explained, such applications for post-conviction relief

9 Although Blackmer argues otherwise, the motions for injunctive relief and the state court habeas corpus petition do not toll the statute of limitations because these matters were resolved before the statute of limitations began to run.

- 15 - do not toll the statute of limitations unless they are "properly

filed."

Unfortunately for Blackmer, the Warden is correct in her

claim that neither his petition for modification of order nor his

petition to resubmit were "properly filed" for purposes of

tolling the limitations period. First, the "Petition for

Modification of Order" that Blackmer filed in superior court on

or about October 20, 2001 requested modification of a July 25,

1997 pre-trial order. In essence, this was a motion for

reconsideration. Pursuant to N.H. Super. C t . R. 59-A, such

motions must be filed "within ten (10) days of the date on the

clerk's written notice of the order or decision." Id. at 59-

A(l). Here, Blackmer filed the motion more than four years after

the clerk's notice. Because this motion was not "properly filed"

pursuant to New Hampshire's procedural rules, it did not toll the

applicable limitations period.

The Warden also correctly argues that the September 8, 2002

motion to resubmit was not "properly filed" according to New

Hampshire's procedural rules, and therefore did not toll the

limitations period. This motion was a response to the superior

- 16 - court's November 14, 2001 denial of Blackmer's petition for

modification of order. Thus, it was a motion to reconsider

which, as I have explained, had to be filed within 10 days of the

clerk's written notice of the decision that Blackmer was asking

the court to reconsider. Blackmer's September 8, 2002 motion,

filed nearly 10 months after the clerk's notice of the order on

the original motion was therefore untimely. Thus, the motion was

not "properly filed" for tolling purposes.

V. CONCLUSION

Because I conclude that Blackmer's petition for a writ of

habeas corpus (Doc. No. 3) is time-barred, the Warden's Motion

for Summary Judgment III (Doc. No. 65) is granted. As a result,

the Warden's Motion for Summary Judgment I (Doc. No. 31) and

Motion for Summary Judgment II (Doc. No. 51) are moot. The Clerk

shall enter judgment accordingly.

SO ORDERED.

Paul Barbadoro United States District Judge

December 9, 2004

- 17 - cc: Paul Blackmer 26106, pro se Charles J. Keefe, Esq.

- 18 -