Duquette v . Warden, NHSP CV-04-064-JD 01/06/05 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Randy J. Duquette

v. Civil N o . 04-064-JD Opinion N o .

Warden, New Hampshire State Prison

O R D E R

Randy J. Duquette, proceeding pro se and in forma pauperis,

filed a petition, pursuant to

, for relief from

his conviction and sentence on charges of aggravated felonious

sexual assault and felonious sexual assault. Following

preliminary review, the magistrate judge recommended that the

petition be dismissed as untimely under

(d)(1).

Duquette objects to the magistrate’s recommendation, has filed an

amended petition, and asks that his claims be considered on the

merits.

The one-year limitations period in § 2244(d)(1) is not a

jurisdictional bar to a habeas petition, but instead, provides an

affirmative defense. Neverson v . Farquharson,

2 , 41

(1st Cir. 2004). In appropriate cases, equitable tolling may

apply to lengthen the time allowed to file a petition.

Before a court may dismiss a petition sua sponte on the ground

that it is untimely filed, a petitioner must be afforded notice

that such a disposition is possible and an opportunity to respond. McMillan v . Jarvis,

4 4 , 247 (4th Cir. 2003);

Acosta v . Artuz,

1 7 , 119 (2d Cir. 2000). In this case,

the magistrate’s recommendation of dismissal provided notice, and

Duquette has had an opportunity to respond.

In his request to proceed on the merits, Duquette argues

that the Warden has demonstrated in a filing in a separate civil

rights case filed by Duquette in this court that a factual dispute exists as to whether his petition was timely filed.

Duquette is mistaken.

The filing Duquette references is “Objection to Plaintiff’s

Motion for Preliminary Injunction” filed on December 2 , 2004, in

Duquette v . Dolecal, et a l . , Civil N o . 04-281-M, in which the

defendants state that Duquette was seeking a preliminary

injunction to stop interference with his mail. The defendants

denied any interference with his mail and denied that he had

established interference with his mail in his federal habeas case, the case pending here, as he apparently asserted. The

defendants noted that the magistrate had determined that

Duquette’s petition in the habeas case was time-barred, but that

the case remained pending because Duquette had objected to the

magistrate’s report and recommendation. Nothing in that filing

suggests a factual issue as to whether Duquette’s petition was

timely filed. Duquette’s request is denied.

2 Discussion

The court reviews those portions of the magistrate judge’s

report and recommendation to which the petitioner has objected

under a de novo standard.

(b)(1). In conducting

a de novo review, the court considers the record anew without

deference to the magistrate’s conclusions. See, e.g., Harvard

Pilgrim Health Care of New England v . Thompson,

, 6 (D.R.I. 2004).

Duquette was convicted following a jury verdict on April 1 1 ,

1997, and he was sentenced in June of 1997. Counsel filed a

notice of appeal to the New Hampshire Supreme Court on July 1 6 ,

1997. Duquette’s appeal was handled by a series of appointed

counsel, interspersed with Duquette’s pro se filings, through

October of 1999. At that time, Attorney Paul Haley was retained

by Duquette’s family to represent him. Duquette asserts that

Haley was not responsive to him and that their relationship was acrimonious. Haley’s motion to withdraw was granted in March of

2000, when counsel was again appointed to represent Duquette.

Despite being represented by counsel, Duquette worked with

other inmates during the summer of 2000 to compose a pro se

motion for a new trial. Duquette notes that the state court

clerk and the court had previously refused his pro se filings.

He contends that the pro se motion for a new trial was mailed to

the Merrimack County Superior Court in September of 2000;

3 however, no such filing appears in the state court docket. In

his objection, Duquette states that he became aware in early 2001

that the state court would not act on his motion for a new trial.

The New Hampshire Supreme Court denied Duquette’s pro se

motion to hold the appeal in abeyance while he pursued his

attempts to be granted a new trial. On February 1 1 , 2001,

Duquette filed a motion, which was also signed by his appointed counsel, to withdraw his appeal. The motion was granted by the

New Hampshire Supreme Court on February 1 3 , 2001.

On June 1 8 , 2002, Duquette, proceeding pro s e , filed a

motion for a new trial. The state objected to the motion, and

further motion practice ensued. On September 3 0 , 2002, the state

court denied Duquette’s motion for a new trial, and his motion

for reconsideration was denied on December 2 , 2002. Duquette

filed a petition for habeas corpus in state court in July of

2003. The state’s motion to dismiss was granted on January 6, 2004. Duquette’s appeal was declined by the New Hampshire

Supreme Court. Duquette filed a petition in this court on

February 1 2 , 2004, and filed an amended petition on November 2 ,

2004.

Section 2244(d)(1) imposes a one-year limitation period for

petitions brought under § 2254 that runs from the latest of four

possible dates. In addition, “[t]he time during which a properly

filed application for State post-conviction or other collateral

4 review with respect to the pertinent judgment or claim is pending

shall not be counted toward any period of limitation under this

subsection.” § 2244(d)(2). Further, the time may be tolled in

extraordinary cases to avoid a clear injustice, such as when

circumstances beyond the petitioner’s control have prevented a

timely filing. Neverson, 366 F.3d at 4 2 . A petitioner who

relies on equitable tolling bears the burden of showing that it applies. Lattimore v . Dubois,

6 , 55 (1st Cir. 2003).

Unless one of the exceptions provided in the statute were to

apply, which is not the case here, the one-year period begins

when the state court judgment becomes final either at the

conclusion of direct review or the expiration of the time allowed

for review. § 2244(d)(1)(A). When a petitioner has pursued an

appeal through the highest state court, ninety days is added

after the date that court’s decision issued to account for the

time allowed to seek review by the Supreme Court. David v . Hall,

(1st Cir. 2003). If the petitioner stops the

appellate process before judgment is entered by the highest state

court, then his conviction is final for purposes of §

2244(d)(1)(A) when the time expires for any further state court

review. Roberts v . Cockrell,

9 0 , 694 (5th Cir. 2003).

In this case, Duquette filed a motion to withdraw his appeal

on February 1 1 , 2001. No further time was available for filing

an appeal of his conviction. See N.H. Sup. C t . R. 7 . Since he

5 did not pursue his direct appeal to a final decision by the New

Hampshire Supreme Court, he is not entitled to the extra time

that would be allowed for seeking review by the Supreme Court.

Therefore, the judgment on his conviction became final on

February 1 3 , 2001, when the New Hampshire Supreme Court granted

Duquette’s motion. He did not file his petition in this court

until February of 2004. Duquette argues that his motions for a new trial and for

habeas relief in state court tolled the time to file his petition

here. See § 2244(d)(2). His first motion for a new trial, which

he contends he mailed in September of 2000, was never filed, and

therefore does not trigger the application of § 2244(d)(2).

Duquette was on notice that the state court would not, and

apparently did not, accept his pro se filings while he was

represented by counsel. He also admits that he knew the state

court would not act on that motion by early 2001. Therefore, the first motion for a new trial does not provide grounds for tolling

the limitations period under either § 2244(d)(2) or an equitable

tolling theory.

The second motion for a new trial was filed on June 1 8 ,

2002, and the state habeas petition was filed in July of 2003,

each more than one year after the judgment became final. Since

nothing was pending during the year after the judgment became

final, between February 1 3 , 2001, and February 1 2 , 2002, no state

6 court proceedings tolled the limitations period. Duquette offers

no other grounds for tolling.1

Duquette’s petition for habeas relief was not timely filed

in this court. He has had notice that his petition was subject

to dismissal on that ground and has had an opportunity to

respond, which he has done. Having reviewed Duquette’s filings

and the record he provided, the court finds no basis to toll the limitations period in this case.

Conclusion

For the foregoing reasons, the petitioner’s request to

proceed on the merits (document n o . 14) is denied. The

magistrate judge’s report and recommendation (document n o . 10) to

dismiss the petitioner’s petition for a writ of habeas corpus is

adopted, as modified by this order.

SO ORDERED.

Joseph A . DiClerico, J r . United States District Judge January 6, 2005 c c : Randy J. Duquette, pro se

1 Duquette’s asserted difficulties with mailing do not provide equitable grounds for tolling. Even if the prison failed to mail his first motion for a new trial, causing it not to have been filed with the court in September of 2000, Duquette does not suggest that he made any effort to check with the court on the progress of that motion, and he also admits that he knew by early 2001 that the court would not act on the motion.

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