Gaylor v . Warden, NHSP CV-04-372-PB 01/24/06

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gregory Alan Gaylor

v. Case N o . 04-cv-372-PB Opinion No.

Warden, New Hampshire State Prison

O R D E R

Gregory Alan Gaylor has filed a habeas corpus petition

challenging his state court convictions. The Warden of the New

Hampshire State Prison has responded with a summary judgment

motion arguing that Gaylor’s claims are barred by the one-year

statute of limitations that governs habeas corpus petitions.

I. BACKGROUND

Gaylor was indicted in state court on a variety of theft

counts in December 1997. A superseding indictment added a count

for willful evasion of the New Hampshire business profits tax.

Gaylor was tried in March and April 1999. He absconded while the jury was deliberating. On April 1 4 , 1999, he was found

guilty on more than 100 counts of theft and tax evasion. He was

sentenced in absentia to a prison term of 14 ½ to 29 years.

Gaylor’s attorneys filed a notice of appeal on his behalf on July

2 9 , 1999. The New Hampshire Supreme Court dismissed the appeal

on October 1 5 , 1999. Gaylor was arrested in Switzerland on

November 1 3 , 1999, and extradited to New Hampshire in August

2000.

Gaylor filed a habeas corpus petition in this court on

January 9, 2001 (“first federal petition”). I dismissed the

petition on May 3 1 , 2001 because Gaylor failed to exhaust state

court remedies with respect to several of his claims.

Gaylor filed a motion with the New Hampshire Supreme Court

asking it to reconsider its dismissal of his appeal while his

first federal habeas corpus petition was pending. On June 1 9 ,

2001, the court rejected his motion without prejudice to his

right to file a habeas corpus petition. On June 2 8 , 2001, Gaylor

filed a habeas corpus petition in the New Hampshire Supreme Court

(“supreme court petition”). On August 1 4 , 2001, the court denied

the petition without prejudice to Gaylor’s right to refile his

petition in superior court.

-2- Gaylor filed a habeas corpus petition in Merrimack County

Superior Court on March 7 , 2002 (“superior court petition”). The

superior court held an evidentiary hearing and denied the

petition on July 7 , 2003. The New Hampshire Supreme Court

affirmed the superior court’s dismissal of the petition on

January 6, 2004. The supreme court refused to vacate its order

declining to hear Gaylor’s appeal of the superior court’s habeas

corpus decision and to reopen his case on June 9, 2004. The

supreme court upheld the superior court’s dismissal of Gaylor’s

motion for a new trial on December 2 7 , 2004.

Gaylor filed his current petition on October 5 , 2004.

II. ANALYSIS

The warden argues that Gaylor’s current petition is barred

by

(d) 1 because he waited more than a year after

1

(d) provides in pertinent part that: “(1) [a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of – (A) the date on which the judgment became final by the conclusion of direct review of the expiration of the time for seeking such review; . . . or;

-3- his convictions became final before he filed the petition.

Gaylor has responded with a variety of arguments as to why his

petition is not time-barred. He claims that: (1) the limitation

period for several of his claims did not begin to run until he

discovered the factual basis for the claims; (2) the limitation

period should be equitably tolled while his first federal

petition was pending; (3) the limitation period does not apply

because he is “actually innocent;” and (4) the limitation period

does not apply to his claims challenging extradition even if it

applies to his other claims. In the alternative, he argues that

I should reopen his first federal petition pursuant to Fed. R.

Civ. P. 60(b). I first explain why the warden is correct that

more than one year of countable time has passed between the date

that Gaylor’s convictions became final and the date when he filed

his current petition. I then turn to Gaylor’s specific arguments

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) the 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 subsection.”

-4- as to why his claims are not time-barred.

A. More than one year elapsed between the time when Gaylor’s convictions became final and the filing of his current petition.

Gaylor’s convictions became final on January 1 3 , 2000, when

the time for seeking certiorari review of his convictions

expired.2 See Cordle v . Guarino,

6 , 48 (1st Cir.

2005). Although the limitation period is suspended while any

“properly filed application for state post-conviction or other

collateral review is pending,”

(d)(2), Gaylor

cannot claim that the limitation period was suspended while his

first federal petition was pending because a federal habeas

corpus petition “is not an ‘application for state post-conviction

or other collateral review.’” Duncan v . Walker,

6 7 ,

181 (2001). Nor can Gaylor claim that the limitation period was

suspended while his untimely motion to reconsider the dismissal

of his appeal was pending because the motion was not “properly

2 To the extent that Gaylor contends that his convictions did not become final until either June 1 9 , 2001, when the New Hampshire Supreme Court declined to reconsider the dismissal of his direct appeal, or August 1 4 , 2001, when that court rejected his habeas corpus petition, his contentions are plainly meritless.

-5- filed.”3 See Pace v . DiGuglielmo, 125 S . Ct 1807, 1814 (2005).

The time during which Gaylor’s two state court habeas corpus

petitions were pending is excludable under § 2244(d)(2) because

both petitions were “properly filed.”4 A more difficult issue is

whether the seven month gap between the termination of the

supreme court petition and the filing of the superior court

petition should be excluded. The Supreme Court held in Carey v .

Saffold,

1 4 , 223 (2002) that a habeas corpus petition

is deemed to be “pending” for purposes of § 2244(d)(2) during the

time between the conclusion of a lower court habeas corpus

proceeding and the timely commencement of a second habeas corpus

petition in a higher court. The present case is clearly

distinguishable. First, unlike in Carey, this case involves a

gap between the conclusion of a petition filed in the supreme

court and the commencement of a similar proceeding in a lower

3 The motion to reconsider was untimely because it was not filed within 10 days of the dismissal order. See N.H. Supr. C t . R. 22(2). 4 Gaylor had 90 days from the dismissal of his state habeas corpus petitions in which to seek certiorari review with the United States Supreme Court. However, time during which a petitioner may seek certiorari review from the dismissal of a habeas corpus petition is not excluded from the limitation period. David v . Hall,

(1st Cir. 2003).

-6- court. The petitioner in Carey needed to file in the lower court

first and pursue his challenges in the California Supreme Court

both to comply with state habeas corpus practice and to satisfy

federal exhaustion rules. Id. at 221-24. Thus, it makes sense

for a petition to be “pending” during the gap between two such

proceedings. In Gaylor’s case, he was not subject to a

requirement that he file in the lower court first, and he chose

to proceed directly to the supreme court. Second, the Supreme

Court recognized in Carey that its holding would not apply in

jurisdictions where the state’s highest court has appellate

jurisdiction over habeas corpus proceedings and its original

habeas corpus jurisdiction is limited to “extraordinary cases.”

Id. at 224. The New Hampshire Supreme Court has repeatedly

recognized that it will exercise its original habeas corpus

jurisdiction only in extraordinary cases. See, e.g., In re

LaForest,

0 8 , 509 (1970); Labelle v . State,

(1967). Thus, Carey is inapplicable here and the gap between

the conclusion of the supreme court petition and the commencement

of the superior court petition is countable time under § 2244(d).

In summary, the limitation clock began to run in this case

on January 1 3 , 2000, when Gaylor’s convictions became final. It

-7- ran until June 2 8 , 2001, when Gaylor filed the supreme court

petition. At that point, 1 year, 5 months, and 14 days of

countable time had elapsed. The limitation clock was suspended

until August 1 4 , 2001, when the supreme court denied the

petition. It then continued to run until March 7 , 2002, when

Gaylor filed his superior court petition, and was suspended until

January 6, 2004, when the supreme court affirmed the superior

court’s dismissal of the superior court petition. That added an

additional 6 months and 20 days to the countable time total.

Thus, Gaylor permitted a total of 2 years and 3 days of countable

time to elapse between the date when his convictions became final

and the date that he filed his current petition.5

B. Gaylor knew or reasonably should have known of the factual basis for his claims when his convictions became final.

5 Additional countable time may have elapsed between January 6, 2004, when the supreme court affirmed dismissal of the superior court petition, and October 5 , 2004, when Gaylor filed the current petition, however he continued to litigate in state court and might have an argument that the limitation clock should be suspended during that time. I need not address this issue as Gaylor had already well exceeded the § 2244(d) limit by May 7 , 2004.

-8- Gaylor invokes § 2244(d)(1)(D) in arguing that the

limitation period for several of his ineffective assistance of

counsel claims did not begin to run until recently, when he

learned of the factual basis for the claims. In particular, he

asserts that his claim that trial counsel erred in failing to

call an expert witness on his behalf did not accrue until October

1 8 , 2002, when his habeas corpus counsel discovered an unpaid

invoice from the expert in trial counsel’s records. According to

Gaylor, this was the first time that he had any inkling that his

trial counsel had refused to call the expert because of a fee

dispute rather than as a matter of trial strategy. He similarly

contends that his claim that trial counsel improperly withheld

certain partnership statements and general ledgers from his

expert and the jury did not accrue until October 3 1 , 2002, when

he became aware of the claim while reviewing trial counsel’s

records.6 Neither argument is persuasive.

6 Gaylor also alleges that he could not have discovered a variety of other claims earlier. Gaylor provides no evidence other than his own statements that he did not learn of the claims until recently. General averments that a claim was not discovered earlier do not demonstrate that the basis for the claim could not have been discovered at trial through the exercise of reasonable diligence.

-9- Gaylor knew at trial that his counsel had not called the

expert as a witness despite the fact that he had been disclosed

as a defense expert. Moreover, Gaylor presumably would have

known what the expert would have said if he had testified because

Gaylor had access to the expert’s deposition. Although the

discovery of the unpaid invoice may have supplied a motive for

counsel’s failure to call the expert, Gaylor did not need to be

aware of his attorney’s motivations to be on notice of his

potential claim that his attorney had erred in failing to call

the expert as a trial witness.

Gaylor’s argument based on counsel’s alleged failure to

introduce the partnership financial statements and ledgers

suffers from a similar flaw. He clearly knew of the existence of

the statements and ledgers prior to trial. See January 2 8 , 1998

Letter from Gaylor to Attorney Bradford Kuster, Ex. 3 to Resp.’s

Third Mot. for Summ. J. Gaylor also reasonably should have known

whether the financial documents supported his defense. Finally,

he has no persuasive argument as to why he could not reasonably

have learned during the trial that his counsel erred in failing

to introduce the allegedly exculpatory records. Because Gaylor

cannot demonstrate that he could not have discovered the factual

-10- predicate for his claims through the exercise of reasonable

diligence before his convictions became final, he cannot delay

commencement of the limitation period for this reason.

C. The limitation period was not equitably tolled while Gaylor’s first federal habeas corpus petition was pending.

Gaylor argues that the limitation period should be equitably

tolled while his first federal petition was pending because the

United States Supreme Court did not rule that the limitation

period continues to run during the pendency of a federal habeas

corpus petition until after I dismissed his petition. The

Supreme Court has recognized that “a litigant seeking equitable

tolling bears the burden of establishing two elements: (1) that

he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way.” Pace, 125 S . C t .

at 1814; see also Cordle,

-49; Neverson v .

Farquharson,

2 , 39-44 (1st Cir. 2004). Gaylor has

failed to satisfy either prong of the equitable tolling test.

-11- First, the record does not show that Gaylor litigated his

habeas corpus claims diligently. Gaylor waited until four days

before the limitation period expired before he filed the first

federal petition. He offers no explanation for this delay and

none is apparent in the record.7 Gaylor also inexplicably waited

nearly seven months after the court dismissed the supreme court

petition before he filed the superior court petition. These pre-

and post-filing delays are so significant that Gaylor’s claims

could not be saved from § 2244(d) even if the limitation period

were tolled while the first federal petition was pending.

7 Although Gaylor was not returned to the United States until August 2000, he cannot rely on the fact that he was contesting his extradition as an excuse for his failure to file his habeas corpus petition sooner. A petitioner cannot point to problems of his own making to support a claim for equitable tolling. See Verikokidis v . Galetka,

1 1 , 312 (10th Cir. 2002) (unpublished) (delay not excused where petitioner’s fugitive status contributed to delay); see also Cordle,

(extraordinary circumstances warranting equitable tolling must be beyond litigant’s control). In any event, Gaylor was in contact with his New Hampshire attorneys during the extradition process and thus he was aware that the New Hampshire Supreme Court had dismissed his appeal by January 1 0 , 2000. See March 1 2 , 2001 Order, Case N o . 00-013-B at 3 . Thus, Gaylor cannot argue that his failure to collaterally challenge his conviction prior to January 9, 2001 is excused by the fact that he was contesting his extradition for part of the time during which the limitation period was running.

-12- Second, Gaylor cannot demonstrate that extraordinary

circumstances justify his request. Gaylor argues that it is

extraordinary that the U.S. Supreme Court did not determine that

the limitation period continued to run while a federal habeas

corpus petition was pending until after I dismissed the first

federal habeas petition. See Walker,

.

However, as the Supreme Court has recently recognized in a

similar context, “[i]t is hardly extraordinary that subsequently,

after petitioner’s case was no longer pending, [the Supreme

Court] arrived at a different interpretation [of § 2244(d)].”

Gonzalez v . Crosby, 125 S . C t . 2641, 2650 (2005). Nor can Gaylor

claim that my failure to warn him of the potential consequences

of the dismissal of the first federal petition was extraordinary.

Federal law simply does not require such warnings. Pliler v .

Ford,

(2004). Finally, Gaylor cannot credibly

claim that he was affirmatively misled into believing that the

limitation period would be tolled while his petition was pending.

In short, there are no extraordinary circumstances in this case

that justify equitable tolling.

-13- D. Gaylor is not entitled to relief from § 2244(d) based on his claim of actual innocence.

Neither the Supreme Court nor the First Circuit has

authoritatively determined whether a habeas corpus petitioner is

entitled to relief from § 2244(d) based on evidence that he is

“actually innocent.” In fact, the only First Circuit case that

even addresses the issue suggests that a claim of actual

innocence will not relieve a petitioner of his obligation to

comply with the statute. See David,

(“A couple

of cases have conjectured that actual innocence might override

the one-year limit . . . but to us these dicta are in tension

with the statute and are not persuasive.”) (citation omitted).

Actual innocence is not “an independent ground of habeas

relief, save (possibly) in extraordinary circumstances in a

capital case,”

, but it may act as a “‘gateway’” to

consideration of the merits of a petitioner’s constitutional

claims where those claims are otherwise procedurally barred as

successive or abusive. Schlup v . Delo,

9 8 , 315 (1995)

(quoting Herrera v . Collins,

9 0 , 404 (1993)). Under

Schlup, a petitioner must “support his allegations of

constitutional error with new reliable evidence -- whether it be

-14- exculpatory scientific evidence, trustworthy eyewitness accounts,

or critical physical evidence -- that was not presented at

trial.” Id. at 327. 8 This evidence must demonstrate that “it is

more likely than not that no reasonable juror would have

convicted [the petitioner] in light of the new evidence.” Id. at

324.

It is unclear whether the Supreme Court would extend Schlup

to reach claims like Gaylor’s. Although the analogy to Schlup is

reasonable, the First Circuit has expressed doubt as to the

decision’s applicability in the § 2244(d) context. Nevertheless,

I need not decide the question because Gaylor has failed to

produce any new reliable evidence that supports his actual

8 There is a circuit split as to the meaning of the term “new” in Schlup. Compare Gomez v . Jaimet,

(7th Cir. 2003) (“All Schlup requires is that the new evidence is reliable and that it was not presented at trial.”), with Amrine v . Bowersox,

(8th Cir. 2001) (“‘[E]vidence is new only if it was not available at trial and could not have been discovered earlier through the exercise of due diligence.’”) (quoting Amrine v . Bowersox,

(8th Cir. 1997)). In the context of granting leave to file a successive habeas corpus petition, the First Circuit has noted in dicta that new facts are those “which could not have been discovered through the exercise of due diligence at or before the time when [the petitioner] filed his first federal habeas petition.” Rodwell v . Pepe,

6 , 68 (1st Cir. 2003). My analysis of Gaylor’s actual innocence claim does not turn on the resolution of this conflict of authority.

-15- innocence claim.

Gaylor bases his claim of actual innocence on the following:

(1) the 1987 and 1988 limited partnership financial statements

and general ledgers, which were not presented to the jury;9 and

(2) the expert opinions of Stephen Lawlor, a certified public

accountant who was deposed but not called as a witness, and

Robert A . Shaines, an attorney who did not participate in

Gaylor’s trial defense. See Pet.’s Memo. of Law in Supp. of

Actual Innocence at 3-6. I discuss each in turn.

1. 1987 and 1988 Financial Documents

Gaylor states that the 1987 and 1988 financial documents

“fully document all partnership financial transactions and cash

withdrawals for the majority of the indictments,”

, but

he has failed to explain how the documents support his actual

innocence claim. In fact, the accounting firm that prepared the

financial statements noted that “[m]anagement [e.g., Gaylor] has

elected to omit substantially all of the disclosures ordinarily

included in cash basis financial statements . . . . these

9 Gaylor contends that the state’s trial exhibit 15 included a “completely inaccurate” version of the financial statements and general ledger for 1988. O b j . to Resp.’s Third Mot. for Summ. J. at 4 7 .

-16- financial statements are not designed for those who are not

informed about such matters.” 1988 Accountants’ Compilation

Report, Pet.’s Appx. 3 at 1 0 ; see also 1987 Accountants’

Compilation Report, Pet.’s Appx. 3 at 2 . Thus, the financial

statements shed no light on Gaylor’s innocence of the crimes of

which he was convicted. The general ledgers are similarly

unhelpful. Standing alone, the financial statements and general

ledgers do nothing to advance Gaylor’s actual innocence claim.

2. Expert Opinions

According to Gaylor’s expert disclosure, Lawlor was expected

to testify that Gaylor’s financial transactions were appropriate

in light of both customary methods of partnership accounting and

the limited partnership agreement. Supreme Court Pet. Supp. App.

at 4 2 . Lawlor was also expected to testify that many of the

accounting and bank records necessary to evaluate Gaylor’s

financial transactions no longer exist, and that those that do

exist demonstrate that Gaylor handled partnership funds properly.

¶ 4 3 . Similarly, Shaines reviewed the 1987 and 1988

financial documents and the limited partnership agreement, and

concluded that the amounts withdrawn by Gaylor “should have been

-17- considered a return of capital, a reimbursement of partnership

expenses, and/or an advance of his management fee under the terms

of the limited partnership agreement as amended.” Shaines Aff. ¶

5 ; see also T r . of Jan. 1 7 , 2003 Hrg. at 33 (same).

Although Lawlor and Shaines purport to use the 1987 and 1988

financial documents to demonstrate Gaylor’s innocence, their

predicted testimony does not qualify as “new reliable evidence”

under the Schlup framework. Their opinions are conclusory

interpretations of the partnership agreement and financial

documents, unsupported by specific explanation regarding Gaylor’s

financial transactions. As such, they lack the inherent

reliability required by Schlup. Moreover, both experts rely

heavily on the partnership agreement, which was admitted in

evidence at trial and therefore cannot be “new.”

E. Gaylor’s extradition claims are subject to § 2244(d).

Gaylor argues that § 2244(d) does not apply to his

extradition claims. His argument is difficult to follow but it

appears to be based on the assumption that he is in federal

custody rather than state custody because he is subject to the

control of the President pursuant to

. This

-18- argument is unavailing because Gaylor plainly is in custody

pursuant to the judgment of a state court even though he is also

subject to presidential oversight. As such, his claims are

governed by § 2244(d).

F. Gaylor cannot rely on Rule 60(b)(6) to reopen his first habeas corpus petition.

Gaylor alternatively argues that I should reopen his first

federal petition pursuant to Rule 60(b)(6) because my ruling

dismissing his petition is inconsistent with Rhines v . Weber, 161

L . Ed. 2d 440 (2005), a recent Supreme Court decision that

requires a habeas court to stay rather than dismiss a petition

that contains both exhausted and unexhausted claims. I reject

this argument because it is based on a misreading of Rhines.

In Rhines, the Supreme Court authorized a court to stay

rather than dismiss a habeas corpus petition containing

unexhausted claims if the petitioner can establish good cause for

his failure to exhaust his claims in state court. Id. at 451.

As I have explained, Gaylor cannot satisfy this requirement.

Thus, the premise on which his Rule 60(b)(6) argument is based is

incorrect.

-19- III. CONCLUSION

The warden’s motion for summary judgment (Doc. N o . 39) is

granted. Gaylor’s habeas corpus petition (Doc. N o . 3 ) is denied.

SO ORDERED.

/ s / Paul Barbadoro Paul Barbadoro United States District Judge

January 2 4 , 2006

cc: Gregory Alan Gaylor, pro se Karen E . Huntress, Esq.

-20-