Graham v . Warden, NNHCF 07-CV-08-PB 11/30/07

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Montriville Graham

v. Civil N o . 07-cv-08-PB Opinion N o .

Larry Blaisdell, Warden, Northern New Hampshire Correctional Facility

MEMORANDUM AND ORDER

Montriville Graham was convicted on June 2 4 , 1997, of

sexually assaulting his six-year-old step-daughter, DG. Graham

made several unsuccessful efforts to challenge his conviction in

state and federal court. He began this action on January 5 , 2007

by filing a habeas corpus petition claiming ineffective

assistance of counsel and prosecutorial misconduct. Graham’s

jailer, the Warden of the Northern New Hampshire Correctional

Facility, argues in a motion for summary judgment that Graham’s

petition is barred by the one-year statute of limitation for

federal habeas corpus petitions established by the Antiterrorism

and Effective Death Penalty Act (“AEDPA”). For the reasons set

forth below, I grant the Warden’s motion. I. BACKGROUND

DG resided primarily with her father, Randolph Gregory, but

visited the Graham home once or twice a week, sometimes for

overnight visits. At times, Graham was alone with DG while his

wife, JoAnn, was at work. In January 1997, when DG was five

years old, she told her father that Graham had been sexually

assaulting her. Gregory and JoAnn Graham reported the allegation

to the Newport Police Department and an investigation ensued.

As part of the investigation, detectives executed a search

warrant at Graham’s home, finding a pair of black and orange

underwear and a pornographic videotape. D r . Steven Kairys, an

expert in child sexual assault, examined DG and found that her

hymen was unusual for a five-year-old although her condition was

not necessarily indicative of penetration.

In February 1997, JoAnn Graham agreed to wear a body wire to

confront Graham about the allegations. While Graham did not

admit to the abuse in the taped conversation, he did not deny it

and made statements that could be characterized as implied

admissions. For example, Graham stated: “There’s something in

me that has something to do with some sort of monster, I intend

-2- t o , to get rid of it.” Transcript of Taped Recorded Conversation

(“Transcript”) at 1 1 . “If, i f , i f , of what my worst fears are

about, okay. She was not raped, she was not forced, okay. It

wasn’t like we . . . if there were anything wrong with her, she

did that herself. You know. Most children do.” Transcript at

13 (ellipses appear in the original). “You don’t wake up in the

morning to look in the mirror and wonder what you’re looking a t ,

okay. You don’t know what that’s like.” Transcript at 1 4 .

During the conversation, Graham repeatedly encouraged JoAnn to

avoid cooperation with the police.

On April 3 , 1997, Graham was indicted on two counts of

aggravated felonious sexual assault. One count alleged a pattern

of sexual assault by sexual contact with DG, and the other

alleged a pattern of sexual assault by sexual intercourse with

DG. See

-A:1; 632-A:2.

At trial, DG testified that Graham had engaged in sexual

intercourse with her and that she had touched his penis on more

than one occasion. Trial Transcript at 21-23 (hereinafter

“Tr.”). She identified an orange and black pair of underwear and

testified that she saw Graham wearing them without his pants.

-3- She also identified an X-rated adult movie that she testified to

having watched with Graham. T r . at 24-25. On cross-examination,

defense counsel questioned DG about other movies she had seen and

whether she had ever confused movies or television with reality.

Tr. at 26-33. DG also testified on cross-examination that she

had watched an X-rated adult movie with her friend, T S . T r . at

33-35.

Gregory, D r . Kairys, and a Newport Police Department

detective also testified for the state. As part of the

detective’s testimony, the jury heard the recording of the body

wire conversation and received a transcript of the conversation.

Graham took the witness stand and denied that he had ever

sexually assaulted DG. He cited instances in which DG had

imitated behavior depicted on television shows (i.e., pretending

to have babies after watching a show about childbirth on the

Discovery Channel) and stated that she had formed false beliefs

about the world on the basis of television shows and movies

(i.e., concluding that her toys could walk and talk after

watching the movie Toy Story and that dinosaurs were real after

watching the movie The Land Before Time). He testified that he

-4- had twice caught DG watching X-rated adult movies with one of her

friends. He explained that DG often saw him in his underwear

because he slept in his underwear and she routinely came into his

room while he was sleeping. Finally, he explained his failure to

deny the sexual assault to his wife during their recorded

conversation because, “I knew she couldn’t handle the idea of

pitting me against her daughter.” T r . at 8 1 .

After a two-day jury trial, Graham was found guilty of

engaging in a pattern of sexual assault by sexual contact, but he

was acquitted of sexual intercourse charge. The New Hampshire

Supreme Court affirmed his conviction on January 2 0 , 1999.

Graham first petitioned for federal habeas relief on October 3 1 ,

2002, but his petition was dismissed without prejudice on January

1 3 , 2003. Graham filed his first state habeas petition on

January 2 3 , 2003. The Coos County Superior Court denied Graham’s

petition on April 1 4 , 2003. Graham appealed to the New Hampshire

Supreme Court, which denied his appeal on July 2 4 , 2003. Graham

filed his second state habeas petition on or about February 2 8 ,

2005. The Coos County Superior Court denied the petition on

September 8 , 2005. Graham filed a motion for reconsideration on

-5- September 2 6 , 2005, but the motion was denied on October 1 4 ,

2005. Graham appealed this decision, and his appeal was denied

on December 1 3 , 2005. Graham filed a motion for reconsideration

on December 2 0 , 2005, but this motion was denied on January 1 3 ,

2006.

Graham filed his present petition in this court on January

5 , 2007. He claims that: (1) trial counsel was ineffective when

he failed to contact JoAnn Graham and Wanda Belloir and misled

Graham about his failure to contact them; and (2) the prosecutor

engaged in misconduct when she alleged that Graham had engaged in

sexual intercourse with DG, argued at trial that JoAnn Graham

believed DG’s story, and suppressed JoAnn’s exculpatory testimony

by threats and the issuance of a misdated subpoena.

II. STANDARD OF REVIEW

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). A party seeking summary judgment must first identify the

-6- absence of a genuine issue of material fact. Celotex Corp. v .

Catrett,

1 7 , 323 (1986). The burden then shifts to the

nonmoving party to “produce evidence on which a reasonable finder

of fact, under the appropriate proof burden, could base a verdict

for i t ; if that party cannot produce such evidence, the motion

must be granted.” Ayala-Gerena v . Bristol Myers-Squibb Co.,

6 , 94 (1st Cir. 1996); see Celotex,

.

III. ANALYSIS

The warden argues that he is entitled to summary judgment

because Graham’s petition is barred by AEDPA’s one-year statute

of limitation. Graham argues in the alternative that: (1) his

petition is not time-barred because he filed it within a year

after discovering the factual basis for his claims; (2) the

statute of limitation period should be tolled because of his

attorney’s negligence; and (3) the statute should be disregarded

because he is actually innocent. I reject all three of Graham’s

arguments.

A. AEDPA Statute of Limitation

AEDPA provides that a one-year period of limitation shall

-7- apply to a petition for writ of habeas corpus brought by a person

in custody pursuant to the judgment of a state court.

(d)(1). AEDPA specifies that:

[t]he limitation 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;

(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).

Notably, the time during which a properly filed application

for post-conviction relief or collateral review is pending in

state court does not count toward the period of limitation.

(d)(2).

-8- Graham argues that his petition is not time-barred because

he filed it within one year of the date on which the factual

predicate for his claims could have been discovered through the

exercise of due diligence, pursuant to

(d)(1)(D).

Graham’s petition is based on what he claims is new information

described in affidavits from JoAnn Graham and Wanda Belloir.1 In

his second state court habeas proceedings, Graham stated that he

1 JoAnn Graham’s affidavit consists largely of her own conclusions and facts already known to the defendant and developed at trial. She states that DG was confusing the pornographic movies she had watched with her friend with reality when DG made the allegations, that Graham was not alone with DG often enough to have had the opportunity for a pattern of assault, and that she knew Graham had exonerated himself after the body wire conversation. JoAnn’s affidavit also alleges prosecutorial misconduct. She states that the prosecution misrepresented facts at the trial, threatened her with a perjury charge, wrongfully excluded her from testifying at trial, and presented irrelevant evidence (the underwear and the X-rated adult video). Similarly, Wanda Belloir’s affidavit consists mainly of her own conclusions, hearsay, and facts already known to the defendant and developed at trial. She states that she was never called as a witness, that her daughter TS played with DG, and that TS and DG watched a pornographic video together. Belloir reported that DG had told TS that Graham made DG suck his penis and that the pornographic video had black men in i t . Finally, she states that she had seen DG trying to separate Gregory and his girlfriend by creating problems between them and that DG made the allegations against Graham with the intent of separating her mother and Graham.

-9- received JoAnn Graham’s affidavit in August 2003 and Belloir’s

affidavit in August 2004.

Assuming for purposes of analysis that Graham discovered the

factual predicate for his current claims when he obtained the

second affidavit, the AEDPA limitation period began to run no

later than August 2004. Graham waited six months after he

obtained the second affidavit before he filed his second state

habeas petition on February 2 8 , 2005. The AEDPA limitation

period was then tolled from February 2 8 , 2005, until the court

disposed of the petition by denying his final motion for

reconsideration on January 1 3 , 2006. Thereafter, the limitation

period began to run again and expired in July 2006.

Graham did not file his petition in this court until January

5 , 2007, well after the expiration of the statute of limitation.

Therefore, unless the statute was equitably tolled, or may be

disregarded because Graham was actually innocent, his petition is

untimely and must be dismissed.

B. Equitable Tolling

AEDPA’s one-year limitation period may be equitably tolled

-10- upon a showing of exceptional circumstances.2 Neverson

Farquharson,

2 , 41 (1st Cir. 2004). The party 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 v .

DiGuglielmo,

0 8 , 418 (2005). The First Circuit

recently created a list of five factors to assist in determining

whether equitable tolling is appropriate in a habeas case:

1 ) The petitioner’s own diligence in pursuing habeas relief, 2 ) Whether some extraordinary circumstance prevented the petitioner from making a timely filing, 3 ) The petitioner’s diligence in pursuit of other post- conviction remedies and the process already afforded in the state system, 4 ) Any prejudice to the prosecution that would result from tolling and possible retrial, 5 ) The fact that equitable tolling is not available in cases of dubious merit, and 6 ) Whether or not the case is a capital case and whether or not the petitioner has been sentenced to death.

2 The Supreme Court has not held explicitly that § 2244(d) allows for equitable tolling, although the Court has applied an equitable tolling analysis to § 2244(d) claims in cases where the parties agree that equitable tolling is available. See Lawrence v . Florida,

(2007). In 2004, however, the First Circuit held that AEDPA’s limitation period in § 2244(d) is subject to equitable tolling in certain cases. Neverson, 366 F.3d at 4 1 . In the absence of a decision by the Supreme Court, I am bound to apply the law of the First Circuit.

-11- Trapp v . Spencer,

3 , 61 (1st Cir. 2007) (internal

citations omitted). Equitable tolling is appropriate only when

circumstances out of the litigant’s control have prevented the

litigant from filing promptly. See, e.g., Neverson, 366 F.3d at

4 2 ; Lattimore v . Dubois,

6 , 55 (1st Cir. 2002).

Equitable tolling is not appropriate in this case because

Graham has failed to show that he diligently pursued his rights.

Graham blames his inaction on his attorney’s negligence.

However, the First Circuit has recognized that attorney

negligence is not ordinarily grounds for equitable tolling.

Trapp,

0 . In any event, even if Graham were able to

blame his attorney for his failure to obtain JoAnn Graham’s and

Belloir’s affidavits earlier, Graham has failed to offer any

explanation for the six-month delay between August 2004, when he

obtained the second affidavit, and February 2005, when he filed

his second state court habeas petition. Nor has he explained why

he delayed his current federal habeas corpus petition by almost

another year after the state court rejected his second habeas

petition. These unexplained delays preclude Graham from claiming

the benefit of equitable tolling.

-12- Addressing the other Trapp factors, I note first that there

are no extraordinary circumstances present here. Additionally,

Graham did not demonstrate diligence in applying for other post-

conviction remedies. This is not a capital or death penalty

case. The petition is also of dubious merit because, even in

light of JoAnn Graham and Belloir’s affidavits, ample evidence

was produced at trial to convict Graham. Finally, the

prosecution would be significantly prejudiced if I allowed Graham

to invoke equitable tolling because more than ten years have

passed since the original trial. The prosecution’s primary

witness, DG, was only six years old at the time of trial and was

only four and five years old when she was victimized. The need

for finality is particularly strong when dealing with a young

victim of sexual assault because of the difficulty and trauma

involved in revisiting the past.

For reasons stated above, equitable tolling of the AEDPA

limitation period is not appropriate in this case.

C. Actual Innocence

Graham also raises a claim of actual innocence. There is no

statutory exception to the AEDPA statute of limitation for actual

-13- innocence, although Congress “clearly knew how to provide such an

escape hatch.” See David v . Hall,

(1st Cir.

2003) (noting that AEDPA §2244(b)(2)(B)(ii) is an example of

Congress providing extra protection for claims of actual

innocence). The Supreme Court has not spoken on this issue, but

the First Circuit has noted that while there is favorable dicta

in a few cases to suggest that actual innocence should “override”

AEDPA’s one-year limitation, “to us these dicta are in tension

with the statute and are not persuasive.” See id.

Even assuming, arguendo, that a properly supported claim of

actual innocence could exempt an untimely habeas petition from

AEDPA’s one-year limitation period, Graham’s claim fails because

he cannot demonstrate actual innocence. In Schlup v . Delo,

9 8 , 324 (1995), the Supreme Court noted in a somewhat

different context that a petitioner claiming actual innocence

must support his allegation with new, reliable evidence that was

not presented at trial. Schlup,

. Further, to

make the required showing, “petitioner must show that it is more

likely than not that no reasonable juror would have convicted him

-14- in the light of the new evidence.” Id. at 327. 3

The “newly discovered evidence” in this case does not come

close to establishing an actual innocence claim. As noted in

Herrera v . Collins,

9 0 , 417 (1993), motions for new

trial based solely on affidavits are disfavored because of the

potential for abuse, and the Herrera court noted that the

likelihood of abuse is “as great-or-greater” in the habeas

“actual innocence” context. Herrera, 506 U.S. at 417. Just as

in Herrera, the affidavits in this case are largely based on

hearsay and contain inconsistencies. See id. at 417-18. As the

Court in that case stated:

3 AEDPA changes the Schlup “more likely than not” standard of proof to the more stringent “clear and convincing” standard at least in the context where a petitioner seeks to justify a second or successive petition based on a claim of actual innocence. See

(b)(2)(B)(ii). It is unclear which standard of proof should apply in a case such as this one where a habeas petitioner seeks to justify failure to comply with the AEDPA statute of limitations based on an actual innocence claim. See Limin Zheng, Comment, Actual Innocence as Gateway Through the Statute-of-Limitations Bar on the Filing of Federal Habeas Corpus Petitions, 90 Calif. L . Rev. 2101, 2139-41 (2002) (discussing the silence of AEDPA and the Supreme Court on this issue). The distinction is not relevant in this case because, as explained above, Graham is unable to meet even the less stringent “more likely than not” standard.

-15- Since the statements in the affidavits contradict the evidence received at trial, the jury would have had to decide important issues of credibility. But coming 10 years after petitioner’s trial, this showing of innocence falls far short of that which would have to be made in order to trigger the sort of constitutional claim which we have assumed, arguendo, to exist.

Id. at 418-19.

The same is true here. Graham argues that JoAnn Graham’s

affidavit contains exculpatory information, but, in fact, the

affidavit contains little more than JoAnn Graham’s own

conclusions. For example, she alleges that Graham did not commit

an offense against DG, that after the taped conversation JoAnn

“knew he had exonerated himself,” and that the State presented

irrelevant evidence. Moreover, JoAnn’s allegations were known to

Graham at the time of trial. For example, she asserts that DG

allegedly confused fantasy with reality, that Graham was not

alone with DG frequently enough to have opportunity to abuse DG,

and that JoAnn was never called by the state as a witness. JoAnn

also alleges in her affidavit that the prosecution threatened her

and that she was issued a misdated subpoena, but these

allegations shed no light on Graham’s guilt or innocence. JoAnn

Graham’s identity was known to Graham at the time of trial and

-16- there is nothing in her affidavit that could not have been

discovered through the exercise of due diligence at the time of

trial.

Belloir’s identity was also known to Graham at the time of

trial and, similarly, there is nothing in her affidavit that

could not have been discovered earlier by Graham through due

diligence. Belloir’s affidavit is also based almost entirely on

her own legal conclusions and allegations that were already known

at the time of trial. The only aspect of Belloir’s affidavit

that is new and even remotely helpful to Graham’s case is her

statement that “I have also seen [DG] trying to separate [sic]

her dad and his girlfriend by creating problems between them.”

Aff. of Belloir at ¶ 9. However, Belloir provides nothing to

substantiate this allegation, and, in any event, DG’s conduct

with respect to her father, Randolph Gregory, and his girlfriend

has no direct bearing on Graham’s guilt or innocence.

Even if Graham could establish that the affidavits

constitute new evidence, there was ample incriminating evidence

produced at trial to support his conviction even in light of

these affidavits. Graham has failed to show that it is more

-17- likely than not that no reasonable juror would have convicted him

in the light of the affidavits. Therefore, Graham’s claim of

actual innocence does not justify setting aside the AEDPA

limitation period.

IV. CONCLUSION

For the reasons stated above, the Warden’s motion for

summary judgment (Doc. N o . 8 ) is granted. The Clerk is directed

to enter judgment accordingly.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

November 3 0 , 2007

cc: Montriville F. Graham, pro se Susan P. McGinnis, Esq.

-18-