McGinn v . NH State Prison CV-07-88-JL 08/14/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James McGinn

v. Civil No. 07-88-JL Opinion No.

Interim Warden, New Hampshire State Prison

MEMORANDUM AND ORDER

The petitioner, James McGinn, seeks habeas corpus relief

from his 2001 state court conviction for felonious sexual

assault, claiming various constitutional infirmities attendant to

those proceedings. See

. The respondents move

for summary judgment, asserting that McGinn’s petition is barred

by the one-year statute of limitations under the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). See

(d)(1). McGinn objects, arguing that while his petition

was untimely, his late filing is excused by the doctrine of

equitable tolling.

This court has jurisdiction over McGinn’s petition under

(federal question) and AEDPA (habeas relief for

state prisoners) in particular. See

(a). For

1 the reasons stated below, the court grants the respondents’

motion for summary judgment.

I. BACKGROUND

In 2001, McGinn was convicted in Rockingham County Superior

Court of five counts of felonious sexual assault. See N.H. Rev.

Stat. Ann. 632-A:3. He was sentenced to consecutive three-and-a-

half to seven year prison terms on two of the counts, and

received suspended sentences on the remaining convictions.

McGinn, represented by counsel,1 brought a timely appeal in the

New Hampshire Supreme Court, arguing that the evidence was

insufficient to support the verdict and that the trial court

erred in various evidentiary rulings. The court rejected these

arguments, affirming his conviction, and, on August 1 5 , 2002,

denied his motion to reconsider that ruling. On November 1 3 ,

2002--90 days after his motion for reconsideration was denied--

McGinn’s right to petition the United States Supreme Court for a

writ of certiorari expired and his conviction became final. See

Sup. C t . R. 1 3 .

1 McGinn was represented by counsel through the New Hampshire Supreme Court’s denial of application for post conviction relief on January 1 3 , 2006.

2 On August 8 , 2003, McGinn moved the state trial court for a

new trial, which was denied, as was his ensuing request for

reconsideration. He appealed to the New Hampshire Supreme Court,

which affirmed the denial of the motion insofar as it challenged

McGinn’s conviction, but remanded the case to the superior court

to determine (1) whether imposing consecutive sentences was an

abuse of discretion, and (2) whether the failure to raise that

issue at sentencing constituted ineffective assistance of

counsel. The superior court ultimately concluded that its

sentencing order was a sustainable exercise of discretion and

that trial counsel had not been ineffective. McGinn again sought

review of the superior court’s ruling in the New Hampshire

Supreme Court, but on January 1 3 , 2006, review was denied.

Proceeding pro s e , McGinn filed a habeas petition in this

court on March 2 8 , 2007. The Magistrate Judge recommended that

the petition be dismissed as untimely. This court, based on an

incomplete record of the state court proceedings, rejected the

magistrate’s recommendation and allowed McGinn’s petition to

proceed. The respondents have since moved for summary judgment,

arguing that McGinn’s petition is in fact barred by AEDPA’s

statute of limitations.

3 II. APPLICABLE LEGAL STANDARD

Summary judgment is appropriate where the “pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). The party seeking summary judgment must

first identify the absence of a genuine issue of material fact.

See Celotex Corp. v . Catrett,

(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 also In re Spigel,

7 , 31 (1st Cir.

2001).

III. ANALYSIS

AEDPA provides for a one-year period of limitations during

which “a person in custody pursuant to the judgment of a State

court” may apply for federal habeas relief. See

(d)(1). The limitations period runs from “the date on which

the judgment became final by the conclusion of direct review or

the expiration of the time for seeking such review.”

2244(d)(1)(A). Finality thus attaches when “the time for a

petition for certiorari [elapses] or a petition for certiorari

[is] finally denied.” Derman v . United States,

4 , 40

(1st Cir. 2002) (quoting Griffith v . Kentucky,

, 321

n.6 (1987)). For present purposes, McGinn’s conviction became

final, and the AEDPA period of limitations began to run, when his

right to petition the Supreme Court for certiorari lapsed on

November 1 3 , 2002.

A. Statutory tolling

Under AEDPA, the statutory period is tolled while a state

court prisoner seeks post-conviction relief in state court:

The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent claim or judgment is pending shall not be counted toward any period of limitations under this subsection.

(d)(2). Here, 267 days elapsed between the date

McGinn’s conviction became final and August 8 , 2008, the date he

moved for a new trial in the superior court. As the First

Circuit has previously noted, however, the filing of post-

conviction relief “does not reset the clock . . . , but merely

stops it temporarily, until the relevant applications for review

are ruled upon.” Trapp v . Spencer,

3 , 58-59 (1st Cir.

5 2007). The limitations period, therefore, began to run once

again on January 1 3 , 2006, when the New Hampshire Supreme Court

declined to review the superior court’s decision on McGinn’s

motion for a new trial on remand,2 and continued to run until he

filed his habeas petition on March 2 8 , 2007, 439 days later.

Even accounting for the periods of tolling, McGinn filed his

habeas petition 709 days after his judgment became final, and

nearly one year after the AEDPA’s limitations period had expired.

B. Equitable tolling

McGinn does not dispute the fact that his habeas petition

was untimely. His argument is that, as a pro se petitioner, he

“is entitled to equitable tolling of the one year limitations

period due to his good faith misinterpretation of the applicable

AEDPA rules.” Under his misunderstanding of the law, McGinn

believed “he had one year from the end of all timely filed state

court litigation to file this petition . . . plus the 90 days to

file a cert petition.” He argues that, as “he was acting pro s e ,

2 An “application for state postconviction review is . . . not ‘pending’ after the state court’s postconviction review is complete, and § 2244(d)(2) does not toll the 1-year limitations period during the pendency of a petition for certiorari [or the 90-day period for filing one].” Lawrence v . Florida, 127 S . C t . 1079, 1083 (2007) (the Supreme Court of the United States “is not a part of a State’s post-conviction procedures”).

6 with no legal training and a lay person’s understanding of the

law,” his misunderstanding of the law--and consequent late filing

of his habeas petition--should equitably toll the AEDPA statute

of limitations.

The First Circuit has clearly stated that equitable tolling

of the AEDPA limitations period “is the exception rather than the

rule; resort to its prophylaxis is deemed justified only in

extraordinary circumstances.” Trapp,

9 ; see also

Brackett v . United States,

0 , 67 (1st Cir. 2001)

(describing equitable tolling as a “narrow safety valve[]”

reserved for “instances of clear injustice”). It is limited to

cases where circumstances out of the petitioner’s control have

prevented him from promptly filing for habeas relief. See

Lattimore v . Dubois,

6 , 55 (1st Cir. 2002). As the

party seeking to invoke the doctrine of equitable tolling, McGinn

“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,

(2005).

Equitable tolling is not appropriate in this case. McGinn

has failed to show that he diligently pursued his rights, and

makes no argument that extraordinary circumstances prevented him

from filing his petition within the limitations period. Instead,

7 McGinn, who filed his habeas petition pro s e , blames his inaction

on a lack of familiarity with the law. The First Circuit has

previously squarely addressed and rejected this very argument:

The petitioner’s assertion that his pro se status somehow entitles him to equitable tolling is wide of the mark. While pro se pleadings are to be liberally construed, the policy of liberal construction cannot plausibly justify a party’s failure to file a habeas petition on time.

Donovan v . Maine,

7 , 94 (1st Cir. 2002) (internal

citation omitted); see also Lattimore, 311 F.3d at 55 (“Ignorance

of the law alone, even for incarcerated pro se prisoners, does

not excuse an untimely filing”). McGinn, represented by counsel,

waited 267 days after his direct appeal was denied before filing

for post-conviction relief. Even assuming that McGinn--and his

attorney--mistakenly believed he could not file his pro se habeas

petition until his application for post-conviction relief

concluded, he has failed to offer any explanation for the 439

days that passed before he actually filed his petition. In light

of these unexplained delays, McGinn cannot claim the benefit of

equitable tolling. See Neverson v . Farquharson,

2 , 42

(1st Cir. 2004) (equitable tolling is “not available to rescue a

litigant from his own lack of due diligence”).

In support of his request for equitable tolling, McGinn

argues that “until the decision in Trapp [which was decided March

8 1 , only a few weeks before McGinn filed this petition on March

2 8 , 2007], it was not as clear that the one year AEDPA limitation

period covered the time before and after completion of timely

collateral challenges in state court.” The court rejects this

argument. As mentioned earlier, AEDPA clearly states, and has

stated since its enactment in 1996, that the “time during which a

properly filed application for State post-conviction [relief] is

pending shall not be counted towards any limitations period”

established by AEDPA.

(d)(2). Indeed, dating

back to 2001, the Supreme Court has recognized that AEDPA’s

tolling provision “protect[s] a state prisoner’s ability later to

apply for federal habeas relief while state remedies are being

pursued.” Duncan v . Walker,

, (2001); see Delaney v .

Matesanz,

, 11 (1st Cir. 2001). In light of this clear

statement of the law, coupled with the fact that McGinn was

represented by counsel while he pursued post-conviction relief,

the court rejects the argument that neither he nor his counsel

could decipher the tolling provision of Section 2244(d)(2). See

Trapp,

(“Generally, in civil cases, ‘garden-

variety’ attorney negligence, even if excusable, is not grounds

for equitable tolling.”).

9 IV. CONCLUSION

McGinn’s petition is necessarily dismissed as untimely since

it was filed beyond the expiration of AEDPA’s one-year

limitations period. Therefore, for the reasons stated above,

being careful “to avoid upsetting the ‘strong concern for

finality’ embodied in § 2254,” Neverson, 366 F.3d at 42 (quoting

Brackett,

8 ) , the court grants the respondents’

motion for summary judgment.

SO ORDERED.

Jt Joseph N. Laplante United States District Judge

Date: August 1 4 , 2008

cc: Michael J. Sheehan, Esq. Thomas E . Bocian, Esq. Stephen D. Fuller, Esq.

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