LaRue v. NH Adult Parole Board 07-CV-096-SM 01/30/08 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Darrell J. LaRue, Petitioner

v. Civil No. 07-cv-96-SM Opinion No.

New Hampshire Adult Parole Board. Respondent

O R D E R

Petitioner seeks federal habeas relief under the provisions

of

, on a number of asserted grounds. The

respondent has answered, correctly pointing out, inter alia, that

the petition is untimely under the Antiterrorism and Effective

Death Penalty Act of 1996 ("AEDPA"),

et se a .

The parties have filed motions for summary judgment addressing

the timeliness issue.

AEDPA establishes a one-year limitations period for federal

habeas petitions filed by state prisoners.

(d)(1). Putting aside exceptions not pertinent here, the

one-year limit runs from the time that the state court judgment

of conviction became final by the conclusion of direct review or

the expiration of the time for seeking i t . (Emphasis added.)

(d)(1)(A). Excluded from that one-year period is

"[t]he 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 . . .

(d)(2).

Here, petitioner was convicted and sentenced in state court,

pursuant to his guilty pleas, on three counts of driving while

under the influence of alcohol, and three counts of transporting

alcohol. Under the terms of his plea agreement he waived his

right to direct appeal of those convictions. In fact, petitioner

did not appeal.

Judgment was entered against petitioner on January 28, 2005,

and the thirty day period available for him to seek direct review

by the New Hampshire Supreme Court expired on February 28, 2005

(February 27, 2005, is thirty days from January 28, but fell on a

Sunday). The AEDPA limitations period began to run, then, on

March 1, 2005. Over ten months later, on January 19, 2006,

petitioner filed a motion for post-conviction or collateral

relief (to vacate his pleas, convictions and sentence) in the

state court. That pleading tolled (but did not reset) the

running of AEDPA's limitations period. By that point 323 days

had run, leaving petitioner with 42 days in which to file his

federal habeas petition.

2 Petitioner's post-conviction motion was finally resolved by

the New Hampshire Supreme Court on December 13, 2006, which

started the tolled AEDPA period running again. The federal

petition had to be filed by January 25, 2007. Petitioner did not

file his federal habeas petition until March 30, 2007, well after

the limitations period had expired. See David v. Hall, 318 F .3d

343 (1st Cir. 2003) (explaining calculation of AEDPA limitations

period).

Conclusion

The petition is necessarily dismissed as untimely since it

was filed beyond the expiration of AEDPA's one-year limitations

period, even accounting for periods of tolling. Petitioner's

motion for summary judgment (document no. 7) is denied.

Respondent's motion for summary judgment (document no. 8) is

granted.

SO ORDERED.

St'even J./McAuliffe thief Judge

January 30, 2008

cc: Darrell J. LaRue, pro se James T. Boffetti, Esq. Stephen Fuller, NHAG's Office John Vinson, NH DOC

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