Sokorelis v . NHSP Warden 07-CV-335-SM 04/03/09 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Jonathan Sokorelis, Petitioner

v. Civil N o . 07-cv-335-SM Opinion N o .

Bruce W . Cattell, Warden, New Hampshire State Prison, Respondent

O R D E R

Jonathan Sokorelis, a state prisoner, seeks habeas corpus

relief. See

. Respondent, asserting that

Sokorelis is not entitled to relief, moves for summary judgment.

Sokorelis objects. For the reasons given, respondent’s motion

for summary judgment is granted.

Background

In November of 1994, Sokorelis was tried on one count of

first-degree murder and two counts of attempted murder in the New

Hampshire Superior Court. On the third day of jury

deliberations, petitioner decided to plead guilty to one count of

second-degree murder and two counts of attempted murder, thereby

eliminating the possibility of a guilty verdict on the first-

degree murder charge, and its concomitant mandatory sentence to

life imprisonment without the possibility of parole. There was

no plea agreement, beyond the state’s willingness to accept the pleas in exchange for dropping the first-degree murder charge

then under deliberation. After Sokorelis pled guilty to the

three separate charges (involving separate victims), the

following exchange with the court occurred:

The Court: Do you have any questions at all, sir?

The Defendant: No.

The Court: Counsel, do you have something?

M s . Rundles: Yes, your Honor. Um, although this was (Prosecutor) a naked plea, there was one understanding between counsel. The defendant would agree to waive his right to petition for sentence suspension for a ten-year period, which — a right under [RSA] 651-20.

Mr. Jeffco: That is-that is correct, your Honor. As (Defense Counsel) pointed out, it is part of negotiations to get us to that point, sir. And it was and is a waiver of his right t o , u h , petition the superior court for sentence reduction pursuant to RSA 651:20 for a ten-year period.

The Court: Mr. Sokorelis, I’ll ask you individually: RSA 61:20, one of the statutes — 651:20, one of the statutes of the state of New Hampshire, allows an individual sentenced to state prison to petition the court once every four years, but not sooner, u h , for a review of the sentence. Usually, the sentencing judge or some other judge, if that sentencing judge is not available — u h , and that is a statutory right which you have. My understanding is as a part of the — that the only agreement, apparently, between you and the state is you’re waiving, u h , your rights under that statute for a period of ten years?

2 The Defendant: Yes, sir, I am.

The Court: All right.

M s . Rundles: And, your Honor, just for the record, I want to make clear that the waiver was in exchange for the nol pros of the first-degree indictment. There was no other rec — agree [sic] to recommend anything.

The Court: I understand.

Approximately one month after he entered his guilty pleas,

Sokorelis was sentenced to forty years to life on the second-

degree murder charge and ten to twenty years on each of the two

attempted murder charges, consecutive to each other and to the

murder sentence. Sokorelis is currently incarcerated in the New

Hampshire State Prison. His sentencing document states, among

other things: “Defendant has waived his rights under RSA 651:20

for a period of 10 years.” RSA 651:20 provides:

“Notwithstanding any other provision of law . . . the sentence to imprisonment of any person may be suspended by the sentencing court at the time of imposition of the sentence or at any time thereafter in response to a petition to suspend sentence which is timely brought. . . .”

Thus, the only right Sokorelis waived was his state statutory

right to petition the sentencing court for a suspension of his

sentence within ten years. In other words, he plainly did not

waive his right to collaterally attack his conviction on

3 constitutional grounds in either the state or federal courts, or

to seek any other post-sentencing relief.

After trial, Sokorelis actually did seek sentence relief,

from the state’s sentence review division. The record does not

include Sokorelis’ petition to the review division, so the

arguments he raised are unknown. But, on September 1 , 1995,

after considering the matter, the review division affirmed

petitioner’s sentence for second-degree murder, and increased the

two consecutive attempted-murder sentences to fifteen to thirty

years each.

On July 3 0 , 2004, a few months before the ten-year waiver

period expired, Sokorelis filed a pro se motion in state court

for leave to withdraw his guilty pleas. He subsequently retained

counsel, who refiled the motion in late October. Petitioner

argued that his guilty pleas were improvidently entered, in that

they had not been knowing, intelligent or voluntary. That motion

was denied on May 2 4 , 2005, after hearing. Petitioner appealed

to the New Hampshire Supreme Court, which affirmed the trial

court’s decision.

On October 1 5 , 2007, Sokorelis filed the pending federal

petition for a writ of habeas corpus. He again contends that his

4 guilty pleas were not knowing, intelligent, or voluntary,

primarily because he was unaware of the consequences of those

pleas with regard to sentencing. Specifically, Sokorelis argues

he was not aware that his guilty pleas exposed him to the

imposition of consecutive sentences, and that the only reason he

agreed to plead guilty was that he understood he would receive

only one sentence rather than three.

The magistrate judge initially recommended that the petition

be dismissed as untimely, but reconsidered, leaving the issue of

timeliness for future resolution. Respondent now moves for

summary judgment, arguing that Sokorelis’ petition is time-

barred. Alternatively, if the petition is deemed timely,

respondent says petitioner is not entitled to habeas relief on

the merits, because his pleas were provident when entered, and

were fully consistent with federal constitutional requirements.

Discussion

It is undisputed that Sokorelis filed his petition well

beyond the time limit established by the Antiterrorism and

Effective Death Penalty Act (“AEDPA”). Sokorelis asserts,

however, that the AEDPA limitations period should be equitably

tolled due to exceptional circumstances. He argues that he

diligently pursued the relief he now seeks by moving in state

5 court to withdraw his guilty pleas, albeit ten years after

judgment was entered. He contends that he could not so earlier

due to an exceptional circumstance, i.e., his own belief that the

waiver of rights under RSA 651:20 to which he agreed included a

bar to challenging the constitutionality of his guilty pleas

during the same ten-year period. Petitioner’s argument is not

persuasive.

Under AEDPA, a one-year period of limitation applies to

applications for writs of habeas corpus, and it runs from the

date of final judgment. See

(d)(1). The court

of appeals for this circuit has held that “defendants like

[petitioner], convicted prior to AEDPA, can file their petitions

within one year of AEDPA’s effective date.” David v . Hall,

(1st Cir. 2003) (citations omitted). AEDPA was

effective as of April 2 4 , 1996. Consequently, petitioner had

until April 2 4 , 1997, to file a federal habeas corpus petition.

See Cordle v . Guarino,

6 , 48 (1st Cir. 2005). That

deadline was missed by more than ten years. Thus, petitioner can

avoid dismissal of his petition only if the limitations period is

equitably tolled.

The United States Supreme Court has “never squarely

addressed the question [of] whether equitable tolling is

6 applicable to AEDPA’s statute of limitations.” Pace v .

DiGuglielmo,

(2005) (citing Pliler v . Ford,

(2004)). The court of appeals for this circuit has,

however, “allowed for equitable tolling of the § 2244(d)(1)

limitations period in rare and extraordinary cases.” Trapp v .

Spencer,

3 , 59 (1st Cir. 2007); see also Neverson v .

Farquharson,

2 , 41 (1st Cir. 2004) (“the one-year

limitations period in § 2244(d)(1) is not jurisdictional and,

accordingly, can be subject to equitable tolling in appropriate

cases”). Such extraordinary relief is available, however, only

in the most compelling of circumstances. As the David court

observed:

If equitable tolling is available to extend section 2244(d)’s limitations period, it can only do so for the most exceptional reasons. One of AEDPA’s main purposes was to compel habeas petitions to be filed promptly after conviction and direct review, to limit their number, and to permit delayed or second petitions only in fairly narrow and explicitly defined circumstances. . . . To bypass these restrictions for reasons other than those given in the statute could be defended, if at all, only for the most exigent reasons.

David,

(citations omitted); see also Donovan v .

Maine,

7 , 93 (1st Cir. 2002) (“We have made it pellucid

that equitable tolling, if available at all, is the exception

rather than the rule; and that resort to its prophylaxis is

deemed justified only in extraordinary circumstances”) (citations

and internal punctuation omitted); Delaney v . Matesanz,

7 7 , 15 (1st Cir. 2001) (“In short, equitable tolling is strong

medicine, not profligately to be dispensed.”).

A petitioner who seeks equitable tolling must establish “(1)

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

some extraordinary circumstance stood in his way.” Pace,

(citation omitted). The court of appeals expanded on

that standard by delineating six factors “that may influence a

court’s decision whether or not to grant equitable tolling in a

habeas case.” Trapp,

1 . Those factors include:

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 the 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;

6. Whether or not the case is a capital case and whether or not the petitioner has been sentenced to death.

(citations omitted).

8 1. Diligence in pursuing habeas relief

Petitioner argues that the record demonstrates his diligence

because: (1) he believed (albeit mistakenly) that he had waived

his right to challenge the validity of his guilty pleas for ten

years from the day he entered them; and (2) just as soon as the

ten-year waiver period was over, he filed his motion to withdraw

his pleas, exhausted available state remedies, and then filed his

federal petition. Actually, petitioner’s motion to withdraw his

pleas was not filed “[e]xactly ten years after entry of his pleas

of guilty,” as he argues, but, rather, some nine years and eight

months later. It is a minor point of little consequence, but had

petitioner truly been waiting for the waiver period to expire,

one would expect him to file his motion to withdraw his pleas

promptly after the ten-year period expired, not before. In any

event, petitioner has failed to show that he was diligent in

pursuing habeas relief. A ten-year delay is facially

inconsistent with diligence, though it might be explained by

extraordinary circumstances.

2. Extraordinary circumstances

Petitioner argues that extraordinary circumstance did indeed

preclude his filing a timely federal habeas petition. That

circumstance was his mistaken belief that he had waived, for ten

years, his right to challenge the constitutionality of his pleas.

9 As a general matter, it is well established in this legal

context that “extraordinary circumstances” are “circumstances

beyond the litigant’s control [that] have precluded [him] from

promptly filing.” Cordle,

(quoting Lattimore v .

Dubois,

6 , 55 (1st Cir. 2002))(emphasis added). The

court of appeals for this circuit has ruled that a petitioner’s

ignorance or carelessness does not excuse an untimely habeas

petition. See Cordle,

(ruling that petitioner’s

lack of knowledge of the law and filing deadlines in addition to

her attorney’s error did not constitute an extraordinary

circumstance). In Lattimore, the fact that the petitioner was

pro se and had a “limited knowledge of the law” was held not to

be a special circumstance that warranted equitable tolling.

Lattimore, 311 F.3d at 5 5 . In Voravongsa v . Wall, the

petitioner’s pro se status was not grounds for equitable tolling.

Voravongsa,

, 8 (1st Cir. 2003); see also Donovan,

(ruling that “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”) (internal citations omitted); Delaney,

(ruling that “in the context of habeas claims, courts have been

loath to excuse late filings simply because a pro se prisoner

misreads the law”). In Neverson the petitioner filed a timely

habeas petition, but it was dismissed because it included

10 unexhausted claims. Petitioner’s later argument, that the

court’s decision to dismiss rather than stay his case, as well as

the court’s failure to advise him of his options and the law,

constituted extraordinary circumstances excusing the untimely

filing of a second petition, was rejected. Neverson, 366 F.3d at

43. 1

In addition to rejecting the application of equitable

tolling, in the cases cited above, the court of appeals has also

identified, in opinions from other circuits, circumstances it

would likely consider sufficiently extraordinary to warrant

application of the doctrine. See Trapp,

0 . For

example, the Second Circuit found equitable tolling appropriate

when an attorney, specifically hired to file a habeas petition,

failed to file i t . See Baldayaque v . United States,

(2d Cir. 2003). The Ninth Circuit found equitable

tolling appropriate when, after the petitioner discharged his

attorney, the attorney refused to return the petitioner’s file,

causing him to miss the filing deadline. See Spitsyn v . Moore,

(9th Cir. 2003). Equitable tolling was also

1 In addition, “garden-variety attorney negligence” does not excuse a petitioner’s untimely habeas filing. Trapp,

(internal quotations omitted). For example, an attorney’s miscalculation of AEDPA’s limitations period is nothing more than “routine error” and “does not constitute extraordinary circumstances warranting equitable tolling.”

(citing David,

4 6 ) .

11 found appropriate when an attorney told a petitioner that a

habeas petition had been filed, but in fact it had not. See

United States v . Martin,

(8th Cir. 2005);

see also United States v . Wynn,

(5th Cir.

2002). The facts presented here do not establish like

circumstances, and do not warrant application of equitable

tolling principles.

The “extraordinary circumstance” petitioner says caused him

to miss the AEDPA filing deadline amounts to little more than a

“garden variety claim of excusable neglect” (and not a

particularly plausible o n e ) . David,

.

Petitioner’s waiver of his state statutory right to seek a

suspended sentence under RSA 651:20 for ten years simply cannot

be reasonably understood as waiving all collateral challenges to

his conviction and sentence for ten years, including federal

habeas corpus relief. Such a belief, if petitioner actually

thought that was the case, would be unreasonable, and at best

negligent. Petitioner has failed, by a wide margin, to identify

any circumstances warranting application of equitable tolling in

this case. See Delaney,

(citing with approval the

trial court’s finding that extraordinary circumstances did not

exist when “no one lulled the petitioner into a false belief that

12 he had more than the allotted time to file, or otherwise misled

him”).

3. Diligence in pursuing other post-conviction remedies

Petitioner did obtain sentence review in 1995. However,

based on the record, he appears not to have pursued any other

post-conviction remedies until his state motion to withdraw his

pleas was filed in 2004. Consequently, petitioner has shown, at

best, only modest diligence in pursuit of other post-conviction

remedies.

4. Prejudice to the prosecution

The events that led to petitioner’s conviction occurred on

January 1 4 , 1994. His petition for habeas relief was filed some

thirteen years later. That passage of time would likely impose

significant burdens on the State should it have to retry

Sokorelis. See Trapp,

(finding events occurring

twenty-four years prior to filing a habeas petition prejudicial

to the state); see also David, (discussing the strong interest in

prompt assertion of habeas petitions due to the difficulty in

retrying petitioner “as memories fade, evidence disperses and

witnesses disappear”). Accordingly, this factor also militates

against equitable tolling.

13 5. Strength of petitioner’s claim

Equitable tolling is also not appropriate because

petitioner’s claim is of dubious merit. See Lattimore, 311 F.3d

at 55 (determining equitable tolling to be unavailable for a

claim of dubious merit); see also Brackett v . United States,

0 , 71 (1st Cir. 2001).

Petitioner says his guilty pleas were not entered in a

manner consistent with minimum federal constitutional standards —

they were not knowingly, intelligently and voluntarily entered.

See Boykin v . Alabama,

3 8 , 242 (1969); Desrosier v .

Bissonnette,

8 , 41 (1st Cir. 2007). Courts consider

the totality of the circumstances when determining whether a

guilty plea was knowing, intelligent and voluntary. United

States v . Ward,

5 , 84 (1st Cir. 2008). To meet federal

constitutional standards, the record must affirmatively disclose

that a defendant who pleaded guilty entered his plea

understandingly and voluntarily.

No particular form or

script need be followed, but the record must show that the

defendant’s plea was intelligent and voluntary, and, in that

respect, the plea colloquy “might be supplemented by the

completion of a printed waiver form that also addressed the

constitutional elements of a plea.” Ward, 518 F.3d at 8 3 .

14 Petitioner seeks to undermine his pleas on grounds that he

did not understand that he could be sentenced to three

consecutive terms of imprisonment, and that his attorney never

informed him of that possibility. Further, he argues that at the

age of nineteen, he did not understand the meaning of

“consecutive sentences,” so did not appreciate the consequences

of his pleas. He also says he was prejudiced because he never

would have agreed to plead guilty had he known that consecutive

sentences would mean, as a practical matter, imprisonment for

life. Petitioner also argues that he was rushed through the plea

discussions.

During the plea colloquy, the state judge advised petitioner

of the specific rights he would waive by pleading guilty. The

court also asked whether petitioner understood that he was

offering a “naked plea” (explained as one that involved no

promises by the state concerning sentencing recommendations).2

2 The transcript of the plea colloquy includes the following relevant exchange:

The Court: You understand, u h , do you — as I d o , apparently — u h , based on the — your attorney’s representations to m e , that you are entering what we call a naked plea, and that i s , a plea that is not based on any recommendations with the state and n o , u h , promises, u h , concerning recommendations have been made; do you understand that?

The Defendant: Yes, sir.

15 The court also asked whether anyone had promised petitioner

anything to induce him to plead guilty that day. He denied any

inducement to plead guilty.

Petitioner confirmed that he thoroughly reviewed the matter

with his attorney and had no further questions for the court or

his attorney. Petitioner also signed a Waiver of Indictment form

and an Acknowledgment and Waiver of Rights form on which he

acknowledged that he understood the nature of the charges to

which he was pleading guilty, had discussed the matter with

counsel, and pertinently, that he could be sentenced to “any term

up to life.” It also appears that petitioner’s defense counsel

testified, during the state hearing on his motion to withdraw the

pleas, that he told petitioner that consecutive sentences were

possible, and that petitioner understood the possible sentencing

consequences of his pleas in that respect.

Finally, the “rush,” as noted by the state court, was real

but unavoidable, given that it was petitioner who decided to

enter guilty pleas during trial. He had an interest in avoiding

what might have been an imminent verdict of guilty on the first

degree murder charge, and the life sentence with no possibility

of parole that would necessarily follow. The deal he struck,

such as it was, held out only a remote possibility of release

16 some day in the future, but a chance, however unlikely, was a

better option than no chance. Petitioner cannot now be heard to

claim that he was “rushed” to the point of not understanding what

he was doing.

Given the facts, as presented by petitioner and as appear in

the record, his claim that his guilty pleas were not knowingly,

intelligently, and voluntarily entered, or that the record does

not affirmatively show that his guilty pleas were entered in a

manner consistent with federal constitutional standards, is

highly dubious. This factor also weighs heavily against

application of the equitable tolling doctrine.

6. Possibility of a death sentence

This is not a case involving capital punishment, so

obviously, this factor does not support petitioner’s argument for

application of equitable tolling.

Evaluation of the petition and record in light of the six

Trapp factors leads the court to conclude that the statute of

limitations governing petitioner’s federal habeas petition should

not be equitably tolled.

17 Conclusion

Because petitioner did not bring his petition within the

limitations period imposed by AEDPA, did not pursue habeas relief

diligently, has not identified extraordinary circumstances that

prevented him from filing his petition in a timely fashion, seeks

to raise claims of dubious merit, the petition is untimely, and

petitioner is not entitled to have the filing period equitably

tolled. See Delaney,

(ending court’s analysis

after a finding that the petitioner’s untimely habeas action

would not be saved by equitably tolling). Accordingly,

respondent’s motion for summary judgment (document no. 10) is

granted. The clerk of the court shall enter judgment in

accordance with this order and close the case.

SO ORDERED.

Steven J. McAuliffe /Chief Judge April 3, 2009

cc: Stephen D. Fuller, Esq. Susan P. McGinnis, Esq. Jay Rancourt, Esq. John Vinson, NHDOC

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