William v . State NH CV-11-24-PB 7/6/11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Moise William

v. Civil N o . 11-cv-024-PB Opinion N o .

State of New Hampshire

O R D E R

Before the court is pro se petitioner Moise William s

petition for a writ of habeas corpus, which shall be construed

to include the claims asserted in the original petition (Doc.

N o . 1 ) , and the claims asserted in his “Petition to Apply for

Consideration to Appeal Outside of Specified Time” (Doc. N o . 3 ) .

In the petition, William claims that his Sixth and Fourteenth

Amendment rights to due process, effective assistance of

counsel, and to present a defense witness, were violated in

connection with his October 2004 conviction and subsequent

appeal of drug charges tried in the Rockingham County Superior

Court. The matter is before the court for preliminary review to

determine whether or not the claims raised in the petition are

facially valid and may proceed. See 28 U.S.C. § 1915A; Rule 4

of the Rules Governing Section 2254 cases in the United States

District Courts; United States District Court District of New Hampshire Local Rule (“LR”) 4.3(d)(2).

I. BACKGROUND

In 2003, William, a Haitian national, was charged in state

court with a felony count of cocaine possession with intent to

distribute and a misdemeanor count of marijuana possession. The

charges were based on evidence derived from a traffic stop in

December 2002, when the police in Auburn, New Hampshire found

drugs and money in William's van. William has consistently

denied knowing that there was cocaine in the van at that time.

William pleaded not guilty to the drug charges and a jury

trial was scheduled for March 2004. Defense counsel sought a

continuance based on a scheduling conflict, and the court

rescheduled the trial for June 2004. Counsel filed another

motion to continue, and the court again rescheduled the jury

trial for October 18, 2004. The court admonished counsel that

further continuances on the ground that counsel was “'too busy'”

would not be granted. State v. William, No. 2005-0181 (N.H.

Apr. 17, 2006) (Ex. 5 to Pet. (Doc. No. 1-2)).

In the week before trial, defense counsel learned that a

co-worker of William, named Moore, could provide testimony

relevant to the defense theory that William did not know about

the cocaine in the van. Defense counsel first contacted Moore

2 on October 1 5 , 2004, three days before trial, and after

interviewing him, asked him to contact the prosecutor. October

15 was the Friday preceding the Monday when trial was set to

begin. On that date, defense counsel notified the State that

counsel wished to add Moore to his witness list.

Between October 15 and October 1 8 , the State interviewed

Moore and ran a criminal background check on him, which

confirmed that he had multiple convictions. The prosecutor

asserted that Moore said that he drove a crew around in the van,

and that he knew some of them were drug users. Defense counsel

expected Moore to testify that he sometimes borrowed the van and

drove with people who “were involved in drugs, and in fact used

drugs in his presence and had drugs in the vehicle.” Id.

On October 1 8 , 2004, the State filed a motion to exclude

the witness. The trial judge held a hearing, received offers of

proof from counsel, and ultimately excluded the witness, noting

“that the case was a year old, that three final pretrial

conferences had been held and that the witness had never been

disclosed.” Id. The court further found that although the

prosecutor had had an opportunity to talk to Moore, “the State

was „unable to track down any of the people that the witness

claims used the car, or were in the car and whether or not they

3 were, in fact, drug dealers.'” Id.

Trial proceeded and William did not offer any witnesses. A

jury convicted William of both drug charges. The court later

sentenced William to serve one year in jail, followed by a

deferred prison sentence of two to four years.

After Williams was sentenced, the appellate defender's

office filed a direct appeal of William's conviction in the New

Hampshire Supreme Court (“NHSC”), claiming that the trial court

had violated William's right to present witnesses in granting

the State's motion to exclude Moore. Citing state law relating

to a defendant's right to present witness testimony, and noting

that the trial judge's ruling was further supported by the

“attenuated and non-specific nature of the proffered evidence

and the need for the State to obtain certified copies of any

convictions that it might use at trial,” the NHSC issued a

decision in April 2006, upholding the exclusion of the witness

and affirming William's conviction. See id. William's

appellate counsel, David Rothstein, thereafter told William that

there was nothing further he could do for him. William did not

file any post-conviction proceedings prior to the instant case.

In June 2010, United States Immigration and Customs

Enforcement (“ICE”) took William into custody, on the ground

4 that the state drug convictions were deportable offenses. See

(a)(2)(B)(i) (stating that any alien convicted of

violating drug laws, “other than a single offense involving

marijuana possession for one's own use of 30 grams or less” is

deportable).1 William filed the instant habeas petition in

January 2011, while still in ICE custody in a facility in

Boston, Massachusetts, pending deportation. William was

deported thereafter to Haiti, where he currently resides.

In the instant petition, William asserts the following

claims, challenging the validity of his state drug crime

convictions2:

1. William suffered a violation of his right to due process and to present favorable witness testimony, under the Sixth and Fourteenth Amendments, when the trial judge excluded a defense witness based upon trial counsel's late disclosure of that witness, and William was convicted

1 The court notes that, in 2008, William was convicted of federal drug crimes, based on marijuana and cocaine found in William s car when he was stopped at a sobriety checkpoint in Auburn in 2007. See United States v . William,

6 , 67- 68 (1st Cir. 2010) (affirming convictions for marijuana and cocaine possession, while vacating sentence that exceeded maximum term of two years). Although such convictions are also deportable offenses, William has not alleged in the instant petition that his deportation was based on those federal convictions, and the validity of those convictions is not at issue here. 2 The claims identified herein shall be deemed to be the claims in the petition for all purposes in this proceeding. If William disagrees with this identification of his claims, he must properly file a motion to amend the petition.

5 thereafter.

2. William suffered a violation of his Sixth and Fourteenth Amendment right to the effective assistance of trial counsel, when counsel failed to investigate William's case and failed to make a timely disclosure of a defense witness, resulting in that witness's exclusion and William's conviction.

3. William suffered a violation of his Sixth and Fourteenth Amendment right to the effective assistance of appellate counsel, when appellate counsel told William that there was nothing more that he could do for William following an unsuccessful direct appeal to the NHSC, and counsel failed to file a petition for post-conviction relief on William's behalf.

II. STANDARD OF REVIEW

Under LR 4.3(d)(2), when an incarcerated plaintiff or

petitioner commences an action pro s e , the court conducts a

preliminary review. The court may issue a report and

recommendation after the preliminary review, recommending that

claims be dismissed if the court lacks subject matter

jurisdiction, the defendant is immune from the relief sought,

the complaint fails to state a claim upon which relief may be

granted, the allegation of poverty is untrue, or the action is

frivolous or malicious. See LR 4.3(d)(2) (citing 28 U.S.C.

§ 1915A and Fed. R. Civ. P. 12(b)(1)). The court construes pro

se pleadings liberally to avoid inappropriately stringent rules

and unnecessary dismissals. See Erickson v . Pardus,

6 8 9 , 94 (2007) (per curiam) (following Estelle v . Gamble,

7 , 106 (1976), to construe pleadings liberally in favor of

pro se party); Castro v . United States,

(2003).

To determine if the complaint states any claim upon which

relief could be granted, the court applies a standard analogous

to that used in reviewing a motion to dismiss filed under Fed.

R. Civ. P. 12(b)(6). The court decides whether the complaint

contains sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face. See Ashcroft v .

Iqbal, 129 S . C t . 1937, 1949 (2009).

To make this determination, the court employs a two-pronged

approach. See Ocasio-Hernández v . Fortuño-Burset,

,

12 (1st Cir. 2011). The court first screens the complaint for

statements that “merely offer legal conclusions couched as fact

or threadbare recitals of the elements of a cause of action.”

(citations, internal quotation marks and alterations

omitted). A claim consisting of little more than “allegations

that merely parrot the elements of the cause of action” may be

dismissed.

The second part of the test requires the court

to credit as true all non-conclusory factual allegations and the

reasonable inferences drawn from those allegations, and then to

7 determine if the claim is plausible.

The plausibility

requirement “simply calls for enough fact to raise a reasonable

expectation that discovery will reveal evidence” of illegal

conduct. Bell Atl. Corp. v . Twombly,

4 4 , 556 (2007).

The “make-or-break standard” is that those allegations and

inferences, taken as true, “must state a plausible, not a merely

conceivable, case for relief.” Sepúlveda-Villarini v . Dep t of

Educ.,

5 , 29 (1st Cir. 2010); see Twombly, 550 U.S. at

555 (“Factual allegations must be enough to raise a right to

relief above the speculative level . . . .” (citation omitted)).

Evaluating the plausibility of a claim is a “context-

specific task that requires the reviewing court to draw on its

judicial experience and common sense.” Iqbal, 129 S . C t . at

1950 (citation omitted). In doing s o , the court may not

disregard properly pleaded factual allegations or “attempt to

forecast a plaintiff s likelihood of success on the merits.”

Ocasio-Hernández,

3 . “The relevant inquiry focuses

on the reasonableness of the inference of liability that the

plaintiff is asking the court to draw from the facts alleged in

the complaint.”

8 III. DISCUSSION

I. Jurisdiction Over § 2254 Petitions

William is challenging the validity of his 2004 convictions

that form the basis of his deportation order. William relies on

as authority for filing this action. Section

2254 authorizes this court to “entertain an application for a

writ of habeas corpus in behalf of a person in custody pursuant

to the judgment of a State court only on the ground that he is

in custody in violation of the Constitution or laws or treaties

of the United States.”

(a) (emphasis added).

The requirement under § 2254(a) that the person challenging

a state court judgment be “in custody” is jurisdictional. See

Maleng v . Cook,

8 8 , 492 (1989). Custodial status is

measured at the time the petition was filed. See id. Physical

confinement is not necessary; a district court has jurisdiction

to review a petition filed by a person subject to restraints

“not shared by the public generally.” Jones v . Cunningham,

(1963); see, e.g., Jackson v . Coalter,

4 , 79 (1st Cir. 2003) (noting that petitioner on probation

satisfies “in custody” requirement); see also McVeigh v . Smith,

(6th Cir. 1989) (holding that petitioner whose

probation has been stayed remains “in custody”). Such

9 restraints, however, do not include the collateral consequences

of a conviction, such as loss of the right to vote or the risk

of an enhanced sentence due to the prior conviction. Because

the “collateral consequences” of a prior conviction “are not

themselves sufficient to render an individual „in custody for

the purposes of a habeas attack upon” the prior conviction, a

petitioner whose sentence has expired is deemed no longer “in

custody” for that conviction. See Maleng, 490 U.S. at 492.

Extending that reasoning to a case where the petitioner

filed a § 2254 petition while in immigration detention following

the expiration of a sentence on a deportable offense, the Second

Circuit determined that “one held in immigration detention is

not „in custody for the purpose of challenging a state

conviction under § 2254.” Ogunwomoju v . United States,

9 , 75 (2d Cir. 2008). See also Resendiz v . Kovensky,

(9th Cir. 2005); Walker v . Holder, Civ. N o . 10-

10802-RWZ,

, at *1 (D. Mass. May 2 4 , 2010)

(holding that the district court lacked subject matter

jurisdiction over claims filed by immigration detainee

challenging underlying state conviction, where his sentence had

expired prior to date upon which petition was filed). Although

the court noted that the petitioner in that case was “in

10 immigration detention at the time he filed the habeas petition,”

he was “not in custody pursuant to a judgment of a state court.”

Ogunwomoju,

4 . The rationale for precluding review

under such circumstances is that the immigration consequences of

a state conviction arise from the action of an “independent

sovereign” and are “consequences over which the state trial

judge has no control whatsoever.” Resendiz,

(emphasis in original).

The facts alleged in the petition do not definitively show

that William s state sentence, imposed sometime after his

October 2004 conviction, had expired prior to January 2011, when

he filed the instant petition. The sentencing order is not part

of the record. William s description of his sentence is that it

included one year in jail, followed by a deferred term of two to

four years in prison. When a sentencing order imposes a

deferred sentence, the order typically specifies how long the

deferral period will last. In addition, the order provides that

the defendant may file a motion for suspension of the deferred

term 30 days prior to the expiration of the deferral period, and

that a failure to petition for the suspension of the deferred

sentence will result in its imposition. See 2 Richard B .

McNamara, N.H. Practice and Procedure § 33.33 (4th ed. 2003)

11 (citing State v . Brewster,

5 1 ,

(2002)).

The record here suggests that the deferred sentence was never

formally suspended, and may have remained pending on January

2011, rendering William “in custody” for the purposes of filing

a habeas petition.

II. Statute of Limitations

Assuming without deciding that William remained in state

custody to the extent that the deferred term of the state

sentence had not expired prior to January 2011, the court will

exercise its jurisdiction over the petition to consider whether

William s claims are time-barred. The Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”),

,

et seq., sets a one-year limitations period for federal habeas

petitions by state prisoners. See

(d)(1). That

period 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 direct review, excluding

time spent in post-conviction state proceedings initiated during

the one-year period.

(d)(1)(A); Cordle v .

Guarino,

6 , 48 n.4 (1st Cir. 2005) (noting that post-

conviction state court litigation filed after AEDPA s

limitations expire does not stop or reset the clock). The NHSC

12 issued its decision on William's direct appeal on April 17,

2006. William had ninety days to file a petition for writ of

certiorari in the United States Supreme Court, but failed to do

so. William's time for filing a federal habeas petition,

therefore, expired in July 2007. See Jimenez v. Quarterman,

(2009).

In a motion seeking an extension of time to filing his §

2254 petition, William contended that his claims were not time-

barred. Because the court's preliminary review of the

underlying petition remained pending at the time William filed

that motion, the court denied it as premature. See Endorsed

Order (Apr. 29, 2011) (denying motion (Doc. No. 3)). The order

indicated that William could raise the issue again if, following

a preliminary review, the court were to find the petition

untimely or if the respondent were to file a motion to dismiss

claiming that the petition was time-barred. Id. In the

interest of judicial efficiency, the court will consider at this

time the merits of the arguments asserted in the motion for

extension of time in determining whether the underlying petition

is time-barred.

Certain exceptions to the AEDPA statute of limitations

exist where the untimely filing was caused by (1) state-impeded

13 relief, (2) new constitutional rights created by the Supreme

Court, or (3) newly discovered facts, but those exceptions are

not applicable here. See

(d)(1)(B)-(D).

Rather, William claims that he should be permitted to file his

petition out of time because: (1) court-appointed appellate

counsel failed to file a habeas petition in federal court for

William; and (2) William, who is appearing here pro s e , became

aware of his rights only recently, while in ICE custody.

A. Equitable Tolling

The one-year AEDPA statute of limitations is subject to

equitable tolling. See Holland v . Florida, 130 S . C t . 2549,

2562 (2010). A habeas petitioner seeking equitable tolling

bears the burden of establishing that he has been pursuing his

claims diligently, and that some extraordinary circumstance

stood in the way of his timely filing. See

Equitable

tolling “should be invoked only sparingly.” Ramos-Martinez v .

United States,

(1st Cir. 2011) (citation and

quotation marks omitted). Equitable tolling “is available only

in cases in which „circumstances beyond the litigant s control

have prevented ” him from timely filing.

(citation

omitted). Whether equitable tolling should be applied depends

on the “totality of the circumstances.”

.

14 There is nothing in the record suggesting that William has

pursued his claims diligently. William did not file any state

court post-conviction proceedings relating to the convictions at

issue and he took no steps to assert claims in this court before

June 2010 while in ICE detention, at which time he first took

the opportunity to educate himself with respect to the law

relating to his case. The record therefore fails to show that

William has been diligent in pursuing his rights.

B. Lack of Post-Conviction Counsel

William claims that he received no assistance in filing a §

2254 petition from Attorney David Rothstein, and that Rothstein

told him there was nothing more he could do for him after the

NHSC affirmed his convictions. William attempts to assert that

counsel's refusal to assist him by conducting post-conviction

litigation efforts on his behalf constituted extraordinary

circumstances which caused the untimely filing of this petition.

While the court notes that professional misconduct may in

certain cases amount to “'egregious behavior'” warranting

equitable tolling, see id. (quoting Holland, 130 S. Ct. at

2563), the facts here belie such a finding.

William lacked a Sixth Amendment right to court-appointed

counsel to pursue state post-conviction relief in the state

15 courts. See Coleman v. Thompson,

(1991);

Pennsylvania v. Finley,

(1987) (“the right to

appointed counsel extends to the first appeal of right, and no

further”). Rothstein was appointed to represent William only in

his direct appeal to the NHSC; Rothstein's advising William that

he could do nothing more for him upon the N H S C s affirming the

convictions at issue did not stand in the way of William's

timely filing of a federal petition for habeas relief. William

was not impeded from filing any claim on his own by Rothstein's

conduct, as William has described it. Further, Rothstein had no

independent obligation to file a habeas petition on William's

behalf.

William also argues that he was not sufficiently versed in

the law to allow him to recognize his rights and to file a

petition on his own in this court prior to his ICE detention

period. The court notes, however, that “'ignorance of the law

alone, even for incarcerated pro se prisoners, does not excuse

an untimely [habeas] filing.'” Cordle,

(citation

omitted). William has demonstrated to this court that he is

able to articulate claims pertinent to the facts of his case and

that he can relate his claims to appropriate federal

constitutional provisions. Thus, the court finds that William's

16 alleged lack of knowledge regarding his rights prior to his

recent ICE detention does not excuse his late filing of the

instant petition.

IV. CONCLUSION

As the court finds no basis for tolling the statute of

limitations, which has expired in this case, the petition is

time-barred. Accordingly, the petition for writ of habeas

corpus (Doc. N o . 1 ) is dismissed.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

July 6, 2011

cc: Moise William, pro se

17