The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge
Anthony Balliro, proceeding pro se, seeks habeas corpus relief, pursuant to 28 U.S.C. § 2254, from his state court convictions and sentence. In support of his petition, Balliro alleges that his counsel in the criminal proceeding provided constitutionally deficient representation. The Warden moves to dismiss the petition on the ground that it is untimely.
Balliro was convicted on July 6, 2007, following a jury trial, of first degree murder and arson. He appealed the convictions. On October 30, 2008, the New Hampshire Supreme Court affirmed the convictions, concluding that trial court did not abuse its discretion in denying Balliro's request for a jury instruction that he was permitted to use deadly force to prevent a trespasser from committing arson. State v. Balliro, 158 N.H. 1, 6 (2008).
On October 3, 2009, Balliro, represented by new counsel, filed a motion for a new trial.*fn1 The Carroll County Superior Court denied the motion on June 23, 2010. Balliro appealed the decision, and the New Hampshire Supreme Court issued a decision on October 3, 2011, affirming the lower court.
Balliro contends that he did not receive a copy of the New Hampshire Supreme Court's decision until March 15, 2012, when counsel sent him a copy. In the letter, counsel indicated that a copy of the decision had been sent to Balliro previously. Counsel also advised that further appellate review was not likely to succeed and stated "that there is a one year time limit from the date of the decision (October 3, 2011) within which to file a federal appeal." Balliro did not appeal the October 3, 2011, decision.
On April 4, 2012, Balliro filed the petition for habeas corpus relief in this court proceeding pro se. At the same time, he filed a motion to stay to allow him time to decide whether equitable tolling of the statute of limitations would apply. He also argued that if the petition were deemed to be untimely, the cause for the delay was the negligence of his counsel. The motion to stay was denied as premature because the Warden had not then raised the defense of the statute of limitations.
The Warden moves to dismiss the habeas petition on the ground that it is untimely. Balliro did not respond to the motion.
A petition for habeas corpus relief must be filed within one year of the date when the judgment became final, the date on which an impediment to filing is removed, the date when an asserted constitutional right is newly recognized, or the date when the factual basis for relief could have been discovered. 28 U.S.C. § 2244(d)(1). "The time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." § 2244(d)(2). In rare situations, the deadline may be tolled for equitable reasons. Maples v. Thomas, 132 S. Ct. 912, 924 (2012); Holmes v. Spencer, 685 F.3d 51, 62 (1st Cir. 2012).
A. Time Allowed under § 2244(d)
The Warden represents, and Balliro does not dispute, that
after calculating the excluded time, he filed his petition for habeas relief well beyond the deadline. The Warden calculates that 248 days passed after the decision affirming Balliro's conviction and before he filed the motion for a new trial, leaving 117 days in the statutory period. The motion for a new trial stopped the time until the New Hampshire Supreme Court issued its decision on October 3, 2011. Then, 184 days passed ...