United States District Court, District of New Hampshire
Theodore M. Lothstein, Esq. Elizabeth C. Woodcock, Esq.
MEMORANDUM AND ORDER
Paul Barbadoro United States District Judge
Angel Roldan is incarcerated pursuant to a final judgment of the New Hampshire state courts. After exhausting his avenues for relief in state court, he filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The state has moved for summary judgment. I grant the motion.
On April 18, 2001, Roldan was arrested and later indicted in superior court on one count of being a drug enterprise leader and three separate counts of conspiracy to sell cocaine, crack cocaine, and ecstasy. New Hampshire v. Roldan, 151 N.H. 283, 284-85 (2004). A jury convicted him on all counts, and Roldan was sentenced to at least sixty-five years in state prison. Id.; Doc. No. 1. The New Hampshire Supreme Court affirmed Roldan’s conviction on July 23, 2004. Roldan, 151 N.H. at 287.
On July 28, 2008, Roldan filed a pro se petition for a new trial. Doc. No. 1-3. The superior court denied the petition as untimely on February 4, 2009. Doc. No. 1-4. Roldan appealed that denial to the New Hampshire Supreme Court, which remanded to the superior court with instructions to treat the appeal as a petition for a writ of habeas corpus. Doc. No. 7-2. The superior court denied habeas relief on August 11, 2011. Doc. No. 7-3. On September 22, 2011, Roldan filed a notice of discretionary appeal with the New Hampshire Supreme Court. Doc. No. 7-3. The Supreme Court affirmed the superior court’s denial of habeas relief on October 12, 2012. Doc No. 7-5.
On October 8, 2013, Roldan filed a petition for a writ of habeas corpus in this court. Doc. No. 1. The state filed a motion to dismiss on February 6, 2014, arguing that Roldan’s petition was untimely. Doc. No. 6. Roldan objected on February 19, 2014. Doc. No. 10. The state filed a motion for summary judgment incorporating its timeliness argument on February 24, 2014, Doc. No. 12, to which Roldan objected. Doc. No. 15.
II. STANDARD OF REVIEW
Summary judgment is appropriate when the record reveals “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue is considered genuine if the evidence allows a reasonable jury to resolve the point in favor of the nonmoving party, and a fact is considered material if it “is one ‘that might affect the outcome of the suit under the governing law.’” United States v. One Parcel of Real Prop. with Bldgs., 960 F.2d 200, 204 (1st Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, I examine the evidence in the light most favorable to the nonmoving party. Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001).
The party moving for summary judgment bears the initial burden of identifying the portions of the record it believes demonstrate an absence of disputed material facts. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining what constitutes a material fact, “we safely can ignore ‘conclusory allegations, improbable inferences, and unsupported speculation.’” Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002) (quoting Medina–Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)).
The New Hampshire Supreme Court affirmed Roldan’s conviction on direct appeal on July 23, 2004. Roldan, 151 N.H. at 287. The conviction became final on direct review ninety days later - on October 21, 2004 - when the time expired for Roldan to file a petition for a writ of certiorari in the U.S. Supreme Court. Doc. No. 1; see Gonzalez v. Thaler, 132 S.Ct. 641, 653-54, 656 (2012) (citing Sup. Ct. R. 13.1) (discussing the federal habeas limitations period calculation).
Consequently, the period for Roldan to timely file a federal habeas petition commenced on October 21, 2004 and expired one year later, on October 21, 2005. See 28 U.S.C. § 2244(d)(1) (“A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. . . . [running 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 . . . .”). Roldan filed his petition in this court on October 8, 2013, almost eight years too late.
Roldan nevertheless seeks to have the limitations period equitably tolled because he is “a lay, first time, incarcerated offender, who did not sufficiently speak or understand English, and has extremely limited access to courts and to do research, which is always in [sic] written in English.” ...