United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION
ANDREA K. JOHNSTONE, Magistrate Judge.
Pursuant to 28 U.S.C. § 2254, Jason Carvell, proceeding pro se, has filed a petition for a writ of habeas corpus (doc. no. 1) and a motion to amend petition (doc. no. 7) alleging that his state court criminal conviction and sentence violate his federal constitutional rights. Before the court is Respondent's motion to dismiss the petition as untimely (doc. no. 10). Carvell objects (doc. no. 15).
On December 4, 2009, Carvell was convicted of two counts of aggravated felonious sexual assault ("AFSA"), one count of felonious sexual assault, one misdemeanor count of criminal threatening and one misdemeanor count of endangering the welfare of a child in the New Hampshire Superior Court, Grafton County ("GCSC"). On February 23, 2010, Carvell was sentenced to serve two consecutive terms of 10-20 years in the New Hampshire State Prison on the two counts of AFSA, and to suspended sentences on the remaining charges.
After he was convicted, Carvell filed a direct appeal in the New Hampshire Supreme Court ("NHSC") challenging the trial court's denial of his motions for a mistrial and denying his motion to dismiss one of the felonious sexual assault charges. The NHSC affirmed Carvell's conviction on March 29, 2011.
On March 6, 2012, Carvell filed a motion for new trial in the GCSC on the grounds that he was denied the effective assistance of counsel, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Part 1, Article 15 of the New Hampshire Constitution. Carvell's motion for new trial was denied by the GCSC on September 29, 2012. On October 16, 2012, Carvell filed a discretionary appeal of the denial of his motion for new trial. The NHSC declined the appeal in an order issued December 6, 2012. Carvell then filed the instant petition for federal habeas relief (doc. no. 1) and amendment (doc. no. 7) asserting that his conviction and sentence violate the Sixth and Fourteenth Amendments to the United States Constitution. Respondent has moved to dismiss on the grounds that Carvell's petition is time-barred, See Mot. to Dismiss (doc. no. 10). Carvell has objected, contending, among other things, that he is entitled to equitable tolling of the statute of limitations. See Obj. to Mot. to Dismiss (doc. no. 15).
I. Motion to Dismiss Standard
Respondent's motion is governed by Federal Rule of Civil Procedure 12(b)(6). See Wolfe v. Johnson, 565 F.3d 140, 169 (4th Cir. 2009). In ruling on such a motion, the court accepts all facts pleaded by the petitioner to be true, id., and can consider "matters of public record and other matters susceptible to judicial notice." Lydon v. Local 103, Int'l Bhd. of Elec. Workers, 770 F.3d 48, 53 (1st Cir. 2014). Where the petition and matters of public record show "that the limitations period has been exceeded, " and do not "sketch a factual predicate that would warrant the application of either a different statute of limitations period or equitable estoppel, " dismissal is appropriate. Santana-Castro v. Toledo-Davila, 579 F.3d 109, 114 (1st Cir. 2009) (internal quotation marks and citation omitted).
II. Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") sets a one-year limitations period for state prisoners to file federal habeas petitions. See 28 U.S.C. §2244(d)(1); McQuiggin v. Perkins, 133 S.Ct. 1924, 1929 (2013); Herbert v. Dickhaut, 659 F.3d 105, 108 (1st Cir. 2012). AEDPA's one-year time limit runs from the date that the state court judgment of conviction becomes final by the conclusion of direct review or by the expiration of the time for seeking direct review. 28 U.S.C. § 2244(d)(1)(A); McQuiggin, 133 S.Ct. at 1929; Herbert, 695 F.3d. at 108. AEDPA excludes from the one-year limitations period the "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." 28 U.S.C. § 2244(d)(2); see also Wood v. Milyard, 132 S.Ct. 1826, 1831 (2012); Drew v. McEachern, 620 F.3d 16, 20 (1st Cir. 2010).
Respondent represents, and Carvell does not dispute, that after calculating the excluded time, he filed his petition for habeas relief beyond the deadline. The NHSC's decision affirming Carvell's conviction on direct appeal became final on March 29, 2011. Allowing for passage of the ninety-day period after the NHSC's final decision, during which Carvell could have filed a petition for a writ of certiorari in the United States Supreme Court, the one-year limitations period for filing a federal habeas petition began to run on June 27, 2011. See 28 U.S.C. § 2244(d)(1)(A).
Carvell filed a motion for new trial in the GCSC on March 6, 2012, however, which stopped the running of the limitations period. See id. at § 2244(d)(2). At that time, 253 days of the limitations period had run. The GCSC denied the motion for a new trial and Carvell appealed the denial to the NHSC. The NHSC declined the appeal on December 6, 2012. Accordingly, the limitations period restarted on December 6, 2012, leaving 112 days in which Carvell could have timely filed his petition in this court. See Trapp v. Spencer, 479 F.3d 53, 58-59 (1st Cir. 2007) (while state postconviction proceedings are pending, the AEDPA clock is stopped temporarily, but not reset, until the applications for relief are ruled on by the state courts). The statute of ...