United States District Court, D. New Hampshire
Walter Hutchinson, Jr.
Warden, New Hampshire State Prison
REPORT AND RECOMMENDATION
K. Johnstone United States Magistrate Judge
Hutchinson, Jr., appearing pro se, has petitioned for a writ
of habeas corpus (doc. no. 1) pursuant to 28 U.S.C. §
2254. The petition is here for preliminary review to
determine whether the claims asserted therein are facially
valid and may proceed. See Rule 4 of the Rules Governing
Section 2254 cases (“§ 2254 Rules”); LR
2254 Rule 4 Review Standard
undertaking § 2254 Rule 4 preliminary review, this court
decides whether the petition states facially valid claims.
The court may dismiss any petition that appears legally
insufficient on its face. See McFarland v. Scott,
512 U.S. 849, 856 (1994). In conducting this review, the
court construes Washburn’s pro se petition liberally.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
1991, Hutchinson was tried and convicted on charges of
attempted murder and first degree assault. On appeal, the New
Hampshire Supreme Court affirmed the conviction in part, but,
finding that the Hutchinsons’s state constitutional
right against double jeopardy was violated, remanded the case
to the trial court for the limited purpose of setting aside
one of the convictions. See State v. Hutchinson, 137
N.H. 591, 596 (1993). The first degree assault offense was
set aside on remand. See Hutchinson v. Gerry, No.
217-2015-CV -00368, at *1 n.1 ((N.H. Super. Ct., Merrimack
Cty. Dec. 14, 2015).
asserts here that he filed a habeas petition in the state
court in July 2015, challenging his attempted murder
conviction. Hutchinson’s state habeas petition was
denied. See Id. Hutchinson did not appeal, on the
basis that such appeal would have been futile.
is a one-year statute of limitations applicable to §
2254 petitions. The one-year period generally begins to run
on the date that the petitioner’s conviction becomes
final, upon the conclusion of direct review, or upon
expiration of time for seeking such review. See 28 U.S.C.
§ 2244(d)(1). Excluded from the limitations period is
the time during which any relevant state post-conviction
proceedings were pending. See Id. § 2244(d)(2).
However, state post-conviction proceedings filed after the
expiration of the statute of limitations do not reset the
statute of limitations clock. See Trapp v. Spencer,
479 F.3d 53, 58-59 (1st Cir. 2007); Cordle v.
Guarino, 428 F.3d 46, 48 n.4 (1st Cir. 2005). A district
court may dismiss a § 2254 petition sua sponte, if a
time bar is apparent on the face of the petition, and if
petitioner has received fair notice and an opportunity to
object. See Day v. McDonough, 547 U.S. 198, 209-10
Hutchinson is challenging a conviction and sentence imposed
in 1991. That conviction was affirmed by the New Hampshire
Supreme Court on September 16, 1993. See Hutchinson,
137 N.H. at 596. The statute of limitations for filing a
federal habeas petition concerning that matter would have
expired prior to the end of 1994. The assertions in
Hutchinson’s petition indicate that no relevant
post-conviction proceedings were pending in the state between
September 16, 1993, and July 2015, a period of more than
twenty-one years, and thus, none of that time would have been
excepted from the limitations period. The petition, filed
well after the expiration of the limitations period,
therefore, is untimely filed.
asserts that a fundamental miscarriage of justice will occur
in this matter if he is not allowed to proceed in this action
despite the expiration of the statute of limitations, as he
states that he is actually innocent of the offense of
attempted murder. The court may except a petitioner from
compliance with the one-year statute of limitations in a
habeas action, where petitioner makes a “tenable
claim” that he is actually innocent of the offense of
which he was convicted. See McQuiggin v.
Perkins, 133 S.Ct. 1924, 1931 (2013). The exception
“applies to a severely confined category: cases in
which new evidence shows ‘it is more likely than not
that no reasonable juror would have convicted the
petitioner’” in light of that new evidence.
Id. at 1933 (quoting Schlup v. Delo, 513
U.S. 298, 329 (1995)). To demonstrate actual innocence, a
petitioner must make a showing of “factual innocence,
not mere legal insufficiency.” Bousley v. United
States, 523 U.S. 614, 623 (1998).
bases his actual innocence argument on the assertion that
both “attempted first degree murder, ” as was
charged in the indictment against him, and “attempted
murder, ” which is how the court identified the offense
in its instructions to the jury, are
“nonexistent” crimes. At best, Hutchinson’s
argument goes to the legal sufficiency of the charge against
him, not his factual innocence. Accordingly, this petition
may not be excepted from the one-year statute of limitations,
and the district judge should dismiss the petition as
Rules Governing Section 2254 Proceedings require the court to
“issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” §
2254 Rule 11(a). The court will issue the certificate
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Hutchinson has not made the ...