Parker v. Warden, New Hampshire State Prison for Men

          John J. Parker, pro se, Sean R. Locke, Esq., Elizabeth C. Woodcock, Esq.

          ORDER

          Joseph A. DiClerico, Jr. United States District Judge.

         John J. Parker, proceeding pro se, seeks habeas corpus relief under 28 U.S.C. § 2254 from his state conviction and sentence on five charges of aggravated felonious sexual assault. The warden moves to dismiss the petition as untimely and, alternatively, seeks summary judgment on the merits of the claims. Because the petition is dismissed as untimely filed, it is not necessary to consider the motion for summary judgment on the merits.

         Background

         Parker lived with his nephew, William Knightly, and his family in Nashua in 1993. William and his wife, Dorothy, had two daughters and three sons. One of the daughters, Holly, was twelve years old while Parker lived with the family in 1993.

         In 2008, Holly told her mother that Parker had sexually assaulted her while he lived with them and had threatened to hurt her or kill her if she told anyone. She said that after Parker left she saw him two more times, once in early 1994 and again in 1996. Each time, Parker threatened her. Holly said that she had not reported the assaults sooner because of Parker's threats and because she was afraid her father would hurt Parker and would go to jail.

         Dorothy Knightly reported Holly's accusations to the Nashua police who conducted an investigation. Parker was indicted on sexual assault charges in July of 2009. After several continuances, trial was held in November of 2011.

         Holly testified at trial about the assaults and Parker's threats, including the two threats when she saw Parker in Nashua after the assaults. Parker also testified.

         Parker said that he lived with his nephew, William, and his family for twenty-nine days after he returned to New Hampshire from Florida. He also said that he slept downstairs in the house and that Dorothy, Holly's mother, had a rule that he was not allowed upstairs. He denied assaulting Holly and said that he was innocent. He also said that he never saw Holly after he stopped living in the house and that he never came back to Nashua. On cross examination, however, Parker said that he did come back to Nashua once for five minutes to get photographs.

         Because of Parker's testimony about the rule that he could not go upstairs and that he left Nashua and came back only for one five minute stop, the state was allowed to recall Dorothy Knightly, Holly's mother, to testify. Dorothy testified that there was no rule that Parker could not go upstairs. Dorothy also testified that she saw Parker around Nashua after he moved out of their house. Once Parker came running toward her screaming while she was driving and other times she would see him while she was driving her school bus and he would yell at her and give her the finger. Dorothy also refuted Parker's testimony that he helped the family with work on their house.

         The jury found Parker guilty on all five charges. His conviction was affirmed on appeal. State v. Parker, No. 2012-0235 (N.H. May 23, 2013). Parker then moved to amend his sentence, filed a petition for a writ of habeas corpus, and moved for a new trial in his criminal case. His motions were denied, and the New Hampshire Supreme Court declined his appeal.

         Parker filed his § 2254 petition in this court on May 9, 2016. The magistrate judge determined that Parker did not file his petition within the time allowed by 28 U.S.C. § 2244(d). See Doc. no. 3. Parker was given an opportunity to show cause why his petition should not be dismissed as untimely. Parker filed a response to that order.

         The magistrate judge considered Parker's response and found that his reasons for filing after the deadline did not show uncommon circumstances that would support equitable tolling of the limitations period. The magistrate noted, however, that Parker also asserted that he was actually innocent. For that reason, the magistrate judge allowed Parker to file an amended petition to address actual innocence. Specifically, the order directed Parker "to file an amended habeas petition which includes specific facts that provide a basis for this court to excuse this action from the otherwise applicable statute of limitations based on a credible and compelling claim that ...