United States District Court, D. New Hampshire
John J. Parker
Warden, New Hampshire State Prison for Men
J. Parker, pro se, Sean R. Locke, Esq., Elizabeth C.
A. DiClerico, Jr. United States District Judge.
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.
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.
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.
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.
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.
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
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.
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
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.
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 ...