United States District Court, D. New Hampshire
J. MCAULIFFE UNITED STATES DISTRICT JUDGE
Robert Towle (hereinafter “Towle” or
“Petitioner”) has filed an amended petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254,
alleging that his present incarceration violates his
constitutional rights. See § 2254 Pet. (Doc. No. 1), as
amended by Doc. Nos. 9-1, 65, 67, 91, 123. Respondent, the
Warden of New Hampshire State Prison for Men (hereinafter
“Respondent” or “the Warden”) has
filed a Motion to Dismiss Claims 5-27 of the amended petition
as untimely. (Doc. No. 135). Petitioner objects. (Doc. No.
is a prisoner of the State of New Hampshire, who, after a
jury trial in Coos Superior Court, was convicted on January
29, 2013, of four counts of aggravated felonious sexual
assault for engaging in fellatio and anal penetration with
his minor son (“J.T.”), and four counts of
criminal liability for the conduct of another for encouraging
his wife and another adult to engage in sexual acts with J.T.
See Am. § 2254 Pet. (Doc. No. 1) at 1; State v.
Towle, 111 A.3d 679, 681 (N.H. 2015) (citations
omitted). The court sentenced Petitioner on March
11, 2013 to serve 57 - 114 years in prison, and ordered that
he have no contact with the victim, the reporting witness,
and his other minor son. See Towle, 111 A.3d at 681.
to trial, Petitioner waived his right to counsel and
indicated he wished to represent himself. The trial court
held a two-hour hearing on May 1, 2012, pursuant to
Faretta v. California, 422 U.S. 806, 835 (1975), to
determine whether Petitioner’s waiver of his right to
counsel was “knowing and voluntary.” See Faretta
Colloquy Tr. (Doc. No. 19). The court concluded
Petitioner’s waiver was knowing and voluntary, and it
approved a hybrid representation plan proposed by Petitioner
and his attorney. Under that plan, Petitioner represented
himself “from the moment the jury [was] sworn until the
moment the jury retire[d] to begin deliberations, during
which period Attorney [Joseph] Fricano [was] appointed and
act[ed] as standby counsel.” Faretta Colloquy Tr. (Doc.
No. 19), at 65; see also Id. at 7-8, 12, 13, 55.
Prior to the jury being sworn in and after the jury retired
to deliberate, Petitioner was represented by Attorney
Fricano. See id.
Hampshire Supreme Court (“NHSC”) affirmed
Petitioner’s convictions on direct appeal but reversed
the no-contact order imposed at sentencing. See Towle, 111
A.3d at 682. Petitioner’s sentence remains otherwise
intact. Id. at 690.
April 2, 2015, Petitioner filed his petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 in this
Court, and thus began a more than four-year exercise of the
limits of federal civil procedure. On August 28, 2015, the
Court issued a preliminary review order (Doc. No. 5),
identifying 14 proposed grounds for relief in the petition
and directing Petitioner to either: 1) file a motion to amend
his petition asserting the federal nature of each of the
proposed grounds for relief and demonstrating that each of
those federal claims has been exhausted in the state courts;
or 2) file a motion to stay this civil action to allow him to
exhaust his state court remedies on his federal claims.
Petitioner filed a motion to amend (Doc. No. 9) his habeas
Petition. The Court entered an Order (Doc. No. 13) granting
the motion; finding that Petitioner had exhausted the federal
grounds for Claims 1-14; and directing Respondent to file an
answer, motion, or other response to the petition as amended.
The Warden filed an answer (Doc. No. 15) and a motion to
dismiss (Doc. No. 18), which the Court denied. See Order
(Doc. No. 57) (approving Report and Recommendation
(“R&R”) (Doc. No. 50)).
October 13, 2016, the Court entered an Order (Doc. No. 43)
giving Petitioner a deadline of November 26, 2016, to file
either a motion to amend the petition to add any new claims
he believed were meritorious or a notice stating that he did
not intend to add any new claims to the petition. Instead of
complying with the Court’s instructions, Petitioner
filed two requests (Doc. Nos. 64, 66) in the First Circuit
Court of Appeals for authorization to file a second or
successive habeas petition in the district court. On March
17, 2017, the First Circuit denied Petitioner’s
requests as unnecessary and remanded the petitions to this
Court with instructions to treat them as motions to amend his
still pending § 2254 Petition. See Mar. 17, 2017 J.,
Towle v. Zenk, No. 16-2175 (1st Cir. Mar. 17, 2017);
Mar. 17, 2017 J., Towle v. Zenk, No. 16-2224 (1st
Cir. Mar. 17, 2017) (Doc. No. 66); Pet’r’s Mots.
to Amend (Doc. Nos. 65, 67).
the Warden filed a motion for summary judgment (Doc. No. 72)
and Petitioner filed a motion to stay this action (Doc. No.
85), to allow him to exhaust state court remedies for the
federal claims raised in his motions to amend. The Court
granted Petitioner’s motion to stay, see Doc. No. 88,
and took under advisement Petitioner’s motions to amend
the § 2254 petition and Respondent’s motion for
summary judgment. See June 21, 2017 Order.
Petitioner filed a motion to lift the stay (Doc. No. 90), and
his fourth motion to amend (Doc. No. 91) the § 2254
Petition. The Court lifted the stay and entered an Order
identifying ten new federal claims (numbered 15-24) raised in
Petitioner’s second, third, and fourth motions to
amend. See Order (Doc. No. 117) (approving R&R (Doc. No.
100)). The Court granted the motions to amend, to the extent
they alleged violations of Petitioner’s rights under
federal constitutional law. See id.
February 1, 2018, the Court entered an Order (Doc. No. 107)
staying proceedings in this civil action pending
Petitioner’s exhaustion of ineffective assistance of
trial counsel claims in the state courts. The Court also
entered an order denying Respondent’s motion for
summary judgment (Doc. No. 72), without ruling on the merits,
and without prejudice to Respondent’s ability to refile
or amend it after the stay was lifted. See Order (Doc. No.
119) (approving R&R (Doc. No. 108)).
31, 2018, Petitioner filed a motion to lift stay (Doc. No.
123), which the Court construed, in part, as a motion to
amend the § 2254 Petition to add three ineffective
assistance of trial counsel claims (numbered 25-27), see Doc.
No. 127. Respondent filed an answer (Doc. No. 128) to Claims
25-27, an addendum (Doc. No. 129) to the answer, a motion for
summary judgment as to Claims 15-27 (Doc. No. 133), a motion
to dismiss Claims 15-27 as time-barred (Doc. No. 135), and a
motion for summary judgment as to Claims 1-14 (Doc. No. 139).
Petitioner has objected to the motion to ...