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Towle v. Warden, New Hampshire State Prison for Men

United States District Court, D. New Hampshire

September 30, 2019

Robert Towle
v.
Warden, New Hampshire State Prison for Men

          ORDER

          STEVEN J. MCAULIFFE UNITED STATES DISTRICT JUDGE

         Petitioner 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. 151).

         Procedural Background

         Petitioner 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).[1] 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.

         Prior 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).[2] 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.

         The New 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.

         On 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.

         Thereafter, 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)).

         On 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).

         Thereafter, 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.

         Subsequently, 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.

         On 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)).

         On May 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 ...


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