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Etienne v. Edmark

United States District Court, D. New Hampshire

January 14, 2020

Dickens Etienne, Petitioner
v.
Michelle Edmark, Warden, New Hampshire State Prison, Respondent

          ORDER

          Steven J. McAuliffe United States District Judge.

         Dickens Etienne brings this petition seeking habeas corpus relief from his 2004 state court conviction for first degree murder. See 28 U.S.C. § 2254. Respondent moves to dismiss the petition, asserting that it is untimely because it was filed more than one year after the date on which Etienne's conviction became final. See 28 U.S.C. § 2244(d)(1)(A). Etienne objects, asserting that his petition is, in fact, timely. Alternatively, he says he is entitled to the benefit of equitable tolling of the relevant limitations period. Failing that, Etienne claims that because he advances a viable claim of actual innocence, he should be permitted to pursue his otherwise time-barred petition.

         For the reasons discussed, the respondent's motion to dismiss is denied, albeit without prejudice to refiling later if circumstances warrant.

         Governing Law

         The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) and its amendments to 28 U.S.C. § 2254 establish a one-year limitations period for state prisoners to file a federal petition for habeas corpus relief. Typically, that period expires one year from the date on which the state court judgment becomes final “by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The running of that limitations period is, however, subject to statutory tolling. So, for example, the one-year filing limitation does not begin to run until the “date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). Similarly, the limitations period is tolled while “a properly filed application for State post-conviction or other collateral review” is pending. 28 U.S.C. § 2244(d)(2). Finally, there are limited circumstances under which the running of the limitations period may be equitably tolled. See Holland v. Florida, 560 U.S. 631, 645 (2010); Riva v. Ficco, 615 F.3d 35, 39 (1st Cir. 2010).

         Etienne invokes several of those tolling provisions in support of his assertion that his habeas petition is timely filed.

         Background

         On January 28, 2004, Etienne fatally shot Larry Lemieux in the head. In November of that year, Etienne was convicted of first degree murder and is currently serving a sentence of life in prison, without the possibility of parole. Seven years after his trial, on December 21, 2011, the New Hampshire Supreme Court resolved Etienne's direct appeal and affirmed his conviction. Etienne then had 90 days within which to file a petition for certiorari to the United States Supreme Court. He elected not to do so. Consequently, at the expiration of those 90 days, his conviction became “final” and the one year limitations period set forth in 28 U.S.C. § 2244(d)(1) began to run.[1]

         The dates and events most relevant to Etienne's federal habeas petition are as follows:

November 23, 2004 Convicted of First Degree Murder in Hillsborough County Superior Court, Manchester, New Hampshire.
December 21, 2011 New Hampshire Supreme Court affirms Etienne's conviction. The limitations period in 28 U.S.C. § 2244(d)(1) begins to run and Etienne has 455 days to file a federal habeas corpus petition.
December 20, 2012 Etienne files a motion for new trial (construed as motion for habeas corpus). Limitations period is tolled. 364 days elapsed. 91 days remain.
August of 2015 A staff psychiatrist at New Hampshire State Prison diagnoses Etienne with schizophrenia, paranoid type.
Etienne claims this is when he “discovered” the factual basis for his habeas claims (i.e., ineffective assistance of trial counsel for having failed to investigate his mental status and the ...

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