United States District Court, D. New Hampshire
J. McAuliffe United States District Judge.
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.
reasons discussed, the respondent's motion to dismiss is
denied, albeit without prejudice to refiling later if
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.
invokes several of those tolling provisions in support of his
assertion that his habeas petition is timely filed.
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
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
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 ...