Balliro v. NH State Prison, Warden

Filing 9

///ORDER granting 5 Motion to Dismiss. Court declines to issue a certificate of appealability. Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Anthony Balliro
v.

Civil No. 12-cv-133-JD
Opinion No. 2012 DNH 178

Richard Gerry, Warden,
New Hampshire State Prison
O R D E R
Anthony Balliro, proceeding pro se, seeks habeas corpus
relief, pursuant to 28 U.S.C. § 2254, from his state court
convictions and sentence.

In support of his petition, Balliro

alleges that his counsel in the criminal proceeding provided
constitutionally deficient representation.

The Warden moves to

dismiss the petition on the ground that it is untimely.

Background
Balliro was convicted on July 6, 2007, following a jury
trial, of first degree murder and arson.
convictions.

He appealed the

On October 30, 2008, the New Hampshire Supreme

Court affirmed the convictions, concluding that trial court did
not abuse its discretion in denying Balliro’s request for a jury
instruction that he was permitted to use deadly force to prevent

a trespasser from committing arson.

State v. Balliro, 158 N.H.

1, 6 (2008).
On October 3, 2009, Balliro, represented by new counsel,
filed a motion for a new trial.1

The Carroll County Superior

Court denied the motion on June 23, 2010.

Balliro appealed the

decision, and the New Hampshire Supreme Court issued a decision
on October 3, 2011, affirming the lower court.
Balliro contends that he did not receive a copy of the New
Hampshire Supreme Court’s decision until March 15, 2012, when
counsel sent him a copy.

In the letter, counsel indicated that a

copy of the decision had been sent to Balliro previously.
Counsel also advised that further appellate review was not likely
to succeed and stated “that there is a one year time limit from
the date of the decision (October 3, 2011) within which to file a
federal appeal.”

Balliro did not appeal the October 3, 2011,

decision.
On April 4, 2012, Balliro filed the petition for habeas
corpus relief in this court proceeding pro se.

At the same time,

he filed a motion to stay to allow him time to decide whether

1

The Warden represents that the motion was filed on October
3, 2009. The motion indicates that copies were sent to counsel
of record on October 25, 2009. Because the October 3 date is
more favorable to Balliro, the court will proceed with the dates
the Warden provides.
2

equitable tolling of the statute of limitations would apply.

He

also argued that if the petition were deemed to be untimely, the
cause for the delay was the negligence of his counsel.

The

motion to stay was denied as premature because the Warden had not
then raised the defense of the statute of limitations.

Discussion
The Warden moves to dismiss the habeas petition on the
ground that it is untimely.

Balliro did not respond to the

motion.
A petition for habeas corpus relief must be filed within one
year of the date when the judgment became final, the date on
which an impediment to filing is removed, the date when an
asserted constitutional right is newly recognized, or the date
when the factual basis for relief could have been discovered.
U.S.C. § 2244(d)(1).

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“The time during which a properly filed

application for State post-conviction relief or other collateral
review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this
subsection.” § 2244(d)(2).

In rare situations, the deadline may

be tolled for equitable reasons.

Maples v. Thomas, 132 S. Ct.

912, 924 (2012); Holmes v. Spencer, 685 F.3d 51, 62 (1st Cir.
2012).
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A.

Time Allowed under § 2244(d)
The Warden represents, and Balliro does not dispute, that

after calculating the excluded time, he filed his petition for
habeas relief well beyond the deadline.

The Warden calculates

that 248 days passed after the decision affirming Balliro’s
conviction and before he filed the motion for a new trial,
leaving 117 days in the statutory period.

The motion for a new

trial stopped the time until the New Hampshire Supreme Court
issued its decision on October 3, 2011.

Then, 184 days passed

until Balliro filed his petition in this court on April 4, 2012.
As a result, the petition was not timely filed.

B.

Equitable Tolling
To the extent Balliro would assert that equitable tolling

applies to extend the time, the court considers that theory based
on Balliro’s motion to stay.

There, Balliro asserted that his

post-conviction counsel caused him to miss the deadline by
failing to send him a copy of the New Hampshire Supreme Court’s
decision until March 15, 2012, and by telling him that he had a
year from October 3, 2011, to file a federal appeal.
“[A] ‘petitioner’ is entitled to equitable tolling only if
he shows (1) that he has been pursing his rights diligently, and
(2) that some extraordinary circumstances stood in his way and
4

prevented timely filing.”
2562 (2010).

Holland v. Florida, 130 S. Ct. 2549,

“[T]he diligence required for equitable tolling

purposes is ‘reasonable diligence,’ not ‘maximum feasible
diligence’ . . .” that requires the petitioner to do what he
reasonably thought was necessary to preserve his rights based on
the information he was given.

Holmes, 685 F.3d at 65 (quoting

Holland, 130 S. Ct. at 2565).

To meet the extraordinary

circumstances standard, an attorney’s conduct must go far beyond
“garden variety” negligence or “excusable neglect.”

Holland, 130

S. Ct. at 2564.
Based on the March 15, 2012, letter from counsel that
Balliro filed with his motion for a stay, it appears that counsel
sent a copy of the October 3, 2011, decision to Balliro in
October after it was issued, but that Balliro may not have
received it for unexplained reasons.

The letter suggests that it

was sent in response to Balliro having contacted counsel to
inquire about his motion for a new trial, but Balliro provides no
detail about when he contacted counsel or how quickly counsel
responded to his inquiry.2

Counsel did provide incorrect advice

about the timing for a “federal appeal.”

2

The notice of appeal was filed on July 22, 2010, and the
decision was issued more than a year later on October 3, 2011.
5

Whether or not Balliro pursued his rights with reasonable
diligence cannot be determined based on the motion to stay.
Balliro, however, bears the burden of showing that equitable
tolling would apply in this case.

Holland, 130 S. Ct. at 2562.

Balliro’s failure to respond to the Warden’s motion to dismiss
undermines his ability to sustain that burden.

Further, while

the letter from counsel shows that Balliro may not have received
a copy of the decision when it was first sent to him and that
counsel gave incorrect advice about the time for a federal
appeal, those mistakes do not rise to the level of abandoning
representation or serious attorney misconduct sufficient to
support equitable tolling.

See Maples, 132 S. Ct. at 923;

Holland, 130 S. Ct. at 2564.

Conclusion
For the foregoing reasons, the Warden’s motion to dismiss
(document no. 5) is granted.
certificate of appealability.

The court declines to issue a
See 28 U.S.C. § 2253(c)(2); Rule

11, Federal Rules Governing § 2254 Cases.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
October 2, 2012
cc:

Anthony Balliro #79133, pro se
Elizabeth C. Woodcock, Esquire
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