Cullen v. NH State Prison, Warden

Filing 3

ORDER granting leave to file an amended Petition for Writ of Habeas Corpus ( Amended Pleadings due by 11/13/2012.) So Ordered by Magistrate Judge Landya B. McCafferty.(vln)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Allan Cullen
v.

Civil No. 12-cv-218-SM

Richard Gerry, Warden,
New Hampshire State Prison

O R D E R
Allan Cullen, appearing pro se, has petitioned for a writ
of habeas corpus (doc. no. 1).

See 28 U.S.C. § 2254.

The

matter is here for preliminary review to determine whether or
not the claims raised in the petition are facially valid and may
proceed.

See Rule 4 of the Rules Governing Section 2254 cases

in the United States District Courts (“§ 2254 Rules”).
§ 2254 Rule 4 Standard
Pursuant to § 2254 Rule 4, a judge is required to promptly
examine any petition for habeas relief, and if “it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the
judge must dismiss the petition.”

Id.

In undertaking this

review, the court decides whether the petition contains
sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face and cognizable in a federal
habeas action.

See McFarland v. Scott, 512 U.S. 849, 856 (1994)

(“Federal courts are authorized to dismiss summarily any habeas
petition that appears legally insufficient on its face.” (citing
§ 2254 Rule 4)).
The court undertakes this preliminary review of the
petition with due consideration for the petitioner’s pro se
status.

“[A]s a general rule, . . . we hold pro se pleadings to

less demanding standards than those drafted by lawyers and
endeavor, within reasonable limits, to guard against the loss of
pro se claims due to technical defects.”

Dutil v. Murphy, 550

F.3d 154, 158 (1st Cir. 2008).
Background
In May 2002, Allan Cullen was convicted of five counts of
felonious sexual assault, in violation of N.H. Rev. Stat. Ann.
(“RSA”) § 632-A:2, and was sentenced in September 2002 to a ten
to twenty year stand-committed sentence, a consecutive five to
twenty year stand-committed sentence, and three suspended
sentences.

Cullen filed a direct appeal, and the New Hampshire

Supreme Court (“NHSC”) affirmed his conviction and sentence on
October 31, 2003.
Cullen and the State each pursued post-conviction
proceedings.

The State filed a motion for sentence review in

2

October 2002.

The Sentence Review Division modified Cullen’s

sentence in an order issued on March 23, 2006.

An appeal of

that decision was filed in the NHSC, and the NHSC affirmed the
Sentence Review Division’s decision on March 20, 2007.
Cullen filed a motion for a new trial and thereafter, a
state petition for writ of habeas corpus.

The superior court

denied the motion for a new trial in November 2003, and the NHSC
summarily affirmed that order on February 9, 2004.

In October

2004, the state superior court denied Cullen’s July 2004
petition for a writ of habeas corpus.

The petition before this

court does not indicate whether Cullen appealed that order, and
if so, whether and when the NHSC issued an order on that appeal.
On June 4, 2012, Cullen filed a new petition for a writ of
habeas corpus in the state superior court.

That petition was

pending at the time Cullen filed the § 2254 petition (doc. no.
1) presently before this court.
Discussion
“A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court.”
§ 2244(d)(1).

28 U.S.C.

In general, the one year period begins to run

upon the conclusion of all direct appeals in the state court
system, followed by either the completion or denial of

3

certiorari proceedings in the United States Supreme Court, or
the expiration of the time allotted for filing a petition for
certiorari review by the United States Supreme Court.

Id.; see

also Ramos-Martínez v. United States, 638 F.3d 315, 320 (1st
Cir. 2011); cf. U.S. Sup. Ct. R. 13(1) (petition for writ of
certiorari is timely filed within 90 days of entry of state
supreme court judgment).

That limitation period, however, is

subject to the following tolling provision: “The time during
which a properly filed application for State post-conviction 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.”

28 U.S.C. § 2244(d)(2).

When the limitation period is tolled by a petitioner’s
pursuit of post-conviction or collateral review in state court,
the “application for [state] post-conviction relief is pending
from the time it is first filed until [the time it is] finally
disposed of and further appellate review is unavailable under
the particular state’s procedures.”

Drew v. MacEachern, 620

F.3d 16, 21 (1st Cir. 2010) (internal quotation marks and
citations omitted)).

In the context of post-conviction or

collateral review, as with direct review, final disposition
comes either with “the completion of appellate review or the
expiration of time for seeking such review.”

4

Currie v.

Matesanz, 281 F.3d 261, 266 (1st Cir. 2002) (citing 28 U.S.C.
§ 2244(d)(1)); Swartz v. Meyers, 204 F.3d 417, 421-25 (3d Cir.
2000) (application for collateral review stopped being “pending”
when time for appealing lower state court order expired).
The timeline presented in Cullen’s petition suggests that
the statute of limitations began to run ninety days after
October 31, 2004 (one year after the NHSC affirmed Cullen’s
direct appeal).

That time period was tolled for the duration of

the post-conviction proceedings, including the sentence review
proceedings.
(2011).

See Wall v. Kholi, 131 S. Ct. 1278, 1284-87

Such proceedings ended on March 20, 2007, when the NHSC

affirmed the decision of the Sentence Review Division.
Cullen filed the instant petition on July 11, 2012, more
than five years after the relevant post-conviction proceedings
ended.

Cullen’s filing of a post-conviction motion after that

date did not restart AEDPA’s limitation period.

A “state court

petition . . . that is filed following the expiration of the
federal limitations period ‘cannot toll that period because
there is no period remaining to be tolled.’”

Tinker v. Moore,

255 F.3d 1331, 1333 (11th Cir. 2001) (citation omitted); see
also Trapp v. Spencer, 479 F.3d 53, 58-59 (1st Cir. 2007).
A district court may dismiss a habeas petition sua sponte
on the basis of the statute of limitations, if the time-bar is

5

apparent on the face of the petition, see § 2254 Rule 4, and if
the parties receive fair notice and an opportunity to object.
See Day v. McDonough, 547 U.S. 198, 209-10 (2006).

The facts

stated in Cullen’s § 2254 petition indicate that his petition is
time-barred; the court can identify no facts in the record which
would indicate that the limitations period should be further
tolled, whether pursuant to 28 U.S.C. § 2244(d)(2), or any other
authority.

See, e.g., Holland v. Florida, 130 S. Ct. 2549, 2560

(2010); Drew, 620 F.3d at 23 (petitioner is entitled to
equitable tolling only if he shows “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing” of
his federal habeas petition (internal quotation marks and
citations omitted)).

In conformity with Day, 547 U.S. at 209-

210, and to avoid unfairness to Cullen, who may yet be able to
show that post-conviction proceedings have been continuously
pending, or that extraordinary circumstances in his case warrant
equitable tolling of the limitations period, the court provides
Cullen with thirty days to file an amended petition,
demonstrating that the petition is not time-barred.
Conclusion
For the reasons described above, Cullen is granted leave to
file an amended petition for writ of habeas corpus, within 30

6

days, to demonstrate that his petition is timely.

Cullen’s

failure to comply with this order may result in a recommendation
that the petition be dismissed with prejudice as untimely,
pursuant to 28 U.S.C. § 2244(d).
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
October 10, 2012
cc:

Allan Cullen, pro se

LBM:nmd

7