Graham v. NH State Prison, Warden

Filing 8

ORDER denying as moot 4 Motion to Compel; Petition for writ of habeas corpus 1 dismissed as untimely filed. Court declines to issue a certificate of appealability. Clerk to 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

Melvin Graham
v.

Civil No. 12-cv-271-JD

Warden, New Hampshire State Prison
O R D E R
Melvin Graham, proceeding pro se, seeks relief pursuant to
28 U.S.C. § 2254 from his state conviction.

Graham also moves to

compel the state court to enforce an order issued on November 28,
2011, pertaining to providing a copy of the transcript of a
sentence review hearing to Graham.

The Warden moves to dismiss

the case as untimely.

Background1
Graham was convicted in 1996 on three counts of aggravated
felonious sexual assault and one count of felonious sexual
assault on his niece, who was eight years old at the time of the
assaults.

State v. Graham, 142 N.H. 357, 359 (1997).

On appeal,

the New Hampshire Supreme Court rejected Graham’s claims that the
evidence was insufficient to convict and that the trial court

1

More complete background information is provided in the
Report and Recommendation, issued in Graham v. Warden, 04-cv-126JD, August 9, 2004, document no. 7.

improperly excluded a defense witness’s testimony, but remanded
the case for the trial court to determine whether Graham’s motion
for in camera review of privileged records should have been
granted, and if so, whether the records contained evidence that
would require a new trial.

Id. at 363.

The trial court

concluded that the privileged records did not require a new
trial, and the supreme court affirmed that decision on October
23, 1998.
Graham moved for a new trial based on claims of ineffective
assistance of trial counsel, which was denied.

He then filed

multiple petitions for a writ of habeas corpus in state court,
which were denied.

His appeals to the New Hampshire Supreme

Court were unsuccessful.
On January 8, 2001, Graham filed a petition for a writ of
habeas corpus in this court, which was dismissed because he had
not shown that he had exhausted state remedies.

After initiating

other state court actions without success, Graham filed a second
habeas corpus action in this court on April 7, 2004, asserting
ineffective assistance of counsel.

The case was dismissed as

barred by the statute of limitations.

See 04-cv-126-JD, Sept.

30, 2004, document no. 12.
Graham filed this case, his third federal petition for
habeas corpus relief, on July 18, 2012.
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Discussion
The Warden moves to dismiss the case as barred by the
statute of limitations, as the court determined in the prior
federal habeas corpus action Graham filed, 04-cv-126-JD.

In

response, Graham argues that the Warden’s motion is irrelevant,
that the state lacks a corrective process to protect his rights,
and that the limitations period was restarted by his motion for a
reduction in his sentence.
A petition for habeas corpus relief under § 2254 must be
filed within one year of the last of the following dates:

the

date of final judgment, the date that an unconstitutional
impediment to filing is removed, the date that the constitutional
right was recognized by the Supreme Court, or the date when
predicate facts could have been discovered through due diligence.
28 U.S.C. § 2244(d)(1).

The court determined in 2004 that the

petition filed then was untimely.
Graham cites Wall v. Kholi, 131 S. Ct. 1278 (2011), arguing
that his current petition is timely following his request for
reduction of his sentence.

In Wall, the petitioner filed a

motion to reduce his sentence and while that motion was pending
he filed an application for state post-conviction relief.
1282.

Id. at

The state courts denied his motion to reduce sentence, but

the application for post-conviction relief remained pending for
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over nine years, which tolled the time for filing under
§ 2244(d).

By the time the petition for federal habeas corpus

relief was filed, however, the petition would have been timely
only if the motion to reduce sentence also tolled the limitation
period.

Id. at 1283.

The Supreme Court held that the motion to

reduce sentence was a form of “collateral review,” under Rhode
Island law, that tolled the limitation period, making the federal
petition timely.

Id. at 1287.

In contrast, Graham has not shown that any pending motions
that he filed in state court tolled the limitations period beyond
the deadline determined in his prior federal case, 04-cv-126-JD.
Once the limitation period expires, it is not reinstated by
subsequently filed motions.

See § 2244(d); Trapp v. Spencer, 478

F. 3d 53, 58-59 (1st Cir. 2007); Cordle v. Guarino, 428 F.3d 46,
48 n.4 (1st Cir. 2005); Jiminez v. Rice, 276 F.3d 478, 482 (9th
Cir. 2001); Moore v. McCabe, 2012 WL 5846282, at *10 (D.S.C. Oct.
22, 2012).

Graham has not shown any circumstances that would

toll the limitations period for his current petition.
Therefore, because the action is untimely, it must be
dismissed.

In the absence of a viable action, Graham’s motion to

compel is moot.

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Conclusion
For the foregoing reasons, the petition for a writ of habeas
corpus (document no. 1) is dismissed as untimely filed.

The

petitioner’s motion to compel (document no. 4) is denied as moot.
The court declines to issue a certificate of appealability.
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
December 10, 2012
cc:

Melvin C. Graham, pro se
Elizabeth C. Woodcock, Esquire

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