Polansky v. NH Department of Corrections, Commissioner et al

Filing 10

ORDER Polansky is granted leave to file an amended habeas petition to show cause why this action should not be dismissed as untimely filed. 1 Petition for Writ of Habeas Corpus., ( Amended Pleadings due by 3/14/2013.) So Ordered by Magistrate Judge Landya B. McCafferty.(mm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Christopher Polansky
v.

Civil No. 13-cv-3-PB

Richard M. Gerry, Warden, New
Hampshire State Prison1
O R D E R
Christopher Polansky has filed a petition for a writ of
habeas corpus (doc. no. 1) and exhibits addended thereto (doc.
no. 9) pursuant to 28 U.S.C. § 2254.
court for preliminary review.

The matter is before the

See Rules Governing Section 2254

Cases in the United States District Courts (“§ 2254 Rules”) Rule
4; United States District Court District of New Hampshire Local
Rule (“LR”) 4.3(d)(2).
§ 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
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Polansky named both New Hampshire State Prison (“NHSP”)
Warden Richard M. Gerry and New Hampshire Department of
Corrections Commissioner William L. Wrenn as respondents to this
action. The proper respondent in a federal habeas action is the
petitioner’s custodian, who in this case is the NHSP warden.
See Rule 2 of the Rules Governing Section 2254 cases in the
United States District Courts. The court thus construes the
petition to have named Gerry as the sole respondent in this
matter.

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.

“As 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
I.

Trial and Sentencing
On August 25, 2001, Polansky pleaded guilty to four felony

offenses in the Hillsborough County Superior Court, Northern
District (“HCSCN”), and was sentenced, pursuant to a “capped”
plea agreement, to serve 7½-15 years in prison on one charge,
and 2½-5 years in prison on each of three additional charges.

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The sentences were imposed consecutively, resulting in a total
sentence of 15–30 years, which is the sentence the state
requested.
II.

Sentence Review
The docket sheet for Polansky’s criminal case in the HCSCN,

which is an exhibit to his habeas petition, reveals that on
September 4, 2001, Polansky, acting without counsel, applied for
review of his sentence.

See Doc. No. 6, p. 9.

Polansky asserts

now, however, that he did not request review of the sentence
imposed from the Superior Court Sentence Review Division
(“SRD”).
Polansky states that in late 2002, someone from the SRD,
unable to reach Polansky, contacted Polansky’s sister concerning
the request for sentence review.

Polansky claims that, without

legal authority to do so, his sister requested that a hearing be
held as soon as possible, as Polansky had been diagnosed with
cancer and was, at that time, thought to be dying.
was scheduled for January 8, 2003.

The hearing

A letter to Polansky from

the SRD, attached to the instant petition, states that Polansky
had been advised that he had a right to counsel at the SRD
hearing and should he want counsel, he should fill out
paperwork.

See Doc. No. 1, p. 26.

Polansky states he never

received that letter or instruction and, as a result, he was not

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aware of his right to counsel at the sentence review hearing,
and thus appeared at that hearing without counsel.
Polansky asserts that he was under the influence of
narcotics and other mind-altering medication related to his
cancer treatment at the time of the sentence review hearing.
Further, Polansky asserts that had he been more aware of what
was going on, or if he had counsel, he would have withdrawn the
request for sentence review rather than going through with the
hearing.

The sentence review hearing was held on November 13,

2002, and on January 8, 2003, the SRD added a 5-10 year period
of incarceration to Polansky’s sentence.

See State v. Polansky,

Nos. 00-S-1389, -1767, -1769 to -1771, (N.H. Super. Ct.,
Hillsborough Cnty., N. Div. Jan. 8, 2003); see also Doc. No. 6,
p. 9.
Polansky filed another motion to suspend his sentence on
August 2, 2004, which was denied on October 7, 2004.
No. 6, p. 10.

See Doc.

Further, on June 22, 2006, Polansky filed a

motion seeking transcripts of court hearings in his case for the
purposes of challenging his conviction and sentence.
motion was denied on June 29, 2006.

Id.

That

Id.

III. 2010-2011 Challenge to Sentence Review Proceedings
After the June 2006 motions concerning transcripts, neither
the HCSCN docket sheet nor any other part of the record

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presently before the court reflects any proceedings in
Polansky’s criminal case, until August 2010, when Polansky wrote
to the SRD challenging the January 8, 2003, sentencing order.
Polansky thereafter litigated issues related to the sentence
review proceedings in the superior court, and, when his efforts
were unsuccessful, he filed both a notice of appeal, appealing
the SRD’s denial of relief, and a motion for original
jurisdiction in the New Hampshire Supreme Court (“NHSC”).

On

October 13, 2011, the NHSC declined the notice of appeal, see
State v. Polansky, No. 2011-0359 (N.H. Oct. 13, 2011), and
denied the petition for original jurisdiction the next day, see
In re Polansky, No. 2011-600 (N.H. Oct. 14, 2011).

Polansky

took no further appeal in the state courts.
IV.

§ 2254 Petition
Polansky filed his § 2254 petition (doc. no. 1) in this

court on January 3, 2013.

In this action, Polansky challenges

the legality of the SRD’s decision to increase his sentence, and
the failure of the state courts to remedy alleged procedural
defects in the sentence review proceedings, in violation of
Polansky’s due process rights.
Discussion
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) sets a one-year limitations period for state prisoners

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to file federal habeas petitions.

See 28 U.S.C. § 2244(d)(1);

see Wood v. Milyard, 132 S. Ct. 1826, 1831 (2012); Herbert v.
Dickhaut, 695 F.3d 105, 108 (1st Cir. 2012).

AEDPA’s one-year

time limit runs from the time that the state court judgment of
conviction became final by the conclusion of direct review or by
the expiration of the time for seeking direct review.

28 U.S.C.

§ 2244(d)(1)(A); see Wood at 1831; Herbert, 695 F.3d at 108.
Certain statutory exceptions to the statute of limitations
exist where the untimely filing was caused by state-impeded
relief, new constitutional rights created by the Supreme Court,
or newly discovered facts underpinning the claim.

See 28 U.S.C.

§ 2244(d)(1)(B)-(D); Gonzalez v. Thaler, 132 S. Ct. 641, 653
(2012) (citing § 2244(d)(1)); David v. Hall, 318 F.3d 343, 344
(1st Cir. 2003).

Further, AEDPA excludes from the one-year

limitations period 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.”

28

U.S.C. § 2244(d)(2); see also Wood, 132 S. Ct. at 1831; Drew v.
MacEachern, 620 F.3d 16, 20 (1st Cir. 2010).

Although the

limitations period is stopped during the pendency of properly
filed post-conviction state court litigation, it is not reset or
restarted by post-conviction litigation initiated after the
AEDPA limitations period has expired.

See Trapp v. Spencer, 479

F.3d 53, 58-59 (1st Cir. 2007) (post-conviction state court
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litigation filed after AEDPA’s limitations period expires does
not stop or reset clock).
For purposes of preliminary review, the court assumes that
Polansky filed a timely motion for sentence review on September
4, 2001, as reflected in the superior court docket.
No. 6, p. 9.

See Doc.

That proceeding ended on or about February 7,

2003, the date of the expiration of the time when Polansky could
have properly appealed the SRD’s January 8, 2003, decision.
Therefore, the statute of limitations for filing a federal
habeas action began to run in February 2003 and expired on or
around February 7, 2004.
The record presently before the court does not reflect that
Polansky engaged in any state court proceedings between February
2003 and February 2004 that would cause the limitations period
for filing this habeas action to be tolled.

The fact that

Polansky returned to litigating the case, first six months after
the one-year period expired, then in 2006, and again in 2010,
did not reset or restart the expired limitations period.
If the record before the court includes all of Polansky’s
post-conviction litigation efforts, the instant action was
initiated after the deadline for filing a habeas petition.
However, the court cannot, at this time, conclude that no other
litigation occurred that might impact the calculation of the
expiration of the applicable limitations period.
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Additionally,

it may be that Polansky can show that he acted with due
diligence in pursuing legal challenges to his conviction and
sentence, but that an incapacitating health problem, or some
other exceptional circumstance, warrants this court’s equitable
tolling of the limitations period.

See, e.g., Holland v.

Florida, 130 S. Ct. 2549, 2560, 2562-63 (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)).

Accordingly,

the court gives Polansky the opportunity to show cause why the
habeas action pending in this court should not be dismissed as
untimely.
Conclusion
Within thirty days of the date of this order, Polansky is
granted leave to file an amended habeas petition to show cause
why this action should not be dismissed as untimely filed.

See

LR 4.3(d)(2)(B) (magistrate judge may grant pro se plaintiff
leave to file amended pleading).

To do so, Polansky must file

documents as exhibits to his amended petition, including motions
or briefs filed in the state courts, challenging his conviction

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and/or sentence, as well as any pertinent state court orders or
other documents, for the purpose of demonstrating either:
1.

That the one-year limitations period should be

tolled or recalculated pursuant to 28 U.S.C. § 2244(d)(2);
or
2.

That he has been pursuing his rights diligently,

and that exceptional circumstances warrant equitable
tolling of the limitations period in this matter.
Polansky’s failure to show cause as directed, or failure to
otherwise comply with this order, may result in a recommendation
that his petition be dismissed.
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
February 14, 2013
cc:

Christopher Polansky, pro se

LBM:jba

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