Winbush v. NH State Prison

Filing 9

ORDER denying 7 Rule 60 Motion. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Bradley D. Winbush
v.

Civil No. 13-cv-140-JD

Richard Gerry, Warden,
New Hampshire State Prison
O R D E R
Bradley D. Winbush, proceeding pro se, filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On

preliminary review, the magistrate judge recommended that the
petition be denied because it was untimely.

Winbush did not

respond to the report and recommendation within the time allowed.
The report and recommendation was approved, and judgment was
entered on June 20, 2013.
On June 21, 2013, the court received Winbush’s objection to
the report and recommendation.

Winbush filed a motion for relief

from the judgment pursuant to Federal Rule of Civil Procedure 60
on June 26, 2013.

Winbush represents that he received the report

and recommendation on June 1 and that he deposited his objection
to the report and recommendation into the prison mail system on
June 14, 2013.

In his motion, Winbush asks the court to consider

his objection to the report and recommendation and to vacate the
judgment.

The magistrate judge concluded in the report and
recommendation that Winbush’s petition was untimely because it
was filed in 2013, much more than one year after his conviction
became final in 1999.

See 28 U.S.C. § 2244(d)(1).

Although

Winbush initiated post-conviction proceedings in state court, he
did so long after the § 2244(d)(1) limitation period had expired,
which precluded tolling under § 2244(d)(2).
Spencer, 479 F. 3d 53, 58-59 (1st Cir. 2007).

See Trapp v.
In his objection,

Winbush argues that his petition is not time-barred because the
factual predicate for his petition was not known until the state
court issued its decision on May 11, 2012, reducing his maximum
sentence to forty-four years.
Section 2244(d)(1)(D) provides that the one-year limitation
period runs from the latest of four occurrences, including “the
date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.”

Winbush’s claim is that his guilty plea was

involuntary because he was not correctly informed about the
length of his sentence.

Winbush states in his objection that he

thought his sentence was twenty-two years but “learned, through
normal D.O.C. classification and parole processess {sic}, that he
had actually been sentenced to a term of 22 to 64 years.”
Winbush does not state when that occurred but states that he
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“promptly moved his trial court for withdrawal of his guilty
plea.”
Based upon the facts found by the state court in the May 11,
2012, decision, which Winbush filed with his petition, Winbush
knew when he pleaded guilty in 1999 that his sentence was 22 to
44 years.

Therefore, the more recent state court proceedings did

not provide the factual predicate for Winbush’s claims that could
not have been discovered earlier.

To the extent Winbush objects

to the factual grounds for the state court’s May 11, 2012,
decision, that is not a basis for § 2254 relief.

The § 2254

petition was not timely filed.

Conclusion
For the foregoing reasons, the petitioner’s motion under
Rule 60 is denied.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
July 24, 2013
cc:

Bradley D. Winbush, Jr., #73085

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