Roldan v. Northern NH Correctional Facility, Warden
Filing
17
///ORDER granting 12 Motion for Summary Judgment. So Ordered by Judge Paul J. Barbadoro.(jna)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Angel Roldan
v.
Civil No. 13-cv-447-PB
Opinion No. 2014 DNH 158
Edward Reilley, Warden,
Northern New Hampshire Correctional Facility
MEMORANDUM AND ORDER
Angel Roldan is incarcerated pursuant to a final judgment
of the New Hampshire state courts.
After exhausting his avenues
for relief in state court, he filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
for summary judgment.
The state has moved
I grant the motion.
I.
BACKGROUND
On April 18, 2001, Roldan was arrested and later indicted
in superior court on one count of being a drug enterprise leader
and three separate counts of conspiracy to sell cocaine, crack
cocaine, and ecstasy.
284-85 (2004).
New Hampshire v. Roldan, 151 N.H. 283,
A jury convicted him on all counts, and Roldan
was sentenced to at least sixty-five years in state prison.
Id.; Doc. No. 1.
The New Hampshire Supreme Court affirmed
Roldan’s conviction on July 23, 2004.
Roldan, 151 N.H. at 287.
On July 28, 2008, Roldan filed a pro se petition for a new
trial.
Doc. No. 1-3.
The superior court denied the petition as
untimely on February 4, 2009.
Doc. No. 1-4.
Roldan appealed
that denial to the New Hampshire Supreme Court, which remanded
to the superior court with instructions to treat the appeal as a
petition for a writ of habeas corpus.
Doc. No. 7-2.
The
superior court denied habeas relief on August 11, 2011.
No. 7-3.
Doc.
On September 22, 2011, Roldan filed a notice of
discretionary appeal with the New Hampshire Supreme Court.
No. 7-3.
Doc.
The Supreme Court affirmed the superior court’s denial
of habeas relief on October 12, 2012.
Doc No. 7-5.
On October 8, 2013, Roldan filed a petition for a writ of
habeas corpus in this court.
Doc. No. 1.
The state filed a
motion to dismiss on February 6, 2014, arguing that Roldan’s
petition was untimely.
19, 2014.
Doc. No. 10.
Doc. No. 6.
Roldan objected on February
The state filed a motion for summary
judgment incorporating its timeliness argument on February 24,
2014, Doc. No. 12, to which Roldan objected.
II.
Doc. No. 15.
STANDARD OF REVIEW
Summary judgment is appropriate when the record reveals “no
genuine dispute as to any material fact and the movant is
2
entitled to judgment as a matter of law.”
56(a).
Fed. R. Civ. P.
An issue is considered genuine if the evidence allows a
reasonable jury to resolve the point in favor of the nonmoving
party, and a fact is considered material if it “is one ‘that
might affect the outcome of the suit under the governing law.’”
United States v. One Parcel of Real Prop. with Bldgs., 960 F.2d
200, 204 (1st Cir. 1992) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
In ruling on a motion for
summary judgment, I examine the evidence in the light most
favorable to the nonmoving party.
Navarro v. Pfizer Corp., 261
F.3d 90, 94 (1st Cir. 2001).
The party moving for summary judgment bears the initial
burden of identifying the portions of the record it believes
demonstrate an absence of disputed material facts.
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Celotex
In determining what
constitutes a material fact, “we safely can ignore ‘conclusory
allegations, improbable inferences, and unsupported
speculation.’”
Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st
Cir. 2002) (quoting Medina–Munoz v. R.J. Reynolds Tobacco Co.,
896 F.2d 5, 8 (1st Cir. 1990)).
3
III.
ANALYSIS
The New Hampshire Supreme Court affirmed Roldan’s
conviction on direct appeal on July 23, 2004.
at 287.
Roldan, 151 N.H.
The conviction became final on direct review ninety
days later - on October 21, 2004 - when the time expired for
Roldan to file a petition for a writ of certiorari in the U.S.
Supreme Court.
Doc. No. 1; see Gonzalez v. Thaler, 132 S. Ct.
641, 653-54, 656 (2012) (citing Sup. Ct. R. 13.1) (discussing
the federal habeas limitations period calculation).
Consequently, the period for Roldan to timely file a
federal habeas petition commenced on October 21, 2004 and
expired one year later, on October 21, 2005.1
See 28 U.S.C.
§ 2244(d)(1) (“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. . . .
[running from]
the date on which the judgment became final by the conclusion of
1
Although “[t]he time during which a properly filed application
for State post-conviction or other collateral review . . . is
pending shall not be counted toward” the one-year limitations
period, see 28 U.S.C. § 2244(d)(2), Roldan first sought
collateral review in state court almost three years after the
expiration of the one-year limitations period. Doc. No. 1-3;
see Trapp v. Spencer, 479 F.3d 53, 58-59 (1st Cir. 2007)
(“Section 2244(d)(2) only stops, but does not reset, the clock
from ticking . . . [and] cannot revive a time period that has
already expired.” (alterations in original) (quoting Dunker v.
Bissonnette, 154 F. Supp. 2d 95, 103 (D. Mass. 2001))).
4
direct review or the expiration of the time for seeking such
review . . . .”).
Roldan filed his petition in this court on
October 8, 2013, almost eight years too late.
Roldan nevertheless seeks to have the limitations period
equitably tolled because he is “a lay, first time, incarcerated
offender, who did not sufficiently speak or understand English,
and has extremely limited access to courts and to do research,
which is always in [sic] written in English.”
Doc. No. 1.
Roldan has testified that Spanish is his native language and
that,
[w]hile I have never denied that I do speak some
English, my understanding of others speaking English
is limited. I cannot read English at all. . . . All
of the law books in the prison where I am incarcerated
are written in English. Since I do not read English,
I was unaware of the time limitations contained in the
law . . . .
Doc. No. 14-1.
Roldan also claims that “ineffective assistance
of [his] appellate counsel,” Doc. No. 1, and his “lack of
education or familiarity with the legal system,” Doc. No. 1-4,
prevented him from making a timely filing.
Roldan’s defense counsel at trial, Richard Monteith, was
deposed on December 3, 2010.
He engaged in the following
exchange with Roldan’s post-conviction counsel:
Q:
Was there . . . a translator . . . .
throughout trial?
5
present
[Monteith]:
Yes, [there] was.
Q:
Did you use . . . [the]
conversations with the defendant?
translator
in
your
[Monteith]:
No.
Angel Roldan could speak English
fluently.
To me it appeared that he understood
everything that I said. He . . . asked me to ask the
court to not have [the interpreter] interpret for him
in Spanish because he was getting confused when . . .
he would hear Spanish then English . . . his point was
I can understand the English and don’t need an
interpreter to interpret.
And I think on the record
he
indicated
just
that,
he
didn’t
want
[the
interpreter] to interpret for him.
Doc. No. 12-2.
The trial transcript reflects the following
exchange between Monteith, Roldan, and the judge on the first
day of trial:
MR. MONTEITH: . . . Judge, Mr. Roldan made reference
to me and to [the interpreter] that he understands
English perfectly well, except for a couple of little
things here and there.
[The interpreter] would[,]
instead of simultaneously . . . interpreting[,] . . .
just be here with . . . Mr. Roldan on things that he .
. . may not understand.
. . . .
THE COURT: . . . [This] appears to be the way you’d
like to proceed, right?
MR. ROLDAN:
Yes.
THE COURT: Because I assume that it’s not easy[,] . .
. if you understand English, to pay attention to the
witness, and at the same time listen to [the
interpreter]?
MR. ROLDAN:
Yeah.
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THE COURT:
But . . . if later on you decide you
didn’t understand some of this stuff[,] . . . it’s
just going to be too late to come back and say,
“Golly, I should have had a simultaneous translation.”
Do you understand that?
MR. ROLDAN:
Honor.
Doc. No. 7-1.
I do understand. . . .
Thank you, your
Neither party has noted any instance in
which Roldan sought the interpreter’s assistance at trial.
Roldan recently testified that “[t]he reason I . . . chose
not to completely rely upon the Spanish interpreter at
trial, was because the interpreter . . . .
was from a
different country than the country where I was born, and I
did not understand many of the things he said.”
14-1.
Doc. No.
Roldan first expressed this concern in his
opposition to the motion for summary judgment, nearly
twelve years after the trial’s conclusion.
See Doc. No. 7-
1.
A “habeas petitioner bears the burden of establishing the
basis for equitable tolling,” the application of which remains
“the exception rather than the rule.”
35, 39 (1st Cir. 2010).
Riva v. Ficco, 615 F.3d
To succeed, Roldan must present
specific facts demonstrating that he (1) “was prevented from
timely filing by extraordinary circumstances,” and (2)
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“exercised reasonable diligence in trying to preserve his
rights.”2
Dominguez v. Duval, 527 F. App’x 38, 39-40 (1st Cir.
2013) (citing Holland v. Florida, 560 U.S. 631, 648-49 (2010)).
Roldan has failed to meet his burden with respect to both
prongs.
Neither the Supreme Court nor the First Circuit have dealt
with the issue at any length, but the First Circuit has noted
that a petitioner’s lack of English proficiency may be relevant
to the equitable tolling analysis.3
See Ramos-Martínez v. United
States, 638 F.3d 315, 324 (1st Cir. 2011) (with respect to both
the “extraordinary circumstances” and “reasonable diligence”
inquiries, a petitioner’s “limited education and lack of
2
Certain “illuminating considerations” may be “especially
helpful in evaluating a petitioner’s call for equity in a close
case.” Dominguez, 527 F. App’x at 40 (citing Trapp, 479 F.3d at
61) (referencing the petitioner’s “diligence in exhausting state
remedies”; the “absence of prejudice to the prosecution”; and
the “apparent merit of the claim”). Because Roldan’s case is
not a close one, I need not consider the Trapp factors here.
3
Given the lack of binding precedent, Roldan urges me to equate
a petitioner’s lack of English proficiency with mental illness,
which the First Circuit has held “may prevent a habeas
petitioner from understanding and acting upon his legal rights.”
See Riva, 615 F.3d at 40. I decline Roldan’s invitation.
Mental illness, if sufficiently severe, presents a far greater
obstacle to a habeas petitioner than even a complete lack of
English proficiency. It may prevent a prisoner from
comprehending his or her rights under any circumstance, whereas
an otherwise competent petitioner’s lack of English proficiency
stands as an obstacle only to the extent that the petitioner
lacks sufficient outside assistance to make a timely filing.
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familiarity with the English language,” “standing alone, may be
insufficient to excuse a failure to file a timely habeas
petition,” but a reviewing court may consider these factors in
the “the totality of the circumstances”).
A number of courts of
appeals have held that a petitioner’s limited English
proficiency is an “extraordinary circumstance” for equitable
tolling purposes only when the petitioner faced other obstacles
related to his or her linguistic difficulties.4
See, e.g., Yow
Ming Yeh v. Martel, 751 F.3d 1075, 1078 (9th Cir. 2014)
(petitioner must be “unable to procure legal materials in his
own language or to obtain translation assistance”); Pabon v.
Mahanoy, 654 F.3d 385, 400 (3d Cir. 2011) (petitioner must be
“deni[ed] . . . access to translation or legal assistance”);
Inglesias v. Davis, No. 07-1166, 2009 WL 87574, at *3 (6th Cir.
Jan. 12, 2009) (language difficulties must have “prevented the
petitioner from accessing the courts”); Diaz v. Kelly, 515 F.3d
4
In contrast, other courts of appeals appear to have concluded
that a petitioner’s limited English proficiency is never an
extraordinary circumstance. See Perez v. Florida, 519 F. App’x
995, 997 (11th Cir. 2013) (per curiam) (“An inability to
understand English does not constitute extraordinary
circumstances justifying equitable tolling.”); Gutierrez-Ruiz v.
Trani, 378 F. App’x 797, 799 (10th Cir. 2010) (“[A] petitioner’s
lack of proficiency in the English language, in conjunction with
a lack of access to legal materials in his first language and a
translator, are not extraordinary circumstances that warrant
equitable tolling.”).
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149, 154 (2d Cir. 2008) (citing Mendoza with approval).
A
petitioner with limited English proficiency must also
demonstrate that he or she took specific steps to overcome these
additional obstacles in order to satisfy the “reasonable
diligence” requirement.
See, e.g., Diaz, 515 F.3d at 154
(“[T]he diligence requirement of equitable tolling imposes on
the prisoner a substantial obligation to make all reasonable
efforts to obtain assistance to mitigate his language
deficiency.”).
It is undisputed that English is not Roldan’s native
tongue.
I accept that Roldan prefers to communicate in Spanish.
But aside from (1) Roldan’s own post-hoc assertions that he “did
not sufficiently speak or understand English,” and (2) the
appointment of a trial interpreter (whom Roldan asked not to
interpret because he understood English), there is no evidence
supporting Roldan’s claim that a lack of English proficiency
caused him to miss the filing deadline.
Roldan contends that
his “lack of English comprehension is amply demonstrated by the
fact that all of his recorded telephone conversations played at
his trial were entirely in Spanish.”
Doc. No. 10.
These
recordings may well prove Roldan’s proficiency in Spanish, but
they do not demonstrate a lack of proficiency in English.
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The
trial transcript and the testimony of Roldan’s defense counsel
both strongly support the conclusion that Roldan can
sufficiently speak and understand English.
And although Roldan
claims that he “cannot read English at all,” Doc. No. 14-1, he
has failed to explain how he managed to “file[] a pro se motion
in the [New Hampshire] Supreme Court [seeking post-conviction
relief] which was denied as being too late.”
Doc. No. 1-3; see,
e.g., Torres v. Davis, 416 F. App’x 480, 482-83 (6th Cir. 2011)
(petitioner’s filing of pro se pleadings demonstrated that his
claimed lack of English proficiency did not prevent the timely
filing of a habeas petition); Yang v. Archuleta, 525 F.3d 925,
930 (10th Cir. 2008) (same); Astorga v. Terhune, 130 F. App’x
181, 183 (9th Cir. 2005) (same); United States v. Sosa, 364 F.3d
507, 513 (4th Cir. 2004) (same).
Roldan has failed to demonstrate that his claimed lack of
English proficiency is an “extraordinary circumstance” that
would justify equitable tolling of the limitations period.
Moreover, he has pointed to no specific steps that he took
during the limitations period – such as requesting that Spanish
language legal materials be brought to the prison, petitioning
for access to an interpreter, seeking out a bilingual inmate to
provide assistance, or attempting to improve his own English
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skills - that might constitute “reasonable diligence.”
See,
e.g., Pabon, 654 F.3d at 402; Ramos-Martínez, 638 F.3d at 324.
Roldan’s other arguments - that he is entitled to equitable
tolling based on his illiteracy, lack of education, lack of
effective appellate counsel, lack of access to the courts, and
status as a first time offender – are conclusory, have no
significant evidentiary support, and lack merit.
See, e.g.,
Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (“Attorney
[ineffectiveness] is simply not sufficient to warrant equitable
tolling, particularly in the postconviction context where
prisoners have no constitutional right to counsel.”); Perez, 519
F. App’x at 997 (“[W]e have not accepted a lack of a legal
education and related confusion or ignorance about the law as
excuses . . . .”); Baker v. Cal. Dep’t of Corr., 484 F. App’x
130, 131 (9th Cir. 2012) (“Low literacy levels, lack of legal
knowledge, and need for some assistance to prepare a habeas
petition are not extraordinary circumstances . . . .”); Rawlins
v. Newton-Embry, 352 F. App’x 273, 275 (10th Cir. 2009) (“A
prisoner’s illiteracy is insufficient to toll the statute of
limitations.”); Inglesias, 2009 WL 87574, at *3 (“A ‘poor
education’ likewise normally will not excuse a dilatory
filing.”); Turner v. Johnson, 177 F.3d 390, 392 (5th Cir. 1999)
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(“[N]either a plaintiff’s unfamiliarity with the legal process
nor his lack of representation during the applicable filing
period merits equitable tolling.
It is irrelevant whether the
unfamiliarity is due to illiteracy or any other reason.”
(citation omitted)).
IV.
CONCLUSION
For the reasons discussed above, I grant the motion for
summary judgment.
Doc. No. 12.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
July 21, 2014
cc:
David J. Goldstein, Esq.
Theodore M. Lothstein, Esq.
Elizabeth C. Woodcock, Esq.
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