Parker v. NH State Prison, Warden

Filing 17

///ORDER granting 12 Motion for Summary Judgment. The case is dismissed as barred by the statute of limitations. The court declines to issue a certificate of appealability. Clerk shall enter judgment and close the case. So Ordered by Judge Joseph A. DiClerico, Jr.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John J. Parker
v.

Civil No. 16-cv-187-JD
Opinion No. 2018 DNH 133

Warden, New Hampshire
State Prison for Men

O R D E R
John J. Parker, proceeding pro se, seeks habeas corpus
relief under 28 U.S.C. § 2254 from his state conviction and
sentence on five charges of aggravated felonious sexual assault.
The warden moves to dismiss the petition as untimely and,
alternatively, seeks summary judgment on the merits of the
claims.

Because the petition is dismissed as untimely filed, it

is not necessary to consider the motion for summary judgment on
the merits.
Background
Parker lived with his nephew, William Knightly, and his
family in Nashua in 1993.

William and his wife, Dorothy, had

two daughters and three sons.

One of the daughters, Holly, was

twelve years old while Parker lived with the family in 1993.
In 2008, Holly told her mother that Parker had sexually
assaulted her while he lived with them and had threatened to
hurt her or kill her if she told anyone.

She said that after

Parker left she saw him two more times, once in early 1994 and
again in 1996.

Each time, Parker threatened her.

Holly said

that she had not reported the assaults sooner because of
Parker’s threats and because she was afraid her father would
hurt Parker and would go to jail.
Dorothy Knightly reported Holly’s accusations to the Nashua
police who conducted an investigation.
sexual assault charges in July of 2009.

Parker was indicted on
After several

continuances, trial was held in November of 2011.
Holly testified at trial about the assaults and Parker’s
threats, including the two threats when she saw Parker in Nashua
after the assaults.

Parker also testified.

Parker said that he lived with his nephew, William, and his
family for twenty-nine days after he returned to New Hampshire
from Florida.

He also said that he slept downstairs in the

house and that Dorothy, Holly’s mother, had a rule that he was
not allowed upstairs.
he was innocent.

He denied assaulting Holly and said that

He also said that he never saw Holly after he

stopped living in the house and that he never came back to
Nashua.

On cross examination, however, Parker said that he did

come back to Nashua once for five minutes to get photographs.
Because of Parker’s testimony about the rule that he could
not go upstairs and that he left Nashua and came back only for
one five minute stop, the state was allowed to recall Dorothy
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Knightly, Holly’s mother, to testify.

Dorothy testified that

there was no rule that Parker could not go upstairs.

Dorothy

also testified that she saw Parker around Nashua after he moved
out of their house.

Once Parker came running toward her

screaming while she was driving and other times she would see
him while she was driving her school bus and he would yell at
her and give her the finger.

Dorothy also refuted Parker’s

testimony that he helped the family with work on their house.
The jury found Parker guilty on all five charges.
conviction was affirmed on appeal.
0235 (N.H. May 23, 2013).

His

State v. Parker, No. 2012-

Parker then moved to amend his

sentence, filed a petition for a writ of habeas corpus, and
moved for a new trial in his criminal case.

His motions were

denied, and the New Hampshire Supreme Court declined his appeal.
Parker filed his § 2254 petition in this court on May 9,
2016.

The magistrate judge determined that Parker did not file

his petition within the time allowed by 28 U.S.C. § 2244(d).
See Doc. no. 3.

Parker was given an opportunity to show cause

why his petition should not be dismissed as untimely.

Parker

filed a response to that order.
The magistrate judge considered Parker’s response and found
that his reasons for filing after the deadline did not show
uncommon circumstances that would support equitable tolling of
the limitations period.

The magistrate noted, however, that
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Parker also asserted that he was actually innocent.

For that

reason, the magistrate judge allowed Parker to file an amended
petition to address actual innocence.

Specifically, the order

directed Parker “to file an amended habeas petition which
includes specific facts that provide a basis for this court to
excuse this action from the otherwise applicable statute of
limitations based on a credible and compelling claim that Parker
is actually innocent of each of the offenses underlying his
conviction and sentence.”

Doc. no. 5 at 3.

amended petition with ten exhibits.

Parker filed an

Doc. no. 6.

Discussion
As was determined by the magistrate judge, the one-year
limitation period for petitions under § 2254 expired four months
before Parker filed his petition.

Parker asserts in his amended

petition, however, that he is actually innocent of the charges
of felony sexual assault.

The warden moves to dismiss the

petition on the ground that Parker has not met the standard for
showing actual innocence as a basis for avoiding the statute of
limitations.
“[A]actual innocence, if proved, serves as a gateway
through which a petitioner may pass whether the impediment is a
procedural bar . . . or expiration of the statute of
limitations.”

McQuiggin v. Perkins, 569 U.S. 383, 386 (2013).

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A showing of actual innocence, however, is rare.

Id.

A

petitioner bears the burden of persuading the court that “in
light of the new evidence, no juror, acting reasonably, would
have voted to find him guilty beyond a reasonable doubt.”

Id.

A petitioner must support his claim of actual innocence
“with new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial” that is sufficient to
persuade the court.

Schlup v. Delo, 513 U.S. 298, 324 (1995).

New evidence for purposes of a claim of actual innocence is
relevant evidence that was either excluded from or not available
before the petitioner’s trial.

Id. at 327.

In this case, Parker has not met his burden to support his
claim of actual innocence.

Parker states in the amended

petition that he was deprived of “important discovery tools”
during the criminal proceeding.1

In particular, Parker argues

that because his attorney did not call certain witnesses who
would tell the truth about him, the trial was unfair and one
sided.

He asks the court to “hear the cry’s of an innocent man”

but provides no explanation as to how the exhibits appended to
the amended petition and his objection to the motion to dismiss
show his innocence.

In his objection to the warden’s motion,

Parker acknowledges that he was represented by counsel but
faults defense counsel’s handling of the case.
1

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Parker further argues that his lawyer should have done more to
prepare his defense, and in particular, to impeach certain
witnesses.
Parker offers no “exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence”
Schlup, 513 U.S. at 324, to support his claim of actual
innocence.

Instead, in support of his petition he relies on

reports of interviews with a variety of people; an investigation
report by Peter Gauthier, dated March 19, 2015; a letter from
Parker’s wife, dated May 6, 2016; a handwritten document titled
“CLAIMS”; a letter from Parker to his former attorney, Rodkey
Craighead, dated May 18, 2012; and a letter from Craighead to
the Hillsborough County Superior Court, enclosing a motion for
depositions in Parker’s criminal proceeding.

With his objection

to the warden’s motion, Parker provided a statement by Mark
Shackelford, dated July 21, 2009; an investigator’s report dated
July 28, 2009, chronicling the investigator’s attempts to find
witnesses for interviews; reports of two interviews done in July
of 2009; a copy of the same letter from his wife; a copy of a
page that appears to be from a police report, dated February 20,
2008; and a document titled “Parker Oral Argument.”

The

appended exhibits provide no new evidence to show that Parker is
innocent of the sexual assault charges.

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A.

Interviews

Three of the exhibits are interviews that were conducted
and reported in 2009, well before Parker’s trial in November of
2011.

Because those exhibits were available before his trial,

they are not new evidence that can be considered in support of
his claim of actual innocence.

Further, even if the interviews

were “new” evidence, they do not show that Parker is innocent of
the sexual assault charges.
The July 21, 2009, report of an interview with Mark
Shackelford is about an incident that occurred in April of 2008
when police came to a mobile home across the street from
Shackelford’s residence, looking for Parker.

Parker apparently

did not respond, and the home remained dark.

It is not clear

what relevance that incident would have to the sexual assaults
that occurred in 1993.2
The report of an interview with Michael Knightly is dated
July 29, 2009.
brother.

Michael Knightly is apparently the victim’s

In the interview, Knightly indicated that he had

little contact with his family, that his sister was an alcoholic

In support of his objection to the warden’s motion, Parker
submitted a copy of a statement purportedly given by Shackelford
and dated July 21, 2009, which repeats the information in the
interview. Again, because the statement was provided in 2009,
it is not new evidence.
2

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and was intoxicated the night she told him about the abuse by
Parker, and that his mother did not like him.

Although Knightly

provided unsavory details about his family, the information he
provided does not show that Parker is innocent.
The same investigator interviewed the victim’s estranged
husband and provided a report dated August 4, 2009.

The

estranged husband had been in a custody battle with the victim
over their child and provided a very negative opinion about his
estranged wife.

That opinion however at most undermines the

victim’s credibility but does not show that Parker was innocent.
Another investigator interviewed a person who rented a room
to Parker in Manchester from 1995 to 1997 and provided a report
that is dated March 15, 2015.

The interview with Parker’s

former landlady revealed that she rented the room to him because
he had been friendly with her son while they were both in jail.
The landlady also said that she did not know Parker had
relatives in Nashua and did not recall Parker talking about
trips to Nashua.

She said that Parker did not have a driver’s

license, that other people gave him rides, and that she could
not recall many times when Parker was away overnight.

The

interview does not pertain to the time of the assaults, which
occurred in 1993, and at most suggests that Parker did not spend

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much time in Nashua from 1995 to 1997.

As such, the landlady’s

interview does not provide new evidence of Parker’s innocence.3
Parker also submitted a memorandum from the same
investigator, which is dated March 19, 2015, that summarizes his
attempts to reach various people for interviews.

The memorandum

provides no evidence to show Parker’s innocence.
B.

Wife’s Letter
Parker submits a letter from his wife dated May 6, 2016.

In her letter, Mrs. Parker states that she met Parker in 1999,
years after the sexual assaults occurred.

She describes their

relationship, her need to have him at home to help her, and her
belief that the victim made up her accusations against him.

As

such, the letter provides no new evidence of Parker’s innocence.
C.

Other Documents
The remaining exhibits are Parker’s statement of his

claims, a motion from his state criminal proceeding; a letter to
his defense counsel; part of a police report; and “Parker Oral
Argument.”

Parker does not explain how these exhibits show his

innocence or why they were not available for trial.

Parker does not explain why the landlady could not have
been interviewed before his trial. Therefore, although the
interview was done in 2015, it is not new evidence as is
required to show actual innocence.
3

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Neither Parker’s undated and unsworn statement of “Claims”
nor “Parker’s Oral Argument” asserts his innocence.

Instead,

the claims are statements about perceived unfairness at his
trial, information possibly available from other people, and a
chronology of events.
his innocence.

Parker’s “Claims” are not new evidence of

The “Parker’s Oral Argument” comments on the

criminal trial but provides no evidence of innocence.
The excerpt from a police report dated February 20, 2008,
is not new evidence.
the paper.

The name Det. Dan Archambault D32 is on

The excerpt pertains to the officer’s response to a

location to check on an “undesirable.”

When the officer

realized that the assault victim had given that address, he
talked to her boyfriend who told the officer that the victim
never told him that she had been assaulted.

The other documents

do not appear to be relevant to the issue of innocence.
Parker has not presented new evidence that persuades the
court that no juror, acting reasonably, would have voted to find
him guilty beyond a reasonable doubt.

In the absence of a

showing of actual innocence, Parker’s petition is time barred.
§ 2244(d)(1).
Conclusion
For the foregoing reasons, the warden’s motion to dismiss
(document no. 12) is granted.

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The case is dismissed as barred by the statute of
limitations.
Parker has not made a substantial showing of the denial of
a constitutional right.

28 U.S.C. § 2253(c).

Therefore, the

court declines to issue a certificate of appealability.
The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________
Joseph A. DiClerico, Jr.
United States District Judge
June 25, 2018
cc:

John J. Parker, pro se
Sean R. Locke, Esq.
Elizabeth C. Woodcock, Esq.

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