Hart v. NH State Prison, Warden

Filing 51

ORDER denying without prejudice 44 Motion to Dismiss. The State's motion to dismiss Hart's petition as untimely (document no. 44) is denied, albeit without prejudice to renewing it later if circumstances warrant. In the interim, however, the State shall, on or before January 17, 2020, file a dispositive motion addressing the merits of Hart's petition. Hart may then respond on or before February 14, 2020. So Ordered by Judge Steven J. McAuliffe.(lw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Kenneth Hart,
Petitioner
v.

Case No. 18-cv-424-SM
Opinion No. 2019 DNH 205

Warden, N.H. State Prison,
Respondent

O R D E R

Nearly 20 years ago, in February of 2000, Kenneth Hart was
convicted in state court of two counts of aggravated felonious
sexual assault, witness tampering, and resisting arrest.

He was

sentenced to serve 10 to 20 years in prison on the sexual
assault convictions, with suspended sentences on the remaining
convictions.

He brings this habeas corpus petition asserting

that he is entitled to “relief from his wrongful conviction” on
grounds that: (1) when he elected to represent himself at trial,
he did not make a knowing, intelligent, and voluntary waiver of
his right to trial counsel; and (2) he was not competent to
stand trial.

The State moves to dismiss Hart’s petition - not on the
merits but, rather, because it is untimely.

Specifically, the

State points out that Hart filed his federal petition well

beyond the one-year limitations period set forth in the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
See 28 U.S.C. § 2244(d)(1).

Hart objects, asserting that he is

entitled to the benefit of equitable tolling of that limitations
period.

For the reasons discussed, the State’s motion to dismiss
Hart’s petition on grounds that it is untimely is denied, albeit
without prejudice.

Background
Hart has a well-documented history of mental illness.
Indeed, prior to his criminal trial, when Hart notified the
court of his intention to represent himself, the trial court
ordered that he undergo a mental evaluation to determine whether
he was capable of knowingly and intelligently waiving his
constitutionally protected right to counsel and, relatedly,
whether he was competent to stand trial.

Following an

evidentiary hearing on the matter (at which Hart’s examining
psychiatrist testified), the court concluded that Hart was
competent to stand trial and that he had knowingly and
voluntarily waived his right to counsel.

Nevertheless, it is

plain that Hart continued to suffer from varying degrees of
mental illness throughout his incarceration.

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Upon his release

from prison in 2018, Hart was involuntarily committed to the New
Hampshire Hospital.

See Involuntary Admission Order (document

no. 40-13) (concluding that, as a consequence of his mental
illness, Hart posed “a potentially serious likelihood of danger
to himself and others”).

Hart never appealed his criminal convictions to the New
Hampshire Supreme Court.

Many years later, however, he did

collaterally attack those convictions in a state petition for
habeas corpus relief.1
and a factual argument.

In it, Hart raised both a legal argument
First, he asserted that the trial court

applied an inappropriate legal standard when assessing his
competency to waive his right to trial counsel.

In a related

argument, he claimed that the trial record failed to establish
that he understood the consequences and significance of his
waiver of counsel and, therefore, he did not knowingly waive
that constitutionally protected right.

The New Hampshire

Supreme Court considered and rejected both of Hart’s arguments.
See Hart v. Warden, 171 N.H. 709 (2019).

1

For reasons not relevant to this proceeding, the New
Hampshire Supreme Court construed Hart’s collateral attack on
his convictions as a petition seeking coram nobis relief. Hart
v. Warden, 171 N.H. 709, 716 (2019).

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Hart challenges those decisions of the New Hampshire
Supreme Court.

Under AEDPA, the questions presented by Hart’s

federal habeas petition are whether the state court’s resolution
of Hart’s claims “resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d)(1), and/or whether that decision
was “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding,”
28 U.S.C. § 2254(d)(2).

As noted earlier, however, the State

says this court need not address the merits of Hart’s petition
because it is untimely and he has not shown that he is entitled
to the benefit of equitable tolling.

Standard of Review
The Supreme Court has recognized that the limitations
period in AEDPA is not jurisdictional and is, therefore, subject
to equitable tolling.
(2010).

See Holland v. Florida, 560 U.S. 631, 645

The court of appeals has noted that “[a] habeas

petitioner bears the burden of establishing the basis for
equitable tolling.

To carry this burden, he must demonstrate

‘(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way and

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prevented timely filing.’”

Riva v. Ficco, 615 F.3d 35, 39 (1st

Cir. 2010) (quoting Holland, 560 U.S. at 649).

The Riva court went on to hold that “mental illness can
constitute an extraordinary circumstance, which may prevent a
habeas petitioner from understanding and acting upon his legal
rights and thereby equitably toll the AEDPA limitations period.”
Id. at 40.

The court added that, “[t]here must be some causal

link between a petitioner’s mental illness and his ability
seasonably to file for habeas relief.”

Id.

And, to satisfy

that causation requirement, a petitioner must show that, “during
the relevant time frame, he suffered from a mental illness or
impairment that so severely impaired his ability either
effectively to pursue legal relief to his own behoof or, if
represented, effectively to assist and communicate with
counsel.”

Id.

So, Hart bears the burden of demonstrating that

he suffered from a mental illness or impairment that severely
impaired his ability to effectively pursue habeas relief for a
continuous period of more than fifteen years.2

2

Hart’s conviction became “final” in February of 2001.
Accordingly, he had one year within which to file his petition
under 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d)(1)
(establishing a one-year limitations period for habeas petitions
filed by individuals in state custody). He did not file the
pending petition until May of 2018.

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Discussion
The parties dispute whether Hart’s mental illness was so
acute that it severely impaired his ability to effectively
pursue legal relief on his own behalf for a continuous and
uninterrupted period of more than fifteen years.

The difficulty

presented by that factual dispute is this: it likely cannot be
resolved solely on the record presently before the court.3
Rather, an evidentiary hearing would probably be required, as
would the testimony of psychiatric experts (who would, of
course, first have to examine Hart and review his medical
records throughout his entire period of incarceration).

Given that, a more efficient approach to resolving Hart’s
claims would be to bypass the timeliness issue for now in favor
of exploring the merits of his claims, returning to the
timeliness issue if there appears to be any substantive merit to
his petition.

The legal issues presented by Hart’s petition do

not seem particularly complicated and would appear to lend
themselves to relatively straight-forward analysis on the record

3

The State argues, for example, that Hart’s substantial
history of (unsuccessful) litigation in both the state and
federal courts evidences his ability to have pursued any
constitutional challenges to his convictions many years ago.
While that certainly may be some evidence of Hart’s ability to
pursue his legal rights, it is just that: some evidence. It is
by no means conclusive. See generally Riva, 615 F.3d at 42-43.

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presented.

See, e.g., Trussell v. Bowersox, 447 F.3d 588, 590–

91 (8th Cir. 2006) (“[B]ecause neither the statute of
limitations nor procedural default constitutes a jurisdictional
bar to our review, we shall, in the interest of judicial
economy, proceed to the merits of Trussell’s petition.”)
(citations omitted);

See also Cooper v. Calderon, 274 F.3d

1270, 1275 n.3 (9th Cir. 2001) (bypassing equitable tolling
argument and resolving petition on the merits); Schaff v.
Montana, 2017 WL 6816075, at *1 (D. Mont. Dec. 18, 2017)
(“Although Schaff’s petition is still likely time-barred and
procedurally defaulted, at this juncture it is more efficient to
proceed to the merits.”) (citing 28 U.S.C. § 2254(b)(2) and
Lambrix v. Singletary, 520 U.S. 518, 525 (1997));
Verba v. Wofford, 2016 WL 126728, at *2 (C.D. Cal. Jan. 11,
2016) (“Respondent contends that Grounds Three and Five are
untimely and procedurally barred . . . However, the Court will
not address these issues since the Court retains the discretion
to address and deny claims on the merits even if the claims are
alleged to be untimely.”) (collecting cases).

See generally

Babick v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010) (“Babick
procedurally defaulted his claims in state court.

To obtain

relief on them here, therefore, he must establish cause and
prejudice for the defaults. . . . We cut to the merits here,

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since the cause-and-prejudice analysis adds nothing but
complexity to the case.

So to the merits we now turn.”).

Conclusion
The State’s motion to dismiss Hart’s petition as untimely
(document no. 44) is denied, albeit without prejudice to
renewing it later if circumstances warrant.

In the interim,

however, the State shall, on or before January 17, 2020, file a
dispositive motion addressing the merits of Hart’s petition.
Hart may then respond on or before February 14, 2020.

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
Dated: December 6, 2019
cc:

Donna J. Brown, Esq.
Elizabeth C. Woodcock, Esq.

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