Blackmer v. Warden, NHSP CV-03-275-PB 12/09/04
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Paul Blackmer
v. Civil No. 03-275-PB Opinion No. 2004 DNH 180 Warden, New Hampshire State Prison
MEMORANDUM AND ORDER
On May 30, 2003, Paul Blackmer, appearing pro se, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
(Doc. No. 3).1 In this petition Blackmer challenges his 1997
state court convictions for possession of a controlled substance
with intent to sell and conspiracy to possess a controlled
substance with intent to sell. Respondent Jane Coplan, Warden of
1 A pro se prisoner's petition for a writ of habeas corpus is considered filed "on the date it is deposited in the prison's internal mail-system for forwarding to the district court." Morales-Rivera v. United States, 184 F.3d 109, 109 (1st Cir. 1999); see Houston v. Lack, 487 U.S. 266, 276 (1988) . For the purpose of this Memorandum and Order, I treat Blackmer's petition as having been given to prison officials for filing, and therefore having been filed, on May 30, 2003, the date that appears on the petition, rather than on June 3, 2003, the date on which it was stamped "filed" by this court's clerk. See Adeline v. Stinson, 206 F.3d 249, 251 n.l (2d Cir. 2000) . the New Hampshire State Prison, has moved for summary judgment
(Doc. No. 65), arguing that the petition is barred by the one-
year statute of limitations that governs federal habeas corpus
claims. See 28 U.S.C. § 2244(d)(1). Because I determine that
Blackmer's claims are time-barred, I grant the Warden's motion.
I. BACKGROUND2
A. The Trial
The police arrested Blackmer in April 1994 after observing
him retrieve two packages containing nearly fifty pounds of
marijuana from a United Parcel Service ("UPS") office in Laconia.
Blackmer, 149 N.H. at 48 (2003). A grand jury indicted Blackmer
in June 1994 for possession of marijuana with the intent to sell
and conspiracy to possess marijuana with the intent to sell. Id.
A superseding indictment followed in October 1994, but the state
nol pressed the indictments. Id. In May 1996, another grand
jury reindicted Blackmer for possession of marijuana with intent
to sell and conspiracy to possess marijuana with intent to sell.
2 The facts of the case are taken in part from State v. Blackmer, 149 N.H. 47, 816 A.2d 1014 (2003) . Additional details have been provided by consulting the submissions of the parties.
- 2 - based on the 1994 UPS incident.3 Id. On October 3, 1997, a
Belknap County jury convicted Blackmer of these charges. He was
sentenced on December 23, 1997 to a prison term of not more than
30 years, nor less than 15 years.
B. The Direct Appeal
Blackmer's standby counsel filed a Notice of Appeal on his
behalf in March 1998. (Ex. 2) .4 Thereafter, on June 1, 1998,
Blackmer, now acting pro se, filed a Motion to Amend Notice of
Appeal Filed with Exception ("Motion to Amend"), and submitted 19
additional issues to the supreme court as part of his appeal.
(Ex. 3). On October 6, 1998, the supreme court ordered that it
would treat Blackmer's June 1, 1998 Motion to Amend as an amended
notice of appeal.
3 In May 1996, Blackmer was also indicted for conspiracy to possess marijuana with the intent to sell stemming from activities alleged to have occurred between December 1995 and January 1996. Blackmer, 149 N.H. at 48. This charge was severed from the charges at issue here. Id. Blackmer was then tried and convicted by a jury on this separate charge. Id. On January 10, 2003, the New Hampshire Supreme Court affirmed his conviction. Id. at 51. Blackmer's current petition does not challenge this conviction.
4 All citations to "Ex." refer to the exhibits included in the Appendix to the Respondent's Memorandum of Law in Support of Her Motion for Summary Judgment, III.
- 3 - At the heart of Blackmer's Motion to Amend, and indeed at
the heart of each of his post-conviction pleadings, is his firm
belief that his June 1994 indictment, and his subsequent
conviction, resulted solely from what he claims was the perjured
grand jury testimony of DEA Special Agent Michael Scott Connolly.
In his submissions, Blackmer refers to Connolly's testimony as
the "Brady material" issue. (Ex. 3, 55 (2)g, (2)h, (4)). He
remains resolute in his view that the State is required, under
Brady v. Maryland, 373 U.S. 83 (1963) to disclose whether
Connolly committed perjury before the grand jury. Blackmer also
argues that in refusing to disclose the answer to this question,
the State committed prosecutorial misconduct by suppressing
potentially exculpatory evidence, thereby resulting in a
malicious prosecution and a wrongful conviction. (Ex. 3). In
effect, Blackmer maintains that he was unable to mount an
adequate defense at trial and has been unable to appropriately
appeal his conviction without a response from the State to his
claim that Connolly committed perjury. (Ex. 4).
Prior to briefing, Blackmer filed a "Motion to Stay Appeal
and Remand to Resolve Brady Material Answer Issue," again
requesting an answer to his question regarding Connolly's grand
- 4 - jury testimony. (Ex. 16, at 4). On July 11, 2000, the New
Hampshire Supreme Court denied this motion. (Ex. 17). The
supreme court also ordered Blackmer to file his appellate brief
on or before August 27, 2000, without further continuance.5 (Ex.
17). On August 10, 2000, Blackmer notified the supreme court
that he did not intend to file a brief in support of his appeal.
(See Ex. 9).
Subseguently, on December 19, 2000 (clerk's notice dated
December 27, 2000), the New Hampshire Supreme Court dismissed
Blackmer's appeal for failure to file a brief pursuant to N.H.
Sup. C t . R. 16(12) ("Failure of the appealing party to file a
brief shall constitute a waiver of the appeal . . . and the case
shall be dismissed."). (Ex. 9). In response, on January 16,
2001, Blackmer filed a "Motion to Reconsider Dismissal of
Appeal," again arguing that he was unable to properly prepare his
appeal without an answer to the Brady material guestion. (Ex.
5 This was the second briefing schedule in this case. On June 18, 1999, the New Hampshire Supreme Court ordered Blackmer to file his appellate brief no later than August 2, 1999. In response, Blackmer instructed his appointed appellate defender not to file a brief on his behalf, until the Brady material issue was resolved. Then, on July 19, 1999, Blackmer filed a motion to remove his appellate defender. Four days later the supreme court suspended briefing in the case.
- 5 - 10). Blackmer purportedly placed this motion in the prison
mailbox on January 12, 2001 .6 (Pet'r Obj. to Res't Mot. for
Summ. J. I, at 4, Doc. No. 57). The supreme court denied the
motion on September 25, 2001 (clerk's notice dated September 26,
2001). (Ex. 11).
C. The Motions for Injunctive Relief
In August 2000, while his direct appeal was pending,
Blackmer filed identical "Motion[s] for Injunctive Relief" in
Coos County Superior Court and Merrimack County Superior Court.
(Ex. 13 & Ex. 14). In these motions, which in effect operate as
a collateral attack on his conviction, Blackmer lodged two
complaints and prayed for relief on two fronts. First, he
charged that the library at the Northern N.H. Correctional
Facility was inadeguate for his legal research, and therefore
reguested a transfer to the Concord facility. Second, he renewed
his reguest that the court order the State to disclose the answer
to his Brady material guestion. The motion filed in Coos County
was dismissed on November 8, 2000, and the Motion filed in
6 Blackmer claims that he did not receive notice of the supreme court's dismissal of his appeal until January 3, 2001 (Pet'r Obj. to Res't Mot. for Summ. J. I, at 4, Doc. No. 57).
- 6 - Merrimack County was denied on October 17, 2000. Blackmer did
not appeal from either ruling.
D. State Court Habeas Petition
Blackmer also filed a petition for a writ of habeas corpus
in state superior court. (Ex. 5). In a November 3, 2000 order
denying Blackmer's petition, the superior court concluded that
after its review of all pleadings, materials, and other existing
records relating to the claim, Blackmer would be unable to
demonstrate the elements necessary to establish a denial of his
rights under either the United States Constitution or the New
Hampshire Constitution. (Ex. 6). The superior court further
noted that the issues raised in Blackmer's petition should be
raised in his direct appeal. (Ex. 6). Six days later, on
November 9, 2000, Blackmer filed a motion in superior court
asking the court to reconsider its order denying his habeas
petition. (Ex. 7). This motion was denied on November 29, 2000.
(Ex. 8). Blackmer did not appeal from this ruling.
E. The Petition for Modification of Order and _____ the Motion to Resubmit
On or about October 20, 2001, Blackmer filed a "Petition for
Modification of Order" in Belknap County Superior Court,
- 7 - requesting modification of a July 25, 1997 pre-trial Order. (Ex.
12). Blackmer again raised the Brady material issue in this
motion but requested that the pre-trial Order be changed to read:
"The State's [SECOND] Motion to Reconsider Order on Standing is
DENIED." (Ex. 12). The superior court denied this motion on
November 14, 2001. Almost 10 months later, on September 8, 2002,
Blackmer filed a "Motion to Resubmit 'Petition for Modification
of Order,'" pressing the court, yet again, to resolve the Brady
material issue. (Ex. 18). The superior court denied that motion
on October 1, 2002. (Ex. 20, at 1). Blackmer appealed the
ruling to the New Hampshire Supreme Court in late October, 2002.
On February 18, 2003, the supreme court declined to accept the
appeal.
F. The Federal Habeas Petition
Blackmer filed a petition for a writ of habeas corpus in
this court on May 29, 2003. In August 2003, the Magistrate Judge
reviewed Blackmer's petition pursuant to L.R. 4.3(2) and
determined that it raised the following grounds for relief: (1)
ineffective assistance of counsel at trial; (2) denial of counsel
at trial; (3) illegal search and seizure; (4) denial of the right
to present evidence at trial and on appeal; (5) prosecutorial misconduct and suppression of exculpatory evidence; and (6)
denial of meaningful access to the courts. (Doc. No. 7). The
Magistrate Judge ordered Blackmer to provide the court with
documentation demonstrating that he had exhausted his state
remedies. Blackmer timely complied with that order. The
Magistrate Judge thereafter dismissed Blackmer's claim that he
had been denied access to the courts, (Doc. No. 12), and ordered
the petition served on the respondent as to the five remaining
claims. (Doc. No. 13).
III. ANALYSIS
The Warden argues that Blackmer's federal habeas petition is
barred by the one-year statute of limitations that governs habeas
petitions. The Warden's position is that the statute began to
run on April 9, 2001, 90 days after she claims that Blackmer's
conviction became final in state court. She further argues that
none of Blackmer's applications for post-conviction or other
collateral review tolled the limitations period. Therefore, she
asserts that his May 23, 2003 federal habeas petition is time-
barred because it was filed long after the limitations period had
run. Blackmer advances two main arguments in his objection to the
Warden's motion. First, he asserts that the limitations period
has not yet begun to run because the Warden has failed to provide
him with information that he needs to file an effective petition.
Blackmer's second argument is that his federal habeas petition is
timely because the limitations period should have been tolled
while his petition for modification of order and his motion to
resubmit were pending. I begin by providing a summary of the
applicable law and then analyze each of Blackmer's arguments in
turn.
A. The Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") includes a one-year statute of limitations for federal
review of state prisoners' habeas applications. See 28 U.S.C. §
2244(d)(1). Section (d)(1) provides that the one-year
limitations period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such state action;
- 10 - (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).
The AEDPA also includes a provision that tolls the
limitations period for that period of time "during which a
properly filed application for State post-conviction relief or
other collateral review with respect to the pertinent judgment or
claim is pending." 28 U.S.C. § 2244(d)(2). An application that
is not "properly filed," however, cannot toll the limitations
period. The United States Supreme Court has held that an
application for state post-conviction or other collateral review
is "properly filed" within the meaning of section 2244(d)(2)
"when its delivery and acceptance are in compliance with the
applicable laws and rules governing filings. These [rules]
usually prescribe . . . the form of the document, the time limits
upon its delivery, the court and office in which it must be
lodged, and the reguisite filing fee." Artuz v. Bennett, 531
- 11 - U.S. 4, 8 (2000). A state post-conviction proceeding is
considered "pending" from the time "it is first filed until
finally disposed of and further appellate review is unavailable
under the particular state's procedures." Adeline, 206 F.3d at
252 (guoting Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999),
aff'd, Artuz v. Bennett, 531 U.S. 4 (2000)).
Finally, although the statutory tolling provision can stop
the limitations clock from running, this "provision does not . .
. 'revive' the limitations period (i.e., restart the clock at
zero); it can only serve to pause a clock that has not yet fully
run." Vroman v. Brigano, 346 F.3d 598, 602 (6th Cir. 2003)
(guoting Rashid v. Khulman, 991 F. Supp. 254, 259 (S.D.N.Y.
1998)). Thus, once the limitations period has expired,
collateral petitions for state review can no longer serve to
avoid the statute of limitations. See id.
B. Analysis
1. Accrual
The New Hampshire Supreme Court dismissed Blackmer's direct
appeal for failure to file an appellate brief on December 19,
2000. The clerk's notice of the decision is dated December 27,
- 12 - 2000, and under New Hampshire law, this date is controlling.
See, e.g. N.H. Sup. C t . R. 7; N.H. Super. C t . R. 59-A(l).
Blackmer then had 10 days, until January 8, 2001, to file a
motion for rehearing or reconsideration. See N.H. Sup. C t . R.
22(2) (establishing deadlines for rehearing and reconsideration
motions) and N.H. Sup. C t . R. 27 (establishing time computation
rules). Thus, as the Warden correctly notes, Blackmer's
conviction became final in state court the following day, January
9, 2001. From January 9, 2001, Blackmer then had 90 days within
which he could have sought a writ of certiorari from the United
States Supreme Court. See Donovan, 276 F.3d at 91. That he
chose not to seek such review has no bearing on the determination
of when his conviction became final. Id. Accordingly, his
conviction became final under Section 2241(d) (1) (D) on April 9,
2001. 7
7 Blackmer contends that his conviction in state court did not become final until September 25, 2001, when the New Hampshire Supreme Court denied his motion to reconsider dismissal of his appeal. I reject this contention because his motion to reconsider was not timely filed. See N.H. Sup. C t . R. 22(2) (reguiring that a motion to reconsider be filed within 10 days of the date of the opinion). I decline to discuss this particular dispute in greater detail because it has no effect on my conclusion that Blackmer's petition is time-barred.
- 13 - Blackmer nevertheless invokes Section 2241(d)(1)(D) in
arguing that the limitations period has not yet begun to run
because the state prevented him from discovering the factual
predicate for his claim.8 His argument is that his claim is
predicated on Special Agent Connolly's perjury and, since the
state has failed to admit that the perjury occurred, it has
deprived him of information that he needs to bring his claim.
This argument is meritless. The limitations period begins to run
under Section 2244(d)(1)(D) when a defendant discovers or
8 Blackmer also alleges that the New Hampshire courts have "sguandered" jurisdiction in this matter and are therefore unfit to conduct a review of his case. This argument is rooted in his contention that he was denied the assistance of counsel during his direct appeal. Blackmer is incorrect. Prior to January 1, 2004, when N.H. Sup. C t . R. 7 was amended to provide for mandatory appeals in certain circumstances, the right to appeal in New Hampshire was "limited to the right to obtain a discretionary determination by [the Supreme Court] as to whether it will accept the appeal." State v. Cooper, 127 N.H. 119, 124 (1985). Pursuant to this rule, indigent defendants are provided counsel for preparing appeals to the Supreme Court at the State's expense. N.H. Rev. Stat. Ann. § 604-A:l. In this case, the State appointed an appellate defender to assist Blackmer in preparing his notice of appeal and his appellate brief. Prior to filing the brief, however, Blackmer instructed his attorney not to file the brief and then, on his own initiative, filed a motion to have his attorney removed. See note 7, supra. Accordingly, Blackmer's claim that the State has denied him the assistance of counsel in preparing his appeal is unsupported by the record and therefore rings hollow.
- 14 - reasonably should have discovered the factual predicate for his
claim. It does not require that the defendant have received an
admission from the state that a claim has merit before the
statute begins to run. It is obvious from the record that
Blackmer was well aware of the factual basis for his claim of
perjury when his direct appeal was pending before the New
Hampshire Supreme Court. Section 2241(d)(1)(D) thus will not
save Blackmer's claim from being subject to the statute of
limitations.
Because § 2244(d)(1)(D) is inapplicable, the statute of
limitations accrued on April 9, 2001 when Blackmer's conviction
became final under § 2244(d)(1)(A).
2. Tolling
Blackmer also argues that the statute of limitations was
tolled during the periods in which his petition for modification
of order and his motion to resubmit were pending in state court.9
As I have explained, such applications for post-conviction relief
9 Although Blackmer argues otherwise, the motions for injunctive relief and the state court habeas corpus petition do not toll the statute of limitations because these matters were resolved before the statute of limitations began to run.
- 15 - do not toll the statute of limitations unless they are "properly
filed."
Unfortunately for Blackmer, the Warden is correct in her
claim that neither his petition for modification of order nor his
petition to resubmit were "properly filed" for purposes of
tolling the limitations period. First, the "Petition for
Modification of Order" that Blackmer filed in superior court on
or about October 20, 2001 requested modification of a July 25,
1997 pre-trial order. In essence, this was a motion for
reconsideration. Pursuant to N.H. Super. C t . R. 59-A, such
motions must be filed "within ten (10) days of the date on the
clerk's written notice of the order or decision." Id. at 59-
A(l). Here, Blackmer filed the motion more than four years after
the clerk's notice. Because this motion was not "properly filed"
pursuant to New Hampshire's procedural rules, it did not toll the
applicable limitations period.
The Warden also correctly argues that the September 8, 2002
motion to resubmit was not "properly filed" according to New
Hampshire's procedural rules, and therefore did not toll the
limitations period. This motion was a response to the superior
- 16 - court's November 14, 2001 denial of Blackmer's petition for
modification of order. Thus, it was a motion to reconsider
which, as I have explained, had to be filed within 10 days of the
clerk's written notice of the decision that Blackmer was asking
the court to reconsider. Blackmer's September 8, 2002 motion,
filed nearly 10 months after the clerk's notice of the order on
the original motion was therefore untimely. Thus, the motion was
not "properly filed" for tolling purposes.
V. CONCLUSION
Because I conclude that Blackmer's petition for a writ of
habeas corpus (Doc. No. 3) is time-barred, the Warden's Motion
for Summary Judgment III (Doc. No. 65) is granted. As a result,
the Warden's Motion for Summary Judgment I (Doc. No. 31) and
Motion for Summary Judgment II (Doc. No. 51) are moot. The Clerk
shall enter judgment accordingly.
SO ORDERED.
Paul Barbadoro United States District Judge
December 9, 2004
- 17 - cc: Paul Blackmer 26106, pro se Charles J. Keefe, Esq.
- 18 -