Larson v. United States

2008 DNH 067

• Court: District Court, D. New Hampshire
• Decided: April 1, 2008
• Docket: 08-CV-085-SM
• Status: Published

Opinion

Larson v . United States 08-CV-085-SM 04/01/08 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Roland Larson, Petitioner

v. Civil N o . 08-cv-85-SM Opinion N o . 2008 DNH 067 United States of America, Respondent

O R D E R

Petitioner pled guilty to and was convicted of kidnaping

(18 U.S.C. § 1201(a)(1)) and interstate domestic violence

(18 U.S.C. § 2261(a)). Concurrent sentences of 120 months

imprisonment were imposed on each count. Judgment was entered on

October 9, 2002. No appeal was taken.

Petitioner previously filed for federal habeas relief, under

the provisions of 28 U.S.C. § 2241. Larson v . United States, N o .

07-cv-384-SM. That petition was dismissed (Order, dated January

4 , 2008) because, to the extent he sought § 2241 relief related

to the execution of his sentence, rather than its legality, the

petition was filed in the wrong court. Petitioner was also

informed that, if he had intended to seek relief under § 2255,

rather than § 2241, then, as a § 2255 petition, the 1-year limitations period made it untimely. 28 U.S.C. § 2255 Para.

6(1).

Nevertheless, petitioner has now re-filed his § 2241

petition as a § 2255 application, raising the same grounds as in

the earlier one — i.e., that his guilty pleas were coerced by his

defense counsel, his pleas were improvidently entered; and, he

was not competent at the time he offered his guilty pleas. The

applicable 1-year limitations period expired on October 2 4 , 2002.

This petition is more than five years too late.

Petitioner does make a vague plea for equitable tolling to

avoid the untimeliness of his petition, writing:

“Did not discover facts supporting claims until November of 2007 when I found pro-bono consultant. Jonathan Saxe refused to challenge sentence imposed, despite requests (see exhibits). Equitable tolling should be considered “because of the extraordinary circumstances[“] that were beyond my control and unavoidable, even with due [diligence]. I only read and comprehend at 3rd Grade level, which the government concealed. (See Sandvik v . United States, 177 F.3d 1269, 1271 (11th Cir. 1999).”

Equitable tolling, however, is the exception, not the rule,

and is granted only where exceptional circumstances prevented a

timely filing, despite the exercise of due diligence. That is

clearly not the case here. The factors courts consider in

2 deciding whether equitable tolling ought to be applied in the

habeas context include: petitioner’s own diligence in pursuing

relief; the existence of extraordinary circumstances; any

prejudice that might be experienced by the prosecution; whether

the claims to relief are of dubious merit; and whether the case

involves the death penalty. See Trapp v . Spencer, 479 F.3d 5 3 ,

61 (1st Cir. 2007).

Petitioner says his defense counsel “refused to challenge

[the] sentence imposed despite requests (see exhibits). But the

exhibits he attaches show just the opposite — that petitioner

intentionally chose not to file a direct appeal, and was advised

to contact counsel about possibly filing a § 2255 petition long

before the limitations period ran. Petitioner also claims he

reads and comprehends at only a 3rd grade level. But even if

that is true, it is not an extraordinary circumstance justifying

a five year delay in filing his petition. Finally, petitioner

says he “did not discover facts supporting [his] claims until

November of 2007" when he “found [a] pro bono consultant,” but he

does not say what those facts were, and does not state why those

facts were not subject to earlier discovery through the exercise

of due diligence.

3 Petitioner has not pled or shown facts from which one might

find that he exercised due diligence, or that extraordinary

circumstances prevented him from filing a timely petition.

Conclusion

The petition is dismissed as untimely.

SO ORDERED.

/Steven __ McAuliffe /Chief Judge

April 1, 2008

cc: Roland Larson, pro se