Morehouse v. NHSP CV-01-93-B 03/25/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Patrick Morehouse
v. Civil No. 01-93-B Opinion No. 2002 DNH 072 Warden, NH State Prison
MEMORANDUM AND ORDER
On March 16, 2001, Patrick Morehouse filed a federal habeas
corpus petition challenging his 1981 conviction for attempted
first degree murder. The Warden of the New Hampshire State
prison has moved to dismiss the petition on the ground that it is
barred by the one-year statute of limitation that governs habeas
corpus claims. See 28 U.S.C. § 2244(d)(1).
BACKGROUND
Morehouse was found guilty of attempted first degree murder
in the Hillsborough County Superior Court on May 14, 1981.1
1 Morehouse was first convicted in 1979. The New Hampshire Supreme Court vacated the initial conviction, however, because it determined that the trial court gave the jury an erroneous reasonable doubt instruction. See State v. Morehouse, 120 N.H. 738, 744-45 (1980). Shortly thereafter, he was sentenced to a prison term of not more
than 30 years, nor less than 10 years. The New Hampshire Supreme
Court summarily affirmed his conviction and sentence on August
25, 1981.2
Morehouse first attempted to collaterally attack his 1981
conviction by filing a habeas corpus petition with this court on
March 6, 1996. He claimed that his conviction should be vacated
because: (1) his trial counsel was ineffective; (2) the
prosecution presented insufficient evidence to support his
conviction; (3) the trial court violated his right to due process
of law by giving him an enhanced sentence based on the "cruelty
and depravity" of his crime; (4) he was not notified prior to the
trial that he could face an enhanced sentence; (5) the sentencing
judge erred in failing to specify the facts on which he relied in
2 Before acting on Morehouse's appeal, the supreme court directed his appellate counsel to "file a memorandum explaining why the issues in this case are different from those considered by the court in [Morehouse's appeal of his first conviction]." Counsel responded by informing the court that "the issues which would be briefed and argued in the [second] appeal would be identical to those argued and briefed in [the first appeal]." Because the court had previously rejected the issues Morehouse intended to raise in his second appeal, the court apparently determined that it could resolve the second appeal without further briefing.
- 2 - issuing the enhanced sentence; and (6) his appellate counsel was
ineffective.
On May 16 , 1996, the Magistrate Judge directed Morehouse to
file an amended petition demonstrating that he had exhausted
state court remedies with respect to his six claims for relief.
In response, Morehouse asked the court to dismiss his ineffective
assistance claims without prejudice and determine that he had
exhausted his remaining claims. The Magistrate Judge granted his
request on August 27, 1996.
On December 10, 1996, Morehouse filed a motion asking the
court to reinstate his dismissed ineffective assistance claims
and allow him to add a new claim that the New Hampshire Supreme
Court had violated his right to due process of law by summarily
affirming his conviction. I denied the motion because I
determined that I could not act on his petition if I allowed it
to include the unexhausted claims.
Morehouse renewed his request to amend his petition to
include the unexhausted claims at a hearing on July 30, 1997.
Although I informed Morehouse that I would have to dismiss his
entire petition if I granted his request, he nevertheless
- 3 - insisted that I permit him to amend his petition to include the
unexhausted claims so that he could immediately appeal my order
dismissing his petition. Ultimately, I granted his motion to
amend and dismissed his petition because it contained unexhausted
claims. The First Circuit Court of Appeals rejected Morehouse's
appeal on December 17, 1997.
Morehouse filed a certiorari petition with the New Hampshire
Supreme Court on December 29, 1997, raising several claims he had
included in his federal habeas corpus petition as well as several
new claims. After the supreme court rejected his petition,
Morehouse filed a second habeas corpus petition with this court
on May 11, 1998. Judge McAuliffe ultimately dismissed this
petition on April 9, 1999 because he determined that Morehouse's
certiorari petition did not satisfy the exhaustion requirement.
The First Circuit Court of Appeals affirmed Judge McAuliffe's
ruling on September 17, 1999.
Morehouse filed a habeas corpus petition in the Merrimack
County Superior Court on September 24, 1999. The Superior Court
dismissed his petition and the New Hampshire Supreme Court
declined to hear his appeal on August 21, 2000.
- 4 - Morehouse filed his current habeas corpus petition with this
court on March 16, 2001.
ANALYSIS
Congress enacted the Antiterrorism and Effective Death
Penalty Act ("AEDPA") in 1996. The Act, which went into effect
on April 24, 1996, included a one-year statute of limitations for
habeas corpus petitions. See 28 U.S.C. § 2 2 4 4 (d)(1). Because
Morehouse's conviction became final before Congress enacted
AEDPA, the one-year limitation period for his claims began to run
when AEDPA went into effect. See Currie v. Matesanz, 2002 WL
226925 at *2 (1st Cir. 2002). Morehouse thus had until April 24,
1997 to file his habeas corpus petition.
AEDPA provides that "[t]he time during which a properly
filed application for state post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this
section." 28 U.S.C. § 2244(d)(2)(emphasis added). While this
statutory tolling provision covers periods in which a collateral
challenge is pending in state court, it does not apply to
- 5 - challenges initiated in federal court. Neverson v. Bissonnette,
261 F.3d 120, 125 (1st Cir. 2001). Morehouse accordingly cannot
rely on AEDPA's statutory tolling provision because a federal
habeas corpus petition is not covered under the provision and he
did not attempt to challenge his conviction in state court until
after the limitation period had expired. Thus, Morehouse's
current petition will be time-barred unless he can demonstrate
that the limitation period should be equitably tolled during the
pendency of his first federal habeas corpus proceeding.
The First Circuit has not yet determined whether a habeas
corpus petitioner can ever rely on equitable tolling to save a
habeas corpus claim that is otherwise barred by AEDPA's statute
of limitation. See Donovan v. State of Maine, 276 F.2d 87, 92
(1st Cir. 2002); Neverson, 261 F.3d at 127. The court has held,
however, that "equitable tolling, if available at all, is the
exception rather than the rule; resort to its prophylaxis is
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Morehouse v. NHSP CV-01-93-B 03/25/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Patrick Morehouse
v. Civil No. 01-93-B Opinion No. 2002 DNH 072 Warden, NH State Prison
MEMORANDUM AND ORDER
On March 16, 2001, Patrick Morehouse filed a federal habeas
corpus petition challenging his 1981 conviction for attempted
first degree murder. The Warden of the New Hampshire State
prison has moved to dismiss the petition on the ground that it is
barred by the one-year statute of limitation that governs habeas
corpus claims. See 28 U.S.C. § 2244(d)(1).
BACKGROUND
Morehouse was found guilty of attempted first degree murder
in the Hillsborough County Superior Court on May 14, 1981.1
1 Morehouse was first convicted in 1979. The New Hampshire Supreme Court vacated the initial conviction, however, because it determined that the trial court gave the jury an erroneous reasonable doubt instruction. See State v. Morehouse, 120 N.H. 738, 744-45 (1980). Shortly thereafter, he was sentenced to a prison term of not more
than 30 years, nor less than 10 years. The New Hampshire Supreme
Court summarily affirmed his conviction and sentence on August
25, 1981.2
Morehouse first attempted to collaterally attack his 1981
conviction by filing a habeas corpus petition with this court on
March 6, 1996. He claimed that his conviction should be vacated
because: (1) his trial counsel was ineffective; (2) the
prosecution presented insufficient evidence to support his
conviction; (3) the trial court violated his right to due process
of law by giving him an enhanced sentence based on the "cruelty
and depravity" of his crime; (4) he was not notified prior to the
trial that he could face an enhanced sentence; (5) the sentencing
judge erred in failing to specify the facts on which he relied in
2 Before acting on Morehouse's appeal, the supreme court directed his appellate counsel to "file a memorandum explaining why the issues in this case are different from those considered by the court in [Morehouse's appeal of his first conviction]." Counsel responded by informing the court that "the issues which would be briefed and argued in the [second] appeal would be identical to those argued and briefed in [the first appeal]." Because the court had previously rejected the issues Morehouse intended to raise in his second appeal, the court apparently determined that it could resolve the second appeal without further briefing.
- 2 - issuing the enhanced sentence; and (6) his appellate counsel was
ineffective.
On May 16 , 1996, the Magistrate Judge directed Morehouse to
file an amended petition demonstrating that he had exhausted
state court remedies with respect to his six claims for relief.
In response, Morehouse asked the court to dismiss his ineffective
assistance claims without prejudice and determine that he had
exhausted his remaining claims. The Magistrate Judge granted his
request on August 27, 1996.
On December 10, 1996, Morehouse filed a motion asking the
court to reinstate his dismissed ineffective assistance claims
and allow him to add a new claim that the New Hampshire Supreme
Court had violated his right to due process of law by summarily
affirming his conviction. I denied the motion because I
determined that I could not act on his petition if I allowed it
to include the unexhausted claims.
Morehouse renewed his request to amend his petition to
include the unexhausted claims at a hearing on July 30, 1997.
Although I informed Morehouse that I would have to dismiss his
entire petition if I granted his request, he nevertheless
- 3 - insisted that I permit him to amend his petition to include the
unexhausted claims so that he could immediately appeal my order
dismissing his petition. Ultimately, I granted his motion to
amend and dismissed his petition because it contained unexhausted
claims. The First Circuit Court of Appeals rejected Morehouse's
appeal on December 17, 1997.
Morehouse filed a certiorari petition with the New Hampshire
Supreme Court on December 29, 1997, raising several claims he had
included in his federal habeas corpus petition as well as several
new claims. After the supreme court rejected his petition,
Morehouse filed a second habeas corpus petition with this court
on May 11, 1998. Judge McAuliffe ultimately dismissed this
petition on April 9, 1999 because he determined that Morehouse's
certiorari petition did not satisfy the exhaustion requirement.
The First Circuit Court of Appeals affirmed Judge McAuliffe's
ruling on September 17, 1999.
Morehouse filed a habeas corpus petition in the Merrimack
County Superior Court on September 24, 1999. The Superior Court
dismissed his petition and the New Hampshire Supreme Court
declined to hear his appeal on August 21, 2000.
- 4 - Morehouse filed his current habeas corpus petition with this
court on March 16, 2001.
ANALYSIS
Congress enacted the Antiterrorism and Effective Death
Penalty Act ("AEDPA") in 1996. The Act, which went into effect
on April 24, 1996, included a one-year statute of limitations for
habeas corpus petitions. See 28 U.S.C. § 2 2 4 4 (d)(1). Because
Morehouse's conviction became final before Congress enacted
AEDPA, the one-year limitation period for his claims began to run
when AEDPA went into effect. See Currie v. Matesanz, 2002 WL
226925 at *2 (1st Cir. 2002). Morehouse thus had until April 24,
1997 to file his habeas corpus petition.
AEDPA provides that "[t]he time during which a properly
filed application for state post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this
section." 28 U.S.C. § 2244(d)(2)(emphasis added). While this
statutory tolling provision covers periods in which a collateral
challenge is pending in state court, it does not apply to
- 5 - challenges initiated in federal court. Neverson v. Bissonnette,
261 F.3d 120, 125 (1st Cir. 2001). Morehouse accordingly cannot
rely on AEDPA's statutory tolling provision because a federal
habeas corpus petition is not covered under the provision and he
did not attempt to challenge his conviction in state court until
after the limitation period had expired. Thus, Morehouse's
current petition will be time-barred unless he can demonstrate
that the limitation period should be equitably tolled during the
pendency of his first federal habeas corpus proceeding.
The First Circuit has not yet determined whether a habeas
corpus petitioner can ever rely on equitable tolling to save a
habeas corpus claim that is otherwise barred by AEDPA's statute
of limitation. See Donovan v. State of Maine, 276 F.2d 87, 92
(1st Cir. 2002); Neverson, 261 F.3d at 127. The court has held,
however, that "equitable tolling, if available at all, is the
exception rather than the rule; resort to its prophylaxis is
deemed justified only in extraordinary circumstances." Delaney
v. Matesanz, 264 F.3d 7, 14 (1st Cir. 2001). The Ninth Circuit
has further explained that the doctrine is available only if
" 'extraordinary circumstances beyond a prisoner's control make it
- 6 - impossible to file a petition on time.'" Malcom v. Pavne, 2002
WL 253811 at *9 (9th Cir. 2002) (quoting Calderon v. United
States District C t . for the Cent. Dist. of C a l ., 163 F.3d 530,
541 (9th Cir. 1997) (en banc)) (internal quotation marks
omitted); see also Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th
Cir. 2000) (confusion concerning applicable statute of limitation
not a basis for equitable tolling), cert, denied, 122 S. C t . 145
(20 0 1 ) .
Morehouse has been unable to identify any extraordinary
circumstances that would justify the use of equitable tolling to
save his untimely claims. He waited more than 15 years after his
conviction became final before he attempted to seek collateral
review of his conviction. Moreover, after he filed his first
federal habeas corpus petition, the court repeatedly advised him
of his obligation to comply with the exhaustion requirement
before proceeding with his unexhausted claims in federal court.
Morehouse was informed that he could either take a dismissal of
all of his claims without prejudice so that he could later raise
them in a single federal petition after exhausting state
remedies, or take a dismissal of only his unexhausted claims
- 7 - without prejudice so that he could litigate his exhausted claims
in federal court while pursuing his unexhausted claims in state
court. Morehouse started down the second path when he initially
asked the court to dismiss his unexhausted claims without
prejudice, but he failed to take any action to preserve his
unexhausted claims by promptly pursuing them in state court where
they would have been protected by AEDPA's statutory tolling
provision. See 28 U.S.C.§ 2 2 4 4 (d)(2). Instead, after the
statute of limitation had run, he asked the court to reinstate
his unexhausted claims even though he was informed that his
request would result in the dismissal of his entire petition.
Morehouse thus has no one but himself to blame for the situation
in which he now finds himself.
If, on these facts, I were to allow Morehouse to invoke
equitable tolling to save his claim, I would undermine AEDPA's
exhaustion requirement and make equitable tolling the rule in
cases where a petitioner files his claims in federal court
without first complying with the requirement that he exhaust his
state court remedies. A claimant is simply not entitled to
invoke equitable tolling when he finds that his claims are time- barred because of his own failure to take available steps to
comply with the exhaustion requirement that would have preserved
his claims for review. See Delaney, 264 F.3d at 15 (rejecting
equitable tolling claim based on pro se status of petitioner and
ignorance of the applicable law).
CONCLUSION
Respondent's motion to dismiss (document no. 10) is granted.
SO ORDERED.
Paul Barbadoro Chief Judge
March 25, 2002
cc: Patrick Morehouse, pro se Malinda Lawrence, Esq.
- 9 -