UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Robert Towle Case No. 15-cv-117-SM v. Opinion No. 2019 DNH 172
Warden, New Hampshire State Prison for Men
O R D E R
Petitioner Robert Towle (hereinafter “Towle” or
“Petitioner”) has filed an amended petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, alleging that his present
incarceration violates his constitutional rights. See § 2254
Pet. (Doc. No. 1), as amended by Doc. Nos. 9-1, 65, 67, 91, 123.
Respondent, the Warden of New Hampshire State Prison for Men
(hereinafter “Respondent” or “the Warden”) has filed a Motion to
Dismiss Claims 5-27 of the amended petition as untimely. (Doc.
No. 135). Petitioner objects. (Doc. No. 151).
Procedural Background
Petitioner is a prisoner of the State of New Hampshire,
who, after a jury trial in Coos Superior Court, was convicted on
January 29, 2013, of four counts of aggravated felonious sexual
assault for engaging in fellatio and anal penetration with his
minor son (“J.T.”), and four counts of criminal liability for
the conduct of another for encouraging his wife and another
adult to engage in sexual acts with J.T. See Am. § 2254 Pet.
1 (Doc. No. 1) at 1; State v. Towle, 111 A.3d 679, 681 (N.H. 2015)
(citations omitted). 1 The court sentenced Petitioner on March
11, 2013 to serve 57 - 114 years in prison, and ordered that he
have no contact with the victim, the reporting witness, and his
other minor son. See Towle, 111 A.3d at 681.
Prior to trial, Petitioner waived his right to counsel and
indicated he wished to represent himself. The trial court held
a two-hour hearing on May 1, 2012, pursuant to Faretta v.
California, 422 U.S. 806, 835 (1975), to determine whether
Petitioner’s waiver of his right to counsel was “knowing and
voluntary.” See Faretta Colloquy Tr. (Doc. No. 19). 2 The court
concluded Petitioner’s waiver was knowing and voluntary, and it
approved a hybrid representation plan proposed by Petitioner and
his attorney. Under that plan, Petitioner represented himself
“from the moment the jury [was] sworn until the moment the jury
retire[d] to begin deliberations, during which period Attorney
1This was Petitioner’s second trial on these offenses. See State v. Towle, 35 A.3d 490 (N.H. 2011). Petitioner’s judgment in his first trial was reversed on direct appeal. See id. The New Hampshire Supreme Court held that automatic reversal was required by the trial court’s failure to inquire further when Towle made a “timely, unequivocal and clear request to represent himself” at trial, and the trial proceeded with Towle represented by counsel. Id. at 494. 2Respondent filed this and other relevant transcripts as part of an addendum (Doc. No. 19) to its June 26, 2018 Motion to Dismiss (Doc. No. 18). The addendum documents are maintained conventionally in the New Hampshire District Court Clerk’s office.
2 [Joseph] Fricano [was] appointed and act[ed] as standby
counsel.” Faretta Colloquy Tr. (Doc. No. 19), at 65; see also
id. at 7-8, 12, 13, 55. Prior to the jury being sworn in and
after the jury retired to deliberate, Petitioner was represented
by Attorney Fricano. See id.
The New Hampshire Supreme Court (“NHSC”) affirmed
Petitioner’s convictions on direct appeal but reversed the no-
contact order imposed at sentencing. See Towle, 111 A.3d at
682. Petitioner’s sentence remains otherwise intact. Id. at
690.
On April 2, 2015, Petitioner filed his petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court, and
thus began a more than four-year exercise of the limits of
federal civil procedure. On August 28, 2015, the Court issued a
preliminary review order (Doc. No. 5), identifying 14 proposed
grounds for relief in the petition and directing Petitioner to
either: 1) file a motion to amend his petition asserting the
federal nature of each of the proposed grounds for relief and
demonstrating that each of those federal claims has been
exhausted in the state courts; or 2) file a motion to stay this
civil action to allow him to exhaust his state court remedies on
his federal claims.
Thereafter, Petitioner filed a motion to amend (Doc. No. 9)
his habeas Petition. The Court entered an Order (Doc. No. 13)
3 granting the motion; finding that Petitioner had exhausted the
federal grounds for Claims 1-14; and directing Respondent to
file an answer, motion, or other response to the petition as
amended. The Warden filed an answer (Doc. No. 15) and a motion
to dismiss (Doc. No. 18), which the Court denied. See Order
(Doc. No. 57) (approving Report and Recommendation (“R&R”) (Doc.
No. 50)).
On October 13, 2016, the Court entered an Order (Doc. No.
43) giving Petitioner a deadline of November 26, 2016, to file
either a motion to amend the petition to add any new claims he
believed were meritorious or a notice stating that he did not
intend to add any new claims to the petition. Instead of
complying with the Court’s instructions, Petitioner filed two
requests (Doc. Nos. 64, 66) in the First Circuit Court of
Appeals for authorization to file a second or successive habeas
petition in the district court. On March 17, 2017, the First
Circuit denied Petitioner’s requests as unnecessary and remanded
the petitions to this Court with instructions to treat them as
motions to amend his still pending § 2254 Petition. See Mar.
17, 2017 J., Towle v. Zenk, No. 16-2175 (1st Cir. Mar. 17,
2017); Mar. 17, 2017 J., Towle v. Zenk, No. 16-2224 (1st Cir.
Mar. 17, 2017) (Doc. No. 66); Pet’r’s Mots. to Amend (Doc. Nos.
65, 67).
4 Thereafter, the Warden filed a motion for summary judgment
(Doc. No. 72) and Petitioner filed a motion to stay this action
(Doc. No. 85), to allow him to exhaust state court remedies for
the federal claims raised in his motions to amend. The Court
granted Petitioner’s motion to stay, see Doc. No. 88, and took
under advisement Petitioner’s motions to amend the § 2254
petition and Respondent’s motion for summary judgment. See June
21, 2017 Order.
Subsequently, Petitioner filed a motion to lift the stay
(Doc. No. 90), and his fourth motion to amend (Doc. No. 91) the
§ 2254 Petition. The Court lifted the stay and entered an Order
identifying ten new federal claims (numbered 15-24) raised in
Petitioner’s second, third, and fourth motions to amend. See
Order (Doc. No. 117) (approving R&R (Doc. No. 100)). The Court
granted the motions to amend, to the extent they alleged
violations of Petitioner’s rights under federal constitutional
law. See id.
On February 1, 2018, the Court entered an Order (Doc. No.
107) staying proceedings in this civil action pending
Petitioner’s exhaustion of ineffective assistance of trial
counsel claims in the state courts. The Court also entered an
order denying Respondent’s motion for summary judgment (Doc. No.
72), without ruling on the merits, and without prejudice to
Respondent’s ability to refile or amend it after the stay was
5 lifted. See Order (Doc. No. 119) (approving R&R (Doc. No.
108)).
On May 31, 2018, Petitioner filed a motion to lift stay
(Doc. No. 123), which the Court construed, in part, as a motion
to amend the § 2254 Petition to add three ineffective assistance
of trial counsel claims (numbered 25-27), see Doc. No. 127.
Respondent filed an answer (Doc. No. 128) to Claims 25-27, an
addendum (Doc. No. 129) to the answer, a motion for summary
judgment as to Claims 15-27 (Doc. No. 133), a motion to dismiss
Claims 15-27 as time-barred (Doc. No. 135), and a motion for
summary judgment as to Claims 1-14 (Doc. No. 139). Petitioner
has objected to the motion to dismiss, see Doc. No. 151, and the
motions for summary judgment, see Doc. Nos 151, 158. Before the
Court is the Warden’s Motion to Dismiss Claims 15-27.
Discussion
The Warden contends that Claims 15-27 are barred by the
statute of limitations, and do not relate back to the original
habeas petition under Federal Rule of Civil Procedure 15(c).
The Federal Rules of Civil Procedure apply to § 2254 habeas
proceedings provided they are not inconsistent with statutory
provisions or the rules that apply to habeas proceedings. See
Rule 12, Rules Governing § 2254 Cases in the United States
District Courts (“§ 2254 Rules”).
6 The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2244(d)(1), establishes a one-year
statute of limitations for a state prisoner to file a federal
habeas corpus petition under 28 U.S.C. § 2254. The one-year
period generally starts when a prisoner's conviction becomes
final, at the conclusion of a direct appeal or the expiration of
time for seeking a direct appeal. See § 2244(d)(1)(A). The
statute of limitations is tolled, however, during the time in
“which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment
or claim is pending.” § 2244(d)(2).
The NHSC issued its opinion affirming Petitioner’s 2013
convictions on January 29, 2015. See Towle, 111 A.3d at 682.
Petitioner’s judgment became final 90 days later, on or about
April 29, 2015, when the time expired for Petitioner to seek
review of the NHSC’s opinion in the United States Supreme Court.
See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (holding that
“judgment becomes final” for AEDPA purposes “when the time for
pursuing direct review in [the Supreme] Court ... expires”);
Blue v. Medeiros, 913 F.3d 1, 3-4 (1st Cir. 2019).
Petitioner timely filed his original § 2254 petition,
raising Claims 1-14, on April 2, 2015, the date he placed it in
the prison mail system. See Morales-Rivera v. United States,
184 F.3d 109, 109 (1st Cir. 1999) (“We hold that a pro se
7 prisoner’s motion under 28 U.S.C. § 2255 or § 2254 is filed on
the date that it is deposited in the prison’s internal mail-
system for forwarding to the district court”). The statute of
limitations does not toll while a § 2254 petition is pending in
the federal courts. See Duncan v. Walker, 533 U.S. 167, 172
(2001). Consequently, the one-year statute of limitations for
Petitioner’s amendments to his § 2254 Petition began to run on
or about April 29, 2015, when his judgment of conviction became
final.
The limitations period ran unabated for 128 days, until
September 4, 2015, the date Petitioner filed for post-conviction
relief in the Coos County Superior Court (“CCSC”). See Def.’s
Mot. to Vacate II, State v. Towle, No. 08-CR-289, et al. (N.H.
Super. Ct., Coos Cty. Sept. 4, 2015) (Doc. No. 9-1) (“MTV II”). 3
The CCSC denied MTV II, and on December 7, 2015, the NHSC
declined Petitioner’s discretionary appeal in that action. See
Order, State v. Towle, No. 2015-0612 (N.H. Dec. 7, 2015) (Doc.
No. 9-4).
While MTV II was pending in the state courts, Petitioner
filed a petition for writ of habeas corpus in the Merrimack
County Superior Court (“MCSC”), raising other claims related to
3Petitioner filed his first motion to vacate (“MTV I”) in the Superior Court while his direct appeal was pending in the NHSC. See Add. To Answer, State v. Towle, 214-2008-CR-00289 (N.H. Super. Ct., Coos Cnty. Dec. 26, 2013) (Doc. No. 129).
8 his 2013 Coos Superior Court judgment. See Pet., Towle v.
Warden, N.H. State Prison, No. 217-2015-CV-00580 (N.H. Super.
Ct., Merrimack Cnty. Oct. 15, 2015). On February 12, 2016, that
court held an evidentiary hearing on the petition, and on April
14, 2016, the MCSC denied Towle’s petition. See Not. of
Discret. Appeal, Towle, Case No. 217-2015-CV-00580 (Doc. No.
129 4). On September 14, 2016, the NHSC declined Petitioner’s
discretionary appeal in that action. See Order (Doc. No. 67),
at 23.
Because Petitioner’s MTV II and state habeas corpus action
overlapped, the statute of limitations tolled from September 4,
2015, until September 14, 2016, while one or both those actions
were pending in the state courts. 5 See § 2244(d)(2); Drew v.
MacEachern, 620 F.3d 16, 20 (1st Cir. 2010); Currie v. Matesanz,
281 F.3d 261, 267-68 (1st Cir. 2002) (“[A]n application for
post-conviction relief is pending from the time it first is
4Doc.No. 129 is an addendum to Respondent’s September 27, 2018 Answer (Doc. No. 128). The documents comprising the addendum are maintained conventionally by the New Hampshire District Court Clerk of Court.
5OnApril 27, 2016, prior to filing his notice of discretionary appeal of the MCSC’s order denying his state habeas petition, Petitioner filed another motion to vacate (“MTV III”) in the CCSC, challenging his 2013 judgment. See State v. Towle, No. 214-2009-CR-00096 (N.H. Super. Ct., Coos Cnty. Apr. 27, 2016) (Doc. No. 129). The trial court denied Petitioner’s MTV III on April 28, 2016, and on June 13, 2016, the NHSC declined Petitioner’s discretionary appeal of the trial court’s order. See id.
9 filed with the state trial court, until” the time appellate
review is no longer available under the state’s procedures.).
The statute of limitations then resumed and ran for another 218
days until it paused again on April 20, 2017, when Petitioner
filed another motion to vacate (“MTV IV”) (Doc. No. 91-1) in the
CCSC challenging his 2013 criminal judgment.
Petitioner’s MTV IV was followed four days later by another
motion to vacate (Doc. No. 91-6) (“MTV V”) (Doc. No. 91-6), and
a supplement to MTV-V (Doc. No. 91-7). The CCSC denied MTV IV
and MTV V on May 1, 2017, see Doc. Nos. 91-3, 91-9, and the NHSC
declined Petitioner’s appeals on June 22, 2017, see Doc. Nos.
91-5, 91-11. Consequently, the statute of limitations was
tolled from April 20, 2017 until June 22, 2017. See §
2244(d)(2). It resumed and ran for another 19 days until it
fully expired on or about July 11, 2017.
Petitioner filed his first amended § 2254 petition (“AP I”)
(Doc. No. 9-1) in this Court on December 8, 2015. He filed his
second and third amended petitions (“AP II” and “AP III”) (Doc.
Nos. 65, 67) , raising Claims 15-24, on May 17, 2017. Finally,
he filed his fourth amended petition (“AP IV”) (Doc. No. 91), on
July 10, 2017. Thus, unless one or more of Petitioner’s state
motions for post-conviction relief were not properly filed,
Claims 15-24 are timely, as they were filed prior to expiration
of the statute of limitations. See §§ 2244(d)(1)(A), (d)(2).
10 Respondent does not contend that one or more of Petitioner’s
state post-conviction actions was improperly filed. 6 Therefore,
the Motion to Dismiss shall be denied with respect to Claims 15-
24.
On May 31, 2018, Petitioner filed a motion to lift stay,
which this Court construed, in part, as a motion to amend to add
Claims 25-27 to the pending habeas petition. See June 26, 2018
Order (Doc. No. 127), at 3. Those claims that allege trial
counsel was ineffective for failing to preserve the federal
nature of “Claims 1, 3, and [6] 7” of the original § 2254
petition. See id.
6Respondent’smotion does not calculate any period during which the statute of limitations was tolled for any of Petitioner’s state post-conviction actions except MTV II. In fact, in the Motion to Dismiss, Respondent does not acknowledge that Petitioner filed any other state post-conviction actions. This is only one of the errors Respondent has made in calculating the statute of limitations. Others include starting the limitations period 90 days early by leaving out the period of time Petitioner had to file a certiorari petition in the United States Supreme Court, cf. Gonzalez, 565 U.S. at 150, and using the date the § 2254 Petition was received by the Court instead of the date Petitioner put it in the prison mail as the date on which the § 2254 Petition was filed, cf. Morales-Rivera, 184 F.3d at 109.
7Petitionermis-numbered Claim 6 of his original § 2254 Petition as “Habeas Claim #7” in his state court filing. Compare § 2254 Pet. (Doc. No. 1), at 18, with Mot. to Exhaust 6th Am. Claims (Doc. No. 123-1), at 6-7. As a result, in a previous order, this Court mistakenly identified Claim 7, instead of Claim 6, as one of the three claims related to habeas Claims 25-27. See June 26, 2018 Order (Doc. No. 127), at 3.
11 Petitioner filed Claims 25-27 in this Court almost a year
after the statute of limitations expired. Moreover, he filed
and exhausted these ineffective assistance of counsel claims in
the state courts after the federal statute of limitations
expired. See Pet’r’s Exs. (Doc. Nos. 123-1 thru 123-4). State
post-conviction proceedings filed after the expiration of the
statute of limitations has expired do not reset the limitations
clock. See Trapp v. Spencer, 479 F.3d 53, 58-59 (1st Cir.
2007), abrogated on other grounds, Holland v. Florida, 560 U.S.
631, 649 (2010). Accordingly, Claims 25-27 were not timely
filed.
Nevertheless, in the interests of judicial economy and
moving this case forward, the Court will assume arguendo that
these claims relate back to the original § 2254 Petition and are
timely under the relation-back doctrine. See Fed. R. Civ. P.
15(c) (providing that an otherwise untimely amendment relates
back to the date of the timely-filed original pleading if “the
claim or defense asserted in the amended pleading arose out of
the conduct, transaction, or occurrence set forth or attempted
to be set forth in the original pleading”). For the reasons
that follow, however, Claims 25 and 27 fail as a matter of law
and shall be dismissed. Claim 26 is more appropriately reviewed
on summary judgment, and Respondent’s motion to dismiss with
respect to that claim shall be denied.
12 Liberally construed, Petitioner alleges in Claims 25-27
that counsel was ineffective for failing to preserve federal
constitutional issues so that they could be raised on appeal.
See Doc. No. 123-1, at 6-7. To preserve an issue for appellate
review, the party must raise it in the trial court in the first
instance. See State v. Munoz, 949 A.2d 155, 161 (N.H. 2008)
(“[W]e will not entertain objections that were not raised during
the proceedings below because they are not preserved for our
review.” (citing State v. Wong, 635 A.2d 470 (N.H. 1993))).
Accordingly, the Court liberally construes Claims 25-27 as
alleging that trial counsel rendered ineffective assistance by
failing to raise certain objections based on federal
constitutional grounds, thereby failing to preserve those
grounds for appeal.
Claim 25 relates back to Claim 1 of the original § 2254
petition. Towle alleges in Claim 1 that the prosecutor
attempted to refresh J.T.’s recollection about whether Towle
engaged in fellatio with J.T. on a specific occasion; Towle
objected on the ground that J.T. had not testified to any lack
of recollection; the trial court overruled the objection, and
the prosecutor was allowed to refresh J.T.’s recollection. See
§ 2254 Pet. (Doc. No. 1), at 7-8. On the following day of
trial, standby counsel addressed the trial court, stating he
wanted to ensure Towle’s previously raised objection was
13 preserved for appeal; standby counsel stated Towle had made a
specific objection to the “improper use of the doctrine of
refreshing recollection.” See Mot. to Exhaust 6th Am. Claims
(Doc. No. 123-1), at 6-7 (citing Trial Tr. p. 444); id. at 14.
In Claim 25, Petitioner claims standby counsel was ineffective
for failing to argue a federal basis for Petitioner’s objection.
See id.
Claim 27 relates back to Claim 6 of the original § 2254
petition. In Claim 6, Towle alleges the trial court erred when
it allowed the introduction of a photograph of J.T. that had no
evidentiary value and that was introduced solely to inflame the
passions of the jury. See § 2254 Pet. (Doc. No. 1), at 18.
Petitioner adds in Claim 27 that he objected to admission of the
photograph under New Hampshire Rule of Evidence 403, but standby
counsel did not tell him to object on federal constitutional
grounds. See Mot. to Exhaust 6th Am. Claims (Doc. No. 123-1) at
7. He claims standby counsel was ineffective on that basis.
There is no Sixth Amendment right to the effective
assistance of counsel when a defendant has knowingly,
intelligently, and voluntarily waived his right to counsel and
has elected to represent himself at trial. See Faretta, 422
U.S. at 834, n.46 (“[A] defendant who elects to represent
himself cannot thereafter complain that the quality of his own
14 defense amounted to a denial of ‘effective assistance of
counsel.’”). Furthermore, while a trial court may, in its
discretion, appoint standby counsel to assist a pro se
defendant, see McKaskle v. Wiggins, 465 U.S. 168, 170, 184
(1984), there is no constitutional right to stand-by counsel,
see United States v. Bova, 350 F.3d 224, 226 (1st Cir. 2003)
(“[W]e think it well to lay to rest any suggestion that Bova had
a right to represent himself and to enjoy the benefit of standby
appointed counsel.” (citing McKaskle, 465 U.S. at 183)); accord
Simpson v. Battaglia, 458 F.3d 585, 597 (7th Cir. 2006)
(concluding that “there is no right to standby counsel”).
Absent a constitutional right to standby counsel, there can be
no constitutional right to effective assistance of standby
counsel. See United States v. Morrison, 153 F.3d 34, 55 (2d
Cir. 1998)(“without a constitutional right to standby counsel, a
defendant is not entitled to relief for the ineffectiveness of
standby counsel.”); accord United States v. Windsor, 981 F.2d
943, 947 (7th Cir. 1992) (“This court knows of no constitutional
right to effective assistance of standby counsel.”); Thomas v.
Warden, N.H. State Prison, Civil No. 1:07-cv-385-JL, 2012 U.S.
Dist. LEXIS 38125, at *36, 2012 WL 959382, at *12 (D.N.H. Mar.
21, 2012) (“since . . . Thomas validly decided to proceed pro
se, he had no right to the ‘effective assistance’ of standby
counsel”).
15 Petitioner does not dispute that he waived his right to
counsel and elected to represent himself at trial knowingly,
intelligently, and voluntarily. He raises no claims related to
the adequacy of the Faretta hearing. And, he does not allege
the incidents described in Claims 25 and 27 occurred during the
periods he was represented by counsel under the hybrid-
representation plan approved by the trial court. Because
Petitioner knowingly, intelligently, and voluntarily waived his
right to counsel and because he has no constitutional right to
the effective assistance of standby counsel, Claims 25 and 27
fail as a matter of law and must be dismissed. See Faretta, 422
U.S. at 834 n. 46.
Conclusion
For the foregoing reasons, the court grants in part and
denies in part the Respondent’s motion to dismiss (Doc. No.
135). The motion is granted as to Claims 25 and 27, and is
otherwise denied.
SO ORDERED.
________________________________ Steven J. McAuliffe United States District Judge
September 30, 2019
cc: Robert V. Towle, pro se Elizabeth C. Woodcock, Esq.