Tracy Taylor v. NH State Prison

• Court: District Court, D. New Hampshire
• Decided: July 13, 1999
• Docket: CV-99-137-B
• Status: Published

Opinion

Tracy Taylor v. NH State Prison CV-99-137-B 07/13/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Tracy Taylor

v. Civil No. 99-137-B

New Hampshire State Prison

O R D E R

The issue I address in this order is whether Tracy Taylor's

habeas corpus petition is barred by the one-year statute of

limitations that governs such claims. See 28 U.S.C.A. §

2244(d) (1) .

The statute of limitations began to run with respect to

Taylor's federal habeas corpus claim on "the date on which the

[challenged] judgment became final." 28 U.S.C.A. § 2244(d)

(1) (A) .1 In a case such as this, where a defendant appeals his

conviction in state court but does not seek certiorari from the

1 A claim based on 28 U.S.C.A. § 2254 may be maintained more than one year after the date on which the petitioner's conviction became final if (1) the petitioner was prevented from making the motion earlier by illegal governmental action; (2) the Supreme Court recognized the right on which the petition is based after petitioner's conviction became final and the right is made retroactively applicable to cases on collateral review; or (3) petitioner could not reasonably have discovered the facts on which his claim is based until after his conviction became final. 28 U.S.C.A. § 2244(d)(1). None of these exceptions apply in this case. United States Supreme Court, his conviction becomes "final" when

the time for filing a petition for writ of certiorari challenging

the conviction expires. See Griffith v. Kentucky, 479 U.S. 314,

321 n.6 (1987). The statute 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 . . . ." 28 U.S.C.A. § 2244(d)(2). A state

post-conviction proceeding is "pending" from the date that the

petition commencing the proceeding is filed until the date that

the state supreme court rejects the appeal. See Guenther v.

Holt, 173 F.3d 1328, 1330 (11th Cir. 1999); Barnett v. Lemaster,

167 F.3d 1321, 1322 (10th Cir. 1999). Finally, a habeas corpus

petition submitted by a prisoner is deemed to be "filed" for

purposes of the statute of limitations when it is placed in the

prison mail system for delivery. See Nichols v. Bowersox, 172

F .3d 1068, 1075 (8th Cir. 1999).

Applying these rules in the present case, I cannot grant the

state's motion for summary judgment because I cannot determine

when Taylor placed his state and federal habeas corpus petition

in the prison mail system for delivery. The answer to this

guestion will determine whether his federal petition is time

barred.

- 2 - Taylor's state court conviction became "final" for purposes

of the statute of limitations on September 3, 1996, when the time

for filing a writ of certiorari with the Supreme Court expired.

If Taylor placed his habeas corpus petition in the prison mail

system for delivery on March 17, 1999, the date he signed the

petition, a total of two years and 195 days elapsed between the

date that Taylor's state court conviction became final and the

date that he "filed" his federal habeas corpus petition. The

statute of limitations was tolled from the date that Taylor

"filed" his state court habeas corpus petition until April 24,

1998, the date that the New Hampshire Supreme Court rejected his

motion to reconsider the denial of his appeal. If Taylor placed

his state court petition in the prison mail system on October 10,

1998, the date that he signed the petition, the tolling period

was one year and 196 days. Thus, when the tolling period is

taken into account, it is possible that Taylor "filed" his

federal habeas corpus petition two days before the statute of

limitations expired. Accordingly, I cannot grant the state's

motion for summary judgment on the present record.2

2 I note that Taylor cannot blame any failure to file a timely petition on his attorney in the state habeas corpus proceedings. Even if malpractice could excuse a failure to comply with the statute of limitations, an argument I do not accept, the record in this case demonstrates that Taylor's

- 3 - Respondent's motion to dismiss (document no. 8) is denied.

SO ORDERED.

Paul Barbadoro Chief Judge

July 13, 1999

cc: Tracy Taylor, pro se N. William Delker, Esq.

failure to file his federal habeas corpus petition earlier was his own fault rather than the fault of his attorney. Thus, if the state could prove that Taylor placed his state and federal habeas corpus petitions in the prison mail system later than the dates that he signed the petitions, his claim would be barred by the statute of limitations.

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