Hazelton v. Northern NH Correctional Facility

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy W. Hazelton
v. Civil No. 22-cv-023-LM-AJ
Warden, Northern New Hampshire
Correctional Facility
REPORT AND RECOMMENDATION
Self-represented petitioner Timothy W. Hazelton filed a
petition for a writ of habeas corpus under 28 U.S.C. § 2254
(Doc. No. 1) and several petition addenda (Doc. Nos. 3, 5, 7, 9)
in this Court. In his petition documents, Mr. Hazelton has
challenged his 2006 conviction and sentence on sexual assault
charges, asserting that his guilty plea to those charges was the
product of his attorneys’ coercion and threats, in violation of
his Sixth and Fourteenth Amendment rights to the effective
assistance of counsel and due process. The petition documents
are before the undersigned Magistrate Judge to complete
preliminary review in this matter. See Rule 4 of the Rules
Governing § 2254 Cases (“§ 2254 Rules); LR 4.3(d)(4).
After conducting an initial preliminary review in this
case, this Court issued an Order (Doc. No. 8) stating that Mr.
Hazelton’s petition appeared to be untimely filed. In that
Order, the Court directed Mr. Hazelton to file an amended
petition demonstrating that his petition in this Court should
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not be dismissed on that basis. The Order explained that Mr.
Hazelton could make that showing by demonstrating that the one-
year limitations period generally applicable to § 2254 actions
was tolled in his case by post-conviction state court
litigation, see 28 U.S.C. § 2244(d)(2), or by demonstrating that
the limitations period in his case should be equitably tolled.
In addition, the Court explained that Mr. Hazelton could obtain
an exception to the limitations period if he could establish a
credible claim of actual innocence.
Discussion
I. Amended Petition
In response to the Court’s order, Mr. Hazelton filed an
Amended Petition (Doc. No. 9), which the Court has construed as
part of the petition for all purposes. In his petition, Mr.
Hazelton asserted that the limitations period in his case should
be equitably tolled because he tried to get legal help between
2006 and 2012, but the attorneys he contacted said they couldn’t
help him without charging him a lot of money, which he didn’t
have. Further, Mr. Hazelton alleges that his trial attorneys
refused to help him appeal his conviction, stating there was
nothing they could do as he had pleaded guilty pursuant to an
agreement with the prosecution in his criminal case.
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II. Tolling Not Justified
Mr. Hazelton has not asserted that between his 2006
conviction and his 2022 filing of his habeas petition in this
court, he filed any action in the state courts challenging his
conviction. Accordingly, he has failed to show that any time
can be excepted from his limitations period under 28 U.S.C. §
2244(d)(2).
Equitable tolling may be warranted if there are facts
showing that the petitioner had diligently pursued his rights
and “that some extraordinary circumstances stood in his way and
prevented timely filing” of his petition. Riva v. Ficco, 615
F.3d 35, 39 (1st Cir. 2010). Mr. Hazelton attempts to
demonstrate that he should be entitled to equitable tolling
because he could not find pro bono counsel, or afford retained
counsel, and he did not have the legal training and knowledge
necessary to pursue federal habeas relief on his own. However,
neither a prisoner’s lack of legal training and knowledge, nor
his lack of an attorney, are “extraordinary circumstances.” Id.
Instead, those are “‘the usual problems inherent in being
incarcerated,’” which “‘do not justify equitable tolling.’”
Holmes v. Spencer, 685 F.3d 51, 63 (1st Cir. 2012) (citation
omitted).
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III. Actual Innocence
A petitioner who presents a credible claim of actual
innocence may avoid the dismissal of an otherwise untimely
habeas petition. See McQuiggin v. Perkins, 569 U.S. 383, 395
(2013) (actual innocence exception applies to cases in which
“new evidence shows ‘it is more likely than not that no
reasonable juror would have convicted [the petitioner]’”
(citation omitted)). While Mr. Hazelton continues to assert his
innocence, he has not pointed to the existence of any new
evidence which could support a claim of actual innocence that
warrants an exception to the statute of limitations. For these
reasons, Mr. Hazelton’s petition is untimely, and the District
Judge should deem it time-barred.
Certificate of Appealability
When the district court denies a § 2254 petition on
procedural grounds without reaching the underlying
constitutional claims, a Certificate of Appealability (“COA”)
should issue when the petitioner shows, at least, that
reasonable jurists would find it debatable whether the petition
states a valid claim of the denial of a constitutional right,
and that reasonable jurists would find it debatable whether the
district court was correct in its procedural ruling. See Slack
v. McDaniel, 529 U.S. 473, 483-84 (2000); see also 28 U.S.C.
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§ 2253(c)(2). Here, Mr. Hazelton has not made any substantial
showing of the denial of a constitutional right, and reasonable
jurists would not debate that his petition is time-barred.
Accordingly, the District Judge should not issue a COA in this
matter.
Conclusion
For the foregoing reasons, the District Judge should
dismiss Mr. Hazelton’s § 2254 petition as untimely and decline
to issue a COA. Any objections to this Report and
Recommendation must be filed within fourteen days of receipt of
this notice. Fed. R. Civ. P. 72(b)(2). The fourteen-day period
may be extended upon motion. Failure to file any objection
within the specified time waives the right to appeal the
district court’s Order. See Santos-Santos v. Torres-Centeno,
842 F.3d 163, 168 (1st Cir. 2016). Only those issues raised in
the written objections to this Report and Recommendation “‘are
subject to review in the district court,’” and any issues “‘not
preserved by such objection are precluded on appeal.’” Id.
(citations omitted).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
April 3, 2024
cc: Timothy W. Hazelton, pro se
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