Washburn v. NH State Prison, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Phillip Washburn
v. Case No. 16-cv-196-LM
Warden, New Hampshire
State Prison
REPORT AND RECOMMENDATION
In 2006, in the New Hampshire Superior Court, Phillip
Washburn pled guilty to, and was convicted of, three counts of
aggravated felonious sexual assault (“AFSA”). See N.H. Rev.
Stat. Ann. (“RSA”) § 632-A:2. Appearing in this court pro se,
Washburn now petitions for a writ of habeas corpus. See 28
U.S.C. § 2254. Before this magistrate judge for a report and
recommendation is respondent’s motion to dismiss. Petitioner
objects. For the reasons that follow, respondent’s motion to
dismiss should be granted.
Background
In December of 2006, Washburn was sentenced on his three
convictions for AFSA. Those convictions, in turn, resulted from
assaults on three different eight-year-old victims. Washburn is
currently incarcerated in the New Hampshire State Prison.
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In November 2015, Washburn moved to withdraw his guilty
plea to the AFSA charge that was prosecuted against him in Case
No. 06-S-204. That case, in turn, involved a victim identified
as T.W. In his motion, Washburn argued that his plea in 06-S-
204 was not knowing, intelligent, and voluntary, because he pled
guilty to assaulting T.W. at her home in Laconia, but at the
time of the assault, T.W. lived in Massachusetts. Washburn’s
motion also sought other relief, not relevant to the petition
now before the court, but as to Washburn’s request to withdraw
his plea, Judge O’Neill denied the motion.
In December 2015, Washburn filed a motion to vacate his
conviction in 06-S-204. He argued that the state superior court
lacked jurisdiction to try him on the offense charged in that
case because T.W. said in a diary entry that he had assaulted
her in her home, while evidence showed that at the time of the
assault, T.W.’s parents owned no property in Laconia and resided
in Massachusetts. In other words, Washburn contended that his
conviction was unlawful because the New Hampshire Superior Court
lacked jurisdiction to try him for an alleged assault that took
place in Massachusetts. Judge O’Neill denied Washburn’s motion.
Washburn appealed Judge O’Neill’s second decision to the
New Hampshire Supreme Court. The court declined Washburn’s
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discretionary appeal.
Washburn petitioned for a writ of habeas corpus in this
court in May 2016. His sole claim is “that a jurisdictional
defect in Case No. 06-S-204 violated his federal rights to due
process and a fair trial.” Order (doc. no. 5) 1.
On preliminary review, this magistrate judge observed that
Washburn’s petition appeared to be time barred. However,
Washburn was granted leave to file a statement “showing cause
why his § 2254 petition should not be dismissed as untimely.”
Order (doc. no. 3) 3. In granting leave, the order: (1) noted
the one-year limitation period applicable to § 2254 petitions;
(2) described the doctrine of equitable tolling, see id.
(quoting Drew v. MacEachern, 620 F.3d 16, 23 (1st Cir. 2010));
and (3) directed Washburn to “state specific facts that could
provide a basis for this court to equitably toll the statute of
limitations on his § 2254 petition,” id. at 4. In response,
petitioner filed a statement in which he: (1) reported that he
had lost possession of his pre-trial discovery in 06-S-204; (2)
described his difficulties in recovering his case file from his
trial attorney; and (3) articulated the following theory to
support a claim of actual innocence that, in his view, compels
the court to equitably toll the statute of limitations:
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The state in its objection to [his motion to withdraw
his guilty plea] revealed new facts to the petitioner
he could use in support of his innocence claim. The
state claims that the alleged victim claims that the
alleged assault occurred in her home. The alleged
victim was living in Massachusetts for the year in
which the alleged offense was to have occurred.
Pet’r’s Show Cause Statement (doc. no. 4) ¶ 5. Upon review of
petitioner’s statement, the court “conclude[d] that the statute
of limitations issue in this case may be properly resolved after
respondent has an opportunity to brief the issue.” Order (doc.
no. 5) 1.
Discussion
Respondent now moves to dismiss Washburn’s petition,
arguing that it is untimely and that the claim it raises has not
been exhausted.1 Petitioner objects. Rather than addressing the
issue of timeliness, he makes this argument:
The petitioner moved the state courts to dismiss his
plea of guilty [due] to its lack jurisdiction. The
[alleged] victim stated that the [alleged] crime
happened in her home, which at the [alleged] year
would have been in Massachusetts.
The Warden conceded that “the victim was never asked
what she meant by (at home).”
1 28 U.S.C. § 2254(b)(2)(A) provides that “[a]n application
for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted
unless is appears that . . . the applicant has exhausted the
remedies available in the courts of the State.”
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[Neither t]he state, nor the Warden, has provided any
evidentiary support that the alleged victim lived in
Belknap County New Hampshire as alleged. No
investigative records are provided to reflect that the
New Hampshire courts actually possess jurisdictional
authority to prosecute this alleged offense within its
borders. This material issue remains in dispute.
Pet’r’s Obj. (doc. no. 12) ¶¶ 2-4 (citation to the record
omitted). Washburn’s petition should be dismissed as untimely.
28 U.S.C. § 2244(d)(1) imposes a one-year deadline on
habeas corpus petitions filed pursuant to § 2254. Washburn
filed his petition more than eight years after that deadline had
expired. Thus, on its face, Washburn’s petition is untimely.
However, Ҥ 2244(d) is subject to equitable tolling in
appropriate cases.” Holland v. Florida, 560 U.S. 631, 645
(2010) (citing Neverson v. Farquharson, 366 F.3d 32, 41 (1st
Cir. 2004)). But, “a ‘petitioner’ is ‘entitled to equitable
tolling’ only if he shows ‘(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance
stood in his way’ and prevented timely filing.” Holland, 560
U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 419
(2005)); see also Holmes v. Spencer, 822 F.3d 609, 611 (1st Cir.
2016) (“equitable tolling requires a habeas petitioner to
demonstrate as necessary conditions for relief that (1) he has
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been pursuing his rights diligently, and (2) some extraordinary
circumstance prevented timely filing”).2
As the court has noted, petitioner does not address the
statute of limitations issue in his objection to respondent’s
motion to dismiss. However, to the extent that he raised
arguments germane to that issue in the statement he submitted in
response to the show-cause order, the court will consider those
arguments as if they had been raised in petitioner’s objection.
Even so, on the record before the court, equitable tolling is
unavailable.
Petitioner was convicted in December of 2006. He first
began to challenge the legality of his conviction in the state
courts in November of 2015. That does not demonstrate
diligence.
Moreover, there is nothing in the record that even hints at
any extraordinary circumstance that prevented Washburn from
filing a timely petition. His claim is that the state superior
court lacked jurisdiction to try him for the offense charged in
06-S-204. Petitioner has not produced the indictment in 06-S-
2 Respondent cites Trapp v. Spencer, 479 F.3d 53 (1st Cir.
2007), for the factors that courts should consider when deciding
whether a habeas petitioner is entitled to equitable tolling,
but on at least one issue, “Trapp has been overtaken by
Holland.” Holmes, 822 F.3d at 611 n.1.
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204, but if he had been charged with a crime committed in
Massachusetts, that surely would have been evident on the face
of the indictment, and petitioner has not shown that any
extraordinary circumstance prevented him from filing a habeas
petition based upon a faulty indictment within the limitation
period. Similarly, if he admitted to facts during his plea
colloquy establishing that he committed a crime that occurred in
Massachusetts rather than New Hampshire, he has not shown that
any extraordinary circumstance prevented him from filing a
timely habeas petition challenging the jurisdiction of the
superior court. In addition, at least some of the evidence he
cited in his state-court motions, such as seeing T.W.’s parents
driving a car with Massachusetts license plates in 2005, was
available to him before he entered his guilty plea in late 2006,
which further undercuts any argument that he was unable to file
a petition within the limitation period.
Finally, even if some extraordinary circumstance had
prevented Washburn from learning that T.W. lived in
Massachusetts during the year of the charged assault, the
location of her residence is not material. Washburn was
convicted of an assault that took place in Belknap County; he
was not convicted of assaulting a victim who lived in Belknap
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County. Beyond that, the victim’s place of residence is not an
element of aggravated felonious sexual assault, see RSA 632-A:2,
and the mere fact that the victim resided in Massachusetts is in
no way inconsistent with a charge that petitioner assaulted her
while she was in Belknap County. In short, while the supposed
new evidence on which petitioner bases his claim might,
conceivably, have been useful for cross-examining T.W., there is
nothing in that evidence that would undermine the superior
court’s jurisdiction over the charge on which petitioner was
convicted.
In sum, Washburn’s petition is untimely, and he has failed
to establish either of the two necessary conditions for
equitable tolling. Accordingly, his petition should be
dismissed.
Certificate of Appealability
The Rules Governing Section 2254 Proceedings (“2254 Rules”)
require the court to “issue or deny a certificate of
appealability when it enters a final order adverse to the
party.” 2254 Rule 11(a). The court will issue the certificate
“only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
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Given the recommended disposition of Washburn’s petition, he has
failed to make a substantial showing of the denial of a
constitutional right. Accordingly, a certificate of
appealability is unwarranted in this case.
Conclusion
For the reasons detailed above, respondent’s motion to
dismiss, doc. no. 10, should be granted; the district judge
should direct the clerk of the court to enter judgment in
respondent’s favor; and the judge should decline to issue a
certificate of appealability.
Any objection to this Report and Recommendation must be
filed within 14 days of receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). Failure to file an objection within the
specified time waives the right to appeal the district court’s
order. See Garayalde–Rijos v. Muni. of Carolina, 747 F.3d 15,
21–22 (1st Cir. 2014).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
January 17, 2017
cc: Phillip Washburn, pro se
Elizabeth C. Woodcock, Esq.
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