Wilson v. Northern NH Correctional Facility, Warden

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jarrell Wilson
v. 	Civil No. 18-cv-127-LM
Warden, Northern New Hampshire
Correctional Facility
REPORT AND RECOMMENDATION
Jarrell Wilson, an inmate at the Northern New Hampshire
Correctional Facility, has filed a petition for a writ of habeas
corpus, under 28 U.S.C. § 2254, challenging the validity of his
current incarceration pursuant to an April 2014 state court
criminal conviction. 	After conducting an initial review of
Wilson’s § 2254 petition, this court issued an Order (Doc. No.
9) concluding that Wilson’s petition appeared to have been filed
more than two years too late. 	That Order provided Wilson with
an opportunity to show cause why the petition should not be
dismissed as untimely. 	In particular, the court invited Wilson
to provide a timeline of all of his post-conviction proceedings
in state court, and to explain whether there were any
extraordinary circumstances that had interfered with his ability
to file a § 2254 petition in this court prior to May 21, 2015,
when the applicable statute of limitations expired. 	Wilson’s
response (Doc. No. 11) to that Order is presently before this
court.
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Background
On April 21, 2014, upon the advice of counsel, Wilson
pleaded guilty to multiple charges of armed robbery and was
sentenced to serve a sentence of 10 to 27 years in prison and to
a consecutive 7½ to 15-year sentence which was suspended for 10
years. 	Wilson did not file a direct appeal of his conviction
and sentence.
In 2016, counsel appearing on Wilson’s behalf filed a state
habeas petition asserting that his guilty plea was involuntary,
as it resulted from the ineffective assistance of trial counsel.
See Wilson v. Zenk, No. 217-2016-cv-00428 (N.H. Super.,
Strafford Cty.). 	The state court denied that petition on
February 9, 2017. 	See id. (N.H. Super., Strafford Cty. Feb. 9,
2017) (Doc. No. 8-4). 	The New Hampshire Supreme Court (“NHSC”)
declined to accept Wilson’s appeal of that order. 	See Wilson v.
Warden, No. 2017-0208 (N.H. May 26, 2017) (Doc. No. 8-2).
Wilson’s section 2254 petition asserts the same claims he
litigated unsuccessfully in the state habeas proceedings,
alleging violations of his Sixth and Fourteenth Amendment
rights.
Wilson’s initial filings in this case included a motion for
appointment of counsel (Doc. No. 3), in which Wilson asserted a
need for counsel based on his having been diagnosed with a
traumatic brain injury, ADHD, “low intellectual functioning,”
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and an impulse control disorder. 	Doc. No. 3, at 2, 3; see also
Doc. No. 1-1; Doc. No. 2. 	Wilson also asserted that he was
unable “to do legal filings” and make arguments without a lawyer
to assist him. 	Doc. No. 3, at 2, 3. 	Wilson has filed, as an
exhibit to his petition in this case, the Superior Court order
denying his state habeas petition, which described the contents
of Wilson’s medical records dating from 1998 to 2003. 	See
Wilson v. Zenk, No. 217-2016-cv-428 (N.H. Super. Ct., Strafford
Cty. Feb. 9, 2017) (Doc. No. 8-4). 	According to Wilson’s
medical records, Wilson suffered a severe brain injury in a car
accident in 1998. 	Id. 	Shortly after that accident, Wilson was
diagnosed as having an adjustment disorder with disturbance of
conduct related to his brain injury; personality disturbance
secondary to head injury, aggressive type; Attention Deficit
Hyperactive Disorder (“ADHD”), combined type; and borderline
intellectual functioning. 	Id. 	Wilson’s medical records from
2003 described him as impulsive, oppositional, distractible,
unable to focus, and, at times, having problems with verbal and
physical aggression. 	Id.
In the May 7, 2018 Order (Doc. No. 10) denying Wilson’s
initial motion for appointment of counsel in this case, this
court noted Wilson’s demonstrated ability to file cogently
written documents. 	The court found nothing to indicate that any
fundamental unfairness impinging upon Wilson’s due process
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rights would result if counsel were not appointed at that stage
of the case. 	See id.
Discussion
I. 	Statute of Limitations
For reasons stated in this court’s May 7, 2018 Order
relating to the statute of limitations (Doc. No. 9), the one-
year limitations period for the timely filing of this petition
expired on May 21, 2015, approximately two years and eight
months before Wilson filed this action. 	See May 7, 2018 Order
(Doc. No. 9) (citing 28 U.S.C. § 2244(d)(1)). 	Wilson’s state
habeas petition, filed in 2016, did not restart that limitations
clock. 	See May 7, 2018 Order (Doc. No. 9). 	Wilson did not file
any other state post-conviction proceedings prior to May 21,
2015 that could have tolled the statute of limitations. 	See
Response to May 7 Order (Doc. No. 11).
II. 	Equitable Tolling
A. 	Standard
This court may allow an otherwise untimely § 2254 petition
to proceed if the petitioner shows that he was “pursuing his
rights diligently,” and that “some extraordinary circumstance
stood in his way and prevented timely filing” of the petition.
Drew v. MacEachern, 620 F.3d 16, 23 (1st Cir. 2010) (internal
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quotation marks and citations omitted). 	“[I]t is not enough for
a party to show that he experienced extraordinary
circumstances”; the petition “must further demonstrate that
those circumstances caused him to miss the original filing
deadline.” 	Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011).
A “habeas petitioner bears the burden of establishing the basis
for equitable tolling.” 	Riva v. Ficco, 615 F.3d 35, 39 (1st
Cir. 2010). 	Wilson cites his lack of funds to hire counsel
prior to 2016 and his history of mental health issues, cognitive
deficits, and educational “special needs,” as circumstances that
prevented him from filing this petition sooner.
B. 	Lack of Counsel/Lack of Funds to Hire Counsel
Wilson’s lack of access to post-conviction counsel is not
an extraordinary circumstance that warrants equitable tolling.
See Holmes v. Spencer, 685 F.3d 51, 62-63 (1st Cir. 2012)
(inmate’s lack of legal training and limited legal resources are
among the “usual problems inherent in being incarcerated” that
did not justify equitable tolling (internal quotation marks and
citations omitted)).
C. 	Cognitive and Mental Health Issues
A petitioner’s mental health issues and cognitive deficits
can provide grounds for equitable tolling, if the petitioner
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“can show that, during the relevant time frame, he suffered from
a mental illness or impairment that so severely impaired his
ability either effectively to pursue legal relief . . . [on his
own] or, if represented, effectively to assist and communicate
with counsel.” 	Riva v. Ficco, 615 F.3d 35, 40 (1st Cir. 2010).
“[D]yslexia, learning disabilities, and illiteracy, standing
alone, would not justify equitable tolling of the § 2244(d)(1)
statute of limitations.” 	Clay v. Smith, 365 F. App’x 98, 103
(10th Cir. 2010). 	See also Heath v. Ault, 334 F. App’x 34, 34
(8th Cir. 2009) (per curiam) (learning disability in reading is
not an extraordinary circumstance warranting equitable tolling
of habeas petition). 	Wilson’s cogent, written response (Doc.
No. 11) to this court’s May 7, 2018 Order to show cause (Doc.
No. 10), coupled with his pro se filing of an amended habeas
petition in April 2018 (Doc. No. 8), demonstrate that he can
prepare clear and understandable legal filings without counsel.
Further, parts of the state court record filed here
indicate that Wilson between December 2013 and April 2014 had
mailed letters to the Conflict Case Administrator and to his
court-appointed counsel raising questions about counsel’s
performance, which led his court-appointed trial counsel to file
two motions seeking a hearing on the status of counsel. 	See
Doc. No. 8-3, at 1, 3, 4; Doc. No. 8-4, at 3, 4; Doc. No. 11, at
2. 	Although the state court judge ultimately denied Wilson’s
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requests for appointment of new counsel, Wilson’s demonstrated
ability in 2014 to state some of the reasons why he was
dissatisfied with his trial counsel indicates that he had the
capacity at that time to file claims asserting ineffective
assistance of counsel. 	Wilson does not point to any evidence
showing that his mental health issues and cognitive deficits in
the year following his conviction prevented him from filing a
petition here before the statute of limitations expired. 	Cf.
Mayberry v. Dittmann, 904 F.3d 525, 531 (7th Cir. 2018)
(petitioner with low IQ had not demonstrated that he qualified
for equitable tolling, in light of his failure to point to
anything specific transpiring after 2012, when he filed an
unexhausted habeas petition that was dismissed, and prior to
2016, when he filed an untimely petition). 	Accordingly,
Wilson’s traumatic brain injury, learning disability, “low
intellectual functioning,” ADHD, and impulse control disorder
are not extraordinary circumstances that qualify his case for
equitable tolling.
III. Actual Innocence
A credible claim of actual innocence may allow an otherwise
time-barred § 2254 petition to be reviewed. 	See McQuiggin v.
Perkins, 569 U.S. 383, 395 (2013) (miscarriage of justice
exception applies to cases in which “new evidence shows ‘it is
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more likely than not that no reasonable juror would have
convicted [the petitioner]’” (citation omitted)). 	Wilson has
failed to allege facts here suggesting that he has a credible
claim of actual innocence. 	Accordingly, and in light of the
inculpatory evidence proffered by the state and detailed in the
Superior Court’s order, see Doc. No. 8-4, Wilson does not have a
credible claim of actual innocence at this time, which would
enable him to avoid the statute of limitations.
IV. 	Certificate of Appealability
The Rules Governing Section 2254 Proceedings (Ҥ 2254
Rules”) require the court to “issue or deny a certificate of
appealability [“COA”] when it enters a final order adverse to
the party.” 	§ 2254 Rule 11(a). 	Here, the grounds for dismissal
are procedural and not substantive.
When the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s
underlying constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of reason would
find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court
was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). 	Reasonable jurists
would not find it debatable that the instant petition is time-
barred. 	Accordingly, the district judge should decline to issue
a certificate of appealability here.
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Conclusion
For the foregoing reasons, the district judge should
dismiss Wilson’s § 2254 petition as barred by the statute of
limitations and decline to issue a certificate of appealability.
Any objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
motion. 	Failure to file specific written objections to the
Report and Recommendation 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).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
December 4, 2018
cc: 	Jarrell Wilson, pro se
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