Hart v. NH State Prison, Warden

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UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Kenneth Hart
v. 	Civil No. 18-cv-424-SM
Michelle Edmark, Warden,
New Hampshire State Prison
REPORT AND RECOMMENDATION
Pro se prisoner Kenneth Hart has filed a petition for a
writ of habeas corpus, pursuant to 28 U.S.C. § 2254. 	Before the
court is Hart’s motion for summary judgment (Doc. No. 16),
asserting that he is innocent and entitled to relief on his
claims, and asserting that a default judgment should be entered
because respondent has not filed an answer.
I. 	Default
Hart seeks an order finding that respondent is in default
as she has not filed an answer to date. 	Pursuant to Rule 5(a)
of the Rules Governing Section 2254 Cases (“§ 2254 Rules”), the
respondent is not required to file an answer until ordered to do
so by the court. 	This court has not previously directed the
respondent to file an answer to the petition. 	Accordingly, the
district judge should deny Hart’s motion for a default judgment.
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II. 	Summary Judgment
Hart argues that he is entitled to summary judgment on his
claims, including his claim of innocence. 	There are substantial
legal and factual issues in this case that preclude this court
from granting judgment as a matter of law in Hart’s favor. 	For
reasons stated in the Order issued this date, Hart has not yet
demonstrated that he has exhausted all effective and available
state remedies on his claims. 	Cf. 28 U.S.C. § 2254(b) (habeas
petition shall not be granted unless it appears that applicant
has exhausted all available and effective state remedies).
Furthermore, as explained in that Order, Hart has not yet
demonstrated that his claims are not time-barred under 28 U.S.C.
§ 2244(d). 	The Order issued this date provides Hart with thirty
days in which to file an amended petition demonstrating that he
has exhausted all of the available and effective remedies on his
claims, and to show that his claims are not barred by the
statute of limitations. 	As Hart has not yet filed any response
to that Order, and respondent has not filed an answer to the
petition, Hart’s motion for summary judgment is premature.
This court notes that, in both the petition and in his
motion for summary judgment, Hart asserts that he is innocent.
A “credible showing of actual innocence” can provide a means for
a petitioner to avoid the effect of the statute of limitations.
See McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). 	Actual
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innocence in this context, however, “means factual innocence,
not mere legal insufficiency.” 	Bousley v. United States, 523
U.S. 614, 623 (1998). 	The actual innocence exception “applies
to a severely confined category: cases in which new evidence
shows ‘it is more likely than not that no reasonable juror would
have convicted [the petitioner]’” in light of that new evidence.
McQuiggin, 569 U.S. at 395 (citation omitted). 	Here, Hart’s
claim of innocence is a claim that the evidence was insufficient
to support the jury’s verdict. 	Hart’s claim is not based on the
type of new evidence described in McQuiggin. 	Accordingly, the
district judge should deny Hart’s motion for summary judgment
(Doc. No. 16) at this time, without prejudice to Hart’s ability
to refile a similar motion, after Hart responds to the Order
issued this date, and the court completes its preliminary review
of the amended petition he may file as part of that response,
pursuant to LR 4.3(d)(4) and § 2254 Rule 4.
Conclusion
For the foregoing reasons, the district judge should deny
Hart’s motion for summary judgment (Doc. No. 16) without
prejudice, as premature. 	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
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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
September 18, 2018
cc: 	Kenneth H. Hart, pro se
Elizabeth Woodcock, Esq.
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