The opinion
LaRue v. NH Adult Parole Board 07-CV-096-SM 01/30/08
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Darrell J. LaRue,
Petitioner
v. Civil No. 07-cv-96-SM
Opinion No. 2008 DNH 025
New Hampshire Adult Parole Board.
Respondent
O R D E R
Petitioner seeks federal habeas relief under the provisions
of 28 U.S.C. § 2254, on a number of asserted grounds. The
respondent has answered, correctly pointing out, inter alia, that
the petition is untimely under the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2241 et se a .
The parties have filed motions for summary judgment addressing
the timeliness issue.
AEDPA establishes a one-year limitations period for federal
habeas petitions filed by state prisoners. 28 U.S.C.
§ 2244(d)(1). Putting aside exceptions not pertinent here, the
one-year limit runs from the time that the state court judgment
of conviction became final by the conclusion of direct review or
the expiration of the time for seeking i t . (Emphasis added.)
28 U.S.C. § 2244(d)(1)(A). Excluded from that one-year period is
"[t]he time during 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.
§ 2244(d)(2).
Here, petitioner was convicted and sentenced in state court,
pursuant to his guilty pleas, on three counts of driving while
under the influence of alcohol, and three counts of transporting
alcohol. Under the terms of his plea agreement he waived his
right to direct appeal of those convictions. In fact, petitioner
did not appeal.
Judgment was entered against petitioner on January 28, 2005,
and the thirty day period available for him to seek direct review
by the New Hampshire Supreme Court expired on February 28, 2005
(February 27, 2005, is thirty days from January 28, but fell on a
Sunday). The AEDPA limitations period began to run, then, on
March 1, 2005. Over ten months later, on January 19, 2006,
petitioner filed a motion for post-conviction or collateral
relief (to vacate his pleas, convictions and sentence) in the
state court. That pleading tolled (but did not reset) the
running of AEDPA's limitations period. By that point 323 days
had run, leaving petitioner with 42 days in which to file his
federal habeas petition.
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Petitioner's post-conviction motion was finally resolved by
the New Hampshire Supreme Court on December 13, 2006, which
started the tolled AEDPA period running again. The federal
petition had to be filed by January 25, 2007. Petitioner did not
file his federal habeas petition until March 30, 2007, well after
the limitations period had expired. See David v. Hall, 318 F .3d
343 (1st Cir. 2003) (explaining calculation of AEDPA limitations
period).
Conclusion
The petition is necessarily dismissed as untimely since it
was filed beyond the expiration of AEDPA's one-year limitations
period, even accounting for periods of tolling. Petitioner's
motion for summary judgment (document no. 7) is denied.
Respondent's motion for summary judgment (document no. 8) is
granted.
SO ORDERED.
St'even J./McAuliffe
thief Judge
January 30, 2008
cc: Darrell J. LaRue, pro se
James T. Boffetti, Esq.
Stephen Fuller, NHAG's Office
John Vinson, NH DOC
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