238 F. Supp.2d 322 (2003) | Cited 0 times | D. Maine | January 13, 2003


The United States Magistrate Judge having filed with the Court onDecember 16, 2002, with copies to counsel, his Recommended Decision onRespondent's Motion to Dismiss (Docket Item No. 8); and Petitioner havingfiled his objection thereto on December 31, 2002, (Docket Item No. 9), towhich objection Respondent responded on January 10, 2003 (Docket ItemNo. 10); and this Court having reviewed and considered the MagistrateJudge's Recommended Decision, together with the entire record; and thisCourt having made a de novo determination of all matters adjudicated bythe Magistrate Judge's Recommended Decision, and concurring with therecommendations of the United States Magistrate Judge for the reasons setforth in his Recommended Decision, it is ORDERED as follows:

(1) Petitioner's objection is hereby DENIED;

(2) The Recommended Decision of the Magistrate Judge is hereby AFFIRMED;

(3) Respondent's Motion to Dismiss is hereby GRANTED.


The respondent, warden of the Maine State Prison, moves to dismiss thisaction brought under 28 U.S.C. § 2254 for a writ of habeas corpus asbarred by the applicable statute of limitations. I recommend that thecourt grant the motion.

On February 25, 1998 the petitioner was convicted after a jury trial oncharges of murder and robbery. Docket Sheets, State v. Brad A. Chesnel,et al., Maine Superior Court (Androscoggin County), Docket No. CR-97-278(copy filed with Motion to Dismiss Petition for Writ of Habeas Corpus,etc. ("Motion") (Docket No. 5)) at 9 [reverse]. His motion for a newtrial was denied on April 7, 1998. Id. at 12. He was sentenced to a termof imprisonment for life on the murder conviction and a concurrent termof 40 years on the robbery conviction. Id. He was denied leave to appealfrom this sentence. Id. at 13 [reverse]. His appeal from the convictionswas denied by the Law Court. State v. Chesnel, 734 A.2d 1131, 1141 (Me.1999). His ensuing petition for certiorari was denied by the SupremeCourt on January 18, 2000. Chesnel v. Maine, 528 U.S. 1126 (2000).

On May 19, 2000 the petitioner filed a petition for post-convictionreview in the Maine Superior Court (Androscoggin County). Docket Sheets,Brad Chesnel v. State of Maine, Maine Superior Court (AndroscogginCounty), Docket No. AUBSC-CR-2000-234 (copy attached to Motion) at 1. Atestimonial hearing was held on October 23, 2001. Id. at 4. The petitionwas denied on October 25, 2001 and the denial entered on the docket onOctober 30, 3001. Id. No appeal was taken from this disposition.

The petitioner filed the instant action in this court on October 25,2002. Docket.

The respondent invokes 28 U.S.C. § 2244(d)(1)(A) as the basis fordismissal of this petition. That statute provides, in relevant part:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review[.]

(2) The 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 shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(1) & (2). Here, the respondent contends thatthe one-year period had expired well before the instant petition wasfiled. Motion at 4-5. The judgment of conviction became final by theconclusion of review when the Supreme Court denied the petitioner'sapplication for a writ of certiorari on January 18, 2000. Bond v. Moore,309 F.3d 770, 773-74 (11th Cir. 2002). The filing of his petition forstate post-conviction review on May 19, 2000 tolled the running of thelimitations period until November 20, 2001, the expiration of the 21-dayperiod during which the petitioner could have sought a certificate ofprobable cause to appeal from the Superior Court's denial of thatpetition.

Maine Rules of Appellate Procedure 2(b)(2)(A) & 19(a) & (b).The limitation period began to run again on that day. By the respondent'scalculation, 122 of the 365 days had elapsed when the petition wasfiled, so the period expired 243 days after November 20, 2001, wellbefore October 25, 2002 when the instant action was filed. Motion at 5.

The petitioner argues in response that the one-year limitation periodbegins to run anew under section 2244(d)(2) when the disposition of thestate post-conviction proceeding becomes final and that any otherinterpretation of the statute "would be nonsensical." Response to Motionto Dismiss Petition ("Response") (Docket No. 6) at 1. Unfortunately forthe petitioner, the interpretation advanced by the respondent is theinterpretation adopted by the First Circuit, which is binding on thiscourt. Gaskins v. Duval, 183 F.3d 8, 9-10 (1st Cir. 1999). See also Smithv. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (section 2244(d)(2) excludestime during which state relief application is pending but does not resetdate from which one-year period begins to run; this interpretation is"uniformly followed in other circuits"). By any reasonable calculation,the one-year period had expired in this case well before the petitionerfiled the instant action.

The petitioner also states, in conclusory fashion, that "the one-yearlimitation contained in U.S.C. § 28 Section 2244(d)(1)(A) [sic] isnot jurisdictional and therefore amenable to equitable tolling." Responseat 2. As an abstract proposition, that may well be true. Cf. Donovan v.Maine, 276 F.3d 87, 92-93 (1st Cir. 2002). However, in the absence of anysuggestion, let alone developed argument, about the basis on which thepetitioner might be entitled to equitable tolling of the period, thiscourt will not consider the possibility.

For the foregoing reasons, I recommend that the motion to dismiss beGRANTED.

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