Larson v . United States 08-CV-085-SM 04/01/08
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Roland Larson,
Petitioner
v. Civil N o . 08-cv-85-SM
Opinion N o .
2008 DNH 067
United States of America,
Respondent
O R D E R
Petitioner pled guilty to and was convicted of kidnaping
(
(a)). Concurrent sentences of 120 months
imprisonment were imposed on each count. Judgment was entered on
October 9, 2002. No appeal was taken.
Petitioner previously filed for federal habeas relief, under
the provisions of
. Larson v . United States, N o .
07-cv-384-SM. That petition was dismissed (Order, dated January
4 , 2008) because, to the extent he sought § 2241 relief related
to the execution of his sentence, rather than its legality, the
petition was filed in the wrong court. Petitioner was also
informed that, if he had intended to seek relief under § 2255,
rather than § 2241, then, as a § 2255 petition, the 1-year
limitations period made it untimely.
Para.
6(1).
Nevertheless, petitioner has now re-filed his § 2241
petition as a § 2255 application, raising the same grounds as in
the earlier one — i.e., that his guilty pleas were coerced by his
defense counsel, his pleas were improvidently entered; and, he
was not competent at the time he offered his guilty pleas. The
applicable 1-year limitations period expired on October 2 4 , 2002.
This petition is more than five years too late.
Petitioner does make a vague plea for equitable tolling to
avoid the untimeliness of his petition, writing:
“Did not discover facts supporting claims until
November of 2007 when I found pro-bono consultant.
Jonathan Saxe refused to challenge sentence imposed,
despite requests (see exhibits). Equitable tolling
should be considered “because of the extraordinary
circumstances[“] that were beyond my control and
unavoidable, even with due [diligence]. I only read
and comprehend at 3rd Grade level, which the government
concealed. (See Sandvik v . United States,
(11th Cir. 1999).”
Equitable tolling, however, is the exception, not the rule,
and is granted only where exceptional circumstances prevented a
timely filing, despite the exercise of due diligence. That is
clearly not the case here. The factors courts consider in
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deciding whether equitable tolling ought to be applied in the
habeas context include: petitioner’s own diligence in pursuing
relief; the existence of extraordinary circumstances; any
prejudice that might be experienced by the prosecution; whether
the claims to relief are of dubious merit; and whether the case
involves the death penalty. See Trapp v . Spencer,
479 F.3d 5
3 ,
61 (1st Cir. 2007).
Petitioner says his defense counsel “refused to challenge
[the] sentence imposed despite requests (see exhibits). But the
exhibits he attaches show just the opposite — that petitioner
intentionally chose not to file a direct appeal, and was advised
to contact counsel about possibly filing a § 2255 petition long
before the limitations period ran. Petitioner also claims he
reads and comprehends at only a 3rd grade level. But even if
that is true, it is not an extraordinary circumstance justifying
a five year delay in filing his petition. Finally, petitioner
says he “did not discover facts supporting [his] claims until
November of 2007" when he “found [a] pro bono consultant,” but he
does not say what those facts were, and does not state why those
facts were not subject to earlier discovery through the exercise
of due diligence.
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Petitioner has not pled or shown facts from which one might
find that he exercised due diligence, or that extraordinary
circumstances prevented him from filing a timely petition.
Conclusion
The petition is dismissed as untimely.
SO ORDERED.
/Steven __ McAuliffe
/Chief Judge
April 1, 2008
cc: Roland Larson, pro se
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