UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Charles Carr

v. Civil No. 06-cv-380-JD

Opinion No. 2007 DNH 046

Warden, New Hampshire State Prison

O R D E R

Charles Carr seeks habeas corpus relief pursuant to 28

U.S.C. § 2254 from his state court conviction and sentence in

2002 on charges of kidnaping and sexual assault. The warden

moves for summary judgment, asserting that the petition is

untimely, under 28 U.S.C. § 2244(d)(1), and that it fails on the

merits. Carr opposes summary judgment.

Background

Carr was charged with kidnaping and sexual assault based on

an incident in 1983 and another in 1984. In each incident, Carr

took a woman from Massachusetts to his family’s cottage in New

Hampshire where he sexually assaulted her. In 1984, he was tried

in Massachusetts on charges of kidnaping and sexual assault for

the 1983 incident. He was convicted on the kidnaping charge but

was acquitted on the sexual assault charge. Before he was tried

Case 1:06-cv-00380-JD Document 10 Filed 04/03/07 Page 1 of 7
2

on the other charges and while on bail, he fled to Texas where he

lived for the next seventeen years under assumed identities.

After he was apprehended in Texas, he was returned to New

Hampshire for proceedings in state court on the outstanding

charges against him. On October 29, 2002, he was convicted

following a jury trial on one count of kidnaping and three counts

of aggravated felonious sexual assault based on the charges from

the 1984 incident. He was sentenced to twenty-six to fifty-two

years in prison. He did not file an appeal so that his

conviction became final in January of 2004. On December 19,

2002, he entered a guilty plea to one count of kidnaping and

three counts of aggravated felonious sexual assault based on the

1983 incident. His sentences on those convictions were to be

served concurrently with the sentences on the previous

convictions.

In August of 2004, Carr filed motions to vacate the New

Hampshire conviction on the 1984 charges and to withdraw his plea

and sentences on the 1983 charges. He claimed that his trial

counsel, Gregory Swope, was constitutionally ineffective, in

part, for failing to file an appeal from his conviction on the

1984 charges. The state court held a two-day hearing on Carr’s

motions and denied the motions in a written order. Carr filed an

appeal, which the New Hampshire Supreme Court declined to hear. 

Case 1:06-cv-00380-JD Document 10 Filed 04/03/07 Page 2 of 7
3

He filed his petition for habeas corpus relief in this court on

October 13, 2006.

Discussion

A one-year limitation period applies to petitions for habeas

relief from a state court conviction and sentence. § 2244(d)(1). 

Unless one of the statutory exceptions applies, the one-year

period begins on “the date on which the judgment became final by 

the conclusion of direct review or the expiration of the time for

seeking such review.” § 2244(d)(1)(A). Although the limitations

time is tolled while post-conviction proceedings or collateral

review is pending in state court, 2244(d)(2), once the limitation

period has expired, it cannot be revived by a newly filed request

for post-conviction relief. Trapp v. Spencer, ---F.3d ---, 2007

WL 613724, at *4 (1st Cir. Mar. 1, 2007).

The warden asserts that Carr’s petition is untimely because

the time expired in January of 2004 for Carr to appeal his

convictions and he did not file his petition for relief under §

2254 until October of 2006. Carr concedes that his petition was

filed after the limitations deadline. He asserts, however, that

equitable tolling should apply in his case because his counsel

failed to file an appeal while misleading Carr to believe an

appeal had been filed.

Case 1:06-cv-00380-JD Document 10 Filed 04/03/07 Page 3 of 7
4

Equitable tolling of the § 2244(d)(1) limitations period is

available “in rare and extraordinary cases.” Id. at *5. The

reason for late filing is an important consideration in

determining whether equitable tolling should apply, although

ordinary mistakes and negligence are not grounds for tolling. 

Id. at *5-*6. The relevant factors for a court to consider in

determining whether equitable tolling is appropriate include the

petitioner’s diligence in pursuing habeas or other postconviction relief, whether extraordinary circumstances interfered

in pursuing relief, whether the prosecution would be prejudiced,

the relative merit of the habeas petition, and whether a death

sentence is implicated in the case. Id. at *7.

Carr asserts that he is entitled to equitable tolling

because his counsel, Gregory Swope, failed to file an appeal from

his conviction on kidnaping and felonious sexual assault charges

following the jury’s guilty verdict. Carr argues that he asked

Swope to file an appeal and Swope agreed to do so. He further

asserts that he was deceived into believing that Swope had filed

an appeal and, therefore, did not realize no appeal had been

taken. Carr contends that Swope’s failure to file an appeal

under these circumstances are sufficient grounds to support

equitable tolling.

Case 1:06-cv-00380-JD Document 10 Filed 04/03/07 Page 4 of 7
5

Other courts have rejected the theory that ineffective

assistance of counsel in post-conviction proceedings and

specifically counsel’s failure to seek post-conviction review in

state court are grounds for equitable tolling absent

extraordinary circumstances such as misrepresentation. See

Marshall v. Golder, 166 Fed. Appx. 373, 374, 2006 WL 281094 (10th

Cir. Feb. 7, 2006); Schleuter v. Varner, 384 F.3d 69, 76 (3d Cir.

2004); Beery v. Ault, 312 F.3d 948 951-52 (8th Cir. 2002);

United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002);

Anderson v. Reynolds, 2007 WL 888261, at *4 (S.D. Ala. Mar. 21,

2007); Milligan v. Belleque, 2007 WL 869669, at *3 (D. Or. Mar.

19, 2007). In this case, Carr cannot show that Swope

misrepresented the circumstances of his direct appeal or that

Carr himself used due diligence in pursuing an appeal.

At the hearing on Carr’s motions, the state court heard

testimony from Carr and Swope on the appeal issue. The state

court found that Swope was forthright and credible as a witness

and that his testimony was consistent with documentation of the

events in question. In contrast, the court found that Carr was

not a credible witness. The court concluded that Swope advised

Carr of his right to appeal the conviction and sentence and of

the relative merit or lack of merit in pursuing an appeal. 

“Based on that advice, [Carr] knowingly, intelligently and

Case 1:06-cv-00380-JD Document 10 Filed 04/03/07 Page 5 of 7
6

voluntarily decided to forego an appeal.” State v. Carr, Nos.

01-S-329-336, at *6 (Belknap Superior Court Oct. 3, 2005). 

“In a proceeding instituted by an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of

a State court, a determination of a factual issue made by a State

court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). 

The presumption of correctness may be overcome only by clear and

convincing evidence. Id. To support his claim of ineffective

assistance of counsel, Carr merely cites to parts of the hearing

transcript, which is far from clear and convincing evidence to

contradict the state court’s findings. Based upon the state

court’s findings that Carr knowingly, intelligently, and

voluntarily decided not to pursue a direct appeal, his argument

in support of equitable tolling fails.

Even if that were not the case, however, Carr did not show

due diligence in pursuing a direct appeal or in pursuing federal

habeas relief. He does not show or even suggest that he inquired

about his appeal between the time of his conviction in 2002 and

August of 2004 when he filed motions in state court challenging

his convictions and sentence or that he sought federal habeas

relief until nearly four years after he was convicted. Equitable

tolling “is not available to rescue a litigant from his own lack

Case 1:06-cv-00380-JD Document 10 Filed 04/03/07 Page 6 of 7
7

of due diligence.” Neverson v. Farquharson, 366 F.3d 32, 42 (1st

Cir. 2004). 

Because the record establishes that the untimeliness of

Carr’s petition for federal habeas relief was not the result of

extraordinary circumstances, equitable tolling of the statute of

limitations is not available. The warden is entitled to summary

judgment on the ground that the petition is untimely.

Conclusion

For the foregoing reasons, the defendant’s motion for

summary judgment (document no. 6) is granted.

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

April 3, 2007

cc: Paul J. Haley, Esquire

NH Attorney General

NH Department of Corrections

Ann M. Rice, Esquire

Case 1:06-cv-00380-JD Document 10 Filed 04/03/07 Page 7 of 7