UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Paul Berry

v. Civil No. 07-cv-178-PB

Larry Blaisdell, Warden, Northern

New Hampshire Correctional Facility

REPORT AND RECOMMENDATION

Paul Berry’s petition for a writ of habeas corpus (document

no. 1) is before me for preliminary review. I previously

recommended that two of the four claims raised in Berry’s

petition be dismissed as untimely (document no. 5). That

recommendation was approved by the District Judge on August 11,

2007 (document no. 8). At the time I made my recommendation, I

also ordered Berry to amend his petition to provide additional

information about the two claims that I did not recommend be

dismissed (document no. 6), to provide the requisite information

to determine whether or not they were facially valid. See Rule 4

of the Rules Governing § 2254 Cases in the United States District

Courts (“§ 2254 Rules”) (requiring initial review to determine

whether the petition is facially valid); see also United States

District Court for the District of New Hampshire Local Rule

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(“LR”) 4.3(d)(2) (authorizing the Magistrate Judge to

preliminarily review pro se pleadings). Berry has now complied

with that Order. After reviewing Berry’s amended pleadings, for

the reasons fully explained herein, I recommend dismissal of one

of the claims, and direct that the final remaining claim be

answered by Respondent.

Also before the Court is Berry’s motion to hold his petition

in abeyance pending complete exhaustion of his claims (document

no. 2). I previously withheld ruling on that motion pending

receipt of Berry’s response to my order to amend. Berry has now

amended his petition and, in the interim, exhaustion of his

claims has been completed. Accordingly, I deny the motion to

hold the petition in abeyance as moot.

Standard of Review

In conducting the preliminary review, the Court construes

pro se pleadings liberally, however inartfully pleaded. See

Erickson v. Pardus, ___ U.S. ___, 127 S. Ct. 2197, 2200 (2007)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines

v. Kerner, 404 U.S. 519, 520-21 (1972) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

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if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” Ahmed

v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997); see Castro v.

United States, 540 U.S. 375, 381 (2003) (noting that courts may

construe pro se pleadings so as to avoid inappropriately

stringent rules and unnecessary dismissals of claims). All of

the factual assertions made by a pro se plaintiff and inferences

reasonably drawn therefrom must be accepted as true. See Ahmed,

118 F.3d at 890. This review ensures that pro se pleadings are

given fair and meaningful consideration.

Background

On July 3, 2000, Paul Berry was convicted, after a jury

trial, of seventeen counts of aggravated felonious sexual assault

and four counts of misdemeanor sexual assault committed on his

stepdaughter. Although he was not tried on the charges until

2000, the assaults were all alleged to have occurred between 1983

and 1989. Berry was sentenced to 56-112 years in prison, which

he is currently serving. Berry filed a timely appeal of his

conviction to the New Hampshire Supreme Court (“NHSC”). The NHSC

affirmed his conviction on July 23, 2002 in a written opinion, 

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State v. Berry, 148 N.H. 88 (2002). Berry did not seek

certiorari in the United States Supreme Court.

On May 25, 2005, Berry filed a motion for a new trial in the

Superior Court raising three claims for relief. One of Berry’s

claims was denied in an order issued September 26, 2005, and the

remaining claims were denied on March 13, 2006, after an

evidentiary hearing. The Superior Court denied Berry’s motion to

reconsider on April 19, 2006. Berry filed a timely appeal of his

new trial motion in the NHSC. The NHSC declined the appeal on

July 15, 2006. 

Next, Berry filed a petition for a writ of habeas corpus in

the state Superior Court on January 2, 2007. The Superior Court

denied relief on the state habeas petition on May 21, 2007 and

denied Berry’s motion to reconsider on August 6, 2007. Berry

filed a timely notice of appeal in the NHSC. That Court declined

the appeal on September 27, 2007. 

The Claims

In his petition, Berry raises two claims that are presently

before the Court for preliminary review, both alleging that his

trial counsel provided ineffective assistance of counsel: 

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 1. Failure to Investigate Prior DCYF Investigations

Berry alleges that his trial attorney failed to investigate

exculpatory evidence arising out of sexual assault accusations

the complainant made against him to the New Hampshire Division of

Children Youth and Families (“DCYF”) in 1990 and 1994. Berry

claims that the allegations contained in the 1999 accusations

that ultimately resulted in the criminal charges against him

differed significantly from the version of the same events

contained in the previous DCYF investigations. While Berry still

has not had access to the complete contents of the prior DCYF

investigations, Berry states, as an example of an inconsistency

in the complainant’s story that would have been exculpatory, that

in the previous investigations, the complainant alleged that her

brother had been substantially involved in the sexual assaults

against her, but the allegations at trial did not include

information about her brother. Berry asserts that his attorney’s

failure to investigate the prior allegations by the complainant

and the DCYF investigations denied him his Sixth Amendment right

to the effective assistance of counsel.

Prior to trial, Berry’s attorney was provided with a summary

sheet of the 1994 DCYF investigation. Counsel, therefore, was

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1The Court is aware that DCYF records of sexual assault

investigations are not, as a general rule, available to members

of the public on demand, but must ordinarily be obtained with a

court order.

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aware of the existence of the prior accusations and

investigations, and of the significant changes that were made in

the complainant’s account of what had occurred to her between the

1994 report and the version of events that the complainant

recounted at trial. Berry states that although his attorney had

the information at the time of trial, that he was not aware that

DCYF had investigated him in 1990 and 1994, and was not aware of

the existence of any reports, conclusions reached, action taken,

or other information generated as a result of those

investigations. Berry states that his attorney failed to provide

him with any information regarding the 1990 and 1994 allegations,

and when Berry repeatedly asked whether or not the attorney had

uncovered any useful information through discovery or independent

investigation, his attorney consistently stated that he had not.1

After his conviction was affirmed by the NHSC, Berry was

sued in a civil action by the complainant in his criminal case. 

As part of discovery in the civil action, Berry received a

summary report concerning the 1994 investigation, which also

referenced the 1990 investigation. Believing that this

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information had never been provided to his attorney at the time

of trial, Berry filed a motion seeking a new criminal trial,

claiming a Brady violation and alleging that the State failed to

provide him or his counsel with the exculpatory evidence

contained in the 1990 and 1994 investigations. A hearing was

held in the Superior Court on the motion for a new trial on

January 30, 2006. At that hearing, Berry’s defense counsel

testified that at the time of trial he was, in fact, aware of the

1990 and 1994 investigations and of the material differences

between the substance of the accusations made then and the

accusations upon which Berry was ultimately tried. Until that

testimony, Berry was unaware that his attorney had the

information.

This issue was raised in Berry’s January 2007 Superior Court

habeas petition, and was supported by both federal and state law

arguments. Berry presented both his federal and state claims to

the NHSC in his appeal of the denial of that habeas petition. 

 2. Failure to Introduce Diary Evidence at Trial

In the fall of 2003, when Berry received discovery in the

civil case, he received copies of diaries written by the

complainant in his criminal case. Berry alleges that certain

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entries in those diaries contained exculpatory information. In

particular, Berry points to an entry in which the complainant

described losing her “condomless virginity” which, Berry states,

contradicts her testimony that Berry had previously had sexual

intercourse with her. At the time of his criminal trial, the

diaries in question were sealed and kept in the possession of the

trial court. Berry’s attorney was permitted to review the

diaries prior to trial but he was prohibited from sharing the

contents of the diaries with Berry. When Berry asked about the

diaries, his attorney said only that they contained no

information which could be utilized at trial. 

Berry claims that his attorney deprived him of his Sixth

Amendment right to the effective assistance of counsel by failing

to introduce the exculpatory statements contained in the diaries

at his criminal trial. Berry claims that he became aware that

his attorney failed to introduce exculpatory evidence only after

receiving the diaries in civil discovery in the fall of 2003. It

does not appear, however, that Berry’s complaints regarding the

diary entry were litigated either in Berry’s May 2005 motion for

a new trial or his January 2007 state habeas petition.

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Discussion

The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2244, sets a one-year limitations period

for federal habeas petitions by state prisoners. See 28 U.S.C. §

2244(d)(1). AEDPA’s one-year limit runs from the time that the

state court judgment of conviction becomes final by the

conclusion of direct review or the expiration of the time for

seeking direct review. 28 U.S.C. § 2244(d)(1)(A). In this case,

direct review concluded on July 23, 2002 with the NHSC decision. 

Petitioner had, at that point, an additional ninety days in which

he was entitled to seek a writ of certiorari in the United States

Supreme Court. As no such petition was filed, the one-year limit

set by AEDPA for filing this petition began to run on October 21,

2002, ninety days after the NHSC decided his case, and expired

one year later, on October 21, 2003. While the limitations

period is stopped from running during the pendency of properly

filed post-conviction state court litigation, it is generally not

reset or restarted by post-conviction litigation initiated after

the AEDPA limitations period has expired. See Trapp v. Spencer, 

479 F.3d 53, 59 (1st Cir. 2007) (citing Cordle v. Guarino, 428

F.3d 46, 48 n.4 (1st Cir. 2005)). 

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First, the statute of limitations is not absolute. 

Statutory exceptions to the one-year limitations period exist

where an untimely filing was caused by the state, new

constitutional rights created by the Supreme Court, or newly

discovered facts underpinning the claim. See David v. Hall, 318

F.3d 343, 344 (1st Cir. 2003); 28 U.S.C. § 2244(d)(1)(B)-(D). 

The AEDPA further excludes from the one-year limitations period

“[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). 

Second, where the factual predicate of a claim is not

discovered until a later date, despite the exercise of due

diligence by the petitioner to obtain the information, the

limitations period is deemed equitably tolled and begins to run

from the date of discovery. See 28 U.S.C. § 2244(d)(1)(D). 

Lawrence v. Florida, ___ U.S. ___, 127 S.Ct. 1079, 1085 (2007)

(following Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) and

stating that equitable tolling may be available where

extraordinary circumstances and a prisoner’s diligence conflate);

Trapp, 479 F.3d at 59; Cordle, 428 F.3d at 48 (citing Delaney v.

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Matesanz, 264 F.3d 7, 14 (1st Cir. 2001)). Equitable tolling is

reserved for cases in which circumstances beyond the petitioner’s

control prevented prompt filing of the petition. Cordle, 428

F.3d at 48 (citing Lattimore v. Dubois, 311 F.3d 46, 55 (1st Cir.

2002)). With these standards in mind, I address Berry’s

remaining claims for habeas relief.

1. The Diary Claim

Even assuming that, through the exercise of due diligence,

he could not have known of the contents of the exculpatory diary

entries prior to receiving them in civil discovery, Berry

acknowledges that he had the complainant’s diaries in his

possession in September of 2003, and that he had seen them and

become aware of the exculpatory nature of certain entries therein

by early October of 2003. Since he in fact had the documents

providing the factual underpinnings for his current claim, Berry

could have filed a post-conviction motion for a new trial, or a

state habeas petition, prior to the October 21, 2003, expiration

of his AEDPA statute of limitations period. Such a filing would

have allowed Berry time to exhaust his state court remedies for

this claim and file a habeas petition within the statutory

limitations period. See 28 U.S.C. 2244(d)(1). Further, under §

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2244(d)(1)(D), even if the limitation period did not begin to run

until he discovered the information in October of 2003, the one

year time limit would have expired in October 2004, seven months

prior to his next state court post-conviction pleading was filed. 

Berry waited until the June 2007 filing of his federal habeas

petition to raise the claim. The claim, therefore, is untimely. 

Berry has provided no basis to justify equitable tolling of this

claim, to render it timely filed. Accordingly, I recommend that

this claim be dismissed.

2. The Ineffective Assistance of Counsel/DCYF Report Claim

Berry has alleged that despite his diligent efforts before,

during and after trial to determine what information his attorney

possessed, his trial counsel did not tell him about the 1990 and

1994 DCYF investigations or the reports generated as a result of

those investigations. Berry claims that he received these

reports in 2003, and believed that they constituted exculpatory

evidence that the state withheld from him prior to and during his

trial, because his attorney never mentioned them. On January 30,

2006, however, Berry learned, for the first time, that his trial

counsel in fact had the information before his criminal trial and 

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2I note that the Superior Court found that Berry “would have

been aware that such investigative reports existed and that they

did not result in charges being brought against him.” Berry

denies this, claiming that he was entirely unaware of the

investigation or reports generated therefrom until October of

2003. This factual discrepancy does not affect my analysis,

however, because at the preliminary review stage I am required to

credit Berry’s assertions as true.

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yet failed to use it either to investigate the allegations or to

impeach the complainant at trial. 

At this stage of the litigation, it would be inappropriate

for me to make a definitive finding regarding whether or not

Berry exercised sufficient diligence, or had any access to the

information regarding his counsel’s failure to utilize it, prior

to January 30, 2006.2 Berry has sufficiently asserted facts

supporting his diligent pursuit of information regarding what his

attorney knew or had access to at the time of trial. I find that

Berry has clearly alleged that, despite his efforts to ascertain

this information, he was unable to obtain the information until

January 30, 2006, during the pendency of his new trial motion. 

Ordinarily, an attorney’s excusable neglect is not grounds for

tolling the limitations period. See Trapp, 479 F.3d at 60;

Cordle, 428 F.3d at 48-49. Here, however, Berry has alleged that

his attorney lied to him on several occasions and withheld

information from him that was impossible for him to discover in

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3At the time of the January 30, 2006 hearing, a state court

new trial motion was pending. That motion was denied on March

13, 2006. Berry filed a timely appeal regarding the motion to

reconsider, which was denied by the NHSC on July 5, 2006. One

hundred and eighty-seven days later, on January 8, 2007, Berry

filed his state habeas petition, raising the ineffective

assistance of counsel claim. The appeal of the denial of that

habeas petition was declined by the NHSC on September 25, 2007,

at which point Berry’s federal habeas petition had already been

filed in this Court. Accordingly, I find that if the start of

the one year limitations period was equitably tolled until

January 30, 2006, that Berry let pass only 187 days of the

available 365 days prior to filing this habeas petition.

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any other way. Accordingly, I find that Berry has alleged more

than simple excusable neglect by his attorney.

Berry may well be entitled to equitable tolling of the

commencement of the limitations period for his claim that his

attorney was ineffective for failing to investigate the 1990 and

1994 DCYF investigation or to introduce exculpatory evidence at

trial regarding those investigations. If the date the

limitations period began to run is tolled until Berry could have

discovered the information, January 30, 2006, and the period of

time after that during which Berry was litigating properly filed

post-conviction claims in the state courts is excluded from the

limitations period,3 I find, for purposes of preliminary review,

that this claim has been timely filed to allow it to proceed. 

See 28 U.S.C. § 2244(d)(1)(D) (allowing AEDPA limitations period

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to run from “the date on which the factual predicate of the claim

or claims presented could have been discovered through the

exercise of due diligence”). I further find that this claim has

been fully exhausted by Berry’s state court habeas petition and

appeal of the denial of that petition. Accordingly, I will

direct, in an Order issued simultaneously with this Report and

Recommendation, that this claim be answered by Respondent.

Conclusion

For the reasons stated herein, I recommend that the diary

claim be dismissed as untimely. In my Order issued

simultaneously with this Report and Recommendation, I direct that

the ineffective assistance of counsel claim alleging the failure

to utilize the prior DCYF investigation to investigate or impeach

the accusations against Berry be answered by the Respondent. Any

objections to this report and recommendation must be filed within

ten (10) days of receipt of this notice. Failure to file

objections within the specified time waives the right to appeal

the district court’s order. See Unauthorized Practice of Law

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Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: November 29, 2007

cc: Paul Berry, pro se

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