UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Jonathan Sokorelis

v. Civil No. 07-cv-335-SM

Bruce Cattell, Warden,

New Hampshire State Prison

O R D E R

Jonathan Sokorelis filed a petition for a writ of habeas

corpus, pursuant to 28 U.S.C. § 2254, challenging the

constitutionality of his state criminal conviction (document no.

1). The petition initially came before me for preliminary review

to determine whether it was facially valid and may proceed. 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). 

On February 1, 2008, I issued a Report and Recommendation

(“R&R”) recommending that the matter be dismissed as untimely

filed (document no. 2). Sokorelis filed an objection (document

no. 3), which has been docketed as a motion for reconsideration,

asserting that the Court should toll the statute of limitations

for federal habeas petitions in order to allow consideration of

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his petition. For the reasons raised in the motion to

reconsider, I will reconsider my previous recommendation of

dismissal of the petition and direct that this petition be

answered by the respondent.

Background

On November 17, 1994, Jonathan Sokorelis pleaded guilty to

two counts of attempted murder and one count of second degree

murder. He was sentenced to ten to twenty years in prison on

each of the attempted murder charges and forty years to life in

prison on the second degree murder charge. The sentencing court

directed that all of the sentences were to run consecutively to

one another. Sokorelis appealed his sentences to the sentence

review board, which increased each of the sentences for attempted

murder to fifteen to thirty years in prison, and left the second

degree murder sentence unchanged.

On July 30, 2004, Sokorelis filed a motion to withdraw his

guilty plea in the state Superior Court. The motion alleged that

his guilty plea was not knowingly entered because, at the time,

he was unaware of the direct consequences of his plea, and that

his conviction and sentence pursuant to his plea violated the

state and federal constitutions. His motion was denied on May

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24, 2005. Sokorelis appealed the denial to the New Hampshire

Supreme Court, again raising federal and state constitutional

arguments in support of his appeal. The New Hampshire Supreme

Court affirmed the denial on October 16, 2006. This petition

followed.

Discussion

I. Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2244, et seq., which became effective on

April 24, 1996, sets a one-year limitations period for federal

habeas petitions by state prisoners. See 28 U.S.C. § 2244(d)(1). 

The AEDPA’s 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 direct

review. See 28 U.S.C. § 2244(d)(1)(A). However, petitioners

like Sokorelis, convicted prior to the AEDPA’s effective date,

can file their petitions within one year of the AEDPA’s effective

date. David v. Hall, 318 F.3d 343, 344 (1st Cir. 2003) (citing

Gaskins v. Duval, 183 F.3d 8, 9 (1st Cir. 1999)). 

Statutory exceptions to the one-year limitations period

exist where an untimely filing was caused by the state, by new

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constitutional rights created by the Supreme Court, or newly

discovered facts underpinning the claim. See David, 318 F.3d at

344; 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). While the

limitations period is stopped from running during the pendency of

properly filed post-conviction state court litigation, it is 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)). 

In addition to the statutory exceptions, AEDPA’s limitations

period can be equitably tolled in exceptional circumstances. 

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

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

reserved for cases in which circumstances which were 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)). 

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Sokorelis alleges that at the time of his guilty plea he was

required to submit a waiver to the sentencing court stating that

he would not seek review of his sentence for a period of ten

years after his plea. Sokorelis states now that he believed that

this waiver applied to any attempt he might make to seek review

of his plea and sentence, including a habeas petition, during

that time. Accordingly, Sokorelis now argues that the statute of

limitations in this matter should be equitably tolled due to the

fact that he reasonably believed he was not eligible to file a

habeas petition until 2004. 

At this time, I make no finding as to whether or not this

matter should be equitably tolled. However, I find that

Sokorelis has provided enough information about the circumstances

of the delay in filing his petition that he should be allowed to

present his arguments in favor of tolling in response to any

challenge the respondent might make to the petition’s timeliness. 

I will therefore allow the matter to proceed without any finding

as to the timeliness of the petition.

II. Custody and Exhaustion

To be eligible for habeas relief, Sokorelis must show that

he is both in custody and has exhausted all of his state court

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remedies, or that he is excused from exhausting those remedies

because of an absence of available or effective state corrective

processes. See 28 U.S.C. § 2254(a) & (b); see also Adelson v.

DiPaola, 131 F.3d 259, 261 (1st Cir. 1997) (citing authority to

explain the exhaustion principle). Sokorelis is presently

incarcerated and thus satisfies the custody requirement of the

statute.

A petitioner’s remedies in New Hampshire are exhausted when

the state’s highest court has had an opportunity to rule on the

petitioner’s claims. See Lanigan v. Maloney, 853 F.2d 40, 42

(1st Cir. 1988) (“habeas corpus petitioner must have presented

the substance of his federal constitutional claim[s] to the state

appellate courts so that the state had the first chance to

correct the claimed constitutional error”); see also Picard v.

Connor, 404 U.S. 270, 275 (1971) (requiring petitioner to have

fairly presented the federal nature of his claims to the State

courts to give them the first opportunity to remedy the claimed

constitutional error). “In order to exhaust a claim, the

petitioner must ‘present the federal claim fairly and

recognizably’ to the state courts, meaning that he ‘must show

that he tendered his federal claim in such a way as to make it

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probable that a reasonable jurist would have been alerted to the

existence of the federal question.’” Clements v. Maloney, 485

F.3d 158, 162 (1st Cir. 2007) (quoting Casella v. Clemons, 207

F.3d 18, 20 (1st Cir. 2000) (internal citations omitted)). 

“[T]he exhaustion principle holds, in general, that a federal

court will not entertain an application for habeas relief unless

the petitioner first has fully exhausted his state remedies in

respect to each and every claim contained within the

application.” Adelson, 131 F.3d at 261 (emphasis added). 

In order to satisfy the requirement to “fairly present” his

federal claim to the state courts, a petitioner must have

presented the claim to the state courts “in such a way that ‘a

reasonable jurist’ would have recognized ‘the existence of the

federal question.’” Josselyn v. Dennehy, 475 F.3d 1, 3 (1st Cir.

2007) (quoting Casella, 207 F.3d at 20). A petitioner may fairly

present a claim by: (1) citing a provision of the federal

constitution, (2) presenting a federal constitutional claim in a

manner that fairly alerts the state court to the federal nature

of the claim, (3) citing federal constitutional precedents, (4)

claiming violation of a right specifically protected in the

federal constitution, or, in some circumstances, (5) citing to

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state court decisions that rely on federal law or articulation of

a state claim that is indistinguishable from one arising under

federal law. Clements, 485 F.3d at 162 (citing Gagne v. Fair,

835 F.2d 6, 7 (1st Cir. 1987) and Nadworny v. Fair, 872 F.2d

1093, 1099-1100 (1st Cir. 1989)); cf. Martens v. Shannon, 836

F.2d 715, 717 (1st Cir. 1988) (finding that simply reciting facts

underlying a state claim, where those facts might support either

a state or federal claim, without more, is clearly inadequate to

constitute fair presentation of a federal claim to state court).

Sokorelis’s petition indicates that he raised the claims

raised in his federal habeas petition, including the federal

nature of those claims, in the state Superior Court as well as

the New Hampshire Supreme Court. Accordingly, I find that

Sokorelis has sufficiently alleged exhaustion of his state

remedies to allow this petition to proceed. 

Conclusion

The petition shall be served upon the New Hampshire State

Prison, which shall file an answer or other pleading in response

to the allegations made therein. See § 2254 Rule 4 (requiring

reviewing judge to order a response to the petition). The

Clerk’s office is directed to serve the New Hampshire Office of

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the Attorney General, as provided in the Agreement on Acceptance

of Service copies of this Order, the original habeas petition

(document no. 1), the R&R (document no. 2), and the objection to

the R&R (document no. 3). The respondent is directed to answer

or otherwise plead within thirty (30) days of the date of this

Order. The answer shall comply with the requirements of § 2254

Rule 5 (setting forth contents of the answer). 

Upon receipt of the response, the Court will determine

whether a hearing is warranted. See § 2254 Rule 8 (providing

circumstances under which a hearing is appropriate). 

Petitioner is referred to Fed. R. Civ. P. 5, which requires

that every pleading, written motion, notice, and similar paper,

after the petition, shall be served on all parties. Such service

is to be made by mailing the material to the parties’

attorney(s). 

SO ORDERED. 

_______________________________

James R. Muirhead

United States Magistrate Judge

Date: July 23, 2008

cc: Jaye Rancourt, Esq.

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