UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Emilio Encarnacion

v. Civil No. 07-cv-056-PB

State of New Hampshire

REPORT AND RECOMMENDATION

Before the Court is Emilio Encarnacion’s petition for a writ

of habeas corpus (document no. 1), filed pursuant to 28 U.S.C. §

2254. The petition is before me for preliminary review to

determine, among other things, whether it states a claim upon

which relief might be granted. See United States District Court

for the District of New Hampshire Local Rule (“LR”) 4.3(d)(2);

Rule 4 of the Rules Governing Section 2254 Cases in the United

States District Courts. For the reasons discussed herein, I

recommend that Encarnacion’s petition be dismissed. 

Standard of Review

Under this court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review and

to prepare a report and recommendation advising the district 

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judge whether the action, or any portion thereof, should be

dismissed because:

(i) the allegation of poverty is untrue, the 

action is frivolous, malicious, or fails to state

a claim upon which relief may be granted, or seeks 

monetary relief from a defendant who is immune 

from such relief under 28 U.S.C. § 1915A(b); or

(ii) it fails to establish subject matter 

jurisdiction under Fed. R. Civ. P. 12(b)(1).

LR 4.3(d)(2). In conducting a preliminary review, the Court

construes pro se pleadings liberally. See Ayala Serrano v.

Lebron Gonzales, 909 F.2d 8, 15 (1st Cir. 1990) (following

Estelle v. Gamble, 429 U.S. 97, 106 (1976) to construe pro se

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

behind affording pro se plaintiffs liberal interpretation is that

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), cert. denied,

Ahmed v. Greenwood, 522 U.S. 1148 (1998).

At this preliminary stage of review, all factual assertions

made by the petitioner and inferences reasonably drawn therefrom

must be accepted as true. See Aulson v. Blanchard, 83 F.3d 1, 3

(1st Cir. 1996) (stating the “failure to state a claim” standard

of review and explaining that all “well-pleaded factual

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1Encarnacion does not reveal his exact sentence. The

sentence could not have exceeded twelve months imprisonment and a

fine, however, as that is the maximum sentence a New Hampshire

District Court can impose for a misdemeanor offense. See N.H.

Rev. Stat. Ann. 651:2(II)(c) (setting one year maximum sentence

for misdemeanor offense).

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averments,” not bald assertions, must be accepted as true). This

review ensures that pro se pleadings are given fair and

meaningful consideration. See Eveland v. Dir. of C.I.A., 843

F.2d 46, 49 (1st Cir. 1988). Applying this standard, the facts

alleged by Encarnacion are as follows.

Background

On June 19, 1995, Encarnacion was arrested for criminal

threatening, a misdemeanor, after a domestic dispute with his

wife. He was held in custody for three weeks before seeing an

attorney or a judge. After three weeks, his arraignment was held

in the Manchester District Court (“MDC”) and cash bail was set. 

His attorney never sought a bail reduction and Encarnacion was

unable to post bail, so he remained in custody until November 3,

1995, when he was returned to the MDC to answer the charge

against him. At that time, Encarnacion’s attorney advised him to

plead nolo contendere to the charge. Encarnacion followed that

advice and was convicted upon his plea.1 

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2Encarnacion also claims that his counsel failed to advise

him of all of the trial-related rights he was giving up by

entering his nolo contendere plea and foregoing a trial,

including his right to have the prosecution prove each element of

the offense against him by competent evidence, and his right to

call witnesses in his defense.

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At the time that he received his attorney’s advice to plead

guilty, Encarnacion claims that he was aware that he was likely

to be charged with a federal offense in the future, as a result

of an ongoing federal investigation. Encarnacion asserts that

his State court counsel was also aware of the probability that

federal charges against Encarnacion would be forthcoming. 

Nonetheless, Encarnacion claims that his attorney failed to

advise him that his conviction on the criminal threatening charge

could cause any federal sentence Encarnacion received in the

future to be enhanced.2 Encarnaction was ultimately charged,

convicted, and sentenced on federal charges. Encarnacion alleges

that the 1995 misdemeanor conviction challenged here did, in

fact, enhance his sentence by up to three years. 

On May 15, 2001, Encarnacion filed a motion in the MDC

seeking to vacate his plea and reopen his case for a new trial,

alleging a number of constitutional infirmities with his

misdemeanor conviction. On March 15, 2002, the MDC denied the

motion on the grounds that it was untimely. See N.H. Rev. Stat.

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Ann. 526:4 (mandating the denial of a new trial request if it is

not filed within three years after conviction). Encarnacion

appealed the MDC’s decision to the New Hampshire Supreme Court,

which declined the appeal on August 23, 2002.

On May 23, 2006, Encarnacion filed another motion in the

MDC, entitled “Motion to Vacate Pursuant to Habeas Petition or

Writ of Coram Nobis.” The MDC interpreted the pleading as a

petition for a Writ of Coram Nobis, and on July 12, 2006, denied

Encarnacion relief, on the grounds that the MDC lacked

jurisdiction to entertain an extraordinary writ. Encarnacion

then refiled his motion in the State Superior Court. That motion

raised, again, a number of alleged constitutional infirmities in

Encarnacion’s 1995 misdemeanor conviction and urged the court to

issue a Writ of Error Coram Nobis, correcting what he claimed was

his erroneously obtained 1995 conviction by vacating the

conviction. The Superior Court denied relief. Encarnacion

appealed to the New Hampshire Supreme Court, which declined his

appeal on October 26, 2006.

Encarnacion now files a petition for a Writ of Habeas Corpus

in this Court. Encarnacion does not State what claims he intends

to raise here. Construing the petition liberally, as I must, I

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3These claims allege violations of Encarnacion’s federal

constitutional rights that accrued to him as a result of his

prosecution on the criminal threatening charge. Because I

recommend that the petition be dismissed on grounds not related

to the substance of the alleged constitutional violations, there

is no need to detail the claims here.

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will assume Encarnacion intends to raise all of the federal 

constitutional claims that he has raised, and exhausted, in the

State courts.3 

Discussion

1. “In Custody” Requirement

A. Section 2254

Section 2254 confers jurisdiction on this Court to issue

“writs of habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court . . . on the ground that he is

in custody in violation of the Constitution or laws or treaties

of the United States.” 28 U.S.C. § 2254(a). Accordingly, to

seek habeas relief under § 2254, Encarnacion must allege both

that his State conviction or sentence violates some right

accorded to him under federal law, and that he is in custody

pursuant to that State conviction or sentence. Encarnacion is

currently incarcerated pursuant to a federal conviction. 

Encarnacion was released from the sentence he received for his

State misdemeanor conviction more than ten years ago, and is

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therefore not in custody pursuant to a State court conviction. 

Accordingly, I recommend that Encarnacion’s § 2254 petition be

dismissed.

B. Section 2255

Although I have construed Encarnacion’s petition under §

2254, reading the petition generously, I find that Encarnacion

also attempts to argue that his federal sentence was

unconstitutionally enhanced by up to three years because the

federal sentencing court relied, for that enhancement, on an

unconstitutional State court conviction. Such a claim challenges

Encarnacion’s confinement pursuant to his federal conviction, and

is therefore not properly considered as a § 2254 challenge to his

confinement. Instead, that claim must be brought pursuant to 28

U.S.C. § 2255, which provides the means for a federal prisoner to

assert a claim that his federal sentence is unconstitutional. 

See Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002) (a

federal prisoner may ask the court to set aside or correct his

sentence on the grounds that the sentence was imposed in

violation of federal law under § 2255). Encarnacion has

previously filed several § 2255 petitions in this Court, all of

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4See Encarnacion v. United States, Civ. No. 99-cv-538-JD

(Motion to Vacate Under § 2255 filed Nov. 15, 1995 and denied

Jan. 25, 2000); Encarnacion v. United States, Civ. No. 02-cv-015-

JD (Petition for Writ of Error Coram Nobis filed Jan. 14, 2002

and denied Feb. 5, 2002); Encarnacion v. United States, Civ. No.

05-291-JD (Petition for Writ of Error Audita Querela filed Aug.

18, 2005 and dismissed with prejudice Jan. 6, 2006). In response

to Encarnacion’s 2005 challenge to his federal sentence, the

Court, in dismissing the action, advised Encarnacion that any

motion filed in the District Court that challenges the

constitutionality of his federal conviction or sentence must be

considered as a § 2255 motion, and further, that any § 2255

petition Encarnacion files in this Court would be dismissed as a

second or successive petition. Id. (citing Munoz v. United

States, 331 F.3d 151, 152-53 (1st Cir.), cert. denied, 540 U.S.

1025 (2003)). 

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which have been denied or dismissed with prejudice.4

Accordingly, if I were to construe the instant petition under §

2255, I would have to recommend that it be dismissed, as this

Court is prohibited from considering successive petitions filed

pursuant to § 2255. See Munoz v. United States, 313 F.3d 151,

152-153 (1st Cir.), cert. denied, 540 U.S. 1025 (2003) (finding

that 28 U.S.C. § 2244's prohibition against second or successive

habeas petitions includes a prohibition against successive § 2255

petitions). 

2. Timeliness of the Petition

Even if Encarnacion was “in custody” for purposes of

obtaining habeas relief in this case, however, I would recommend

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5This Court is permitted, but not obliged, to consider, sua

sponte, the timeliness of a § 2254 habeas petition. Day v.

McDonough, 126 S.Ct. 1675, 1684 (2006). Given the length of time

that has passed since the apparent expiration of the limitations

period in this case, it is in the interests of justice and

judicial economy to address the issue of the petition’s

timeliness at this time.

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that the petition be dismissed as untimely.5 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 filed pursuant to § 2254. 28 U.S.C. § 2244(d)(1). 

AEDPA’s one-year limit ordinarily 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). As previously

noted, Encarnacion’s conviction was entered, pursuant to his nolo

contendere plea in the MDC on November 3, 1995. Because

Encarnacion was convicted prior to the effective date of AEDPA,

April 24, 1996, he would have been able to file his petition

within one year of AEDPA’s effective date, or until April 24,

1997. David v. Hall, 318 F.3d 343, 344 (1st Cir.), cert. denied,

540 U.S. 815 (2003) (citing Gaskins v. Duval, 183 F.3d 8, 9 (1st

Cir. 1999)). Encarnacion commenced this action on March 2, 2007,

almost ten years later. 

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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. David, 318 F.3d at 344;

28 U.S.C. § 2244(d)(1)(B)-(D). Encarnacion has not alleged any

facts supporting any of these exceptions, however, and I find

they are not applicable in this case.

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 Cordle v. Guarino, 428 F.3d 46, 48 n.4 (1st Cir.

2005) (post-conviction State court litigation filed after AEDPA’s

limitations expire do not stop or reset the clock). Between the

time of his conviction and the filing of this action, Encarnacion

did seek some post-conviction relief in the State courts. 

However, Encarnacion’s petition indicates that he did not

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commence his post-conviction litigation until May of 2001, four

years after his limitations period expired. As noted above, 

post-conviction litigation commenced after the expiration date

cannot serve to restart or reset the limitations period. 

I find that this § 2254 petition is not timely filed. I

recommend that the petition be dismissed on that basis as well as

on the grounds that petitioner is not in custody pursuant to a

judgment of a State court.

Conclusion

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 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: April 9, 2007

cc: Emilio Encarnacion, pro se

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