UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Kenneth Violette

v. Civil No. 07-cv-47-PB

Opinion No. 2007 DNH 129

Warden, New Hampshire State Prison

MEMORANDUM AND ORDER

Kenneth Violette pled guilty to four counts of aggravated

felonious sexual assault and one count of attempted aggravated

felonious sexual assault in Hillsborough County Superior Court on

July 1, 1998. He was sentenced to three concurrent seven-andone-half to twenty-year sentences imposed consecutively on two

concurrent seven-and-one-half to twenty-year sentences. Violette

is currently incarcerated in the New Hampshire State Prison.

In February 2007, Violette filed a petition for writ of

habeas corpus in this court, arguing that imposition of

consecutive sentences under New Hampshire law violated his

federal Fourteenth Amendment right to due process for two

reasons. First, Violette argues that New Hampshire law does not 

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provide fair notice regarding the risk of consecutive sentences. 

Second, Violette argues that the New Hampshire Supreme Court

incorrectly construed ambiguities in State law against him, in

violation of the rule of lenity. Because Violette’s petition is

not timely under the Antiterrorism and Effective Death Penalty

Act (“AEDPA”), I do not reach the merits of his petition.

I. STANDARD OF REVIEW

AEDPA provides that a one-year period of limitation shall

apply to a petition for writ of habeas corpus brought by a person

in custody pursuant to the judgment of a state court. 28 U.S.C.

§ 2244(d)(1). This limitation period runs from the date on which

the judgment became final, either by the conclusion of direct

review or by the expiration of the time for seeking direct

review. 28 U.S.C. § 2244(d)(1)(A). There are some exceptions to

this rule. For example, the limitation period would be

calculated differently if the State created an impediment that

prevented the applicant from filing his petition, if the petition

asserted a constitutional right that was newly recognized and

made retroactively applicable by the United States Supreme Court, 

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or if the factual predicate for the claim could not have been

discovered within the one-year period. See 28 U.S.C. §

2244(d)(1)(B)-(D). Further, the time during which a properly

filed application for post-conviction relief or collateral review

is pending in state court does not count toward the period of

limitation. 28 U.S.C. § 2244(d)(2).

II. PROCEDURAL BACKGROUND

Violette’s conviction became final on July 1, 1998, the date

Violette pled guilty and was sentenced. See Burton v. Stewart,

127 S. Ct. 793, 799-800 (2007) (quoting Berman v. United States,

302 U.S. 211, 212 (1937)). Under New Hampshire Supreme Court

Rule 7, Violette had 30 days to file an appeal for direct review. 

N.H. Sup. Ct. R. 7. Violette never filed an appeal and the 30-

day time period for seeking direct review expired on July 31,

1998. 

Violette did file a collateral attack challenging his

sentence in the form of a Petition to Correct Illegal Sentence or

for Habeas Relief in Hillsborough Superior Court on March 30,

2006. Violette asserted in his petition that the imposition of 

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consecutive sentences in New Hampshire violated the state and

federal constitutions because it violated separation of powers

and the due process requirement of fair notice. The superior

court denied Violette’s petition on April 19, 2006. 

Violette appealed the trial court’s denial of his petition,

and the New Hampshire Supreme Court deferred screening of

Violette’s appeal pending its decision in Duquette v. Warden, New

Hampshire State Prison. In Duquette, the New Hampshire Supreme

Court addressed the fact that New Hampshire law is silent on the

issue of whether consecutive sentences may be imposed. Duquette

v. Warden, N.H. State Prison, 919 A.2d 767, 771 (N.H. 2007). The

court concluded that, despite the lack of explicit statutory

authority for imposition of consecutive sentences, the judiciary

retains common law authority to impose consecutive sentences. 

Id. at 772. The court also addressed the “fair notice”

constitutional argument, holding: “We conclude that a person of

ordinary intelligence would understand that a person guilty of

multiple counts of aggravated felonious sexual assault could be

subject to separate sentences for each count.” Id. at 773. 

Finally, the court addressed the separation of powers argument, 

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holding that the judiciary does not usurp legislative power by

imposing consecutive sentences. Id. at 775. 

On April 13, 2007, the New Hampshire Supreme Court declined

Violette’s notice of appeal, in light of its decision in

Duquette.

III. ANALYSIS

Violette argues that the AEDPA limitation period did not

begin to run until the New Hampshire Supreme Court declined to

review his appeal from the Superior Court’s denial of his habeas

corpus petition. Violette’s habeas corpus petition, however, was

a collateral attack on his sentence, not a direct appeal. AEDPA

provides that the statutory limitation period begins to run at

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

for seeking direct review, unless one of the special

circumstances in 28 U.S.C. § 2244(d)(1)(B)-(D) applies. 28

U.S.C. § 2244(d)(1)(A). 

The AEDPA limitation period is tolled while a petition for

collateral review is pending in state court, but the filing of a

petition for collateral review after the period has expired does 

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not “reset the clock” or revive an expired time period. See 28

U.S.C. § 2244(d)(2); Trapp v. Spencer, 479 F.3d 53, 58-59 (1st

Cir. 2007). For Violette, the time period for seeking direct

review expired on July 31, 1998. See N.H. Sup. Ct. R. 7. 

Accordingly, pursuant to AEDPA, the time period for applying for

a writ of habeas corpus expired for Violette one year later on

July 31, 1999. See 28 U.S.C. § 2244(d)(1)(A). Violette’s

collateral attack on his sentence is irrelevant to the

calculation of the AEDPA statutory limitation period because it

was filed on March 30, 2006, long after the expiration of the

one-year period. Because Violette filed his federal habeas

corpus petition more than a year after his state court conviction

became final, his petition is barred by AEDPA’s statute of

limitation.

IV. CONCLUSION

Violette has presented no facts or authority to demonstrate

why his petition for writ of habeas corpus is not barred by

AEDPA’s statute of limitation. For the reasons stated above,

Respondent’s Motion for Summary Judgment (Doc. No. 9) is granted, 

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and Petitioner’s Motion for Injunction (Doc. No. 11) and Motion

for Summary Judgment (Doc. No. 10) are denied.

SO ORDERED.

/s/Paul Barbadoro 

Paul Barbadoro

United States District Judge

October 15, 2007

cc: Kenneth Violette, pro se

 Susan P. McGinnis, Esq.

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