UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Christopher Cremeans

v. Civil No. 08-cv-003-JL

William Wrenn, Commissioner,

New Hampshire Department of

Corrections

REPORT AND RECOMMENDATION

Christopher Cremeans has filed a petition for a writ of

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

constitutionality of his state criminal conviction and sentence

(document no. 1). The petition is before me for preliminary

review. 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 (“LR”) 4.3(d)(2) (authorizing the magistrate

judge to preliminarily review pro se pleadings). As discussed

herein, I recommend that the petition be dismissed as untimely

filed. 

Standard of Review

Under this Court’s local rules, when an incarcerated

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

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magistrate judge is directed to conduct a preliminary review.

LR 4.3(d)(2). 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

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” 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 an unnecessary dismissals of

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

All of the factual assertions made by a pro se plaintiff and

inferences reasonably drawn therefrom must be accepted as true. 

See id. This review ensures that pro se pleadings are given fair

and meaningful consideration.

Background

Christopher Cremeans pleaded guilty to two counts of pattern

aggravated sexual assault and two counts of endangering the

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welfare of a child, and was sentenced to 17 1⁄2 - 35 years in

prison on November 9, 2005. On November 16, 2006, Cremeans filed

a motion in the state trial court to withdraw his plea and

proceed to trial. The motion was denied on December 20, 2006. A

motion to reconsider was denied on January 10, 2007. Additional

post-conviction motions were denied on January 26, 2007. 

Cremeans appealed the denials collectively to the New Hampshire

Supreme Court (“NHSC”). On September 17,2007, the NHSC declined

to accept the appeal. This petition followed, raising a number

of claims challenging the constitutionality of Cremeans’

conviction and sentence.

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. 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). 

 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 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). 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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In this case, Cremeans’ conviction became final on December

9, 2005, which was the date that the period during which Cremeans

could have pursued a direct appeal of his conviction expired. As

no direct appeal was filed, the one-year limit set by AEDPA for

filing this petition therefore began to run on December 9, 2005,

and would have expired one year later, on December 9, 2006, if no

further action had been taken by Cremeans. Cremeans, however,

filed a motion to withdraw his plea on November 16, 2006, twentythree days before the expiration of the limitations period. It

appears that Cremeans was engaged in state court post-conviction

litigation from November 16, 2006 until September 17, 2007, when

his appeal of his post-conviction motions was denied by the New

Hampshire Supreme Court, concluding Cremeans’ post-conviction

litigation. 

At that point, had this petition been filed within 23 days

of September 17, 2007, or by October 10, 2007, the petition would

have been timely filed. This petition, however, was not filed

until January 2, 2008, almost three months after the expiration

of the limitations period in this case. Further, there are no

facts alleged in the petition that raise any other possible

exclusions from or exceptions to the limitations period that

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1This Court is permitted, but not obliged, to consider, sua

sponte, the timeliness of a state prisoner’s habeas petition. 

Day v. McDonough, 126 S.Ct. 1675, 1684 (2006). 

6

would apply in this matter. Accordingly, I recommend that

Cremeans’ petition for a writ of habeas corpus be denied as

untimely filed.1

Conclusion

 I recommend that Cremeans’ petition for a writ of habeas

corpus (document no. 1), be dismissed. 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: February 12, 2008

cc: Christopher Cremeans, pro se

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