UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

John Barton,

Petitioner

v. Case No. 09-cv-79-SM

Opinion No. 2009 DNH 111

United States of America,

Respondent

O R D E R

Petitioner pled guilty to three counts of distribution of

cocaine base in violation of 21 U.S.C. § 841(a)(1). Because

petitioner’s criminal history included sufficient predicate

convictions, he qualified as a career offender under the

sentencing guidelines. His total offense level under the

guidelines was determined to be 29 and his criminal history

category was VI, which combined to counsel a guideline sentence

of imprisonment between 151 and 188 months. The court sentenced

petitioner to 120 months in prison, after departing downward four

levels based upon the government’s motion under section 5K1.1 of

the Guidelines. Sentence was imposed on January 31, 2006, and an

amended judgment entered on February 6, 2006. The time in which

a notice of appeal could be filed expired on February 21, 2006,

at which point the judgment became final, no appeal having been

taken.

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Petitioner did not file this motion for sentence relief

under the provisions of 28 U.S.C. § 2255 until March 2, 2009 (the

date he signed it and presumably delivered it to prison

authorities for mailing). That is, the motion was filed more

than three years after judgment became final. Obviously, then,

the petition is facially untimely under the one-year limitations

period established by the Anti-terrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2255(f)(1).

Petitioner’s underlying claim on the merits is based upon

alleged ineffective assistance of counsel. Petitioner says that

he specifically directed his defense counsel to appeal his

sentence on grounds that the career offender adjustments were

erroneous, yet counsel failed to do so. (He also says that he

objected to the career offender adjustment at sentencing, but the

transcript of his sentencing hearing does not support that claim

— no objections to the presentence investigation report’s

calculations were interposed by counsel, and petitioner did not

challenge the calculation during his allocution.) Accordingly,

he seeks relief in the nature of restoration of his opportunity

to file an appeal challenging his sentence.

Recognizing the untimeliness of his petition, petitioner

argues that equitable tolling should apply to extend the one-year

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period. He seems to argue that he thought defense counsel would

file an appeal on time, as he claims to have directed him to do

(apparently notwithstanding the plea agreement’s waiver of his

right to appeal), and that he reasonably relied on that mistaken

belief. But for three years?

“Equitable tolling” is the exception rather than the rule;

resort to its prophylaxis is deemed justified only in

extraordinary circumstances.” Donovan v. Maine, 276 F.3d 87, 93

(1st Cir. 2002). Here, many factors militate against applying

equitable tolling principles.

First, petitioner was not diligent in pursuing the habeas

relief he now seeks. At some point, reasonably after the appeal

period expired, petitioner should have known that no appeal had

been filed, or at least should have made an effort to determine

whether one had in fact been filed. And, in any event, it cannot

seriously be argued that he could not have learned through the

exercise of reasonable diligence, that no appeal had been filed

at some point within the next year, that is, by February 21,

2007, or certainly by the year after that, by February 21, 2009. 

Yet, he did not file his petition within a year of either of

those dates. Second, nothing in the petition suggests any

extraordinary circumstance that prevented petitioner from making

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a timely filing (or even one preventing him from filing his

petition before three full years had passed). Finally,

petitioner’s claims are of dubious merit — the career offender

determination was fully supported, and petitioner waived both his

right to appeal and his right to collaterally attack his

sentence, knowingly and voluntarily, and any appeal would not

likely result in any relief. See generally, Trapp v. Spencer,

479 F.3d 53 (1st Cir. 2007); 28 U.S.C. § 2255(f)(4).

Conclusion

Equitable tolling of the limitations period is inappropriate

under these circumstances. The petition is late by over two

years. Accordingly, the petition (document no. 1) is dismissed

as time-barred. The motion for reconsideration or modification

of sentence (document no. 2), which essentially reiterates the

claims for relief in the motion under § 2255, is denied as well.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

July 24, 2009

cc: Helen W. Fitzgibbon, Esq.

Bjorn R. Lange, Esq.

Aixa Maldonado-Quinones, AUSA

U.S. Probation

U.S. Marshal

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