UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Paul Berry

v. Civil No. 07-cv-178-PB

Larry Blaisdell, Warden, Northern

New Hampshire Correctional Facility

REPORT AND RECOMMENDATION

Paul Berry 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 (document no. 1). Berry has

also filed a motion to hold his habeas petition in abeyance while

he completes exhaustion of his claims (document no. 2). 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

two of Berry’s claims, alleging errors made by the trial judge,

be dismissed as untimely filed. In an Order issued

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simultaneously with this Report and Recommendation (hereinafter

the “Simultaneous Order”), I direct Berry to amend his petition

as to the two claims alleging ineffective assistance of counsel

to include facts to clarify whether or not those claims have been

timely filed.

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.

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

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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

On July 3, 2000, Paul Berry was convicted, after a jury

trial, of seventeen counts of aggravated felonious sexual assault

and four counts of misdemeanor sexual assault committed on his

adoptive daughter. Although he was not tried on the charges

until 2000, the assaults are all alleged to have occurred between

1983 and 1989. Berry was sentenced to 56-112 years in prison,

the sentence he is currently serving. Berry filed a timely

appeal to the New Hampshire Supreme Court (“NHSC”). The NHSC

affirmed his conviction on July 23, 2002 in a written opinion,

State v. Berry, 148 N.H. 88 (2002). Berry did not seek

certiorari in the United States Supreme Court.

In May of 2005, Berry filed a motion for a new trial in the

Superior Court raising three claims for relief. One of Berry’s

claims was denied in an order issued September 26, 2005, and the

remaining claims were denied on March 13, 2006, after an

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evidentiary hearing. The Superior Court denied Berry’s motion to

reconsider on April 19, 2006. Berry again filed a timely appeal

in the NHSC. The NHSC declined the appeal on July 15, 2006. 

Finally, Berry filed a petition for a writ of habeas corpus in

the state Superior Court on January 2, 2007, which is still

pending in that court. 

The Claims

Berry filed the instant petition on June 13, 2007, raising

four claims that he alleges entitle him to federal habeas relief. 

The claims all challenge decisions made at trial either by the

trial judge or by his attorney. Berry alleges that these

decisions deprived him of federal constitutional rights and

resulted in an unconstitutional criminal conviction and sentence. 

1. Claims #1 & #4: Errors by the Trial Court

Berry’s first claim alleges that the trial court denied him

his Sixth Amendment right to confront his accuser by unduly

restricting his cross-examination of the accuser regarding prior

allegations of sexual assault. Specifically, Berry sought to

impeach the complainant at trial with two separate claims of

having been “gang raped” by assailants other than the petitioner,

which were never established as true. The trial court ruled that

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Berry could impeach the complainant with these prior accusations

as they were inconsistent with statements she made to a medical

doctor that she had never been sexually assaulted by anyone other

than the petitioner. The trial court prohibited the jury,

however, from considering the prior accusations as evidence of

the complainant’s propensity to lie about sexual assault, and

prohibited Berry from introducing the prior accusations to prove

their falsity.

Berry’s fourth claim alleges that he was denied his

Fourteenth Amendment due process rights when the trial court

improperly admitted evidence at trial of several uncharged and

highly prejudicial prior bad acts of Berry’s. Specifically, the

trial court allowed evidence of Berry’s prior acts of physical

violence against the complainant. Initially the trial court

found that the acts were admissible to explain the complainant’s

delay in reporting the assaults, as they were evidence that the

complainant was afraid that she would suffer violence if she

reported the acts. At trial, however, the complainant did not

testify that the reason why she failed to report the abuse for

seven years was because she was afraid of Berry. Berry alleges

here that the trial court improperly permitted the evidence

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anyway, on the grounds that it was relevant to the jury’s

understanding of the relationship between Berry and the

complainant. 

Both of Berry’s claims allege that the trial judge made

errors in allowing or disallowing evidence, and that those errors

resulted in a denial of his constitutional rights. These issues

were litigated at trial, and again on direct appeal to the NHSC

or post-conviction. All of the facts relevant to these issues

were known by petitioner at the time of his trial, as they had

been openly litigated, presumably in the petitioner’s presence.

2. Claims #2 & #3 - Ineffective Assistance of Counsel

Berry’s second and third claims for relief both allege that

his trial counsel was ineffective. In the second claim, Berry

alleges that he was denied his Sixth Amendment right to the

effective assistance of counsel, because his trial attorney

failed to investigate exculpatory evidence of previous sexual

assault accusations the complainant made against him to the New

Hampshire Division of Children Youth and Families (“DCYF”) that

differed factually from the version of the same events to which

she ultimately testified at Berry’s trial. Specifically, the

complainant claimed that Berry sexually assaulted her between

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1983 and 1989. In 1990 and again in 1994, it appears that DCYF

received reports of these sexual assaults, involved the police,

and upon investigation of the allegations of assault, DCYF and

the law enforcement agencies involved deemed them to be

“unfounded,” and no prosecution ensued. 

Prior to trial, Berry’s attorney was provided with a summary

sheet of the 1994 DCYF investigation. Counsel, therefore, was

aware of the existence of the prior accusations and

investigations, and of the significant changes that were made in

the complainant’s account of what had occurred to her between the

1994 report and the version of events that the complainant

recounted at trial. Berry alleges that counsel failed to

properly investigate or obtain all of the information relevant to

the prior investigations, however, which, Berry claims, would

have been relevant for impeachment purposes, or might have

exonerated him altogether. At the time of his trial, Berry

states that he was not aware that he had previously been

investigated by DCYF in 1990 and 1994, and was not aware of the

existence of any reports, conclusions reached, action taken, or

other information generated as a result of those investigations.

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1Upon review of petitioner’s filings in this matter, it

appears that the diaries were kept sealed at the Superior Court,

and that counsel was permitted to review the diaries at the

court, but that counsel was not permitted to freely release the

contents of the diaries. The extent of the limitations on the

release of the information in the diaries, or whether Berry’s

counsel was permitted to share information from the diaries with

Berry, is not clear from the information presented in the

filings.

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Berry’s third claim alleges that prior to trial, Berry’s

attorney was given the right to review, in camera,

1 five diaries

kept by the complainant. One of the diaries, written in 1999,

contained a statement by the complainant, regarding a man named

Seth, that they “took each others [sic] condomless virginity.” 

Berry asserts that the complainant’s statement about losing her

virginity after she alleged that the petitioner had engaged in

sexual intercourse with her, would have exculpated him if

introduced at trial. Berry claims here that his attorney

deprived him of his Sixth Amendment right to the effective

assistance of counsel by failing to introduce this evidence at

his trial. Berry further claims that his attorney not only

failed to introduce the evidence at trial, but also failed to

tell him about the existence of the diary entry. Berry states

that he was unaware of the entry at the time of his trial.

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At some point after Berry’s criminal conviction, the

complainant sued him in a civil action. As part of the discovery

received in the civil case, Berry states that he received the

1994 DCYF summary information and the complainant’s diaries. 

Berry claims that this was the first he knew of either. Berry

then used that information in his efforts to obtain a new trial

and to petition for a writ of habeas corpus in the state Superior

Courts. 

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). In this case,

direct review concluded on July 23, 2002 with the NHSC decision. 

Petitioner had, at that point, an additional ninety days in which

he was entitled to seek a writ of certiorari in the United States

Supreme Court. As no such petition was filed, the one-year limit

set by AEDPA for filing this petition began to run ninety days

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after the NHSC decided his case, on October 21, 2002, and expired

one year later, on October 21, 2003. 

Statutory exceptions to the one-year limitations period

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

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 told 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

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2I make no finding at this stage of review as to whether the

actions of Berry’s trial attorney in this case were negligent or

erroneous in any way.

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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)). Ordinarily, an attorney’s excusable neglect

is not grounds for tolling the limitations period.2 See Trapp,

479 F.3d at 60; Cordle, 428 F.3d at 48-49. This is particularly

true where the attorney’s errors were not the cause of

petitioner’s failure to file his federal habeas action within the

one year limitations period. See id. at 48.

As previously noted, Berry’s first and fourth claims before

this Court arise out of alleged constitutional deficiencies in

his criminal trial occasioned by the trial judge’s decisions. 

Berry obtained all of the information needed to litigate these

claims at trial. These issues, therefore, became ripe for

federal habeas review upon the NHSC’s affirmation of his

conviction, and expired on October 21, 2003. Because no

petition, or other state-court action was filed during that time,

that limitations period was not tolled. Further, I find that

Berry has proffered no reason why this Court should find a

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3This 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). 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 resolve the issue of the

petition’s timeliness at preliminary review if possible.

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statutory exception to the limitations period or consider

equitable tolling as to these claims. I therefore recommend that

claims #1 and #4 be dismissed as untimely filed.3

Berry’s second and third claims, however, raise a plausible

basis for making an exception to the standard limitations period. 

In them, Berry alleges that while the deprivation of his right to

the effective assistance of counsel occurred at trial, he was

unaware of his counsel’s errors in investigating and presenting

his case until he received the DCYF report and diary entry in the

civil action commenced after his criminal conviction. Berry

claims that this constitutes newly discovered evidence, and that

some time after receiving that evidence, he fully litigated a

motion for a new trial, and is presently in the process of

litigating a habeas petition in the state courts. See 28 U.S.C.

§ 2244(d)(1)(D) (allowing AEDPA limitations period to run from

“the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

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diligence.”). Berry’s petition states that “[d]ue to the time

limitation of AEDPA, the Petitioner is filing this action to

comply with a one year period after the New Hampshire Supreme

Court’s declination of Petitioner’s [appeal of the denial of his

motion for a new trial].” If th3 1994 DCYF summary and the

diaries were, in fact, newly discovered evidence that, exercising

due diligence, Berry could not have discovered prior to the civil

action, Berry might be able to argue that the statute of

limitations should have begun to run from some date after October

21, 2002, and may not have yet expired at the time this federal

petition was filed. I am unable to make that determination,

however, based on the facts presented in Berry’s petition.

Accordingly, in my Order issued simultaneously herewith, I

will direct Berry to amend his petition to include the following

specific information:

a) The circumstances under which the 1994 DCYF summary and

diaries were provided to defense counsel;

b) An explanation of why petitioner was unable to review 

the DCYF summary and diaries at the time defense 

counsel obtained knowledge of them;

c) When, exactly, petitioner received the 1994 DCYF 

summary and diaries, and under what circumstances he 

received them;

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d) A complete description, accompanied by documentation, 

if any, of any and all requests made by petitioner to 

his trial attorney for the information in question, 

including general requests that he be provided with 

copies of all of the information in his criminal case;

e) A complete description, accompanied by documentation, 

if any, of any and all responses that Berry’s trial 

counsel made to him regarding the information in 

question.

Motion to Hold Petition in Abeyance (document no. 2)

It is not yet apparent that any claim in Berry’s petition is

timely filed. Accordingly, I will withhold ruling on the motion

to hold the petition in abeyance until such time as I determine

that any of the petition’s claims will survive preliminary

review.

Conclusion

 I recommend that claims #1 and #4 in Berry’s petition,

alleging constitutional deprivations by the trial court, be

dismissed as untimely. 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

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(1st Cir. 1992); United States v. Valencia-Copete, 792 F.2d 4, 6

(1st Cir. 1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: July 19, 2007

cc: Paul Berry, pro se

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