1As petitioner is in custody at the Lakes Region Facility, I

construe the sole respondent to be the warden of that facility. 

See Habeas Rule 2 (where petitioner is in custody pursuant to a

state judgment, the state officer having custody of the

petitioner shall be named as respondent).

1

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Thomas Doyle

v. Civil No. 08-cv-361-PB

State of New Hampshire1

REPORT AND RECOMMENDATION

Pro se petitioner Thomas Doyle has filed a petition for a

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

his New Hampshire state court sentence and the prosecution’s

breach of his plea agreement (document no. 1). The petition is

before me for preliminary review. See Rule 4 of the Rules

Governing § 2254 Proceedings (“Habeas 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). For the reasons

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2

stated below, I conclude that Doyle’s petition is time-barred and

therefore recommend that it be dismissed. 

Standard of Review

In conducting a preliminary review, the court liberally

construes pro se pleadings, 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). See also

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 unnecessary dismissals of

claims). “The policy behind affording pro se [petitioners]

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).

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

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3

of review and explaining that all “well-pleaded factual

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

review ensures that pro se pleadings are given fair and

meaningful consideration.

Background

Doyle is currently incarcerated at the Lakes Region Facility

in Laconia, New Hampshire. He alleges that on May 9, 2006, he

accepted a plea agreement in which the prosecution agreed to

recommend three one-year consecutive sentences to be served in

the county house of corrections. Within one hour of Doyle’s

acceptance of the plea, however, the prosecution allegedly

withdrew the plea agreement and never presented it to the trial

court judge. On the day the prosecution withdrew the plea offer,

Doyle claims that his attorney was laughing with the prosecutor

as they came into the courtroom. Doyle and his attorney then

engaged in a heated argument in the courtroom. Doyle then

attempted to fire his attorney in the courtroom, but was told

that he would have to proceed with that attorney or go forward

pro se. He apparently went forward with counsel who told him he

was pretty sure he could not beat the charges at trial, and that

he would not ask for a “lower number.” Doyle also claims that he

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2The New Hampshire Department of Corrections’ website

reveals that Doyle was convicted of theft-related offenses and

sentenced to 3-15 years in prison. It appears that his minimum

parole eligibility date is in May 2009, and his maximum release

date is in May 2021.

4

was under the influence of prescription drugs that impaired his

ability to comprehend the plea he was making, and that the false

information from his attorney ultimately caused him to agree to a

guilty plea that he did not have proper time to consider. 

Subsequently, Doyle was sentenced by the New Hampshire Superior

Court (Rockingham County) to a term of imprisonment. The

petition does not reveal the nature of his conviction, the

sentence(s) imposed, or whether he sought appellate review in the

New Hampshire state courts.2

On August 29, 2008, Doyle filed an appeal with the First

Circuit Court of Appeals in which he raised nine claims similar

to those raised in the instant federal petition, as discussed

below. The petition does not address the First Circuit’s

disposition of the appeal. 

Doyle now brings the instant petition, which I liberally

construe to allege the following grounds for federal habeas

corpus relief:

1. breach of a plea agreement arising from the

prosecution’s withdrawal of a negotiated plea

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3I construe this claim to raise a Fourteenth Amendment due

process claim arising from the prosecution’s withdrawal of a

negotiated plea agreement. See Santobello v. New York, 404 U.S.

257 (1971) (holding that “when a plea rests in any significant

degree on a promise or agreement of the prosecutor, so that it

can be said to be part of the inducement or consideration, such

promise must be fulfilled.”) 

5

agreement3;

2. denial of the Sixth Amendment right to effective

assistance of trial counsel arising from (a) 

counsel’s continued representation of Doyle

despite a conflict of interest (b) counsel’s

failure to effectively negotiate a plea agreement

in Doyle’s favor and (c) counsel’s advice that

Doyle accept a plea agreement while under duress;

3. conviction obtained by a guilty plea that was

unlawfully induced, and/or was not knowing,

intelligent and voluntary when Doyle (a) accepted

a guilty plea while under the influence of

prescription medications that impaired his ability

to understand the plea and (b) accepted a guilty

plea under duress and out of fear;

4. conviction obtained by a guilty plea that was not

knowing, intelligent and/or voluntary when Doyle

accepted a guilty plea in reliance upon his trial

counsel’s false statements that misrepresented the

terms of the plea; and 

5. conviction obtained by a guilty plea that was

unlawfully induced, and/or was not knowing,

intelligent and voluntary when Doyle accepted a

plea without sufficient time to consider the terms

of the agreement.

On November 5, 2008, Doyle was ordered to amend his federal

petition to demonstrate that it was timely filed. He was further

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ordered to demonstrate exhaustion of state remedies with regard

to each claim raised in his petition. To date, he has failed to

amend his petition.

Discussion

I. Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), enacted on April 24, 1996, requires that prisoners

file applications for writs of habeas corpus within one year from

the date on which the challenged judgment becomes final. 28

U.S.C. § 2244(d)(1)(A). This limitations period begins to accrue

from the date of the final disposition of any direct appeal to

the state court of last resort and the conclusion of certiorari

review by the United States Supreme Court, or the running of the

ninety-day period in which to seek such review. See id. See

also Donovan v. Maine, 276 F.3d 87, 91 (1st Cir. 2002).

“Statutory exceptions exist where the state impeded relief,

new constitutional rights were created by the Supreme Court, or

newly discovered facts underpin the claim.” David v. Hall, 318

F.3d 343 (1st Cir. 2003)(citing Section 2244(d)(1)(B)-(D)). The

limitations period may be tolled during the pendency of a

properly filed application for state post-conviction relief or

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other collateral review in state court, and may be equitably

tolled in appropriate circumstances. 28 U.S.C. § 2244(d)(2). 

See also Neverson v. Farquharson, 366 F.3d 32, 41 (1st Cir. 2004)

(holding “the one-year limitations period in § 2244(d)(1) is not

jurisdictional and, accordingly, can be subject to equitable

tolling in appropriate cases.”). The party seeking to invoke

equitable tolling bears the burden of establishing the basis of

it. See Lattimore v. Dubois, 311 F.3d 46, 55 (1st Cir. 2002). 

In the AEDPA context, equitable tolling is the exception rather

than the rule and is deemed justified only in extraordinary

circumstances. Id.

Here, Doyle appears to challenge a conviction that became

final in May 2006. Absent tolling, he had through August 2007 to

file a federal habeas corpus petition. He filed the instant

federal petition on September 4, 2008, more than one year after

the AEDPA grace period had expired. The petition, therefore, is

time-barred unless he can demonstrate that an application for

state post-conviction relief or other collateral review tolled

the limitations period, or that he falls within a statutory

exception to the one-year limitations period. 

There is no indication that Doyle filed any application for

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state post-conviction relief or other collateral review in the

state courts from May 2006 through September 2008. He has not

alleged any exception to the one-year limitations period. 

Furthermore, he has failed to file an amended petition to

demonstrate that his federal petition was timely filed. For the

foregoing reasons, I conclude that his federal petition is timebarred and therefore recommend that it be dismissed.

Conclusion

For the reasons stated above, I recommend that Doyle’s

petition be dismissed as time-barred. 

If this recommendation is approved, the claims as identified

in this report and recommendation, will be considered for all

purposes to be the claims raised in the petition. If the

petitioner disagrees with the identification of the claims

herein, he must do so by objection filed within ten (10) days of

receipt of this report and recommendation, or he must properly

move to amend the petition. 

Any further objection 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 28 U.S.C. § 636(b)(1);

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see also Unauthorized Practice of Law Committee 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 25, 2009

cc: Thomas Doyle, pro se

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