UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Richard A. Hilton, Sr.

v. Civil No. 09-cv-086-SM

Larry Blaisdell, Warden,

Northern New Hampshire

Correctional Facility

REPORT AND RECOMMENDATION

On March 11, 2009, Richard Hilton filed a pleading entitled

“Motion to Appeal” and “Motion this Honorable Court to Order the

New Hampshire Supreme Court to Mail a Copy of All the

Petitioner’s Pleadings and the Court’s Answers” (document no. 1). 

The pleading was, in fact, a petition for a writ of habeas

corpus, filed pursuant to the authority of 28 U.S.C. § 2254, as

it purported to be a challenge to the validity of Hilton’s

conviction and sentence.1 See 28 U.S.C. § 2254(a) (granting the

federal district courts authority to “entertain an application

for a writ of habeas corpus in behalf of a person in custody

pursuant to the judgment of a State court only on the ground that

1The pleading purports to bring this action pursuant to 28

U.S.C. § 2241, but is more appropriately construed under § 2254.

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he is in custody in violation of the Constitution or laws or

treaties of the United States”). The petition was referred to me

for preliminary review to determine whether it was facially valid

and could proceed. See Rule 4 of the Rules Governing Section

2254 cases in the United States District Courts (“§ 2254 Rules”)

(requiring court to conduct preliminary review of habeas petition

to determine facial validity before ordering respondent to

answer); United States District Court District of New Hampshire

Local Rule (“LR”) 4.3(d)(2) (authorizing Magistrate Judge to

conduct preliminary review of actions filed by individuals

proceeding pro se).

On April 10, 2009, before the preliminary review was

conducted, Hilton filed a motion seeking a stay of this matter,

indicating that he had an additional issue he wished to pursue

regarding his sentence, and that he intended to return to the

state courts to obtain the materials necessary to pursue that

claim (document no. 8). This Court granted the motion and

ordered Hilton to file periodic status reports to keep this Court

apprised of the status of his state court proceedings. Hilton

filed status reports as directed (document nos. 11 & 12).2

2On November 13, 2009, Hilton filed a pleading entitled

“Answer” (document no. 15) that purports to seek injunctive

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On November 20, 2009, this Court ordered Hilton to show

cause why the case should not be reviewed at this time, as it

appeared that Hilton was only seeking discovery in the state

courts, and had not yet taken action to substantively exhaust any

legal challenge to his conviction or sentence so that he might

present them to this Court for consideration (document no. 16). 

Hilton has not responded to the show cause order. Accordingly,

the Court will undertake preliminary review at this time. See §

2254 Rule 4; LR 4.3(d)(2).

Standard of Review

Under this Court’s local rules, when an incarcerated person

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

Judge conducts a preliminary review. LR 4.3(d)(2). In

conducting the preliminary review, the Court construes all of the

factual assertions in the pro se pleadings liberally, however

relief regarding the prison’s handling of outgoing legal mail. 

This pleading is most appropriately construed as a supplemental

status report rather than a motion for injunctive relief. If

Hilton seeks to complain in this Court about the conditions of

his confinement, he must do so by filing a separate civil rights

action pursuant to 42 U.S.C. § 1983, rather than attempting to

add those claims to his habeas petition. See White v. Gittens,

121 F.3d 803, 807 n.3 (1st Cir. 1997) (civil rights action is the

proper means to challenge the conditions of confinement); Heck v.

Humphrey, 512 U.S. 477, 481 (1994) (federal habeas petition is

the appropriate means to challenge the actual fact or duration of

confinement).

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inartfully pleaded. See Erickson v. Pardus, 551 U.S. 89, 94

(2007) (per curiam) (following Estelle v. Gamble, 429 U.S. 97,

106 (1976), 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.” Ahmed v. Rosenblatt,

118 F.3d 886, 890 (1st Cir. 1997); see also Castro v. United

States, 540 U.S. 375, 381 (2003) (courts may construe pro se

pleadings to avoid inappropriately stringent rules and

unnecessary dismissals). This review ensures that pro se

pleadings are given fair and meaningful consideration.

To determine if a pro se complaint states any claim upon

which relief could be granted, the Court must consider whether

the complaint, construed liberally, Erickson, 551 U.S. at 94,

“contain[s] sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” 

Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949

(2009) (citation omitted). “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for

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the misconduct alleged.” Id. Inferences reasonably drawn from

the plaintiff’s factual allegations must be accepted as true, but

the Court is not bound to credit legal conclusions, labels, or

naked assertions, “devoid of ‘further factual enhancement.’” Id.

(citation omitted). Determining if a complaint sufficiently

states such a claim for relief is a “context-specific task that

requires the reviewing court to draw on its judicial experience

and common sense.” Id. at 1950 (citation omitted).

Background

On December 6, 1996, Hilton was arrested and charged with

twenty-two counts of aggravated felonious sexual assault, crimes

he says he did not commit. On February 12, 1998, Hilton was

sentenced in the Superior Court, following his guilty plea. 

Hilton alleges that his attorney told him that if he pleaded

guilty, he would receive a sentence of 3 1⁄2 - 7 years, and that if

he was convicted after a trial, he faced 99 years of

incarceration. Hilton, despite his belief that he was innocent

of the charges, agreed to plead guilty in exchange for a

negotiated 3 1⁄2 - 7 year sentence.

In August 1998, Hilton asked his attorney for a copy of his

file as he claims he was “never settled in his mind about

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pleading guilty to something he never did.” When the files

arrived, other inmates stole them from Hilton and hung pages of

the file up on the wall, which informed the entire inmate

population that Hilton had been convicted of sexually assaulting

a child. As a result, Hilton was no longer safe in the New

Hampshire State Prison for Men in Concord and was transferred to

the Northern New Hampshire Correctional Facility (“NCF”). 

After he arrived at NCF, Hilton requested another copy of

his file from his attorney. When the second copy arrived Hilton

learned that he had received a 10-30 year sentence in addition to

the 3 1⁄2 - 7 year sentence. Hilton states he was not previously

aware that his sentence exceeded 3 1⁄2 - 7 years.3 Upon reviewing

the discovery, Hilton alleges that he learned for the first time

that the evidence against him contained “several false

statements.”

On July 2, 2008, Hilton filed a petition for a writ of

habeas corpus in the Coos County Superior Court. Hilton’s

3The petition does not state when Hilton received the second

copy of his file. I presume, however, that it was prior to

January 1, 2004, because according to the dates in the pleadings

filed by Hilton, he would have completely served seven years in

prison by, at the latest, January 1, 2004. When he was not

released by that date, he would then have known that his sentence

exceeded 3 1⁄2 - 7 years.

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petition here does not state what claims were raised in that

petition. On October 23, 2008, the Superior Court denied

Hilton’s habeas petition. On November 18, 2008, Hilton filed an

appeal in the New Hampshire Supreme Court (“NHSC”). Hilton’s

petition does not state what claims were raised in that appeal. 

The NHSC declined Hilton’s appeal on February 27, 2009. This

petition followed. 

While not explicitly stated in the petition, it appears that

Hilton intends, in his federal habeas action, to challenge his

guilty plea and negotiated sentence on the basis that he did not

enter into the plea agreement or the plea knowingly, voluntarily

and intelligently, and therefore his conviction and sentence

pursuant to that plea violate his Fourteenth Amendment due

process rights. 

Discussion

The Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2244, et seq., sets a one-year limitations

period for federal habeas petitions by state prisoners. See 28

U.S.C. § 2244(d)(1). AEDPA’s one-year limit runs from the time

that the state court judgment of conviction became final by the 

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conclusion of direct review or the expiration of the time for

seeking direct review. 28 U.S.C. § 2244(d)(1)(A). 

Hilton’s conviction became final on March 14, 1998, thirty

days after his February 12, 1998 conviction and sentence was

entered, as that was the date Hilton’s time to file a direct

appeal of his conviction expired. In the ordinary course of

events, therefore, Hilton’s statutory limitations period for

filing a timely habeas petition in this Court would have expired

on March 14, 1999.

Certain statutory exceptions to the statute of limitations

exist where the untimely filing was caused by state-impeded

relief, 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 Ci. 2003); 28 U.S.C. §

2244(d)(1)(B)-(D). AEDPA 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 during the pendency

of properly filed post-conviction state court litigation, it is

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not reset or restarted by post-conviction litigation initiated

after the AEDPA limitations period has expired. See Cordle v.

Guarino, 428 F.3d 46, 48 n.4 (1st Cir. 2005) (post-conviction

state court litigation filed after AEDPA’s limitations expire

does not stop or reset the clock). Based on the information

presently before the Court, it appears, therefore, that the

limitations period during which Hilton could have filed a timely

federal habeas petition expired on March 14, 1999. There is no

indication in the current record that Hilton raised any state

court challenge to his conviction and sentence until July 2,

2008, more than nine years after the expiration of the

limitations period. 

The instant petition was filed on March 11, 2009, just shy

of ten years after the limitations period expired. Hilton’s

post-conviction state court litigation, initiated in 2008, did

not reset or restart that previously expired period and does not,

therefore, render this action timely. Nothing in the record

suggests that Hilton filed other state court post-conviction

challenges to his conviction and sentence prior to July 2008.

Although equitable tolling of the AEDPA’s limitations period

might be available under certain circumstances, it “‘is the

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exception rather than the rule; resort to its prophylaxis is

deemed justified only in extraordinary circumstances.’” Trapp v.

Spencer, 479 F.3d 53, 59 (1st Cir. 2007) (internal citation

omitted); see Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)

(generally petitioner must establish that extraordinary

circumstances prevented timely filing to warrant equitable

tolling). Hilton’s petition includes neither any specific

argument supporting equitable tolling of this matter nor any

facts which allow me to infer that equitable tolling might be

appropriate in this case. 

Conclusion

For the foregoing reasons, I recommend that Hilton’s

petition be dismissed as untimely. Any objections to this report

and recommendation must be filed within fourteen (14) 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 Unauth. Practice of Law Comm. v. Gordon, 979 F.2d 11, 

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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: January 21, 2010 

cc: Richard A. Hilton, Sr., pro se

JM:jba

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