Towle v. NH State Prison, Warden

1
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Robert V. Towle
v.
NH State Prison, Warden
Case No. 15-cv-117-SM
O R D E R
After due consideration of the objection filed, I herewith
approve the Report and Recommendation of Magistrate Judge
Andrea K. Johnstone dated February 1, 2018, for the reasons set
forth therein.
Respondent’s objection misses the mark and employs terms in
ways that confuse rather than enlighten. 	A critical question
here is whether the new claims have been procedurally defaulted,
not whether they were “waived.” Presumably, by “waived”
Respondent means the claims would be held to have been waived by
state courts in the context of state proceedings under
applicable state law waiver doctrine – but it is not clear from
this record that the state courts would not reach the merits of
petitioner’s claims.
Some additional comment is appropriate. 	While the proposed
Case 1:15-cv-00117-SM-AJ Document 119 Filed 02/22/18 Page 1 of 3

2
amendments to the petition were allowed as a matter of
discretion by the Magistrate Judge, it may well turn out that at
least the newly asserted ineffective assistance of counsel
claims (Numbered 18, 19, 23, and 22) are untimely under AEDPA,
though not necessarily beyond timely consideration by the state
courts. 	See e.g., Pike v. Guarino, 492 F.3d 61, 73 (1 st Cir.
2007); N.H. Rev. Stat. Ann. Ch. 526:4 limits the time in which a
state motion for new trial may be filed to three years from the
date of sentencing (here, that period expired on or about March
11, 2016), but the state courts can and often do consider state
habeas petitions filed beyond that limitations period.
The “relation back” standard applied to federal habeas
petition amendments is of course not met merely by raising some
type of ineffective assistance claim in an original timely
petition “and then amending to assert another ineffective
assistance claim based upon an entirely distinct type of
attorney misfeasance” after the time for filing a petition has
run. United States v. Ciampi, 419 F.3d 20, 24 (1 st Cir. 2005).
So, while an amendment to assert those claims was allowed, they
might well be time barred under AEDPA. Similar issues may arise
with respect to the other new claims allowed, but the briefing
does not address the matter.
Case 1:15-cv-00117-SM-AJ Document 119 Filed 02/22/18 Page 2 of 3

3
The allowed new claims are not exhausted, and review in
this court is precluded until those federal claims have first
been fairly presented to the state courts for resolution. The
state courts may consider those claims on the merits or may not.
Respondent has not shown that it is clear that the state courts
would hold the new claims to be procedurally barred.
Respondent’s Motion for Summary Judgment (doc. no. 72),
Petitioner’s Motion for Evidentiary Hearing (doc. no. 78) and
Petitioner’s Motion to Vacate Deadline for Objection to [72]
Motion for Summary Judgment are denied, without prejudice, to
refiling or amending them after the stay in this case has
been lifted.
___________________________
Steven J. McAuliffe
United States District Judge
Date: February 22, 2018
Cc: 	Robert V. Towle, pro se
Elizabeth C. Woodcock, Esq.
Lynmarie C. Cusack, Esq.
Case 1:15-cv-00117-SM-AJ Document 119 Filed 02/22/18 Page 3 of 3