Nguyen v. Liberty

          ORDER AFFIRMING RECOMMENDED DECISION

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         Huy Van Nguyen objects to the recommended decision of the Magistrate Judge on his petition for relief under 28 U.S.C. § 2254. After performing a de novo review, the Court affirms the Magistrate Judge's recommended decision, overrules Mr. Nguyen's objection, and dismisses his petition for a writ of habeas corpus because Mr. Nguyen filed the petition beyond the one-year statute of limitations. The Court reviewed and considered the Magistrate Judge's Recommended Decision, together with the entire record; the Court has made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision; and the Court concurs with the recommendations of the United States Magistrate Judge for the reasons set forth in his Recommended Decision and for the reasons further set forth herein, and determines that no further proceeding is necessary.

         I. BACKGROUND

         Following a February 2006 indictment in state court, in June 2007, a jury found Huy Van Nguyen guilty of intentional and knowing murder, a violation of 17- A M.R.S. § 201(1)(A).^[1] Mr. Nguyen moved for a new trial and in January 2008, the trial court denied the motion. In April 2008, the state court sentenced Mr. Nguyen to forty-five years in prison. In July 2008, the Sentence Review Panel denied Mr. Nguyen's application for leave to appeal from the sentence. Mr. Nguyen appealed his conviction to the Maine Supreme Judicial Court and on March 2, 2010, the Maine Supreme Judicial Court affirmed the conviction. State v. Nguyen, 2010 ME 14, 989 A.2d 712 (2010). Mr. Nguyen did not file a petition for writ of certiorari with the United States Supreme Court.

         On December 20, 2011, Mr. Nguyen filed a state court petition for post-conviction review. See Nguyen v. State, No. ALFSC-CR-2011-02726 (Me. Super. Ct. York Cnty.). The Maine Superior Court denied the petition on February 18, 2016 and the Maine Supreme Judicial Court denied discretionary review on June 22, 2016. Mr. Nguyen filed another state court petition for post-conviction review in December 2016 and the Superior Court summarily dismissed the petition in February 2017.

         Mr. Nguyen filed his petition for writ of habeas corpus with this Court on June 22, 2017. Pet. under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 1). On February 2, 2018, the Warden moved to dismiss the petition on the ground that it was untimely. Resp't's Mot. to Dismiss Pet. for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 20). On March 14, 2018, this Court referred the motion to dismiss to the Magistrate Judge for a recommended decision. On April 19, 2018, the Magistrate Judge issued a recommended decision and recommended that the Court dismiss the petition as untimely. Recommended Decision on 28 U.S.C. § 2254 Pet. (ECF No. 23) (Recommended Decision). Mr. Nguyen objected to the recommended decision on April 30, 2018. Pet. Mot., Obj. for State Resp.'s Mot. to Dismiss (ECF No. 25).

         II. THE MAGISTRATE JUDGE'S RECOMMENDED DECISION

         On April 19, 2018, the Magistrate Judge issued a recommended decision in which he recommended that the Court grant the state of Maine's motion to dismiss the petition. Recommended Decision at 1. The Magistrate Judge noted that Congress has imposed a strict one-year time limit within with a petitioner may bring a § 2254 petition. Id. at 3 (quoting 28 U.S.C. § 2244(d)). The Magistrate Judge concluded that the limitation period, namely the period within which Mr. Nguyen could bring a petition, lapsed on May 31, 2011. Id. at 4. The period during which Mr. Nguyen was seeking post-conviction review in the state court would not toll the one-year period because he initiated his state petition on December 20, 2011 and the federal statute of limitations had already run. Id. In the words of the Magistrate Judge, “§ 2242(d)(1)(A) cannot toll a limitation period that has already expired.” Id. at 5. The Magistrate Judge therefore recommended that Mr. Nguyen's § 2254 petition be dismissed. Id. at 5.

         III. HUY VAN NGUYEN'S OBJECTION

         In his objection, Mr. Nguyen recites the chronology of his charge, trial, and this petition. Pet'r's Mot., Obj. for State Respondent's Mot. to Dismiss (ECF No. 25). However, Mr. Nguyen's description of the sequencing of the state and federal cases does not address why his federal petition is not beyond the statute of limitations. Id. at 1-2.

         On May 9, 2018, Mr. Nguyen supplemented his objection by filing a copy of a motion for reconsideration that he originally filed with the Maine Superior Court on March 6, 2012. Pet'r's Mot. for Recons. (ECF No. 27). In that motion, Mr. Nguyen explained that he has lacked the assistance of counsel and has found it difficult to understand “the language, let alone the laws and statutes of the States.” Id. at 1. Mr. Nguyen asks the Court to contact a Maine State Superior Court Justice to confirm that Mr. Nguyen wrote to him in December 2010 to request his assistance in obtaining his trial material, so that he could file a post-conviction petition. Id. He says that “no one advised me of any deadlines or that what I was attempting to file was a post conviction and not an appeal.” Id. at 2. He acknowledges that “at some point in time prior to my time to file a post conviction petition”, the Superior Court appointed counsel to represent Mr. Nguyen. Id. He claims that the appointment of counsel by the state court “shows that I should not be held to a statutory time limit.” Id. He maintains that “I should have that time stopped when I wrote to the court asking for assistance in filing the post conviction.” Id.

         IV. DISCUSSION

         In his objection, Mr. Nguyen does not challenge the Magistrate Judge's determination that his federal petition was untimely. Instead, the Court interprets his refiled 2012 motion for reconsideration as urging the Court to excuse the late habeas petition because he was not represented by counsel, because his prior attorneys failed to advise him about the time limits for a federal habeas proceeding, and because he had difficulty understanding the complexities of the state and federal court systems, a difficulty compounded by problems with translation.

         Although Mr. Nguyen does not directly refer to it, equitable tolling can be available to a litigant who has made a late filing under § 2244(d)(2).^[2]Holland v. Florida, 560 U.S. 631, 649 (2010). However, equitable tolling would be available to Mr. Nguyen “only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in ...