United States District Court, D. Connecticut
MEMORANDUM OF DECISION
Vanessa L. Bryant United States District Judge
In a 28
U.S.C. § 2254 petition, Alvin Wilson attacks his 2013
conviction for violating a protective order; third-degree
assault; and assault of public safety, emergency medical, or
public transit personnel. Respondent moves to dismiss,
arguing that the Section 2254 petition was filed beyond the
one-year deadline. While the Court expresses minor
disagreements with Respondent’s calculation of the
limitations period, the Court agrees that the petition is
time-barred and dismisses on that basis.
and Procedural Background
6, 2013, Wilson entered nolo contendere pleas to violating a
protective order in violation of Connecticut General Statutes
§ 53a-223a; third-degree assault in violation of
Connecticut General Statutes § 53a-61; and assault of
public safety, emergency medical, or public transit personnel
in violation of Connecticut General Statutes § 53a-167c.
ECF No. 21-2. No appeal was filed. In a motion dated January
16, 2014, Wilson moved to correct an illegal sentence
pursuant to Connecticut Practice Book § 43-22. ECF No.
21-4. The Court denied the motion on March 14, 2014.
Id. at 2. No appeal was filed. In a state-court
habeas petition dated June 3, 2014, Wilson attempted to
attack his underlying conviction. ECF No. 21-5. The petition
was denied on January 13, 2015. ECF No. 21-9. Wilson did not
Section 2254 petition dated August 3, 2015, Wilson raises the
following eight claims. ECF No. 1. First, police arrested him
without probable cause, resulting in an illegal search and
unlawful seizure of evidence. Id. at 9. Second, his
conviction was obtained in violation of the privilege of
self-incrimination. Id. Third, the prosecution
failed to disclose evidence favorable to him. Id.
Fourth, his conviction violated double jeopardy. Id.
Fifth, the sentencing court failed to advise him of his right
to appeal. Id. at 9, 15. Sixth, the denial of his
habeas petition was conducted without due process.
Id. at 11. Seventh, the prosecution breached the
terms of the plea agreement by recommending a sentence
different from the one contained therein. Id. at 13.
Eighth, he is actually innocent of the charges. Id.
at 15. In support of the Section 2254 petition, Wilson moves
for “summary judgment, ” attaching documents from
his underlying criminal proceedings and from his state
post-conviction attacks. ECF No. 18.
moves to dismiss, arguing, in relevant part, that the
petition was filed beyond the one-year deadline. ECF No.
21-1. Despite receiving notice of the consequences for
failing to object, ECF No. 22, Wilson has not filed a
cognizable objection, see ECF No. 25 (Mem.).
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) sets a one-year limitations period for
filing Section 2254 petitions. 28 U.S.C. § 2244(d)(1).
The one-year limitations period begins to run on the latest
of one of four possible dates: the date on which (A) the
petitioner’s criminal conviction became
“final”; (B) the State’s unconstitutional
action preventing the petitioner from filing his petition was
removed; (C) the constitutional right asserted was initially
recognized by the Supreme Court; or (D) the petitioner could
have discovered the factual predicate for his claim through
the exercise of due diligence. Id. With three
possible exceptions, all claims implicate Section
2244(d)(1)(A) because Wilson does not allege that the State
prevented him from filing his petition, does not raise any
claims pertaining to a new rule of constitutional law, and
does not allege that he could not have discovered the factual
predicate for any of his claims before his conviction became
as here, a petitioner fails to file a direct appeal, his
conviction becomes final when the time to appeal expires.
See Gonzalez v. Thaler, 132 S.Ct. 641, 653 (2012)
(holding that the time to file a motion under § 2254
begins to run after the time to file direct appeal has
expired if the petitioner has not filed a direct appeal).
Wilson was sentenced on May 6, 2013. His time to appeal
expired twenty days later. See Conn. Practice Book
§ 63-1(a)-(b) (providing that criminal defendant has
twenty days from the date of his oral sentence to appeal).
Wilson’s conviction thus became final on Monday, May
27, 2013. The instant petition was not filed until August 3,
2015-that is, 798 days thereafter.
2244(d)(2) nonetheless provides that “[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 shall not be counted toward any
period of limitation under this section.” In other
words, the days during which any post-conviction proceedings
are pending must be subtracted from the calculation of the
365-day limitations period. Wilson initiated two
post-conviction proceedings. The first proceeding was filed
on January 16, 2014 and dismissed on March 14,
2014. The second proceeding was filed on June 3,
2014 and dismissed on January 13, 2015. The tolling period
also includes the time for seeking appellate
review. Cf. Bennett v. Artuz, 199 F.3d
116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4
(2000) (“We therefore hold that a state-court petition
is ‘pending’ from the time it is first filed
until finally disposed of and further appellate review is
unavailable under the particular state’s
procedures.”). In Connecticut, a litigant has 20 days
to appeal the denial of a motion to correct an illegal
sentence, see Conn. Practice Book § 63-1(a)
(providing 20 days to appeal unless another deadline imposed
by statute), and 10 days to seek permission to appeal the
denial a habeas corpus petition, see Conn. Gen.Stat.
§ 52-470(g). The Court thus excludes the period from
January 16, 2014 until April 3, 2014 (77 days) and the period
from June 3, 2014 and January 23, 2015 (234 days) from the
limitations period. Excluding these two periods totaling 311
days from the 798 days since his conviction became final, the
Court finds that a total of 487 days count towards the
limitations period-that is, 122 days beyond the 365-day
Section 2254 petition is untimely unless saved by equitable
tolling. Equitable tolling requires a petitioner to show
“(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way
and prevented timely filing.” See Holland v.
Florida, 560 U.S. 631, 649 (2010) (internal quotation
marks omitted). Wilson, who bears the burden of proof,
asserts no basis for doing so. The Court therefore agrees
with Respondent that the petition is untimely and grants the
motion to dismiss.
Court dismisses the Section 2254 petition with prejudice.
See Murray v. Greiner, 394 F.3d 78, 80-81 (2d Cir.
2005) (dismissal “as tardy under the controlling
statute of limitations . . . constitutes an adjudication on
the merits and subjects future challenges . . . to the
gatekeeping requirements of § 2244(b)(3)). The Court
declines to issue a certificate of appealability because
jurists of reason would not find this procedural ruling
debatable. See Slack v. McDaniel, 529 U.S. 473
(2000). The Court certifies under 28 U.S.C. § 1915(a)(3)
that any appeal would not be taken in good faith.
foregoing reasons, the Court denies the motion for summary
judgment as procedurally improper, grants the motion to
dismiss the petition as time-barred, dismisses the petition,
declines to issue a certificate of appealability, and revokes
in forma pauperis status for purpose of appeal. The
Clerk of Court is directed to enter a separate judgment in