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McCulloch v. Erfe

United States District Court, D. Connecticut

July 31, 2017

WARDEN ERFE, Defendant.



         Petitioner Martin McCulloch, an inmate confined at the Cheshire Correctional Institution in Cheshire, Connecticut, brings this action pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 21, 2016, I ordered the defendant, Warden Erfe (“the State”), to show cause why the petition should not be granted. On November 10, 2016, the State filed a motion to dismiss the petition on the ground it was not timely filed. On November 23, 2016, McCulloch responded to the motion to dismiss and included a statement in which he contends that the petition was timely. If the petition is untimely, McCulloch asks the court to excuse its untimeliness due to the fact that the delay was minimal and that he lacked adequate resources, including the rules and regulations of federal habeas law.

         I. Discussion

         Federal law imposes a one-year statute of limitations on federal petitions for a writ of habeas corpus challenging a judgment of conviction imposed by a state court. See 28 U.S.C. § 2244(d)(1). A state prisoner seeking federal habeas relief must file his petition within one year of the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1)(A)-(D). The limitations period may be tolled for the period during which a properly filed state habeas petition is pending. See 28 U.S.C. § 2244(d)(2). Furthermore, the limitations period may be equitably tolled in extraordinary circumstances. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

         A. Statute of Limitations

         For the purposes of this case, the one-year period of limitation began to run when McCulloch's conviction became final. 28 U.S.C. § 2244(d)(1)(A). McCulloch was found guilty by a jury and sentenced thereafter on May 12, 2006. McCulloch appealed his conviction and the Connecticut Appellate Court rendered its decision on June 16, 2009. See Mot. Dismiss, App'x A (doc. # 14-1). The Appellate Court decision affirmed McCulloch's conviction on three counts and reversed his conviction on one count. McCulloch petitioned the Connecticut Supreme Court to hear an appeal on the remaining counts of conviction and that petition for certification was denied on September 9, 2009. See id., App'x B (doc. # 14-2). McCulloch did not petition for certiorari in the United States Supreme Court. In most circumstances, the conviction would become final at the conclusion of the time for which to file a petition for certiorari. See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001) (holding that if petitioner had appealed to state's highest court, direct appeal also included filing petition for writ of certiorari in Supreme Court or the expiration of time within which to file petition).

         However, because the Appellate Court reversed one count of conviction, Kidnapping in the First Degree, and remanded for retrial, the conviction did not become final until the final disposition of that charge. On October 6, 2009, the State's Attorney informed the state court of its decision to enter into a nolle prosequi with respect to the kidnapping charge. Mot. Dismiss, App'x I (doc. # 14-9). Because no appeal was taken thereafter, the conviction became final on that date, and the limitations period began to run the following day, October 7, 2009.

         The one-year limitations period is tolled for the “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). That said, the filing of a state petition cannot revive a time period that has already expired, nor does it toll the limitations period if the petition is not actively pending. See Fernandez v. Artuz, 402 F.3d 111, 116 (2d Cir. 2005) (a state petition does not toll the one-year statute of limitations pursuant to 28 U.S.C. § 2244(d)(2), unless petition is “‘properly filed' and ‘pending' [in state court] during the tolling period”); Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam) (holding that the tolling provision “excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year statute of limitations begins to run”).

         Immediately upon having received notice that the State had entered a nolle prosequi with respect to his kidnapping charge, McCulloch filed a petition for sentence review. Thus, the one-year limitations period was tolled before it even began to run. It remained tolled during the pendency of McCulloch's pending sentencing review, from October 7, 2009, to June 1, 2010. On April 9, 2010, McCulloch also filed his first state habeas petition with respect to his remaining counts of conviction (two counts of Risk of Injury to a Minor and one count of Sexual Assault in the First ...

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