United States District Court, D. Connecticut
RULING ON PETITION FOR WRIT OF HABEAS CORPUS
R. UNDERHILL UNITED STATES DISTRICT JUDGE.
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.
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
(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).
Statute of Limitations
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).
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.
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”).
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 ...