Mitchell v. Commissioner of Correction

          RULING ON MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AND MOTION FOR APPOINTMENT OF COUNSEL

          MICHAEL P. SHEA UNITED STATES DISTRICT JUDGE.

         The petitioner, Michael A. Mitchell, currently resides in Westport, Connecticut. He initiated this action by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2014 Connecticut convictions for evading responsibility, operating a motor vehicle while under the influence, and operating a motor vehicle with a suspended registration or license. See Pet. Writ Habeas Corpus, ECF No. 1. On December 5, 2017, the petitioner filed an amended petition for writ of habeas corpus and on December 21, 2017, the petitioner filed a second amended petition for writ of habeas corpus. See Am. Pet. Writ Habeas Corpus, ECF No. 10; Second Am. Pet. Writ Habeas Corpus, ECF No. 12. Pending before the court is the respondent's motion to dismiss the second amended complaint and the petitioner's motion for the appointment of counsel. For the reasons that follow, the motion for appointment of counsel will be denied and the motion to dismiss will be granted.

         I. Motion for Appointment of Counsel [ECF No. 23]

         A petitioner does not have a constitutional right to counsel in a collateral challenge to a conviction or sentence. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, . . . and we decline to so hold today.”). A district judge, however, has discretion to appoint counsel for a financially eligible section 2254 petitioner “whenever . . . the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). Furthermore, if a district judge determines that a hearing is necessary, and justice requires it, he or she must appoint counsel to represent the petitioner. See Rule 8(c) of the Rules Governing Section 2254 Cases in the United States District Courts.

         As indicated above, the respondent has moved to dismiss the second amended petition. In view of the grounds raised by the respondent in support of the motion to dismiss, the court concludes that justice does not require the appointment of counsel because the appointment of even experienced, competent counsel would not make timely the petitioner's untimely petition. Nor is a hearing necessary. Accordingly, the motion for appointment of counsel is denied.

         II. Motion to Dismiss [ECF No. 19]

         The respondent moves to dismiss the second amended petition on the ground that it is untimely. In the alternative, the respondent argues that the second amended petition is subject to dismissal because it includes unexhausted and procedurally defaulted grounds. Because I agree that the petition is untimely, I dismiss it on that ground and do not reach the other grounds for dismissal asserted by respondent.

         A. Procedural Background

         On December 24, 2010, a Westport police officer arrested the petitioner on charges of evading responsibility, operating a motor vehicle while under the influence of an intoxicating liquor or a drug, and operating a motor vehicle with a suspended registration or license. See State v. Mitchell, S20N-MV10-0458107-S (Original Arrest Date - Dec. 24, 2010).^[1] On January 16, 2014, after a trial in the Connecticut Superior Court for the Judicial District of Stamford/Norwalk, a jury convicted the petitioner of one count of evading responsibility in violation of Connecticut General Statutes § 14-224(b), one count of illegally operating a motor vehicle while under the influence of an intoxicating liquor or a drug in violation of Connecticut General Statutes § 14-227a(a)(1), and one count of illegally operating a motor vehicle with a suspended registration or license in violation of Connecticut General Statutes § 14-215(c)(3). See Id. (Verdict Finding and Date - Jan. 16, 2014). On March 18, 2014, a judge sentenced the petitioner to eight months of imprisonment on the count of evading responsibility, three years of imprisonment on the count of operating a motor vehicle while under the influence, and three years of imprisonment, execution suspended after one year of imprisonment, and followed by three years of probation on the count of operating a motor vehicle with a suspended registration or license. See Id. (Description of Sentences). The petitioner's total effective sentence was four years and eight months, followed by three years of probation.

         The petitioner states that he filed an appeal of his convictions in the Connecticut Appellate Court. See Second Am. Pet. Writ Habeas Corpus at 3-4. He sought to raise the following four grounds in support of the appeal: (1) the trial judge deprived him of his right to a speedy trial; (2) the prosecution and the trial judge withheld evidence from him in violation of Brady v. Maryland, 373 U.S. 83 (1963); (3) his criminal attorney rendered ineffective assistance prior to and during trial; and (4) the State of Connecticut suborned perjury. See Id. Counsel assigned to represent the petitioner on direct appeal determined that there was only one meritorious claim to be raised. See Id. at 4; Mem. Supp. Mot. Dismiss, ECF No. 20-4, App. D. The nature of the claim that counsel thought was meritorious is not clear from the second amended petition filed in this action or the respondent's memorandum in support of the motion to dismiss or the appendices filed in support of the memorandum. In any event, because the petitioner disagreed with counsel's advice with regard to asserting only one claim on appeal and sought to have counsel assert all of the claims that he believed were meritorious, in early March 2015, the petitioner moved to have counsel withdraw. See Mem. Supp. Mot. Dismiss, ECF Nos. 20-3, 20-4, Apps. C, D. The petitioner did not request that a new attorney be appointed to represent him on appeal. See Id. App. C.

         On March 16, 2015, an Assistant Clerk of the Appellate Court informed the petitioner and appellate counsel that the trial court had granted the petitioner's motion to have appellate counsel withdraw as his attorney. See id., ECF No. 20-9, App. I at 23. The Clerk stated that she would send the petitioner an appearance form and inform him that his appellate brief was due on or before June 12, 2015. See Id. On July 28, 2015, the Connecticut Appellate Court extended the time for the petitioner to file his appellate brief until September 15, 2015. See State v. Mitchell, AC 36802 (Dkt. Entry July 28, 2015)^[2]; Mem. Supp. Mot. Dismiss, ECF No. 20-9; App. I at 22-23. On October 21, 2015, after a hearing, the Appellate Court permitted the petitioner one final extension of time until November 20, 2015 to file his appellate brief in handwritten form. See Id. (Dkt. Entry Oct. 21, 2015); Mem. Supp. Mot. Dismiss, App. I at 21. On December 7, 2015, the Connecticut Appellate Court dismissed the petitioner's appeal because he had not filed a brief within the time specified in the October 21, 2015 order. See Id. (Dkt. Entry Dec. 7, 2015) App. I at 18. The petitioner did not file a petition for certification with the Connecticut Supreme Court to challenge the Connecticut Appellate Court's dismissal of his appeal.

         On August 25, 2016, the petitioner filed a petition for writ of habeas corpus in this court challenging his 2014 convictions for evading responsibility, operating a motor vehicle while under the influence, and operating a motor vehicle with a suspended registration or license. See Mitchell v. Comm'r of Correction, Case No. 3:16cv1452(MPS) (Pet. Writ Habeas Corpus, ECF No. 1). He raised five grounds in the petition: (1) the trial judge refused to set a reasonable bond amount for his release in an effort to deny him effective assistance of counsel; (2) his appointed attorneys rendered ineffective assistance before and during trial; (3) the State of Connecticut and/or the police withheld exculpatory evidence; (4) the trial judge denied or refused to consider his motion for a speedy trial; and (5) the State of Connecticut suborned perjury. See Id. at 22. On November 15, 2016, the court determined that the ground asserting an ineffective assistance of trial counsel claim had not been raised in a state habeas petition and that the other four grounds had not been raised on direct appeal because the Connecticut Appellate Court had dismissed the appeal for the petitioner's failure to file a brief and the petitioner had not filed a petition for certification to appeal the dismissal to the Connecticut Supreme Court. See Id. (Ruling on Pet. Writ Habeas Corpus, ECF No. 8, at 4-6). As such, no ground had been fully exhausted. See Id. The court concluded that it was not appropriate to deem any ground as having been exhausted because the petitioner was not procedurally barred from seeking review of each claim in state court.^[3] See Id. at 7-8. Accordingly, the court dismissed the petition without prejudice for the petitioner's failure to exhaust his state court remedies as to any of the grounds asserted in the petition. See Id. at 8.

         The petitioner did not file a motion to vacate the dismissal of his direct appeal by the Connecticut Appellate Court until March 2, 2017. See State v. Mitchell, AC 36802 (Dkt. Entry Mar. 2, 2017) (Mot. Vacate/Reopen Dismissal of Appeal); Mem. Supp. Mot. Dismiss, ECF No. 20-5; App. E. The court accepted his type-written motion to vacate for filing. See Id. On March 20, 2017, the Appellate Court denied the motion to vacate. See Id. (Dkt. Entry Mar. 20, 2017) (Order Denying March 2, 2017 Mot. Vacate/Reopen Dismissal of Appeal); Mem. Supp. Mot. Dismiss, ECF No. 20-9, App. I at 9. On March 31, 2017, the petitioner filed a petition for certification to appeal the decision of the Connecticut Appellate Court. See Mem. Supp. Mot. Dismiss, ECF No. 20-8, App. H (Petition for Certification filed in State v. Mitchell, SC 160395). The State of Connecticut filed opposition to the petition for certification. See Id. Mem. Supp. Mot. Dismiss, ECF No. 20-9, App. I at 2-8 (Opposition to Petition for Certification filed in State v. Mitchell, SC 160395). On April 26, 2017, the Connecticut Supreme Court denied the petition for certification. See State v. Mitchell, 325 Conn. 922, 163 A.3d 620 (2017).

         On May 9, 2017, the petitioner initiated this action seeking habeas relief with regard to his 2014 convictions for evading responsibility, operating a motor vehicle while under the influence, and operating a motor vehicle with a suspended registration or license. See Pet. Writ Habeas Corpus at 1. 1. The second amended petition, filed on December 21, 2017, includes three grounds: (1) the trial judge denied the petitioner's right to a speedy trial, (2) the prosecution and the trial judge withheld evidence from him in violation ...