United States District Court, D. Connecticut
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
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