Bewry v. Commissioner of Corrections
PRISCS-RULING granting 11 Motion to Dismiss. Signed by Judge Janet Bond Arterton on 4/4/2012. (Payton, R.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
COMMISSIONER OF CORRECTION
Case No. 3:11cv727(JBA)
RULING ON RESPONDENT’S MOTION TO DISMISS [Doc. #11]
Petitioner, Bernard Bewry (“Bewry”), currently confined at
the Cheshire Correctional Institution in Cheshire, Connecticut,
commenced this action for writ of habeas corpus pro se pursuant
to 28 U.S.C. § 2254.
He challenges his Connecticut convictions
for attempt to commit murder, first degree manslaughter, second
degree assault and carrying a pistol without a permit.
respondent has filed a motion to dismiss the petition as untimely
For the reasons that follow, the respondent’s motion to
dismiss will be granted.
Bewry was charged in two cases regarding incidents that
occurred on April 11, 1988, in the area of Charlotte Street in
In Case No. 54830, Bewry was charged with
attempt to commit murder, first degree robbery, second degree
assault and carrying a pistol without a permit.
54831, Bewry was charged with murder.
In Case No.
The cases were joined for
On September 22, 1989, the jury found Bewry guilty of
attempt to commit murder, second degree assault and carrying a
pistol without a permit in the first case, and not guilty of
murder, but guilty of the lesser included offense of first degree
manslaughter in the second.
The court sentenced Bewry to a total
effective sentence of forty years for the two cases.
v. Warden, No. CV931665, 2001 WL 1249844, at *2 (Conn. Super. Ct.
Oct. 2, 2001), appeal dismissed sub nom. Bewry v. Commissioner of
Correction, 73 Conn. App. 547, 808 A.2d 746 (2002), cert. denied,
266 Conn. 918, 837 A.2d 801 (2003).
affirmed on direct appeal.
Bewry’s convictions were
See State v. Bewry, 26 Conn. App.
242, 243, 600 A.2d 787, 788 (1991), cert. denied, 221 Conn. 911,
602 A.2d 11 (1992).
On April 13, 1993, Bewry filed a state habeas corpus action
alleging that he was afforded ineffective assistance of counsel
in cases 54830, 54831 and 54832.
The third case was unrelated to
the first two, arising from an incident occurring in September
On October 2, 2001, the court denied all of Bewry’s
The denial was affirmed on appeal.
See Bewry v. Warden,
No. CV931665, 2001 WL 1249844 (Conn. Super. Ct. Oct. 2, 2001),
appeal dismissed sub nom. Bewry v. Commissioner of Correction, 73
Conn. App. 547, 808 A.2d 746 (2002), cert. denied, 266 Conn. 918,
837 A.2d 801 (2003).
On May 9, 2001, Bewry filed a second state habeas action
asserting a claim of ineffective assistance of appellate counsel
in case 54832.
See Bewry v. Warden, No. CV010807849, 2008 WL
808920 (Conn. Super. Ct. Mar. 12, 2008), appeal dismissed sub
nom. Bewry v. Commissioner of Correction, 121 Conn. App. 259, 994
A.2d 697, cert. denied, 297 Conn. 918, 996 A.2d 277 (2010).
Bewry commenced this action by petition filed on May 3, 2011.
In 1996, the federal habeas corpus statutes were amended to
impose a one-year statute of limitations on federal petitions for
writ of habeas corpus challenging a judgment of conviction
imposed by a state court.
See 28 U.S.C. § 2244(d)(1) (2000).
The limitations period begins on the completion of the direct
appeal or the conclusion of the time within which an appeal could
have been filed and may be tolled for the period during which a
properly filed state habeas petition is pending.
See 28 U.S.C. §
2244; Williams v. Artuz, 237 F.3d 147, 151 (2d Cir.), cert.
denied, 534 U.S. 924 (2001).
Where, as here, a petitioner’s
conviction became final before the enactment of the limitations
period, the petitioner is afforded one year from the enactment
date to file his federal petition.
See Ross v. Artuz, 150 F.3d
97, 102-03 (2d Cir. 1998).
The petitioner can overcome the time bar by demonstrating
that the limitations period should be equitably tolled.
Equitable tolling, however, applies in habeas cases only in
extraordinary and rare circumstances.
The petitioner would have
to show that he has been pursuing his rights diligently, but
extraordinary circumstances prevented him from timely filing his
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Diaz v.
Kelly, 515 F.3d 149, 153 (2d Cir.), cert. denied sub nom. Diaz v.
Conway, 129 S. Ct. 168 (2008).
The threshold for petitioner to
establish equitable tolling is very high.
See Smith v. McGinnis,
208 F.3d 13, 17 (2d Cir.) (acknowledging high threshold for
establishing equitable tolling), cert. denied, 531 U.S. 840
Bewry’s convictions became final before the enactment of the
Thus, his limitations period would have
commenced on April 24, 1996, the enactment date of the statute.
On that date, however, Bewry’s first state habeas action was
That action tolled the limitations period.
habeas action concluded on October 7, 2003, when the Connecticut
Supreme Court denied the petition for certification.
year limitations period commenced the following day and expired
on October 7, 2004.
In response to the motion to dismiss, Bewry argues that his
second state habeas action, filed while the first state habeas
action was pending, continued to toll the limitations period.
Bewry is mistaken.
The second state habeas challenged a separate
conviction that is not the subject of this federal petition.
Bewry, 121 Conn. App. at 260, 994 A.2d at 698 (challenging
timeliness of arraignment in Case No. 54832 and effectiveness of
counsel for failing to raise timeliness).
The limitations period is tolled during the pendency of a
state habeas action in the interest of comity.
the state courts the first opportunity to address the merits of
the challenge to the conviction.
See O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999) (“rule of comity reduces friction between
state and federal court systems by avoiding ‘unseem[liness]’ of a
federal district court’s overturning a state court conviction
without the state courts having had an opportunity to correct the
constitutional violation in the first instance”); Nino v. Galaza,
183 F.3d 1003, 1007 (9th Cir. 1999) (holding that interests in
comity compel tolling the statute of limitations of state
prisoner's federal habeas claim pending completion of state
habeas proceedings), cert. denied, 529 U.S. 1104 (2000).
the limitations period to enable the petition to address an
unrelated conviction in the state courts does not further this
See Kelly v. Quarterman, 260 Fed. Appx. 629, 630 (5th
Cir. 2007) (noting that tolling applies only “for the time during
which a ‘properly filed’ state habeas application challenging the
same conviction is pending”).
Because Bewry’s second state habeas petition addresses a
conviction that is not challenged in this federal habeas action,
the second state habeas action does not toll the limitations
Thus, the limitations period expired in 2004, seven
years before Bewry commenced this action.
Although the limitations period may be equitably tolled,
Bewry has identified no extraordinary circumstances that
prevented him from timely filing his federal petition.
respondent’s motion to dismiss the petition is granted on the
ground that the petition is time-barred.
The respondent’s motion to dismiss [Doc. #11] is GRANTED.
The Court concludes that an appeal of this order would not be
taken in good faith.
Thus, a certificate of appealability will
The Clerk is directed to close this case.
It is so ordered.
Janet Bond Arterton
United States District Judge
Dated at New Haven, Connecticut: April 4, 2012.
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