Tatum v. Murphy
Filing
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ORDER granting 16 Motion to Dismiss. The Clerk is instructed to close the case. Signed by Judge Warren W. Eginton on 11/5/13. (Ladd-Smith, I.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
EDGAR TATUM
:
:
:
:
:
v.
PETER J. MURPHY
PRISONER
Case No. 3:12cv1193 (WWE)
RULING ON RESPONDENT’S MOTION TO DISMISS [Doc. #16]
Petitioner Edgar Tatum (“Tatum”), currently confined at the
MacDougall-Walker Correctional Institution in Suffield,
Connecticut, commenced this action for writ of habeas corpus pro
se pursuant to 28 U.S.C. § 2254.
conviction for murder.
He challenges his Connecticut
The respondent has filed a motion to
dismiss the petition as untimely filed.
For the reasons that
follow, the respondent’s motion to dismiss will be granted.
I.
Procedural Background
Following a jury trial, Tatum was convicted of murder and
sentenced to a term of imprisonment of sixty years.
On July 30,
1991, the Connecticut Supreme Court affirmed Tatum’s conviction.
See State v. Tatum, 219 Conn. 721, 595 A.2d 322 (1991).
then sought review of his sentence.
October 26, 1993.
Tatum
The sentence was affirmed on
See State v. Tatum, No. CR89-161659, 1993 WL
499105 (Conn. Super. Ct. Oct. 26, 1993).
Tatum filed his first state habeas action on August 20,
1991.
The state court dismissed the petition after a trial.
See
Tatum v. Warden, No. CV91-0001263-S, 1999 WL 130324 (Conn.
Super. Ct. Mar. 3, 1999).
The dismissal was upheld on appeal.
See Tatum v. Commissioner of Correction, 66 Conn. App. 61, 783
A.2d 1151, cert. denied, 258 Conn. 937, 785 A.2d 232 (2001).
In November 1992, Tatum filed a petition for new trial.
court granted the state’s motion to strike the petition.
The
See
Tatum v. State, No. 112504, 1994 WL 51060 (Conn. Super. Ct. Feb.
3, 1994).
Tatum did not appeal the judgment.
In 2000, while the first state habeas action was pending,
Tatum filed a second state habeas action.
On September 3, 2001,
the state court dismissed the petition without prejudice.
See
Tatum v. Commissioner of Correction, No. CV00-0440732-S (Conn.
Super. Ct. Sept. 3, 2002), Resp’t’s App. H at 21-22.
On August 18, 2003, Tatum filed a third state habeas action.
Following a trial on the merits, the state court denied the
petition.
See Tatum v. Warden, No. CV03-0004175-S (Conn. Super.
Ct. Mar. 23, 2010)(Resp’t’s App. E).
The Connecticut Appellate
Court dismissed the appeal and, on June 6, 2012, the Connecticut
Supreme Court denied certification.
See Tatum v. Commissioner of
Correction, 135 Conn. App. 901, 40 A.3d 824, cert. denied, 305
Conn. 912, 45 A.3d 98 (2012).
II.
Standard
In 1996, the federal habeas corpus statutes were amended to
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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).
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
petition.
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 a 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
(2000).
II.
Discussion
Tatum’s conviction became final on October 28, 1991, at the
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conclusion of the time within which he could have filed a
petition for writ of certiorari with the United States Supreme
Court.
See Williams, 237 F.3d at 151.
However, as the one-year
limitations period was not imposed until April 24, 1996, the
Second Circuit afforded prisoners like Tatum one year from that
date to file a federal habeas petition.
See Ross v. Artuz, 150
F.3d 97, 103 (2d Cir. 1998).
Tatum filed his first state habeas action prior to the
commencement of the limitations period.
As he filed the second
state habeas petition before the first was concluded, the
limitations period remained tolled through the conclusion of the
second state habeas action.
The state court dismissed the second
habeas petition on September 3, 2002.
days to file an appeal.
did not do so.
The petitioner had twenty
See Conn. Practice Book § 63-1(a).
He
Thus, the limitations period commenced on
September 24, 2002, the day following the last day upon which he
could have filed a notice of appeal of the denial of the second
state habeas action.
See 28 U.S.C. § 2244(d)(1)(A) (the
limitations period commenced at the conclusion of direct review
or the time for seeking direct review).
The limitations period
was tolled again 329 days later, on August 18, 2003, when the
petitioner filed his third state habeas petition.
The Connecticut Supreme Court denied certification on the
third state habeas petition on June 6, 2012.
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The limitations
period began to run again the following day and expired thirtysix days later, on July 12, 2012.
See Smith v. McGinnis, 208
F.3d 13, 17 (2d Cir. 2000) (“proper calculation of Section
2244(d)(2)’s 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”).
Under the prison mailbox rule, a prisoner’s petition is
considered filed on the day he gives the petition to correctional
staff to be mailed to the court.
682 (2d Cir. 1993).
8, 2012.
See Dory v. Ryan, 999 F.2d 679,
Tatum signed his federal petition on August
Thus, the earliest date upon which he could have mailed
the petition is August 8, 2012, twenty-seven days too late.
petition, therefore, is untimely.
This
See, e.g., Ferguson v.
Mantello, No. 00 Civ. 2098(SAS), 2000 WL 1721140, at *2, n.2
(S.D.N.Y. Nov. 16, 2000) (dismissing petition as untimely filed
and noting that petitioner had twenty-six days during which he
could have filed a “bare bones” petition and later sought leave
to amend).
To render the petition timely, Tatum would have to show that
the limitations period should be equitably tolled for those
twenty-seven days.
Tatum was provided notice that the
respondent’s motion to dismiss could be granted if he failed to
respond and of the contents of a proper response.
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See Doc. #18.
In addition, Tatum is aware of the doctrine of equitable tolling.
See Doc. #4 (requiring petitioner to show cause why petition
should not be dismissed as untimely filed and informing
petitioner of doctrine of equitable tolling).
Despite the
notice, Tatum has not responded to the motion to dismiss.
Tatum also was aware of the limitations period for filing a
federal habeas action.
He had asked one of his lawyers about the
limitations period and was told, in November 2002, that the
attorney was unsure about when the limitations period would
expire.
The attorney advised Tatum to contact an attorney who
specialized in federal habeas actions.
See Doc. #8 at 43.
Absent presentation of facts warranting equitable tolling, the
court concludes that the petition is untimely filed.
IV.
Conclusion
The respondent’s motion to dismiss [Doc. #16] is GRANTED.
The court concludes that an appeal of this order would not be
taken in good faith.
Thus, a certificate of appealability will
not issue.
So ordered this 5th day of November 2013, at Bridgeport,
Connecticut.
/s/
Warren W. Eginton
Senior United States District Judge
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