Gibson v. Simple

Filing 2

PRISCS-ORDER re 1 Petition for Writ of Habeas Corpus filed by Jeffrey Gibson,Failure to respond to this order will result in the dismissal of this case. ( Dismissal due by 10/17/2012). Signed by Judge Janet Bond Arterton on 9/18/2012. (Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JEFFREY GIBSON

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v.
SIMPLE

PRISONER
Case No. 3:12cv1255(JBA)

ORDER
Petitioner Jeffrey Gibson, an inmate confined at the Garner
Correctional Institution in Newtown, Connecticut, brings this
action pro se for a writ of habeas corpus pursuant to 28 U.S.C. §
2254 (2000).

He challenges his conviction for murder.

Federal habeas corpus statutes impose 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) (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 district court has the discretion to raise the timeliness of
a federal habeas petition sua sponte.

Day v. McDonough, 547 U.S.

198, 209-10 (2006).
The petitioner states that the Connecticut Supreme Court
affirmed his conviction in 1999.

Contrary to this

representation, research reveals only the decision of the
Connecticut Appellate Court, issued on December 21, 1999.
State v. Gibson, 56 Conn. App. 154, 742 A.2d 397 (1999).

See
The

petitioner never sought certification from the Connecticut
Supreme Court.

Thus, the petitioner’s conviction became final on

January 10, 2000, twenty days following the appellate court
decision, at the conclusion of the time when the petitioner could
have sought certification from the Connecticut Supreme Court.
The petitioner states that he filed his first state habeas
action, No. CV-01-0808290, in 2001.

State court records indicate

that the petition was filed on May 23, 2001, over sixteen months
after the petitioner’s conviction became final.

Thus, this

action appears to be time-barred.
Equitable tolling may be applied in habeas cases only in
extraordinary and rare circumstances and requires the petitioner
to show that he has been pursuing his rights diligently but
extraordinary circumstances prevented him from timely filing his
petition.

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 the petitioner to establish equitable tolling is
very high.

Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.)

(acknowledging high threshold for establishing equitable
tolling), cert. denied, 531 U.S. 840 (2000).

The court must

determine whether “the petitioner act[ed] as diligently as

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reasonably could have been expected under the circumstances.”
Baldayaque v. United States, 338 F.3d 145, 153 (2d Cir. 2003)
(emphasis in original).

The petitioner must have acted with

reasonable diligence throughout the entire period he seeks to
toll, that is, during the period after the extraordinary
circumstances began.
The petitioner is afforded until October 17, 2012 to show
cause why this petition should not be dismissed as time-barred.
Failure to respond to this order will result in the dismissal of
this case.
SO ORDERED this 18th day of September 2012, at New Haven,
Connecticut.
/s/
Janet Bond Arterton
United States District Judge

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