McGrath v. Court Support Services

Filing 17

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS. The petition for habeas corpus relief (Doc. # 1 ) is DISMISSED, and respondent's motion to dismiss (Doc. # 13 ) is GRANTED. Because petitioner has not made a substantial showing of the denial of a constitutional right, see 28 U.S.C. § 2253(c)(2), no certificate of appealability shall enter. The Clerk is directed to enter judgment in favor of respondent and to close this case. It is so ordered. Signed by Judge Jeffrey A. Meyer on 12/19/2016. (Gruber, Sarah)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JOHN MCGRATH,
Petitioner,
v.

No. 3:14-cv-15 (JAM)

EXECUTIVE DIRECTOR, COURT
SUPPORT SERVICES,
Respondent.

ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner John McGrath has filed this pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. For the reasons set forth below, I will dismiss the petition on the ground
that it was not timely filed within one year of when his state court convictions became final.
BACKGROUND
On August 9, 2002, McGrath was convicted after a bench trial in the Connecticut
Superior Court on multiple counts of sexual assault and risk of injury to a child, and he was
sentenced to a total effective sentence of 18 years of imprisonment, suspended after 11 years,
and 20 years of probation. His convictions were affirmed by the Connecticut Appellate Court on
February 8, 2005, see State v. John M., 87 Conn. App. 301 (2005), and by the Connecticut
Supreme Court on March 11, 2008, see State v. John M., 285 Conn. 822 (2008). He did not seek
certiorari from the U.S. Supreme Court.
During the pendency of his direct appeal, McGrath filed a pro se petition for a new trial
on the ground of newly discovered evidence. See Docs. #13-6 at 2; #13-7. The trial court denied
the petition on August 9, 2007. See McGrath v. State, 2007 WL 2429203 (Conn. Super. 2007).

Before the trial court denied him a new trial, McGrath amended his petition to include a claim
for ineffective assistance of trial counsel, which the trial court construed as a petition for a writ
of habeas corpus. See Docs. #13-6; #13-8. The state trial court eventually denied the petition on
July 27, 2010. See McGrath v. State, 2010 WL 3326820 (Conn. Super. 2010). McGrath did not
file a timely petition for certification to pursue appellate review of this decision. Doc. #13-1 at
10.
More than two years later, McGrath was released from custody and began his term of
probation on December 28, 2012. Doc. #13-2 at 2. A few months after his release, McGrath filed
a writ of error to the Connecticut Supreme Court on March 14, 2013, to challenge the state
court’s denial in 2010 of his habeas petition. Docs. #13-6 at 3; #13-11 at 2. After transfer of the
writ to the Connecticut Appellate Court, the state moved to dismiss the writ on the ground that it
was procedurally improper, because McGrath should have—but did not—file a timely appeal
from the state court’s denial of his habeas corpus petition; the state’s motion to dismiss was
granted on September 18, 2013. See Docs. #13-14 through #13-17.
On October 8, 2013, McGrath filed a motion in this Court seeking to toll the one-year
statute of limitations for the filing of a federal habeas corpus petition. See Doc. #1, McGrath v.
Exec. Dir. of Court Support Servs., No. 3:13-mc-131 (VLB). His motion was assigned to the
docket of my colleague, Judge Vanessa Bryant, who denied the motion on November 3, 2014.
Judge Bryant declined in the first place to construe the tolling motion as a petition for a writ of
habeas corpus because it lacked any statement of a basis for the Court to grant relief. See Doc. #2
at 3, McGrath v. Exec. Dir. of Court Support Servs., No. 3:13-mc-131 (VLB) (“this court cannot
construe petitioner’s motion as a section 2254 petition, as petitioner fails to describe the claims
he proposes to assert in a future federal habeas petition”).
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Judge Bryant further concluded that McGrath had not timely sought federal habeas
corpus relief. McGrath argued before Judge Bryant that the one-year limitations period should be
tolled because his wife had been assisting him with his legal filings while he had been
incarcerated, and she had misled him into believing that certain legal actions were proceeding
when in fact they were not. Id. at 1–2. Judge Bryant did not agree that the alleged deception by
McGrath’s wife would allow for equitable tolling of the one-year limitations period:
Even assuming that his wife’s alleged deception can be considered extraordinary
circumstances, petitioner has not demonstrated that he pursued his rights diligently.
Petitioner has not shown why he was required to rely on his wife, who was apparently not
acting as his attorney, in filing legal actions for him. A great many incarcerated
individuals are able to pursue their own habeas petitions pro se. [citation omitted] Even
if, hypothetically, petitioner could show that he required his wife’s assistance, he has not
demonstrated that he was diligent in supervising her. Petitioner may not simply rely on
his wife’s representations – as he was proceeding pro se, he was himself ultimately
responsible for ensuring that his case was filed and proceeding as he wished. By
comparison, even those habeas petitioners proceeding with counsel are “[responsible] for
overseeing the attorney’s conduct or the preparation of the petition.” [quoting Doe v.
Menefee, 391 F.3d 147, 175 (2d Cir. 2004)] Petitioner has not shown that he was diligent
in overseeing his wife in assisting him, nor has he shown that he was diligent in making
certain that his case was filed and being litigated. Petitioner has thus not demonstrated
that he is eligible for equitable tolling.
Id. at 4–5.
In the meantime, on January 7, 2014, McGrath filed the instant petition for a writ of
habeas corpus, and this petition ended up on my docket. See Doc. #1. McGrath’s federal petition
challenges his convictions on multiple grounds, including alleged abuse of judicial discretion by
the state trial judge, alleged prosecutorial misconduct, and alleged ineffective assistance of
counsel. Predictably enough, respondent has moved to dismiss the petition as untimely. Doc.
#13.

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DISCUSSION
A federal court “shall entertain an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
§ 2254(a). Federal law, however, imposes stringent time limitations for prisoners to seek federal
habeas corpus relief. Subject to certain exceptions, federal law requires that a federal petition for
habeas corpus relief be filed within one year of a prisoner’s state court conviction becoming
final. See 28 U.S.C. § 2244(d)(1).1
A state court conviction becomes “final” for purposes of 28 U.S.C. § 2244(d)(1) at the
conclusion of any direct appeal of a conviction—specifically, on the date when the highest court
to which a petitioner has sought review has denied relief or, if he has not sought such further
review, the date when the time for seeking such higher court review has expired. See Gonzalez v.
Thaler, 132 S. Ct. 641, 653–54 (2012); Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001).
Here, McGrath’s conviction became final for purposes of beginning the one-year time limit on
approximately June 9, 2008—the date when his time expired on direct appeal for seeking
certiorari review from the U.S. Supreme Court following the affirmance on March 11, 2008, of

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The statute, 28 U.S.C. § 2244(d)(1), provides in full as follows:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the
time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the
Constitution or laws of the United States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the
right has been newly recognized by the Supreme Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered
through the exercise of due diligence.

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his convictions by the Connecticut Supreme Court. See U.S. Supreme Court Rule 13.1 (allowing
90 days for filing of petition for certiorari).
Because far more than one year elapsed between the date that McGrath’s conviction
became final in June 2008 and the date more than five years later when he filed the instant
habeas corpus petition in 2014, the central issue here is whether the one-year limitation period
was subject to tolling for a sufficient time to render timely the filing of his federal petition. As
the federal statute makes clear, the one-year time limit to file a federal habeas corpus petition
may be tolled for any period of time that a petitioner has a properly filed and pending collateral
challenge to his conviction in the state courts (for example, a state court habeas corpus petition).
See 28 U.S.C. § 2244(d)(2); see also Saunders v. Senkowski, 587 F.3d 543, 548 (2d Cir. 2009).2
McGrath filed his state court habeas petition while his direct appeal was pending.
Accordingly, the federal statute of limitations was tolled even after his direct appeal was denied
until his state habeas petition was ultimately denied on July 27, 2010. But the clock then began
running again for more than three years from July 27, 2010, until McGrath filed his federal
petition for habeas corpus relief on January 7, 2014.3
McGrath argues that the limitations period should have been equitably tolled, because he
was misled by his wife about the status of his legal actions while he was incarcerated. The
doctrine of equitable tolling allows a court to excuse a party’s failure to timely comply with a

The statute, 28 U.S.C. § 2244(d)(2), provides in full as follows: “The time during which a properly filed
application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of limitation under this subsection.”
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Because McGrath’s filing of his writ of error in the Connecticut Supreme Court in March 2013 amounted
to an untimely appeal from the denial of his state habeas corpus petition, this filing did not toll the running of the
limitations period. See Pace v. DiGuglielmo, 544 U.S. 408 (2005) (state post-conviction petition that is rejected by
state court as untimely does not constitute “properly filed” state court petition within meaning of the tolling
provision of 28 U.S.C. § 2244(d)(2)).

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legally required filing deadline. Although the “equitable” moniker might suggest that a court has
unfettered discretion to decide if a default should be overlooked, it is well established that the
invocation of equitable tolling is subject to at least two basic pre-conditions. First, a party must
show that extraordinary circumstances stood in his way to prevent timely filing. Second, the
defaulting party must show that—notwithstanding the obstacle posed by extraordinary
circumstances—he pursued his rights with reasonable diligence throughout the time period that
he seeks to have tolled. See Menominee Indian Tribe of Wisconsin v. United States, 136 S. Ct.
750, 755 (2016); Martinez v. Superintendent of E. Corr. Facility, 806 F.3d 27, 31 (2d Cir. 2015).
Here, I need not decide whether the alleged deception of McGrath by his wife amounts to
“extraordinary circumstances” that may toll the limitations period. Cf. Dillon v. Conway, 642
F.3d 358, 364 (2d Cir. 2011) (per curiam) (extraordinary circumstances existed because of
lawyer’s “deeply misleading statement that he would not wait until the last day to file the
petition”). Instead, I conclude that McGrath did not pursue his rights with reasonable diligence
for at least one year of the more than three years that elapsed between the denial of his state court
habeas petition and his filing of this federal habeas corpus petition. First, I agree with the reasons
set forth at length by Judge Bryant that McGrath did not take reasonable actions to verify that the
filings that his wife had allegedly pursued on his behalf while he was imprisoned had actually
been filed.
Second, notwithstanding any deception by his wife while McGrath was imprisoned, the
fact remains that more than a year elapsed between McGrath’s release in December 2012 and his
filing of this federal habeas corpus petition in January 2014. McGrath has not established any
impediment to his having filed a federal habeas corpus petition within a year of his release.
Instead of filing a proper federal habeas corpus petition, he filed a time-barred writ of error to the
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Connecticut Supreme Court in March 2013 and then filed a motion for tolling in this Court in
October 2013 that—as Judge Bryant concluded—failed to set forth any grounds for the Court to
grant federal habeas corpus relief. By filing time-barred and groundless requests for relief rather
than filing a proper federal habeas corpus petition within the first year of his release from
imprisonment, McGrath did not exercise reasonable diligence for more than a year during the
time period that he seeks to have tolled.
CONCLUSION
The petition for habeas corpus relief (Doc. #1) is DISMISSED, and respondent’s motion
to dismiss (Doc. #13) is GRANTED. Because McGrath has not made a substantial showing of
the denial of a constitutional right, see 28 U.S.C. § 2253(c)(2), no certificate of appealability
shall enter. The Clerk is directed to enter judgment in favor of respondent and to close this case.
It is so ordered.
Dated at New Haven this 19th day of December 2016.

/s/ Jeffrey Alker Meyer
Jeffrey Alker Meyer
United States District Judge

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