Pagan v. Connecticut

Filing 49

RULING AND ORDER re: 1 Petition for Writ of Habeas Corpus. The action is dismissed as untimely. See attached ruling and order for details. The Clerk may enter judgment and close the case. So ordered. Signed by Judge Robert N. Chatigny on 3/21/2019. (Freese, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RICARDO PAGAN,

:

Petitioner,

:

v.

:

STATE OF CONNECTICUT,

:

Respondent.

Case No. 3:16-cv-413(RNC)

:
RULING AND ORDER

Petitioner brings this action for a writ of habeas corpus
under 28 U.S.C. § 2254 challenging his commitment to the custody
of the State of Connecticut Psychiatric Security Review Board
(PSRB) on the ground that his commitment results from violations
of his constitutional rights in the underlying criminal case.
The State has moved to dismiss the action based on the one-year
statute of limitations prescribed by 28 U.S.C. § 2244(d)(1).

As

petitioner concedes, the one-year period expired in June 2002,
and he did not file a state habeas petition until April 2009.
Petitioner argues that the delay in filing his state habeas
petition is excused by his intellectual disability and
illiteracy, which justify equitable tolling of the limitation
period from 2001 to 2008.

The State responds that petitioner has

not satisfied his burden of demonstrating that equitable tolling
applies for this entire period.

I agree with the State and

therefore dismiss the petition as untimely.
Petitioner was committed to the custody of the PSRB in
2001, after a bench trial in Connecticut Superior Court.

The

commitment followed his plea of not guilty, based on lack of
capacity due to mental disease or defect, to charges involving
sexual assault and risk of injury to a minor.

See Conn. Gen.

Stat. § 53a-13 (making lack of capacity due to mental disease or
defect an affirmative defense).

Since 2001, petitioner has been

confined at Whiting Forensic Institute, except for a relatively
brief period when he was incarcerated at a Department of
Correction facility following his conviction for an assault at
Whiting.
Equitable tolling provides relief to a habeas petitioner
who shows that (1) he diligently pursued his rights and (2) some
extraordinary circumstance prevented him from filing a habeas
petition.

Holland v. Florida, 560 U.S. 631, 645, 649-52 (2010).

When equitable tolling is sought based on a mental condition, the
petitioner “must demonstrate that her particular disability
constituted an ‘extraordinary circumstance’ severely impairing
her ability to comply with the filing deadline, despite her
diligent efforts to do so.”
226, 232 (2d Cir. 2010).

Bolarinwa v. Williams, 593 F.3d

In keeping with the guidance provided

by Bolarinwa, counsel has been appointed for petitioner and an
evidentiary hearing has been held to determine whether equitable
tolling is warranted.1

1

In Bolarinwa, the Court of Appeals remanded to give the
petitioner an opportunity to present evidence in support of her
claim for equitable tolling based on mental illness. The claim
2

Petitioner has not sustained his burden of demonstrating
the existence of an extraordinary circumstance that severely
impaired his ability to file a state habeas petition in a timely
manner.

Petitioner claims that he was unable to understand the

concept of habeas corpus relief or the need to file a state
habeas petition until December 2008.
supported.

This claim is not well

Petitioner’s competency was evaluated in connection

with the underlying criminal case and he was found to be
competent at that time.

There is no indication the competency

evaluation was flawed or petitioner’s mental condition
subsequently worsened.

Moreover, while petitioner’s intellectual

functioning was assessed to be in the mentally retarded range in
2001, a subsequent evaluation in 2003 rejected that assessment in
light of the fluidity of his thinking and the quality of his
vocabulary.
Since his commitment in 2001, legal assistance has been
available to petitioner at Whiting, and he has appeared before
the PSRB every two years for a hearing to determine whether he
should be transferred to Dutcher Hall, a less secure facility.
On each occasion counsel was assigned to represent him.

There is

no evidence that petitioner, his counsel or anyone else ever

was supported by allegations that the petitioner’s psychiatric
problems, which had been aggravated by the deaths of her
children, father and grandfather, had burdened her efforts to
file a habeas petition, and that psychiatric medication and
placement in psychiatric units had left her incapacitated.
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raised a concern in connection with the biennial reviews
regarding petitioner’s ability to understand his situation
legally or factually or communicate with his counsel.

In

addition, the evidence shows that once petitioner inquired about
his legal rights with regard to his commitment, he was able to
understand and pursue his rights without apparent difficulty.

On

this record, petitioner’s intellectual disability and illiteracy
did not constitute an extraordinary circumstance
supporting equitable tolling throughout the period for which
tolling is sought.
Nor has petitioner shown that he exercised reasonable
diligence throughout this period.

Crediting his submissions, he

entered Whiting expecting to be transferred to Dutcher Hall in
about two years, in other words, in or about 2003.

Though he had

access to legal assistance at Whiting at all times, and was
represented by counsel in connection with the biennial reviews,
he did not inquire about the legality of his commitment until
late 2008.

Why he waited so long remains unclear.

The most

likely explanation is that he acquiesced in his confinement at
Whiting, hoping for a transfer to Dutcher Hall, until it became
apparent to him that a transfer was unlikely, at which point he
decided to explore his options.

Assuming that is the case, it

may have been reasonable for petitioner to accept his fate until
the outcome of the biennial review in 2003, or even the outcome

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of the biennial review in 2005.

But reasonable diligence

required him to take steps after the 2005 review to investigate
the legality of his confinement.

Because he did not act until

late 2008, equitable tolling does not apply.
Accordingly, the action is hereby dismissed as untimely.
The Clerk may enter judgment and close the case.

No certificate

of appealability will issue.
So ordered this 21st day of March 2019.

/s/ RNC
Robert N. Chatigny
United States District Judge

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