Pierce v. Maldonado

Filing 22

ORDER granting 14 Motion to Dismiss. Please see attached Ruling and Order for details. Signed by Judge Robert N. Chatigny on 9/26/2017. (Chenoweth, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JEFFREY M. PIERCE,
Petitioner,

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v.
WARDEN EDWARD MALDONADO,
Respondent.

PRISONER
Case No. 3:16-cv-1596 (RNC)

RULING AND ORDER
Petitioner, a Connecticut inmate, brings this action pro se
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging his 1999 Connecticut convictions for burglary and
kidnapping.

Respondent moves to dismiss the petition as barred

by AEDPA’s one-year statute of limitations, 28 U.S.C.
§ 2244(d)(1).

It is undisputed that petitioner filed this

petition more than one year after the state courts completed
their review of his last application for state habeas relief.
Petitioner contends that tolling applies to save his petition.

I

agree with respondent that the petition is untimely and therefore
grant the motion to dismiss.
Petitioner contends that the tolling provided by 28 U.S.C.
§ 2244(d)(2) while an application for state post-conviction
relief is “pending” includes the ninety days permitted for filing
a petition for certiorari to the U.S. Supreme Court.

That

interpretation of the statute was rejected in Lawrence v.
Florida, which held that the filing of a petition for certiorari

does not toll the statute of limitations under § 2244(d)(2).
U.S. 327, 331-32, 337 (2007).

549

Petitioner points to Gonzalez v.

Thaler, but that case pertains to direct review, rather than
collateral review.

565 U.S. 134, 150 (2012).

Petitioner contends that he is entitled to equitable
tolling.

He relies on an attorney’s letter that allegedly misled

him into calculating his filing deadline incorrectly.

See Letter

from Att’y Dorman, Pet.’s Resp. Mot. Dismiss Ex. A, at 1, Oct. 9,
2015, ECF No. 20-1 at 20.

Petitioner claims that the letter,

dated one month after termination of his state post-conviction
appeal, led him to believe that the statute of limitations began
to run that day, when in reality he had only eleven months
remaining.

Respondent contends that the letter was not

misleading because it does not discuss statutory time limits or
dates and it cannot excuse petitioner’s lack of reasonable
diligence in filing on time.
Equitable tolling is available to a federal habeas
petitioner when (1) an extraordinary circumstance prevented him
from filing a timely petition and (2) he acted with reasonable
diligence during the period for which he seeks tolling.
v. Florida, 549 U.S. 327, 336 (2007).

Lawrence

The attorney’s letter does

not constitute an extraordinary circumstance.

The letter

notified petitioner that his state remedies were exhausted
(without specifying the date of the final state court action) and
he should contact a new attorney in order to pursue a federal
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appeal.

Even assuming the attorney should have notified

petitioner of AEDPA’s one-year limitations period and how it
applied in his case, any such error does not rise to the level of
an extraordinary circumstance.

See id. (counsel’s mistake in

miscalculating limitations period did not justify equitable
tolling); LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005)
(attorney’s failure to notify client of state court’s decision
did not justify equitable tolling).
Accordingly, the motion to dismiss is granted and the
petition is dismissed.

Because jurists of reason would not find

it debatable that the petition is barred by the statute of
limitations, a certificate of appealability will not issue.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).

The Clerk may enter

judgment and close the case.
So ordered this 26th day of September, 2017.

__________/s/ RNC___________
Robert N. Chatigny
United States District Judge

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