Carpenter v. Commissioner of Correction

Filing 18

ORDER granting 10 Motion to Dismiss for the reasons set forth in the attached decision. The Clerk is directed to close this case. Signed by Judge Vanessa L. Bryant on 07/30/2018. (Lee, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

BETH ANN CARPENTER,
Petitioner,
v.
COMMISSIONER OF
CORRECTION,
Respondent.

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No. 3:17-CV-01292 (VLB)

July 30, 2018

MEMORANDUM OF DECISION ON MOTION TO DISMISS [DKT. 11]
Petitioner Beth Ann Carpenter (“Carpenter” or “Petitioner”) brings this writ
of habeas corpus under 28 U.S.C. § 2254 to challenge her conviction of capital
felony in violation of Conn. Gen. Stat. § 53a-54b, conspiracy to commit murder in
violation of Conn. Gen. Stat. §§ 53a-48 and 53a-54a, accessory to commit murder
in violation of Conn. Gen. Stat. §§ 53a-8(a) and 53a-54(a). See [Dkt. 2 (Habeas
Petition) ¶ 3; Dkt. 11-2 (Mot. Dismiss Ex. B, State v. Carpenter, 275 Conn. 785, 794,
882 A.2d 604 (2005))]. Respondent Commissioner of Correction (“Respondent”)
has moved to dismiss on the basis that the § 2254 petition is untimely. For the
foregoing reasons, this motion is GRANTED.
Background1
The facts underlying Ms. Carpenter’s conviction involve the 1994 death of a
man killed by a gunman who was hired by Ms. Carpenter’s lover. See [Dkt. 2 ¶ 4].
Several years after the murder was carried out, Ms. Carpenter was charged with

1

The Court takes judicial notice that all exhibits provided by Respondent are either
public court dockets or publicly filed cases. See Fed. R. Evid. 201(b).

and convicted of capital felony, conspiracy to commit murder, and accessory to
commit murder. She received a sentence of life without parole. [Dkt. 2 ¶ 3; Dkt. 112 at 794]. Ms. Carpenter appealed the jury verdict and the Connecticut Supreme
Court affirmed the jury verdict on October 11, 2005. See [Dkt. 11-2]. She then
petitioned for certiorari, but the United States Supreme Court denied it on March
20, 2006. See [Dkt. 11-3 (Mot. Dismiss Ex. C, Carpenter v. Connecticut, 547 U.S.
1025, 126 S. Ct. 1578 (2006))].
Over two years later on May 2, 2006, Ms. Carpenter filed her first petition for
a writ of habeas corpus in Connecticut state court. See [Dkt. 11-4 (Mot. Dismiss
Ex. D, Carpenter First Habeas Docket) at 1]. She withdrew this petition on October
14, 2010. Id. at 3.
On December 14, 2012, Ms. Carpenter filed her second petition for a writ of
habeas corpus with the state. See [Dkt. 11-5 (Mot. Dismiss Ex. E, Carpenter Second
Habeas Docket) at 2]. This petition was denied on June 18, 2015. See id.; [Dkt. 116 (Mot. Dismiss Ex. F, Carpenter v. Warden, No. TSRCV134005058S, 2015 WL
4173947 (Conn. Super. Ct. June 18, 2015))]. Ms. Carpenter appealed this ruling on
July 8, 2015, and the judgment was affirmed on March 28, 2017. See [Dkt. 11-7 (Mot.
Dismiss Ex. G, Carpenter v. Comm’r of Corr., 171 Conn. App. 758 (Conn. App. Ct.
2017)]. She petitioned the Connecticut Supreme Court for certification for appeal
from the appellate court but was denied on May 10, 2017.
Rather than filing a petition with the United States Supreme Court, she filed
a § 2254 petition here. She argues trial counsel was ineffective for two reasons: (1)

they failed to lay a proper foundation that resulted in precluding an expert’s
testimony, and (2) they failed to advise her to consider a plea agreement. See [Dkt.
2 ¶¶ 10–39].
Discussion
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets a
one-year limitations period for filing § 2254 petitions. 28 U.S.C. § 2244(d)(1). The
one-year limitations period begins to run on the latest of one of four possible dates:
(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.

Id. Here, the parties dispute whether the latest date is (A) the date when the
judgment became final, (C) the date on which a Supreme Court initially recognized
a constitutional right, or (D) the date when the factual predicate of the claims were
discovered.
Under subsection (A), the statute of limitations ran before she filed this
federal habeas petition. A criminal conviction becomes final within the meaning of
section 2244(d)(1)(A) “only after the denial of certiorari or the expiration of time for

seeking certiorari.” Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). Therefore,
the conviction became final on March 20, 2006 when the United States Supreme
Court denied the petition for writ of certiorari. See [Dkt. 11-3]. However, it is wellestablished, and the parties do not disagree, that “[t]he limitations period is tolled
during the pendency of a properly filed petition for collateral review in state
courts.” Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir.2002); see also 28 U.S.C. §
2244(d)(2). This tolling period does not begin anew when a second state habeas
petition is filed. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). The statute
of limitations period was tolled from May 2, 2006 to October 14, 2010 during the
pendency of the first state habeas petition and from December 14, 2012 to May 10,
2017 during the pendency of the second state habeas petition until the Connecticut
Supreme Court denied certification for appeal. This means the clock ran from
March 21, 2006 to May 1, 2006; from October 15, 2010 until December 13, 2012; and
from May 11, 2017 until July 31, 2017.2 The one-year statute of limitations clearly
ran during the more-than-two-year time period between the dates when the first
state habeas petition concluded and the second state habeas petition was filed.
According to Petitioner, applying subsection (C) renders the latest date
timely. Petitioner claims that Lafler v. Cooper, 566 U.S. 156, 132 S. Ct. 1376, 182 L.
Ed. 2d 398 (2012) and Missouri v. Frye, 566 U.S. 134, 132 S. Ct. 1399, 182 L. Ed. 2d

2

The time period and days in which the limitations period ran can be viewed in this
chart below.
Time Period
Days
3/21/2006 to 5/1/2006
41
10/15/2010 to 12/13/2012
790
05/11/2017 to 07/31/2017
81

379 (2012) apply retroactively and her “plea claim” is not barred because these
cases—which address ineffective assistance of counsel claims for conduct during
the plea negotiation process—create a newly recognized constitutional right. See
[Dkt. 14 (Opp’n) at 6]. This argument is unavailing, however. The Second Circuit
has clearly held that “[n]either Lafler or Frye announced a ‘new rule of
constitutional law’: Both are applications of Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).” Gallagher v. United States, 711 F.3d 315,
315–16 (2d Cir. 2013). Also, the Second Circuit expressly ruled that Lafler and Frye
do not apply retroactively. Id. Assuming arguendo Ms. Carpenter’s claims are
based on Lafler and Frye, subsection (C) does not apply here.
In the alternative, Petitioner also claims that subsection (D) applies.
Specifically, she argues: “the state court’s interpretation of the Sixth Amendment
right of effective assistance of counsel is plainly unreasonable. The petitioner
could not raise such a claim until the state court decided the issue.” [Dkt. 14 at 8–
9]. “The determination of the date on which the factual predicate for a habeas claim
is first discoverable is a ‘fact-specific’ inquiry which requires a district court to
analyze the factual bases of each claim and to determine when the facts underlying
the claim were known, or could with due diligence have been discovered.” Rivas
v. Fischer, 687 F.3d 514, 534 (2d Cir. 2012). The Second Circuit has sided with other
circuit courts in defining “factual predicate” to be comprised “only of the ‘vital
facts’ underlying the claim.” Id. at 535. This means that “if new information is
discovered that merely supports or strengthens a claim that could have been
properly stated without discovery, the information is not a ‘factual predicate’ for

purposes of triggering the statute of limitations under § 2244(d)(1)(D).” Id. Notably,
the Second Circuit clarified what a factual predicate is not: “[I]t should go without
saying that a factual predicate must consist of facts. Conclusions drawn from
preexisting facts, even if the conclusions are themselves new, are not factual
predicates for a claim.” Id. It is quite clear that the state court’s interpretation of
her ineffective assistance of counsel claim is a conclusion, not a fact underlying
the claim, and that subsection (D) does not apply.3
Finally, the Court liberally construes the factual allegations to assert a claim
of equitable tolling. Because the limitations period set forth in 28 U.S.C. § 2244(d)
is not a “jurisdictional bar,” a court may equitably toll the limitations period. See
Smith, 208 F.3d at 17 (citation omitted). Equitable tolling may be applied in habeas
cases only in extraordinary and rare circumstances and requires the petitioner to
demonstrate “that he has been pursuing his rights diligently,” but “extraordinary
circumstances” prevented [him from] timely filing” his petition. See Holland v.
Florida, 560 U.S. 631, 649, 130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010) (internal
quotation marks and citation omitted).

The extraordinary circumstances

preventing the timely filing of the habeas petition must have been beyond the
petitioner’s control. See Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2003),
abrogation on other grounds recognized by Dillon v. Conway, 642 F.3d 358, 362 (2d
Cir. 2011). In addition, “the severity of the obstacle[s] impeding compliance with
the limitations period” rather than “the uniqueness of a party’s circumstances” is

3

Ms. Carpenter also suggests her Lafler/Frye claim could not have previously been
discovered prior to the rulings. This argument fails for the same reason: the
existence of new case law is not a fact.

considered by the court in determining whether circumstances are extraordinary.
Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011) (citations omitted).
It is the petitioner’s burden to show she is entitled to equitable tolling, see
Diaz v. Kelly, 515 F.3d 149, 153 (2d Cir. 2008), and she has clearly failed to do so
here. Ms. Carpenter alluded to a potential equitable tolling argument with the
following:
(Although extra-record at this point, the respondent’s motion to
dismiss is strangely silent about why the first petition was withdrawn
– counsel for the petitioner and the Chief State’s Attorney were
engaged in discussions about whether the state would consent to
resentencing so that the petitioner could look forward to something
other than slow and inevitable death behind bars, a fact that could well
support a theory of equitable estoppels on a more fully developed
record.)
[Dkt. 14 at 7–8]. To the extent Ms. Carpenter asserts the time period between the
first and second habeas petitions should be tolled because the parties were
contemplating a sentence reduction, see [Dkt. 14 at 8], she has not provided the
Court with any factual or legal basis to enable the Court to find she exercised due
diligence and that extraordinary circumstances outside her control prevented her
timely filing. See Valverde v. Stinson, 224 F.3d 129, 135 (2d Cir. 2000) (ruling
petitioner’s submission of a sworn affirmation was sufficient to permit him to
survive the motion to dismiss because the petitioner averred the correction officer
confiscated his legal papers); Bush v. Lantz, No. 3:06-CV-410 (RNC), 2009 WL
522940, at *2 (D. Conn. Mar. 2, 2009) (on a motion to dismiss, stating, “Even
assuming petitioner could prove that the circumstances he faced in Virginia were
so extraordinary as to provide a basis for equitable tolling, there is no indication
that he exercised due diligence and was prevented from filing his state petition on

time due to circumstances beyond his control. As discussed above, he provides
no evidence that he took steps to obtain his legal papers or library materials and
was prevented from obtaining them.”). In fact, the opposite is true. This singular
argument advanced in the opposition by Ms. Carpenter, a former attorney, makes
it quite clear that Ms. Carpenter was not forced or tricked into withdrawing her first
habeas petition. She knowingly and voluntarily withdrew that petition, which had
tolled the clock; triggered the resumption of the dissipation of the limitations
period; and failed to timely file a second petition. Therefore, she is not entitled to
equitable tolling.
Conclusion
For the above reasons, the motion to dismiss is GRANTED. The Court
concludes that jurists of reason would not find it debatable that petitioner failed to
timely file this petition. Thus, a certificate of appealability will not issue. See Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (holding that, when the district court denies a
habeas petition on procedural grounds, a certificate of appealability should issue
if jurists of reason would find debatable the correctness of the district court’s
ruling). The Clerk is directed to enter judgment and close this case.

IT IS SO ORDERED
__________/s/____________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: July 30, 2018