RULING ON MOTION TO DISMISS
STEFAN R. UNDERHILL, District Judge.
On March 5, 2018, Thomas E. Marra, Jr., an inmate currently confined at the Garner Correctional Institution in Newtown, Connecticut, brought a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 against Scott Semple, the Commissioner of the Connecticut Department of Correction ("the respondent").1 Pet., Doc. No. 1. In his petition, Marra challenges his 1988 state convictions for accessory to kidnapping, attempted kidnapping, conspiracy to commit kidnapping, arson, and larceny. Id. On November 7, 2018, the respondent moved to dismiss the petition as untimely and, alternatively, for failure to exhaust state court remedies. Mot. to Dismiss, Doc. No. 27; Mem. of Law in Supp. of Mot. to Dismiss ("Resp't Mem."), Doc. No. 27-1. In response, Marra filed a motion to withdraw his petition "without prejudice so that [he] can exhaust the claims that the [r]espondent alleges [he] did not fully exhaust[] in state court." Pet'r's Mot. to Withdraw Without Prejudice Pet'r's 2254 Pet. for Writ of Habeas Corpus ("Marra's Mot. to Withdraw"), Doc. No. 30. I ordered Marra to file a supplemental response to the Motion to Dismiss explaining why his petition should not be dismissed as time-barred. See Order, Doc. No. 30. Marra filed a supplemental response in which he argued: (1) his previous federal petition was dismissed without prejudice subject to refiling after proper exhaustion, and (2) he is entitled to equitable tolling. Pet'r's Suppl. Resp. to Resp't's Mot. to Dismiss ("Marra's Suppl. Resp."), Doc. No. 32. For the following reasons, the Motion to Dismiss is GRANTED and the Motion to Withdraw is DENIED.
I. Standard of Review
District courts review a motion to dismiss a petition for writ of habeas corpus according to the same principles as a motion to dismiss a civil complaint under Fed. R. Civ. P. 12(b)(6). See Purdy v. Bennett, 214 F.Supp.2d 348, 353 (S.D.N.Y. 2002). To survive a motion to dismiss, the petition "must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when ... [the] [petitioner] pleads factual content that allows [me] to draw the reasonable inference that the [respondent is] liable for the misconduct alleged." Id.
I must accept as true the factual allegations in the petition and draw all reasonable inferences in Marra's favor. Ashcroft, 556 U.S. at 678. This principle does not, however, apply to the legal conclusions that Marra draws in his petition. Id.; Bell Atlantic Corp., 550 U.S. at 555; see also Amaker v. New York State Dept. of Corr. Servs., 435 F.App'x 52, 54 (2d Cir. 2011) (same). Accordingly, I am not "bound to accept conclusory allegations or legal conclusions masquerading as factual conclusions." Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (quoting Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008) (internal quotation marks omitted)).
Because the petition was filed pro se, "it must be construed liberally with `special solicitude' and interpreted to raise the strongest claims that it suggests." Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). Nevertheless, a pro se petition still must "state a claim to relief that is plausible on its face." Mancuso v. Hynes, 379 F.App'x 60, 61 (2d Cir. 2010) (quoting Ashcroft, 556 U.S. at 678).
Finally, in deciding a motion to dismiss, I may consider "statements or documents incorporated into the [petition] by reference ... and documents possessed by or known to [Marra] and upon which [he] relied in bringing the [petition]." ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). I may also "take judicial notice of public records such as pleadings, orders, judgments, and other documents from prior litigation, including state court cases." Lynn v. McCormick, 2017 WL 6507112, at *3 (S.D.N.Y. Dec. 18, 2017) (citing Lou v. Trutex, Inc., 872 F.Supp.2d 344, 349 n.6 (S.D.N.Y. 2012)); see also Samuels v. Air Transport Local 504, 992 F.2d 12, 15 (2d Cir. 1993).
II. Facts and Procedural History
On August 10, 1988, a jury convicted Marra in state court of accessory to kidnapping in the first degree, conspiracy to commit kidnapping in the first degree, two counts of attempted kidnapping in the first degree, arson in the second degree, and larceny in the second degree for his role in the disappearance of Richard Noel on January 23, 1984. Pet. at 1; Direct Appeal R., Resp't App. A, Doc. No. 27-3 at 24; State v. Marra, 215 Conn. 716, 718-19 (1990), Resp't App. D, Doc. No. 27-6. The state court sentenced him to sixty-five years of imprisonment. Pet. at 1; Marra, 215 Conn. at 719. As stated by the Connecticut Supreme Court, the jury reasonably could have found the following facts:
Sometime during 1981, [Marra] began selling stolen automobiles to J.W. Ownby, who lived in Kansas City, Missouri. [Marra]'s job was to deliver the stolen autos to New York City, where Ownby would pick them up and drive them back to Kansas City. In 1982, [Marra] introduced Noel, the victim, to Ownby. When Ownby became too ill, [Marra] hired Noel to drive stolen autos to Ownby in Kansas City.
Ownby and Noel proceeded to develop a friendly relationship. When Ownby and [Marra] argued over the manner in which Noel would be paid, Ownby opted to pay Noel himself, rather than honor [Marra]'s request that Ownby pay [Marra], and allow [Marra] to remit part of the payment to Noel. In the summer of 1983, Ownby began dealing directly with Noel. Shortly thereafter, Ownby terminated almost all of his dealings with [Marra], and began dealing primarily with Noel. [Marra] was "aggravated" with the situation, and his relationships with Ownby and Noel subsequently deteriorated.
In the meantime, the police had begun investigating auto theft in the Bridgeport area, and [Marra] became a subject of that investigation in April, 1983. The police informed [Marra] in October, 1983, that he was a subject of their investigation. During the remaining months of 1983, the police conducted continuous, visible surveillance operations outside [Marra]'s home so that [Marra] was made aware that the police were watching him. In November, 1983, Noel implicated [Marra] in statements to the police, and [Marra] later became aware of Noel's conversations with the police.
Near the end of 1983, [Marra] asked Frank Spetrino to steal a van for him, specifically requesting a van with no windows. Spetrino then stole a blue van for [Marra] on December 21, 1983. On the same night, Spetrino called [Marra] to arrange for delivery of and payment for the van. Spetrino and [Marra] then went to James Kallman's apartment at Pallisade Avenue in Bridgeport. There, they met Kallman, Nicky Byers, Shawn Burns and Paul Lentine. [Marra] asked Spetrino to help him and the others force Noel into the van. [Marra] had previously offered to pay Byers several hundred dollars to hit Noel over the head with an axe handle and drag him into the van. Byers, Spetrino, Kallman, Burns and Lentine, carrying guns and other weapons, rode in the van to 141 French Street in Bridgeport, the location of Noel's apartment, while [Marra] followed in his own car. Spetrino noticed that the van contained a fifty gallon drum that had not been in the van at the time he had stolen it. The group parked outside Noel's apartment, near his car, and waited approximately one hour for him to appear. When Noel failed to appear, the group abandoned the plan and disbanded.
On or about the same day, all of these men went to Robin O'Neill's apartment on Charles Street in Bridgeport. They used the blue van for transportation, and carried guns and other weapons. Kallman, in accordance with a scheme concocted by [Marra], gave O'Neill cocaine and asked her to use the drugs to entice Noel out of the Shamrock Pub, a nearby nightclub. The plan, again engineered by [Marra], was to knock Noel out when he entered the apartment, drag him through the back door of the apartment and throw him into the van. [Marra] drove O'Neill to the Shamrock Pub, and when she returned alone, [Marra] sent Alex Palmieri into the pub to find Noel. Palmieri was also unsuccessful, and this plan was also abandoned. Later, on January 12, 1984, Burns burned the blue van.
Subsequently, [Marra] asked Spetrino to steal another van for him, and on January 21, 1984, Spetrino stole a van that was two-toned in color, white on the top and green or aqua on the bottom. That same evening, Spetrino parked the van, and called [Marra] to inform him of the van's location. The next day, Spetrino noticed that the van was gone. On January 22, 1984, Ownby called [Marra] from a hotel in Bridgeport, and asked [Marra] to pick him up and drive him to a motel in Fairfield. [Marra] picked up Ownby and a Hispanic man named Julio after 9 p.m., and drove them to a motel in Fairfield. During the drive, Ownby indicated to [Marra] that after that night, there would be no more problems with Noel.
Early the following morning, on January 23, 1984, Margaret Vias awoke at approximately 2 a.m. to the sound of a male voice, coming from outside, screaming: "No, no!" Vias lived on the second floor of the apartment building at 141 French Street, the same building where Noel lived. Looking out of her window, Vias observed two white men near the doors of the building, quickly carrying the limp body of another man by his arms and legs down the sidewalk towards a van parked in front of the building. The two men tossed the other man into the van, which Vias described as yellow, at least ten years old, with a sliding door on the passenger side. A third person, according to Vias, accompanied the two men. Later that morning, Vias went outside and observed a large puddle of blood near the door of the building, a clump of dark brown hair near the puddle, blood splattered from the puddle over to the place where the van had been parked, and a set of keys.
At approximately 3:00 a.m. on January 23, 1984, the same morning that Vias viewed the scene from her window, [Marra] received a call from Ownby, who requested that [Marra] pick him up, help him dispose of a van and drive him to the airport. [Marra] picked up Ownby and Julio, and drove them to a restaurant in Stratford. In the restaurant parking lot, [Marra] saw a green and white van, and asked Ownby whether Noel's body was in the van. Ownby replied: "We already took care of it." [Marra] then looked into the van, and observed a large quantity of blood on its floor, door and sides. Followed by Ownby and Julio in the van, [Marra] next drove to a factory on Lordship Boulevard in Stratford, stopping along the way to purchase a container full of gasoline. Ownby told [Marra] that the van had to be destroyed because it was used in the murder of Noel. [Marra] then doused the inside of the van with gasoline, and Julio ignited the van. The police discovered the burning van behind the factory at 5:22 a.m.
After the van was in flames, Ownby asked [Marra] to drive him to Union Square dock in Stratford, indicating that he wanted to make sure that the container or barrel went down. [Marra] drove Ownby and Julio to the dock, and parked on the ramp with his high beams illuminating the ice below. Ownby got out of the car, and pointed to a drum on the ice, indicating that Noel's body was in the drum. Ownby then broke the ice below the drum, and the drum sank. When he got back into the car, Ownby told [Marra] that "there would be no more problems with Richie [Noel]." [Marra] then drove Ownby and Julio to a limousine service in Norwalk, where Ownby and Julio arranged for transportation to the airport.
On January 24, the next day, [Marra] called a Stratford garage, identified himself as the manager of a Bridgeport limousine service where Noel was employed, and requested that the garage tow the limousine that Noel drove. [Marra] then drove by Noel's house and noticed that the limousine was gone. Three days later, [Marra] called another Stratford garage, identified himself as Noel, and requested that the garage tow Noel's personal car. [Marra] also, at some point, asked Spetrino to break into Noel's apartment and mailbox for the specified purpose of taking Noel's personal papers and mail, especially bank mail. Spetrino entered Noel's apartment and mailbox on several occasions, and stole a bank envelope, other mail and personal papers belonging to Noel, all of which he delivered to [Marra]. [Marra] also called Nusite Realty Company, the owner of Noel's apartment building, identified himself as Noel, and obtained keys to Noel's apartment.
In mid-February of 1984, [Marra] gave Tamara Thiel ten dollars, and directed her to open a bank account in the name of Marjorie Shea, Thiel's aunt. [Marra] brought Thiel to his home on or about February 23, 1984, showed her Noel's driver's license, and told her to forge Noel's signature on a check in the amount of $4500, payable to the order of Marjorie Shea. [Marra], wearing gloves, wiped off the check with a towel and placed it in an envelope. The check was presented for deposit in the Shea account on February 27, 1984. Two days after Thiel opened the Shea account, [Marra] directed Thiel to call the bank where Noel's account was located, claim she was Noel's fiancee, and state that she needed to withdraw money for Noel, who was in Kansas City. The bank, however, refused to release the money.
On or about February 24, 1984, Thiel forged a second check at [Marra]'s direction. The second check, in the amount of $700, was made payable to Nusite Realty Company. Nusite had previously received a telephone call by a male caller who identified himself as Noel, stated that he was in Kansas City and that he would forward a check covering two months rent. Nusite's manager received the forged rent check in an envelope bearing a return address in Kansas City, and deposited it on March 5, 1984. Since Noel's bank had by this time begun to suspect that someone was tampering with his checks, the check was returned. The bank then closed Noel's account on March 8, 1984. Subsequently, the bank returned two additional checks drawn on Noel's account that had been made payable to Marjorie Shea. The bank determined that none of these checks had been signed by Noel. Furthermore, on or about March 27, 1984, acting with the belief that Noel was dead, [Marra] filed a lawsuit to collect on a promissory note in the amount of $18,000, on which Noel appeared as the maker, and [Marra] as the payee. The suit resulted in a judgment in favor of [Marra].
Marra, 215 Conn. at 720-25.
On direct appeal, Marra claimed that: (1) the state's evidence was insufficient to support his conviction for accessory to kidnapping in the first degree; (2) the trial court erred by denying his motion for a mistrial on the ground that pretrial publicity deprived him of a fair trial; (3) the trial court deprived him of the ability to cross-examine Ownby because he was unable to obtain Ownby's medical or psychological records; (4) the trial court deprived him of a fair trial by allowing the clerk to read redacted portions of a warrant affidavit related to murder charges that were pending against him at the time; and (5) the trial improperly permitted the state to introduce evidence of uncharged larcenous misconduct. Marra, 215 Conn. at 725-37. On July 24, 1990, the Connecticut Supreme Court rejected Marra's claims on the merits and affirmed the judgment of conviction. Id. at 739.
While his direct appeal was pending, Marra filed his first petition for writ of habeas corpus in state court. Pet. at 3; First State Habeas Appeal R., Resp't App. E, Doc. No. 27-7 at 4. He claimed that his trial counsel, Frank Riccio, was ineffective because he failed to (1) properly prepare Marra for his testimony at trial, (2) explain the consequences of testifying at trial, (3) conduct a proper investigation of the case, (4) subpoena Ownby's medical and psychological records, (5) file an adequate motion for mistrial based on unfair pretrial publicity, (6) object to the presence of one juror who had a conflict of interest in the case, and (7) disclose to the court that he had represented a witness who testified against Marra in an unrelated criminal proceeding. Second Am. Pet., Resp't App. E at 8-9. Marra also claimed that his appellate counsel, Timothy Pothin, was ineffective because he failed to (1) properly prepare the Appellate Record to include Ownby's medical and psychological records, and (2) present an "obvious suppression issue, which had been preserved at trial, regarding [Marra's] statements given during a polygraph examination, despite his twenty-two (22) requests for his attorney's presence during questioning." Id. at 10. Finally, Marra claimed that the state deprived him of a fair trial by withholding exculpatory evidence, specifically, audio tapes of interviews with the alleged co-conspirators. Id. at 10-11.
On October 2, 1997, after hearing evidence and argument on all claims, the state court dismissed the habeas petition. First State Habeas Appeal R. at 16-28. Marra appealed that ruling to the Connecticut Appellate Court, which dismissed the appeal. Marra v. Comm'r of Corr., 51 Conn.App. 305 (1998), Resp't App. H, Doc. No. 27-10. The Appellate Court concluded that the habeas court did not abuse its discretion in rejecting Marra's claims of ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and that the state deprived him of a fair trial. Id. at 308-10, 310 n.2. On February 4, 1999, the Connecticut Supreme Court denied Marra's petition for certification to review the Appellate Court's decision. Marra v. Comm'r of Corr., 247 Conn. 961 (1999), Resp't App. I, Doc. No. 27-11. Marra did not petition the United States Supreme Court for a writ of certiorari to review the state court's decision.
On January 4, 2000, Marra filed a federal petition for writ of habeas corpus in this court. Marra v. Armstrong, No. 3:00-cv-233 (SRU). In that petition, Marra claimed: (1) his convictions were obtained in violation of his privilege against self-incrimination because he was not permitted to have his attorney present during the polygraph examination, (2) the state withheld exculpatory information, (3) Attorney Riccio was ineffective during his criminal trial, (4) Attorney Pothin was ineffective on direct appeal, (5) there was insufficient evidence to support his conviction for accessory to kidnapping in the first degree, (6) the trial court improperly denied his motion for mistrial on the ground of pretrial publicity, (7) the trial court improperly permitted Ownby to testify, despite the fact that Attorney Riccio had not received Ownby's psychological records, (8) the trial court improperly denied his motion for mistrial after the clerk read redacted statements referring to pending murder charges against him, (9) the trial court improperly permitted the state to introduce uncharged larcenous misconduct evidence, and (10) Attorney Riccio had not been provided with all taped interviews and statements made by the witnesses and co-defendants. See Ruling on Pet. for Writ of Habeas Corpus ("Ruling on Federal Pet."), Ct.App. 1 (attached hereto) at 3-4. On January 8, 2001, I dismissed that petition without prejudice after concluding that Marra had failed to exhaust his state court remedies with respect to all claims raised therein and gave Marra the opportunity to refile his petition after all of his claims have been presented to the Connecticut Supreme Court. See id. at 7-8. In dismissing the petition, however, I cautioned Marra that the one-year statute of limitations period under 28 U.S.C. § 2244(d)(1) had commenced on May 6, 1999, when the time for filing a petition for writ of certiorari in the United States Supreme Court had expired,2 and was tolled on the day he filed his federal petition.3 Id. at 8 n.1.
Marra filed his second petition for writ of habeas corpus in state court on December 12, 2001, eleven months and four days after I dismissed his first federal habeas petition. Marra v. Warden, No. CV01-0458693-S,4 Resp't App. J, Doc. No. 27-12 at 2-3. In his second state petition, Marra claimed that his first habeas counsel, Raymond Rigat, was ineffective because he failed to (1) adequately investigate the state's illegal polygraph examination of Marra without the presence of counsel, (2) raise a claim that Attorney Pothin failed to challenge on direct appeal the trial court's ruling denying Marra's motion to suppress the audio tapes from the polygraph examination, (3) review the audio tapes from the polygraph examination for exculpatory information, (4) raise claims that Attorney Riccio failed to object to the trial court's instruction on the presumption of innocence and that Attorney Pothin failed to challenge the instruction on direct appeal, (5) challenge the state's improper recording of confidential conversations between Marra and Attorney Riccio, (6) challenge the state's use of the recorded attorney-client tape recordings during the habeas trial, and (7) adequately investigate, raise, and support a claim that the state withheld exculpatory evidence, including tapes, notes, transcripts, and memoranda from interviews with several witnesses, Marra's co-defendants, the state's confidential informant, and reports from the state forensic laboratory or the State's Attorney's Office. Fourth Am. Pet., Resp't App. K, Doc. No. 27-13 at 4-18. On October 23, 2012, Marra withdrew this petition with prejudice, and the state habeas court accepted the withdrawal. Tr. of Hrg. on Second Habeas Pet., Resp't App. M, Doc. No. 27-15 at 18.
Twenty-one days later, on November 14, 2012, Marra filed a third petition for writ of habeas corpus in state court. Marra v. Warden, No. TSR-CV13-4005093-S (Conn. Super. Ct. Nov. 14, 2012); Marra v. Comm'r of Corr., 174 Conn.App. 440, 450 (2017), Resp't App. R, Doc. No. 27-20. In this petition, Marra again claimed that Attorney Rigat rendered ineffective assistance by failing to challenge the adequacy of Attorney Riccio's and Attorney Pothin's representation during the criminal trial and on direct appeal. Marra, 174 Conn.App. at 450. The state habeas court dismissed the petition pursuant to the deliberate bypass doctrine and for lack of subject matter jurisdiction because Marra had knowingly withdrawn those claims in his second petition. See id. at 452. On appeal, the Appellate Court agreed that Marra had withdrawn the claims against Attorney Rigat with prejudice but reversed the lower court's ruling only as to the form of the judgment.5 Id. at 461-62. On November 2, 2017, the Connecticut Supreme Court denied the petition for certification to review the Appellate Court's decision. Marra v. Comm'r of Corr., 327 Conn. 955 (2017), Resp't App. T, Doc. No. 27-22.
While his third habeas petition was pending on appeal, Marra filed a fourth petition for writ of habeas corpus in state court. Marra v. Warden, No. TSR-CV15-4007234-S (Conn. Super. Ct. May 27, 2015). That matter remains pending and is scheduled for trial on March 16, 2020. Id.
On March 5, 2018, Marra filed the instant federal petition. Pet. In this petition, Marra states nine grounds for relief related to his 1988 kidnapping trial: (1) the state improperly recorded confidential communications between Marra and Attorney Riccio; (2) the state improperly obtained recordings of the conversations between Marra and Attorney Riccio without a warrant; (3) the state improperly subjected Marra to questions during a polygraph examination without his attorney present; (4) the state improperly withheld evidence that they had granted immunity to witnesses who testified against Marra during the trial; (5) during the trial, the state improperly permitted their witnesses to give perjured testimony that they had not been granted immunity; (6) the state suppressed exculpatory evidence, including notes, tapes, reports, and memoranda from witness interviews, forensic experts, informants, and co-defendants; (7) the trial court improperly instructed the jury on the presumption of innocence; (8) Attorney Rigat was ineffective in failing to (a) challenge the effectiveness of Attorney Riccio's and Attorney Pothin's representation, and (b) properly raise due process claims concerning the state's misconduct in recording Marra's conversations with Attorney Riccio and withholding exculpatory evidence; and (9) the state withheld evidence that one its investigators had sexual relations with a witness during the investigation of the case. Pet. at 13-37.
III. Analysis
In support of his motion to dismiss, the respondent claims that the instant petition is time-barred because more than one year elapsed between the date Marra's convictions became final and the date he filed his second state habeas petition, and another twenty-one days elapsed between the withdrawal of the second state petition and the filing of the third petition. Resp't Mem. at 11. Alternatively, the respondent contends that none of the claims raised in this petition has been exhausted, with the exception of the ineffective assistance claim against Attorney Rigat, which Marra had withdrawn with prejudice. Id. at 14. In response, Marra argues that his petition is not time-barred because, on January 8, 2001, I gave him the opportunity to refile his federal petition after exhaustion of his state court remedies. Marra's Suppl. Resp. at 2. Marra acknowledges, however, that he has not fully exhausted his state court remedies and requests that I again dismiss his petition without prejudice so that he can fully exhaust his claims in state court. Marra's Mot. to Withdraw at 1. I agree with the respondent that Marra's petition is time-barred and subject to dismissal in its entirely.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") restricts the ability of prisoners to seek federal review of their state criminal convictions. Smith v. McGinnis, 208 F.3d 13, 15 (2d Cir. 2000). AEDPA provides a one-year statute of limitations for federal habeas actions filed by prisoners in custody pursuant to a state court judgment. 28 U.S.C. § 2244(d)(1); Murphy v. Strack, 9 F.App'x 71, 72 (2d Cir. 2001). The one-year limitations period runs 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.
28 U.S.C. § 2244(d)(1). A state habeas action or other form of post-conviction review tolls or interrupts the running of the limitation period. 28 U.S.C. § 2244(d)(2); Smith, 208 F.3d at 17. When the state post-conviction review terminates, the "clock restarts" and the limitation period resumes. Holland v. Florida, 560 U.S. 631, 638 (2010) (citing Coates v. Byrd, 211 F.3d 1225 (11th Cir. 2000)).
As I stated in the ruling dismissing the first federal petition, Marra's judgment of conviction became final under section 2244(d)(1)(A)6 on May 6, 1999, the expiration of time during which Marra could have petitioned the United States Supreme Court for a writ of certiorari to review the state court's decision on his first state habeas petition. Marra filed his first federal habeas petition 243 days later, on January 4, 2000. After I dismissed that petition on January 8, 2001, Marra waited another 338 days before filing his second state habeas petition on December 12, 2001. Another twenty-one days elapsed between the withdrawal of the second state habeas petition and the filing of the third state habeas petition. Thus, a total of 602 days (or one year and eight months) elapsed between the finality of the judgment and the filing of the instant petition when there were no actions pending in state court challenging Marra's 1988 kidnapping case.
Although I dismissed Marra's first petition without prejudice and granted him one opportunity to refile his petition following exhaustion, I specifically cautioned him that the limitations period had commenced on May 6, 1999 and was tolled upon the filing of the first petition. See Ruling on Federal Pet. at 8 n.1. At that time, Second Circuit precedent established that a properly filed federal petition tolled the AEDPA limitations period. See Walker v. Artuz, 208 F.3d 357, 359 (2000). In an opinion dated June 18, 2001, after my dismissal of the initial petition, the United States Supreme Court reversed Walker and held that the tolling provision under section 2244(d)(2) did not apply to applications for federal habeas corpus review. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
Nevertheless, my January 2001 ruling did not toll the limitations period indefinitely, thereby granting Marra the ability to return to federal court at any point in time following exhaustion. See Smith, 208 F.3d at 17 (tolling provision of AEDPA does not allow one-year period to run anew each time judgment is entered in in post-conviction motion); Comfort v. Gorenflo, 1986 WL 10301, at *2 (W.D.N.Y. Jan. 8, 1986) (dismissal of initial complaint without prejudice did not grant plaintiff "unrestricted license to refile his complaint ... at any time whatsoever"). In accordance with then existing Second Circuit precedent, the ruling only tolled the limitations period during the time the federal petition was pending. See Evans v. Senkowski, 105 F.Supp.2d 97, 99-100 (E.D.N.Y. 2000) (AEDPA only excludes from one-year limitations period time during which post-conviction relief is pending) (citing Smith, 208 F.3d at 17). Once the dismissal order was entered, the limitations period resumed, and Marra had 122 days to return to federal court. However, he waited nearly a year before attempting to exhaust any claim in state court, exceeding the limitations period under § 2244(d)(1).
Marra argues that he is entitled to equitable tolling of the limitations period because (1) the attorney who represented him on appeal from his third state habeas petition, Cheryl Juniewic, did not notify him until January 2018 that the Connecticut Supreme Court, on November 2, 2017, had denied certification to review the lower court's decision; Marra's Suppl. Resp. at 3; Marra, 327 Conn. 955; and (2) he did not have access to legal resources because the Connecticut Department of Correction had destroyed all of legal paperwork. Marra's Suppl. Resp. at 3. A petitioner is entitled to equitable tolling of the limitations period "only if he shows `(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
Neither of Marra's arguments justify equitable tolling in this case. When the Connecticut Supreme Court entered final judgment on his third state habeas action, the limitations period had already expired. As noted above, the limitations period expired before Marra even filed his second state habeas petition. Turning to his second argument, courts in this Circuit have ruled that ignorance of the law or limited access to prison law library resources do not constitute extraordinary circumstances that toll the limitations period. See Mitchell v. Comm'r of Corr., 2019 WL 188694, at *6 (D. Conn. Jan. 14, 2019); Francis v. Miller, 198 F.Supp.2d 232, 235 (E.D.N.Y. 2002). Marra has not explained why he did not seek any post-conviction relief between January 8, 2001 and December 12, 2001. See Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000) (petitioner failed to exhibit reasonable diligence during one year and eight months between dismissal of first petition and filing of second petition). Therefore, I do not conclude that the circumstances in this case warrant equitable tolling.
Because Marra failed to seek any form of post-conviction relief for eleven months after my ruling dismissing his first federal petition, I agree with the respondent that the instant petition is time-barred. While the parties agree that all of the claims raised in the instant petition are not exhausted, I need not again address the exhaustion issue because the expiration of time during which Marra could have sought federal habeas corpus review warrants a dismissal of this action with prejudice.
IV. Conclusion
Based on the foregoing, the respondent's Motion to Dismiss the petition, Doc. No. 27, is GRANTED, and Marra's Motion to Withdraw the petition without prejudice, Doc. No. 29, is DENIED. The clerk is directed to dismiss the petition with prejudice and close this case.
Because no reasonable jurist could conclude that the instant petition was timely filed, a certificate of appealability will not issue.
So ordered.
UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT
THOMAS MARRA,
Petitioner,
PRISONER
v. Case No. 3:00cv233 (SRU)
COMMISSIONER JOHN ARMSTRONG,
Respondent.
RULING ON PETITION FOR WRIT OF HABEAS CORPUS
The petitioner is currently confined at the State Correctional Institution at Camp Hill in Camp Hill, Pennsylvania. He brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state convictions. For the reasons that follow, the petition is denied without prejudice.
Background
On August 10, 1988, after a jury trial in the Connecticut Superior Court for the judicial district of Fairfield at Bridgeport, the petitioner was convicted of one count of accessory to kidnapping in the first degree, one count of conspiracy to commit kidnapping in the first degree, two counts of attempted kidnapping in the first degree, two counts of arson in the second degree and two counts of larceny in the second degree. On September 30, 1988, he was sentenced to a total effective term of imprisonment of sixty-five years.
His conviction was affirmed on direct appeal. See State v. Marra, 215 Conn. 716, 579 A.2d 9 (1990). On direct appeal, the petitioner raised five claims: (1) there was insufficient evidence to support his conviction on the charge of accessory to kidnapping in the first degree, (2) the trial court improperly denied his motion for mistrial as a result of prejudicial publicity, (3) the trial court permitted the state's rebuttal witness, who had a history of psychological problems, to testify even though defense counsel was unable to obtain the witness's medical or psychological records, (4) the trial court failed to grant his motion for mistrial after a clerk read previously redacted portions of a warrant affidavit referring to pending murder charges against the petitioner, and (5) the trial court improperly permitted the state to introduce evidence of the petitioner's uncharged larcenous misconduct when two of the charges for which the petitioner was being tried involved thefts. Id. at 719-20, 579 A.2d at 11.
On March 30, 1990, the petitioner filed a petition for a writ of habeas corpus in state court on the grounds that he was afforded ineffective assistance of trial and appellate counsel and was denied a fair trial. Specifically, the petitioner claimed that trial counsel failed to prepare him adequately to testify at trial, explain the consequences of giving up his right to remain silent, conduct an adequate investigation, subpoena the psychological records of the state's rebuttal witness, move for a mistrial as a result of unfair publicity, object to the presence of a juror who knew members of the family of another judge within the same courthouse, and failed to disclose a conflict of interest. See Marra v. Commissioner of Correction, 51 Conn.App. at 306, 721 A.2d at 1238-39. The petitioner claimed that appellate counsel was ineffective because he failed to include the psychological records of the state's rebuttal witness in the record on appeal and raise as a ground for appeal a suppression issue relating to statements made by the petitioner during a polygraph examination. See id. at 306-07, 721 A.2d at 1239. The petitioner also claimed in his state habeas petition that he has been denied a fair trial because the state withheld exculpatory information in the form of taped interviews or statements from witnesses or co-defendants. See id. at 307, 721 A.2d at 1329. The petition was dismissed on October 2, 1997, and the trial court denied the petitioner's request for certification to appeal the denial. (See Resp't's App. H at 13-25, 26-27.) The Connecticut Appellate Court affirmed the denial of certification. See Marra v. Commissioner of Correction, 51 Conn.App. 305, 721 A.2d 1237 (1998), cert. denied, 247 Conn. 961, 723 A.2d 816 (1999).
On February 4, 2000, the petitioner commenced this action challenging his conviction on ten grounds: (1) his conviction was obtained in violation of his privilege against self-incrimination in that, on twenty-two separate occasions, he requested and was denied the presence of an attorney during a polygraph examination; (2) the state's attorney withheld exculpatory information; (3) he was afforded ineffective assistance of trial counsel; (4) he was afforded ineffective assistance of appellate counsel; (5) there was insufficient evidence at trial to support his conviction on the charge of accessory to kidnapping in the first degree; (6) the trial court improperly denied his motion for mistrial on the ground of prejudicial publicity; (7) the trial court permitted the state's rebuttal witness to testify even though the state did not provide defense counsel with the witness's psychological records; (8) the trial court improperly denied his motion for mistrial after the clerk read previously redacted statements referring to pending murder charges against the petitioner; (9) the trial court permitted the state to introduce prejudicial evidence of uncharged larcenous conduct; and (10) defense counsel was not provided all taped interviews and statements made by witnesses and co-defendants.
In his response, the respondent notes that the petitioner has not exhausted all of his grounds for relief by presenting each ground to the Connecticut Supreme Court.
Standard of Review
A prerequisite to habeas relief under section 2254 is the exhaustion of all available state remedies. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Rose v. Lundy, 455 U.S. 509, 510 (1982); Daye v. Attorney General of the State of New York, 696 F.2d 186, 190 (2d Cir. 1982), cert. denied, 464 U.S. 1048 (1982); 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement is not jurisdictional; rather, it is a matter of federal-state comity. See Wilwording v. Swenson, 404 U.S. 249, 250 (1971) (per curiam). The exhaustion doctrine is designed not to frustrate relief in the federal courts, but rather to give the state court an opportunity to correct any errors which may have crept into the state criminal process. See id. Ordinarily, the exhaustion requirement has been satisfied if the federal issue has been properly and fairly presented to the highest state court either by collateral attack or direct appeal. See O'Sullivan, 526 U.S. at 843 (citing Brown v. Allen, 344 U.S. 443, 447 (1953)). "[T]he exhaustion requirement mandates that federal claims be presented to the highest court of the pertinent state before a federal court may consider the petition." Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990).
The Second Circuit requires the district court to conduct a two-part inquiry. First, the petitioner must have raised before an appropriate state court any claim that he asserts in a federal habeas petition. Second, he must "utilize[] all available mechanisms to secure appellate review of the denial of that claim." Lloyd v. Walker, 771 F.Supp. 570, 573 (E.D.N.Y. 1991) (citing Wilson v. Harris, 595 F.2d 101, 102 (2d Cir. 1979)). A petitioner must present his federal constitutional claims to the highest state court before a federal court may consider the merits of the claims. See Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). "[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the state's established appellate review process." O'Sullivan, 526 U.S. at 845. In addition, mixed petitions, those containing exhausted and unexhausted claims, must be dismissed in their entirely. See Slack v. McDaniel, ___ U.S. ___, 120 S.Ct. 1595, 1605 (2000) (citing Rose v. Lundy, 455 U.S. at 510).
Discussion
The court has carefully compared the grounds raised in this petition with those presented on direct appeal and in the state habeas petition. Grounds five through nine in this petition are the same grounds raised on direct appeal to the Connecticut Supreme Court. Thus, the petitioner has exhausted his state court remedies with respect to grounds five through nine.
Grounds two and ten in this petition appear to be included within the petitioner's claim in his state habeas petition that he was denied a fair trial. This claim was addressed by the Connecticut Appellate Court in a footnote, see Marra v. Commissioner of Correction, 51 Conn.App. at 310 n.2, 721 A.2d at 1240 n.2, and argued in the petition for certification filed in the Connecticut Supreme Court. (See Resp't's App. J.) Ground four in this petition is identical to the claim of ineffective assistance of appellate counsel raised in the state courts. Thus, the petitioner appears to have exhausted his state court remedies with regard to grounds two, ten and four in the federal petition.
All of the claims of ineffective assistance of trial counsel raised in the state courts are included in ground three in this petition. The petitioner has included in this petition, however, an allegation that trial counsel forced him to testify against his wishes. This issue has not been presented to any state court. Thus, the petitioner has not fully exhausted his claim of ineffective assistance of trial counsel.
Finally, the first ground for relief in this petition is a claim that the petitioner was denied counsel during his polygraph examination and that his conviction was obtained in violation of his privilege against self-incrimination. The court cannot discern any evidence that this claim was presented to any state court either collaterally or on direct appeal. Thus, the petitioner had not exhausted his state court remedies with regard to the first ground for relief.
Because the petitioner has not afforded the Connecticut Supreme Court an opportunity to rule on every ground for relief, this petition is a mixed petition which must be dismissed in its entirety. See Slack, 120 S.Ct. at 1605.
Conclusion
The petition for a writ of habeas corpus [doc. #1] is DENIED without prejudice. The petitioner may refile a federal habeas action after all of his claims have been presented to the Connecticut Supreme Court.1 The Clerk is directed to enter judgment and close this case.
The Supreme Court has recently held that,
[w]hen the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claims, a [certificate of appealability] should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.
Slack, 120 S.Ct. at 1604. In addition, the Court stated that, [w]here a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Id. This court concludes that a plain procedural bar is present here; no reasonable jurist could conclude that the petitioner has exhausted his state court remedies with regard to all grounds for relief or that the petitioner should be permitted to proceed further. Accordingly, a certificate of appealability will not issue.
SO ORDERED this 8th day of January 2001, at Bridgeport, Connecticut.
________
Stefan R. Underhill
United States District Judge
U.S. District Court District of Connecticut (New Haven) CIVIL DOCKET FOR CASE #: 3:00-cv-00233-SRU Internal Use Only
Marra v. Armstrong Date Filed: 02/04/2000
Assigned to: Judge Stefan R. Underhill Date Terminated: 01/16/2001
Referred to: Judge William I. Garfinkel Jury Demand: None
Demand: $0 Nature of Suit: 530 Habeas Corpus
Cause: 28:2254 Petition for Writ of Habeas Corpus (State) (General)
Jurisdiction: Federal Question
Plaintiff
Thomas Marra represented by Thomas Marra
Inmate 73281
GARNER CORRECTIONAL
INSTITUTION
50 Nunnawauk Rd
P.O. Box 5500
Newtown, CT 06470
PRO SE
V.
Defendant
John J. Armstrong represented by James A. Killen
Comm Office of the Chief State's Attorney
300 Corporate Place
Rocky Hill, CT 06067
860-258-5807
Email: James.Killen@po.state.ct.us
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Richard F. Jacobson
1061 Main St.
Bridgeport, CT 06606
579-6506
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Date Filed # Docket Text
01/04/2000 1 PETITION for writ of habeas corpus; FILING FEE $5.00 RECEIPT #006643 (Sanders,
C.) (Entered: 02/08/2000)
02/04/2000 2 MOTION by Thomas Marra for Appointment of Counsel (Sanders, C.) (Entered:
02/08/2000)
02/16/2000 3 ORDER TO SHOW CAUSE ordering response due 4/17/00 and service by petitioner to be
made by 3/15/00 (Signed by Mag. Judge Holly B. Fitzsimmons) (Larsen, M.) (Entered:
02/17/2000)
02/16/2000 CASE referred to Mag. Judge William I. Garfinkel (Larsen, M.) (Entered: 02/17/2000)
02/28/2000 4 RULING and ORDER denying [2-1] motion for Appointment of Counsel without
prejudice to renew the motion if an evidentiary hearing is required (signed by Mag. Judge
William I. Garfinkel) 1 Page(s) (Larsen, M.) (Entered: 02/29/2000)
03/06/2000 5 APPEARANCE of Attorney for John J. Armstrong — James A. Killen (Larsen, M.)
(Entered: 03/07/2000)
04/13/2000 6 MOTION by John J. Armstrong to Extend Time to 5/31/00 to file his brief (Jaiman, R.)
(Entered: 04/14/2000)
04/20/2000 ENDORSEMENT granting [6-1] motion to Extend Time to 5/31/00 to file his brief (
signed by Mag. Judge William I. Garfinkel) (Larsen, M.) (Entered: 04/20/2000)
05/09/2000 7 APPEARANCE of Attorney for John J. Armstrong — Richard F. Jacobson (Larsen, M.)
(Entered: 05/11/2000)
05/31/2000 8 RESPONSE (Memorandum of Law in Opposition) by John J. Armstrong to [1-1] petition
(Larsen, M.) (Entered: 06/01/2000)
01/08/2001 9 RULING denying [1-1] petition without prejudice. Petitioner may refile a federal habeas
action after all his claims have been presented to Connecticut Supreme Court. Clerk is
directed to enter judgment and close this case. This court concludes that a plain procedural
bar is present here; no reasonable jurist could conclude that the petitioner has exhaused his
state court remedies with regard to all ground for relief or that petitioner should be
permitted to proceed further. Accordingly, a certificate of appealability will not issue.
(signed by Judge Stefan R. Underhill) 9 Page(s) (Larsen, M.) (Entered: 01/12/2001)
01/16/2001 10 JUDGMENT: ORDERED and ADJUDGED that the petition is dismissed without
prejudice and the matter closed (signed by Clerk) (Larsen, M.) (Entered: 01/22/2001)
01/16/2001 Case closed (Larsen, M.) (Entered: 01/22/2001)
