Oliphant v. Quiros et al
ORDER DENYING 44 Motion for Reconsideration, Relief from 7.27.10 Memorandum of Decision Granting Respondent's Motion to Dismiss re 20 Due to Error, Newly Discovered Information, and No Corrective Process Existing at State Level for Petitioner. See attached Memorandum of Decision. SO ORDERED. Signed by Judge Vanessa L. Bryant on July 18, 2011. (Butler, Ayanna)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Warden Angel Quiros and
July 18, 2011
RULING DENYING DEFENDANT’S MOTION FOR RELIEF FROM,
7/27/2010, “MEMORANDUM OF DECISION GRANTING THE
RESPONDENTS’ MOTION TO DISMISS [DOC. #20]”, DUE TO ERROR,
NEWLY DISCOVERED INFORMATION, AND NO CORRECTIVE
PROCESS EXISTING AT STATE LEVEL FOR PETITIONER
“Motions for reconsideration shall be filed and served within fourteen (14)
days of the filing of the decision or order from which such relief is sought, and
shall be accompanied by a memorandum setting forth concisely the matters or
controlling decisions which counsel believes the Court overlooked in the initial
decision or order. D. Conn. L. Civ. R. 7(c). Petitioner did not file his motion for
reconsideration until June 9, 2011, nearly one year after the court granted the
defendant’s motion to dismiss his case for failure to exhaust his state remedies.
Thus, petitioner’s motion for reconsideration [doc #13] is DENIED as untimely
Secondly, reconsideration will be granted only if the moving party can
identify controlling decisions or data that the court overlooked and that would
reasonably be expected to alter the court’s decision. See Schrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). A motion for reconsideration may
not be used to relitigate an issue the court already has decided. See SPGGC, Inc.
v. Blumenthal, 408 F.Supp. 2d 87, 91 (D.Conn. 2006), aff’d in part and vacated in
part on other grounds, 505 F.3d 188 (2d Cir. 2007). Here the defendant’s Motion
for Reconsideration is accompanied by a Memorandum of Decision dated
February 15, 2011, granting a Motion to Withdraw filed by his counsel in his state
court proceeding. The court could not have overlooked that which did not exist
at the time its decision was made.
Moreover, the defendant’s case was dismissed as he had not exhausted his
administrative remedies as his state court case was still pending. The decision
accompanying his motion is recent and not final. Further, it suggests that the
defendant’s state court proceeding is still pending in the trial court and has not
been finally decided. The Court takes judicial notice of the State of Connecticut
Judicial Branch website posting of an order dismissing the case, entered on July
1, 2011. However no appeal has been taken as yet. Therefore, even if the motion
were timely filed, relief should be denied as the petitioner has still not exhausted
his state remedies.
As the court informed petitioner in its prior ruling, only after he fully
exhausts his state court remedies, may he maintain a new federal habeas action.
While the court appreciated the defendant’s belief that efforts to address his
issues in state court are futile, an insufficient showing has been made to support
such a conclusion. See Wainwright v. Sykes, 433 U.S. 72 (1977) (finding that a
perceived futility of exhausting state remedies cannot alone constitute cause for
deliberately bypassing state procedures), Engle v. Isaac, 456 U.S. 107 (1982)
(following Sykes by reiterating that “[i]f a defendant perceives a constitutional
claim and believes it may find favor in the federal courts, he may not bypass the
state courts simply because he thinks they will be unsympathetic to the claim.
Even a state court that has previously rejected a constitutional argument may
decide, upon reflection, that the contention is valid.”), Brown v. Wilmot, 572 F.2d
404 (1978)(finding it not “appropriate for this court to guess what constitutional
issues New York Courts will or will not entertain in a habeas proceeding . . . [and,
therefore giving the state] courts the first chance to review their alleged errors so
long as they have not authoritatively shown that no further relief is available.”
(citing United States ex rel. Bagley v. LaVallee, 332 F.2d 890, 892 (2d Cir. 1964)
and Kaplan v. Bombard, 573 F.2d 708, 710 & n.1 (2d Cir. 1978))), Colon v. Fogg
603 F.2d 403 (2d Cir. 1979)(reversing and remanding petitioner’s writ of habeas
corpus in part because it would have been futile for petitioner to have raised his
claim on direct appeal), Stubbs v. Smith, 533 F.2d 64, 68-69 (2d Cir. 1976)(finding
exhaustion unnecessary where the court had summarily rejected co-defendant
Salomon’s identical ineffective assistance of counsel claim by the Appellate
Division prior to Colon’s state appeal.), Clark v. Commonwealth of Pennsylvania,
892 F.2d 1142, 1146 (3d Cir. 1989) (noting that the exhaustion requirement exists
“to ensure that the state system was granted a fair opportunity to confront
arguments that are propounded to the federal habeas courts.”), Hollis v. J.O.
Davis, 912 F.2d 1343, 1347 (11th Cir.1990)(finding “futility” to have been met
where “the state court has unreasonably or without explanation failed to address
petitions for relief . . . [or w]hen a state admits the futility of further resort to its
own courts, it waives the exhaustion requirement.”).
Accordingly, the motion is DENIED. The Clerk is directed to enter
IT IS SO ORDERED.
Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: July 18, 2011.
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