Butler v. Alves

Filing 17

PRISCS- RULING DISMISSING with out prejudice 16 Petition for Writ of Habeas Corpus filed by Christopher Butler. Signed by Judge Vanessa L. Bryant on 12/9/2011. (Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

CHRISTOPHER BUTLER,
Plaintiff
v.
ALVES,
Defendant

:
:
:
:
:
:
:

Case No. 3:10-cv-1367 (VLB)
December 9, 2011

RULING DISMISSING WITHOUT PREJUDICE AMENDED
PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Christopher Butler, an inmate confined at the Cheshire
Correctional Institution in Cheshire, Connecticut, brings this action pro se for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2000). He challenges his
conviction for possession of cocaine with intent to sell by a non-drug-dependent
person. In response to the respondent’s memorandum in opposition to the
petition, the petitioner filed an amended petition. For the reasons that follow, the
amended petition should be dismissed without prejudice.
I.

Standard of Review
A prerequisite to habeas corpus relief under 28 U.S.C. § 2254 is the

exhaustion of available state remedies. O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999); 28 U.S.C. § 2254(b)(1)(A). The Second Circuit requires the district court to
conduct a two-part inquiry. First, a petitioner must present the factual and legal
bases of his federal claim to the highest state court capable of reviewing it.
Second, he must have utilized all available means to secure appellate review of
1

his claims. See Galdamez v. Keane, 394 F.3d 68, 73-74 (2d Cir.), cert. denied, 544
U.S. 1025 (2005).
II.

Procedural Background
The petitioner was found guilty, following a jury trial in the Connecticut

Superior Court for the Judicial District of New Haven, of possession of narcotics
with intent to sell by a person who is not drug-dependent. He was sentenced to a
term of imprisonment of fourteen years followed by three years of special parole.
See Resp’t’s Mem. App. B, Record on Direct Appeal, at 20.
On direct appeal, the petitioner challenged his conviction on two grounds.
First, he argues that the warrantless search of his vehicle while he and the other
occupants of the vehicle were handcuffed and removed from the area violated his
Fourth Amendment rights. Second, he claims that there was insufficient
evidence to show that he was in possession of the seized drugs. The
Connecticut Supreme Court rejected both claims and affirmed the conviction.
See State v. Butler, 296 Conn. 62, 64-65, 933 A.2d 970, 973 (2010). A search on the
Connecticut Judicial Branch reveals that the petitioner has not filed a state
habeas corpus action.
IV.

Discussion
This is a mixed petition containing two exhausted claims and one

unexhausted claim. Traditionally, a mixed petition is dismissed without prejudice
to refiling another federal habeas corpus action after all claims have been
exhausted. See Slack v. McDaniel, 429 U.S. 473, 486 (2000). In light of the one-

2

year limitations period for filing a federal habeas action, the Second Circuit has
directed the district court not to dismiss a mixed petition if an outright dismissal
would preclude petitioner from having all of his claims addressed by the federal
court. See Zarvela v. Artuz, 254 F.3d 374, 380-83 (2d Cir. 2001) (recommending
that the district court stay exhausted claims and dismiss unexhausted claims
with direction to timely complete the exhaustion process and return to federal
court); see also Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (noting that a stay of
federal proceedings to enable the petitioner to return to state court to exhaust his
state remedies with regard to some claims should be utilized only in limited
circumstances, where the petition contains both exhausted and unexhausted
claims, the petitioner demonstrates good cause for failing to exhaust all claims
before filing the federal petition and the petitioner may be time-barred if the case
were dismissed).
The Connecticut Supreme Court affirmed the petitioner’s conviction on
May 4, 2010. The petitioner’s conviction became final, and the limitations period
commenced, on August 2, 2010, at the expiration of the ninety-day period within
which the petitioner could have filed a petition for certiorari at the United States
Supreme Court. See Williams v. Artuz, 237 F.3d 147. 151 (2d Cir.)(the limitations
period specified in 28 U.S.C. § 2244(d)(1)(A) commences at the completion of
certiorari proceedings in the United States Supreme Court or at the conclusion of
the time within which a petition for certiorari could have been filed), cert. denied,
534 U.S. 924 (2001). The limitations period will not expire until August 2, 2011.

3

Thus, the petitioner has nearly two months to file a motion for leave to file a late
appeal or a petition for writ of habeas corpus in state court. Because the
limitations period has not expired, the court need not stay this action or dismiss
with leave to reopen to ensure that the petitioner can assert his claims in federal
court.
In his original petition, the petitioner challenged his conviction on the same
two grounds he raised on direct appeal. In response, the respondent filed a
memorandum in opposition to the petition arguing that the petition should be
denied. On May 6, 2011, the petitioner replied with an amended petition
accompanied by many exhibits. Included within the exhibits is a twenty-eight
page document erroneously captioned “Respondents Memorandum in
Opposition to Petition for Writ of Habeas Corpus.” Actually, this document is the
petitioner’s reply brief. The last eight pages are captioned “Federal Petition for
Writ of Habeas Corpus” and assert a third ground for relief.
In this new ground for relief, the petitioner challenges the denial of his
motion for acquittal on the charge of possession with intent to sell on the ground
that the state failed to prove this charge beyond a reasonable doubt. The
petitioner first repeats part of his second ground for relief, challenging the failure
of the jury to credit the testimony of the petitioner’s friend who claimed
ownership of the drugs. Then he argues that the trial court acted improperly by
allowing a police detective to testify as an expert witness. One of the exhibits
attached to the amended petition is the portion of the trial transcript containing

4

defense counsel’s challenge to this testimony. The petitioner did not raise this
argument on direct appeal.
The petitioner is required to use all available means to secure appellate
review of his claims before bringing those claims to federal court. See Galdamez
v. Keane, 394 F.3d 68, 73-74. The United States Supreme Court has held that
exhaustion may be excused only where “there is no opportunity to obtain redress
in state court or if the corrective process is so clearly deficient to render futile
any effort to obtain relief.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per
curiam). Here, the petitioner may file a petition for writ of habeas corpus in state
court alleging that counsel was ineffective in failing to raise this claim on direct
appeal. Thus, the petitioner has at least one available avenue to raise his claim in
state court.

IV.

Conclusion
The amended petition for writ of habeas corpus [Doc. No. 16] is DISMISSED

without prejudice. The petitioner may file another federal habeas action after he
exhausts his state court remedies on his third ground for relief.
Because reasonable jurists would not find it debatable that the petitioner
failed to exhaust his state court remedies, a certificate of appealability will not
issue. See Slack, 529 U.S. at 484 (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

5

ruling).
The Clerk is directed to enter judgment in favor of the respondent and
close this case.

It is SO ORDERED.
/s/
Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut, December 9, 2011.

6