Jackson v. Warden et al

Filing 18

ORDER denying 16 Motion to Reopen Case. See attached memorandum of decision. Signed by Judge Vanessa L. Bryant on 12/18/2017. (Hoffman, S)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

TERREL JACKSON,
Petitioner,
v.
WARDEN, et al.,
Respondents.

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CASE NO. 3:11-cv-515 (VLB)

RULING ON MOTION TO REOPEN HABEAS CORPUS ACTION
Petitioner Terrel Jackson filed this habeas corpus action in 2011. He
challenged his 1999 murder conviction in a petition filed pursuant to 28 U.S.C. §
2254. On March 26, 2012, the Court dismissed the petition after finding that
Petitioner had not exhausted his state court remedies with regard to all grounds
for relief. The dismissal was without prejudice to Petitioner filing a motion to
reopen this case after he exhausted his state court remedies. See ECF No. 12.
The petition was filed within the one-year limitations period. Because the
filing of a federal habeas petition does not toll the limitations period, Duncan v.
Walker, 533 U.S. 167, 181-82 (2001), the limitations period expired before the
Court dismissed the petition. The Second Circuit has recommended that “where
an outright dismissal could jeopardize the timeliness of a collateral attack” the
district court stay proceedings in federal court to permit the petitioner to return to
state court to address the unexhausted claims and then have all claims
addressed by the district court. Zarvela v. Artuz, 245 F.3d 374, 380 (2d Cir.), cert.

denied sub nom., Fischer v. Zarvela, 534 U.S. 1015 (2001). For administrative
reasons, this Court elected to dismiss the petition without prejudice to reopening
rather than staying the matter. Petitioner was directed to move to reopen this
case within thirty days after the conclusion of the state court appeal. ECF No. 12
at 9. By complying with the Court’s direction and promptly moving to reopen this
case, Petitioner would obtain the same benefits as if the Court had stayed the
proceedings as recommended in Zarvela.
Noting concerns about excessive delay in resolving stayed habeas cases,
the Second Circuit recommended that any stay to permit exhaustion of state
remedies should be conditioned on the petitioner exercising due diligence. The
petitioner should be allowed “no more than reasonable intervals of time to
present his claims to the state court and to return to federal court after
exhaustion.” Zarvela, 254 F.3d at 381. The court suggested thirty days to
commence state court proceedings and thirty days to return to federal court after
those proceedings were concluded, and noted that the stay could be lifted and
the petition dismissed if either condition is not met. Id.
Petitioner’s federal case was dismissed on March 26, 2012 with direction to
return to state court to exhaust the unexhausted claim. Petitioner waited over
seventeen months, until September 12, 2013, to file a state habeas action. See
Resp’ts’ Mem. App. A, ECF No. 17-1. On October 7, 2016, after the state petition
had been pending for three years, Petitioner withdrew the action. See Resp’ts’
Mem. App. B, ECF No. 17-2.
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On January 23, 2017, rather than filing a motion to reopen in this case,
Petitioner filed a new federal habeas action, Jackson v. Warden Erfe, No. 3:17-cv92(JCH), with a petition signed on December 11, 2016, seeking to proceed only on
the exhausted claim. In response to the respondents’ motion to dismiss, the
court, Hall, U.S.D.J., directed that the petition be docketed as a motion to reopen
and motion for leave to file an amended petition in this case. See 3:17-cv-92(JCH)
(D. Conn. Nov. 6, 2017) (ECF No. 15).
Petitioner has not acted with due diligence as contemplated in Zarvela.
First, he waited over seventeen months to commence his state action, well in
excess of the thirty days contemplated by the Second Circuit. Second, after
withdrawing his state action, Petitioner waited sixty-five days before signing his
second federal petition. Third, Petitioner elected not to utilize the Prisoner Efiling
Program as all inmates are required to do. See CTAO 16-21, Standing Order on
Prisoner Efiling Program (updated June 22, 2016) (available at
www.ctd.uscourts.gov) (requiring all prisoners to utilize this system). Instead, he
mailed his petition to the Court causing it to be received over a month after he
signed it rather than within a day or two.
Although the Court did not include in the prior order specific directions
regarding the filing of the state action, it did require him to file a motion to reopen
this case within thirty days after the state court matter was concluded. As
petitioner did not comply with this order and failed to exercise due diligence

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regarding the filing of his state action and his return to federal court, the motion
to reopen and file an amended petition [ECF No. 16] is DENIED.
SO ORDERED this 18th day of December 2017, at Hartford, Connecticut.
/s/
Vanessa L. Bryant
United States District Judge

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