Liberatore v. Connecticut

Filing 4

PRISCS-ORDER, ( Amended Pleadings due by 12/12/2011). Signed by Judge Alvin W. Thompson on 11/10/2011. (Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

THOMAS LIBERATORE
PRISONER
Case No. 3:11cv1419(AWT)

v.
STATE OF CONNECTICUT

ORDER
On September 27, 2011, the court ordered the petitioner to
file an amended petition clearly specifying the grounds upon
which the petitioner is challenging his state conviction and
explaining how he presented these grounds to the state courts,
either on direct appeal or through a state petition for writ of
habeas corpus.

In response, the petitioner has written a letter

seeking an additional thirty days to file the amended petition.
The request for additional time is hereby GRANTED.

The

petitioner shall file his petition on or before December 12,
2011.
In his letter, the petitioner states that in a case entitled
West v. Rosen, the Southern District of New York ordered the
state court to take action on a long-pending appeal.

The

petitioner does not provide a citation to this case and research
reveals no case with that title.

To the extent that the

petitioner is seeking to invoke the mandamus jurisdiction of the
federal courts, mandamus does not lie to issue orders to the
state courts.

See Lebron v. Armstrong, 289 F. Supp. 2d 56, 58

(D. Conn. 2003) (“By its terms, the federal mandamus statute does
not apply to an action to compel a state or state officials to
perform a particular duty.” ); see also Hernandez v. United
States Attorney General, 689 F.2d 915, 920 (10th Cir. 1982)
(federal courts lack jurisdiction to issue writ of mandamus to
compel action by state court); Moye v. Clerk, DeKalb County
Superior Court, 474 F.2d 1275, 1276 (5th Cir. 1973) (same).

The

plaintiff should seek mandamus relief from the Connecticut
Supreme Court, not this court.
As the court previously explained, before the petitioner can
receive federal habeas corpus relief, he must exhaust all
available state remedies.

See O’Sullivan v. Boerckel, 526 U.S.

838, 842 (1999); 28 U.S.C. § 2254(b)(1)(A).

He can do this by

first presenting the factual and legal bases of his federal claim
to the highest state court capable of reviewing it and, second,
utilizing all available means to secure appellate review of his
claims.

See Galdamez v. Keane, 394 F.3d 68, 73-74 (2d Cir.),

cert. denied, 544 U.S. 1025 (2005).
In his letter, the petitioner indicated that the issues he
has been prevented from raising on direct appeal include
ineffective assistance of counsel, failure to charge on a lesser
included offense and prosecutorial misconduct.

In Connecticut,

ineffective assistance of counsel must be raised in a petition
for writ of habeas corpus filed in state court.

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The claim

generally will not be considered on direct appeal.

See State v.

Turner, 267 Conn. 414, 426, 838 A.2d 947, 956 (explaining that
the need for an evidentiary hearing requires that claims of
ineffective assistance of counsel be raised in a habeas corpus
action instead of on direct appeal), cert. denied, 543 U.S. 809
(2004).

Thus, if the petitioner is asking this court to excuse

the exhaustion requirement because of inordinate delay in the
state appellate court regarding the direct appeal of his
conviction, failure to exhaust any ineffective assistance of
counsel claim would not be excused.
The petitioner shall file his amended petition on or before
December 12, 2011.

In the petition he shall specify the grounds

on which he challenges his Connecticut conviction and answer all
questions on the form regarding each ground for relief and how he
has exhausted that ground in the state courts either on direct
appeal or in a petition for writ of habeas corpus.
It is so ordered.
Dated this 10th day of November 2011, at Hartford,
Connecticut.

/s/AWT
Alvin W. Thompson
United States District Judge

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