Nelson v. Brighthaupt et al

Filing 25

RULING dismissing, without prejudice, 1 Petition for Writ of Habeas Corpus filed by Stephen Nelson, granting 9 MOTION to Dismiss filed by Brighthaupt, Powers, and denying 22 MOTION to Stay filed by Stephen Nelson Signed by Judge Stefan R. Underhill on 3/27/14.(Sbalbi, B.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

STEPHEN NELSON
PRISONER
Case No. 3:12cv446 (SRU)

v.
WARDEN BRIGHTHAUPT, ET AL.

RULING ON RESPONDENTS’ MOTION
TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Stephen Nelson, currently confined at the Corrigan-Radgowski
Correctional Institution in Uncasville, Connecticut, commenced this action for writ of habeas
corpus pro se pursuant to 28 U.S.C. § 2254. He challenges his 2005 state court conviction for
conspiracy to commit robbery and 2006 convictions for kidnapping, assault and burglary. The
respondents move to dismiss on the ground that the petitioner has failed to exhaust his state court
remedies with respect to the only ground in the petition. The petitioner has moved to stay the
action. For the reasons that follow, the respondents’ motion to dismiss will be granted and the
petitioner’s motion will be denied.
I.

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

available state remedies. See O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. §
2254(b)(1)(A). The exhaustion requirement seeks to promote considerations of comity between
the federal and state judicial systems. See Cotto v. Hebert, 331 F.3d 217, 237 (2d Cir. 1982).
To satisfy the exhaustion requirement, a petitioner must present the essential factual and
legal bases of his federal claim to each appropriate state court, including the highest state court
capable of reviewing it, in order to give state courts a full and fair “opportunity to pass upon and

correct alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365
(1995) (per curiam) (internal quotation marks and citation omitted). A federal claim has been
“fairly present[ed] in each appropriate state court, including a state supreme court with powers of
discretionary review,” if it “alert[s] that court to the federal nature of the claim.” Baldwin v.
Reese, 541 U.S. 27, 29 (2004) (internal parentheses and quotation marks omitted). A petitioner
“does not fairly present a claim to a state court if that court must read beyond a petition or a brief
. . . that does not alert it to the presence of a federal claim in order to find material . . . that does
so.” Id. at 32.
Failure to exhaust 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). A petitioner cannot,
however, simply wait until appellate remedies no longer are available and argue that the claim is
exhausted. See Galdamez v. Keane, 394 F.3d 68, 73-74 (2d Cir.), cert. denied, 544 U.S. 1025
(2005).
II.

Procedural Background
After the petitioner’s arrest in February 2005, an Assistant State’s Attorney in the

Connecticut Superior Court for the Judicial District of Hartford at New Britain, filed an
Information charging the petitioner with two counts of kidnapping in the first degree in violation
of Conn. Gen. Stat. § 53a-92(a)(2)(A) and (B), two counts of robbery in the first degree in
violation of Conn. Gen. Stat. § 53a-(a)(3) and (4), two counts of burglary in the first degree in
violation of Conn. Gen. Stat. § 53a-101(a)(1) and (2), one count of larceny in the first degree in
violation of Conn. Gen. Stat. § 53a-122(a)(2), one count of assault in the first degree in violation

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of Conn. Gen. Stat. § 53a-59(a)(1), and one count of conspiracy to commit robbery in the first
degree in violation of Conn. Gen. Stat. §§ 53a-48(a) and 53a-134(a). See State v. Nelson, 105
Conn. App. 393, 397, 937 A.2d 1249, 1256 (2008).
On November 18, 2005, a jury found the petitioner guilty of conspiracy to commit
robbery in the first degree, but not guilty of larceny in the first degree. See id. The jury could
not reach a verdict on the remaining counts. See State v. Nelson, 118 Conn. App. 831, 834 n.1,
986 A.2d 311, 314 n.1 (2010). Thus, the judge declared a mistrial with respect to the
kidnapping, burglary, robbery and assault counts. See id. On February 10, 2006, a judge
imposed a total effective sentence of eighteen years of imprisonment. See Nelson, 105 Conn.
App. at 398, 937 A.2d at 1255.
On January 22, 2008, the Connecticut Appellate Court affirmed the conviction. See id. at
418, 937 A.2d at 1266. On March 18, 2008, the Connecticut Supreme Court denied certification
to appeal from the decision of the Connecticut Appellate Court. See State v. Nelson, 286 Conn.
913, 944 A.2d 983 (2008).
In December 2006, the State of Connecticut retried the petitioner on the two kidnapping
counts, the two burglary counts and the assault count. On December 20, 2006, a jury found the
petitioner guilty of two counts of kidnapping in the first degree, two counts of burglary in the
first degree and one count of assault in the first degree. See Nelson, 118 Conn. App. at 833, 986
A.2d at 313-14. In February 2007, a judge sentenced the petitioner to fifty-five years of
imprisonment. The sentence was to be served concurrently to the previously imposed eighteenyear sentence for conspiracy to commit robbery.
On January 19, 2010, the Connecticut Appellate Court reversed the judgment of

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conviction with respect to the sentences imposed for the two kidnapping offenses on the ground
that the sentences constituted multiple punishments for the same offense in a single trial in
violation of the Double Jeopardy Clause of the Fifth Amendment, but affirmed the judgment of
conviction with respect to all of the remaining offenses. The Appellate Court remanded the case
to the trial court with instructions to merge the convictions on the two kidnapping counts and to
vacate the sentence imposed for the first kidnapping count. See id. at 862, 986 A.2d at 329. In
accordance with the instructions of the Connecticut Appellate Court, on June 2, 2010, a judge in
the Connecticut Superior Court re-sentenced the petitioner to a total effective sentence of fiftyfive years of imprisonment to be served concurrently to the eighteen-year sentence for the
conspiracy to commit robbery. On March 3, 2010, the Connecticut Supreme Court denied
certification to appeal from the decision of the Connecticut Appellate Court. See State v. Nelson,
295 Conn. 911, 989 A.2d 1074 (2010).
On August 6, 2007, the petitioner filed a petition for writ of habeas corpus in the
Connecticut Superior Court for the Judicial District of Tolland at Rockville. See Nelson v.
Warden, State Prison, TSR-CV07-4001916-S (Conn. Super. Ct. Aug. 6, 2007).
On April 16, 2008, the petitioner filed a second petition for writ of habeas corpus in the
Connecticut Superior Court for the Judicial District of Tolland at Rockville. See Nelson v.
Warden, State Prison, TSR-CV08-4002367-S (Conn. Super. Ct. Apr. 16, 2008).1 On June 21,

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The Second Circuit has held that district courts may properly take judicial notice of
docket sheets in other court cases. See Mangifico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.
2006) (finding no error in district court’s reliance on a docket sheet in another case because
“docket sheets are public records of which the court could take judicial notice”) (citation
omitted). Accordingly, the court takes judicial notice of the docket sheets in the petitioner’s
Connecticut habeas petitions, which may be accessed by entering the docket numbers, 074001916 and 08-4002367, for each case on the following website: http://civilinquiry.jud.ct.gov.
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2010, a judge consolidated the first petition with the second petition. On April 8, 2011, the
petitioner filed a second amended petition raising multiple claims of ineffective assistance of
counsel and stand-by counsel, claims of actual innocence and a claim related to the failure of the
trial court and/or trial counsel to advise him of his right to seek sentence review. (See Resp’ts’
Mem. Mot. Dismiss, App. E.) On December 2, 2011, the parties entered into a stipulation
agreeing to reinstate the petitioner’s right to file an application for sentence review of the fiftyfive-year sentence imposed pursuant to the convictions for assault, kidnapping and burglary and
also agreeing to dismiss all other claims in the Second Amended Petition with prejudice. (See
id., Apps. F & G.)
III.

Discussion
The petitioner includes only one ground in the present petition. He describes that ground

as follows: “ineffective assistance of trial counsel - prosecutorial misconduct - deprivation on
[sic] constitutional rights.” Pet’r’s Writ Habeas Corpus at 9. In support of this ground for relief,
the petitioner states that:
[d]uring the investigation of the alleged incident, the authorities
submitted multiple items related to the aforesaid alleged conduct to
the State oft [sic] Connecticut Forensic Science Laboratory for
analysis. Dispite [sic] these submission [sic] experts at the lab
were not able to establish any evidence physically or forensically
linking me to the crime, including a knit hat that the victim stated
that I wore the night that he was robbed.
See id.
The respondents move to dismiss the petition on the ground that the petitioner has not exhausted

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his state court remedies with respect to the claims within the first ground in the petition.2
The respondents argue that the petitioner did not fairly present the federal constitutional
claims raised in ground one of the present petition to the highest state court in Connecticut. The
petitioner concedes that he did not raise the claims in ground one of the petition on direct appeal
of his conviction. Further, he acknowledges that he entered into a stipulation to dismiss or
withdraw all claims in his consolidated 2007/2008 state habeas petitions in exchange for the
opportunity to pursue review of his fifty-five-year sentence in an application for sentence review
in state court. The petitioner states that he did not appeal the disposition of any of the claims
raised in the consolidated 2007/2008 state habeas petition. Thus, the claims raised in ground one
of the present petition have not been fully exhausted on collateral review in state court. Because
ground one has not been fairly presented to the highest state court, it is not exhausted. See
Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990) (“[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.”).
In response to the motion to dismiss, the petitioner filed a motion to stay these
proceedings. The motion recites some of the procedural history of the petitioner’s state criminal
cases, but provides no basis to stay the proceedings. The court notes that the State of
Connecticut Judicial Branch’s website reflects that the petitioner filed a new state habeas petition
on February 14, 2013. A judge has appointed counsel to represent the petitioner in that action
and it remains pending. See Nelson v. Warden, State Prison, TSR-CV13-4005226-S (Conn.

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The respondents also move to dismiss the petition as foreclosed by a stipulated
judgment that renders his petition moot. I do not reach that ground in this ruling.
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Super. Ct. June 14, 2013).3
The Second Circuit has recommended that a district court, faced with a habeas petition
that contains both exhausted and unexhausted claims, should stay the exhausted claims and
dismiss the unexhausted claims with a direction to the petitioner to timely complete the
exhaustion process and return to federal court. See Zarvela v. Artuz, 254 F.3d 374, 380-83 (2d
Cir.) (“a stay . . . will be only appropriate course in cases like Zarvela’s where an outright
dismissal could jeopardize the timeliness of a collateral attack”), cert. denied sub nom., Fischer
v. Artuz, 534 U.S. 1015 (2001) (internal quotation marks and citations omitted). Here, however,
the habeas petition includes no exhausted claims. Thus, it is not a mixed petition and there is no
exhausted claim to stay. See Carpenter v. Reynolds, 212 F. Supp. 2d 94, 98 (E.D.N.Y. 2002)
(because “petition contains only unexhausted claims . . . . the Court has no basis to retain
jurisdiction while [petitioner] pursues exhaustion” of other claims). Accordingly, the
petitioner’s motion to stay the action is denied.
IV.

Conclusion
The Motion to Dismiss [Doc. No. 9] is GRANTED. The Motion for Stay [Doc. No. 22]

is DENIED. The Petition for Writ of Habeas Corpus [Doc. No. 1] is DISMISSED without
prejudice for failure to exhaust state court remedies.
The court concludes that jurists of reason would not find it debatable that the petitioner
failed to exhaust his state court remedies. Thus, a certificate of appealability will not issue. See
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that, when the district court denies a

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The court takes judicial notice of the docket sheet in the petitioner’s 2013 state habeas
petition. See Mangifico, 471 F.3d at 398. The docket sheet may be accessed by entering the
docket number, 13-4005226, on the following website: http://civilinquiry.jud.ct.gov.
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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 ruling). The Clerk is directed
to enter judgment and close this case.
SO ORDERED this 27th day of March 2014, at Bridgeport, Connecticut.
/s/ Stefan R. Underhill
STEFAN R. UNDERHILL
UNITED STATES DISTRICT JUDGE

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