Koslik v. Whidden
PRISCS- RULING Dismissing 6 AMENDED Petition for Writ of Habeas Corpus. The Clerk is directed to enter judgment and close this case. Signed by Judge Michael P. Shea on 11/12/2013.(Payton, R.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Case No. 3:12cv846 (MPS)
RULING ON AMENDED PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Richard Koslik, was confined at the Carl Robinson Correctional Institution
in Enfield, Connecticut, when he commenced this action for writ of habeas corpus pro se pursuant
to 28 U.S.C. § 2254. He challenges his March 2011 convictions for failing to comply with
Connecticut home improvement contractor requirements. For the reasons that follow, the amended
petition will be dismissed.
As a preliminary matter, the court notes that mail sent to the petitioner at his address on file
with the court, Carl Robinson Correctional Institution, has been returned by the United States Postal
Service as undeliverable with a notation that the petitioner is no longer confined at Carl Robinson.
(See Docket Entry Jan. 30, 2013.) The State of Connecticut Department of Correction website
reflects that the petitioner has been discharged from prison.1 Because the petitioner has neglected to
provide his current mailing address to the Clerk, he is in violation of a rule of the court. See Rule
83.1(c), D. Conn. L. Civ. R. (pro se party must provide the Court with a written notice indicating an
address within Connecticut where he can be served with motions, pleadings and other court
documents filed in the case).
This information may be found at: http://www.ctinmateinfo.state.ct.us (last visited
October 8, 2013).
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).
In the Connecticut Superior Court for the Judicial District of Hartford at New Britain, the
petitioner was charged in three criminal cases with failing to comply with home improvement
contractor requirements in violation of Connecticut General Statutes § 20-427(b). (See Amended
Pet. Writ Habeas Corpus at 2.) On March 2, 2011, the judge found the petitioner guilty of one
count of failing to comply with home improvement contractor requirements in violation of
Connecticut General Statutes § 20-427(b) in State v. Koslik, Case No. H15N-CR07-0032957-T, one
count of failing to comply with home improvement contractor requirements in violation of
Connecticut General Statutes § 20-427(b) in State v. Koslik, Case No. H15N-CR07-0233627-S, and
two counts of failing to comply with home improvement contractor requirements in violation of
Connecticut General Statutes § 20-427(b) in State v. Koslik, Case No. H15N-CR07-0608097-1.
The judge sentenced the petitioner to six months of imprisonment in the first case, six
months of imprisonment in the second case and 12 months of imprisonment in the third case for a
total effective sentence of two years of imprisonment. (See id.) The petitioner filed an appeal of the
convictions. (See id. at 3.)
On March 15, 2011, a Superior Court Judge set appeal bonds in the amount of $20,000.00
for each of the three criminal matters. (See Pet. Writ Habeas Corpus at 17.) On September 21,
2011, in the Connecticut Appellate Court, the petitioner filed a motion for review of the trial court’s
order regarding release on bail. (See id. at 16.) The petitioner requested that the Connecticut
Appellate Court reduce the amount of the appeal bonds to $100.00 for each of the three criminal
matters and release him on bail. On October 26, 2011, the Connecticut Appellate Court dismissed
the motion. (See id. at 31.) On July 23, 2012, the petitioner filed a second motion for review of the
trial court’s order regarding release on bail. On August 9, 2012, the Connecticut Appellate Court
denied the motion. The appeal of the petitioner’s convictions remains pending.2 See State v.
Koslik, AC 33298, (Conn. Aug. 9, 2012).
On May 16 2011, the petitioner filed a habeas petition challenging his March 2, 2011
convictions in the Connecticut Superior Court for the Judicial District of Tolland at Rockville. (See
Amended Pet. Writ Habeas Corpus at 5.) That petition remains pending as well. See Koslik v.
Warden, State Prison, Case No. TSR-CV11-4004158-S (Conn. Super. Ct. May 16, 2011).
The petitioner asks this court to review the Connecticut Appellate Court’s dismissal of his
petition for review of the trial court’s order setting an appeal bond of $20,000.00 for each of the
three criminal cases. The petitioner seeks an order reducing the appeal bonds to $100.00 each.
The petitioner concedes that the appeal of his convictions as well as the state habeas petition
are still pending. In addition, the petitioner does not assert that he filed a petition for certification
with the Connecticut Supreme Court seeking to appeal the denial or dismissal of his petition for
review of the trial court’s order setting appeal bonds of $20,000.00 in each of the three criminal
matters. Because the petitioner has not presented his claim to the highest state court capable of
reviewing them, the claim is not exhausted. See Duncan v. Henry, 513 U.S. 364, 365 (1995) (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.”) (per curiam) (internal quotation marks and
Information regarding this appeal may be found at:
http:\\appellateinquiry.jud.ct.gov/CaseNameInq.aspx (last visited May 7, 2013) under the name
Even if the petitioner had exhausted his available state court remedies, it is apparent that the
relief sought by the petitioner is no longer necessary. The petitioner seeks an order that the appeal
bonds set by the trial court be reduced to $100.00 on each of the three criminal files. At this point,
the petitioner is not incarcerated within the Department of Correction. Thus, the relief sought is
moot. For all of the reasons above, the amended petition for writ of habeas corpus is dismissed.
The Amended Petition for Writ of Habeas Corpus [Doc. No. 6] is DISMISSED.3 The court
concludes that jurists of reason would not find it debatable that 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 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 judgement and close this
SO ORDERED this 12th day of November 2013, at Hartford, Connecticut.
MICHAEL P. SHEA
UNITED STATES DISTRICT JUDGE
As this is not a mixed petition containing unexhausted and claims, a stay of this action
pursuant to Zarvela v. Artuz, 254 F.3d 374, 380-83 (2d Cir. 2001) would be inappropriate. See
id. (When a petition contains both exhausted and unexhausted claims, the Court of Appeals for
the Second Circuit recommends that the district court 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).
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