Saunders v. Commissioner of Corrections

Filing 46

ORDER. For the reasons discussed in the attached ruling, the 14 Amended Petition for Writ of Habeas Corpus is DISMISSED without prejudice. The Clerk is directed to enter judgment and close this case. Signed by Judge Michael P. Shea on 7/12/2016. (Hillier, D.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SAUNDERS,
Petitioner,
v.
COMMISSIONER,
Respondent.

PRISONER
No. 3:13-cv-626 (MPS)

RULING ON AMENDED PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Randall Saunders, an inmate currently confined at Enfield Correctional
Institution in Enfield, Connecticut, brings this action pro se for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. The petitioner challenges his 2001 Connecticut conviction for manslaughter
in the first degree with a firearm. For the reasons that follow, the petition is dismissed without
prejudice to reopening after the petitioner has exhausted his state remedies.
I.

Procedural Background
On January 26, 1997, at a restaurant in Danbury, Connecticut, police officers arrested the

petitioner on a murder charge. See Saunders v. Connecticut, 267 Conn. 363, 366-68, 838 A.3d 186,
190-91 (2004). On September 14, 1999, an assistant state’s attorney in the Connecticut Superior
Court for the Geographical Area 3 in Danbury, filed an information charging the petitioner with
one count of murder in violation of Conn. Gen. Stat. § 53a-54a. See Resp’t’s Mem. Opp’n Pet.
Writ Habeas Corpus, App. A at 32. On January 21, 2000, the jury trial began. On February 29,
2000, the judge declared a mistrial because the jury was deadlocked. See Saunders, 267 Conn. at
392, 838 A.2d at 204.

On October 12, 2000, an assistant state’s attorney in the Connecticut Superior Court for
the Geographical Area 3 in Danbury, filed a substitute information charging the petitioner with
one count of manslaughter in the first degree with a firearm in violation of §§ 53a-55a(a) and 53a55(a)(1). See Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App. A at 35. On February 14, 2001,
an assistant state’s attorney filed another substitute information charging the petitioner with one
count of manslaughter in the first degree with a firearm in violation of §§ 53a-55a(a) and 53a55(a)(1) and 53a-55a(a) and 53a-55(a)(3). See id. at 36-37.
On March 21, 2001, a jury found the petitioner guilty of one count of manslaughter in the
first degree with a firearm in violation of §§ 53a-55a(a) and 53a-55(a)(3). See id., App. P., Vol. 5,
Tr. 3/21/01. On May 30, 2001, a judge imposed a total effective sentence of twenty-seven years of
imprisonment. See Am. Pet. Writ Habeas Corpus at 3.
The petitioner raised three grounds on appeal of his conviction.1 See Saunders, 267 Conn.
at 365-66, 838 A.2d at 190. On January 13, 2004, the Connecticut Supreme Court affirmed the
conviction. See id. at 399, 838 A.2d at 208. On May 3, 2004, the United States Supreme Court
denied the petition for writ of certiorari. See Saunders v. Connecticut, 541 U.S. 1036 (2004).
On March 23, 2004, the petitioner filed a petition for writ of habeas corpus in the
Connecticut Superior Court for the Judicial District of Hartford challenging his 2001 conviction

The petitioner argued that: “(1) the state failed to disprove his claims of self-defense
beyond a reasonable doubt; (2) the trial court” erred in excluding testimony of a certain expert
witness “in violation of the petitioner’s constitutional right to present a defense; and (3)” his retrial
violated his Fifth Amendment “right not to be placed in jeopardy twice for the same offense.” See
id.
1

2

on ineffective assistance, prosecutorial misconduct, judicial misconduct, insufficiency of the
evidence, and double jeopardy grounds. See Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App.
I. On July 27, 2005, the petitioner withdrew the petition. See id., App. K.
On January 11, 2006, the petitioner filed a second habeas petition in the Connecticut
Superior Court for the Judicial District of Tolland at Rockville. On January 23, 2006, a judge
declined to accept the petition. See Saunders v. Warden, TSR-CV06-4000912-S (Conn. Super. Ct.
Jan. 23, 2006); Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App. L. On February 3, 2006, the
petitioner filed his third habeas petition in the same court. See Am. Pet. Writ Habeas Corpus at 6.
The petitioner raised claims of ineffective assistance of trial and appellate counsel, and
prosecutorial misconduct. See id. The petitioner filed an amended petition on November 30, 2007.
See Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App. M. The state court appointed an attorney
to represent the petitioner in the habeas proceeding. See Pet.’r’s Reply to Mem. Opp’n Pet. Writ
Habeas Corpus, Doc. No. 25 at 19.
On March 18, 2010, before the Connecticut Superior Court held a hearing on the third state
habeas petition, the petitioner filed a federal petition challenging his 2001 conviction on fifty-eight
grounds. See Saunders v. Commissioner, Case No. 3:10cv410(MPS) (Pet. Writ Habeas Corpus,
Doc. No. 1). On February 15, 2011, the court granted the respondent’s motion to dismiss on the
ground that the petitioner had not exhausted his available state court remedies as to any of the
claims in the petition. See id.; (Ruling and Order, Doc. No. 34).
In the state habeas matter, a judge held hearings on the claims in the amended petition on
May 13 and 15, and August 5, 2010. See Saunders v. Warden, No. CV064000933, 2011 WL

3

1086895, at *1 (Conn. Super. Ct. Feb. 23, 2011). The petitioner was represented by counsel during
all three hearings. See Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App. V. On February 23,
2011, a judge denied the petition. See Saunders, 2011 WL 1086895, at *14.
The petitioner appealed the denial of the habeas petition. See Saunders v. Commissioner of
Correction, 137 Conn. App. 493, 48 A.3d 728 (2012). The petitioner elected to proceed pro se on
appeal. See Pet.’r’s Reply to Mem. Opp’n Pet. Writ Habeas Corpus, Doc. No. 25 at 20; Resp’t’s
Mem. Opp’n Pet. Writ Habeas Corpus, App. R.
On August 14, 2012, the Connecticut Appellate Court dismissed the appeal of the decision
denying the petitioner’s state habeas petition. See Saunders, 137 Conn. App. at 514, 48 A.3d at
742. On October 18, 2012, the Connecticut Supreme Court denied certification to appeal the
decision of the appellate court. See Saunders v. Comm’r of Correction, 307 Conn. 920, 54 A.3d
192 (2012).
On April 1, 2011, the petitioner filed a fourth habeas petition in the Connecticut Superior
Court for the Judicial District of Tolland at Rockville. See Saunders v. Warden, TSR-CV114004081-S (Conn. Super. Ct. Apr. 1, 2011).2 On March 11, 2013, a judge dismissed the habeas
petition. See id., Dkt Entry 129.00. The petitioner appealed the dismissal. See id., Dkt. Entry
133.00. On May 16, 2013, the petitioner withdrew the appeal. See id., Dkt. Entry 135.00.

2

Information regarding this case may be found at: http://www.jud.ct.gov/jud2.htm under
Civil/Family/Housing Case Look-up and Docket Number Search using TSR-CV11-4004081-S.
(Last visited on March 2, 2016).
4

The petitioner filed the present federal petition on April 20, 2013. 3 The amended petition
includes ineffective assistance of counsel claims, prosecutorial misconduct claims, a claim of trial
error, and a double jeopardy claim.4
II.

Applicable Legal Standard
A.

Exhaustion of Available State Remedies

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 and respect between the
federal and state judicial systems. See Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309, 1316
(2012) (“Federal habeas courts reviewing the constitutionality of a state prisoner’s conviction and
sentence are guided by rules designed to ensure that state-court judgments are accorded the finality
and respect necessary to preserve the integrity of legal proceedings within our system of
federalism.”); Coleman v. Thompson; 501 U.S. 722, 731 (1991) (noting the exhaustion
requirement, codified at 28 U.S.C. § 2254(b)(1), is “grounded in principles of comity; in a federal

3

The court deems the petition for writ of habeas corpus as having been filed in this court
on April 20, 2013, the date the petitioner signed the petition and presumably submitted the petition
to prison officials for mailing to the court. See Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993)
(pro se prisoner complaint is deemed filed as of the date the prisoner gives the complaint to prison
officials to be forwarded to the court) (citing Houston v. Lack, 487 U.S. 266, 270 (1988), modified
on other grounds, 25 F.3d 81 (2d Cir. 1994)).
4

On June 2, 2016, the court ordered the respondent to file a complete copy of the
petitioner’s Petition for Certification to the Connecticut Supreme Court. The respondent did not
respond within the time limit set by the court. On June 20, 2016, the court issued an order to show
cause why the court should not impose sanctions on the respondent and counsel for failure to
comply with a court order. The next day the respondent complied with the court order. Based on
the representations provided by counsel that the oversight was inadvertent, the court declines to
impose sanctions.
5

system, the States should have the first opportunity to address and correct alleged violations of [a]
state prisoner’s federal rights.”).
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 . . . 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. 2005), cert. denied, 544 U.S. 1025 (2005).
B.

Procedural Default
1.

Procedural Default in State Court Generally Bars Federal Habeas Review

If a claim has not been exhausted in the state courts, but the petitioner no longer has any
available avenue to return to the state courts to exhaust the claim, the claim may be deemed
exhausted. See 28 U.S.C. 2254(c)(3) (“An applicant shall not be deemed to have exhausted the
6

remedies available in the courts of the State . . . if he has a right under the law of the State to raise,
by any available procedure, the question presented”); Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir.
1991) (although petitioner failed to raise sentencing and prosecutorial misconduct claims on direct
appeal, the court deemed the claims to have been exhausted “because those claims [were] . . .
procedurally barred from presentation” to the state appellate courts). Nonetheless, under the
procedural default doctrine, a federal court will not review the merits of a claim raised in a habeas
petition, including a constitutional claim, if the state court declined to address the claim because
the prisoner failed to meet a state procedural requirement and the state court decision is based on
independent and adequate procedural grounds. See Walker v. Martin, 562 U.S. 307, 316 (2011)
(citations omitted). A state rule or requirement must be firmly established and regularly followed
by the state in question to qualify as an adequate procedural ground. See Beard v. Kindler, 558
U.S. 53, 130 S. Ct. 612, 618 (2009) (internal quotation marks and citation omitted). A state court
decision will be “independent” when it “fairly appears” to rest primarily on state law. Jimenez v.
Walker, 458 F.3d 130, 138 (2d Cir. 2006) (citation omitted), cert. denied, 549 U.S. 1133 (2007).
2.

A Federal Habeas Court May Excuse Procedural Default for Cause and
Prejudice or a Fundamental Miscarriage of Justice

Exceptions to the doctrine barring procedurally defaulted claims from being heard in
federal court exist. Trevino v. Thaler, 133 S. Ct. 1911, 1917 (2013). A state prisoner can obtain
federal habeas review, despite having defaulted on his federal claim in state court pursuant to an
independent and adequate state procedural rule, if he can demonstrate cause for the default and
actual prejudice resulting from the default or he can show that failure to consider the claim will
result in a fundamental miscarriage of justice. See Edwards v. Carpenter, 529 U.S. 446, 451
(2000).

7

To establish cause to excuse procedural default, the petitioner must identify “some external
impediment preventing counsel from constructing or raising the claim.” Murray v. Carrier, 477
U.S. 478, 492 (1986). Such factors include interference by state officials impeding compliance
with state rules or a showing that the factual or legal basis for a claim was not reasonably available
to defense counsel. See McCleskey v. Zant, 499 U.S. 467, 493-94 (1991).
“Ineffective assistance of counsel . . . is cause for a procedural default.” Murray v. Carrier,
477 U.S. 478, 488 (1986). A petitioner must exhaust his claim of ineffective assistance of counsel
claim in state court, however, before a federal court may determine that an attorney’s ineffective
assistance is a basis to find cause and prejudice and thereby excuse a petitioner’s failure to exhaust
his state court remedies. See Murray v. Carrier, 477 U.S. 478, 488-89 (1986) (“[W]e think that the
exhaustion doctrine, which is principally designed to protect the state courts’ role in the
enforcement of federal law and prevent disruption of state judicial proceedings, generally requires
that a claim of ineffective assistance be presented to the state courts as an independent claim before
it may be used to establish cause for a procedural default.”) (internal citations and quotations
omitted).
III.

Factual Background
The Connecticut Supreme Court determined that the jury reasonably could have found the

following facts:
On January 26, 1997, the [petitioner] and his girlfriend, Susan Bruemmer,
went to Tortilla Flat, a restaurant and bar in Danbury, after having spent the
previous several hours drinking at another bar. The two remained at Tortilla Flat
during the Super Bowl and continued to drink. As the [petitioner] and Bruemmer
were getting ready to leave after the end of the game, Bruemmer approached the
victim, Dominic Badaracco, Jr., who was seated at the bar, and struck up a
conversation with him. Bruemmer was acquainted with the victim because she
previously had dated his brother. The conversation soon escalated into an argument,
which culminated in Bruemmer’s throwing a drink in the victim’s face.
8

The victim then called out to the [petitioner] that he had “better contain [his]
bitch.” The [petitioner] drew a handgun, approached the victim, and placed the
barrel of the gun against the victim’s head or neck. A fight ensued between the
[petitioner], who is approximately six feet, five inches tall and 220 pounds, and the
victim, who was approximately six feet, two inches tall and 230 pounds. The two
men proceeded to fight. During the fight, which lasted only a short time, the victim
punched the [petitioner] in the face. As a result, the [petitioner] suffered minor
injuries including a bloody nose and some cuts and abrasions on his face. The
victim’s shirt was torn, and a gold chain that he had been wearing around his neck
was broken.
As the fight broke out, Bethany McKnight, a bartender, heard someone in
the bar yell “there’s a gun . . . .” McKnight went into the kitchen to call 911 but
discovered that Paula Keeler, the sister-in-law of Dennis Keeler, one of the owners
of Tortilla Flat, already had made the call. Dennis Keeler also entered the kitchen
to confirm that the police had been called. By this time, the [petitioner] had entered
the kitchen from the bar area. Dennis Keeler noticed that the [petitioner] was
holstering his weapon. McKnight and Paula Keeler asked the [petitioner] whether
he had been shot and if he wanted them to call for an ambulance. The [petitioner]
smiled and said no. Paula Keeler thereafter left the kitchen and went upstairs. At
this time, the [petitioner] was located within fifteen feet of a door marked as an exit.
The victim, who had remained in the bar area, headed toward the kitchen.
As the victim approached the kitchen doorway, he kicked a garbage can, stopped
near the doorway and, according to Dennis Keeler, shouted to the [petitioner] that
“if he [the petitioner] ever pulled a gun on him again he’d kill him.” The victim
then continued to move toward the [petitioner]. Dennis Keeler asked the victim “to
stop, to let it go....” The victim did not heed Keeler’s request, however, and
continued to advance in the direction of the [petitioner].
By this time, the [petitioner] was leaning against a stove, wiping blood from
his face. McKnight, who had remained in the kitchen, testified that the [petitioner]
pulled out his handgun and “just calm [sic] as a cucumber ... started firing.” The
[petitioner] discharged all five of the bullets from his gun. The victim was struck
by four of the five bullets, three of which entered through his back. The other bullet
struck the victim in the left arm, near the armpit. The police soon arrived and
arrested the [petitioner]. The victim subsequently died as a result of one or more
gunshot wounds.
Saunders, 267 Conn. at 366-68, 838 A.2d at 190-91.
IV.

Discussion
The petitioner raises eleven grounds in the amended petition. Several grounds include

multiple claims. The petitioner and the respondent disagree about which claims have been
9

exhausted. The petitioner argues that all eleven grounds have been exhausted, while the respondent
argues that grounds one and four through eleven are procedurally defaulted and unexhausted. The
respondent concedes that the petitioner has exhausted ground two. Finally, the respondent
contends that the third ground asserts a violation of state law that is not cognizable and may not
be reviewed by this court.
As discussed below, the Court finds as follows. Ground one is exhausted, but the court
cannot determine whether it is procedurally barred. Ground two is exhausted. Ground three is
partially exhausted. The court will determine whether portions of ground three are cognizable upon
the full exhaustion of the petitioner’s state remedies. Ground four is exhausted and is not
procedurally defaulted. Grounds five, six, seven, eight, and nine are unexhausted. As in ground
one, the court cannot determine whether grounds seven, eight, and nine are procedurally barred.
Grounds ten and eleven are not exhausted but the court cannot determine whether cause and
prejudice exists to excuse any procedural default of the petitioner’s claims.
A.

Ground One
1.

Ground One Is a Claim Under the Sixth Amendment

The petitioner asserts that during his first criminal trial, the prosecutor improperly
subpoenaed records in the custody of a woman who had been appointed as the petitioner’s
representative by power of attorney and that the records contained attorney-client information or
trial strategy. See Am. Pet. Writ Habeas Corpus at 18. The prosecutor reviewed some of the
documents and then returned them to the woman. The petitioner claims that the “state prosecutor’s
intentional invasion of attorney client privilege constituted a sixth amendment violation of
Saunder[’]s right to assistance of counsel.” See id. The court construes this as a claim that
prosecutorial misconduct violated the petitioner’s Sixth Amendment right to counsel.
10

2.

Whether Ground One Is Exhausted

The petitioner raised this claim in the third state habeas petition. See Resp’t’s Mem. Opp’n
Pet. Writ Habeas Corpus, App. M, Count 46 (“The prosecutor, Warren Murray, served on this
petitioner’s power of attorney a subpoena duces tecum ordering the entire case files containing
state and federal work product be surrendered to him.”).
The habeas judge declined to review the claim of prosecutorial misconduct because he
concluded that all of the petitioner’s prosecutorial misconduct claims had been procedurally
defaulted and that the petitioner had not shown cause and prejudice to overcome the default. See
Saunders, 2011 WL 1086895, at *3. The Connecticut Appellate Court affirmed the habeas court
on the ground that the “prosecutorial impropriety” claim had been procedurally defaulted and that
the petitioner had not shown cause and prejudice to excuse the default. Saunders, 137 Conn. App.
at 499-500.
In his petition for certification to the Connecticut Supreme Court, the petitioner presented
the issue as follows:
In light of the court’s recent ruling in State v. Lenarz did the Appellate Court
err in denying the petitioner’s appeal from certification from the habeas court
after the habeas court ruled that the trial court had not committed error in
allowing the state prosecutor to subpoena the petitioner’s legal defense filed
while they were in the possession of the petitioner’s agent under a power of
attorney?
Pet. Certification, (August 21, 2012).5 Thus, the petitioner has exhausted ground one.

State v. Lenarz, 301 Conn. 47, 22 A.3d 536 (2011) held that a defendant’s Sixth
Amendment right to effective assistance of counsel was violated when the prosecutor read
privileged communications between the defendant and his attorney. See Resp’t’s Mem. Opp’n
Pet. Writ Habeas Corpus, App. U.
5

11

3.

Whether Ground One Is Procedurally Defaulted

The State contends that this claim was procedurally defaulted. The Connecticut Appellate
Court determined that this claim was procedurally defaulted because “the petitioner failed to allege
or to prove facts to support a finding of cause and prejudice” for failing to raise the claim at trial
and on direct appeal. See Saunders, 137 Conn. App. at 498-500.
The petitioner contends that the ineffective assistance of his trial counsel in failing to raise
the Sixth Amendment claim constitutes cause and prejudice to excuse the procedural bar to his
Sixth Amendment claim.
As noted above, “[i]neffective assistance of counsel . . . is cause” that may excuse a
procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986). But a petitioner must exhaust
his claim of ineffective assistance of counsel in state court before a federal court may determine
that an attorney’s ineffective assistance is a basis to find cause and prejudice and thereby excuse a
petitioner’s failure to exhaust his state court remedies. See id. at 488-89 (“[W]e think that the
exhaustion doctrine, which is principally designed to protect the state courts’ role in the
enforcement of federal law and prevent disruption of state judicial proceedings, generally requires
that a claim of ineffective assistance be presented to the state courts as an independent claim before
it may be used to establish cause for a procedural default.”) (internal citations and quotations
omitted). The issue, then, is whether the petitioner has exhausted his claim of ineffective assistance
of trial counsel for failing to raise the petitioner’s Sixth Amendment claim.
The state habeas judge did review whether counsel rendered ineffective assistance in the
first trial in failing to raise the Sixth Amendment claim. See Saunders, 2011 WL 1086895, at *10.
The state habeas judge found that trial counsel did not have standing to object because he did not

12

represent the woman whom the petitioner appointed by power of attorney. See id. The judge also
found that the petitioner was not prejudiced by the prosecutor’s review of the documents. See id.
The petitioner appealed the habeas court’s finding on the ineffective assistance of counsel
claim that he had not been prejudiced. See Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App.
R. at 26-28. The Connecticut Appellate Court affirmed the lower court. See Saunders, 137 Conn.
App. at 508-12, 48 A.3d at 739-40. The petitioner did not raise this claim in his Petition for
Certification to the Connecticut Supreme Court. See Pet. For Certification (August 21, 2012). The
ineffective assistance claim is, therefore, unexhausted.
4.

Ground One Is Dismissed Without Prejudice

Because the ineffective assistance claim is unexhausted, this court cannot determine
whether it constitutes cause and prejudice to excuse the procedural default of Ground One. 6

6

Nor has the petitioner shown that failure to consider this claim would result in a
fundamental miscarriage of justice, that is, “the conviction of one who is actually innocent.”
Murray, 477 U.S. at 496. To meet this exception, the petitioner must present “evidence of
innocence so strong that a court cannot have confidence in the outcome of the trial unless the court
is also satisfied that the trial was free of nonharmless constitutional error . . . .” Schlup v. Delo,
513 U.S. 298, 316 (1995). To establish a credible claim of actual innocence, a petitioner must
support his claim “with new reliable evidence-whether it be exculpatory scientific evidence,
trustworthy eye-witness accounts, or critical physical evidence-that was not presented at trial.” Id.
at 324. Actual innocence requires a showing of factual innocence, not “legal innocence.” Sawyer
v. Whitley, 505 U.S. 333, 339 (1992).
The petitioner does not argue that he is innocent of shooting the victim. He contends, however,
that the jury should have found him not guilty because he acted in self-defense. A claim that
one’s conduct was justified by the doctrine of self-defense is a claim of legal innocence, not
actual innocence. See Doe v. Menefee, 391 F.3d 147, 162 (2d Cir. 2004) (Actual innocence
requires “not legal innocence, but factual innocence”), cert. denied, 564 U.S. 961 (2005); Ellis v.
Hargett, 302 F.3d 1182, 1186, n.1 (10th Cir. 2002) (finding that actual innocence exception did
not apply to petitioner’s claim that he is legally innocent because his conduct was justified by the
doctrine of self-defense, on which the jury was not accurately instructed); cert. denied, 537 U.S.
1236 (2003); Moleterno v. Nelson, 114 F.3d 629, 636 (7th Cir. 1997) (holding that petitioner was
not entitled to miscarriage of justice exception to cause and prejudice standard because he
asserted that he was legally innocent based on a claim of self-defense as opposed to actually
innocent of murder); Garbut v. Conway, 05 Civ. 9898, 2009 WL 2474099, at *2-3 (S.D.N.Y.
13

Murray, 477 U.S. at 488-89. Therefore, the Court dismisses Ground One without prejudice to
reopening after the petitioner has exhausted his claim of ineffective assistance of counsel.
To obtain state court review of the claim of ineffective assistance of counsel that the
petitioner contends shows cause and prejudice to excuse the procedural default in Ground One, the
petitioner would be required to seek leave to file an untimely second petition for certification to
the Connecticut Supreme Court. Neither party addresses whether such a petition would be futile.
The court notes that Connecticut’s appellate rules of practice include provisions allowing the
Connecticut Appellate and Supreme Courts to interpret the rules liberally to “advance justice,”
Conn. Prac. Book § 60-1, and to suspend the rules “for . . . good cause shown,” Conn. Prac. Book
§ 60-3. The court expresses no opinion as to whether the Connecticut Supreme Court should invoke
those provisions in this case.7
B.

Ground Two

The petitioner claims that the trial court denied his Fifth Amendment right against double
jeopardy when it refused to poll the jury as to which charge it was deadlocked on prior to declaring
a mistrial. As a result, the state re-tried the petitioner on a lesser-included offense of manslaughter

Aug. 12, 2009) (noting that fundamental miscarriage of justice exception “exists to protect those
who are ‘entirely innocent’”) quoting Schulp v. Delo, 513 U.S. 298, 321 (1995)); Staten v.
Parker, No. CIV-08-0655-F, 2009 WL 522910, at *8 (W.D. Okla. Mar. 2, 2009) (petitioner’s
“allegations of self-defense suggest only legal innocence and are insufficient to overcome the
procedural default”). Because the petitioner has not shown cause or a fundamental miscarriage of
justice, the grounds asserting claims of prosecutorial misconduct are procedurally defaulted and
are not subject to review, absent a showing of cause and prejudice.
7

The court does not mean to suggest that in every case under 28 U.S.C. § 2254, the
exhaustion requirement demands that a petitioner seek leave from the state’s highest court to file
an untimely appeal raising issues that could have been brought before. Under the circumstances of
this case, however, which include the fact that the petitioner was pro se on his appeal of the state
habeas proceeding, the court finds that pursuing this additional potential avenue of relief is
necessary to satisfy the exhaustion requirement.
14

in the first degree. The parties do not dispute that this claim was exhausted on appeal of the
petitioner’s conviction. The court agrees that ground two is exhausted. However, as discussed
below, the court dismisses ground two without prejudice to reopening because this is a mixed
petition.
C.

Ground Three
1.

Ground Three Contains a Due Process Claim and an
Ineffective Assistance of Counsel Claim

This ground includes two claims. First, the petitioner asserts that the State of Connecticut
denied him due process under the Fourteenth Amendment when the prosecutor charged him in a
substitute information with two separate offenses as alternative ways of committing one offense.
Second, the petitioner asserts a claim of ineffective assistance of trial counsel for failing to object
to the substitute information. See Am. Pet. Writ Habeas Corpus at 86-87.
2.

Whether the Due Process Claim Is Exhausted

The respondent concedes that the due process claim was presented to the highest state
court. See Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, at 22. The court agrees that the
petitioner has exhausted this claim in ground three. This is a claim of prosecutorial misconduct,
which is itself a due process claim, and a petitioner does not need to provide a citation to a
particular constitutional article, section, or clause to present an issue, but must simply give the
state court notice of the constitutional nature of the claim. E.g., Smith v. Phillips, 455 U.S. 209,
219 (1982) (“Past decisions of this Court demonstrate that the touchstone of due process analysis
in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the
prosecutor.”); St. Helen v. Senkowski, 374 F.3d 181, 182 (2d Cir. 2004); see also Resp’t’s Mem.
Opp’n Pet. Writ Habeas Corpus, App. M., at 34 (citing State v. Singh, 259 Conn. 693 (2002) (claim

15

of prosecutorial misconduct under due process clause of Fourteenth Amendment to United States
Constitution)).
3.

Whether the Due Process Claim Is Cognizable

The respondent argues, however, that the issue is not reviewable by a federal habeas court
because “it is a state law claim of statutory interpretation and legislative intent.” See Resp’t’s Mem.
Opp’n Pet. Writ Habeas Corpus, at 22. “In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”
Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). See also 28 U.S.C. § 2254(a) (permitting “an
application for a writ of habeas corpus . . . only on the ground that [the petitioner] is in custody in
violation of the Constitution, laws, or treaties of the United States.”) “[I]t is not the province of a
federal habeas court to reexamine state-court determinations on state-law questions.” Estelle, 502
U.S. at 67-68. Thus, “[a] claim that a state conviction was obtained in violation of state law is not
cognizable in federal court.” Howard v. Walker, 406 F.3d 114, 121 (2d Cir. 2005) (citing Estelle,
502 U.S. at 68). Because, as discussed below, the petition before the court is a mixed petition, the
court declines to decide this dispute at this time. If the petitioner moves to reopen this petition after
exhausting his state remedies, the court will decide whether this claim is cognizable.8

8

The court notes that while the respondent argues that this claim is not cognizable he offers
little analysis, other than to say that the issue is not reviewable by a federal habeas court because
“it is a state law claim of statutory interpretation and legislative intent.” See Resp’t’s Mem. Opp’n
Pet. Writ Habeas Corpus, at 22. The respondent does refer to the Connecticut Appellate Court’s
decision construing Conn. Gen. Stat. § 53a-55(a). However, that portion of the court’s decision
addressed whether the petitioner’s lawyer rendered ineffective assistance in failing to object to the
prosecutor’s charge, not the issue of prosecutorial misconduct. Saunders, 137 Conn. App. at 50306.
16

4.

Whether the Ineffective Assistance of Counsel Claim Is Exhausted

The second claim in ground three is a claim of ineffective assistance of counsel. The
petitioner contends that trial counsel was ineffective in failing to object to the substitute
information. See Am. Pet. Writ Habeas Corpus at 86-87. This claim was raised by the petitioner
in the third state habeas petition. See Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App. M,
Count 21. The habeas judge addressed the claim and found that counsel was not ineffective for
failing to object to the substitute information because the sole count in the information did not
charge the petitioner with two separate offenses. See Saunders, 2011 WL 1086895, at *5.
The petitioner raised this claim of ineffective assistance of counsel in his appeal of the
habeas decision to the Connecticut Appellate Court. See Saunders, 137 Conn. App. at 503-07, 48
A.3d at 736-37. He did not raise this claim of ineffective assistance in his petition for certification
to the Connecticut Supreme Court. See Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App. U.
The petitioner could attempt to exhaust this claim by seeking leave to file a late second petition
for certification as discussed above.
Thus, in ground three, the first claim is exhausted9 and the second claim is unexhausted.
The court, therefore, dismisses ground three without prejudice.

The Connecticut Appellate Court determined that the petitioner’s claims of prosecutorial
misconduct were procedurally defaulted. Saunders, 137 Conn. App. at 498-500. As the respondent
has not raised the issue of procedural default as to ground three, the court declines to address it.
See Trest v. Cain, 522 U.S. 87, 89 (1997) (“A court of appeals is not ‘required’ to raise the issue
of procedural default sua sponte. It is not as if the presence of a procedural default deprived the
federal court of jurisdiction, for this Court has made clear that in the habeas context, a procedural
default, that is, a critical failure to comply with state procedural law, is not a jurisdictional
matter.”).
17
9

D.

Ground Four
1.

Ground Four Is a Claim of Ineffective Assistance of Counsel

The petitioner contends that trial counsel was ineffective for failing to object to the court’s
instruction to the jury regarding the charge of first degree manslaughter in violation of Conn. Gen.
Stat. §§ 53a-55(a)(1) and 53a-55(a)(3) as merely alternative methods of committing a single
offense and the instruction to the jury “to decide one of them,” referring to intentional or reckless
manslaughter. See id. at App. M at 27-30.
2.

Whether Ground Four Is Exhausted

This ineffective assistance of counsel claim was raised in the third state habeas petition and
was decided by the habeas judge. See Saunders, 2011 WL 1086895, at *6-10. In addition, the
petitioner raised this ineffective assistance of counsel claim in his appeal of the decision of the
habeas judge. See Saunders, 137 Conn. App. at 506-08, 48 A.3d at 737-39. The petitioner also
raised this claim of ineffective assistance of trial counsel in his petition for certification to the
Connecticut Supreme Court. See Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App. U.
Accordingly, ground four is exhausted.
3.

Whether Ground Four is Procedurally Defaulted

As noted, if a state court declines to address a claim because the prisoner did not meet a
state procedural requirement and the state court decision is based on independent and adequate
procedural grounds, then a federal habeas court will not review the merits of the claim. See Walker
v. Martin, 562 U.S. 307, 316 (2011). Here, the state courts did not decline to hear this claim
because of a procedural defect. Rather, the state courts addressed the claim on the merits. See
Saunders, 137 Conn. App. at 505-08, 48 A.3d at 737-39 (noting that “[t]he petitioner also claims
that the court improperly rejected his claim that his trial counsel rendered ineffective assistance by
18

failing to object to jury instructions,” and holding that “the petitioner cannot prove that he was
prejudiced as a result of the court’s instruction.”). Therefore, ground four is not procedurally
defaulted.
However, because this is a mixed petition, the Court dismisses ground four without
prejudice.
E.

Grounds Five and Six
1.

Grounds Five and Six Are Claims of Ineffective Assistance of Counsel

These two claims allege ineffective assistance of trial counsel in various ways. In ground
five, the petitioner asserts that trial counsel failed to object to the introduction of the 911 tapes
from the date of the shooting of the victim. See Am. Pet. Writ Habeas Corpus at 90. In ground six,
the petitioner claims that trial counsel failed to challenge the state’s claim that the victim was not
armed when the petitioner allegedly shot him. See id. at 91.
2.

Whether Grounds Five and Six Are Exhausted

Both claims were raised in the third state habeas petition and on appeal to the Connecticut
Appellate Court from the decision denying that habeas petition. See Resp’t’s Mem. Opp’n Pet.
Writ Habeas Corpus, App. M, Counts 1, 2, 6, 12 & 13 and App. R, Claim III. Neither claim was
raised by the petitioner in the petition for certification to the Connecticut Supreme Court. See id.
at App. U. Thus, both ground five and ground six are unexhausted. The petitioner may seek to
exhaust this claim by—as outlined above—seeking leave to file a late second petition for
certification to the Connecticut Supreme Court. The court dismisses without prejudice grounds
five and six.

19

3.

Whether Grounds Five and Six Are Procedurally Defaulted

Grounds five and six are not procedurally defaulted because the Connecticut Appellate
Court addressed both claims on the merits, rather than holding that the claims were procedurally
deficient under state law. Although the Connecticut Appellate Court did not explicitly address the
claim in ground six, the Connecticut Appellate Court did affirm the state habeas court’s rejection
of his ineffective assistance claims. Id., 137 Conn. App. at 500, 48 A.3d at 734. As for ground five,
the Connecticut Appellate Court held that “[b]ecause there was no credible evidence that the [911]
tapes had been tampered with, the petitioner cannot then prove that his trial counsel’s performance
was deficient for failing to object to the admission of the tapes on the basis that they had been
tampered with.” Saunders, 137 Conn. App. at 503, 48 A.3d at 736. Therefore, grounds five and
six are not procedurally defaulted because the state courts did not decline to review those claims
on the basis of a state procedural rule. See Walker v. Martin, 562 U.S. 307, 316 (2011).
F.

Grounds Seven, Eight, and Nine
1.

Grounds Seven, Eight, and Nine Are Claims of Prosecutorial Misconduct

These claims assert various ways in which the prosecutor’s conduct was improper both
during the trial and at sentencing. See Am. Pet. Writ Habeas Corpus at 92-98.
2.

Whether Grounds Seven, Eight, and Nine Are Exhausted

These claims were raised in the third state habeas petition, but were not reviewed by the
habeas judge because he found that they had not been raised on direct appeal and were procedurally
defaulted. See Saunders, 2011 WL 1086895, at *2-3. The judge did, however, review one claim
of prosecutorial misconduct in deciding the claim of ineffective assistance of appellate counsel.
See id. at *11. That claim related to the alleged use of visual aids by the prosecutor during his
closing. See id.
20

The petitioner challenged in the appellate court the habeas court’s conclusion that the
prosecutorial misconduct claims were procedurally barred. He also appealed the habeas court’s
ruling about prosecutorial misconduct as to the ineffective assistance of appellate counsel claim.
See Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App. R, Claim I & VII. The Appellate Court
concluded that the trial court had properly determined that the claims of prosecutorial misconduct
were procedurally defaulted and that the petitioner had failed to allege or prove facts to support a
finding of cause and prejudice to excuse the default. See Saunders, 137 Conn. App. at 498-500, 48
A.3d at 733-34. In reviewing the claim of ineffective assistance of appellate counsel, the Appellate
Court determined that the prosecutor had not engaged in misconduct when he allegedly displayed
his written thoughts and propositions of law to the jury during his closing argument in the context
of deciding the claim of ineffective assistance of appellate counsel. See id. The petitioner did not
raise any of his claims of prosecutorial misconduct in the petition for certification to the
Connecticut Supreme Court. See Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App. U.
Accordingly, grounds seven, eight, and nine are not exhausted.
3.

Whether Grounds Seven, Eight, and Nine Are Procedurally Defaulted

The respondent argues that grounds seven through nine are procedurally defaulted because
the Connecticut Appellate Court declined to review the merits of those grounds based on an
adequate and independent state procedural rule. The Connecticut Appellate Court concluded that
the claims of prosecutorial misconduct had not been raised on direct appeal and were procedurally
defaulted. See Saunders, 137 Conn. App. at 498-500, 48 A.3d at 733-34. Furthermore, the court
found that appellate counsel’s decision not to raise prosecutorial misconduct claims on direct
appeal did not constitute deficient performance. See id. Thus, the court concluded that the

21

petitioner had failed to show cause or prejudice to excuse the procedural default of those claims.
See id. at 500, 48 A.3d at 734.
Ground seven of the present petition asserts multiple instances of alleged prosecutorial
misconduct during counsel’s closing argument. One of those instances of misconduct includes the
claim that the prosecutor improperly displayed his written thoughts and propositions of law to the
jury. Because this claim was presented to the state appellate court, this claim of prosecutorial
misconduct may not be procedurally barred if the petitioner may raise it in state court, for example,
by to seeking leave to file an untimely second petition for certification to the Connecticut Supreme
Court.
As in ground one, the Court cannot determine whether ineffective assistance of counsel
constitutes cause and prejudice to excuse any procedural default because the petitioner has not
exhausted his ineffective assistance of counsel claim. Consequently, the alleged ineffective
assistance of counsel cannot constitute cause to excuse procedural default at this time. Grounds
seven through nine are unexhausted and the petitioner has not exhausted his ineffective assistance
claims, which he claims constitute cause and prejudice.10 Therefore, the Court dismisses grounds
seven through nine without prejudice to reopening after the petitioner has exhausted his claim of
ineffective assistance of counsel.
G.

Ground Ten
1.

Ground Ten Is a Due Process Claim

The petitioner contends that the judge in his first criminal trial erred by denying his
ballistics expert the opportunity to compare the results of tests he had performed on gunshot

10

Just as in ground one, there is no showing of a fundamental miscarriage of justice.
22

residue patterns found at the scene of the shooting to the results of the State of Connecticut’s
ballistics expert.
2.

Whether Ground Ten Is Exhausted

The petitioner describes this claim as a denial of his due process right to a full and fair trial.
This claim of trial court error was not raised by the petitioner on direct appeal or in the state habeas
petition. See Saunders, 267 Conn. at 365-66, 838 A.3d at 190; Resp’t’s Mem. Opp’n Pet. Writ
Habeas Corpus, Apps M, R, U. The petitioner has not exhausted ground ten.
3.

Whether Ground Ten Is Procedurally Defaulted

The petitioner was represented by counsel in the hearings held in the third state habeas
matter and until the decision of the habeas judge. See Resp’t’s Mem. Opp’n Pet. Writ Habeas
Corpus, App. V. On appeal from the denial of the state habeas decision, the petitioner elected to
proceed pro se. See Pet.’r’s Reply to Mem. Opp’n Pet. Writ Habeas Corpus, Doc. No. 25 at 20;
Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App. R. Thus, with regard to ground ten, the court
cannot discern why the petitioner cannot file another state habeas petition arguing that the attorney
who represented him in the first state habeas proceeding was ineffective for failing to raise or
adequately brief and present those claims in the first state habeas petition to establish cause and
prejudice to overcome any procedural default. The petitioner may still seek review of those claims
in state court. Therefore, the Court dismisses ground ten without prejudice to reopening after the
petitioner has exhausted his claim.
H.

Ground Eleven
1.

Ground Eleven Contains Four Claims of Ineffective Assistance of Counsel

The petitioner asserts that trial counsel was ineffective for failing to call four different types
of expert witnesses to challenge the State of Connecticut’s theories and evidence supporting the
23

charge against him. See Am. Pet. Writ of Habeas Corpus at 101-05. Ground Eleven contains four
claims.
2.

Whether Ground Eleven Is Exhausted

The first and second claims in ground eleven pertain to counsel’s failure to hire expert
witnesses who could have testified about evidence at the crime scene, including blood evidence
on the ceiling and the availability of exits from the area where the shooting occurred, and who
could have challenged the medical examiner’s findings regarding the bullets found in the victim’s
body. These claims were raised in the third state habeas petition. See Resp’t’s Mem. Opp’n Pet.
Writ Habeas Corpus, App. M, Counts 3, 4, 19. Because petitioner’s attorney did not brief or offer
evidence on those claims, the habeas judge did not address them. See Saunders, 2011 WL 1086895,
at *3-*10 (“The petitioner only presented evidence on . . . [the] specific allegations that [trial
counsel (1) failed to present evidence that the victim was armed, (2) failed to object to the substitute
information, (3) failed to object to the jury charge, (4) failed to object to the admission of 911
tapes, and (5) failed to object to the subpoena of the woman having power of attorney]; only those
allegations will be reviewed.”). The petitioner did not raise these claims on appeal of the denial of
the state habeas petition. See Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, Apps M, R, U. Thus,
the first and second claims of ineffective assistance of counsel are unexhausted.
The third claim pertains to counsel’s alleged failure to secure an expert witness who might
testify about the 911 tapes. That claim is also raised in ground five of the present petition. As
indicated above, claim three is not exhausted because it was not raised in the petition for
certification seeking review by the Connecticut Supreme Court of the decision of the Appellate
Court dismissing the appeal of the denial of the third state habeas petition. The petitioner could

24

seek leave to file an untimely second petition for certification of this claim to the Connecticut
Supreme Court, as discussed above.
In the fourth claim of ground eleven, the petitioner contends that trial counsel was
ineffective for neglecting to call an expert in the use of self-defense to testify at trial. This claim
of ineffective assistance was not raised in the state habeas petition or on appeal from the dismissal
of the petition. Thus, it is not exhausted. Accordingly, none of the claims in ground eleven have
been fully exhausted.
3.

Whether Ground Eleven Is Procedurally Defaulted

The respondent argues that the ground eleven is procedurally barred. With regard to some
of the claims in ground eleven, the state habeas court declined to address them under a state
procedural rule. See Saunders, 2011 WL 1086895, at *10 (“[S]ince the petitioner has presented
little to no evidence on these other claims and has not adequately briefed them, the Court declines
to address them.”) (citing Raynor v. Commissioner of Correction, 177 Conn. App. 788, 796-97,
981 A.2d 517 (2009)). As in ground one, the Court cannot determine whether ineffective assistance
of habeas counsel constitutes cause and prejudice to excuse this procedural default because the
petitioner has not exhausted such an ineffective assistance of counsel claim. As to those claims,
the petitioner may file a second state habeas petition arguing that the attorney who represented him
in the first state habeas proceeding was ineffective for failing to raise or adequately brief and
present those claims in the first state habeas petition.
Based on the court’s review of the petitioner’s grounds and the grounds that were raised
on direct appeal and on collateral review in the third state habeas petition, the present amended
petition contains exhausted claims and unexhausted claims. Thus, it is a mixed petition.

25

V.

Stay and Abeyance or Dismissal
A.

A Mixed Petition Should Not Be Dismissed Outright When a Petitioner
Shows Good Cause and Doing So Would Prevent the Petitioner From
Obtaining Federal Review of Federal Claims

Traditionally, a mixed petition that contains both exhausted and unexhausted claims is
dismissed without prejudice to refiling another federal habeas corpus action after all claims have
been exhausted. See Slack v. McDaniel, 529 U.S. 473, 486 (2000). In light of the one-year
limitations period for filing a federal habeas action, the Second Circuit has directed district courts
not to dismiss a mixed petition if an outright dismissal would preclude a 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), cert. denied,
534 U.S. 1015 (2001). In 2005, the Supreme Court held that “stay and abeyance should be
available only in limited circumstances,” i.e., “when the district court determines there was good
cause for the petitioner’s failure to exhaust his claims first in state court,” the unexhausted claims
are not “plainly meritless,” and where the petitioner is not engaging in “abusive litigation tactics
or intentional delay.” Rhines v. Weber, 544 U.S. 269, 277-78 (2005).
B.

The Petitioner Has Shown Good Cause and an Outright Dismissal
Would Prevent the Petitioner From Obtaining Federal Review
Because the Limitations Period Has Expired

The limitations period commences when the conviction becomes final and is tolled while
a properly filed application for post-conviction relief is pending in state court. See 28
U.S.C. § 2244(d); Rivas v. Fischer, 687 F.3d 514, 533 (2d Cir. 2012). The limitations period began
to run on May 4, 2004, the date after the United States Supreme Court denied the petition for writ
of certiorari seeking review of the decision of the Connecticut Supreme Court affirming the
26

petitioner’s conviction. See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001) (holding in case
where petitioner had appealed to state’s highest court, direct appeal also included filing petition
for writ of certiorari in Supreme Court or the expiration of time within which to file petition), cert.
denied, 534 U.S. 924 (2001). The limitations period was tolled during the pendency of petitioner’s
first state habeas petition, which he filed on March 23, 2004. The state habeas petition became
final on July 27, 2005, when the petitioner withdrew the petition. The limitations period began to
run on July 28, 2005, and ran for 167 days until the petitioner filed his second state habeas petition
on January 11, 2006. The limitations period was tolled until January 23, 2006, when a Connecticut
Superior Court judge declined to review the petition. The limitations period began to run again on
January 24, 2006, and ran for eleven days until the petitioner filed his third state habeas petition
on February 3, 2006. The petitioner filed his fourth state habeas petition in April 2011, while the
third petition was still pending. The fourth state habeas petition became final on May 16, 2013,
when the petitioner withdrew his appeal.
The present petition was filed on April 20, 2013, before the petitioner withdrew his fourth
state habeas petition. Thus, a total of 178 days of the limitations period elapsed from the date on
which the petitioner’s direct appeal of his conviction became final until the conclusion of the fourth
state habeas petition. Although the present petition was filed within the one-year limitations period,
the filing of a federal habeas petition does not toll the running of the one-year limitations period.
See Duncan v. Walker, 533 U.S. 167, 181-82 (2001). Accordingly, the one-year limitations period
has now expired and if the court were to dismiss the petition without prejudice to permit petitioner
to exhaust his state remedies as to the unexhausted claims, he would be barred from re-filing a
habeas petition in this court including the exhausted claims.

27

C.

The Court Will Dismiss the Petition Without Prejudice To Reopening
To Preserve the Petitioner’s Ability To Obtain Federal Review

This court may stay and hold in abeyance the petition only in the “limited circumstances”
described in Rhines, which include a requirement that the petitioner demonstrate “good cause” for
his failure to exhaust. Because the petitioner has alleged that his failure to exhaust some of his
claims was due to ineffective assistance of habeas counsel, his failure to exhaust certain ineffective
assistance of counsel claims on appeal of the dismissal of the third state habeas petition was
arguably due to the fact that he was proceeding without the assistance of counsel, and the petitioner
would be time-barred from filing another petition, the court concludes that the petitioner has
demonstrated good cause not to dismiss the petition outright. See Schouenborg v. Superintendent,
Auburn Correctional Facility, No. 08-CV-2865(JS), 2013 WL 5502832, at *10 (E.D.N.Y. Sept.
30, 2013) (“Even without a precise definition of good cause, there is a general consensus that an
ineffective assistance of counsel claim itself is good cause.”) (internal quotation marks and
citations omitted). In addition, the court cannot determine, at this point in time, that the ineffective
assistance of counsel claims are “plainly” lacking in merit. Rhines, 546 U.S. at 277 (stay is only
appropriate if the petitioner had good cause for failure to exhaust claim and can demonstrate claim
is not “plainly meritless”).
The court concludes that dismissing this case without prejudice to reopening it after
completion of the exhaustion process offers the petitioner the same protection as the issuance of a
stay of this case pending exhaustion. By permitting the petitioner to reopen this case after he has
completed exhaustion of his state court remedies, the danger that a subsequent new petition would
likely be barred by the statute of limitations is eliminated. Under either procedure, the court would
require the petitioner to file a motion or notification with the court after completion of the

28

exhaustion process in state court. Accordingly, the amended petition will be dismissed without
prejudice to reopening after the petitioner has exhausted his unexhausted claims.
VI.

Conclusion
The Amended Petition for Writ of Habeas Corpus [Doc. No. 14] is DISMISSED without

prejudice. The petitioner may file a motion to reopen this case after he has fully exhausted his
available state court remedies as to all grounds in the amended petition.11
Within thirty days after the petitioner has completed the exhaustion of his state court
remedies as to all grounds in the petition, the petitioner shall file a motion to reopen this case
reporting that all grounds have been fully exhausted and that he wishes to reopen this case. The
motion must be accompanied by an amended petition for writ of habeas corpus including the
grounds he seeks to have the court consider and copies of any state court decisions documenting
the exhaustion of those grounds.
The court concludes that jurists of reason would not find it debatable that petitioner failed
to exhaust his state court remedies with regard to the grounds in the petition noted in this decision.
Thus, 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

11

Petitioner is informed that he also has the option of proceeding only as to the exhausted
claims for relief. If so, he must file a motion to reopen seeking to proceed as to the exhausted
claims and to withdraw the unexhausted claims. Any such motion to reopen should be filed
within thirty days of the date of this order. Petitioner is cautioned, however, that if he proceeds
only as to the exhausted claims, with the intention of presenting the unexhausted claims to this
court after they have been exhausted, he will run the risk that any such subsequent petition will
not be considered by this court because it will be a second or successive petition. See 28 U.S.C.
2244(b).
29

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.

IT IS SO ORDERED.

/s/
Michael P. Shea, U.S.D.J.
Dated:

Hartford, Connecticut
July 12, 2016

30