Janulawicz v. Commissioner of Corrections
Filing
21
RULING AND ORDER granting 10 Motion to Dismiss. The Clerk may close the case. Signed by Judge Robert N. Chatigny on 9/30/2015. (Rickevicius, L.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RICHARD J. JANULAWICZ,
:
Petitioner
:
V.
:
CT COMMISSIONER OF
CORRECTION,
Case No. 3:14cv1136 (RNC)
:
:
:
Respondent
RULING AND ORDER
Petitioner, a Connecticut inmate proceeding pro se, brings
this action for a writ of habeas corpus pursuant to 28 U.S.C. §
2254.
Respondent has moved to dismiss the amended petition in
its entirety.
The motion to dismiss is granted for substantially
the reasons stated in respondent's supporting memorandum.
I.
Background
In 2002, petitioner was charged with criminal possession of
a firearm in violation of Conn. Gen. Stat. § 53a-217(a)(1),
carrying a dangerous weapon in violation of Conn. Gen. Stat. §
53-206(a), and threatening in the second degree in violation of
Conn. Gen. Stat. § 53a-62(a)(1).
The firearm that provided the
basis for the charges had been seized from petitioner’s residence
following a warrantless entry by officers who claimed to be
acting on the basis of consent provided by another occupant,
petitioner’s then-girl friend.
Petitioner moved to suppress the
firearm on the ground that the entry was unlawful but his motion
was denied after a three-day hearing.
See State v. Janulawicz,
No. H15NCF0217510T, 2004 WL 1051144 (Conn. Super. Ct. Apr. 6,
2004).
Petitioner then entered conditional pleas of nolo
contendere reserving a right to appeal the court’s denial of the
motion to suppress.
trial court’s ruling.
The Connecticut Appellate Court affirmed the
(2006).
See State v. Janulawicz, 95 Conn. App. 569
Petitioner did not seek certification to appeal from the
Connecticut Supreme Court.
In 2009, petitioner filed a habeas action in state court
challenging his counsel's failure to seek certification to appeal
from the Supreme Court.1
The habeas court granted the petition
in part and ordered that petitioner's right to file a petition
for certification to appeal to the Connecticut Supreme Court be
restored.
The Appellate Court reversed on the ground that
petitioner had failed to show that his counsel’s failure to seek
Supreme Court review was prejudicial.
See Janulawicz v. Comm'r
of Corr., 127 Conn. App. 576 (2011).
Petitioner appealed to the
Connecticut Supreme Court, which concluded that the habeas
1
Petitioner's state habeas petition also included three
additional claims but those claims were withdrawn with prejudice
at the beginning of a hearing on the habeas petition. See Ex. J
to Def.'s App'x, Transcript from Superior Court Hearing on Nov.
29, 2009) at 3-4 ("The Court: All right. So am I hearing you
correctly that the petitioner wishes to withdraw all claims
except the one petitioner seeks late filing to seek
certification? Mr. Twohhill: That's correct, Your Honor . . . .
The Court: All right. Well, Mr. Janulawicz, you understand all
the other claims, if they're withdrawn today, they'll be
withdrawn with prejudice. In other words you won't be able to
refile them . . . You understand, and you're in agreement with
that? The petitioner: Yeah; okay.").
2
petition was not ripe for adjudication because petitioner could
still file a late petition for certification to appeal.
Petitioner subsequently filed such a petition, which the Supreme
Court denied.
Petitioner now seeks federal habeas relief pursuant to 28
U.S.C. § 2254.
His amended petition can be interpreted as
attempting to assert the following claims: (1) petitioner’s
motion to suppress the firearm should have been granted; (2) the
Connecticut statutes prohibiting his possession of the firearm
violate his Second Amendment right to bear arms; (3) his counsel
was ineffective in failing to impeach a police officer who lied
on the stand at the suppression hearing; and (4) his counsel was
ineffective on appeal in that he failed to obtain a transcript of
the suppression hearing.
Respondent moves to dismiss all these
claims on the grounds that they are barred or procedurally
defaulted.
I agree that the claims should be dismissed.
II. Discussion
Pursuant to § 2254, federal district courts have
jurisdiction to hear an application for a writ of habeas corpus
on behalf of a person who is “in custody” pursuant to the
judgment of a state court.
28 U.S.C. § 2254(a).
At the time
petitioner commenced the present action, he was in custody
pursuant to the convictions at issue.
He did not file the
amended petition until after his sentence on those convictions
3
fully expired.2
Under Mayle v. Felix, 545 U.S. 644 (2005),
however, an amended petition relates back to an original petition
when they are both "tied to a common core of operative facts."
Id. at 664.
Here, the amended petition unquestionably relates
back to the original petition filed when petitioner was still in
custody pursuant to the judgment at issue.
Accordingly, the
Court has jurisdiction to address petitioner’s claims.
See
Carafas v. LaVallee, 391 U.S. 234, 239 (1968) (prisoner who filed
while in custody but was then released "is entitled to
consideration of his application for relief on its merits"); see
also James S. Liebman & Randy Hertz, Federal Habeas Corpus
Practice and Procedure 323-24 (3d ed. 1998) ("As long as the
habeas corpus petition was filed in federal court at a time when
the petitioner was in custody, an action challenging that custody
is not necessarily mooted by the petitioner's release from
custody prior to final trial and appellate adjudication of the
petition.").
Respondent moves to dismiss petitioner's first claim, which
challenges the denial of his motion to suppress the firearm, on
the ground that the claim is barred under Stone v. Powell, 428
U.S. 465 (1976).
In Powell, the Supreme Court held that "where
the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, the Constitution does not
2
Petitioner remains incarcerated as a result of a sentence
he received for another offense.
4
require that a state prisoner be granted federal habeas corpus
relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial."
Id. at 481-82.
The Second Circuit has determined that
opportunity for full and fair litigation is absent only when "a
state has provided no corrective procedures at all to address the
alleged fourth amendment violations" or "the state has provided a
corrective mechanism, but the defendant was precluded from using
that mechanism because of an unconscionable breakdown in the
underlying process."
Capellan v. Riley, 975 F.2d 67, 70 (2d Cir.
1992) (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir.
1977) (en banc)).
An opportunity for full and fair litigation of petitioner’s
fourth amendment claim was provided to him by state law.
As
outlined in Connecticut Practice Book §§ 41-12 through 41-17, the
state has a procedural framework in place whereby criminal
defendants may move to suppress evidence obtained as a result of
an allegedly unlawful search and seizure.
The opportunity
provided by state law to challenge the constitutionality of the
officer’s entry into petitioner’s residence satisfies the
requirements of Powell.
See Moyher v. Sieminski, No. 3:07 CV
1540CSH, 2009 WL 902387, at *3 (D. Conn. March 31, 2009)
(although petitioner did not file a motion to suppress or object
on Fourth Amendment grounds to any of the state's witnesses'
trial testimony, he could not bring his Fourth Amendment claim on
5
federal habeas because "all Powell requires is that a petitioner
have been provided the opportunity to do so" (emphasis in
original)).
Indeed, petitioner filed a motion to suppress, which
resulted in a three-day evidentiary hearing, a judgment and an
appeal.
Thus, there can be no doubt that his claim is barred by
Powell.
See Skinner v. Duncan, No. 01 CIV 6656 DAB AJP, 2003 WL
21386032, at *12 (S.D.N.Y. June 17, 2003) ("[S]tate corrective
process was not only available but was employed for
[petitioner's] Fourth Amendment claims, which therefore cannot
support a petition for a writ of habeas corpus.").3
Respondent moves to dismiss the remaining claims on the
grounds that they are unexhausted and procedurally defaulted.
Prior to seeking federal habeas relief, a state prisoner must
exhaust all available state remedies.
28 U.S.C. § 2254(b)(1)(A);
Vasquez v. Hillery, 474 U.S. 254, 257 (1986) ("[A] state prisoner
may initiate a federal habeas petition '[o]nly if the state
courts have had the first opportunity to hear the claim sought to
be vindicated.'" (quoting Picard v. Connor, 404 U.S. 270, 275-76
(1971))).
Exhaustion of state remedies means that "a petitioner
3
Petitioner does not argue that there was an
"unconscionable breakdown" in the state's corrective process. To
avoid the strictures of Powell on this basis, petitioner would
have to show a "breakdown in the state's process . . . that calls
into serious question whether a conviction is obtained pursuant
to those fundamental notions of due process that are at the heart
of a civilized society." Cappiello v. Hoke, 698 F. Supp. 1042,
1050 (E.D.N.Y. 1998). Some examples include bribing the trial
judge and the government's knowing use of perjured testimony.
See id. Nothing of the sort has been alleged here.
6
must present the substance of the same federal constitutional
claims that he now urges upon the federal courts to the highest
court in the pertinent state."
Aparicio v. Artuz, 269 F.3d 79,
89-90 (2d Cir. 2001) (internal quotation marks and citations
omitted).
Review in the highest court must be sought, even if
such review is discretionary and unlikely to be granted, because
petitioners must "give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round
of the State's established appellate review process."
O'Sullivan
v. Boerckel, 526 U.S. 838, 844 (1999) (quoting Brown v. Allen,
344 U.S. 433, 447 (1953)) (internal quotation marks omitted).
Thus, if a prisoner fails to seek state review from the highest
court within the time allotted by state law, the claim is
unexhausted.
Here, count two alleges ineffective assistance of appellate
counsel with respect to counsel's handling of the petition for
certification to the Connecticut Supreme Court on direct appeal
(indicating that petitioner disagreed with counsel as to the
argument presented in the petition) and count three alleges a
violation of petitioner's right to bear arms.
Petitioner has not
raised these claims in state court so they are unexhausted.
Count four alleges ineffective assistance of trial counsel
regarding counsel's questioning of a witness and count five
alleges ineffective assistance of appellate counsel regarding
counsel’s failure to adequately use a trial transcript.
7
Though
petitioner raised these claims in his state habeas petition, he
withdrew them with prejudice at the start of the state habeas
evidentiary hearing.4
See Knight v. Comm'r of Corr., 81 Conn.
App. 163, 164 n.1 (2004) (declining to review challenges to
counsel's pretrial investigation because claims specifically
abandoned at habeas challenge).
Thus, these claims also are
unexhausted.
Typically, when claims are unexhausted, a federal court
dismisses the claims without prejudice to refiling in state
court.
However, when a claim has never been presented to a state
court, a federal court has the power to deem the claim exhausted
when there is no question the claim would be procedurally
defaulted in state court.
Aparicio, 269 F.3d at 90 (citing Reyes
v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); see also Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991) (when petitioner failed to
exhaust state remedies and court to which he would be required to
present his claims in order to meet the exhaustion requirement
would now find the claims procedurally barred, federal habeas
courts must also deem the claims procedurally defaulted); James
v. Mazzuca, 387 F. Supp. 2d 351, 359-60 (S.D.N.Y. 2005)
("[B]ecause the state court would consider [petitioner's] new
claim procedurally barred, this Court must treat that claim as
'procedurally defaulted.'").
Generally, a claim that has been
procedurally defaulted in state court is barred from "federal
4
See supra note 1.
8
habeas review because the state procedural default serves as an
adequate and independent state ground for decision and the
federal opinion would therefore be merely advisory."
Newsome v.
Comm'r of Corr., No. 3:01 CV 1968(DJS), 2004 WL 2634457, at *4
(D. Conn. Nov. 17, 2004) (citing Coleman, 501 U.S. at 729-30).
Respondent argues that petitioner’s unexhausted claims
should be dismissed with prejudice as procedurally defaulted.
See Aparicio, 269 F.3d at 90 ("We have recently observed that
dismissal of a habeas claim on the ground that it was
procedurally defaulted 'differs crucially' from a dismissal for
failure to exhaust state remedies.
Dismissal for procedural
default is regarded as a disposition of the habeas claim on the
merits." (citing Turner v. Artuz, 262 F.3d 118, 122 (2d Cir.
2001)).
Respondent explains that petitioner cannot obtain state
habeas review of his 2004 convictions because he is no longer "in
custody" as a result of those convictions.
See Lebron v. Comm'r
of Correction, 274 Conn. 507, 530-31 (2005) overruled on other
grounds by State v. Elson, 311 Conn. 726 (2014) ("We conclude
that the habeas court properly determined that the collateral
consequences of the petitioner's expired conviction were
insufficient to render him in custody on that conviction.").
Respondent might well be correct.
However, “federal courts
generally resist finding a default unless the state has proven
unequivocally that no state remedies are unavailable."
Liebman & Randy Hertz Federal Habeas Corpus Practice and
9
James S.
Procedure 868 (3d ed. 1998)(citing Gordon v. Nagle, 2 F.3d 385,
388 n.4 (11th Cir. 1993).
On the present record, the Court
cannot say for certain that the pro se petitioner would be
procedurally barred if he were to seek relief in state court.
Thus, it is better to dismiss the claims without prejudice for
failure to exhaust.
See Hull v. Freeman, 991 F.2d 86, 91 (3d
Cir. 1993) (dismissing possibly defaulted claim on nonexhaustion
grounds in interest of "federal-state comity" so that state court
can determine whether petitioner qualifies for exception to state
procedural rule); Johnson v. Lewis, 929 F.2d 460, 464 (9th Cir.
1991) (when no state court had "concluded that [petitioner] . . .
is procedurally barred from raising his unexhausted . . . claim"
and state law did not clearly require finding of default,
district court should not have denied relief on procedural
default grounds; proper remedy was to dismiss claims for
nonexhaustion "without prejudice to refiling" after "exhaustion
of state remedies"); Meadows v. Legursky, 904 F.2d 903, 909 (4th
Cir. 1990) (en banc) ("If any reasonable possibility exists that
the state court may apply an exception to its procedural default
rule, the federal court should not apply a state procedural bar
to find that exhaustion is futile.").
III. Conclusion
Accordingly, respondent's motion to dismiss is hereby
granted.
The illegal search and seizure claim in count one is
dismissed with prejudice.
The claims in counts two through five
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are dismissed without prejudice.
The Clerk may enter judgment
and close the case.
So ordered this 30th day of September 2015.
___________/s/ RNC_____________
Robert N. Chatigny
United States District Judge
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