Moore v. Chapdelaine

Filing 4

RULING AND ORDER DISMISSING CASE. The Petition for Writ of Habeas Corpus is dismissed without prejudice for failure to exhaust state court remedies with respect to any claim raised in the petition. The Clerk is directed to enter judgment and close the case. Signed by Judge Stefan R. Underhill on 12/16/2014.(Pollack, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

TIMOTHY MOORE,
Petitioner,
PRISONER
Case No. 3:14CV1316 (SRU)

v.
WARDEN CHAPDELAINE,
Respondent.

RULING AND ORDER
The petitioner is currently an inmate at the MacDougall Correctional Institution in
Suffield, Connecticut. He brings this action pro se for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 challenging his 2011 state court conviction. For the reasons set forth below, the
petition is dismissed without prejudice.
I.

Procedural Background
In December 2011, in the Connecticut Superior Court for the Judicial District of

Hartford, the petitioner pleaded guilty to one count of robbery in the third degree in violation of
Connecticut General Statutes § 53a-136(a), and one count of sexual assault in the first degree in
violation of Connecticut General Statutes § 53a-70(a)(1). See Pet. Writ Habeas Corpus at 2. A
judge sentenced the petitioner to seventeen years of imprisonment. See id. The petitioner did
not appeal his conviction or sentence.
In March 2014, the petitioner filed a petition for writ of habeas corpus in the Connecticut
Superior Court for the Judicial District of Tolland at Rockville raising claims of ineffective
assistance of counsel and newly discovered evidence. 1 See id. at 3. That petition is still pending.

1

The petitioner refers to the case number of his state habeas petition as the number
1

See id. at 18.
2.

Standard of Review
A prerequisite to habeas relief under section 2254 is the exhaustion of all available state

remedies. See O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Rose v. Lundy, 455 U.S. 509,
510 (1982); Daye v. Attorney General of the State of New York, 696 F.2d 186, 190 (2d Cir.
1982), cert. denied, 464 U.S. 1048 (1982); 28 U.S.C. § 2254(b)(1)(A). The exhaustion
requirement is not jurisdictional; rather, it is a matter of federal-state comity. See Wilwording v.
Swenson, 404 U.S. 249, 250 (1971) (per curiam). The exhaustion doctrine is designed not to
frustrate relief in the federal courts, but rather to give the state court an opportunity to correct any
errors that may have crept into the state criminal process. See id. Ordinarily, the exhaustion
requirement has been satisfied if the federal issue has been properly and fairly presented to the
highest state court either by collateral attack or direct appeal. See O’Sullivan, 526 U.S. at 843
(citing Brown v. Allen, 344 U.S. 443, 447 (1953)). “[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.” Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990).
The Second Circuit requires the district court to conduct a two-part inquiry. First, the
petitioner must have raised before an appropriate state court any claim that he asserts in a federal
habeas petition. Second, he must “utilize[] all available mechanisms to secure appellate review
of the denial of that claim.” Lloyd v. Walker, 771 F. Supp. 570, 573 (E.D.N.Y. 1991) (citing
Wilson v. Harris, 595 F.2d 101, 102 (2d Cir. 1979)). A petitioner must present his federal

assigned to his state criminal case. Habeas petitions are assigned civil case numbers when they
are filed in state court. Connecticut Superior Court records reflect that the petitioner filed a state
habeas petition in March 2014, Moore v. Warden, State Prison, Case No. TSR-CV14-4006064S. See www.http://civilinquiry.jud.ct.gov (last visited November 20, 2014).
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constitutional claims to the highest state court before a federal court may consider the merits of
the claims. See Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). “[S]tate prisoners 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, 526 U.S. at 845.
III.

Discussion
The petitioner raises four claims in his petition. In grounds one, two and four, the

plaintiff claims that his attorney was ineffective in multiple ways. In ground three, the plaintiff
contends that the trial judge erred in denying his motion for permission to undergo a lie detector
test.
The petitioner has raised all four claims in his state habeas petition. The petitioner
concedes that the habeas petition remains pending in state court. As such, the petitioner has not
exhausted his available state court remedies before filing this action.
IV.

Conclusion
The Petition for Writ of Habeas Corpus [Doc. No. 1] is DISMISSED without prejudice

for failure to exhaust state court remedies with respect to any claim raised in the petition. 2 The
petitioner may re-file his federal habeas petition after he has exhausted his state court remedies. 3

2

The court notes that the Second Circuit has cautioned the district courts not to dismiss a
mixed petition containing exhausted and unexhausted claims where an outright dismissal would
preclude the petitioner from having all of his claims addressed by the federal court. The Second
Circuit advised the district court to stay the petition to permit the petitioner to complete the
exhaustion process and return to 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
“where an outright dismissal ‘could jeopardize the timeliness of a collateral attack.’”). Zarvela is
inapplicable to this case because this is not a mixed petition. None of the claims has been
exhausted.
3
As the petitioner is aware from information contained on page twenty of the habeas
petition form that he filed in this action, 28 U.S.C. § 2244(d)(1) imposes a one-year statute of
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The Clerk is directed to enter judgment and close this case.
The Supreme Court has held that,
[w]hen the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional
claims, a [certificate of appealability] should issue when the
prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural
ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000). In addition, the Court stated that, [w]here a plain

limitations on federal petitions for writ of habeas corpus challenging a judgment of conviction
imposed by a state court. The limitations period begins on the completion of the direct appeal or
the conclusion of the time within which an appeal could have been filed and may be tolled for
the period during which a properly filed state habeas petition is pending. See 28 U.S.C. § 2244;
Williams v. Artuz, 237 F.3d 147, 151 (2d Cir.), cert. denied, 534 U.S. 924 (2001).
It appears that the one-year statute of limitations may have expired before the petitioner
filed his state habeas petition in March 2014 and this federal petition in September 2014. A
judge sentenced the petitioner on December 15, 2011. Under Connecticut law, the petitioner had
twenty days, or until January 4, 2012, to file a direct appeal of his conviction. See Conn.
Practice Bk. § 63-1.
Petitioner indicates that he did not file a direct appeal, but rather filed a state habeas
petition. Once the time for filing a direct appeal to the Connecticut Appellate Court expired
without a direct appeal being filed, the possibility of petitioning the United States Supreme Court
for certiorari became moot. See Nara v. Frank, 264 F.3d 310, 314 (3d Cir. 2001) (noting that,
where petitioner did not appeal conviction, petitioner’s conviction became final at expiration of
time to file direct appeal in state court). Thus, the petitioner’s conviction became final on
January 4, 2012. The limitations period began to run the following day. The limitations period
expired one year later, on January 5, 2013. Superior Court records reflect that the petitioner did
not file his state habeas petition, Moore v. Warden, State Prison, Case No. TSR-CV14-4006064S, until March 18, 2014, after the limitations period expired. Thus, if the petitioner returns to
this court by filing a new habeas petition after he has exhausted his state court remedies, he will
need to demonstrate why the petition is not barred by the statute of limitations.
The United States Supreme Court has held that the doctrine of equitable tolling applies in
section 2254 cases. See Holland v. Florida, 560 U.S.631, 634 (2010). Equitable tolling may
only be applied in habeas cases in extraordinary and rare circumstances and requires the
petitioner to show that he has been pursuing his rights diligently, but extraordinary circumstances
prevented him from timely filing his petition. See Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005); Diaz v. Kelly, 515 F.3d 149, 153 (2d Cir.), cert. denied sub nom. Diaz v. Conway, 555
U.S. 870 (2008). The court makes no determination at this time whether any subsequent federal
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procedural bar is present and the district court is correct to invoke it to dispose of the case, a
reasonable jurist could not conclude either that the district court erred in dismissing the petition
or that the petitioner should be allowed to proceed further.” Id. This court concludes that a plain
procedural bar is present here; no reasonable jurist could conclude that the petitioner has
exhausted his state court remedies or that the petitioner should be permitted to proceed further.
Accordingly, a certificate of appealability will not issue.

SO ORDERED this 16th day of December 2014, at Bridgeport, Connecticut.
/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

petition will be barred by the statute of limitations.
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