Riles v. Warden

Filing 39

ORDER granting 33 Motion to Dismiss. See attached order for details. Signed by Judge Robert N. Chatigny on 3/29/2016. (Panchenko, I)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DANIEL A. RILES II,
Petitioner,

:
:
:
:
:
:
:
:
:

v.
WARDEN, STATE PRISON,
Respondent.

PRISONER
Case No. 3:14CV1420 (RNC)

RULING AND ORDER
Petitioner Daniel Riles, a Connecticut prisoner proceeding
pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. §
2254.

Respondent has moved to dismiss on the ground that

petitioner has failed to exhaust state remedies.

Petitioner

responds that inordinate delay in state proceedings allows him to
obtain federal review.

For reasons that follow, the motion to

dismiss is granted.
I.

Background
In February 2008, after a jury trial at which petitioner

proceeded pro se, petitioner was found guilty of attempted
robbery in the first degree and criminal possession of a firearm.
On June 10, 2008, petitioner was sentenced to fifteen years'
incarceration.

At the sentencing hearing, he was given appeal

forms including a form to be used to apply for a waiver of fees
and costs on appeal.

Petitioner’s appointed standby counsel,

Dennis P. McDonough, explained the forms to him.

Petitioner

signed and returned the forms to the clerk that day.
1

In mid- to late-July 2008, while incarcerated at Northern
Correctional Institution, petitioner received correspondence from
the clerk returning his application for a waiver of fees and
costs because his signature on the application was not notarized.
Still representing himself, petitioner had the form notarized and
mailed to the clerk's office.

The form was not docketed,

however, apparently because the time for filing the appeal had
expired.

As a result, the appeal was never perfected.

Petitioner states that he assumed the appeal had been filed and
was progressing.
In August 2009, petitioner inquired about the status of his
appeal.
filed.

The clerk’s office notified him that no appeal had been
Petitioner was informed that he could try to have his

right to appeal restored by filing a petition for writ of habeas
corpus in state court.
In November 2009, petitioner filed a state habeas petition.
He moved for appointment of counsel and Attorney Barbara
Sorrentino was appointed to represent him.

In April 2010, before

proceeding with the habeas case, Attorney Sorrentino filed a
motion in the Appellate Court seeking permission to file a late
appeal on petitioner’s behalf.
denied without explanation.

In July 2010, the motion was

Attorney Sorrentino did not seek

Supreme Court review of the denial by filing a petition for
certification to appeal.

2

In October 2012, after new counsel was appointed to
represent petitioner in the habeas case, an amended petition was
filed.

The amended petition claimed that petitioner’s right to

appeal his conviction had been denied in violation of due
process, Attorney Sorrentino had rendered ineffective assistance
in failing to seek certification, and Attorney McDonough’s
performance as standby counsel had been deficient in various
ways.
In December 2012, a day-long hearing was held on the claims
in the amended petition.

The hearing was continued to give

petitioner’s counsel an opportunity to consider whether to file
an amended petition alleging that the state presented perjured
testimony at the criminal trial.
the habeas petition resumed.

In July 2013, the hearing on

At that time, petitioner’s counsel

informed the court that in his opinion there was no legal basis
for any new claims.
In April 2014, the state habeas court issued a written
decision denying the petition.

See Riles v. Warden, TSR-CV09-

4003253-S, 2014 WL 2024902 (Conn. Super. Ct. April 21, 2014)).
The court ruled that it lacked authority to review the Appellate
Court’s denial of the motion for permission to file a late
appeal, the claim based on Attorney Sorrentino’s failure to seek
certification was not ripe (no petition for certification to file
a late appeal having been filed with the Supreme Court), and the

3

claims regarding Attorney McDonough’s performance as standby
counsel were unproven.
On May 23, 2014, petitioner filed a timely appeal, and
counsel was appointed to represent him.

Less than a month later,

his counsel submitted a letter to the clerk withdrawing the
appeal.

The letter explained that after consulting with counsel,

petitioner no longer wished to pursue the appeal.

Petitioner

then filed this action pro se.
The petition lists five grounds for relief: (1) petitioner
has been denied his right to appeal in violation of due process;
(2) the state presented false testimony at the criminal trial;
(3) Attorney McDonough rendered ineffective assistance as standby
counsel; (4) Attorney Sorrentino rendered ineffective assistance
as post-conviction counsel; and (5) the judge who denied
petitioner’s state habeas petition was biased against him.
II.

Discussion
A federal court may entertain a petition for habeas corpus

by a state prisoner if the prisoner claims that his custody
violates the Constitution or federal laws.

28 U.S.C. § 2254(a).

Before filing a habeas petition in federal court, a state
prisoner must exhaust state court remedies.

See O’Sullivan v.

Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. § 2254(b)(1)(A).
The exhaustion requirement is satisfied by presenting the factual
and legal bases for the federal claims to the highest court of

4

the state, either through direct appeal or a collateral
proceeding.

See O'Sullivan, 526 U.S. at 845; Galdamez v. Keane,

394 F.3d 68, 73-74 (2d Cir. 2005).

The exhaustion requirement

can be excused if "there is an absence of available State
corrective process" or "circumstances exist that render such
process ineffective."

28 U.S.C. § 2254(b)(1)(B).

In this case, two of the grounds for relief set forth in the
petition have not been presented to any state court: the claim
that the state presented perjured testimony at the criminal
trial; and the claim that the state habeas judge was biased.
With regard to these two claims, petitioner has not shown either
an absence of state corrective process or circumstances making
the state process ineffective.

Thus, the exhaustion requirement

prevents consideration of these claims.
The remaining claims in the petition were presented to the
state habeas court.

But they are unexhausted due to petitioner’s

withdrawal of his appeal.

Petitioner advances two arguments in

support of excusing the exhaustion requirement as to these
claims.

First, he argues that “egregious” delay by the state in

providing him with appellate review of his conviction entitles
him to unconditional release.

Second, he argues that withdrawal

of the habeas appeal was justified.

See Pet. (ECF No. 11) at 23

("[T]he appellate court already had their chance to remedy this
fundamental miscarriage of justice [and] would only further this

5

injustice [and] cause petitioner to remain incarcerated.").
Neither argument provides a basis for excusing petitioner’s
failure to exhaust as to these three claims.
In support of the first argument, petitioner emphasizes that
he has served more than half his lengthy sentence without
appellate review of his conviction.

Inordinate and unjustified

delay in state appellate proceedings may allow a petitioner to
seek federal review before state proceedings are completed.

See

Cody v. Henderson, 936 F.2d 715, 718-19 (2d Cir. 1991)(exhaustion
requirement excused by nine year delay in state appellate
process); Simmons v. Reynolds, 898 F.2d 865, 870 (2d Cir. 1990)
(“The doctrine of exhaustion . . . does not require a prisoner to
wait six years . . . or even three or four years before enlisting
federal aid . . . .").

But this is not a case in which the state

has unreasonably delayed hearing a criminal appeal.
Unfortunately, petitioner’s direct appeal never got off the
ground, apparently because of the late filing of the notarized
application for a waiver of fees and costs.
Inordinate and unjustified delay by the state in processing
a habeas claim may render the state remedy ineffective.

See

Chowlewinski v. Armstrong, No. 3:98CV1964(SRU), 2000 WL 303252,
*3 (D. Conn. Feb. 16, 2000).

In deciding whether delay has

rendered a state remedy ineffective, a federal court will
consider the status of the state proceeding.

6

See United States

ex rel. Goodman v. Kehl, 456 F.2d 863, 869 (2d Cir. 1972).

Delay

in processing a state habeas petition may be insufficient to
justify dispensing with the exhaustion requirement if a hearing
has been held and a ruling has been issued.

See Cristin v.

Brennan, 281 F.3d 404, 411 (3rd Cir. 2002).
In this case, the pre-hearing delay in the state habeas
proceeding was substantial.

After the Appellate Court denied

Attorney Sorrentino’s motion for permission to file a late
appeal, approximately two years passed before the hearing
commenced on the state habeas petition.

The docket sheet for the

state habeas case, which is available online, reflects little
activity of substance during this period.

Once the hearing

commenced, the proceeding moved forward at a customary pace until
petitioner withdrew his appeal.
It is not apparent that all the pre-hearing delay in the
state habeas case is fairly charged against the state.

More

importantly, Mr. Riles commenced this federal case after the
state habeas proceeding had gone to trial and a decision had been
issued on the merits.

When a previously-stalled state habeas

proceeding has come to life and progressed this far, a federal
court will give the state appellate courts an opportunity to hear
the claims.

See Wallace v. Dragovich, 143 Fed. App’x. 413,

418–19 (3rd Cir. July 22, 2005).
Petitioner correctly argues that a federal court may

7

dispense

with the exhaustion requirement when further state

litigation would be futile.

See Nix v. Whiteside, 475 U.S. 157,

163 n.3 (1986); Duckworth v. Serrano, 454 U.S. 1, 3 (1981).
he has not shown that his appeal was futile.

But

That the Appellate

Court previously refused to permit him to file a late appeal is
of no moment.

See Argiros v. Torres, No. 3:09CV1088(ATW), 2010

WL 2377111, at *2 (D. Conn. June 10, 2010) ("The fact that the
petitioner does not trust the state courts is not a sufficient
reason to excuse exhaustion of his claim.").

Comity dictates

that "a petitioner may not bypass state courts merely because
they may be unreceptive to the claim."

Jones v. Keane, 329 F.3d

290, 295 (2d Cir. 2003); see also Engle v. Isaac, 456 U.S. 107,
130 (1982) ("If a defendant perceives a constitutional claim and
believes it may find favor in the federal courts, he may not
bypass the state courts simply because he thinks they will be
unsympathetic to the claim.

Even a state court that has

previously rejected a constitutional argument may decide, upon
reflection, that the contention is valid.").
It is not apparent that petitioner is now procedurally
barred from obtaining relief in state court.

The Connecticut

Appellate Court appears to have jurisdiction to reinstate the
habeas appeal if it chooses to do so.

See, e.g., Janulawicz v.

Commissioner of Correction, 77 A.3d 113, 118-119 (Conn. 2013)
(discussing discretion of appellate courts to determine whether

8

to permit a late appeal to go forward); Conn. R. App. P. 60-2
(“The court may . . . on its own motion or upon motion of any
party . . . (6) order that a party for good cause shown may file
a late appeal, petition for certification, brief or any other
document, unless the court lacks jurisdiction to allow the late
filing.”); Conn. R. App. P. 60-3 (“In the interest of expediting
decision, or for other good cause shown, the court in which the
appeal is pending may suspend the requirements or provisions of
any of these rules in a particular case on motion of a party or
on its own motion and may order proceedings in accordance with
its direction.”).
In short, all the claims in the petition are unexhausted and
petitioner has not shown that his failure to exhaust can be
excused.

In these circumstances, the petition must be dismissed.

See Rose v. Lundy, 455 U.S. 509, 522 (1982) (imposing “total
exhaustion” requirement); Clarke v. Griffin, No. 13CIV4812NSRJCM,
2016 WL 206476, at *3 (S.D.N.Y. Jan. 14, 2016) (court has
discretion to stay case, rather than dismissing it, only if it
involves “a mixed petition”).
IV.

Conclusion
Accordingly, the motion to dismiss is hereby granted and the

petition is denied without prejudice to refiling after petitioner
has exhausted state court remedies.

Because petitioner has not

made a substantial showing of a denial of a constitutional right,

9

a certificate of appealability will not issue.

The Clerk may

close the case.
So ordered this 29th day of March 2016.

/s/ RNC
Robert N. Chatigny
United States District Judge

10