Torres v. Maldonado

Filing 15

The respondent's 11 motion to dismiss the petition for writ of habeas corpus is DENIED. Accordingly, the respondent is ORDERED to file a response on or before March 17, 2017, why the relief prayed for in the petition as to the exhausted claims set forth above should not be granted. Signed by Judge Michael P. Shea on 2/10/2017. (Connelly, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

MICHAEL TORRES

:
:
PRISONER
v.
:
CASE NO. 3:16cv925 (MPS)
:
WARDEN MALDONADO
:
______________________________________________________________________________
RULING ON MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
AND ORDER TO SHOW CAUSE
The petitioner, Michael Torres, is currently confined at Osborn Correctional Institution.
In this habeas corpus action filed pursuant to 28 U.S.C. § 2254, the petitioner challenges his
2004 conviction for sexual assault in the first degree and risk of injury to a minor.
I.

Procedural Background
Following a jury trial in July 2004, the petitioner was convicted of sexual assault in the

first degree and risk of injury to a minor. He was sentenced to a thirty-year term of
imprisonment, execution suspended after twenty-one years. Pet., Doc. No. 1, at 2.
On direct appeal, the petitioner argued that he was denied a fair trial because the court
improperly instructed the jury regarding the penetration element of sexual assault in the first
degree and the date of the offense. The Connecticut Appellate Court affirmed the conviction and
the Connecticut Supreme Court denied certification to appeal. State v. Michael T., 97 Conn.
App. 478, 905 A.2d 670, cert. denied, 280 Conn. 927, 909 A.2d 524 (2006).
In January 2005, the petitioner filed a state habeas action on the ground that trial counsel
was ineffective and he was actually innocent of the charge. He included six examples of
ineffective assistance, alleging that trial counsel failed to (1) present an expert in the pretrial

stage of the case regarding the petitioner’s propensity, or lack of propensity, to engage in sexual
abuse of a child; (2) present an expert at trial on the issue of the reliability of the victim’s
disclosure; (3) present an expert at the pretrial stage concerning the disease trichomonas; (4)
present an expert at trial concerning the disease trichomonas; (5) adequately investigate the case;
and (6) engage in effective pretrial discovery. Torres v. Warden, No. CV05-4000278-S, 2008
WL 2426600, at *10 (Conn. Super. Ct. May 28, 2008). The habeas court found that trial
counsel was ineffective in failing to present expert testimony on issues of the reliability of the
victim’s disclosures and the disease trichomonas. Id. at *13.
The respondent appealed. The petitioner did not file a cross-appeal regarding the other
four examples of ineffective assistance on which his petition was denied. The Connecticut
Appellate Court affirmed the judgment of the habeas court regarding trial counsel’s failure to
effectively challenge the state’s inculpatory medical evidence. Michael T. v. Commissioner of
Correction, 122 Conn. App. 416, 417-18, 999 A.2d 818, 819 (2010). The Connecticut Supreme
Court reversed on the issue of expert testimony regarding trichomonas and remanded the case to
the Appellate Court to consider the issue of expert testimony on the suggestibility of the victim
and the reliability of her recollections. Michael T. v. Commissioner of Correction, 307 Conn. 84,
103-04, 52 A.3d 655, 667 (2012). On remand, the Connecticut Appellate Court held that trial
counsel’s failure to present expert testimony on the reliability of the victim’s disclosures
constituted ineffective assistance. Michael T. v. Commissioner of Correction, 144 Conn. App.
45, 47, 71 A.3d 660, 662 (2013). Again, the Connecticut Supreme Court reversed. Michael T. v.
Commissioner of Correction, 319 Conn. 623, 624-26, 126 A.3d 558, 559-60 (2015).

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II.

The Federal Petition
The petitioner challenges his conviction on four grounds. In the first two grounds, the

petitioner asserts claims of improper jury instructions. He contends that the trial judge erred
when he explained the penetration element of the crime sexual assault in the first degree and in
charging the jury regarding the date of the offense. In the third ground, the petitioner asserts the
same six examples of ineffective assistance of trial counsel asserted in his state habeas petition.
In the fourth ground, the petitioner argues that the Connecticut Supreme Court relied on factual
inaccuracies in its opinion.
III.

Standard of Review
Before filing a petition for writ of habeas corpus in federal court, the petitioner must

properly exhaust his state court remedies. See O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999);
28 U.S.C. § 2254(b)(1)(A). The petitioner must present the essential factual and legal bases for
his federal claims to each appropriate state court, including the highest state court capable of
reviewing it, to afford the state courts a full and fair “opportunity to pass upon and correct
alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995)
(per curiam) (internal quotation marks and citation omitted).
The Second Circuit requires the district court to conduct a two-part inquiry. First, the
petitioner must present the factual and legal bases of his federal claim to the highest state court
capable of reviewing it. Second, he must have utilized all available means to secure appellate
review of his claims. See Galdamez v. Keane, 394 F.3d 68, 73-74 (2d Cir.), cert. denied, 544
U.S. 1025 (2005). The federal claims must be clearly set forth in the petition or brief. See
Baldwin v. Reese, 541 U.S. 27, 32 (2004) (petitioner “does not ‘fairly present’ a claim to a state

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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”).
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, 394 F.3d at 73-74.
IV.

Discussion
The respondent moves to dismiss the petition on the ground that the petitioner failed to

exhaust his state court remedies with regard to all grounds for relief. Specifically, the respondent
contends that with regard to the third ground for relief, the petitioner has exhausted his state
court remedies only on the second and fourth examples of ineffective assistance.
In response to the motion to dismiss, the petitioner states that he wishes to proceed only
on the exhausted claims. He identifies two claims: (1) denial of a fair trial because the trial
court improperly instructed the jury regarding the penetration element of sexual assault in the
first degree and the date of the offense, and (2) ineffective assistance of counsel based on trial
counsel’s failure to present expert testimony on the issue of the reliability of the victim’s
disclosures and on the disease trichomonas. In light of the withdrawal of the unexhausted
claims, the motion to dismiss is denied.
V.

Conclusion
The respondent’s motion to dismiss the petition for writ of habeas corpus [Doc. No. 11]

is DENIED. The case will proceed only on the following claims for which the respondent

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concedes that the petitioner has exhausted his state court remedies: (1) denial of a fair trial
because the trial court improperly instructed the jury regarding the penetration element of sexual
assault in the first degree and the date of the offense, and (2) ineffective assistance of counsel
based on trial counsel’s failure to present expert testimony on the issues of the reliability of the
victim’s disclosures and the disease trichomonas.
Accordingly, the respondent is ORDERED to file a response on or before March 17,
2017, why the relief prayed for in the petition as to the exhausted claims set forth above should
not be granted.
SO ORDERED this 10th day of February 2017, at Hartford, Connecticut.
______/s/_______________________
Michael P. Shea
United States District Judge

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