Ortiz v. Semple

Filing 16

ORDER granting 9 Motion to Stay. Petitioner's exhausted claims for ineffective assistance of counsel regarding impeachment of the witness who provided photo identification of the co-defendant, as well as Petitioners actual innocence claim, ar e STAYED pending exhaustion of his other three ineffective assistance claims, which are DISMISSED for the reasons set forth in the Memorandum of Decision attached. As explained in the attached Decision, Petitioner is ordered to initiate state habeas proceedings for the three dismissed ineffective assistance claims within 90 days of the date of this Order. Petitioner is also ordered to return to federal court within 30 days of the resolution of state habeas proceedings on his unex hausted claims. Failure to do so may result in dismissal of Petitioner's stayed claims. In addition, Attorney Koch's Motion for Reconsideration 14 is DENIED. Attorney Koch has failed to satisfy the standard for reconsideration (see Virgin Atl. Airways Ltd. v. National Mediation Board, 956 F2d. 1245, 1255 (2d Cir. 1992)). In addition, counsel represents that he agreed to represent Petitioner pro bono but has repeatedly failed to research and adhere to the applicable law whi ch clearly sets out the requisite factual showing of entitlement to pro bono compensation. Further, Attorney Koch filed this case in contravention of the law which requires an inmate to exhaust state remedies before appearing in federal court and has generally failed to demonstrate the requisite diligence or competence required to represent the petitioner before this Court. Signed by Judge Vanessa L. Bryant on 6/22/2017. (Hudson, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ANGEL ORTIZ
Petitioner,
v.
SCOTT SEMPLE
Respondent.

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CIVIL ACTION NO.
3:17-cv-167 (VLB)
June 22, 2017

MEMORANDUM OF DECISION GRANTING RESPONDENT’S
MOTION TO STAY
Petitioner Angel Ortiz (“Ortiz” or “Petitioner”) brings this habeas corpus
action against Commissioner of Correction Scott Semple (“Respondent”) under
28 U.S.C. 2254, alleging actual innocence and ineffective assistance of counsel.
On April 27, 2017, Respondent filed a Motion to Stay or Dismiss the petition
because it is a “mixed petition” containing both exhausted and unexhausted
claims. Because Petitioner’s actual innocence claim cannot survive as a
freestanding claim, Petitioner’s ineffective assistance claims are unexhausted,
and the statute of limitations would now bar Petitioner from reasserting his
claims timely in federal court after exhausting his administrative remedies,
Respondent moves the Court to stay Petitioner’s case pending exhaustion of his
state court remedies. In the alternative, respondent moves for dismissal. For the
foregoing reasons, Respondent’s Motion to Stay is GRANTED.
I.

Background
On November 28, 1995, Petitioner was arraigned for crimes relating to the

kidnapping, robbery, and murder of two individuals. [Dkt. 10-2 (Record on Direct

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Appeal) at 71.] Petitioner pleaded not guilty and was represented from October 5,
1995 through trial and sentencing by Special Public Defender Michael Graham
(now deceased). [Dkt. 10-10 (Record of First State Habeas Appeal) at 6.] After a
jury trial, Petitioner and his co-defendant Julio Diaz-Marrero were found guilty of
multiple capital felonies, murder, felony murder, conspiracy to commit murder,
kidnapping, and robbery, kidnapping in the first degree, and robbery in the first
degree. [Dkt. 10-1 (State v. Ortiz, 252 Conn. 533, 536-37 (2000).] The trial court
sentenced Petitioner to a total effective sentence of life imprisonment without the
possibility of release plus forty years’ imprisonment. Id.
Assistant Public Defender Pamela Nagy represented Petitioner on direct
appeal to the Connecticut Supreme Court. [Dkt. 10-3 at 70.] Petitioner and his codefendant both argued on appeal that the trial court improperly (1) refused to
grant them a new probable cause hearing despite the state's failure to disclose in a
timely manner certain exculpatory evidence; (2) refused to suppress the
photographic identification of Diaz-Marrero on the ground that it was overly
suggestive; (3) deprived the defendants of their right to confront witnesses by
refusing to conduct an in camera review of psychiatric records of the individual who
identified Diaz-Marrero’s photograph; (4) rendered judgments of conviction on three
counts of conspiracy and sentenced the defendants separately for each conviction,
thereby violating the constitutional prohibition against double jeopardy; and (5)
refused to instruct the jury regarding the credibility of an alleged witness. State v.
Ortiz, 252 Conn. at 541-42. In addition, Petitioner asserted (1) that the trial court

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Court Filing System, as some documents do not provide their own pagination.
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improperly refused to allow him to present evidence of a third party's culpability; (2)
that he was denied his right to a speedy trial; (3) that the trial court improperly
refused to grant him a new trial on the basis that the evidence presented was clearly
insufficient to warrant a jury verdict of guilty; and (4) that the trial court provided the
jury with an improper instruction on the presumption of innocence and reasonable
doubt, thereby tainting the verdict. Id. at 542. The court affirmed the judgments of
conviction "on all counts except for [the] three conspiracy counts which [it]
reverse[d] and remand[ed] to the trial court with direction to combine the three
conspiracy convictions and to vacate the sentences for two of the conspiracy
convictions." Id. at 542.
On May 17, 2000, Petitioner filed a habeas corpus petition in Connecticut
Superior Court. Record of First State Habeas Appeal at 4. On March 22, 2002,

appointed counsel filed an amended habeas petition alleging ineffective
assistance of trial counsel for (1) failure to provide notice of Petitioner’s alibi as
required in Connecticut; (2) failure to attempt to establish cause for late notice of
Petitioner’s alibi; (3) failure to provide proper foundation for the trial court to
review the mental health records of the witness who provided photographic
identification of Petitioner’s co-defendant; and (4) failure to subpoena records
from the Social Security Administration pertaining to that witness for
impeachment purposes. Id. at 6-10. Petitioner did not argue his counsel was
ineffective for failing to have Petitioner testify at his trial. Id. On February 27,
2004, the Connecticut Superior Court issued a written memorandum of decision
finding Petitioner’s trial counsel was not deficient and even if he had been

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deficient, Petitioner was not prejudiced. [Dkt. 10-8 (Ortiz v. Warden, No.
CV000598893S, 2004 WL 503961 (Conn. Super. Ct. Feb. 27, 2004).]
Petitioner appealed as to only one of the ineffective assistance claims he
raised with the Superior Court: that his trial counsel improperly failed to “make a
showing that the mental condition of a state’s witness had affected her testimonial
capacity sufficient to warrant an in camera review of the witness’ medical records.”

[Dkt. 10-9 (Ortiz v. Commissioner of Correction, 91 Conn. App. 484, 485 (2005).] The
Connecticut Appellate Court upheld the Superior Court’s habeas decision, finding
“nothing in the record, either from the testimony of [the witness] at the criminal trial
or . . . at the habeas trial that suggests that [the witness’s] testimonial capacity was
impaired by a condition that would have been revealed in her medical records.” Id. at
491.
Petitioner next sought discretionary review of his habeas petition by the
Connecticut Supreme Court, framing the issues as (1) whether the Appellate Court
erred in holding the Petitioner failed to prove that he received deficient
representation by his trial counsel, and (2) what threshold a criminal defendant must
meet to trigger in camera review of a witness’s confidential mental health records to
ensure a fair balance of the witness’s right to privacy and the defendant’s right to
probative impeachment material. [Dkt. 10-14 (Petition for Certification) at 2.] The
Connecticut Supreme Court declined certification.
On June 9, 2006, Petitioner filed a federal habeas petition in the District of
Connecticut under 28 U.S.C. § 2254. [See Dkt. 10-16 (Ortiz v. Martin, 3:06-cv-895,
2009 WL 179785 (Jan. 26, 2009 (Droney, J.).] On January 26, 2009, Judge Droney
dismissed the petition without prejudice for failure to exhaust state court remedies.

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Id. The Court specifically noted Petitioner’s failure to present an alibi defense on
appeal of the denial of the state habeas petition. Id. at *2.
It appears Petitioner filed a new habeas petition with the Connecticut Superior
Court on March 27, 2006, while his federal petition was pending. [Dkt. 10-20 at 6.]
The Superior Court petition was inactive from July 2006 through March 26, 2009,
when the Superior Court issued a Scheduling Order. Id. In August 2012, Special
Public Defender Theodore Koch III filed a one-count amended habeas petition
claiming actual innocence, asserting that he was not present at the crime scene. [Id.;
Dkt. 10-18 (Ortiz v. Comm’r of Corr., 166 Conn. App. 635 (2016) (stating grounds for
amended petition).] The Superior Court held a trial on the amended petition, at which
Petitioner testified that he did not participate in the crimes of his conviction and was
not present for their commission. [Dkt. 10-28 (Transcript of Habeas Trial) at 14-15,
94-95.] Petitioner’s co-defendant testified that he committed the offenses for which
both parties were convicted but that Petitioner was neither present nor involved. Id.
at 14-15, 39-40. However, Petitioner’s co-defendant’s trial counsel testified that their
client told them he had nothing to do with the crimes and did not know Petitioner. Id.
at 64, 76. The Connecticut Superior Court denied Petitioner’s actual innocence claim,
finding Petitioner’s co-defendant had questionable credibility and noting his
testimony was not corroborated by physical evidence or other witness testimony.
[Dkt. 10-17 (Ortiz v. Warden, No. CV064001027S, 2014 WL 5356463, at *13-15 (Conn.
Super. Ct. Sept. 17, 2014).] The Court also ascribed little weight to Petitioner’s
testimony regarding his own innocence, stating he had no corroboration for his alibi
because his alibi (his wife) was deceased and her testimony was stricken at the
criminal trial without an opportunity for cross examination. Id. at *11.

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Petitioner appealed the Superior Court’s actual innocence decision to the
Connecticut Appellate Court. [Dkt. 10-18 (Ortiz v. Comm’r of Corr., 166 Conn. App.
635 (2016).] On July 5, 2016, the Connecticut Appellate Court affirmed the Superior
Court’s judgment. Id. On July 25, 2016, Petitioner sought certification to the
Connecticut Supreme Court, framing the issue as whether the Appellate Court
properly affirmed the Superior Court’s finding that Petitioner did not prove he is
actually innocence under applicable law. [Dkt. 10-23 (Petition for Certification) at 2.]
On September 13, 2016, the Connecticut Supreme Court denied the petition for
certification without comment. [Dkt. 10-25.]
Thereafter, Petitioner initiated the instant federal habeas petition on February
6, 2017. [Dkt. 1.] Petitioner claims (1) actual innocence based on his co-defendant’s
testimony and the testimony of his co-defendant’s counsel, and (2) ineffective
assistance of counsel based on (a) failure to timely submit notice of an alibi, (b)
failure to have Petitioner testify at his criminal trial, (c) failure to impeach “crucial
prosecution witnesses,” and (d) failure to present exculpatory evidence. Id.

II.

Statement of Law
As ably stated in Judge Droney’s Ruling on Petitioner’s First Petition for

Writ of Habeas Corpus (2009 WL 179785), a prerequisite to habeas corpus relief
under 28 U.S.C. § 2254 is the exhaustion of available state remedies. See
O'Sullivan v. Boercke, 526 U.S. 838, 842 (1999); 28 U.S.C. § 2254(b)(1)(A). The
exhaustion requirement “is designed to give the state courts a full and fair
opportunity to resolve federal constitutional claims before those claims are
presented to the federal courts.” See O'Sullivan, 526 U.S. at 845. The Second
Circuit requires the petitioner to present “the essential factual and legal premises

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of his federal constitutional claim to the highest state court capable of reviewing
it” before seeking federal review. Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir.
2003). In other words, “[t]he claim presented to the state court . . . must be the
‘substantial equivalent’ of the claim raised in the federal habeas petition.” Jones
v. Keane, 329 F.3d 290, 295 (2d Cir. 2003). The petitioner must also have “utilized
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. l979)).

III.

Analysis
Respondent challenges Petitioner’s ineffective assistance of counsel

claims for failure to exhaust and challenges his actual innocence claim as not
viable on its own. The Court discusses each argument in turn.
a. Ineffective Assistance
Respondent is correct that only one of Petitioner’s four ineffective
assistance claims is exhausted: that Petitioner’s trial attorney failed to show that
the mental condition of the state’s witness (who provided photo identification of
the co-defendant) affected her testimonial capacity sufficient to warrant an in
camera review of the witness’s medical records. See Ortiz v. Comm’r of Corr., 91
Conn. App. at 485; Dkt. 10-14 (Petition for Certification) at 2. To the extent
Plaintiff intended to dispute impeachment efforts regarding additional witnesses
by asserting trial counsel failed to impeach “crucial prosecution witnesses,”
those claims are not exhausted. Petitioner has not asserted failure to properly
impeach any other witnesses in his two state habeas petitions.
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Petitioner’s second ineffective assistance claim, that his trial counsel failed
to timely submit notice of an alibi, is not exhausted. While he did raise that claim
in his first state habeas petition (Dkt. 10-10 at 3-7), Petitioner declined to pursue
this claim on appeal and instead appealed only his claim regarding the state
witness’s medical records. Ortiz v. Comm’r of Corr., 91 Conn. App. at 488 n.2
(stating “petitioner raised additional claims alleging ineffective assistance of
counsel, which were addressed by the court. The court’s determination of those
claims has not been challenged on appeal”).
Petitioner’s third ineffective assistance claim, that trial counsel was
ineffective for failing to have Petitioner testify at his criminal trial, also is not
exhausted. Petitioner did not raise such a claim in either state habeas
proceeding. Rather, Petitioner’s counsel explicitly stipulated at his first state
habeas trial that he was not pursuing a claim for failure to elicit Petitioner’s
testimony. [Dkt. 10-29 (Transcript of 10/22/03 Habeas Proceeding) at 107 (“We’re
not claiming in this case that there was ineffective assistance of counsel, as far
as not offering Mr. Ortiz [as a witness].”).]
Lastly, Petitioner’s fourth ineffective assistance claim asserts failure to
present “exculpatory” evidence. Petitioner does not state with particularity what
exculpatory evidence should have been presented. However, the only ineffective
assistance claim which Petitioner has exhausted is the claim that trial counsel
failed to impeach one particular witness through reference to her medical
records. Such records would not exculpatory, and thus the Court deems this to
be a claim predicated on some other facts. . Whatever exculpatory evidence

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Petitioner now asserts was not raised at his criminal trial does not constitute an
exhausted claim.
Three out of Petitioner’s four ineffective assistance claims are not
administratively exhausted. However, Connecticut law affords Petitioner an
opportunity to exhaust those claims through a state habeas petition alleging
ineffective assistance of habeas counsel for failure to raise his non-exhausted
claims. Lozada v. Warden, 223 Conn. 834, 838-39 (1992) (holding a habeas
petitioner may achieve a new trial by asserting ineffective assistance of both trial
counsel and former habeas counsel in a new habeas petition, based on Conn.
Gen. Stat. § 51-296, which grants a right to counsel for an indigent person in any
habeas proceeding, and the notion that appointed counsel “must be effective and
competent”). Because Petitioner has this avenue to exhaustion, his unexhausted
ineffective assistance claims are not procedurally barred. Petitioner’s
unexhausted ineffective assistance claims are accordingly dismissed and
Petitioner’s one exhausted ineffective assistance claim will be stayed for reasons
set forth in part C below.
b. Actual Innocence
Petitioner also raises actual innocence, which he pursued to exhaustion in
his second state habeas petition. Ortiz v. Warden, No. CV064001027S, 2014 WL
5356463, at *13-15 (Conn. Super. Ct. Sept. 17, 2014) (raising actual innocence);
see also Ortiz v. Comm’r of Corr., 166 Conn. App. 635 (2016) (affirming Superior
Court findings on actual innocence); Ortiz v. Comm’r of Corr., 323 Conn. 906
(2016) (declining to certify question regarding actual innocence claim). However,

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Respondent asserts Petitioner may not pursue actual innocence as a
freestanding habeas claim without his ineffective assistance claims.
It is clear that an actual innocence claim is a “gateway” through which a
habeas petitioner may have “otherwise barred constitutional claim considered on
the merits.” Herrera v. Collins, 506 U.S. 390, 404-05 (1993); see also McQuiggin v.
Perkins, 133 S. Ct. 1924, 1928 (2013). The threshold requirement for an actualinnocence gateway plea is showing that “in light of the new evidence, no juror,
acting reasonably, would have voted to find him guilty beyond a reasonable
doubt.” McQuiggin, 133 S. Ct. at 1928. However, Respondent is correct that the
Supreme Court has “not resolved whether a prisoner may be entitled to habeas
relief based on a freestanding claim of actual innocence,” absent a procedural
violation. McQuiggin, 133 S. Ct. at 1931; see also Williams v. Penn., 136 S. Ct.
1899, 1921 (2016) (Thomas, J. dissenting) (affirming as of June 9, 2016 the
Supreme Court has not “held that [a petitioner] has a right to demand that his
postconviction court consider a freestanding claim of actual innocence”).
The Supreme Court has suggested that an actual freestanding innocence
claim could conceivably be sustainable; however “the threshold for any
hypothetical freestanding innocence claim [would be] extraordinarily high.”
House v. Bell, 547 U.S. 518, 555 (2006). The Second Circuit, citing Bell, recently
suggested that a freestanding actual innocence claim may be valid if it meets the
threshold standard set forth in McQuiggin. Russo v. U.S., 16-2188-cr, 2017 WL
2458912, at *1 (2d Cir. June 7, 2017) (summary order) (“Russo has not stated a
valid freestanding innocence claim, as he has failed to satisfy even the most

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lenient actual innocence standard, which requires a movant to demonstrate
that, “in light of new evidence, ‘it is more likely than not that no reasonable juror
would have found [him] guilty beyond a reasonable doubt.’”). Absent a clear
directive, the District of Connecticut has declined to allow freestanding actual
innocence habeas petitions. See, e.g., U.S. v. Brown, 2014 WL 3738062, at *5 (D.
Conn. July 30, 2014) (“A federal habeas petitioner does not qualify for habeas
relief solely on a showing of actual innocence.”).
The current state of the law weighs decidedly against recognizing a free
standing actual innocence claim. See generally Herrera, 506 U.S. at 404;
McQuiggin, 133 S. Ct. at 1931; Bell, 547 U.S. at 555. The Court accordingly
declines to allow Petitioner’s actual innocence claim to proceed as a freestanding
actual innocence claim, but will rather stay Petitioner’s actual innocence claim to
be heard with Petitioner’s ineffective assistance of counsel claims upon
exhaustion.
c. Whether to Dismiss or Stay Exhausted Claims
Respondent does not dispute that Petitioner’s current federal habeas
petition was timely filed given tolling of the limitations period during the
pendency of state habeas petitions. [Dkt. 10 at 27-28; see also 28 U.S.C. §
2244(d)(l) (setting a one-year limitations period for filing a federal petition for writ
of habeas corpus challenging a state conviction, which commences when the
conviction becomes final and may be tolled by a properly filed application for
state post-conviction relief ).] However, Respondent notes that the limitations
period has now run and would bar Petitioner from raising his claims again in

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federal court if the Court were to dismiss this case in its entirety pending
exhaustion of all claims. Accordingly, Respondent asserts Petitioner’s exhausted
claims should be stayed pending exhaustion of Petitioner’s unexhausted claims.
In habeas petitions involving both exhausted and unexhausted claims
(“mixed petitions”), the Second Circuit has cautioned courts against dismissing
the entire petition where doing so would preclude the petitioner from having all of
his claims addressed by the court. Zarvela v. Artuz, 254 F.3d 374, 380-83 (2d Cir.
2001). Instead of outright dismissal, the Second Circuit has held it is appropriate
to dismiss unexhausted claims and “exercise discretion either to stay further
proceedings on the remaining portion of the petition or . . . dismiss the petition in
its entirety.” Id. at 380. A stay is appropriate where there is little enough time left
in the statute of limitations that dismissal would “jeopardize the timeliness of a
collateral attack.” Id. at 382. The Supreme Court has also espoused support for
staying exhausted claims pending exhaustion of other claims. See Duncan v.
Walker, 533 U.S. 167, 182-83 (2001) (Stevens, J., with whom Souter, J. joins,
concurring in part in the judgment) (“There is no reason why a district court
should not retain jurisdiction over a meritorious claim and stay further
proceedings pending the complete exhaustion of state remedies.”).
The Second Circuit has counseled that where a district court stays
exhausted claims it should do so on condition that the petitioner initiate habeas
proceedings for the dismissed, unexhausted claims within a limited period,
“normally 30 days,” and return to the district court within 30 days of completing
exhaustion. Zarvela, 254 F.3d at 381. If either condition of the stay is not met, the

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Second Circuit counseled the district court to warn the petitioner that “the federal
stay may be vacated nunc pro tunc as of the date the stay was entered, and the
petition may be dismissed.” Id. at 381.
The limitations period for Petitioner’s claims expired on April 20, 2017. If
the Court were to dismiss the mixed petition in its entirety, Petitioner would be
barred from raising his claims again in federal court upon exhaustion at the state
level. This is precisely the outcome the Second Circuit counseled district courts
to avoid in Zarvela. Accordingly, the Court will not dismiss Petitioner’s mixed
petition in its entirely, but rather will stay Petitioner’s exhausted claims.
IV.

Conclusion
For the foregoing reasons, Defendant’s Motion to Stay for failure to

exhaust administrative remedies is GRANTED. Petitioner’s three unexhausted
claims for ineffective assistance of counsel are DISMISSED and Petitioner’s
remaining ineffective assistance claim regarding impeachment of the witness
who provided photo identification of the co-defendant, as well as Petitioner’s
actual innocence claim, are STAYED pending exhaustion of his dismissed claims.
Petitioner is ordered to initiate state habeas proceedings for the three dismissed
ineffective assistance claims within 90 days of the date of this Order.2

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The Court grants Petitioner longer than the Second Circuit recommended in
Zarvela, 254 F.3d at 381 to initiate his state habeas petition in view of Petitioner’s
counsel’s prima facie conflict of interest in a future state habeas proceeding. W.
Theodore Koch III has moved to represent Petitioner in this federal habeas
proceeding and also represented Petitioner in his second state habeas
proceeding. Petitioner will have to assert Mr. Koch’s assistance at his second
state habeas proceeding was ineffective in order to exhaust his claims, and
accordingly Mr. Koch has a prima facie conflict of interest preventing him from
representing Petitioner in a renewed state habeas petition. The Court grants
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Petitioner is also ordered to return to federal court within 30 days of the
resolution of state habeas proceedings on his unexhausted claims. If either
condition of the stay is not met, this Court’s stay of Petitioner’s actual innocence
and exhausted ineffective assistance claims may later be vacated nunc pro
tunc as of the date the stay was entered, and the petition may be dismissed. The
Clerk is directed to close this case pending Petitioner’s return to federal court
after exhausting his dismissed claims.
IT IS SO ORDERED.
_____/s/________________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: June 22, 2017

Petitioner 90 days, rather than the recommended 30, to initiate a state habeas
petition on his own and seek appointment of other counsel.
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