Fine v. Erfee

Filing 5

RULING re 1 Petition for Writ of Habeas Corpus filed by Paul Fine, Jr. Signed by Judge Alvin W. Thompson on 4/11/2017.(Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

PAUL FINE, JR.,
Petitioner,
v.
WARDEN ERFE,
Respondent.

:
:
:
: CASE NO. 3:17-cv-531 (AWT)
:
:
:
:
:

RULING ON PETITION FOR WRIT OF HABEAS CORPUS
The petitioner Paul Fine, Jr., has filed a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging
his state conviction on several grounds.

As discussed below,

the petition and reported cases show that the petitioner did not
exhaust his state court remedies on all grounds for relief
before commencing this action.

Accordingly, the petition is

being dismissed without prejudice to reopening.
I. Background
On April 8, 1991, the petitioner shot Steven O’Drain twice,
causing fatal injuries.

The petitioner then entered the O’Drain

apartment and shot O’Drain’s wife in the leg in front of her two
minor children.
knee.

See

Yvonne O’Drain’s leg was amputated below the

Fine v. Commissioner of Correction, 163 Conn. App.

77, 78, 134 A.3d 682, 684, cert. denied, 320 Conn. 925, 133 A.3d
879 (2016).
On March 30, 1992, the petitioner entered a guilty plea on
charges of murder and assault in the first degree.

On June 9,

1992, the petitioner was sentenced to a term of imprisonment of
fifty years.

Id., 134 A.3d at 684.

The petitioner did not file

a direct appeal.
The petitioner filed a first habeas petition that is not
shown on the state court website.

See Fine v. Commissioner of

Correction, 147 Conn. App. 136, 137, 81 A.3d 1209, 1211 (2013)
(“the respondent alleged … that in a prior habeas petition filed
in the judicial district of Danbury in 1997, the petitioner …
raised a claim of ineffective assistance of trial counsel under
the docket number CV-96-0325409-S”).
on May 4, 1998.

The petition was withdrawn

See id., 81 A.3d at 1211.

On January 26, 2010, the petitioner filed a second petition
for writ of habeas corpus in state court.

See Fine v. Warden,

State Prison, No. TSRCV104003395S, 2014 WL 7272446 (Conn. Super.
Ct. Nov. 12, 2014).

The petitioner included only one claim in

the operative petition, the 2011 first amended petition,
ineffective assistance of trial counsel directed to Attorneys
Gail Heller and/or Richard Perry.

He argued that, because

counsel was ineffective, his guilty plea was not knowingly,
2

voluntarily or intelligently entered.

Id. at *1.

The state

court denied the petition on November 12, 2014.
On May 29, 2015, the petitioner filed a petition for
certification to appeal, on the ground that “it was an error of
law for the court to find that ineffective assistance of standby
counsel was not a claim for which habeas relief might be
granted.”

Fine, 163 Conn. App. At 80, 134 A.3d at 685 (internal

quotation marks omitted).

The habeas court denied the petition

for certification and the petitioner appealed.

Id., 134 A.3d at

685.
The petitioner raised two issues on appeal:

the habeas

court abused its discretion in denying the petition for
certification, and the habeas court improperly determined that
the petitioner received effective assistance of counsel in
connection with his decision to plead guilty.
A.3d at 683.

Id. at 78, 134

The Connecticut Appellate Court denied the

petition and, on March 2, 2016, the Connecticut Supreme Court
denied certification to appeal.
The petitioner commenced this action by petition dated
March 7, 2017.

He challenges his conviction on four grounds:

(1) ineffective assistance of counsel regarding the guilty plea;
counsel represented that the petitioner would receive a sentence
of 40 years; (2) “misproportioned” sentence; the petitioner
3

understood plea bargain standards to be half of the maximum
sentence; (3) the petitioner’s estimated release date has been
increased without explanation; and (4) ineffective assistance of
trial counsel as a result of trial counsel’s bias against the
petitioner.
II.

Legal Standard

Before filing a petition for writ of habeas corpus in
federal court, the petitioner must properly exhaust his state
court remedies.

O’Sullivan v. Boerckel, 526 U.S. 838, 842

(1999); 28 U.S.C. § 2254(b)(1).

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).
Failure to exhaust state remedies may be excused only if
“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); 28 U.S.C. § 2254(b)(1)(B).

A petitioner

may not, however, simply wait until appellate remedies are no
4

longer available and then argue that the claim is exhausted.
See Galdamez v. Keane, 394 F.3d 68, 72-74 (2d Cir. 2005).
The court may sua sponte dismiss a habeas petition for
failure to exhaust state remedies only if it is unmistakably
clear that the petitioner has failed to exhaust his state
remedies.

Cf. Acosta v. Artuz, 221 F.3d 117, 125 (2d Cir. 2000)

(permitting sua sponte dismissal of habeas petition as untimely
only if untimeliness is “unmistakably clear from the facts
alleged in the petition”).

The petitioner states that he

exhausted his first ground for relief in his state habeas
action.

He then states that he brings that claim with others in

this federal petition.

See Doc. No. 1 at 9 (“State Habeas

Petition Exhausted-Now Filing for Federal Heabeous Regarding
This and additional claims”).

The petitioner refers the court

to a grievance against his attorney as support for the second
and fourth grounds for relief.

He states he raised the last

three grounds on direct appeal, but he did not appeal his
conviction.

Further, the reported decisions show that only the

first ground for relief was decided by the state courts.

Thus,

it is clear that the petitioner has not exhausted his state
court remedies on all claims for relief.
When a petitioner files a mixed petition, containing
exhausted and unexhausted claims and demonstrates good cause for
5

failing to exhaust all claims before filing the federal
petition, the Supreme Court has recommended staying the federal
petition to afford the petitioner an opportunity to exhaust his
unexhausted claims in the state courts and return to federal
court for review of all his claims.

Rhines v. Weber, 544 U.S.

269, 277-78 (2005); see also Zarvela v. Artuz, 254 F.3d 374,
380-83 (2d Cir. 2001) (recommending that district court stay
exhausted claims and dismiss unexhausted claims with directions
to timely complete the exhaustion process and return to federal
court).

The district court must grant “a stay to exhaust claims

in a mixed petition if the unexhausted claims are not plainly
meritless, if the petitioner has good cause for failing to
exhaust, and if the petitioner did not engage in abusive or
dilatory litigation tactics.”

Woodard v. Chappius, 631 F. App’x

65, 66 (2d Cir. 2016) (citing Rhines, 544 U.S. at 277-78).
The petitioner alleges that counsel told him that, if he
pled guilty, he would receive a sentence of forty years, but he
was sentenced to fifty years.
bias and conflict of interest.

He also includes allegations of
At this time, the court cannot

conclude that the claims are meritless.
The petitioner asserted a claim of ineffective assistance
of counsel regarding the plea in his state habeas petition.
Ineffective assistance of habeas counsel has been held to
6

constitute good cause for failure to exhaust state remedies.
See Saunders v. Commissioner, No. , 2016 WL 3812444, at *14 (D.
Conn. July 13, 2016) (noting consensus that ineffective
assistance of counsel can constitute good cause and finding that
claim of ineffective assistance of habeas counsel and proceeding
on appeal without assistance of counsel constituted good
cause)(citations omitted)).
Further, the Supreme Court held in Martinez v. Ryan, 566
U.S. 1,17 (2012), that “a procedural default will not bar a
federal habeas court from hearing a substantial claim of
ineffective assistance at trial if, in the [State’s] initialreview collateral proceeding, there was no counsel or counsel in
that proceeding was ineffective.”

In light of these decisions,

the court cannot conclude that the petitioner lacks good cause
for his failure to exhaust.
The court notes that the petitioner waited twelve years,
from 1998 until 2010 to file his second state habeas petition.
In the section of the petition regarding timeliness, Doc. No. 1,
¶ 27, the petitioner cites “Great Periods of Grief” and lack of
access to the library and legal calls for his inability to meet
deadlines.

At this time, the court cannot determine whether the

petitioner engaged in dilatory litigation tactics.

7

Outright dismissal of the petition will preclude the
petitioner from obtaining federal review of his claims.

There

is a one-year limitations period for filing a federal petition
for writ of habeas corpus.

See 28 U.S.C. § 2244(d)(1).

The

limitations period commences on the day the conviction becomes
final and is tolled for any time that a collateral challenge to
the conviction is pending in state court.
2244(d)(1) & (2).

See 28 U.S.C. §

The filing of a federal habeas petition,

however, does not toll the limitations period.

Duncan v.

Walker, 533 U.S. 167, 172 (2001).
The petitioner’s conviction became final in 1992.

The

limitations period was instituted with the passage of the
Antiterrorism and Effective Death Penalty Act on April 24, 1996.
Thus, the petitioner’s limitations period commenced on April 24,
1996, and expired on April 24, 1997.
F.3d 97, 102-03 (2d Cir. 1998).

See Ross v. Artuz, 150

During this period, however,

the petitioner commenced his first state habeas petition.

The

court lacks information on the date the petition was filed.
Thus, for purposes of this order only, the court will consider
the limitations period to run from May 4, 1998, the date on
which the first state habeas petition was withdrawn.

The

limitations period would have ended prior to May 4, 1999, over
ten years before the petitioner filed his second state habeas
8

petition on January 10, 2010.

Further, the petitioner waited

another year from the conclusion of his second state habeas
action, from March 2, 2016, until March 7, 2017, to file this
federal petition.

Thus, outright dismissal is not warranted.

Rather than staying this case, the court will dismiss
without prejudice to reopening the case after completion of the
exhaustion process.

This approach provides the same protection

as the issuance of a stay pending exhaustion.

Permitting the

petitioner to reopen this case after he exhausts his state court
remedies on the second claim for relief will ensure that the new
petition will not be barred by the statute of limitations.
III. Conclusion
The petition for writ of habeas corpus is hereby DISMISSED
without prejudice.

The petitioner may file a motion to reopen

the case after he has fully exhausted his available state court
remedies as to all grounds in the petition.
Within thirty (30) days after the petitioner has completed
the exhaustion process as to all grounds in the petition, he
shall file a motion to reopen this case reporting that all
grounds have been fully exhausted and that he wishes to reopen
this case.

The motion must be accompanied by an amended

petition for writ of habeas corpus including the grounds he
seeks to have the court consider and copies of any state court
9

decisions documenting the exhaustion of those grounds.

The

petitioner also shall include any evidence he wishes the court
to consider to show that his claims are not time-barred.

This

additional evidence of timeliness may include evidence that
other collateral proceedings had been filed to toll the
limitations period or evidence showing that the limitations
period should be equitably tolled.
The court concludes that jurists of reason would not find
it debatable that the petitioner failed to exhaust his state
court remedies with regard to all grounds included in the
petition.

Thus, a certificate of appealability will not issue.

See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that
when a district court denies a habeas petition on procedural
grounds, a certificate of appealability should issue if jurists
of reason would find debatable the correctness of the district
court’s decision).
The Clerk is directed to enter judgment and close this
case.
It is so ordered.

10

Signed this 11th day of April 2017 at Hartford,
Connecticut.
/s/AWT
___
Alvin W. Thompson
United States District Judge

11