Abrams v. Commissioner of Corrections

Filing 31

ORDER. As set forth in the attached, the Respondents 19 Motion to Dismiss the Petition for Writ of Habeas Corpus is GRANTED on the ground that the petition contains both unexhausted and exhausted claims. The 1 Petition for Writ of Habeas Corpus i s DISMISSED without prejudice. The petitioner may file a new federal habeas petition after he has exhausted his available state court remedies as to all of the sub-claims in the four grounds set forth in this petition.The petitioner is inform ed that he also has the option of proceeding only as to the exhausted sub-claims in each ground of the petition. If so, he must file a motion to reopen within 30 days seeking: (1) to proceed as to the exhausted sub-claims in each ground of the petit ion and (2) to withdraw all of the unexhausted sub-claims. The motion must clearly identify each sub-claim that the petitioner claims has been fully exhausted and explain how each sub-claim was exhausted in state court. The petitioner is cautioned, however, that if he proceeds only as to the exhausted sub-claims, with the intention of presenting the unexhausted sub-claims to this court after they have been exhausted, he will run the risk that any such subsequent petition will not be considered by this court because it would constitute a second or successive petition. See 28 U.S.C. § 2244(b)(2).The court concludes that jurists of reason would not find it debatable that the petitioner has failed to exhaust all available state court remedies as to each ground of the petition. Thus, a certificate of appealability will not issue. See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that, when the 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 courts ruling).The Clerk is directed to enter judgment and close this case. Signed by Judge Michael P. Shea on 2/25/2019. (Guevremont, Nathan)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DAVID A. ABRAMS,
A/K/A ABRAHAMS,
Petitioner,
v.
COMMISSIONER OF CORRECTION,
Respondent.

:
:
:
:
:
:
:
:

Case No. 3:17cv1732(MPS)

RULING ON MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, David A. Abrams, a/k/a Abrahams, is currently confined at the Garner
Correctional Institution. On December 7, 2001, in State v. Abrams, Case No. D03D-CR970131949-T, a judge sentenced the petitioner to a five-year term of imprisonment for a violation
of probation and in State v. Abrams, Case No. DBD-CR00-0110691-S, the same judge sentenced
the petitioner to eighteen years of imprisonment followed by two years of special parole on one
count of criminal attempt to commit murder, eighteen years of imprisonment followed by two
years of special parole on one count of assault in the first degree, five years of imprisonment on
one count of criminal possession of a firearm, and five years of imprisonment followed by five
years of special parole on one count of commission of a Class A, B, or C felony with a firearm.
See Resp’t’s Mem. Supp. Mot. Dismiss (“Mem. Mot. Dismiss”), App. 1, ECF No. 19-1 at 2;
App. 66, ECF No. 19-66, Sentencing Tr. 3-4, 28-30 Dec. 7, 2001.1 All sentences were to run

1

The court notes that citations to the appendices filed in support of the memorandum in
support of the motion to dismiss will be made to the original page number or numbers assigned
to or listed on each document filed as an appendix rather than to the ECF number or numbers
assigned to each page of the document when it was filed electronically with the court.
1

consecutively to each other for a total effective sentence of fifty-one years of imprisonment
followed by nine years of special parole. See id.
The petitioner initiated this action on October 13, 2017 by filing a petition for a writ of
habeas corpus pursuant 28 U.S.C. § 2254 to challenge all five of his 2001 convictions and
sentences. See Pet. Writ Habeas Corpus at 2. Pending before the court is the respondent’s
motion to dismiss the petition because it contains both exhausted and unexhausted grounds. For
the reasons that follow, the motion to dismiss will be granted.
I.

Procedural Background
On November 9, 2000, a Danbury police officer arrested the petitioner on charges of

criminal attempt to commit murder, assault in the first degree, and criminal violation of a
protective order. See Mem. Mot. Dismiss, App. 4, ECF No. 19-4, at 1-2. On October 17, 2001,
an assistant state’s attorney in the Connecticut Superior Court for the Judicial District of
Danbury filed a substitute long form information charging the petitioner with criminal attempt to
commit murder in violation of Connecticut General Statutes §§ 53a-49, 53a-54a, assault in the
first degree in violation of Connecticut General Statutes § 53a-59, criminal possession of a
firearm in violation of Connecticut General Statutes § 53a-217, and commission of a Class A, B,
or C felony with a firearm in violation of Connecticut General Statutes § 53-202k. See id. at 5-6.
On October 26, 2011, after a trial, a jury convicted the petitioner of all four counts in the
substitute information. See Pet. Writ. Habeas Corpus at 2; Mem. Mot. Dismiss, App. 4, ECF No.
19-4, at 6, 8-9. After the judge accepted the jury’s verdict, the judge considered the charge that
the petitioner had violated the conditions of the term of probation imposed as part of his prior
1998 sentence for a conviction of possession of a weapon in a motor vehicle in State v. Abrams,
2

Case No. D03D-CR97-0131949-T. See App. 61, ECF No. 19-65, Trial Tr. 122, Oct. 26, 2001;
App. 66, ECF No. 19-66, Sentencing Tr. 3-4, Dec. 7, 2001. The judge found the petitioner had
violated the conditions of the term of probation. See id.
On December 7, 2001, the judge who had presided over the petitioner’s trial in State v.
Abrams, Case No. DBD-CR00-0110691-S, held a hearing to sentence the petitioner pursuant to
his convictions for criminal attempt to commit murder, assault in the first degree, criminal
possession of a firearm in that case and to sentence the petitioner pursuant to his conviction for a
violation of probation in State v. Abrams, Case No. D03D-CR97-0131949-T. See Mem. Mot.
Dismiss, App. 66, ECF No. 19-66, Sentencing Tr. Dec. 7, 2001. At the hearing, the judge
sentenced the petitioner to a five-year term of imprisonment pursuant to his finding that the
petitioner had violated the conditions of the term of probation imposed as part of his prior 1998
sentence for a conviction of possession of a weapon in a motor vehicle in State v. Abrams, Case
No. D03D-CR97-0131949-T. See id. at 2-4, 29. The judge also sentenced the petitioner to
eighteen years of imprisonment followed by two years of special parole pursuant to his
conviction for criminal attempt to commit murder, eighteen years of imprisonment followed by
two years of special parole pursuant to his conviction for assault in the first degree, five years of
imprisonment pursuant to his conviction for criminal possession of a firearm, and five years of
imprisonment followed by five years of special parole pursuant to his conviction for commission
of a Class A, B, or C felony with a firearm in State v. Abrams, Case No. DBD-CR00-0110619-S.
See id. at 29-30; App. 1, ECF No. 19-1, at 2.
All sentences imposed in State v. Abrams, Case No. DBD-CR00-0110619-S were to run
consecutively to each other and consecutively to the five-year sentence imposed pursuant to the
3

conviction for violation of probation in State v. Abrams, Case No. D03D-CR97-0131949-T and
the terms of special parole were also to run consecutively to each other. See App. 1, ECF No.
19-1, at 2. Thus, the total effective sentence imposed for the convictions in Case No. DBDCR00-0110619-S and Case No. D03D-CR97-0131949-T was fifty-one years of imprisonment
followed by nine years of special parole. See App. 66, ECF No. 19-66, Sentencing Tr. 29-30.
The petitioner appealed his convictions and sentences imposed in State v. Abrams, No.
DBD-CR00-0110619-S on the ground that the assistant state’s attorney assigned to his case
deprived him of his “right[] to due process and to a fair trial” by engaging in various forms of
“prosecutorial misconduct” during trial and during his closing argument. State v. Abrahams, 79
Conn. App. 767, 769, 831 A.2d 299, 302 (2003).2 On October 7, 2003, the Connecticut
Appellate Court determined that although the prosecutor had engaged in two types of improper
misconduct during closing argument, the plaintiff’s trial was not fundamentally unfair. See id. at
776-82, 831 A. 2d at 306-10. Thus, the Connecticut Appellate Court affirmed the judgment of
the trial court. See id. at 783, 831 A. 2d at 310.
On October 16, 2003, the petitioner’s appellate counsel filed a motion for reconsideration
and for reconsideration en banc. See Mem. Mot. Dismiss, App. 8, ECF No. 19-8. On October
31, 2003, appellate counsel filed a motion for permission to file a late petition for certification to
the Connecticut Supreme Court. See id. App. 10, ECF No. 19-10. On December 2, 2003, the
Connecticut Supreme Court granted the petitioner an extension of time until twenty days after
the issuance of the notice disposing of the motion for reconsideration to file a petition for

2

Neither the petitioner, nor the respondent has asserted that the petitioner appealed his
2001 conviction for a violation of probation or the five-year sentence imposed pursuant to that
conviction by a judge in State v. Abrams, Case No. D03D-CR97-0131949-T.
4

certification. See id. App. 11, ECF No. 19-11. On January 15, 2004, the Connecticut Appellate
Court denied the petitioner’s motion for reconsideration and reconsideration en banc. See id.
App. 9, ECF No. 19-9. Appellate counsel did not file a petition for certification within the time
specified by the Connecticut Supreme Court.
Over four years later, on May 15, 2008, the petitioner filed a pro se motion seeking
permission to file a late petition for certification to appeal the decision of the Connecticut
Appellate Court affirming his conviction. See id. App. 12, ECF No. 19-12. On June 3, 2008, the
Connecticut Supreme Court denied the motion without comment. See id. App. 14, ECF No. 1914.
On March 5, 2002, before the direct appeal of his convictions became final, the petitioner
filed his first state habeas corpus petition in the Connecticut Superior Court for the Judicial
District of New Haven. See Abrahams v. Warden, No. CV02-464618-S, 2005 WL 758152
(Conn. Super. Ct. Feb. 28, 2005); Mem. Mot. Dismiss, App. 15, ECF No. 19-15. The petitioner
filed three amended petitions. See Mem. Mot. Dismiss, App. 15, ECF No. 19-15. The operative
third amended petition filed on September 17, 2003, asserted one claim, ineffective assistance of
trial counsel, and included twenty-three examples of allegedly deficient performance. See id.
App. 16, ECF No. 19-16. On February 28, 2005, after a hearing, the judge denied the amended
petition because he concluded that trial counsel had not performed deficiently and that the
petitioner had not demonstrated prejudice from the performance of trial counsel. See Abrahams,
2005 WL 758152, at *11-12.
The petitioner timely filed an appeal from the denial of the habeas petition. See Mem.
Mot. Dismiss, App. 20, ECF No. 19-20, at 40. The court appointed a special public defender to
5

represent the petitioner on appeal and counsel subsequently filed a brief in support of the appeal
raising one issue, ineffective assistance of counsel at sentencing. See id. App. 21, ECF No. 1921, at 1-20. On September 27, 2006, the petitioner’s special public defender withdrew the appeal
before the Connecticut Appellate Court rendered a decision. See id. App. 19-24, ECF No. 19-24.
On September 30, 2004, the petitioner filed a second state habeas corpus petition in the
Connecticut Superior Court for the Judicial District of Tolland at Rockville. See Abrams v.
Warden, No. CV04-7000112-S, 2008 WL 1823047 (Conn. Super. Ct. Apr. 8, 2008); Mem. Mot.
Dismiss, App. 25, ECF No. 19-25. On April 26, 2007, counsel for the petitioner filed an
amended petition asserting claims of ineffective assistance of habeas counsel. See Mem. Mot.
Dismiss App. 26, ECF No. 19-26. On December 31, 2007, the petitioner filed a motion seeking
leave to file a second amended petition to include claims of ineffective assistance of trial
counsel. See id. App. 25, ECF No. 19-25, at 2; App. 31, ECF No. 19-31, at A-21 to A-22. On
January 2, 2008, a judge held an evidentiary hearing to address the claims filed in first amended
petition. See id. App. 64, ECF No. 19-72, First Habeas Hearing Tr., Jan. 2, 2008. At the
beginning of the hearing, the judge denied the petitioner’s motion to amend and denied his
request for a continuance. See id. at 2-5; App. 31, ECF No. 19-31 at A-23. On April 8, 2008, a
state court judge denied the amended petition for writ of habeas corpus. See Abrams, 2008 WL
1823047, at *6.
On May 23, 2008, the petitioner filed an appeal of the denial of his second habeas
petition to the Connecticut Appellate Court. See Mem. Mot. Dismiss App. 29, ECF No. 19-29,
at 23. On appeal, appellate counsel did not challenge the decision of the state court regarding the
merits of the petitioner’s claims of ineffective assistance of habeas counsel. Instead, counsel
6

argued that the trial court had abused its discretion in denying the petition for certification to
appeal, erred in not allowing the petitioner to amend the petition on the day of trial and denying
the petitioner’s request for a continuance, and erred in failing to inquire whether a conflict of
interest existed between the petitioner and habeas counsel. See id. at 26; App. 30, ECF No. 1930.
On February 16, 2010, the Connecticut Appellate Court dismissed the appeal after
concluding that the trial court did not abuse its discretion in any of the four ways asserted by the
petitioner on appeal. See Abrams v. Comm'r of Correction, 119 Conn. App. 414, 417-22, 987
A.2d 370, 374-76 (2010). On March 30, 2010, the Connecticut Supreme Court denied
certification to appeal from the decision of the Connecticut Appellate Court. See Abrams v.
Commissioner of Correction, 295 Conn. 920, 991 A.2d 564 (2010).
On March 20, 2008, the petitioner filed a third state habeas corpus petition in the
Connecticut Superior Court for the Judicial District of Tolland at Rockville. See Abrams v.
Warden, No. CV08-4002319-S; Mem. Mot. Dismiss App. 35, ECF No. 19-35. A judge
dismissed the petition on April 2, 2008, and the petitioner did not appeal the dismissal.3 See id.
On January 19, 2006, the petitioner filed a motion to correct illegal sentence. See Mem.
Mot. Dismiss App. 37, ECF No. 19-37, at 13-14. On September 1, 2006, the petitioner filed a
second motion to correct illegal sentence. See id. at 31-43. The first motion raised four grounds.
See id. at 29 n.3. The second motion to correct illegal sentence raised one ground: whether the
petitioner’s convictions and sentences for assault in the first degree and criminal possession of a
firearm constituted a double jeopardy violation. See id. at 35.
3

Neither the petitioner, nor the respondent identify the claims asserted in the third state
habeas petition.
7

At a hearing held on February 27, 2007 to address the first motion to correct illegal
sentence, the petitioner withdrew two of the four grounds asserted in the motion and proceeded
only on the ground that his convictions and sentences for attempted murder and assault in the
first degree violated the Double Jeopardy Clause of the Fifth Amendment and on the ground that
the sentence imposed pursuant to the petitioner’s conviction for a violation of probation was
illegal or improper because the trial court lacked jurisdiction to adjudicate the violation of
probation charge. See id. at 28-29 & n.3; App. 65, ECF No. 19-73, First Hearing First Mot.
Correct Illegal Sentence Tr. 18, 21, Feb. 23, 2007. On April 2, 2007, the court denied the first
motion to correct illegal sentence because the convictions for attempted murder and first degree
assault were not the same offenses for double jeopardy purposes and the sentence imposed
pursuant to the conviction for a violation of probation was not eligible for review in a motion to
correct sentence, and even if it was eligible for review, it lacked merit. See id. App. 37, ECF No.
19-37, at 13-14, 28-30.
On April 9, 2008, a different judge permitted the petitioner to reargue the double
jeopardy claim raised in the first motion to correct illegal sentence. See id. App. 65, ECF No.
19-74, Second Hearing First Mot. Correct Illegal Sentence Tr. 7-10, Mar. 5, 2008; App 65, ECF
No. 19-75, Third Hearing First Mot. Correct Illegal Sentence Tr. 7-19, Apr. 9, 2008. At the end
of the hearing on April 9, 2008, the second judge denied the first motion to correct illegal
sentence. See id. App. 65, ECF No. 19-75, Third Hearing First Mot. Correct Illegal Sentence Tr.
19, Apr. 9, 2008.
The petitioner appealed the orders denying the first motion to correct illegal sentence on
the ground that the trial judges had erred in concluding that his sentences for attempted murder,
first degree assault, and criminal possession of a firearm did not violate the Double Jeopardy
8

Clause of the Fifth Amendment. See id. at 45; App. 38, ECF No. 19-38, at i-ii, 1-2. On October
20, 2009, the Connecticut Appellate Court issued a per curiam decision affirming the judgment
of the trial court without comment. See State v. Abrahams, 117 Conn. App. 901, 980 A.2d 363
(2009). On January 14, 2010, the Connecticut Supreme Court denied certification to appeal from
the decision of the Connecticut Appellate Court. See State v. Abrahams, 294 Conn. 927, 986
A.2d 1054 (2010).
On December 11, 2009, the petitioner filed a fourth state habeas corpus petition in the
Connecticut Superior Court for the Judicial District of Tolland at Rockville. See Abrams v.
Warden, State Prison, No. TSR-CV-104003316-S, 2012 WL 5992687 (Conn. Super. Ct. Nov.
13, 2012), Mem. Mot. Dismiss App. 44, ECF No. 19-44. In an amended petition filed on June
16, 2012, the petitioner asserted claims of ineffective assistance of trial counsel, appellate
counsel and habeas counsel. See Mem. Mot. Dismiss, App. 45, ECF No. 19-45. On November
13, 2012, after an evidentiary hearing, the court denied the amended petition. See Abrams, 2012
WL 5992687, at *11.4
The petitioner timely filed an appeal from the denial of the habeas petition. See Mem.
Mot. Dismiss, App. 48, ECF No. 19-48 at 38. On appeal, the petitioner raised the following
issues: (1) did the trial court abuse its discretion in denying the petition for certification to
appeal the decision denying the habeas petition, (2) did the trial court err in concluding that
second habeas counsel did not engage in effective assistance of counsel when he failed to allege
and establish claims of ineffective assistance of prior counsel regarding misconduct by the

4

The court notes that the judge who issued the decision in this case refers to the petition
as the petitioner’s third state habeas petition because he did not acknowledge the petitioner’s
filing of a third petition in March 2008 in Abrams v. Warden, No. CV08-4002319-S. See id. at
*1. The third petition was dismissed less than a month after it had been filed and the petitioner
did not appeal the dismissal of the petition. See Mem. Mot. Dismiss App. 35, ECF No. 19-35.
9

prosecutor during trial and closing argument, and (3) did the trial court err in concluding that
appellate counsel did not engage in ineffective assistance of counsel when she failed to raise all
viable instances of prosecutorial misconduct on direct appeal. See id. at 41. On April 8, 2014,
the Connecticut Appellate Court issued a per curiam decision dismissing the appeal without
comment. See Abrams v. Comm'r of Correction, 149 Conn. App. 903, 87 A.3d 631 (2014). On
May 29, 2014, the Connecticut Supreme Court denied certification to appeal from the decision of
the Connecticut Appellate Court. See Abrams v. Comm'r of Correction, 312 Conn. 905, 93 A.3d
157 (2014).
On April 1, 2010, the petitioner filed a petition for writ of habeas corpus in this court
challenging his 2001 convictions. See Abrahams v. Comm’r of Correction, Case No.
3:10cv519(MRK) (Pet. Writ Habeas Corpus, ECF No. 1). He raised four claims in the petition:
(1) trial counsel was ineffective; (2) appellate counsel was ineffective; (3) the prosecutor
engaged in prosecutorial misconduct; and (4) his convictions for attempted murder and assault in
the first degree violated the Double Jeopardy Clause of the Fifth Amendment. See id. The
respondent moved to dismiss the petition on the ground that it contained exhausted and
unexhausted claims. See Motion to Dismiss, ECF No. 7. On December 8, 2010, the court
granted the motion to dismiss because the petition was a mixed petition containing one exhausted
claim, the double jeopardy violation, and three unexhausted claims, ineffective assistance of trial
counsel, ineffective assistance of appellate counsel, and prosecutorial misconduct. See Ruling
and Order, ECF No. 15, at 14. The dismissal of the petition was without prejudice to the
petitioner filing a new federal petition after he had exhausted his available state court remedies
as to the unexhausted claims. See id. at 14-15.
On January 17, 2014, the petitioner filed a fifth state habeas corpus petition in the
10

Connecticut Superior Court for the Judicial District of Tolland at Rockville. See Abrahams v.
Warden, No. CV144006053S, 2017 WL 3480998 (Conn. Super. Ct. July 12, 2017); Mem. Mot.
Dismiss App. 56, ECF No. 19-56. In an amended petition filed on October 27, 2016, the
petitioner asserted a claim that appellate counsel was ineffective on appeal from the denial of the
of the first state habeas petition and a claim that second habeas counsel and fourth habeas
counsel were ineffective in failing to raise the claim of ineffective assistance of first appellate
habeas counsel. See Mem. Mot. Dismiss, App. 57, ECF No. 19-57. On July 12, 2017, after an
evidentiary hearing, the court denied the amended petition. See Abrahams, 2017 WL 3480998,
at *4.5 On August 7, 2017, the petitioner filed an appeal of the decision denying the fifth state
habeas petition. See Resp’t’s Mem. Mot. Dismiss App. 59, ECF No. 19-60. The appeal remains
pending.6
On October 13, 2017, the petitioner initiated this action challenging his 2001 Connecticut
convictions and sentences for attempted murder, assault in the first degree, criminal possession
of a firearm, commission of a Class A, B, or C felony with a firearm, and a violation of
probation. See Pet. Writ Habeas Corpus at 2. The respondent moved to dismiss the petition on
March 29, 2018.
II.

Standard of Review

5

The court notes that the judge who issued the decision in this case refers to the petition
as the fourth state habeas petition. See id. at *1. In describing the prior petitions filed by the
petitioner in state court, the judge did not acknowledge that the petitioner had filed a petition for
writ of habeas corpus in March 2008 in Abrams v. Warden, No. CV08-4002319-S. See Mem.
Mot. Dismiss App. 35, ECF No. 19-35 (Case Detail for Habeas Petition filed on March 20,
2008). Thus, he considered the habeas petition filed on December 11, 2009, Abrams v. Warden,
State Prison, No. TSR-CV-104003316-S, to be the third state habeas petition and the petition
addressed in his decision to be the fourth state habeas petition.
6

Information pertaining to the appeal of the fifth state habeas petition to the Connecticut
Appellate Court may be found at: http://www.jud.ct.gov/jud2.htm under Supreme and Appellate
11

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) (“[T]he state prisoner must give
the state courts an opportunity to act on his claims before he presents those claims to a federal
court in a habeas petition.”); 28 U.S.C. § 2254(b)(1)(A) (“[a]n application for a writ of habeas
corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be
granted unless it appears that – (A) the applicant has exhausted the remedies available in the
courts of the State; or (B)(1) there is an absence of available corrective process; or (ii)
circumstances exist that render such process ineffective to protect the rights of the applicant”).
The exhaustion requirement seeks to promote considerations of comity and respect between the
federal and state judicial systems. See Davila v. Davis, ___ U.S. ___, 137 S. Ct. 2058, 2064,
(2017) (“The exhaustion requirement is designed to avoid the ‘unseemly’ result of a federal court
‘upset[ting] a state court conviction without’ first according the state courts an ‘opportunity to ...
correct a constitutional violation.’”) (quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)).
To meet the exhaustion requirement, a petitioner must present the essential factual and
legal bases of his federal claim to each appropriate state court, including the highest state court
capable of reviewing it, in order to give 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). A federal claim has been
“fairly present[ed] in each appropriate state court, including a state supreme court with powers of
discretionary review,” if it “alert[s] that court to the federal nature of the claim.” Baldwin v.
Reese, 541 U.S. 27, 29 (2004) (internal parentheses and quotation marks omitted). A petitioner
“does not fairly present a claim to a state court if that court must read beyond a petition or a brief

Court Case Look-up, By Docket Number using Case No. AC 40719 (last visited Feb. 14, 2019).
12

. . . that does not alert it to the presence of a federal claim in order to find material . . . that does so.”
Id. at 32.
III.

Discussion
The petition raises four grounds. See Pet. Writ Habeas Corpus at 9-70. All four grounds are

addressed to the 2001 convictions and sentences for attempted murder, assault in the first degree,
criminal possession of a firearm, and commission of a Class A, B, or C felony with a firearm. See id.
There is no ground that is addressed to the 2001 conviction and sentence for a violation of probation.
See id.
The respondent argues that the petitioner has not fully exhausted his available state court
remedies as to grounds one, two and four of the petition and has only partially exhausted ground
three of the petition. The respondent seeks dismissal of the petition without prejudice to filing a new
petition after the petitioner has completed the exhaustion process in state court as to all grounds. The
petitioner states that he has exhausted his state court remedies as to grounds two and three and has
exhausted some of the sub-claims in both grounds one and four. See Pet’r’s Mem. Opp’n Mot.
Dismiss, ECF No. 28, at 16-22, 27, 41-47, 60-61.
A.

Ineffective Assistance of Trial Counsel

The first ground of the petition includes thirty-five sub-claims of ineffective assistance of
trial counsel. Sub-claim 33 - failure of trial counsel to object to, request a curative instruction or
move for a mistrial for instances of repeated prosecutorial misconduct, and sub-claim 34 - failure of
trial counsel to object to, request a curative instruction or move for a mistrial regarding improper jury
instructions by the trial judge, include additional sub-claims. See Pet. Writ Habeas Corpus at 9, 2259; Resp’t’s Mem. Supp. Mot. Dismiss at 36-40. The respondent argues that the petitioner has not
13

fully exhausted any of the thirty-five sub-claims of ineffective assistance of trial counsel.
1.

First and Second State Habeas Petitions

In response to the motion to dismiss, the petitioner states that he asserted twenty-three subclaims of ineffective assistance of trial counsel in his first state habeas petition. The petitioner
concedes that he did not fully exhaust those claims on appeal from the denial of the first state habeas
petition because appellate counsel withdrew the appeal before the Connecticut Appellate Court issued
a decision. The petitioner states that he has attempted to exhaust the claims raised in the first state
habeas petition by asserting an ineffective assistance of first habeas appellate counsel claim in his
fifth state habeas petition. He does not dispute that a state court judge denied the fifth state habeas
petition and that the appeal of the denial of that petition remains pending in state court.
In the second state habeas petition, the petitioner raised ineffective assistance of habeas
counsel claims. The petitioner initially contended that counsel in his first habeas state habeas petition
was ineffective in failing to raise thirteen claims of ineffective assistance of trial and appellate
counsel but withdrew or abandoned five of the thirteen claims in the evidentiary hearing held in the
case. See Mem. Mot. Dismiss App. 26, ECF No. 19-26; Abrams, 2008 WL 1823047, at *2 n.3.
The petitioner states that he attempted to amend the second state habeas petition to raise claims of
ineffective assistance of trial counsel claims, but the judge assigned to the case denied his request
because he had raised ineffective assistance of trial counsel claims in the first state habeas petition
and another judge had denied that petition on the merits. The petitioner concedes that second
appellate habeas counsel did not appeal the denial of the second state habeas petition on the merits.
The petitioner has not made clear which of the thirty-five sub-claims of ineffective assistance
of trial counsel asserted in the present petition were also raised in the first state habeas petition or in
14

the second state habeas petition through an ineffective assistance of habeas counsel claim. To the
extent that some of the sub-claims in ground one of the present petition were asserted either in the
first state habeas petition or were asserted in the second state habeas petition as part of the ineffective
assistance of first habeas counsel claims, those sub-claims are unexhausted because the petitioner did
not raise any of the sub-claims of ineffective assistance of trial counsel asserted in the first and
second state habeas petitions on appeal from the decisions denying those state habeas petitions.
2.

Fourth State Habeas Petition

The petitioner contends that he raised twenty-one of the thirty-five sub-claims of ineffective
assistance of trial counsel asserted in ground one of this petition, in the fourth state habeas petition.
by claiming that first and second habeas counsel were ineffective in failing to raise those sub-claims
of ineffective assistance of trial counsel in the first and second state habeas petitions. He identifies
those sub-claims as 1-13, 16-18, 20, 23, 25, and 29-32. See Pet’r’s Mem. Opp’n Mot. Dismiss, ECF
No. 28, at 42.
In the amended petition filed on June 16, 2012, in the fourth state action, the petitioner
asserted a claim of ineffective assistance of second habeas counsel related to counsel’s failure to raise
various claims of ineffective assistance of trial counsel, appellate counsel, and first habeas counsel.
See Mem. Mot. Dismiss App. 44, ECF No. 19-45, Abrams v. Warden, State Prison, No. TSR-CV104003316-S (Am. Pet. Writ Habeas Corpus). In count four of the amended petition, the petitioner
argued that second habeas counsel was ineffective in failing to assert eleven claims of ineffective
assistance of trial counsel. See id. at 10-12. Three of the eleven claims pertained to trial counsel’s
alleged failure to object to or preserve for appeal eight different types of prosecutorial misconduct
which had occurred during trial and closing argument. See id. On appeal from the denial of the
15

fourth state habeas petition, appellate habeas counsel raised the claim that the trial judge erred in
finding that second habeas counsel was not ineffective in failing to raise ineffective assistance of trial
counsel claims related to counsel’s alleged failure to make objections to five different types of
alleged prosecutorial misconduct: improper expression of personal opinion, commenting on facts not
in evidence, appealing to the jury’s emotions, vouching for a witness, and inducing the petitioner to
comment on the credibility of a witness. See Mem. Mot. Dismiss, App. 48, ECF No. 19-49, at 4, 2335. The Connecticut Appellate Court affirmed the denial of the fourth habeas petition in a per
curiam decision. See Abrams, 149 Conn. App. 903, 87 A.3d 631. In the petition for certification to
appeal from the dismissal of the appeal by the Connecticut Appellate Court, appellate counsel raised
the claim that the trial judge erred in finding that second habeas counsel was not ineffective in
neglecting to raise ineffective assistance of trial counsel claims related to counsel’s alleged failure to
make objections to four different types of alleged prosecutorial misconduct: improper expression of
personal opinion, commenting on facts not in evidence, appealing to the jury’s emotions and
vouching for a witness. See Resp’t’s Mem. Mot. Dismiss App. 52, ECF No. 19-53 at 1, 5-9. The
Connecticut Supreme Court denied certification to appeal. See Abrams, 312 Conn. 905, 93 A.3d 157.
Thus, it is apparent that the petitioner attempted to exhaust the ineffective assistance of trial
counsel sub-claims asserted in the present petition, 7, 8, 9, 11 and part of 33, that are related to trial
counsel’s alleged failure to object to instances or examples of prosecutorial misconduct identified as:
improper expression of personal opinion, commenting on facts not in evidence, appealing to the
jury’s emotions and vouching for a witness, through the filing and appeal of the fourth state habeas
petition. The respondent only briefly addresses whether the claims of ineffective assistance of trial
counsel raised on appeal from the denial of the fourth state habeas petition were exhausted. See
16

Resp’t’s Mem. Mot. Dismiss at 49.
The respondent does not dispute that on appeal from the denial of the fourth state habeas
petition to the Connecticut Appellate and Supreme Courts, appellate counsel raised an ineffective
assistance of trial counsel claim related to trial counsel’s failure to object to various instances or types
of prosecutorial misconduct through his claim of ineffective assistance of second habeas counsel.
The respondent, without further discussion, however, contends that the claims of ineffective
assistance of trial counsel were not exhausted on appeal from the fourth state habeas petition because
those specific claims were not raised at the hearing held to address the claims asserted in the fourth
state habeas petition and were not addressed in the decision denying the fourth state habeas petition.
See id. To the extent that this contention constitutes an argument that the petitioner procedurally
defaulted the sub-claims of ineffective assistance of trial counsel raised on appeal from the fourth
state habeas petition, the court declines to reach it at this time as there are multiple, other claims of
ineffective assistance of counsel that are unexhausted and could still be exhausted in state court. See
Abrahams v. Comm'r of Corr., No. 3:10CV519(MRK), 2010 WL 5093113, at *7 (D. Conn. Dec. 8,
2010) (declining to reach argument that one claim had been procedurally defaulted because
respondent had recommended that the court dismiss the habeas petition without prejudice to permit
the petitioner to exhaust his state court remedies as to other unexhausted claims and a determination
that one claim in the petition had been procedurally defaulted would constitute a decision on the
merits that “could render any future federal habeas application filed by Mr. Abrahams a second or
subsequent habeas application”) (citing Turner v. Artuz, 262 F.3d 118, 122 (2d Cir. 2001)).
3.

Avenue to Exhaust Claims in State Court

The petitioner does not dispute that he has not fully exhausted all of the thirty-five sub-claims
17

of ineffective assistance of trial raised in the first ground of the petition. Pursuant to 28 U.S.C. §
2254(c)(3), “[a]n applicant shall not be deemed to have exhausted the remedies available in the courts
of the State ... if he has a right under the law of the State to raise, by any available procedure, the
question presented.” See 28 U.S.C. 2254(c).
It is clear that the petitioner is in the process of attempting to exhaust the sub-claims of
ineffective assistance of counsel that he raised in the first state habeas petition by asserting a claim in
the fifth state habeas petition that first appellate habeas counsel was ineffective when he withdrew the
appeal to the Connecticut Appellate Court from the denial of the first state habeas petition and should
have raised additional sub-claims other than the single sub-claim that he did raise in his appellate
brief before withdrawing it. The appeal of the denial of the fifth state habeas petition remains
pending. Thus, the petitioner still has an avenue by which to exhaust the ineffective assistance of
counsel claims that were raised in the first state habeas petition and that are also raised in the present
petition.
The respondent argues that the sub-claims of ineffective assistance of trial counsel that are not
raised in the fifth state habeas petition and were either not raised on appeal from the denial of the
second state habeas or were not properly raised or addressed in the fourth state habeas petition or on
appeal from the denial of the fourth state habeas petition may be exhausted by raising them in a new
state habeas by asserting claims of ineffective assistance of second appellate habeas counsel, fourth
habeas counsel, fourth appellate habeas counsel and/or fifth habeas counsel in failing to assert or
properly assert those sub-claims of ineffective assistance of trial counsel. The petitioner contends
that the court should excuse his failure to exhaust his state court remedies or deem those unexhausted
sub-claims of ineffective of counsel as having been exhausted because the state court remedies are
18

ineffective and unavailable. Specifically, the petitioner argues that he should not have to return to
state court to exhaust the unexhausted sub-claims by filing another state habeas petition to assert
claims of ineffective assistance of prior habeas counsel because federal law does not recognize claims
of ineffective assistance of habeas counsel. But the petitioner is confusing the exhaustion
requirement with the merits of the claim. The fact that a claim of ineffective assistance of habeas
counsel would not succeed in federal court does not mean that a petitioner cannot use that claim in
state court as a vehicle to exhaust his claim of ineffective assistance of trial counsel, i.e., by asserting
that habeas counsel was ineffective in failing to raise the ineffective assistance of trial counsel claim
in a prior petition.
Connecticut law affords the petitioner an opportunity to exhaust the unexhausted ineffective
assistance of trial counsel claims through a state habeas petition alleging ineffective assistance of
habeas counsel for failure to raise his non-exhausted ineffective assistance of trial counsel claims.
See Iovieno v. Commissioner of Correction, 242 Conn. 689, 699–702, 699 A.2d 1003, 1009–10
(1997) (habeas petitioner has right to effective assistance of counsel in a habeas appeal and a habeas
petition is the appropriate remedy for a claim of ineffective assistance of habeas appellate counsel);
Lozada v. Warden, 223 Conn. 834, 838-39, 613 A.2d 818, 837-39 (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”). In other words, a petitioner may exhaust an ineffective assistance of trial
counsel claim by filing a state habeas petition asserting a claim that habeas trial counsel or habeas
appellate counsel was ineffective in neglecting to raise that ineffective assistance of trial counsel
19

claim because the habeas judge must necessarily decide the merits of the ineffective assistance of trial
counsel claim to determine whether habeas counsel or habeas appellate counsel was ineffective for
failing to raising the claim in a prior petition. See Lorthe v. Warden, No. 3:01-CV-1479 (AWT),
2018 WL 4845741, at *3–4 (D. Conn. Oct. 3, 2018) (recognizing that habeas case “ha[d] been
reopened and dismissed several times” but concluding that “court cannot address the petitioner’s
claims unless and until he has utilized all available means to exhaust them” and that petitioner could
still file a third habeas petition in state court asserting a claim of ineffective assistance of habeas
appellate counsel “for failing to raise all of the ineffective assistance of trial counsel claims that were
addressed in the second state habeas trial and decision”). The court concludes that the petitioner has
not demonstrated that it would be futile or that state remedies are unavailable with regard to the unexhausted sub-claims of ineffective assistance of trial counsel.
Because the petitioner still has an avenue in state court to continue to pursue the ineffective
assistance of trial counsel sub-claims that were raised in the first state habeas petition through the
claim of ineffective assistance of first habeas appellate counsel in his fifth state habeas petition and
has an avenue to assert the ineffective assistance of trial counsel sub-claims that were not raised on
the appeal from the second state habeas petition, the fourth habeas petition or on appeal from the
denial of the fourth state habeas petition, in a new state habeas petition, the court will not deem the
ineffective assistance of trial counsel sub-claims asserted in ground one of this petition as having
been exhausted. See 28 U.S.C. 2254(c)(3). Ground one of the petition is dismissed for failure to
fully exhaust state court remedies as to all sub-claims of ineffective assistance of trial counsel.
B.

Prosecutorial Misconduct

In ground two, the petitioner claims that the prosecutor engaged in multiple different types of
20

prosecutorial misconduct during the trial and in his closing argument and the cumulative effect of this
misconduct denied him a fair trial. The description of the petitioner’s prosecutorial misconduct claim
includes nine sub-headings. See Pet. Writ Habeas Corpus at 11, 60-61. The first sub-heading
describes the types of prosecutorial misconduct raised by appellate counsel on direct appeal and the
disposition of the claim of prosecutorial misconduct by the Connecticut Appellate Court. See id. at
60. In sub-headings two through nine, the petitioner contends that the prosecutor engaged in
misconduct by: (1) repeatedly commenting on facts not in evidence, (2) asking the petitioner to
comment on the veracity of the testimony of a witness, (3) repeatedly appealing to the emotions and
passions of the jury, (4) repeatedly vouching for the credibility of a witness, (5) repeatedly making
references to the petitioner’s status as an incarcerated individual, (6) repeatedly expressing his
opinions and other prosecutors’ opinions, (7) repeatedly coaching and leading witnesses during direct
examination, and (8) improperly making reference to a missing alibi witness during closing
argument. See id. at 60-61.
1.

Direct Appeal

On direct appeal to the Connecticut Appellate Court, counsel representing the petitioner raised
four types of prosecutorial misconduct. Specifically, counsel argued that: (1) the prosecutor referred
to an absent, alibi witness in closing argument in violation of the trial judge’s prior order regarding
what comments could be made as to that witness, (2) the prosecutor unnecessarily referred to the
petitioner’s status as an incarcerated individual during direct examination and during closing
argument, (3) the prosecutor made comments “about matters that were not in evidence” during
closing argument, and (4) the prosecutor improperly asked the petitioner on direct examination “to
comment on the credibility of another witness.” State v. Abrahams, 79 Conn. App. 767, 772-78, 831
21

A.2d 299, 304-07 (2003). On October 7, 2003, the Connecticut Appellate Court affirmed the
petitioner’s judgment of conviction. See id. at 782, 831 A.2d at 310.
The respondent argues that none of the prosecutorial misconduct sub-claims have been fully
exhausted to the Connecticut Supreme Court and that the four sub-claims of prosecutorial misconduct
that essentially mirror the sub-claims raised on direct appeal, sub-claims 1, 2, 5, and 8, are
procedurally defaulted because neither appellate counsel, nor the petitioner filed a timely petition for
certification to the Connecticut Supreme Court from the decision of the Connecticut Appellate Court
affirming his conviction and sentence. The petitioner concedes that he did not fully exhaust the
claims of prosecutorial misconduct raised on direct appeal.
2.

Fourth State Habeas Petition

A review of the petitioner’s description and exhaustion of the prosecutorial misconduct subclaims asserted in ground two reflects that the types or instances of prosecutorial misconduct that the
petitioner seeks to challenge are different from the types or instances of misconduct challenged by
counsel on direct appeal. See Pet. Writ Habeas Corpus at 11-12 (Ground Two, (c)(1) & (2) (“The
types of misconduct raised in this petition were not raised on appeal.”). The petitioner contends that
he attempted to exhaust the types of prosecutorial misconduct sub-claims described in ground two of
the present petition by asserting them through his claims of ineffective assistance of trial, appellate
and second habeas counsel in the fourth state habeas petition. See Pet’r’s Mem. Opp’n Mot. Dismiss,
ECF No. 28, at 44; Mem. Mot. Dismiss, App. 45, ECF No. 19-45, at 5-14.
On appeal from the denial of the fourth state habeas petition, appellate habeas counsel
asserted a claim that the trial judge erred in finding that second habeas counsel was not ineffective in
failing to raise ineffective assistance of trial and appellate counsel claims related to trial counsel’s
22

alleged failure to make objections to and appellate counsel’s failure to raise five different types of
alleged prosecutorial misconduct: improper expression of personal opinion, commenting on facts not
in evidence, appealing to the jury’s emotions, vouching for a witness, and inducing the petitioner to
comment on the credibility of a witness. See Mem. Mot. Dismiss, App. 48, ECF No. 19-49, at 4, 2335. The Connecticut Appellate Court affirmed the denial of the fourth habeas petition in a per
curiam decision. See Abrams v. Comm'r of Correction, 149 Conn. App. 903, 87 A.3d 631 (2014). In
the petition for certification to appeal from the dismissal of the appeal by the Connecticut Appellate
Court, appellate counsel asserted that the trial judge erred in finding that second habeas counsel was
not ineffective in failing to raise ineffective assistance of trial and appellate counsel claims related to
trial counsel’s alleged failure to make objections to and appellate counsel’s failure to raise four
different types of alleged prosecutorial misconduct: improper expression of personal opinion,
commenting on facts not in evidence, appealing to the jury’s emotions and vouching for a witness.
See Resp’t’s Mem. Mot. Dismiss App. 52, ECF No. 19-53 at 1, 5-9. The Connecticut Supreme Court
denied certification to appeal. See Abrams v. Comm'r of Correction, 312 Conn. 905, 93 A.3d 157
(2014).
Thus, it seems apparent that prosecutorial misconduct sub-claims 1, 3, 4, and 6 may have been
fully exhausted through the filing and appeal of the fourth state habeas petition. Although
prosecutorial misconduct sub-claim 2 was raised in the context of the ineffective assistance of second
habeas counsel claim on appeal from the denial of the fourth state habeas petition to the Connecticut
Appellate Court, appellate counsel did not include that claim in the petition for certification to the
Connecticut Supreme Court. Prosecutorial misconduct sub-claims 5, 7 and 8 were not raised on
appeal from the denial of the fourth state habeas petition. As such, prosecutorial misconduct sub23

claims 2, 5, 7 and 8 have not been fully exhausted. The court concludes that the second ground of the
petition includes exhausted and un-exhausted prosecutorial misconduct sub-claims.
3.

Avenue to Exhaust Claims in State Court

With regard to the sub-claims of prosecutorial misconduct that were not fully exhausted
through the ineffective assistance of trial, appellate and second habeas counsel claims asserted in the
fourth state habeas petition and on appeal from the denial of that petition, the court concludes that the
petitioner still may raise those sub-claims by filing a new state habeas petition to assert claims that
fourth appellate habeas counsel was ineffective in failing to raise those sub-claims on appeal from the
denial of the fourth state habeas petition. Because the petitioner still has an avenue in state court to
exhaust the unexhausted sub-claims of prosecutorial misconduct, the court will not deem those subclaims as having been exhausted. See 28 U.S.C. 2254(c)(3). Ground two of the petition is dismissed
because it includes exhausted and un-exhausted sub-claims of prosecutorial misconduct.
C.

Double Jeopardy

The petitioner asserts that his convictions and sentences for attempted murder, assault in the
first degree and criminal possession of a firearm violate the Double Jeopardy Clause of the Fifth
Amendment. The respondent argues that this claim is only partially exhausted.
The respondent acknowledges that the petitioner filed two motions to correct sentence in state
court. In the first motion, the petitioner argued that the convictions and sentences for attempted
murder and assault in the first degree violated the Double Jeopardy Clause of the Fifth Amendment.
See Mem. Mot. Dismiss, App. 37, ECF No. 19-37, at 13-14, 28-29. In the second motion, the
petitioner argued only that his convictions and sentences for assault in the first degree and criminal
possession of a firearm violated the Double Jeopardy Clause of the Fifth Amendment. See id. at 35.
24

In a hearing on February 23, 2007, the judge who had sentenced the petitioner heard testimony from
the petitioner regarding the first motion to correct illegal sentence. See id. at 28-29; App. 19-73
(First Hearing First Mot. Correct Illegal Sentence Tr. Feb. 23, 2007). Although references were
made to a second motion to correct illegal sentence at the hearing, the petitioner did not make clear
that the second motion included a different double jeopardy claim than the double jeopardy claim
raised in the first motion to correct an illegal sentence. Nor did he offer any argument with regard to
the claim in the second motion to correct illegal sentence. See id. App. 19-73 (First Hearing First
Mot. Correct Illegal Sentence Tr. 8, 11-12, 15-16, 18-19, 21-23, Feb. 23, 2007). On April 2, 2007,
the judge concluded that the petitioner’s convictions for attempted murder and attempted assault in
the first degree were not the same offense for double jeopardy purposes and denied the first motion to
correct illegal sentence. See id. App. 19-37 at 28-30.
On March 5, 2008, pursuant to the Connecticut Supreme Court’s decision in State v. Casiano,
282 Conn. 614, 922 A.2d 1065 (2007), a different state court judge held a hearing to determine
whether counsel should have been appointed in connection with the first hearing on the motion to
correct illegal sentence. See Mem. Mot. Dismiss, App. 19-73 (Second Hearing First Mot. Correct
Illegal Sentence Tr. 2-4, Mar. 5, 2008) (citing Casiano, 282 Conn. 614 at 627–28, 922 A.2d at 1073
(holding pursuant to General Statutes § 51–296(a), an indigent defendant “has a right to the
appointment of counsel for the purpose of determining whether . . . a sound basis” exists for him to
file a motion to correct an illegal sentence, and, if such a basis is determined to exist, he also has the
right to counsel for the purpose of pursuing the motion to its conclusion.)) At the hearing, after
testimony from an assistant public defender, the state court judge concluded that a sound basis did not
exist to appoint counsel for the petitioner in connection with his first motion to correct illegal
25

sentence. See id.
On April 9, 2008, a state court judge permitted the petitioner to re-argue his first motion to
correct illegal sentence. See id. App. 19-75 (Third Hearing on First Motion to Correct Illegal
Sentence Tr. 7-18, Apr. 9, 2008). In the hearing held on April 9, 2008, the petitioner did not mention
the second motion to correct an illegal sentence. Instead, he re-asserted his argument that his
convictions and sentences for attempted murder and assault in the first degree violated the Double
Jeopardy Clause of the Fifth Amendment. See id. No testimony or argument was offered as to the
double jeopardy claim asserted in the second motion to correct illegal sentence. See id. At the end of
hearing held on April 9, 2008, the judge denied the first motion for the same reasons the prior judge
had denied the motion and also concluded that the petitioner had been sentenced within the statutory
guidelines. See id. Tr. 8-10, 19. The docket reflects, however, that a clerk endorsed the second
motion to correct illegal sentence as having been denied by the judge on April 9, 2008. See id. App.
37, ECF No. 19-37, at 32.
The petitioner appealed the orders denying the first motion to correct illegal sentence. See id.
at 49; App. 38, ECF No. 19-38 at 8-9. In his brief on appeal, he noted that the trial court had not
ruled on his second motion to correct illegal sentence. See id. App. 38 at 8 n.1. He asserted his
double jeopardy claim as one claim addressed to his convictions for attempted murder, assault in the
first degree and criminal possession of a firearm. See id. at 9-23. In the petition for certification to
the Connecticut Supreme Court, however, he only argued that the convictions and sentences for
attempted murder and assault in the first degree violated the Double Jeopardy Clause of the Fifth
Amendment. See id. App. 41 at 4-11. Thus, the second double jeopardy claim which is addressed to
the petitioner’s convictions for assault in the first degree and criminal possession of a firearm has not
26

been fully exhausted.
The court cannot determine whether the petitioner still has an avenue in state court to raise his
second double jeopardy claim. Connecticut Practice Book § 43-22 provides: “the judicial authority
may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence
imposed in an illegal manner or any other disposition made in an illegal manner.” This practice book
section does not appear to limit the number of motions to correct illegal sentence that a defendant
may file. See State v. Henderson, 312 Conn. 585, 589–96, 94 A.3d 614, 616–19 (2014) (addressing
second motion to correct illegal sentence filed pursuant to Connecticut Practice Book § 43-22).
Although a clerk endorsed the petitioner’s second motion to correct illegal sentence as having been
denied at the hearing held on April 9, 2008, it seems clear from the hearing transcript that the judge
who presided over the hearing was not aware that the second motion for illegal sentence asserted a
different double jeopardy claim than the first motion and did not hear argument on the claim in the
second motion. Thus, it is possible that the petitioner may be able to re-assert the double jeopardy
argument raised in the second motion to correct illegal sentence in a new motion to correct illegal
sentence. Because the court cannot conclude that the petitioner has no avenue for relief regarding his
second double jeopardy claim, the court will not deem it to be exhausted. See Janulawicz v. CT
Comm'r of Correction, No. 3:14CV1136 (RNC), 2015 WL 5797015, at *3 (D. Conn. Sept. 30, 2015)
(“On the present record, the Court cannot say for certain that the pro se petitioner would be
procedurally barred if he were to seek relief in state court. Thus, it is better to dismiss the
[unexhausted] claims without prejudice for failure to exhaust.”) The third ground for relief is
dismissed because it includes an exhausted and an unexhausted double jeopardy claim.
D.

Ineffective Assistance of Appellate Counsel
27

Ground four of the petition asserts twenty-one sub-claims of ineffective assistance of
appellate counsel. The respondent argues that none of the sub-claims have been fully exhausted.
1.

Fourth State Habeas Petition

The petitioner contends that he exhausted sub-claims 1, 2, 3, 6, 8, 9, 11, 12, 14, 15, 16, 17,
and 18 by raising those sub-claims in his fourth state habeas petition and on appeal from the denial of
that petition. He concedes that he did not exhaust the other sub-claims of ineffective assistance of
appellate counsel asserted in the present petition.
In the fifth count of the fourth state habeas petition, the petitioner raised three claims of
ineffective assistance of appellate counsel. See Mem. Mot. Dismiss, App. 45, ECF No. 19-45, at 1314. The petitioner argued in the first claim that appellate counsel was ineffective in failing to file a
petition for certification to appeal from the decision of the Connecticut Appellate Court affirming his
convictions and argued in the third claim that appellate counsel was ineffective in failing to raise a
claim that the trial judge violated his due process rights by imposing consecutive sentences for
attempted murder and assault in the first degree in violation of the Double Jeopardy Clause of the
Fifth Amendment. See id. In the second claim, the petitioner argued that appellate counsel was
ineffective in failing to raise, and/or adequately brief, and/or adequately argue eight different issues
on appeal. Seven of those eight issues involved different types of prosecutorial misconduct. See id.
The eighth issue involved improper jury instructions on attempted murder, intent, assault in the
second degree, and the defense of mistaken identity. Thus, it appears that all of the sub-claims of
ineffective assistance of appellate counsel asserted in ground four of the present petition, except subclaims 4, 5, 7, 13, part of 18, 19, 20, and 21, were raised in the fourth state habeas petition.
In denying the fourth state habeas petition with regard to the claim of ineffective assistance of
28

appellate counsel, the judge concluded that it was unnecessary to go further than to “stat[e] that no
credible evidence was adduced supporting any allegation of substandard representation by previous
habeas counsel . . . as to [appellate counsel]. The petitioner produced no expert witness who
criticized the professional performance of any lawyer who is the subject of the petitioner's present
ineffective assistance claims.” Abrams, 2012 WL 5992687, at *2. The judge further concluded that
appellate counsel’s decision not to file a petition for certification to the Connecticut Supreme Court
was an informed and reasonable tactical decision that did not amount to ineffective performance. See
id. at *3-4.
The petitioner appealed the denial of the fourth state habeas petition. On appeal, the
petitioner raised a claim that the trial court had erred in concluding that appellate counsel had not
provided ineffective assistance in failing to raise on direct appeal all viable claims of misconduct by
the prosecutor during trial and closing arguments. See Mem. Mot. Dismiss, App. 49, ECF No. 19-49,
at 30-33. Fourth habeas appellate counsel identified four specific types of misconduct that appellate
counsel neglected to raise on direct appeal: improper expression of personal opinion, commenting on
facts not in evidence, appealing to the jury’s emotions and vouching for a witness. See id. The
Connecticut Appellate Court dismissed the appeal. See Abrams, 149 Conn. App. 903, 87 A.3d 631.
The petitioner raised the same claim in the petition for certification to the Connecticut Supreme
Court. See Mem. Mot. Dismiss, App. 52, ECF No. 19-53, at 1, 5-10. On May 29, 2014, the
Connecticut Supreme Court denied the petition for certification without opinion. See Abrams, 312
Conn. 905, 93 A.3d 157. Thus, the petitioner has arguably exhausted his sub-claims of ineffective
assistance of appellate counsel, 6, 8, 9, and 11, addressed to counsel’s alleged failure to raise all
viable instances of misconduct of the prosecutor at trial and in closing arguments that were raised in
29

the fourth state habeas petition and on appeal from the denial of the petition. The court concludes
that the fourth ground includes exhausted and unexhausted sub-claims of ineffective assistance of
appellate counsel.
2.

Avenue in State Court to Exhaust Claims

With regard to the sub-claims of ineffective assistance of appellate counsel that were not
exhausted on appeal from the fourth state habeas petition or were not otherwise raised or exhausted in
the fourth habeas petition or any other state habeas petition, the court concludes that the petitioner
still may raise those sub-claims by filing a new state habeas petition to assert claims that fourth
habeas counsel was ineffective in failing to raise all of the sub-claims of ineffective assistance of
appellate counsel in the amended petition and that fourth habeas appellate counsel was ineffective in
not raising all claims of ineffective assistance of appellate counsel that were raised in the fourth
amended petition on appeal from the denial of the amended petition. Because the court concludes
that the unexhausted sub-claims of ineffective assistance of appellate counsel claims are not barred
from review in state court, the court will not deem those sub-claims as having been exhausted.
See 28 U.S.C. 2254(c)(3). Ground four of the petition is dismissed because it includes exhausted and
un-exhausted sub-claims of ineffective assistance of appellate counsel.
E.

Dismissal or Stay

The court has concluded that all four grounds of the petition contain both exhausted and
unexhausted sub-claims. Traditionally, a mixed petition that contains both exhausted and
unexhausted claims, is dismissed without prejudice to refiling another federal habeas corpus action
after all claims have been exhausted. See Slack v. McDaniel, 529 U.S. 473, 486 (2000). Under some
circumstances, however, the district court may stay a mixed habeas petition to enable the petitioner to
30

present his unexhausted claims to the state court and then return to federal court for review of all of
his claims. A stay should be invoked only in limited circumstances, where the petition contains both
exhausted and unexhausted claims, the petitioner demonstrates good cause for failing to exhaust all
claims before filing the federal petition, and the petitioner may be time-barred if the case were
dismissed. See Rhines v. Weber, 544 U.S. 269, 277-78 (2005); see also Zarvela v. Artuz, 254 F.3d
374, 380-83 (2d Cir. 2001) (in view of the one-year limitations period for filing a federal habeas
petition set forth in 28 U.S.C. § 2244(d)(1), district courts should not to dismiss a mixed petition if an
outright dismissal would preclude petitioner from having all of his claims addressed by the federal
court).
The limitations period commences when the judgment of conviction becomes final. See 28
U.S.C. §2244(d)(1); Rivas v. Fischer, 687 F.3d 514, 533 (2d Cir. 2012) (“The statute of limitations
“runs from the latest of a number of triggering events, including the date on which the judgment
became final by the conclusion of direct review or the expiration of the time for seeking such
review.”) (internal quotation marks omitted). The limitations period may be tolled for the period
during which a properly filed state habeas petition is pending. See 28 U.S.C. 2244(d)(2).
As indicated in the procedural background section above, the petitioner filed his first state
habeas petition on March 5, 2002, while the direct appeal of his conviction was still pending. See
Mem. Mot. Dismiss, App. 15, ECF No. 19-15, (Case Detail for Abrahams v. Warden, No. CV02464618-S (Conn. Super. Ct. Mar. 5, 2002). The direct appeal of his convictions became final on
February 4, 2004, the date on which his right to file a petition for certification to the Connecticut
Supreme Court expired under Connecticut law. See 28 U.S.C. § 2244(d)(1)(A). As of February 4,
2004, however, the petitioner’s first state habeas petition was still pending. The petitioner filed each
31

of his successive state habeas petitions prior to the final disposition of each prior state habeas
petition, including the fifth state habeas petition. Because the appeal of the fifth state habeas petition
has not become final, the one-year limitations period has not begun to run.
The respondent argues that a stay is unnecessary because the statute of limitations has
remained tolled throughout the petitioner’s state habeas petitions and continues to be tolled during the
pendency of the appeal of the fifth state habeas petition. The petitioner has not shown good cause for
failing to completely exhaust his state court remedies as to all sub-claims in each ground of the
petition prior to filing this action. Thus, the court concludes that the concerns addressed in Rhines
and Zarvela are not present and there is no basis to stay this action while the petitioner exhausts his
unexhausted sub-claims in state court. Accordingly, the court will dismiss the petition without
prejudice.
IV.

Conclusion
The Respondent’s Motion to Dismiss Petition for Writ of Habeas Corpus [ECF No. 19] is

GRANTED on the ground that the petition contains both unexhausted and exhausted claims and the
Petition for Writ of Habeas Corpus, [ECF No. 1], is DISMISSED without prejudice. The petitioner
may file a new federal habeas petition after he has exhausted his available state court remedies as to
all of the sub-claims in the four grounds set forth in this petition.7

7

The petitioner is informed that he also has the option of proceeding only as to the exhausted
sub-claims in each ground of the petition. If so, he must file a motion to reopen within 30 days
seeking: (1) to proceed as to the exhausted sub-claims in each ground of the petition and (2) to
withdraw all of the unexhausted sub-claims. The motion must clearly identify each sub-claim that
the petitioner claims has been fully exhausted and explain how each sub-claim was exhausted in state
court. The petitioner is cautioned, however, that if he proceeds only as to the exhausted sub-claims,
with the intention of presenting the unexhausted sub-claims to this court after they have been
exhausted, he will run the risk that any such subsequent petition will not be considered by this court
because it would constitute a second or successive petition. See 28 U.S.C. § 2244(b)(2).
32

The court concludes that jurists of reason would not find it debatable that the petitioner has
failed to exhaust all available state court remedies as to each ground of the petition. Thus, a
certificate of appealability will not issue. See Slack, 529 U.S. at 484 (holding that, when the 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 ruling).
The Clerk is directed to enter judgment and close this case.
SO ORDERED at Hartford, Connecticut this 25th day of February, 2019.

__________/s/_______________________
Michael P. Shea
United States District Judge

33