Spiegelmann v. Erfe

Filing 14

ORDER granting 12 Motion to Dismiss without prejudice to refilling after exhausting state court remedies. The Clerk is directed to provide a copy of the enclosed ruling to the Plaintiff and close the file without prejudice to reopening an amended petition compliant with the attached ruling. Signed by Judge Vanessa L. Bryant on 3/29/2018. (Hudson, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
STEPHEN E. SPIEGELMANN,
Petitioner,
v.
WARDEN SCOTT ERFE,
Respondent.

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No. 3:17-cv-2069 (VLB)

March 29, 2018

RULING ON MOTION TO DISMISS PETITION FOR WRIT OF
HABEAS CORPUS (Dkt. No. 12)
On November 27, 2017, the petitioner, Stephen E. Spiegelmann, an
inmate currently confined at Cheshire Correctional Institution in Cheshire,
Connecticut, filed a petition for writ of habeas corpus, pursuant to 28
U.S.C. § 2254, against the facility’s warden, Scott Erfe.1 The respondent
moved to dismiss the petition on March 2, 2018, arguing that the petitioner
has failed to exhaust his state court remedies with respect to the claims
raised in the petition. Resp’t’s Mot. to Dismiss (“Resp’t’s Mot.”) (Dkt. No.
12); Resp’t’s Mem. of Law in Supp. of Mot. to Dismiss (“Resp’t’s Mem.”)
(Dkt. No. 12-1). The petitioner filed a memorandum of law in opposition to
the respondent’s motion on March 16, 2018. Pet’r’s Mem. in Resp. to
Resp’t’s Mot. to Dismiss (“Pet’r’s Mem.”) (Dkt. No. 13). For the following
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The petition was docketed on December 12, 2017. However,
pursuant to the “prison mailbox rule,” the petition is deemed filed at the
moment the petitioner gave it to prison officials for filing, which the Court
can presume is November 27, 2017, the day the petitioner signed the
petition. See Hardy v. Conway, 162 F. App’x 61, 62 (2d Cir. 2006) (pro se
petitioner’s habeas petition deemed filed at moment he gives it to prison
officials); Johnson v. Coombe, 156 F. Supp.2d 273, 277 (S.D.N.Y. 2001)
(court assumes prisoner gave habeas petition to prison officials on date he
signed petition).

reasons, the respondent’s motion to dismiss is GRANTED and the petition
for writ of habeas corpus is DISMISSED without prejudice subject to
refiling.
I. Standard of Review
This Court reviews a motion to dismiss a habeas petition according
to the same principles as a motion to dismiss a civil complaint under Fed.
R. Civ. P. 12(b)(6). See Purdy v. Bennett, 214 F. Supp.2d 348, 353 (S.D.N.Y.
2002). To survive a motion to dismiss, the petition “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court must
accept as true the factual allegations in the petition and draw all reasonable
inferences in the petitioner’s favor. Id.
In deciding a motion to dismiss a habeas petition, “[t]he Court must
confine its consideration to facts stated on the face of the [p]etition, in
documents appended to the [p]etition or incorporated in the [p]etition by
reference, and to matters of which judicial notice may be taken.” Williams
v. Breslin, 274 F. Supp.2d 421, 425 (S.D.N.Y. 2003) (internal quotations
omitted). “Where . . . the [petition] was filed pro se, it must be construed
liberally with ‘special solicitude’ and interpreted to raise the strongest
claims that it suggests.” Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013)
(quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). This principle

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does not, however, apply to the legal conclusions that the petitioner draws
in the petition. Ashcroft, 556 U.S. at 678.
A prerequisite to habeas corpus relief under § 2254 is the exhaustion
of available state remedies. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). The Second Circuit requires the district
court to conduct a two-part inquiry. First, a petitioner must present the
factual and legal bases of his federal claim to the highest state court
capable of reviewing it. Second, he must have utilized all available means
to secure appellate review of his claims. See Galdamez v. Keane, 394 F.3d
68, 73-74 (2d Cir. 2005). The petitioner must litigate all claims in state court
before he may litigate those claims in federal court. See Rose v. Lundy,
455 U.S. 509, 515-22 (1982). 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).
In Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001), the Second Circuit
held that a district judge, when confronted with a “mixed petition”
containing both exhausted and unexhausted habeas claims has discretion
either to dismiss the petition in its entirety or dismiss only the unexhausted
claims and stay the balance of the petition. In some cases, as in Zarvela, a
stay of the petition is more appropriate because “an outright dismissal
could jeopardize the timeliness of a collateral attack.” Id. at 380 (quoting

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Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000)); see also Duncan v.
Walker, 533 U.S. 167, 181 (2001) (pendency of first federal habeas petition
did not toll limitations period under 28 U.S.C. § 2244(d)(2)).
More recently, in Rhines v. Weber, 544 U.S. 269, 277 (2005), the
United States Supreme Court held that staying a mixed petition
“decreas[es] a petitioner’s incentive to exhaust all his claims in state court
prior to filing his federal petition.” It permits a petitioner to delay
resolution of his federal proceedings. Id. Therefore, the Court held that
“stay and abeyance is only appropriate when the district court determines
there was good cause for the petitioner’s failure to exhaust his claims first
in state court.” Id. Even if he had good cause for failure to exhaust, the
district court should not grant stay if the unexhausted claims are plainly
meritless. Id.
II. Procedural History
The history of the petitioner’s state criminal proceedings and postconviction proceedings are not disputed.
On October 17, 2001, the petitioner was convicted after a jury trial of
three counts of sexual assault in the first degree, in violation of
Connecticut General Statutes § 53a-70(a)(2), two counts of risk of injury to
a child, in violation of Connecticut General Statutes (Rev. to 1997) § 5321(1), one count of risk of injury to a child, in violation of Connecticut
General Statutes (Rev. to 1997) § 53a-21(2), and one count of unlawful
restraint in the first degree, in violation of Connecticut General Statutes §

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53a-95(a). State v. Spiegelmann, 81 Conn. App. 441, 443 (2004), Rep’t Ex. F
(Dkt. No. 12-10); Direct Appeal R., Resp’t Ex. A (Dkt. No. 12-5) at 32. The
trial court sentenced him to sixty years of incarceration. Spiegelmann, 81
Conn. App. at 443.
The petition appealed his convictions on three grounds: (1) the trial
court improperly permitted the state to introduce highly prejudicial
pornographic material seized from his home without proof that the victim
had been exposed to such material; (2) the prosecutor engaged in
impropriety during cross-examination of the petitioner and during closing
argument; and (3) the trial court improperly admitted prejudicial hearsay
evidence under the constancy of accusation doctrine. Pet’r’s Appellate Ct.
Br., Resp’t Ex. B (Dkt. No. 12-6) at 3-4. The Connecticut Appellate Court
rejected the petitioner’s claims and affirmed the trial court’s judgment.
Spiegelmann, 81 Conn. App. at 443. On April 7, 2004, the Connecticut
Supreme Court denied the petitioner’s petition for certification to appeal
the Appellate Court’s decision. State v. Spiegelmann, 268 Conn. 921
(2004), Rep’t Ex. H (Dkt. No. 12-12).
Seven months later, the petitioner filed his first petition for writ of
habeas corpus in state court. Spiegelmann v. Warden, No. CV044000190,
Santos., J., 2010 WL 3672347 (Conn. Super. Ct. Aug. 26, 2010). He claimed
that his trial counsel, Martin McQuillan, was ineffective by failing to: (a)
conduct sufficient consultation regarding the state’s medical evidence; (b)
meaningfully challenge the state’s medical testimony; (c) present medical

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testimony to support the petitioner’s innocence; (d) introduce medical
reports concerning the victim’s behavior and mental health; (e) object to
constancy of accusation witnesses; (f) object to the prosecutor’s crossexamination of the petitioner; (g) conduct sufficient expert consultation
concerning criminal child sexual abuse; and (h) present expert testimony
on criminal child sexual abuse. Id. at *1; State Habeas Appeal R., Resp’t
Ex. I (Dkt. No. 12-13) at 8, 11. The petitioner also claimed that his appellate
counsel, Anthony David Grudberg, ineffectively represented him during
direct appeal by failing to: (a) challenge the trial court’s admission of
testimony from constancy of accusation witnesses that the victim had told
them about oral, anal, and vaginal contact with the petitioner; and (b)
thoroughly address all of the prosecutor’s improprieties during trial and
conduct a harmless error analysis. Spiegelmann, 2010 WL 3672347, *1;
State Habeas Appeal R., Resp’t Ex. I at 9-10.
At trial, the state habeas court heard testimony from the petitioner,
McQuillan, Grudberg, two legal expert witnesses, a forensic pathologist,
and a forensic psychologist and reviewed the criminal trial transcripts.
Spiegelmann, 2010 WL 3672347, *1. Afterwards, the state habeas court
denied the petition, concluding that the petitioner had failed to prove either
ineffective assistance of trial counsel or ineffective assistance of appellate
counsel. Id. at *24.
The petitioner appealed the state habeas court’s decision to the
Connecticut Appellate Court challenging only the habeas court’s rejection

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of his claim that McQuillan was ineffective by failing to challenge and rebut
the state’s evidence with testimony from an expert on child sexual abuse.
Pet’r’s Br. in State Habeas Appeal, Resp’t Ex. J (Dkt. No. 12-14) at 3-4;
Stephen S. v. Commissioner of Correction, 134 Conn. App. 801, 802 (2012),
Resp’t Ex. M (Dkt. No. 12-17). The Appellate Court affirmed the habeas
court’s judgment, concluding that McQuillan consulted with two experts
prior to trial and made reasonable strategic choices during the trial.
Stephen S., 134 Conn. App. at 821. On May 9, 2012, the Connecticut
Supreme Court denied the petitioner’s petition for certification to appeal
the Appellate Court’s decision. Stephen S. v. Commissioner of Correction,
304 Conn. 932 (2012), Resp’t Ex. O (Dkt. No. 12-19).
While his first state habeas action was pending on appeal, the
petitioner filed his second state habeas case. Spiegelmann v. Warden, No.
TSRCV114004287S, Fuger, J., 2016 WL 2935559 (Conn. Super. Ct. May 2,
2016). In his second petition, the petitioner claimed that his first habeas
counsel, Bruce McIntyre, was ineffective because he failed to raise two
additional claims of ineffective assistance of trial counsel. Id.; Am. Pet. in
Second State Habeas, Resp’t Ex. P (Dkt. No. 12-20) at 6-7. Specifically, the
petitioner claimed that McIntyre failed to address McQuillan’s failure to
properly analyze and investigate the state’s evidence against him and
consult and present expert testimony to rebut the sexual assault
allegations. Am. Pet. in Second State Habeas, Resp’t Ex. P at 6-7. The
petitioner also claimed that he had received ineffective assistance of

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habeas appellate counsel and raised a freestanding claim of ineffective
assistance of trial counsel based on McQuillan’s failure to present expert
testimony. Id. at 7-9.
In an opinion dated May 2, 2016, the state habeas court denied the
second petition, finding it to be successive and without any basis in law or
fact. Spiegelmann, 2016 WL 2935559, *2. The petitioner appealed this
decision but later withdrew the appeal on July 19, 2016. Pet. (Dkt. No. 1) at
11; Second State Habeas Withdraw, Resp’t Ex. S (Dkt. No. 12-23) at 4.
While his second state habeas case was pending, the petitioner filed
a third habeas petition in state court. Spiegelmann v. Commissioner of
Correction, No. TSRCV164008106S, State of Connecticut Judicial Branch,
Civil Case Inquiry, http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=TSRCV164008106S. The petitioner asserts that he has
withdrawn his third petition. Pet. at 11. However, the Connecticut Judicial
Branch Inquiry of the case does not reflect that the petition has been
withdrawn. Rather, it shows that the petition is pending and that a status
conference is scheduled for May 4, 2018. Spiegelmann, No.
TSRCV164008106S, http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=TSRCV164008106S.
On November 27, 2017, the petitioner filed the instant § 2254 petition
in this Court. In this petition, he raises three claims: (1) ineffective
assistance of trial counsel; (2) ineffective assistance of appellate counsel;
and (3) actual innocence. Pet. at 13, 27, 31. With respect to his first claim,

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the petitioner asserts that McQuillan, his trial counsel, failed to: (a) present
evidence of his custody dispute with his ex-wife for purposes of showing a
motive for the allegations of sexual abuse; (b) challenge the admission of
prejudicial pornographic evidence seized from his home; (c) challenge the
credibility of Nurse Murphy, the nurse practitioner who examined the
victim; (d) adequately prepare a defense; (e) conduct a pretrial
investigation and call Dr. Dennis Bekeny and Dr. Colston McEvoy, both of
whom would have provided valuable defense evidence; (f) procure a
pediatric psychologist expert to challenge the state’s psychiatric experts
and contact several fact witnesses who would have testified for the
petitioner; (g) investigate the petitioner’s case and call witnesses who
could have testified to the petitioner’s innocence; and (h) seek a
competency examination of the victim to determine her ability to testify at
trial. Pet. at 13-25. The petitioner claims that Grudberg, his appellate
counsel, was ineffective by failing to: (a) raise the issue of the redacted
psychological records of the victim; and (b) raise a claim of actual
innocence on direct appeal. Id. at 28-29. Although labeled as a
freestanding, “actual innocence” claim, the petitioner’s third ground for
relief consists of duplicative claims of ineffective assistance of trial
counsel and challenges to the trial court’s decision to exclude the vicitm’s
psychiatric records and sentence imposition. See id. at 31-36.
The petitioner acknowledges that all but one of the claims in his
federal petition are unexhausted. Pet. at 13, 40. The one exhausted claim

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is McQuillan’s alleged failure to prepare a defense at trial (Claim (1)(d)).
While difficult to decipher, the Court surmises that this claim asserts
several challenges to Mcquillan’s representation. In support of his claim
that McQuillan failed to prepare a defense, the petitioner argues that
Mcquillan failed to (i) “call an important fact witness,” (ii) call a medical
expert to testify at trial, (iii) challenge the physical evidence of sexual
abuse, and (iv) call Dr. Rau, the clinical professor with whom he consulted
prior to trial. See id. at 17-18. Aside from perhaps his challenge to
Mcquillan’s failure to “call an important fact witness,” the petitioner did
challenge Mcquillan’s failure to challenge the state’s medical expert
testimony and physical evidence and failure to rebut that evidence with a
defense expert in his first state habeas petition. See 2010 WL 3672347, *1.
Nevertheless, the Court agrees that the majority of the claims raised in the
federal petition are unexhausted.
III. Analysis
The respondent argues in his motion to dismiss that the petitioner,
by his own admission, has submitted a “mixed petition” because most of
the claims in his petition are unexhausted. Therefore, he argues that the
petition should be dismissed under § 2254(b)(1)(A). Resp’t’s Mem. at 13-18.
The petitioner counters that he did not deliberately bypass the
exhaustion requirement and that he can show cause and prejudice for his
failure to exhaust. Pet’r’s Mem. at 1. Specifically, he argues that the state
habeas court, Kaplan, J., abused his discretion by precluding the petitioner

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from raising several claims it found frivolous when ruling on the
petitioner’s first habeas counsel’s motion to withdraw from the case.
Pet’r’s Mem. at 2-4. The petitioner attached Judge Kaplan’s decision
ordering counsel to continue representing the petitioner but finding the
following claims as wholly frivolous: (a) McQuillan’s failure to call a
psychiatrist/psychologist as a witness; (b) McQuillan’s failure to call a child
witness expert; (c) McQuillan’s failure to call character witnesses; (d)
McQuillan’s failure to question the victim and the victim’s mother; (e)
McQuillan’s failure to use an investigator; (f) McQuillan’s failure to object to
the use of inflammatory evidence in the form of an e-mail correspondence
involving the petitioner; (g) Grudberg’s failure to brief the issue involving
the e-mail correspondence; (h) the trial court’s improper admission of the
e-mail correspondence; and (i) actual innocence. Pet’r’s Ex. 1 (Dkt. No. 132). Thus, the petitioner argues that he could not exhaust these issues in
state court because Judge Kaplan erroneously excluded them from his
state petition. Pet’r’s Mem. at 2-4.
In addition to arguing cause and prejudice for his failure to exhaust,
the petitioner contends that second habeas counsel, Attorney Evan
Buchberger, “did absolutely nothing to prepare a defense at the habeas
trial” and that he has been trying to exhaust his remedies in state court to
no avail. Pet’r’s Mem. at 6-8. He then proceeds to list multiple ineffective
assistance of counsel claims against McQuillan and Grudberg in his reply
memorandum, some of which he did not address in his federal petition,

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including claims that McQuillan failed to impeach his ex-wife and file a
motion for judgment of acquittal at trial. See Pet’r’s Mem. at 12, 18-19.
At the outset, this Court notes that the petitioner has presented his
claims in a confusing, verbose, and disorganized manner. It is difficult for
this Court to review the state court judgment under § 2254 without a clear
and concise statement of the claims the petitioner wishes to pursue. See
LeGrand v. Smith, 85 Civ. 5115 (MGC), 1987 WL 7402, *8 n.12 (S.D.N.Y. Feb.
25, 1987) (clear concise statement of claims would aid future consideration
of exhausted habeas petition on merits).
Further, as shown above, the petitioner appears to state more claims
for habeas relief in his reply memorandum to the motion to dismiss, which
even further confuses the exhaustion issue and does not provide adequate
notice of his claims to either the Court or the respondent. Notably, a party
cannot amend a pleading by language inserted in a memorandum of law.
Philadelphia Indemnity Insurance Co. v. United States, 13 Civ. 987 (VLB),
2014 WL 12754997, *4 (D. Conn. Sep. 30, 2014).
Because the petitioner has admittedly failed to exhaust most of the
claims in his federal petition, this Court cannot afford him any relief under
§ 2254. The state courts have not had a full and fair opportunity to address
several of his ineffective assistance of counsel claims, including
McQuillan’s failure to present evidence of the petitioner’s custody dispute
with his ex-wife, challenge the admission of the pornographic evidence,
and present testimony from Dr. Bekeny and Dr. McEvoy. Furthermore, the

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petitioner has a third state habeas petition currently pending in state court
in which he could at least attempt to raise many of these claims regarding
his state convictions. See Spiegelmann, No. TSRCV164008106S.
The petitioner’s contention that the state habeas court prevented him
from exhausting the claims in his federal petition is without merit. A ruling
on an attorney’s motion to withdraw as counsel under Anders v. California,
386 U.S. 738 (1967), does not constitute a decision on the merits of the
petitioner’s claims. See Lorthe v. Commissioner of Correction, No.
CV104003658 (JMN), 2013 WL 1849280, *4 (Conn. Super. Ct. Apr. 10, 2013).
Thus, the petitioner would not be precluded from raising those claims in a
subsequent proceeding. See Taylor v. Warden, CV124004709 (JMN), 2014
WL 783569, *4-5 (Conn. Super. Ct. Jan. 23, 2014) (rejecting respondent’s
argument that res judicata bars petitioner from raising claims previously
found as frivolous in Anders ruling).
Even if the petitioner believed he was precluded from raising certain
claims in the state habeas court, the claims he now raises in his federal
petition are different from the claims addressed by Judge Kaplan’s
decision on the Anders motion. In his federal petition, the petitioner claims
that Mcquillan failed to (1) present evidence of the petitioner’s custody
dispute with his ex-wife, (2) challenge the trial court’s admission of
prejudicial pornographic evidence, (3) present testimony from Dr. Bekeny
and Dr. McEvoy, and (4) seek a competency examination of the victim prior
to her testimony. Pet. at 13-25. He also claims that Grudberg on appeal

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failed to (1) brief the issue of the victim’s psychological records and (2)
raise a claim of actual innocence. Id. at 28-29. None of those claims were
addressed in Judge Kaplan’s ruling on the Anders motion.
The petitioner has not shown cause for his failure to exhaust the
multitude of claims raised in his federal petition, and his reliance on Judge
Kaplan’s decision to show prejudice is without merit. He has not presented
evidence tending to show that he has no time remaining on his limitations
period. Therefore, a dismissal of his federal petition without prejudice is
more appropriate than an order staying the federal petition. See Zarvela,
254 F.3d at 380 (district court may dismiss mixed petition without prejudice
if doing so does not jeopardize timeliness of collateral attack under oneyear limitations period). The Court will, therefore, DISMISS the petition
without prejudice subject to refiling after the petitioner has exhausted his
state court remedies.
ORDERS
The respondents’ motion to dismiss (Dkt. No. 12) is GRANTED. The
petition is hereby DISMISSED without prejudice subject to refiling after the
petitioner exhausts his state court remedies. When the petitioner exhausts
his state court remedies with respect to each claim he wishes to pursue in
federal court, he may file an amended petition stating in clear and concise
terms each of those claims, the state court decision(s) addressing those
claims, and the dates and citations of those decisions.
SO ORDERED this 29th day of March, 2018 at Hartford, Connecticut.

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VANESSA
BRYANT

Digitally signed by VANESSA BRYANT
DN: cn=VANESSA BRYANT, o, ou,
email=[e-mail]
URTS.GOV, c=US
Date: 2018.03.29 17:54:28 -04'00'

________________________________
VANESSA L. BRYANT
UNITED STATES DISTRICT JUDGE

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