Lindsay v. Connecticut

Filing 11

ORDER. As discussed in the attached, The 8 Motion to Amend, which seeks to reopen this action and leave to file an amended petition is DENIED without prejudice. The 9 Amended Petition for Writ of Habeas Corpus, is DISMISSED without prejudice and the 10 "Motions to Argument for Reconsideration Requesting an Evidentiary Hearing," is DENIED in all respects.Any new motion to reopen must be filed within twenty days of the date of this order and be accompanied by a second amen ded petition filed on a 28 U.S.C. § 2254 court form.The petitioner must answer all questions on the habeas petition form. In the spaces in the CLAIMS section of the form, the petitioner should separately include each ground on which he s eeks to proceed and the facts in support of each ground. The court's section 2254 amended habeas form includes space for four grounds for relief. If the petitioner seeks to raise more than four grounds for relief, he must attach separate pages t o the habeas form listing each additional ground separately and also indicate the facts in support of each ground. In addition, for each ground in the amended petition, the petitioner must indicate separately whether he exhausted that ground by raisi ng it on direct appeal to the Connecticut Appellate and Connecticut Supreme Courts, or by raising it in a collateral proceeding, either in a motion or a state habeas petition, and on appeal to the Connecticut Appellate and Connecticut Supreme Courts, from the decision in the collateral proceeding. The Clerk is directed to send the petitioner a copy of this Ruling and Order and an Amended Section 2254 Habeas Corpus Petition form. Signed by Judge Michael P. Shea on 4/13/2018. (Taykhman, N.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KEVIN LINDSAY,
Petitioner,
v.
STATE OF CONNECTICUT,
Respondent.

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Case No. 3:18cv12(MPS)

RULING AND ORDER
The petitioner, Kevin Lindsay, is currently incarcerated at the Corrigan-Radgowski
Correctional Institution in Uncasville, Connecticut (“Corrigan”). He initiated this action by
filing a one-page document designated as both a petition filed pursuant to 28 U.S.C. § 2254 and a
motion filed pursuant to 28 U.S.C. § 2255. See Pet., ECF No. 1. On February 9, 2018, the court
dismissed the petition without prejudice for failure to meet the requirements of either Local Rule
8(b), D. Conn. L. Civ. R., or Rule 2(c) of the Rules Governing Section 2254 Cases in the United
States District Courts. See Ruling and Order, ECF No. 7. The court permitted the petitioner
twenty days to move to reopen the case and to file an amended 28 U.S.C. § 2254 petition on a
court form. Pending before the court is a motion to “amend case file 3:18-cv-82(MPS),” an
amended petition and a motion for evidentiary hearing. For the reasons set forth below, the
motion to amend is denied without prejudice, the amended petition is dismissed without
prejudice and the motion for evidentiary hearing is denied.
I.

Motion to Amend and Amended Habeas Petition [ECF Nos. 8, 9]
In the motion to amend the case, the petitioner seeks permission to amend his claims and

proceed with a petition filed pursuant to 28 U.S.C. § 2254 in order to challenge his state

conviction. In support of his motion, he claims that he “could not receive a fair trial,” his trial
counsel did not perform any investigation on his behalf, his trial counsel neglected to inform the
trial judge about misconduct by a juror, and the prosecutor engaged in misconduct by misleading
the jury on “undocumented charges against [him].” Mot. Amend., ECF No. 8 at 1. On the
second and third pages of the motion, the petitioner lists the names of the attorneys who
represented him at trial, on direct appeal, in a state habeas petition, and on appeal from the denial
of a state habeas petition. See id. at 2-3. The appeal of the state habeas petition remains
pending. See id. at 3. The petitioner also mentions the denial of a motion to correct illegal
sentence on February 15, 2018, but gives no details regarding the date on which the motion was
filed or the claims raised in the motion. Id.
The petitioner asserts that he exhausted “all avenues he could” and seeks leave to reopen
the case and file an amended petition to challenge his state court conviction in this court. Id.
Attached to the motion are what appear to be pages from a brief filed in support of the appeal of
the denial of his state habeas petition and copies of the amended petition and return to the
amended petition that he filed in the state habeas petition, Lindsay v. Warden, State Prison,
Docket No. CV 14-4006085-S. See id. at 4-21.
The motion to amend is accompanied by an amended habeas petition filed on a section
2254 court form. See Am. Pet. Writ Habeas Corpus, ECF No. 9. The amended petition is
deficient, however, in that it fails to include answers to all of the questions in the petition. As an
example, in the section seeking information regarding post-conviction motions or petitions, the
petitioner does not list the name of the court, case number, or grounds raised in the third petition

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or motion filed by him in state court, but indicates that he received a hearing and that the petition
or motion was denied. See id. at 7-8. In addition, the amended petition lists one ground for
relief that sets forth at least nine separate claims, including ineffective assistance of counsel,
illegal sentence, double jeopardy, actual innocence, juror misconduct, admission of hearsay
evidence, perjury by a witness, and prosecutorial misconduct. See id. at 9. There are no facts in
support of any of the claims and there is no clear indication of how each claim has been
exhausted in state court. Instead, the petitioner answers “yes” to the question of “If you did not
exhaust your state court remedies on Ground One, briefly explain why?” Id. He further
indicates that he raised “the issue” in ground one on both direct appeal and in either a postconviction motion or a state habeas petition. Id. at 9-10. He answers both yes and no to the
question of whether he appealed from the denial of any motion or state habeas petition. See id. at
10. To the extent that he did appeal from any decision on a post-conviction motion or state
habeas petition, he filed the appeal in the Connecticut Superior Court for the Judicial District of
Tolland at Rockville. See id.
In dismissing the petition for writ of habeas corpus, the court informed the petitioner that
Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts
provides that a “petition must: (1) specify all grounds for relief available to the petitioner; (2)
state the facts supporting each ground; (3) state the relief requested; (4) be printed, typewritten,
or legibly handwritten; and (5) be signed under penalty of perjury.” In addition, the court
directed the petitioner to list each ground for which he seeks relief and indicate how he
exhausted his state court remedies as to each ground for relief. Although the amended petition is

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filed on the court’s section 2254 form, it does not list each ground for relief separately. Nor does
it indicate the facts in support of each ground or clearly state how each ground was exhausted in
state court. Thus, the amended petition is deficient because it fails to completely comply with
the court’s prior order and Rule 2(c) of the Rules Governing Section 2254 Cases in the United
States District Courts. The motion to reopen is denied without prejudice and the amended
petition is dismissed without prejudice. The court will permit the petitioner an additional twenty
days to file a second motion to reopen and a second amended petition on a section 2254 court
form.
II.

“Motions to Argument for Reconsideration Requesting an Evidentiary Hearing”
[ECF No. 10]
The petitioner requests that the court reverse or vacate his state court conviction. He

claims that he has “come to this higher court to seek justice.” He sets forth three or more claims
in support of his request for habeas relief and facts in support of those claims. See id. at 1-17.
The court has not previously considered or denied a request for an evidentiary hearing. Thus,
any reconsideration of such an order is misplaced.
Furthermore, the Supreme Court has held that review pursuant to 28 U.S.C. § 2254(d)(1)
by a federal court of claims in a habeas petition filed by a prisoner challenging his state court
conviction, “is limited to the record that was before the state court that adjudicated the claim on
the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). The petitioner has offered no facts
or basis to support his request for an evidentiary hearing. See 28 U.S.C. § 2254(e)(2) (providing
that court should not hold an evidentiary hearing unless a petitioner has “failed to develop the
factual basis of a claim in State court proceedings” and “shows that—(A) the claim relies on—(i)
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a new rule of constitutional law made retroactive to cases on collateral review by the Supreme
Court that was previously unavailable” or relies on “(ii) a factual predicate that could not have
been previously discovered through exercise of due diligence; and” that “(B) the facts underlying
the claim would be sufficient to establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found the applicant guilty of the
underlying offense.”); Pinholster, 563 U.S. at 186 (Sections 2254(d)(1) and (e)(2) are intended to
“ensure that ‘[f]ederal courts sitting in habeas are not an alternative forum for trying facts and
issues which a prisoner made insufficient effort to pursue in state proceedings.’”) (quoting
Williams v. Taylor, 529 U.S. 420, 437 (2000)). In view of the denial of the motion to amend, the
dismissal of the amended petition, and the fact that the petitioner has set forth no basis on which
to hold an evidentiary hearing in this matter, the motion for evidentiary hearing is denied.
Conclusion
The Motion to Amend, [ECF No. 8], which seeks to reopen this action and leave to file
an amended petition is DENIED without prejudice. The Amended Petition for Writ of Habeas
Corpus, [ECF No. 9], is DISMISSED without prejudice and the “Motions to Argument for
Reconsideration Requesting an Evidentiary Hearing,” [ECF No. 10], is DENIED in all respects.
Any new motion to reopen must be filed within twenty days of the date of this order and
be accompanied by a second amended petition filed on a 28 U.S.C. § 2254 court form.
The petitioner must answer all questions on the habeas petition form. In the spaces in the
CLAIMS section of the form, the petitioner should separately include each ground on which he
seeks to proceed and the facts in support of each ground. The court’s section 2254 amended

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habeas form includes space for four grounds for relief. If the petitioner seeks to raise more than
four grounds for relief, he must attach separate pages to the habeas form listing each additional
ground separately and also indicate the facts in support of each ground. In addition, for each
ground in the amended petition, the petitioner must indicate separately whether he exhausted that
ground by raising it on direct appeal to the Connecticut Appellate and Connecticut Supreme
Courts, or by raising it in a collateral proceeding, either in a motion or a state habeas petition,
and on appeal to the Connecticut Appellate and Connecticut Supreme Courts, from the decision
in the collateral proceeding. The Clerk is directed to send the petitioner a copy of this Ruling
and Order and an Amended Section 2254 Habeas Corpus Petition form.
SO ORDERED at Hartford, Connecticut this 13th day of April, 2018.
_____/s/_____________________________
Michael P. Shea
United States District Judge

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