United States District Court, D. Connecticut
RULING ON PETITION FOR WRIT OF HABEAS CORPUS
A. BOLDEN UNITED STATES DISTRICT JUDGE
Joe Moore, is currently confined at the MacDougall-Walker
Correctional Institution in Suffield, Connecticut. He brings
this action pro se for a writ of habeas corpus under
28 U.S.C. § 2254, challenging his December 2010
convictions for robbery in the first degree, use of a firearm
in the commission of a felony, being a persistent felony
offender, and committing a crime while out on bond. For the
reasons that follow, his petition is dismissed.
October 26, 2010, in the Connecticut Superior Court for the
Judicial District of Tolland, a jury found Mr. Moore guilty
of one count of robbery in the first degree in violation of
Conn. Gen. Stat. § 53a-134(a)(4) and one count of use of
a firearm during a felony in violation of Conn. Gen. Stat.
§ 53-202k. See State v. Moore, Case No.
TTD-CR-09-0094990-T; Am. Pet. Writ of Habeas Corpus at 2-3,
ECF No. 8. A judge subsequently determined that Mr. Moore had
committed the two offenses for which he had been found
guilty, while he was on release on bond in violation of Conn.
Gen. Stat. § 53a-40b. See State v. Moore, 141
Conn.App. 814, 815, 817, 64 A.3d 787, 788, 789 (2013). Mr.
Moore also pleaded guilty to being a persistent felony
offender in violation of Conn. Gen. Stat. § 53a-40(f).
See Moore, 141 Conn.App. at 818, 64 A.3d at 789. On
December 14, 2010, a judge imposed a total effective sentence
of thirty-four years of imprisonment. See id.; Am.
Pet. Writ of Habeas Corpus at 2, ECF No. 8.
appeal, Mr. Moore challenged his convictions on two grounds.
He argued that the trial judge erred in denying his motion
for judgment of acquittal on the ground of insufficient
evidence and that his sentence enhancement violated
Apprendi v. New Jersey, 530 U.S. 466 (2000). See
Moore, 141 Conn.App. at 816, 64 A.3d at 788. On April 9,
2013, the Connecticut Appellate Court affirmed the judgment
of conviction. See Id. at 825, 64 A.3d at
793. On June 20, 2013, the Connecticut Supreme Court
denied the petition for certification for appeal to review
the decision of the appellate court. See State v.
Moore, 309 Conn. 908, 68 A.3d 663 (2013).
point after he was sentenced in state court, Mr. Moore filed
a petition for sentence review. On February 25, 2014, the
Sentence Review Division affirmed Mr. Moore’s sentence.
See State v. Moore, No. TTDCR0994904, 2014 WL
1193431 (Conn. Super. Ct. Feb. 25, 2014).
Moore also states that he filed multiple state habeas
petitions and includes three different state court docket
numbers for cases filed in 2014. See Am. Pet. Writ
of Habeas Corpus at 5-7, ECF No. 8 (citing Case Nos.
CV-14-4006224, CV14-4003025, TCR-CV-14-4006521). He indicates
that he is still awaiting the outcome of these petitions.
Standard of Review
prerequisite to habeas corpus relief under 28 U.S.C. §
2254 is the exhaustion of available state remedies. See
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999);
28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement
seeks to promote considerations of comity between the federal
and state judicial systems. See Coleman v. Thompson,
501 U.S. 722, 731 (1991).
satisfy 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 quotation marks and citation omitted). A
petitioner “does not fairly present a claim to a state
court if that court must read beyond a petition or a brief .
. . that does not alert it to the presence of a federal claim
in order to find material . . . that does so.”
Id. at 32.
to exhaust may be excused only where “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). A petitioner
cannot, however, simply wait until state appellate remedies
no longer are available and argue that the claim is
exhausted. See Galdamez v. Keane, 394 F.3d 68, 73-74
(2d Cir.), cert. denied, 544 U.S. 1025 (2005).
case, Mr. Moore raises one ground for relief. He states that
he asked his trial attorney to file motions seeking finger
print and DNA evidence, but counsel refused to the file the
motions. Am. Pet. Writ of Habeas Corpus at 9, ECF No. 8.
Thus, he claims that counsel was ineffective. He alleges that
he raised this claim in a state habeas petition, Moore v.
Warden, CV-14-4006224, in the Connecticut Superior Court
for the Judicial District of Rockville. Id. at
12. He indicates that the petition is still pending. Thus,
Mr. Moore has not exhausted his available state court
remedies as to the claim raised in the current Amended
Petition. Nor has he alleged facts that might constitute a
basis to excuse the exhaustion requirement. Accordingly, the
Amended Petition is dismissed without prejudice.