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Moore v. Chapdelaine

United States District Court, D. Connecticut

August 23, 2016

JOE MOORE, Petitioner,
v.
WARDEN CHAPDELAINE, Respondent.

          RULING ON PETITION FOR WRIT OF HABEAS CORPUS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         Petitioner, 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.

         I. Procedural Background

         On 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.

         On 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).

         At some point after he was sentenced in state court, Mr. Moore filed a petition for sentence review.[1] 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).

         Mr. 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. See id.

         II. Standard of Review

         A 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).

         To 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.

         Failure 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).

         III. Discussion

         In this 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.[2] 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.

         IV. ...


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