United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS PETITION FOR WRIT OF
HABEAS CORPUS AND ORDER TO SHOW CAUSE
Michael P. Shea United States District Judge
petitioner, Michael Torres, is currently confined at Osborn
Correctional Institution. In this habeas corpus action filed
pursuant to 28 U.S.C. § 2254, the petitioner challenges
his 2004 conviction for sexual assault in the first degree
and risk of injury to a minor.
a jury trial in July 2004, the petitioner was convicted of
sexual assault in the first degree and risk of injury to a
minor. He was sentenced to a thirty-year term of
imprisonment, execution suspended after twenty-one years.
Pet., Doc. No. 1, at 2.
direct appeal, the petitioner argued that he was denied a
fair trial because the court improperly instructed the jury
regarding the penetration element of sexual assault in the
first degree and the date of the offense. The Connecticut
Appellate Court affirmed the conviction and the Connecticut
Supreme Court denied certification to appeal. State v.
Michael T., 97 Conn.App. 478, 905 A.2d 670, cert.
denied, 280 Conn. 927, 909 A.2d 524 (2006).
January 2005, the petitioner filed a state habeas action on
the ground that trial counsel was ineffective and he was
actually innocent of the charge. He included six examples of
ineffective assistance, alleging that trial counsel failed to
(1) present an expert in the pretrial stage of the case
regarding the petitioner's propensity, or lack of
propensity, to engage in sexual abuse of a child; (2) present
an expert at trial on the issue of the reliability of the
victim's disclosure; (3) present an expert at the
pretrial stage concerning the disease trichomonas; (4)
present an expert at trial concerning the disease
trichomonas; (5) adequately investigate the case; and (6)
engage in effective pretrial discovery. Torres v.
Warden, No. CV05-4000278-S, 2008 WL 2426600, at *10
(Conn. Super. Ct. May 28, 2008). The habeas court found that
trial counsel was ineffective in failing to present expert
testimony on issues of the reliability of the victim's
disclosures and the disease trichomonas. Id. at *13.
respondent appealed. The petitioner did not file a
cross-appeal regarding the other four examples of ineffective
assistance on which his petition was denied. The Connecticut
Appellate Court affirmed the judgment of the habeas court
regarding trial counsel's failure to effectively
challenge the state's inculpatory medical evidence.
Michael T. v. Commissioner of Correction, 122
Conn.App. 416, 417-18, 999 A.2d 818, 819 (2010). The
Connecticut Supreme Court reversed on the issue of expert
testimony regarding trichomonas and remanded the case to the
Appellate Court to consider the issue of expert testimony on
the suggestibility of the victim and the reliability of her
recollections. Michael T. v. Commissioner of
Correction, 307 Conn. 84, 103-04, 52 A.3d 655, 667
(2012). On remand, the Connecticut Appellate Court held that
trial counsel's failure to present expert testimony on
the reliability of the victim's disclosures constituted
ineffective assistance. Michael T. v. Commissioner of
Correction, 144 Conn.App. 45, 47, 71 A.3d 660, 662
(2013). Again, the Connecticut Supreme Court reversed.
Michael T. v. Commissioner of Correction, 319 Conn.
623, 624-26, 126 A.3d 558, 559-60 (2015).
The Federal Petition
petitioner challenges his conviction on four grounds. In the
first two grounds, the petitioner asserts claims of improper
jury instructions. He contends that the trial judge erred
when he explained the penetration element of the crime sexual
assault in the first degree and in charging the jury
regarding the date of the offense. In the third ground, the
petitioner asserts the same six examples of ineffective
assistance of trial counsel asserted in his state habeas
petition. In the fourth ground, the petitioner argues that
the Connecticut Supreme Court relied on factual inaccuracies
in its opinion.
Standard of Review
filing a petition for writ of habeas corpus in federal court,
the petitioner must properly exhaust his state court
remedies. See O'Sullivan v. Boerckel, 526 U.S.
838, 842 (1999); 28 U.S.C. § 2254(b)(1)(A). The
petitioner must present the essential factual and legal bases
for his federal claims to each appropriate state court,
including the highest state court capable of reviewing it, to
afford the 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).
Second Circuit requires the district court to conduct a
two-part inquiry. First, the 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.), cert. denied, 544 U.S. 1025 (2005).
The federal claims must be clearly set forth in the petition
or brief. See Baldwin v. Reese, 541 U.S. 27, 32
(2004) (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”).
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 appellate remedies no
longer are available and argue that the claim is exhausted.
See Galdamez, 394 F.3d at 73-74.