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Mitchell v. A. Cournoyer

United States District Court, D. Connecticut

April 11, 2017

JONATHAN MITCHELL, Petitioner,
v.
A. COURNOYER, Respondent.

          RULING ON PETITION FOR WRIT OF HABEAS CORPUS

          MICHAEL P. SHEA UNITED STATES DISTRICT JUDGE.

         Petitioner Jonathan Mitchell has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state conviction on the ground that he was afforded ineffective assistance of counsel. As discussed below, the petition and attached documents show that the petitioner has not exhausted his state court remedies on all grounds for relief before commencing this action. Accordingly, the petition is dismissed without prejudice to reopening.

         I. Background

         The petitioner was found guilty after a jury trial on charges of kidnapping, robbery, conspiracy to commit robbery, burglary, home invasion, carrying a pistol without a permit, attempt to commit possession of a hallucinogen and conspiracy to commit possession of a hallucinogen. On November 15, 2011, he was sentenced to a total effective term of imprisonment of twenty-five years, execution suspended after fifteen years, followed by five years of probation. Pet. at 2. The petitioner did not file a direct appeal.

         On August 23, 2012, the petitioner filed a petition for writ of habeas corpus in state court, Mitchell v. Warden, State Prison, TSR-CV12-400941-S. See ECF No. 1-4 at 1-3 (docket sheet). He challenged the representation provided by Attorney John Williams. The state court characterized the claim: “[W]hile there is some mention of Mr. Williams' trial performance, the attack upon Mr. Williams … deals almost exclusively with issues surrounding the plea, the guilty plea, or in this case, the lack of a plea.” ECF No. 1-1 at 15-16 (state habeas decision). Following an evidentiary hearing, the habeas court denied the petition. See ECF No. 1-1 at 15.

         On May 29, 2015, the petitioner filed a petition for certification to appeal, which was denied on June 4, 2015. See ECF No. 1-4 at 2. On June 19, 2015, the petitioner appealed the denial of his habeas petition to the Connecticut Appellate Court. See Id. On October 11, 2016, the Connecticut Appellate Court dismissed the appeal. See id.; see also ECF No. 1-3 at 2 (Appellate Court docket sheet); ECF No. 1-1 at 12 (Appellate Court slip opinion).

         The petitioner filed a petition for certification to appeal the dismissal to the Connecticut Supreme Court. The petition contained two questions, whether the habeas court abused its discretion in denying certification to appeal, and whether the habeas court erred in concluding that the petitioner's right to effective assistance of counsel was not violated. See Pet. for Cert., ECF No. 1-1 at 1. The petitioner described his claim as: “Trial counsel performed deficiently with respect to his pretrial representation of the petitioner and said deficiency caused the petitioner to reject a pretrial plea offer that the petitioner would have accepted, but for the deficiency of his attorney.” Id. at 3. The Connecticut Supreme Court denied certification on November 22, 2016. See ECF No. 1-2 at 1.

         The petitioner commenced this action by undated petition received by the Court on February 27, 2017. He challenges his conviction on two grounds: trial counsel was ineffective during pretrial proceedings because he failed to inform the petitioner of a plea offer and trial counsel was ineffective during trial because he was unprepared for trial.

         II. Standard of Review

         Before filing a petition for writ of habeas corpus in federal court, the petitioner must properly exhaust his state court remedies. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. § 2254(b)(1). 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).

         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). A petitioner may not, however, simply wait until appellate remedies are no longer available and then argue that the claim is exhausted. See Galdamez v. Keane, 394 F.3d 68, 72-74 (2d Cir. 2005).

         The court may sua sponte dismiss a habeas petition for failure to exhaust state remedies only if it is unmistakably clear that the petitioner has failed to exhaust his state remedies. Cf. Acosta v. Artuz, 221 F.3d 117, 125 (2d Cir. 2000) (permitting sua sponte dismissal of habeas petition as untimely only if untimeliness is “unmistakably clear from the facts alleged in the petition”). The petitioner has attached to his petition copies of the petition for certification to the Connecticut Supreme Court in which he challenges trial counsel's representation only with regard to the plea offer. He did not assert a claim for ineffective representation during trial. Thus, it is unmistakably clear that the petitioner has not exhausted his state court remedies on both claims for relief.

         When a petitioner files a mixed petition, containing exhausted and unexhausted claims and demonstrates good cause for failing to exhaust all claims before filing the federal petition, the Supreme Court has recommended staying the federal petition to afford petitioner an opportunity to exhaust his unexhausted claims in the state courts and return to federal court for review of all his claims. Rhines v. Weber, 544 U.S. 269, 277-78 (2005); see also Zarvela v. Artuz, 254 F.3d 374, 380-83 (2d Cir. 2001) (recommending that district court stay exhausted claims and dismiss unexhausted claims with directions to timely complete the exhaustion process and return to federal court). The district court must grant “a stay to exhaust claims in a mixed petition if the unexhausted claims are not plainly meritless, if the petitioner has ...


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