United States District Court, D. Connecticut
RULING ON PETITION FOR WRIT OF HABEAS CORPUS
MICHAEL P. SHEA UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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).
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.
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.
Standard of Review
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
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).
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.
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 ...