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Fine v. Erfee

United States District Court, D. Connecticut

April 11, 2017

PAUL FINE, JR., Petitioner,
WARDEN ERFE, Respondent.


          Alvin W. Thompson United States District Judge.

         The petitioner Paul Fine, Jr., has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state conviction on several grounds. As discussed below, the petition and reported cases show that the petitioner did not exhaust his state court remedies on all grounds for relief before commencing this action. Accordingly, the petition is being dismissed without prejudice to reopening.

         I. Background

         On April 8, 1991, the petitioner shot Steven O'Drain twice, causing fatal injuries. The petitioner then entered the O'Drain apartment and shot O'Drain's wife in the leg in front of her two minor children. Yvonne O'Drain's leg was amputated below the knee. See Fine v. Commissioner of Correction, 163 Conn.App. 77, 78, 134 A.3d 682, 684, cert. denied, 320 Conn. 925, 133 A.3d 879 (2016).

         On March 30, 1992, the petitioner entered a guilty plea on charges of murder and assault in the first degree. On June 9, 1992, the petitioner was sentenced to a term of imprisonment of fifty years. Id., 134 A.3d at 684. The petitioner did not file a direct appeal.

         The petitioner filed a first habeas petition that is not shown on the state court website. See Fine v. Commissioner of Correction, 147 Conn.App. 136, 137, 81 A.3d 1209, 1211 (2013) (“the respondent alleged … that in a prior habeas petition filed in the judicial district of Danbury in 1997, the petitioner … raised a claim of ineffective assistance of trial counsel under the docket number CV-96-0325409-S”). The petition was withdrawn on May 4, 1998. See id., 81 A.3d at 1211.

         On January 26, 2010, the petitioner filed a second petition for writ of habeas corpus in state court. See Fine v. Warden, State Prison, No. TSRCV104003395S, 2014 WL 7272446 (Conn. Super. Ct. Nov. 12, 2014). The petitioner included only one claim in the operative petition, the 2011 first amended petition, ineffective assistance of trial counsel directed to Attorneys Gail Heller and/or Richard Perry. He argued that, because counsel was ineffective, his guilty plea was not knowingly, voluntarily or intelligently entered. Id. at *1. The state court denied the petition on November 12, 2014.

         On May 29, 2015, the petitioner filed a petition for certification to appeal, on the ground that “it was an error of law for the court to find that ineffective assistance of standby counsel was not a claim for which habeas relief might be granted.” Fine, 163 Conn.App. At 80, 134 A.3d at 685 (internal quotation marks omitted). The habeas court denied the petition for certification and the petitioner appealed. Id., 134 A.3d at 685.

         The petitioner raised two issues on appeal: the habeas court abused its discretion in denying the petition for certification, and the habeas court improperly determined that the petitioner received effective assistance of counsel in connection with his decision to plead guilty. Id. at 78, 134 A.3d at 683. The Connecticut Appellate Court denied the petition and, on March 2, 2016, the Connecticut Supreme Court denied certification to appeal.

         The petitioner commenced this action by petition dated March 7, 2017. He challenges his conviction on four grounds: (1) ineffective assistance of counsel regarding the guilty plea; counsel represented that the petitioner would receive a sentence of 40 years; (2) “misproportioned” sentence; the petitioner understood plea bargain standards to be half of the maximum sentence; (3) the petitioner's estimated release date has been increased without explanation; and (4) ineffective assistance of trial counsel as a result of trial counsel's bias against the petitioner.

         II. Legal Standard

         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 states that he exhausted his first ground for relief in his state habeas action. He then states that he brings that claim with others in this federal petition. See Doc. No. 1 at 9 (“State Habeas Petition Exhausted-Now Filing for Federal Heabeous Regarding This and additional claims”). The petitioner refers the court to a grievance against his attorney as support for the second and fourth grounds for relief. He states he raised the last three grounds on direct appeal, but he did not ...

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