United States District Court, D. Connecticut
RULING ON PETITION FOR WRIT OF HABEAS CORPUS
W. Thompson United States District Judge.
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.
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
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.
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 The petition was withdrawn on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.
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.
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.
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.
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
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 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 ...