United States District Court, D. Connecticut
MEMORANDUM OF DECISION GRANTING RESPONDENT'S
MOTION TO STAY
Vanessa L. Bryant United States District Judge
Angel Ortiz (“Ortiz” or “Petitioner”)
brings this habeas corpus action against Commissioner of
Correction Scott Semple (“Respondent”) under 28
U.S.C. 2254, alleging actual innocence and ineffective
assistance of counsel. On April 27, 2017, Respondent filed a
Motion to Stay or Dismiss the petition because it is a
“mixed petition” containing both exhausted and
unexhausted claims. Because Petitioner's actual innocence
claim cannot survive as a freestanding claim,
Petitioner's ineffective assistance claims are
unexhausted, and the statute of limitations would now bar
Petitioner from reasserting his claims timely in federal
court after exhausting his administrative remedies,
Respondent moves the Court to stay Petitioner's case
pending exhaustion of his state court remedies. In the
alternative, respondent moves for dismissal. For the
foregoing reasons, Respondent's Motion to Stay is
November 28, 1995, Petitioner was arraigned for crimes
relating to the kidnapping, robbery, and murder of two
individuals. [Dkt. 10-2 (Record on Direct Appeal) at
7.] Petitioner pleaded not guilty and was
represented from October 5, 1995 through trial and sentencing
by Special Public Defender Michael Graham (now deceased).
[Dkt. 10-10 (Record of First State Habeas Appeal) at 6.]
After a jury trial, Petitioner and his co-defendant Julio
Diaz-Marrero were found guilty of multiple capital felonies,
murder, felony murder, conspiracy to commit murder,
kidnapping, and robbery, kidnapping in the first degree, and
robbery in the first degree. [Dkt. 10-1 (State v.
Ortiz, 252 Conn. 533, 536-37 (2000).] The trial court
sentenced Petitioner to a total effective sentence of life
imprisonment without the possibility of release plus forty
years' imprisonment. Id.
Public Defender Pamela Nagy represented Petitioner on direct
appeal to the Connecticut Supreme Court. [Dkt. 10-3 at 70.]
Petitioner and his co-defendant both argued on appeal that
the trial court improperly (1) refused to grant them a new
probable cause hearing despite the state's failure to
disclose in a timely manner certain exculpatory evidence; (2)
refused to suppress the photographic identification of
Diaz-Marrero on the ground that it was overly suggestive; (3)
deprived the defendants of their right to confront witnesses
by refusing to conduct an in camera review of psychiatric
records of the individual who identified Diaz-Marrero's
photograph; (4) rendered judgments of conviction on three
counts of conspiracy and sentenced the defendants separately
for each conviction, thereby violating the constitutional
prohibition against double jeopardy; and (5) refused to
instruct the jury regarding the credibility of an alleged
witness. State v. Ortiz, 252 Conn. at 541-42. In
addition, Petitioner asserted (1) that the trial court
improperly refused to allow him to present evidence of a
third party's culpability; (2) that he was denied his
right to a speedy trial; (3) that the trial court improperly
refused to grant him a new trial on the basis that the
evidence presented was clearly insufficient to warrant a jury
verdict of guilty; and (4) that the trial court provided the
jury with an improper instruction on the presumption of
innocence and reasonable doubt, thereby tainting the verdict.
Id. at 542. The court affirmed the judgments of
conviction "on all counts except for [the] three
conspiracy counts which [it] reverse[d] and remand[ed] to the
trial court with direction to combine the three conspiracy
convictions and to vacate the sentences for two of the
conspiracy convictions." Id. at 542.
17, 2000, Petitioner filed a habeas corpus petition in
Connecticut Superior Court. Record of First State Habeas
Appeal at 4. On March 22, 2002, appointed counsel filed an
amended habeas petition alleging ineffective assistance of
trial counsel for (1) failure to provide notice of
Petitioner's alibi as required in Connecticut; (2)
failure to attempt to establish cause for late notice of
Petitioner's alibi; (3) failure to provide proper
foundation for the trial court to review the mental health
records of the witness who provided photographic
identification of Petitioner's co-defendant; and (4)
failure to subpoena records from the Social Security
Administration pertaining to that witness for impeachment
purposes. Id. at 6-10. Petitioner did not argue his
counsel was ineffective for failing to have Petitioner
testify at his trial. Id. On February 27, 2004, the
Connecticut Superior Court issued a written memorandum of
decision finding Petitioner's trial counsel was not
deficient and even if he had been deficient, Petitioner was
not prejudiced. [Dkt. 10-8 (Ortiz v. Warden, No.
CV000598893S, 2004 WL 503961 (Conn. Super. Ct. Feb. 27,
appealed as to only one of the ineffective assistance claims
he raised with the Superior Court: that his trial counsel
improperly failed to “make a showing that the mental
condition of a state's witness had affected her
testimonial capacity sufficient to warrant an in camera
review of the witness' medical records.” [Dkt. 10-9
(Ortiz v. Commissioner of Correction, 91 Conn.App.
484, 485 (2005).] The Connecticut Appellate Court upheld the
Superior Court's habeas decision, finding “nothing
in the record, either from the testimony of [the witness] at
the criminal trial or . . . at the habeas trial that suggests
that [the witness's] testimonial capacity was impaired by
a condition that would have been revealed in her medical
records.” Id. at 491.
next sought discretionary review of his habeas petition by
the Connecticut Supreme Court, framing the issues as (1)
whether the Appellate Court erred in holding the Petitioner
failed to prove that he received deficient representation by
his trial counsel, and (2) what threshold a criminal
defendant must meet to trigger in camera review of a
witness's confidential mental health records to ensure a
fair balance of the witness's right to privacy and the
defendant's right to probative impeachment material.
[Dkt. 10-14 (Petition for Certification) at 2.] The
Connecticut Supreme Court declined certification.
9, 2006, Petitioner filed a federal habeas petition in the
District of Connecticut under 28 U.S.C. § 2254.
[See Dkt. 10-16 (Ortiz v. Martin,
3:06-cv-895, 2009 WL 179785 (Jan. 26, 2009 (Droney, J.).] On
January 26, 2009, Judge Droney dismissed the petition without
prejudice for failure to exhaust state court remedies.
Id. The Court specifically noted Petitioner's
failure to present an alibi defense on appeal of the denial
of the state habeas petition. Id. at *2.
appears Petitioner filed a new habeas petition with the
Connecticut Superior Court on March 27, 2006, while his
federal petition was pending. [Dkt. 10-20 at 6.] The Superior
Court petition was inactive from July 2006 through March 26,
2009, when the Superior Court issued a Scheduling Order.
Id. In August 2012, Special Public Defender Theodore
Koch III filed a one-count amended habeas petition claiming
actual innocence, asserting that he was not present at the
crime scene. [Id.; Dkt. 10-18 (Ortiz v.
Comm'r of Corr., 166 Conn.App. 635 (2016) (stating
grounds for amended petition).] The Superior Court held a
trial on the amended petition, at which Petitioner testified
that he did not participate in the crimes of his conviction
and was not present for their commission. [Dkt. 10-28
(Transcript of Habeas Trial) at 14-15, 94-95.]
Petitioner's co-defendant testified that he committed the
offenses for which both parties were convicted but that
Petitioner was neither present nor involved. Id. at
14-15, 39-40. However, Petitioner's co-defendant's
trial counsel testified that their client told them he had
nothing to do with the crimes and did not know Petitioner.
Id. at 64, 76. The Connecticut Superior Court denied
Petitioner's actual innocence claim, finding
Petitioner's co-defendant had questionable credibility
and noting his testimony was not corroborated by physical
evidence or other witness testimony. [Dkt. 10-17 (Ortiz
v. Warden, No. CV064001027S, 2014 WL 5356463, at *13-15
(Conn. Super. Ct. Sept. 17, 2014).] The Court also ascribed
little weight to Petitioner's testimony regarding his own
innocence, stating he had no corroboration for his alibi
because his alibi (his wife) was deceased and her testimony
was stricken at the criminal trial without an opportunity for
cross examination. Id. at *11.
appealed the Superior Court's actual innocence decision
to the Connecticut Appellate Court. [Dkt. 10-18 (Ortiz v.
Comm'r of Corr., 166 Conn.App. 635 (2016).] On July
5, 2016, the Connecticut Appellate Court affirmed the
Superior Court's judgment. Id. On July 25, 2016,
Petitioner sought certification to the Connecticut Supreme
Court, framing the issue as whether the Appellate Court
properly affirmed the Superior Court's finding that
Petitioner did not prove he is actually innocence under
applicable law. [Dkt. 10-23 (Petition for Certification) at
2.] On September 13, 2016, the Connecticut Supreme Court
denied the petition for certification without comment. [Dkt.
Petitioner initiated the instant federal habeas petition on
February 6, 2017. [Dkt. 1.] Petitioner claims (1) actual
innocence based on his co-defendant's testimony and the
testimony of his co-defendant's counsel, and (2)
ineffective assistance of counsel based on (a) failure to
timely submit notice of an alibi, (b) failure to have
Petitioner testify at his criminal trial, (c) failure to
impeach “crucial prosecution witnesses, ” and (d)
failure to present exculpatory evidence. Id.
Statement of Law
stated in Judge Droney's Ruling on Petitioner's First
Petition for Writ of Habeas Corpus (2009 WL 179785), a
prerequisite to habeas corpus relief under 28 U.S.C.
§ 2254 is the exhaustion of available state
remedies. See O'Sullivan v. Boercke, 526 U.S.
838, 842 (1999); 28 U.S.C. § 2254(b)(1)(A). The
exhaustion requirement “is designed to give the state
courts a full and fair opportunity to resolve federal
constitutional claims before those claims are presented to
the federal courts.” See O'Sullivan, 526
U.S. at 845. The Second Circuit requires the petitioner to
present “the essential factual and legal premises of
his federal constitutional claim to the highest state court
capable of reviewing it” before seeking federal review.
Cotto v. Herbert,331 F.3d 217, 237 (2d Cir. 2003).
In other words, “[t]he claim presented to the state
court . . . must be the ‘substantial equivalent' of
the claim raised in the federal habeas petition.”
Jones v. Keane,329 F.3d 290, ...