United States District Court, D. Connecticut
Michael P. Shea United States District Judge
Judson Brown challenges his 1999 state conviction for arson
and conspiracy to commit arson in this habeas corpus action
filed pursuant to 28 U.S.C. § 2254. He asserts three
claims, ineffective assistance of court-appointed counsel,
the lack of counsel's file at the start of trial, and
failure to canvass the petitioner before permitting him to
waive a challenge to the public defender's withdrawal of
representation. For the reasons that follow, this case is
transferred to the United States Court of Appeals for the
petitioner was charged with arson and conspiracy to commit
arson. Initially, he was represented by the Office of the
Public Defender. In November 1998, the public defender
determined that the petitioner did not meet the indigency
requirement to qualify for services. The court granted the
public defender's motion to withdraw. The petitioner
waived his right to appeal the order and requested time to
retain counsel. The petitioner did not retain counsel and
represented himself at trial. He was convicted on all counts
and sentenced to a term of imprisonment of twenty-five years.
Pet. at 69; see also State v. Brown, 256 Conn. 291,
297 & n.6, 772 A.2d 1107, 1113 & n.6 (2001). The
petitioner challenged his conviction on direct appeal on only
one ground, prosecutorial misconduct. The judgment was
affirmed. Brown, 256 Conn. at 293-94, 772 A.2d at
September 1999, the petitioner filed an application for
sentence review. On December 18, 2002, the Sentence Review
Division affirmed the petitioner's sentence. State v.
Brown, No. CR96438991, 2002 WL 31995388 (Conn. Super.
Ct. Dec. 18, 2002).
the application for sentence review was pending, the
petitioner filed his first state habeas action. On appeal of
the denial of the petition, the petitioner asserted one
ground, that the Office of the Public Defender afforded him
ineffective assistance because he did not receive his trial
file in a timely manner. The Connecticut Appellate Court
affirmed the denial and the Connecticut Supreme Court denied
certification. Brown v. Commissioner of Corr., 92
Conn.App. 382, 383, 885 A.2d 761 (2005), cert.
denied, 277 Conn. 908, 894 A.2d 989 (2006). Upon
reconsideration, however, the Connecticut Supreme Court
granted certification limited to the following issue:
“Under the circumstances of this case, did the
Appellate Court properly determine that the petitioner was
not deprived of the effective assistance of counsel?”
Brown v. Commissioner of Corr., 277 Conn. 922, 895
A.2d 795 (2006). Subsequently, the Connecticut Supreme Court
determined that certification had been improvidently granted
and dismissed the appeal. Brown v. Commissioner of
Corr., 281 Conn. 466, 915 A.2d 870 (2007).
days after the dismissal, the petitioner filed a second state
habeas action on the ground that prior habeas counsel was
ineffective. The state court denied the petition. Brown
v. Commissioner of Corr., No. CV074001599S, 2011 WL
4031135 (Conn. Super. Ct. Aug. 2, 2011). The denial was
affirmed on appeal. Brown v. Commissioner of Corr.,
141 Conn.App. 251, 253, 61 A.3d 554, 556, cert.
denied, 308 Conn. 941, 66 A.3d 883 (2013).
August 5, 2013, the petitioner filed a petition for writ of
habeas corpus in this court challenging his conviction on the
ground that he should have been afforded representation by a
public defender. Brown v. Commissioner of Corr., No.
3:13-cv-1133(JCH). On June 23, 2014, the court denied the
petition and determined that any appeal would not be taken in
good faith. Id. (ECF. NO. 29, Ruling re: Petition
for Writ of Habeas Corpus). The petitioner filed a motion for
articulation in which he attempted to assert a new claim,
that the failure of the state court to canvass him rendered
his self-representation not willing or knowing. The court
denied the motion on the ground that the issue was not
properly before the court because Brown was raising this
issue for the first time in his post-judgment motion. The
court also noted that all claims must first be raised before
the state courts. Id. (ECF No. 33).
petitioner then returned to state court and filed a third
habeas corpus action. He argued that he never knowingly and
intelligently waived his right to trial counsel, and
appellate counsel and various habeas counsel were ineffective
for failing to raise on appeal the failure to conduct a
canvass. Pet. at 71-72, 92-103. The state court denied the
petition. Pet. at 122-31. The appeal of the denial of his
petition was dismissed. Brown v. Commissioner of
Corr., 181 Conn.App. 901, 182 A.3d 112, cert.
denied, 329 Conn. 901, 2018 WL 2986193 (May 30, 2018).
6, 2018, the petitioner commenced this action challenging his
conviction on three grounds: (1) all appointed counsel were
ineffective for not challenging the arrest warrant as
defective, not seeking a Franks hearing, and not raising the
issue of improper canvass; (2) the petitioner did not have
the public defender's file before the commencement of
trial; and (3) the petitioner was not canvassed before he
waived his rights to contest the withdrawal of the public
28, section 2244 provides, in relevant part, that a
petitioner must seek permission from the Court of Appeals
before filing a second or successive habeas petition in
district court. 28 U.S.C. § 2244(b)(3)(A). Section 2244
also provides that a claim presented in a second or
successive petition that was not included in a prior petition
must be dismissed unless certain conditions are met. 28
U.S.C. § 2244(b)(2). The amendments to section 2244 have
transferred to the courts of appeal the screening function
formerly performed by the district courts. Felker v.
Turpin, 518 U.S. 651, 664 (1996). The authorization
requirement in section 2244 is jurisdictional. Torres v.
Senkowski, 316 F.3d 147, 149, 150 (2d Cir. 2009).
petitioner already has had a federal habeas petition decided
on the merits, making this petition second or successive.
See Burton v. Stewart, 549 U.S. 147, 153 (2007)
(noting that petition is second or successive because it
challenges “the same custody imposed by the same
judgment of a state court” as the first petition).
Thus, this second federal petition cannot be filed unless the
petitioner obtains permission from the Second Circuit. He
does not provide any evidence that he filed a motion with the
Second Circuit to obtain authorization for this Court to
consider this petition.
petitioner includes in his petition a letter to the Honorable
Janet C. Hall, the judge assigned to his first federal habeas
action. Pet. at 23. The petitioner states that he is
complying with the court's recommendation that he return
to this court after exhausting his state court remedies with
regard to several issues. The Court has reviewed the rulings
filed in the petitioner's first federal habeas action.
Although the court explained that it could not consider
issues that were raised for the first time in a post-judgment
motion and had not been raised before the state courts, the
court did not instruct the petitioner to exhaust his state
court remedies and return directly to this court. In this
circumstance, the Second Circuit requires the district court
to “transfer the petition … to this Court in the