Underwood v. Day

          INITIAL REVIEW ORDER

          Victor A. Bolden, United States District Judge

         Earl M. Underwood (“Plaintiff”), currently incarcerated at the Enfield Correctional Institution, has filed a civil Complaint under 42 U.S.C. § 1983 against John Day/Habeas Unit (“Defendants”).^[1]

         For the following reasons, the Complaint is DISMISSED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Mr. Underwood claims that Defendants violated his Fourteenth Amendment rights by appointing J. Patton Brown, the attorney who had represented him in his state criminal trial, as his attorney in a state habeas petition that he filed in 2016 challenging his criminal conviction.

         A. Factual Allegations

         A trial was held in Mr. Underwood's criminal case beginning in November 2010 at the New Britain Superior Court. See Compl. at 2, 5 ¶ 6. On December 13, 2010, a jury found Mr. Underwood guilty of the offenses with which he had been charged. See Id. at 5 ¶ 6 & Ex. B at 6; State v. Underwood, HHB-CR08-0241471-T (Conn. Super. Ct. Dec. 13, 2010).^[2] On March 1, 2011, the court sentenced Mr. Underwood to seventeen years of imprisonment. See Compl., Ex. B at 6. Attorney J. Patten Brown of West Hartford, Connecticut represented Mr. Underwood at trial. See Id. at ¶ 7. On May 21, 2013, the Connecticut Appellate Court affirmed Mr. Underwood's convictions and, on October 2013, the Connecticut Supreme Court denied the petition for certification to appeal from the decision of the Connecticut Appellate Court. See State v. Underwood, 142 Conn.App. 666, 684, cert. denied, 310 Conn. 927 (2013).

         In March 2016, Mr. Underwood filed a state habeas petition in the Connecticut Superior Court for the Judicial District of New Britain challenging his conviction on multiple grounds, including ineffective assistance of trial counsel. See Compl. at 2 ¶ 5 & Ex. B at 6-10. At the end of April 2016, Mr. Underwood learned that the court had referred his habeas petition to the Connecticut Innocence Project Post Conviction Unit of the State of Connecticut Division of Public Defender Services for a determination of whether he was financially eligible for appointed counsel. See Id. & Ex. A at 4. Upon determining that Mr. Underwood was eligible for appointed counsel, legal staff at the Connecticut Innocence Project Post Conviction Unit forwarded his petition to John Day, Director of Assigned Counsel. See Id. ¶ 6 & Ex. A at 4. Director Day appointed J. Patten Brown to represent Mr. Underwood in the state habeas petition. See Id. at 5 ¶ 8.

         Because Attorney Brown had represented Mr. Underwood during his criminal case and Mr. Underwood was asserting a claim of ineffective assistance of trial counsel in his state habeas petition, Mr. Underwood found the appointment of Mr. Brown as his attorney in the state habeas petition to be illogical, erroneous and unconstitutional. See Id. ¶¶ 8-9. In June 2017, almost a year after he learned of the appointment of J. Patton Brown as his habeas attorney, Mr. Underwood filed a motion to vacate the appointment, and, on July 10, 2017, the motion was granted. See Id. at 13 ¶ 10. On July 13, 2017, Attorney Christopher Duby appeared for Mr. Underwood in his state habeas case. See Underwood v. Commissioner of Correction, TSR-CV16-4007953-S (Party & Appearance Information - July 13, 2017).

         B. Procedural History

         On January 19, 2018, Mr. Underwood filed a Complaint in this Court against John Day and the Habeas Unit. Compl. at 1. On January 24, 2018, Magistrate Judge William I. Garfinkel granted Mr. Underwood's motion to proceed in forma pauperis. ECF No. 6.

         On June 25, 2018, Mr. Underwood filed a motion for default entry. ECF No. 8.

         On July 20, 2018, Mr. Underwood filed a motion to be permitted to add an affidavit to support his Complaint. ECF No. 9.

         On August 8, 2018, the Court granted Mr. Underwood's motion to amend and permitted him to attach an ...