Lorthe v. Warden

          RULING ON MOTION TO DISMISS SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS

          Alvin W. Thompson United States District Judge.

         The respondent has moved to dismiss the petitioner's second amended petition on the ground that the petitioner has failed to exhaust his state court remedies for the claims stated therein. Resp't's Mot. to Dismiss Second Am. Pet. [Doc.#108]. The second amended petition states eighteen claims of ineffective assistance of trial counsel, and the respondent contends that none of them have been exhausted in state court. See Second Am. Pet. [Doc.#103] at 4-5; Mem. in Supp. of Resp't's Mot. to Dismiss Second Am. Pet. for Writ of Habeas Corpus (“Resp't Mem.”) [Doc.#109] at 4. The petitioner counters that the state's highest courts have denied him leave to file a late appeal to exhaust his state court remedies, and therefore, he has satisfied the exhaustion requirement. Pet'r Obj. Mot. to Dismiss Second Am. Pet.; Mem. in Supp. of Pet'r Mot. to Grant Second Am. Pet. for Writ of Habeas Corpus (“Pet'r Mem.”) [Doc.#112] at 3. Because the court agrees that most of the claims raised in the second amended petition remain unexhausted, the motion to dismiss is being granted.

         I. Procedural History

         The court incorporates the following procedural history from the ruling on the respondent's motion to dismiss the first amended petition:

On August 7, 2001, the petitioner, Henry Lorthe, filed a petition for writ of habeas corpus [in this court], pursuant to 28 U.S.C. § 2254 [Doc.#2]. On September 13, 2001, the court ordered that the petitioner's federal petition be stayed in order to permit the petitioner an opportunity to exhaust his state court remedies [See Doc.#4]. Thereafter, the petitioner filed two state habeas actions, but did not appeal the adverse judgment entered in either of them. See Order of Dismissal [Doc.#12]. Therefore, on March 22, 2006, the court vacated its previous order staying the petition and issued a new order dismissing the petition with leave to reopen the judgment following proper exhaustion. See id.

On January 23, 2008, the court granted the petitioner's motion to reopen the case after the order was issued with respect to his appeal from the state habeas court's decision [See Doc.#17]. On June 25, 2008, following a motion to withdraw filed by respondent's counsel [See Doc.#24] and several motions for extension of time [See Doc.#s 27, 29, 31], the petitioner filed [his first] amended petition for writ of habeas corpus [Doc.#33]. Thereafter, the respondent filed an answer to the amended petition [Doc.#40], and the petitioner filed a supplemental memorandum in support of his amended petition [Doc.#47].

Following conferences with the court, the respondent moved to dismiss the amended petition because the petitioner had still failed to exhaust his claims in state court [Doc.#66]. He argued that the claims raised in the amended federal petition were different from the claims exhausted in state court. See Mem. Supp. Resp't Mot. Dismiss. [Doc.#67]. The court agreed and dismissed the petition on March 11, 2010, advising the petitioner to return to state court to exhaust his claims. See Order Granting Resp't Mot. Dismiss [Doc.#76].

On December 21, 2015, after filing another state habeas action and an appeal, the petitioner moved to reopen the court's judgment dismissing his amended federal petition [Doc.#78]. The court granted the petitioner's motion on August 18, 2016 [Doc.#88] and issued an order for the respondent to show cause why the amended petition should not be granted [Doc.#90].

In response, the respondent filed [another] motion to stay the amended petition or, alternatively, dismiss the petition in its entirety [Doc.#93]. He argue[d] that, although all of the claims in the [amended] petition ha[d] been raised and addressed in the state habeas court, the petitioner did not raise all of those claims in the Connecticut Appellate Court, which dismissed his appeal in a per curium decision. See Lorthe v. Comm'r of Correction, 153 Conn.App. 903 (2014).^[1] Thus, the respondent argue[d] that the remaining claims in the amended petition still ha[d] not been fully exhausted. The petitioner [did] not respond[] to the respondent's motion.

         Ruling on Resp't's Mot. to Stay or Dismiss Pet. for Writ of Habeas Corpus (“Ruling on Mot. to Dismiss”) [Doc.#96] 1-3. On July 11, 2017, the court dismissed the amended petition without prejudice because it agreed with the respondent that the claims raised therein had not been fully exhausted. Id. at 6-7. Although the petitioner had raised all of his ineffective assistance of counsel claims in a state habeas petition, he “expressly chose to limit his appeal of the state habeas court's decision to only [those] claims pertaining to trial counsel's performance at sentencing.” Id. at 6. The court ruled that the petitioner could move to reopen the dismissal after fully exhausting his state court remedies and include a second amended petition stating all grounds for relief with “copies of any state court decisions that reflect exhaustion of those grounds.” Id. at 7-8.

         On May 18, 2018, the petitioner moved to reopen the case [Doc.#102] and submitted the second amended petition stating eighteen grounds of ineffective assistance of trial counsel. The court granted the motion to reopen the case and ordered the respondent to respond to the second amended petition. Thereafter, on July 5, 2018, the respondent filed the instant motion to dismiss the second amended petition.

         II. Legal Standard

         A prerequisite to habeas corpus relief under 28 U.S.C. § 2254 is the exhaustion of available state remedies. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The Second Circuit requires the district court to conduct a two-part inquiry. First, a petitioner must present the factual and legal bases of his federal claim to the highest state court capable of reviewing it. Second, he must have utilized all available means to secure appellate review of his claims. See Galdamez v. Keane, 394 F.3d 68, 73-74 (2d Cir. 2005).

         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 as 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 ...