United States District Court, D. Connecticut
HENRY Y. LORTHE, Petitioner,
RULING ON MOTION TO DISMISS SECOND AMENDED PETITION
FOR WRIT OF HABEAS CORPUS
W. Thompson United States District Judge.
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
court incorporates the following procedural history from the
ruling on the respondent's motion to dismiss the first
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). 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
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.
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.
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).
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 ...