United States District Court, D. Connecticut
ROBERT V. PENTLAND, Petitioner,
MULLIGAN, et al., Respondents.
RULING ON RESPONDENTS' MOTION TO DISMISS
Michael P. Shea, United States District Judge.
Robert V. Pentland challenges his 2011 state conviction for
witness tampering in this habeas corpus action filed pursuant
to 28 U.S.C. § 2254. He asserts two claims: ineffective
assistance of counsel and prosecutorial misconduct. The
respondents move to dismiss the petition on three grounds:
(1) the petitioner is not in custody on the sentence he
challenges, (2) the petition was untimely filed, and (3) the
petitioner has not exhausted his state court remedies. For
the reasons that follow, the respondents' motion is
granted and the petition is dismissed.
petitioner was arrested in December 2010 on charges of
witness tampering. Pentland v. Commissioner of
Correction, 176 Conn.App. 779, 782, 169 A.3d 851, 853,
cert. denied, 327 Conn. 978, 174 A.3d 800 (2017).
The charges were tried to the court. The petitioner was found
guilty on two counts of witness tampering and was sentenced
to a total term of imprisonment of one year. The petitioner
served his sentence from December 20, 2010, until December
19, 2011. Id. at 783, 169 A.3d at 854.
this time, however, the petitioner also was being held in
lieu of bond on several other charges relating to sexual
assault of a minor from 1998 to 2009. After the sentence on
the witness tampering charges ended, the petitioner continued
to be held in lieu of bond on the sexual assault charges.
Id., 169 A.3d at 854.
2012, the petitioner entered a guilty plea on the sexual
assault charges and was sentenced to a total effective term
of imprisonment of eighteen and one-half year followed by
twenty-five years of probation. Id., 169 A.3d at
22, 2015, the petitioner filed a state habeas action
challenging the 2011 conviction for witness tampering,
Pentland v. Warden, State Prison, No.
CV15-4007248-S. The petitioner argued that he had been denied
effective assistance of counsel. Resp'ts' Mem. App.
A, ECF No. 14-3 at 31-55. On March 29, 2016, the state court
dismissed the petition on the ground that the petitioner was
not in custody on the witness tampering conviction at the
time he filed the petition. Id., ECF No. 14-3 at 56.
On September 26, 2017, the Connecticut Appellate Court
affirmed the dismissal, Pentland, 176 Conn.App. at
788, 169 A.3d at 856, and the Connecticut Supreme Court
denied certification to appeal. Pentland v. Commissioner
of Correction, 327 Conn. 978, 174 A.3d 800 (2017).
opposition to the motion to dismiss, the petitioner addresses
two of the grounds in the motion to dismiss, the in custody
requirement and exhaustion of state court remedies, and then
proceeds to discuss the merits of the petition. He does not
address the respondents' argument that the petition was
“In Custody” Requirement
federal habeas statute gives the United States district court
jurisdiction to entertain petitions for habeas relief only
from persons who are ‘in custody in violation
of the Constitution or laws or treaties of the United
States.'” Maleng v. Cook, 490 U.S. 488,
490 (1989). The petitioner bears the burden of demonstrating
the court's jurisdiction. See Thompson v. County of
Franklin, 15 F.3d 245, 249 (2d Cir. 1994) (noting that
jurisdictional requirements must be affirmatively stated in
the record). This jurisdictional requirement has been
interpreted to require that the petitioner be “in
custody” under the conviction or sentence he is
challenging at the time he filed the petition,
Maleng, 490 U.S. at 490-91, or under a consecutive
sentence imposed at the same time as the conviction or
sentence being challenged. See Garlotte v. Fordice,
515 U.S. 39, 41 (1995). Once the sentence for a particular
conviction has fully expired, a habeas petitioner is no
longer in custody on that conviction. Maleng, 490
U.S. at 492.
Supreme Court permits a challenge to an expired sentence
where the expired sentence is one of a series of consecutive
sentences. Garlotte, 515 U.S. at 45-47. In the case
of consecutive sentences, habeas relief on any one of the
sentences will reduce the total incarceration time for the
petitioner. Id. at 47. In this case, the
petitioner's two sentences are not consecutive. His
sentence on the witness tampering charges ended in December
2011. He was not sentenced on the sexual assault charges
until 2012. The petitioner argues, however, that because he
remained in custody in lieu of bond from the end of his
sentence for witness tampering until he was sentenced on the
sexual assault charges, he had a continuous period of custody
and, therefore, that the holding in Garlotte
applies. The Supreme Court has not extended the holding of
Garlotte beyond consecutive sentences and there are
no reported cases from courts within the Second Circuit doing
statutes provide that if the petitioner's 2011 sentence
were reversed on appeal and if during the period of that
sentence he had also been held in lieu of bond on other
charges, then the time served on the 2011 sentence would be
credited toward any new sentence as presentence custody time.
See Conn. Gen. Stat. § 18-98d(a)(1)(B)
(“if a person is serving a term of imprisonment at the
same time such person is in presentence confinement on
another charge and the conviction for such imprisonment is
reversed on appeal, such person shall be entitled, in any
sentence subsequently imposed, to a reduction based on such
presentence confinement….”). Thus, any order
vacating the 2011 sentenced would shorten the
petitioner's confinement on his current sentence.
the fact that an expired sentence has been used to enhance a
current sentence is insufficient to render the petitioner
“in custody” on the expired sentence. See
Garlotte, 515 U.S. at 45 (“We held [in
Maleng] that the potential use of a conviction to
enhance a sentence for subsequent offenses did not suffice to
render a person ‘in custody' within the meaning of
the habeas statute”) (citing Maleng, 490 U.S.
at 492). The proper procedure to assert this challenge is to
challenge the current sentence as illegally enhanced by the
unlawful prior conviction. See Garlotte, 515 U.S. at
45 n. 4; Curtis v. United States,511 U.S. 485, 512
& n. 7 (1994); Williams v. Edwards, 195 F.3d 95,
96 (2d Cir. ...