Pentland v. Mulligan

          RULING ON RESPONDENTS' MOTION TO DISMISS

          Michael P. Shea, United States District Judge.

         Petitioner 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.

         I. Background

         The 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.

         During 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.

         In 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 854.

         On May 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).

         II. Discussion

         In 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 untimely filed.

         A. “In Custody” Requirement

         “The 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.

         The 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 so.

         Connecticut 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.

         However, 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. ...