United States District Court, D. Connecticut
ORDER OF DISMISSAL
A. Dooley United States District Judge.
petitioner, Aubrey Johnson (“Johnson”), filed
this petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 challenging his 2010 conviction of possession of
narcotics with intent to sell. See State v. Johnson,
No. KNL-CR10-0110672-T (Conn. Super. Ct. Sept. 27,
2010). Upon review of the petition, it is
apparent that Johnson did not exhaust his state court
remedies before commencing this action. The petition must
therefore be dismissed, albeit without prejudice.
pled guilty and was sentenced on September 27, 2010 to a term
of imprisonment of four years followed by four years of
special parole. Doc. No. 1 ¶¶ 2, 3, 6. He did not
appeal his conviction. Id. ¶ 8.
March 20, 2019, Johnson filed a motion for sentence
modification in state court, challenging his sentence on the
grounds that imposition of the term of special parole
violated his rights to due process and to be free from double
jeopardy. Id. ¶ 11. He has not yet received a
hearing on his motion and is awaiting action from the court.
Id. Johnson concedes that, once the trial court
rules on his motion, he may appeal that decision.
Id. ¶ 11(e).
September 16, 2019, Johnson commenced this action challenging
his sentence on the same grounds raised in his motion for
filing a petition for writ of habeas corpus in federal court,
Johnson must properly exhaust his state court remedies.
O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999); 28 U.S.C. § 2254(b)(1). He must present the
essential factual and legal bases for his federal claims to
each appropriate state court, including the highest state
court capable of reviewing it, to afford the state courts a
full and fair “opportunity to pass upon and correct
alleged violations of its prisoners’ federal
rights.” Duncan v. Henry, 513 U.S. 364, 365
(1995) (per curiam) (internal quotation marks and citation
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 to render futile
any effort to obtain relief.” Duckworth v.
Serrano, 454 U.S. 1, 3 (1981) (per curiam); 28 U.S.C.
decision on a motion to modify sentence may be appealed.
See, e.g., State v. Lombard, 19 Conn.App. 631, 563
A.2d 1030 (1989) (considering appeal from trial court
decision granting motion to modify sentence). Johnson also
concedes in his petition that he can file an appeal once the
state court decides his motion. Thus, it is clear from the
face of the petition that state court remedies are available
to Johnson and that he is in the process of pursuing them. As
the Connecticut Supreme Court has not yet been afforded an
opportunity to review his claims, Johnson has not exhausted
his state court remedies. This federal petition is premature.
petition for writ of habeas corpus is
DISMISSED without prejudice for failure to
exhaust state court remedies before commencing this action.
Johnson may file a new habeas action ...