United States District Court, D. Connecticut
ORDER OF DISMISSAL OF PETITION FOR WRIT OF HABEAS
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
Courtney Green, currently incarcerated at the Osborn
Correctional Institution in Somers, Connecticut, has filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 seeking release from custody until his state
habeas action is adjudicated. Green alleges that the state
court's delay in hearing his habeas petition violates his
due process rights and right of access to the courts. After
careful review, the Court concludes that the petition must be
April 20, 2009, a judgment of conviction entered against
Green pursuant to a guilty plea on three counts of assault in
the first degree. Doc. 1 ¶¶ 2, 5, 6. On July 20,
2009, Green was sentenced to a term of imprisonment of twenty
years. Id. ¶¶ 2, 3. Green did not directly
appeal the verdict or sentence. Id. ¶ 8.
March 23, 2018, Green filed a state petition for a writ of
habeas corpus, challenging his convictions based on
ineffective assistance of counsel. Doc. 6 at 8; Civil Case
Details for Green v. Comm'r of Corr., No.
TSR-CV18-4009462-S (Conn. Super. Ct.),
On May 1, 2019, Green was assigned a hearing date of March 3,
2021 for his state habeas petition. Id.
3, 2019, Green filed a second state habeas petition, in which
he raised the same substantive argument as the present
federal habeas petition: that the time frame for his habeas
petition to be heard is not prompt and expeditious. See
Green v. Comm'r of Corr., No. TSR-CV19-5000208-S
(Conn. Super. Ct. June 11, 2019),
Judge John M. Newsom of the Connecticut Superior Court denied
that petition on June 11, 2019 for failure to
“challenge the conditions of confinement or the
underlying conviction, ” as required for a habeas court
to exercise jurisdiction. Id.
2254 authorizes a federal court to grant a writ of habeas
corpus to a state prisoner “only on the ground that he
is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. §
2254(a). Thus, in order to be cognizable in federal court, a
state prisoner's habeas claim typically must “call
into question the lawfulness of [his] conviction or
confinement.” Heck v. Humphrey, 512 U.S. 477,
481 (1994). Petitioner does not assert such a challenge. He
makes no reference to the fact of his conviction or the
length of his sentence. Rather, he alleges that the state
court's delay in hearing his habeas petition violates his
due process rights and right of access to the
some circumstances, a delay in adjudication of a direct
appeal may constitute a constitutional violation subject
to habeas review under 28 U.S.C. § 2254. See Diaz v.
Henderson, 905 F.2d 652 (2d Cir. 1990); Simmons v.
Reynolds, 898 F.2d 865 (2d Cir. 1990). By contrast, the
Second Circuit has squarely held that “alleged errors
in a post-conviction proceeding are not grounds for §
2254 review because federal law does not require states to
provide a post-conviction mechanism for relief.”
Word v. Lord, 648 F.3d 129, 132 (2d Cir. 2011)
(citing cases); see also Calderon v. Keane, 97
Civ. 2116 (RCC) (JCF), 2002 WL 1205745, at *6 (S.D.N.Y. Feb.
21, 2002) (“Claims that focus only on the state's
post-conviction remedy and not on the conviction which is the
basis for his incarceration are not cognizable on habeas
review.”); Sparman v. Edwards, 26 F.Supp.2d
450, 468 n. 13 (E.D.N.Y. 1997) (“28 U.S.C. § 2254
only authorizes federal courts to review the
constitutionality of a state criminal conviction, not
infirmities in a state post-conviction relief
proceeding.”). Consequently, “a due process
challenge to New York's collateral post-conviction
proceedings[ ] does not state a claim that is cognizable
under federal habeas review.” Word, 648 F.3d
at 131; see also Cruz v. Smith, No. 05 Civ 10703,
2010 WL 582348, at *29 (S.D.N.Y. Feb. 17, 2010) (“As no
constitutional provision requires a state to grant
post-conviction review, most federal courts have rejected due
process claims arising out of the conduct of state
post-conviction proceedings, holding that such claims are not
cognizable on habeas review.” (citation omitted)).
Applying the same logic, courts in this district have held
that access to court claims arising out of state
post-conviction proceedings are also not cognizable under
Section 2254. See, e.g., Galarza v. Murphy,
No. 3:09CV1453 VLB, 2010 WL 2232627, at *1 (D. Conn. May 26,
circuits have consistently affirmed this principle in the
context of delayed habeas adjudication. In Mason v.
Myers, 208 F.3d 414 (3d Cir. 2000), the Third Circuit
addressed whether a state court's delay of four years in
processing a petition for collateral relief under
Pennsylvania's Post Conviction Relief Act constituted a
due process violation cognizable in a § 2254 proceeding.
Id. at 415. The Third Circuit rejected the claim,
holding that “[e]ven if such a delay constitutes a due
process violation . . . . a delay in a collateral proceeding
can[not] be the basis of a petition for a writ of habeas
corpus.” Id. at 417. Similarly, in
Montgomery v. Meloy, the Seventh Circuit held that
“delay in receiving a ruling on a discretionary state
collateral appeal is not a ground for federal habeas corpus
relief, ” reasoning that “[n]o constitutional
provision or federal law entitles [petitioner] to any state
collateral review . . . let alone prompt collateral
review.” 90 F.3d at 1206. The Tenth Circuit reached the
same conclusion in United States v. Dago, 441 F.3d
1238 (10th Cir. 2006) in the context of a district
court's seven-and-a-half year delay in denying a petition
for collateral relief: “a delay in post-conviction
proceedings does not give rise to an independent due process
claim that would justify granting a defendant habeas
relief.” Id. at 1248. Likewise, in Franzen
v. Brinkman, 877 F.2d 26 (9th Cir. 1989), the Ninth
Circuit affirmed dismissal of federal habeas corpus petition
alleging that a state court's delay in deciding the
petitioner's request for state post-conviction relief
violated his due process rights because “a petition
alleging errors in the state post-conviction review process
is not addressable through habeas corpus proceedings.”
Id. at 26.
these principles here, Petitioner's claims based on a
delay in hearing his state habeas petition are not cognizable
on federal habeas review. Petitioner challenges a
discretionary scheduling order entered in a discretionary
state proceeding. As Petitioner has no federal right to a
state habeas proceeding, any perceived error in that
proceeding is not cognizable under section 2254.
Word, 648 F.3d at 131; see also Hilton v.
Lantz, No. 3:08-cv-1957 (RNC), 2009 WL 2195109, at *2
(D. Conn. July 23, 2009) (dismissing federal habeas petition
asserting delay in adjudication of appeal); Galarza,
2010 WL 2232627, at *1 (same). Accordingly, Green's
petition for writ of habeas corpus is dismissed.
petition for writ of habeas corpus is DISMISSED for failure
to assert a cognizable claim under 28 U.S.C. § 2254. The
Court concludes that petitioner has failed to make a
substantial showing of a denial of a constitutional right.
Accordingly, a ...