STEFAN R. UNDERHILL, District Judge.
Petitioner Quentin Van Stepney, an inmate currently confined at Corrigan-Radgowski Correctional Institution in Uncasville, Connecticut, brings this action pro se seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Stepney challenges his 2004 state court convictions for sexual assault and risk of injury to a minor on two grounds. The respondent moves to dismiss the second amended petition, arguing that Stepney has not exhausted his state court remedies with respect to the second ground for relief. For the reasons set forth below, the respondent's motion to dismiss (doc. 29) is DENIED, and this case is stayed to permit Stepney to exhaust his state court remedies.
A 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); 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement seeks to promote considerations of comity between the federal and state judicial systems. Cotto v. Hebert, 331 F.3d 217, 237 (2d Cir. 1982).
To satisfy the exhaustion requirement, a petitioner must present the essential factual and legal bases of his federal claim to each appropriate state court, including the highest state court capable of reviewing it, in order to give 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 omitted). A federal claim has been "fairly present[ed] in each appropriate state court, including a state supreme court with powers of discretionary review," if it "alert[s] that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal parentheses and quotation marks omitted). A petitioner "does not fairly present a claim to a state court if that court must read beyond a petition or a brief. . . that does not alert it to the presence of a federal claim in order to find material . . . that does so." Id. at 32.
Failure to exhaust may be excused only where "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). A petitioner cannot, however, simply wait until appellate remedies no longer are available and argue that the claim is exhausted. Galdamez v. Keane, 394 F.3d 68, 73-74 (2d Cir.), cert. denied, 544 U.S. 1025 (2005).
On October 15, 2003, a jury in the Connecticut Superior Court for the Judicial District of New Britain convicted Stepney of one count of sexual assault in the first degree in violation of Connecticut General Statutes § 53a-71(a)(1), one count of sexual assault in the second degree in violation of Connecticut General Statutes § 53a-71(a)(1), and one count of risk of injury to a minor in violation of Connecticut General Statutes § 53a-21(a)(2). Amended Pet. Writ Habeas Corpus at 2. On January 2, 2004, a Superior Court judge sentenced Stepney to a total effective sentence of thirty years of imprisonment followed by ten years of special parole. State v. Stepney, 94 Conn.App. 72, 73, n.1 (2006).
On appeal, Stepney asserted that the trial judge erred in admitting statements allegedly made by the minor victim under the medical treatment exception to the hearsay rule. Id. On February 28, 2006, the Connecticut Appellate Court affirmed the judgment of conviction. Id. at 78. On May 16, 2006, the Connecticut Supreme Court denied the petition for certification to appeal from the decision of the Connecticut Appellate Court. State v. Stepney, 278 Conn. 911 (2006).
On April 30, 2004, in the Connecticut Superior Court for the Judicial District of Tolland at Rockville, Stepney filed a petition for writ of habeas corpus claiming ineffective assistance of trial counsel. Stepney amended his petition twice. Resp't's Mot. Dismiss Br., Ex. H, at 5-13. On November 10, 2009, after an evidentiary hearing, a Superior Court judge denied the second amended petition for writ of habeas corpus. Stepney v. Warden, No. CV040004526S, 2009 WL 4282815 (Conn. Super. Ct. Nov. 10, 2009). On June 7, 2011, the Connecticut Appellate Court dismissed the Stepney's appeal from the decision denying the amended state habeas petition. Stepney v. Comm'r of Corr., 129 Conn.App. 364 (2011). Stepney did not file a petition for certification to the Connecticut Supreme Court regarding his petition for ineffective assistance of trial counsel.
Stepney includes two grounds for habeas relief in his second amended petition. He argues that the trial judge erred in admitting the statements of the minor victim under the medical treatment exception to the hearsay rule, and that trial counsel was ineffective in failing to investigate and offer into evidence a second DNA report and in failing to adequately cross-examine the victim. The respondent moves to dismiss the petition, arguing that Stepney has not exhausted his state court remedies with respect to his ineffective assistance of counsel claim.
The respondent argues that Stepney did not fairly present his federal constitutional claim (ineffective assistance of counsel) to the highest state court in Connecticut. Stepney concedes that he did not raise his ineffective assistance of counsel claim to the Connecticut Supreme Court. Because Stepney's ineffective assistance of counsel claim has not been fairly presented to the highest state court, it is not exhausted. Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990) ("[T]he exhaustion requirement mandates that federal claims be presented to the highest court of the pertinent state before a federal court may consider the petition."). In response to the motion to dismiss, Stepney argues that he should be excused from exhausting his state court remedies because the habeas judge did not grant his petition for certification to appeal to the Connecticut Appellate and Supreme Courts.
On November 17, 2009, after the habeas judge denied the second amended petition for writ of habeas corpus, Stepney filed a petition for certification to appeal from the decision pursuant to Connecticut General Statutes § 52-470(b). Resp't's Mot. Dismiss Br., Ex. H, at 60-61. On November 23, 2009, the judge denied the petition for certification. Id. On December 1, 2009, Stepney filed an appeal of the habeas judge's decision with the Connecticut Appellate Court. Id. at 62. On June 7, 2011, the Connecticut Appellate Court dismissed Stepney's appeal from the decision denying the amended state habeas petition. Stepney, 129 Conn. App. at 368. Stepney then had twenty days to file a petition for certification with the Connecticut Supreme Court. Conn. Practice Book § 84-4 ("petition for certification shall be filed within twenty days of. . . the date" of official release of appellate court decision). The petitioner did not file a petition for certification.
The Connecticut Appellate and Supreme Courts have consistently held that the requirement that a habeas petitioner seek certification to appeal a decision denying or dismissing his petition limits the scope of review by the Connecticut Appellate and Supreme Courts rather than the jurisdiction of those courts.
Even if a claim has not been exhausted in state court, a federal court may deem it exhausted if it determines that the state judicial system provides no available avenue for review of the claim. Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) (if a claim is not exhausted because it has never been raised in a state court, "a federal court may theoretically find that there is an absence of available corrective process if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile"). The ineffective assistance of counsel claim in the present amended petition has not been exhausted because Stepney may still raise that claim before the state appellate courts. See Conn. Practice Book § 60-2 (providing that the court may permit a party, for good cause shown, to file a late petition for certification); Janulawicz v. Comm'r of Corr., 310 Conn. 265, 273-74 (2013) ("a review of petitions for certification filed in the last twenty years reveals that we routinely grant motions for permission to file late petitions whenever it appears that there is a reasoned basis for doing so"). Thus, because Stepney's ineffective assistance of counsel claim is not procedurally barred in state court, it has not been exhausted for the purposes of federal review.
Because there is no basis to excuse the exhaustion process, Stepney's petition is a mixed petition containing one exhausted claim and one unexhausted claim. Traditionally, a mixed petition is dismissed without prejudice to refiling another section 2254 habeas corpus petition after all claims have been exhausted at the state level. See Slack v. McDaniel, 429 U.S. 473, 486 (2000). In light of the one-year limitations period for filing a federal habeas action, the Second Circuit has directed the district court not to dismiss a mixed petition if an outright dismissal would preclude the petitioner from having all of his claims addressed by the federal court. Zarvela v. Artuz, 254 F.3d 374, 380-83 (2d Cir. 2001) (noting the district court should stay exhausted claims and dismiss unexhausted claims with direction to timely complete the exhaustion process and return to federal court); see also Rhines v. Weber, 544 U.S. 269, 276-79 (2005) (affirming the stay and abeyance approach to mixed habeas corpus petitions). Thus, the district court must determine whether a stay is appropriate under the circumstances.
The limitations period begins to run when the conviction underlying a petition becomes final and is tolled while a properly filed application for post-conviction relief is pending in state court. 28 U.S.C. § 2244(d). The limitations period for Stepney's petition began to run on August 15, 2006, the day after the ninety-day period of time within which he could have filed a petition for certiorari with the U.S. Supreme Court directly appealing his conviction. See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir.) (holding in case where petitioner had appealed to state's highest court, direct appeal also included filing petition for writ of certiorari in Supreme Court or the expiration of time within which to file such a petition), cert. denied, 534 U.S. 924 (2001). The limitations period was tolled during the pendency of Stepney's state habeas petition, which was filed on April 30, 2004, prior to the disposition of the direct appeal of his conviction.
Because Stepney did not file a petition for certification to the Connecticut Supreme Court, his state habeas petition became final and the limitations period for submitting a federal petition began to run on June 27, 2011, at the expiration of the twenty-day period within which Stepney could have filed a petition for certification with the Connecticut Supreme Court. Conn. Practice Book § 84-4. The present petition was filed on October 13, 2011.
Stepney has presented evidence that his appellate attorney informed him in writing in June 2011 that he would file a petition for certification with the Connecticut Supreme Court seeking to appeal the Connecticut Appellate Court's denial of Stepney's state habeas petition. Obj. Mot. Dismiss, Ex. 1. Stepney claims that in reliance on the representation of his appellate counsel, he assumed his ineffective assistance of counsel claim had been fully exhausted when he filed his federal petition in October 2011. Thus, Stepney had good cause for his failure to fully exhaust his ineffective assistance of counsel claim. See Schouenborg v. Superintendent, No. 08-CV-2865(JS), 2013 WL 5502832, at *10 (E.D.N.Y. Sept. 30, 2013) ("Even without a precise definition of good cause, there is a general consensus that an ineffective assistance of counsel claim itself is good cause.") (internal quotation marks and citations omitted). In addition, it is unclear at this point in time, that the ineffective assistance of counsel claim is "plainly" lacking in merit. Rhines, 546 U.S. at 277 (stay is only appropriate if the petitioner had good cause for failure to exhaust claim and can demonstrate claim is not "plainly meritless").
Accordingly, this case is stayed to permit Stepney to complete the exhaustion process. Stepney must file a motion to lift the stay within thirty (30) days after completion of the exhaustion process in state court.
The Respondent's Motion to Dismiss the Amended Petition for Writ of Habeas Corpus (doc. 29) is
Jurists of reason would not find it debatable that Stepney did not exhaust his state court remedies with regard to all grounds in his section 2254 petition. Thus, a certificate of appealability will not issue. Slack, 529 U.S. at 484 (holding when a district court denies a habeas petition on procedural grounds, a certificate of appealability should issue if jurists of reason would find debatable the correctness of the district court's ruling).
It is so ordered.
