Free Order - District Court of Connecticut - Connecticut

i I Case 3:03-cv-00946-RNC Document 9 Filed 12/24/2003 Page1 of4 §
UNITED STATES DISTRICT COURT §:E§p,§€i3 I
é DISTRICT OF CONNECTICUT mm mm QM AX q uh i
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· ! LARRY NELSON, §*“il2“€D. CT. y
Petitioner, E _
; PRI soNRR 5
v. : Case No. 3:O3cv946(RNC)
WARDEN DAVID STRANGE, 2
5 Respondent. ;
I
é RULING AND ORDER §
I Petitioner, a Connecticut inmate, brings this action pgp se
for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254,
E challenging his conviction on charges of theft of a firearm,
W criminal possession of a firearm and larceny in the third degree.
_ Respondent has moved to dismiss the action because petitioner has
g not exhausted his state court remedies with regard to all the
grounds for relief asserted in the petition. For the reasons set
forth below, the motion to dismiss is granted.
I · E..QQ3é
In October 1999, in the Connecticut Superior Court for the
Judicial District of New Haven, petitioner pleaded guilty to one
count of theft of a firearm, one count of criminal possession of
a firearm, and larceny in the third degree. He was sentenced to
a total effective term of imprisonment of fifty—six months
i followed by thirty-five months of special parole. Petitioner did
E not appeal the conviction within the time prescribed by state
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I Case 3:03-cv-00946-RNC D0cument9 FiIed12/24/2003 Page20f4 I
A
law. I
In January 2000, petitioner filed a petition for writ of I
habeas corpus in the Connecticut Superior Court for the Judicial I
I District of New London. Petitioner raised two claims: I
ineffective assistance of trial counsel and violation of his due I
. process rights under the state and federal constitutions because I
I his guilty plea for criminal possession of a firearm lacked a I
I factual basis. See Nelson v. Warden, CV-00—0553513—S (Conn.
I Super. Ct. Dec. 12, 2001) (slip op. at 1). The trial court
I dismissed the petition, see idL, and the Connecticut Appellate
Q Court affirmed the dismissal in a pe; curiam decision. See I
I Nelson v. Comm'r Correction, 74 Conn. App. 912, 815 A.2d 300 I
(2003). Petitioner filed a petition for certification raising
_ only the ineffective assistance of counsel claim. In April 2003,
I the Supreme Court denied petitioner‘s appeal. Nelson v. Comm'r
I of Correction, 263 Conn. 911 (2003). Petitioner filed this I
Q action in May 2003, making two claims: (1) ineffective assistance I
I of counsel and (2) violation of his due process rights.
II. Discussion
I The exhaustion of all available state remedies is a
U prerequisite to habeas corpus relief under 28 U.S.C. § 225é.
I O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Respondent has
. moved to dismiss this action on the ground that petitioner has
I not exhausted his state court remedies with regard to the due
. 2
)
. .... I

I Case 3:03-cv-00946-RNC Document 9 Filed 12/24/2003 Page 3 of 4
process claim. In response, petitioner concedes that the due ®
process claim has not been exhausted. He seeks to withdraw that é
i claim without prejudice and to proceed on the ineffective Y
i assistance claim only. )
Q When as in this case dismissal of an unexhausted claim
I leaves an exhausted claim, the court has several options: (l)
i I proceed to adjudicate the exhausted claim; (2) stay proceedings
i on the exhausted claim pending exhaustion of the other claim; or {
i g (3) dismiss the entire petition without prejudice, thereby
? enabling the petitioner to return with both claims following é
é exhaustion of state remedies.
In this case, it appears that petitioner prefers the first
l option, that is, he would like to withdraw his unexhausted due i
_ process claim but proceed on the ineffective assistance of E
Q counsel claim at this time. If that approach is taken, there is
Ri some risk that if petitioner returns with the due process claim,
E the petition containing that claim will be subject to dismissal
5 on procedural grounds as a second or successive petition. There
Q will be no such risk if both claims are dismissed without
Q prejudice at this time and petitioner returns with both claims
E after he has fully exhausted his state remedies on the due
W process claim. l
i III. Conclusion l
aa Accordingly, the due process claim is hereby dismissed
ag 3
(
. 1 1

Case 3:03-cv-00946-RNC Document 9 Filed 12/24/2003 Page 4 of 4 [
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without prejudice. The ineffective assistance of counsel claim E
will not be dismissed unless petitioner asks that it be dismissed i
\
I without prejudice pending exhaustion of the due process claim. To R
I be timely, any such request must be filed and served on or before y
! F
I January 20, 2004.
So ordered this 23rd day of December, 2003, at Hartford,
Connecticut. _ I/{
1 Robert N. Chatigny
United States District Judge
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