Free Order - District Court of Connecticut - Connecticut

‘ ‘ " Case 3:03-cv—OO946—RNC Document1O Filed O3/24/2004 Page10f3 T
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UNITED STATES DISTRICT COURT .-I. {TTT?-*5] T
DISTRICT OF CONNECTICUT “ ** =i»*
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Tifk H{TT]€TT T"? Tr {SLT Q
LARRY NELSON, ·= y; T, T
Petitioner p `° "E Tg}”i= T
RRISONER ` " " ‘‘·‘·t ` *·¥-= E
CASE NO. 3:03cv946 (RNC) ;
V. T
DAVID STRANGE,
Respondent Q
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ORDER
The petitioner, Larry Nelson, is Currently Confined at the T
Carl Robinson Correctional Institution in Enfield, Connecticut.
He brings this action ro sg for a writ of habeas corpus, T
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pursuant to 28 U.S.C. § 2254, challenging his 1999 state court Q
conviction on the charges of theft of a firearm, criminal
possession of a firearm and larceny in the third degree. The
petition includes two grounds: ineffective assistance of counsel T
and violation of the Due Process Clause of the Connecticut and T
United States Constitutions. On August ll, 2003, the respondent
moved to dismiss the petition on the ground that the petitioner 3
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has not exhausted his state court remedies with regard to the T
second ground for relief in the petition.
On December 24, 2003, the court considered the motion to T
dismiss and concluded that the petitioner intended to withdraw
his unexhausted due process claim, but proceed as to the T
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exhausted ineffective assistance of counsel claim. (See doc. # T
9.) The court informed the petitioner that if he chose to Q
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· A { `I Case 3:03-cv—OO946—RNC Document 10 Filed O3/24/2004 Page 2 of 3
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proceed only as to the exhausted claim, any subsequent petition
including the due process claim might be subject to dismissal as
a second or successive petition. The court dismissed the A
petitioner’s due process claim without prejudice and noted that g
the ineffective assistance of counsel claim would not be
dismissed unless the petitioner requested that it be dismissed Q
without prejudice to re—filing after he exhausted the due process
claim. The court ordered the petitioner to file any request ,
concerning the ineffective assistance of counsel claim on or i
before January 20, 2004.
To date, the petitioner has not responded to the court’s X
order or contacted the court in any manner. Thus, the court \
assumes that petitioner intends to proceed on the exhausted {
ineffective assistance of counsel claim. The court again
cautions the petitioner that if he chooses to proceed only as to {
the exhausted claim, with the intention of presenting the Q
unexhausted due process claim to this court after it has been i
exhausted, he will run the risk that any such subsequent petition
will not be considered by this court because it will be a second
or successive petition.1 gee 28 U.S.C. 2244(b).
1The habeas corpus statutes require that before an inmate
may file a “second or successive" habeas petition in the district {
court, he must first apply to the appropriate court of appeals T
for an order authorizing the district court to consider the
petition. gee 28 U.S.C. § 2244(b)(3)(A); Esposito v. United
States, 135 F.3d 111, 112 (2d Cir. 1997). A petition is
considered second or successive if it challenges the same l
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Case 3:03-cv—OO946—RNC Document1O Fnled O3/24/2004 Page30f3
If the petitioner intends to proceed as to the exhausted i
ineffective assistance of counsel claim, he must file an amended !
petition including only that claim. The amended petition shall
be filed on or before April 9, 2004. If the petitioner fails to 5
file an amended petition within the time specified, the court `
will dismiss the ineffective assistance of counsel claim without Q
prejudice and close this case. The Clerk is directed to send the R
petitioner an amended petition for writ of habeas corpus form
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with a copy of this order. E
SO ORDERED this égmday of March, 2004, at Hartford, `
Connecticut. A ’\ A ”
d .,,..,.......- . J-— l
Donna . Martinez !
United States Magistrate Judge §
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conviction and the first petition was considered on the merits.
See Thomas v. Superintendent{Woodbourne Corr. Fac., 136 F.3d 227,
229 (2d Cir. 1997) (per curiam). Thus, if the court considers J
the merits of the exhausted ineffective assistance of counsel 5
claim raised in this petition, the petitioner cannot later assert i
the due process claim unless he obtains permission to file a {
second petition from the Second Circuit. Q
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