Abrams v. Comm'r of Corr.
| Decision Date | 25 February 2019 |
| Docket Number | Case No. 3:17cv1732(MPS) |
| Parties | DAVID A. ABRAMS, A/K/A ABRAHAMS, Petitioner, v. COMMISSIONER OF CORRECTION, Respondent. |
| Court | U.S. District Court — District of Connecticut |
The petitioner, David A. Abrams, a/k/a Abrahams, is currently confined at the Garner Correctional Institution. On December 7, 2001, in State v. Abrams, Case No. D03D-CR97-0131949-T, a judge sentenced the petitioner to a five-year term of imprisonment for a violation of probation and in State v. Abrams, Case No. DBD-CR00-0110691-S, the same judge sentenced the petitioner to eighteen years of imprisonment followed by two years of special parole on one count of criminal attempt to commit murder, eighteen years of imprisonment followed by two years of special parole on one count of assault in the first degree, five years of imprisonment on one count of criminal possession of a firearm, and five years of imprisonment followed by five years of special parole on one count of commission of a Class A, B, or C felony with a firearm. See Resp't's Mem. Supp. Mot. Dismiss ("Mem. Mot. Dismiss"), App. 1, ECF No. 19-1 at 2; App. 66, ECF No. 19-66, Sentencing Tr. 3-4, 28-30 Dec. 7, 2001.1 All sentences were to runconsecutively to each other for a total effective sentence of fifty-one years of imprisonment followed by nine years of special parole. See id.
The petitioner initiated this action on October 13, 2017 by filing a petition for a writ of habeas corpus pursuant 28 U.S.C. § 2254 to challenge all five of his 2001 convictions and sentences. See Pet. Writ Habeas Corpus at 2. Pending before the court is the respondent's motion to dismiss the petition because it contains both exhausted and unexhausted grounds. For the reasons that follow, the motion to dismiss will be granted.
On November 9, 2000, a Danbury police officer arrested the petitioner on charges of criminal attempt to commit murder, assault in the first degree, and criminal violation of a protective order. See Mem. Mot. Dismiss, App. 4, ECF No. 19-4, at 1-2. On October 17, 2001, an assistant state's attorney in the Connecticut Superior Court for the Judicial District of Danbury filed a substitute long form information charging the petitioner with criminal attempt to commit murder in violation of Connecticut General Statutes §§ 53a-49, 53a-54a, assault in the first degree in violation of Connecticut General Statutes § 53a-59, criminal possession of a firearm in violation of Connecticut General Statutes § 53a-217, and commission of a Class A, B, or C felony with a firearm in violation of Connecticut General Statutes § 53-202k. See id. at 5-6.
On October 26, 2011, after a trial, a jury convicted the petitioner of all four counts in the substitute information. See Pet. Writ. Habeas Corpus at 2; Mem. Mot. Dismiss, App. 4, ECF No. 19-4, at 6, 8-9. After the judge accepted the jury's verdict, the judge considered the charge that the petitioner had violated the conditions of the term of probation imposed as part of his prior 1998 sentence for a conviction of possession of a weapon in a motor vehicle in State v. Abrams,Case No. D03D-CR97-0131949-T. See App. 61, ECF No. 19-65, Trial Tr. 122, Oct. 26, 2001; App. 66, ECF No. 19-66, Sentencing Tr. 3-4, Dec. 7, 2001. The judge found the petitioner had violated the conditions of the term of probation. See id.
On December 7, 2001, the judge who had presided over the petitioner's trial in State v. Abrams, Case No. DBD-CR00-0110691-S, held a hearing to sentence the petitioner pursuant to his convictions for criminal attempt to commit murder, assault in the first degree, criminal possession of a firearm in that case and to sentence the petitioner pursuant to his conviction for a violation of probation in State v. Abrams, Case No. D03D-CR97-0131949-T. See Mem. Mot. Dismiss, App. 66, ECF No. 19-66, Sentencing Tr. Dec. 7, 2001. At the hearing, the judge sentenced the petitioner to a five-year term of imprisonment pursuant to his finding that the petitioner had violated the conditions of the term of probation imposed as part of his prior 1998 sentence for a conviction of possession of a weapon in a motor vehicle in State v. Abrams, Case No. D03D-CR97-0131949-T. See id. at 2-4, 29. The judge also sentenced the petitioner to eighteen years of imprisonment followed by two years of special parole pursuant to his conviction for criminal attempt to commit murder, eighteen years of imprisonment followed by two years of special parole pursuant to his conviction for assault in the first degree, five years of imprisonment pursuant to his conviction for criminal possession of a firearm, and five years of imprisonment followed by five years of special parole pursuant to his conviction for commission of a Class A, B, or C felony with a firearm in State v. Abrams, Case No. DBD-CR00-0110619-S. See id. at 29-30; App. 1, ECF No. 19-1, at 2.
All sentences imposed in State v. Abrams, Case No. DBD-CR00-0110619-S were to run consecutively to each other and consecutively to the five-year sentence imposed pursuant to theconviction for violation of probation in State v. Abrams, Case No. D03D-CR97-0131949-T and the terms of special parole were also to run consecutively to each other. See App. 1, ECF No. 19-1, at 2. Thus, the total effective sentence imposed for the convictions in Case No. DBD-CR00-0110619-S and Case No. D03D-CR97-0131949-T was fifty-one years of imprisonment followed by nine years of special parole. See App. 66, ECF No. 19-66, Sentencing Tr. 29-30.
The petitioner appealed his convictions and sentences imposed in State v. Abrams, No. DBD-CR00-0110619-S on the ground that the assistant state's attorney assigned to his case deprived him of his "right[] to due process and to a fair trial" by engaging in various forms of "prosecutorial misconduct" during trial and during his closing argument. State v. Abrahams, 79 Conn. App. 767, 769, 831 A.2d 299, 302 (2003).2 On October 7, 2003, the Connecticut Appellate Court determined that although the prosecutor had engaged in two types of improper misconduct during closing argument, the plaintiff's trial was not fundamentally unfair. See id. at 776-82, 831 A. 2d at 306-10. Thus, the Connecticut Appellate Court affirmed the judgment of the trial court. See id. at 783, 831 A. 2d at 310.
On October 16, 2003, the petitioner's appellate counsel filed a motion for reconsideration and for reconsideration en banc. See Mem. Mot. Dismiss, App. 8, ECF No. 19-8. On October 31, 2003, appellate counsel filed a motion for permission to file a late petition for certification to the Connecticut Supreme Court. See id. App. 10, ECF No. 19-10. On December 2, 2003, the Connecticut Supreme Court granted the petitioner an extension of time until twenty days after the issuance of the notice disposing of the motion for reconsideration to file a petition forcertification. See id. App. 11, ECF No. 19-11. On January 15, 2004, the Connecticut Appellate Court denied the petitioner's motion for reconsideration and reconsideration en banc. See id. App. 9, ECF No. 19-9. Appellate counsel did not file a petition for certification within the time specified by the Connecticut Supreme Court.
Over four years later, on May 15, 2008, the petitioner filed a pro se motion seeking permission to file a late petition for certification to appeal the decision of the Connecticut Appellate Court affirming his conviction. See id. App. 12, ECF No. 19-12. On June 3, 2008, the Connecticut Supreme Court denied the motion without comment. See id. App. 14, ECF No. 19-14.
On March 5, 2002, before the direct appeal of his convictions became final, the petitioner filed his first state habeas corpus petition in the Connecticut Superior Court for the Judicial District of New Haven. See Abrahams v. Warden, No. CV02-464618-S, 2005 WL 758152 (Conn. Super. Ct. Feb. 28, 2005); Mem. Mot. Dismiss, App. 15, ECF No. 19-15. The petitioner filed three amended petitions. See Mem. Mot. Dismiss, App. 15, ECF No. 19-15. The operative third amended petition filed on September 17, 2003, asserted one claim, ineffective assistance of trial counsel, and included twenty-three examples of allegedly deficient performance. See id. App. 16, ECF No. 19-16. On February 28, 2005, after a hearing, the judge denied the amended petition because he concluded that trial counsel had not performed deficiently and that the petitioner had not demonstrated prejudice from the performance of trial counsel. See Abrahams, 2005 WL 758152, at *11-12.
The petitioner timely filed an appeal from the denial of the habeas petition. See Mem. Mot. Dismiss, App. 20, ECF No. 19-20, at 40. The court appointed a special public defender torepresent the petitioner on appeal and counsel subsequently filed a brief in support of the appeal raising one issue, ineffective assistance of counsel at sentencing. See id. App. 21, ECF No. 19-21, at 1-20. On September 27, 2006, the petitioner's special public defender withdrew the appeal before the Connecticut Appellate Court rendered a decision. See id. App. 19-24, ECF No. 19-24.
On September 30, 2004, the petitioner filed a second state habeas corpus petition in the Connecticut Superior Court for the Judicial District of Tolland at Rockville. See Abrams v. Warden, No. CV04-7000112-S, 2008 WL 1823047 (Conn. Super. Ct. Apr. 8, 2008); Mem. Mot. Dismiss, App. 25, ECF No. 19-25. On April 26, 2007, counsel for the petitioner filed an amended petition asserting claims of ineffective assistance of habeas counsel. See Mem. Mot. Dismiss App. 26, ECF No. 19-26. On December 31, 2007, the petitioner filed a motion seeking leave to file a second amended petition to include claims of ineffective assistance of trial counsel. See id. App. 25, ECF No. 19-25, at 2; App. 31, ECF No. 19-31, at A-21 to A-22. On January 2, 2008, a judge held an evidentiary hearing to address the claims filed in first amended petition. See id. App. 64, ECF...
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