BRYAN JORDAN v. COMMISSIONER ANGEL QUIROS (2025)

ORDER GRANTING IN PART AND DENYING IN PART RESPONDENT'S MOTION TO DISMISS

Before the Court is the respondent's motion to dismiss the petitioner's petition for writ of habeas corpus brought under 28 U.S.C. § 2254.¹ After considering the motion and the petitioner's response, the Court grants the motion in part, denies the motion in part, and permits the petitioner to proceed on the exhausted claims in his habeas petition.

I. BACKGROUND

The petitioner was convicted of manslaughter in the first degree with a firearm and carrying a pistol or revolver without a permit following a jury trial. State v. Jordan, 978 A.2d 150, 152 (Conn. App. Ct. 2009).² The state court sentenced the petitioner to 45 years’ imprisonment. Id. at 153. The petitioner appealed, arguing that “(1) the state's improper comments during closing argument to the jury deprived him of a fair trial and (2) the trial court improperly precluded him from presenting evidence regarding the victim.” Id. The Appellate Court of Connecticut disagreed and affirmed the criminal judgment. Id. at 158. The petitioner filed a petition for certification of appeal to the Supreme Court of Connecticut.³ The Supreme Court of Connecticut denied the petition. State v. Jordan, 982 A.2d 648 (Conn. 2009).

While the petitioner's direct appeal was pending, he initiated a series of state habeas petitions. The petitioner filed his first state habeas petition on August 20, 2009, and withdrew it on January 26, 2012.⁴ The petitioner filed his second state habeas petition on July 20, 2012, and withdrew it on January 29, 2015.⁵ The petitioner filed a third state habeas petition on February 11, 2015, raising eight claims:

first; ineffective assistance of trial counsel, Attorney Diane Polan, for failing to present evidence of self-defense; second, ineffective assistance of trial counsel for failing to impeach state's witnesses; third, a Brady violation; fourth, ineffective assistance of trial counsel for failure to raise a third-party culpability defense; fifth, ineffective assistance of trial counsel premised on juror removal; sixth, a Brady violation premised on failure to correct false testimony; seventh, ineffective assistance of trial counsel for failure to object to prosecutorial misconduct and request a curative instruction; and eighth, failure to disclose information.

Jordan v. Warden, No. CV154007011S, 2018 WL 5115599, at *1 (Conn. Super. Ct. Oct. 1, 2018). The state habeas court granted this petition after concluding that trial counsel was ineffective for (1) failing to investigate and present evidence supporting the petitioner's self-defense claim and for (2) failing to investigate and raise a third-party culpability defense. See id. at *11, 13. After the State appealed, the Appellate Court of Connecticut reversed the state habeas court's judgment and remanded with instructions to deny the petitioner's third state habeas petition. Jordan v. Comm'r of Corr., 234 A.3d 78, 110 (Conn. App. Ct. 2020). The petitioner filed a petition for certification of appeal to the Supreme Court of Connecticut.⁶ The Supreme Court of Connecticut granted the petition. Jordan v. Comm'r of Corr., 236 A.3d 218 (Conn. 2020). The Supreme Court of Connecticut affirmed the judgment of the Appellate Court. Jordan v. Comm'r of Corr., 267 A.3d 120, 145 (Conn. 2021). The petitioner moved for reconsideration of the decision.⁷ The Supreme Court of Connecticut denied the motion on December 21, 2021.⁸

The petitioner filed his fourth and final state habeas petition while the appeal from his third state habeas ruling was pending.⁹ But the petitioner withdrew his fourth state habeas petition after he filed his federal habeas petition.¹⁰ The petitioner also moved for a sentence modification after his state habeas appeals concluded. State v. Jordan, No. NNH CR06-0048839-S, 2022 WL 1073068, at *1 (Conn. Super. Ct. Mar. 4, 2022). The state court granted the motion and reduced the petitioner's sentence to 25 years’ imprisonment, to be followed by ten years’ special parole. Id. at *4.

The petitioner filed his federal habeas petition on June 19, 2024.¹¹ The petitioner raises three claims: (1) an ineffective assistance of counsel claim related to trial counsel's failure to call witnesses to support a self-defense and third-party culpability defense; (2) a Brady claim related to law enforcement's efforts to destroy exculpatory or impeaching evidence; and (3) a prosecutorial misconduct claim related to improper comments made during closing arguments.¹²

Respondent, Department of Correction Commissioner Angel Quiros, now moves to dismiss the petitioner's federal habeas petition because it is a “mixed petition” containing both exhausted and unexhausted claims.¹³

II. LEGAL STANDARD

A motion to dismiss a habeas petition, like any other motion to dismiss a civil complaint, is governed by Federal Rule of Civil Procedure 12(b)(6). Spiegelmann v. Erfe, No. 3:17-CV-2069, 2018 WL 1582549, at *1 (D. Conn. Mar. 29, 2018) (reviewing motion to dismiss § 2254 petition under Fed. R. Civ. P. 12(b)(6)). To survive dismissal, the petition must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Although “detailed factual allegations” are not required, a petition must offer more than “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Twombly, 550 U.S. at 555–57.

Because the petitioner filed his federal habeas petition pro se, the Court must construe his filings “liberally” and interpret them “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). “Despite the special solicitude that the Court must show [the petitioner] out of consideration for his pro se status, his petition must still include sufficient factual allegations to meet the standard of facial plausibility to survive a motion to dismiss under Rule 12(b)(6).” Anderson v. Williams, No. 3:15-CV-1364, 2017 WL 855795, at *6 (D. Conn. Mar. 3, 2017) (citation and internal quotation marks omitted).

In considering a motion to dismiss, a court typically may consider only the complaint, or, here, the petition. However, the petition “is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference,” as well as any documents deemed “integral” to the petition. Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002) (citations and internal quotation marks omitted). See also Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir. 2005) (explaining that, in considering a motion to dismiss, “the court may consider any written instrument attached to the complaint as an exhibit or incorporated in the complaint by reference, as well as documents upon which the complaint relies and which are integral to the complaint”). To that end, because the petition relies on the various state court proceedings underlying the procedural history of this case, the Court will consider the documents relevant to those proceedings. Vializ v. Arnone, No. 3:11-CV-1636, 2012 WL 3000406, at *1 (D. Conn. July 20, 2012) (taking judicial notice of habeas petitioner's state cases).

III. DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires a state prisoner to “exhaust[ ] the remedies available in the courts of the State,” 28 U.S.C. § 2254(b)(1)(A), “thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quotation marks omitted) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275 (1971)). This furthers the purpose of promoting considerations of comity and respect between the federal and state judicial systems by affording the state court the first opportunity to correct a constitutional violation. Davila v. Davis, 582 U.S. 521, 527 (2017) (quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)); see also Martinez v. Ryan, 566 U.S. 1, 9 (2012) (“Federal habeas courts reviewing the constitutionality of a state prisoner's conviction and sentence are guided by rules designed to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism.”).

“To provide the State with the necessary ‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.” Baldwin, 541 U.S. at 29 (citing Duncan, 513 U.S. at 365–66; O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). To “fairly present” a federal claim to the state courts, the petitioner must “inform[ ] the state court of both the factual and the legal premises of the claim he asserts in federal court.” Daye v. Att'y Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) (citing, inter alia, Picard, 404 U.S. at 276–77). A petitioner does not “fairly present” a claim to a state court if the petitioner's filing “does not alert [the state court] to the presence of a federal claim,” such that the state court would have to “read beyond” the filing to find a federal claim raised. Baldwin, 541 U.S. at 32.

In some instances, a federal habeas petition may be “mixed,” meaning that it contains “both exhausted and unexhausted claims.” Rhines v. Weber, 544 U.S. 269, 273 (2005). “When confronted with a mixed petition, a federal court has four procedural options: (1) dismiss the petition in its entirety without prejudice; (2) deny the entire petition on the merits under 28 U.S.C. § 2254(b)(2); (3) allow the petitioner to delete the unexhausted claims and proceed with his exhausted claims; or (4) in limited circumstances, stay the petition to allow petitioner to exhaust his unexhausted claims.” Henderson v. Reis, No. 3:18-CV-1412, 2023 WL 5677489, at *8 (D. Conn. Sept. 3, 2023) (quoting Tripathy v. Schneider, 473 F. Supp. 3d 220, 234 (W.D.N.Y. 2020)). Staying the federal habeas proceeding is generally disfavored because it frustrates the objectives of the exhaustion requirement; thus, a stay is available “only in limited circumstances.” Rhines, 544 U.S. at 277.

The respondent contends that the habeas petition is a “mixed petition” containing both exhausted and unexhausted claims.¹⁴ The respondent seemingly concedes that the petitioner's first and third claims—the ineffective assistance of counsel claim (Claim 1) and the prosecutorial misconduct claim (Claim 3)—were properly exhausted.¹⁵ But the respondent maintains that the petitioner's Brady claim (Claim 2) remains unexhausted because, while the petitioner raised this claim in a state post-conviction proceeding, he withdrew that action after filing the instant federal habeas petition.¹⁶

The petitioner has filed a response to the respondent's motion to dismiss, conceding that his Brady claim (Claim 2) is unexhausted and implicitly agreeing that his petition is a mixed petition.¹⁷ However, the petitioner objects to dismissal of his petition.¹⁸

When confronted with a mixed petition, the Court may, among other options, “allow the petitioner to delete the unexhausted claims and proceed with his exhausted claims.” Henderson, 2023 WL 5677489, at *8. The petitioner seeks to “move forward on all the remaining claims raised in his 2254 motion[.]”¹⁹ Given that the petitioner has affirmatively abandoned his Brady claim in state court and the respondent concedes that the remaining two claims in the petition are exhausted,²⁰ the Court concludes that allowing the petitioner to delete the unexhausted claims and proceed with his exhausted claims is the proper course. See Lopez v. Quiros, No. 3:22-CV-565, 2023 WL 2384112, at *4 (D. Conn. Mar. 6, 2023) (quoting Rhines, 544 U.S. at 278) (noting that the court “should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief.”).

Because dismissal would impair the petitioner's right to seek federal habeas relief, and because the petitioner has indicated that he desires to proceed to the merits with respect to his exhausted claims, the Court will not dismiss the mixed petition in its entirety. Rather, the Court GRANTS in part and DENIES in part the respondent's motion to dismiss. The petitioner's Brady claim (Claim 2) is dismissed as unexhausted. But the petitioner is permitted to proceed on his exhausted claims (Claims 1 and 3)

By August 24, 2025, the respondent shall show cause why the relief prayed for in Claims 1 and 3 of the petition should not be granted. The petitioner shall respond by September 23, 2025. The respondent may file a reply brief by October 7, 2025.

SO ORDERED.

FOOTNOTES

1.   Mot. to Dis., ECF No. 12.

2.   Orders and opinions from the petitioner's state cases are produced as exhibits to Respondent's motion to dismiss. See Mot. to Dis., App'x D, ECF No. 12-6; App'x F, ECF No. 12-8; App'x G, ECF No. 12-9; App'x K, ECF No. 12-13; App'x M, ECF No. 12-15; App'x Q, ECF No. 12-19, App'x V, ECF No. 12-24. The Court may take judicial notice of these orders and opinions. See, e.g., Anderson v. Murphy, No. 3:06-CV-1466, 2008 WL 691715, at *1 (D. Conn. Mar. 13, 2008) (“[T]ak[ing] judicial notice of the state court docket sheets and state court documents attached to respondent's memorandum in support of the motion to dismiss” habeas petition).

3.   Resp. App'x E, ECF No. 12-7 at 2.

4.   Resp. App'x H, ECF No. 12-10 at 68–69.

5.   Id. at 84.

6.   Resp. App'x L, ECF No. 12-14 at 2.

7.   Resp. App'x R, ECF No. 12-20 at 2.

8.   Resp. App'x S, ECF No. 12-21 at 2.

9.   Resp. App'x T, ECF No. 12-22 at 2, 9.

10.   Compare Resp. App'x U, ECF No. 12-23 at 3, with Pet., ECF No. 1.

11.   Pet., ECF No. 1.

12.   Id. at 5, 7, 8.

13.   See Mot. to Dis. at 1.

14.   Mot. to Dis. at 1.

15.   See Mem., ECF No. 12-1 at 7 (stating that “only two of the petitioner's three grounds for relief have been exhausted[.]”).

16.   Id.

17.   See Resp., ECF No. 16 at 1–3.

18.   See id. at 1–2.

19.   Id. at 4

20.   See Mem., ECF No. 12-1 at 7

VERNON D. OLIVER United States District Judge