United States District Court, D. Connecticut
RULING ON PETITION FOR WRIT OF HABEAS CORPUS
Stefan R. Underhill United States District Judge
The petitioner, Ernest Francis, currently confined at the Osborn Correctional Institution in Somers, Connecticut, filed this habeas corpus action pursuant to 28 U.S.C. § 2254, challenging his conviction for murder. The respondents move to dismiss the petition on the ground that the petitioner failed to exhaust his state court remedies with regard to all grounds for relief. I agree that the petitioner did not exhaust his state court remedies and grant the respondents’ motion.
I. Procedural Background
In 1992, Francis was convicted of murder. On April 15, 1992, he was sentenced to a term of imprisonment of fifty years. Doc. # 1 at 31. On direct appeal, Francis challenged his conviction on the grounds that the trial court abused its discretion in precluding him from cross-examining a state’s witness about her probationary status, improperly denied his motion for judgment of acquittal based upon insufficient evidence, and improperly instructed the jury in three ways. The Connecticut Supreme Court affirmed the judgment. State v. Francis, 228 Conn. 118, 119–122 (1993).
Francis filed several state post-conviction challenges relating to his conviction. On March 13, 1995, Francis filed a state habeas petition asserting a claim that trial counsel was ineffective. Following a trial, the court found that, based on information provided by Francis, counsel decided to pursue a defense of accident rather than extreme emotional disturbance. The court also held that Francis’ testimony did not support a defense of extreme emotional disturbance. The trial court denied the petition and also denied certification to appeal. Francis v. Warden, No. CV950550706S (Conn. Super. Ct. Feb. 18, 1998), Resp’ts’ Mem. App. B-4, Doc. #13-4, at 39-45. On appeal to the Connecticut Appellate Court, Francis argued that trial counsel was ineffective for failing to assert a defense of extreme emotional disturbance. The appellate court concluded that Francis failed to show that the denial of certification was an abuse of discretion and dismissed the appeal. Francis v. Comm’r of Correction, 63 Conn.App. 282 (2001).
In 2000, Francis filed a motion to correct illegal sentence. The trial court denied the motion. On appeal, Francis argues that the trial court improperly considered his lack of veracity, relied on information outside the record, and relied on inaccurate or mistaken information. State v. Francis, 69 Conn.App. 378 (2002). The Connecticut Appellate Court concluded that the trial court lacked jurisdiction to entertain the motion. Francis had filed his motion pursuant to Connecticut Practice Book Section 43-22, which provides that the court may correct an illegal sentence or a sentence imposed in an illegal manner. The Connecticut Appellate Court determined that Francis’ sentence was not illegal because it did not exceed the relevant statutory maximum, did not violate Francis’ right against double jeopardy, was not ambiguous and was not internally contradictory. Id. at 382–84. The Court further noted that Practice Book Section 43-22 was limited by a common-law rule that a court cannot modify a sentence that was valid after execution of the sentence had begun. Accordingly, the Connecticut Appellate Court reversed the trial court’s decision and remanded the case with instructions to dismiss the motion. Id. at 385. The Connecticut Supreme Court denied certification to appeal. State v. Francis, 260 Conn. 935 (2002).
Also in 2000, Francis filed a second state habeas action challenging his conviction. Francis v. Warden, No. CV00-0800883, 2011 WL 1367073 (Conn. Super. Ct. Mar. 22, 2011). In his second amended petition, Francis argued that trial counsel was ineffective because he failed to investigate a defense of extreme emotional disturbance, request an instruction on the defense of extreme emotional disturbance and move to disqualify the judge who presided over the probable cause hearing and trial. The court rejected all three claims after a trial. Francis included five other claims in his second amended petition: two other instances of ineffective assistance of counsel, a claim of judicial error for presiding over the probable cause hearing and the trial, withholding exculpatory evidence, and reliance on inaccurate or mistaken information at sentencing. Those claims were deemed abandoned when they were not briefed throughout the duration of the case. On appeal, Francis claimed that the trial court improperly rejected his three ineffective assistance of counsel claims. The denial of the petition was upheld on appeal. Francis v. Comm’r of Correction, 142 Conn.App. 530 (2013), cert. denied, 310 Conn. 921 (2013).
In 2004, Francis filed a second motion to correct illegal sentence. He argued that the sentencing judge improperly signed the arrest warrant and presided over his probable cause hearing. The state court denied the motion. State v. Francis, No. CR 90-391532 (Conn. Super. Ct. Nov. 18, 2005), Resp’ts’ Mem. App. F-4, Doc. # 13-26 at 32-44. The denial was affirmed on appeal. State v. Francis, 108 Conn.App. 901 (2008), cert. denied, 289 Conn. 914 (2008).
In 2008, Francis filed a third state habeas action directed to his conviction alleging ineffective assistance of counsel in his second habeas action. The state court denied the petition in an oral ruling and denied certification to appeal. Resp’ts’ Mem. App. G-5, Doc. # 13-34 at 135. The Connecticut Appellate Court determined that the trial court did not abuse its discretion in denying certification and dismissed the appeal. Francis v. Comm’r of Correction, 151 Conn.App. 574 (2014), cert. denied, 314 Conn. 922 (2014).
In 2010, Francis filed a third motion to correct illegal sentence, again arguing that the trial court relied on inaccurate and incomplete information at sentencing. He noted that the sentencing court incorrectly assumed that he had stabbed the victim twice instead of once and misunderstood his prior criminal record. He also argued that the sentencing hearing was flawed because he was unable to present evidence of a mental impairment that was not known at the time of sentencing. The trial court denied the motion. State v. Francis, No. CR 90-391532, 2011 WL 2738882 (Conn. Super. Ct. June 7, 2011). On appeal, the Connecticut Appellate Court reversed and remanded the case because the court had denied Francis’ request for a public defender without following procedures similar to those outlined in Anders v. California, 368 U.S. 738, 744 (1967). State v. Francis, 148 Conn.App. 565, 569–70 (2014). The Connecticut Supreme Court has granted certification on the question whether the appellate court properly determined that such a procedure was required. State v. Francis, 314 Conn. 908 (2014). The appeal remains pending.
II. Standard of Review
A federal court “shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Before filing a petition for writ of habeas corpus in federal court, however, the petitioner must properly exhaust his state court remedies, thereby giving the state courts an opportunity to correct any alleged errors. See Baldwin v. Reese, 541 U.S. 27, 29 (2004); 28 U.S.C. § 2254(b)(1)(A). The Second Circuit requires the district court to conduct a two-part inquiry. First, a petitioner must present the factual and legal bases of his federal claim to the highest state court capable of reviewing it. Second, he must have utilized all available means to secure appellate review of his claims. See Galdamez v. Keane, 394 F.3d 68, 73-74 (2d Cir.), cert. denied, 544 U.S. 1025 (2005); see also Richardson v. Superintendent of Mid-Orange Correctional Facility, 621 F.3d 196, 201 (2d Cir. 2010) (quoting Baldwin, 541 U.S. at 39), cert. denied sub nom. Richardson v. Inserra, 562 U.S. 1188 (2011) (“Exhaustion requires that the prisoner ‘fairly present’ the federal claim ‘in each appropriate state court (including a state supreme court with powers of discretionary review).’”). The petitioner must have informed all of the state courts of all necessary factual allegations and present essentially the same legal doctrine he asserts in federal court. See Picard v. Connor, 404 U.S. 270, 278 (1971).
Francis challenges his conviction on thirteen grounds. Because some of the grounds are related, they are grouped together: Ground 1 - the trial court violated his right to confrontation when it precluded him from questioning a state’s witness regarding her probationary status; Ground 2 - there was insufficient evidence of intent to cause death; Grounds 3, 4 and 5 – the trial court improperly instructed the jury on the element of intent, that it could consider false statements made by Francis as evidence of guilt, and on the jury’s duties regarding the presumption of innocence; Grounds 6 and 7 – trial counsel was ineffective in failing to pursue a defense of extreme emotional disturbance and in allowing the same judge who had signed the arrest warrant to preside over the probable cause hearing, pretrial negotiations, trial and sentencing; Grounds 8, 9, 10 and 13 – the trial court sentenced Francis on incomplete ...