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Saunders v. Commissioner

United States District Court, D. Connecticut

July 12, 2016

SAUNDERS, Petitioner,
v.
COMMISSIONER, Respondent.

          RULING ON AMENDED PETITION FOR WRIT OF HABEAS CORPUS

          Michael P. Shea, U.S.D.J.

         The petitioner, Randall Saunders, an inmate currently confined at Enfield Correctional Institution in Enfield, Connecticut, brings this action pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner challenges his 2001 Connecticut conviction for manslaughter in the first degree with a firearm. For the reasons that follow, the petition is dismissed without prejudice to reopening after the petitioner has exhausted his state remedies.

         I. Procedural Background

         On January 26, 1997, at a restaurant in Danbury, Connecticut, police officers arrested the petitioner on a murder charge. See Saunders v. Connecticut, 267 Conn. 363, 366-68, 838 A.3d 186, 190-91 (2004). On September 14, 1999, an assistant state's attorney in the Connecticut Superior Court for the Geographical Area 3 in Danbury, filed an information charging the petitioner with one count of murder in violation of Conn. Gen. Stat. § 53a-54a. See Resp't's Mem. Opp'n Pet. Writ Habeas Corpus, App. A at 32. On January 21, 2000, the jury trial began. On February 29, 2000, the judge declared a mistrial because the jury was deadlocked. See Saunders, 267 Conn. at 392, 838 A.2d at 204.

         On October 12, 2000, an assistant state's attorney in the Connecticut Superior Court for the Geographical Area 3 in Danbury, filed a substitute information charging the petitioner with one count of manslaughter in the first degree with a firearm in violation of §§ 53a-55a(a) and 53a-55(a)(1). See Resp't's Mem. Opp'n Pet. Writ Habeas Corpus, App. A at 35. On February 14, 2001, an assistant state's attorney filed another substitute information charging the petitioner with one count of manslaughter in the first degree with a firearm in violation of §§ 53a-55a(a) and 53a-55(a)(1) and 53a-55a(a) and 53a-55(a)(3). See Id. at 36-37.

         On March 21, 2001, a jury found the petitioner guilty of one count of manslaughter in the first degree with a firearm in violation of §§ 53a-55a(a) and 53a-55(a)(3). See id., App. P., Vol. 5, Tr. 3/21/01. On May 30, 2001, a judge imposed a total effective sentence of twenty-seven years of imprisonment. See Am. Pet. Writ Habeas Corpus at 3.

         The petitioner raised three grounds on appeal of his conviction.[1] See Saunders, 267 Conn. at 365-66, 838 A.2d at 190. On January 13, 2004, the Connecticut Supreme Court affirmed the conviction. See Id. at 399, 838 A.2d at 208. On May 3, 2004, the United States Supreme Court denied the petition for writ of certiorari. See Saunders v. Connecticut, 541 U.S. 1036 (2004).

         On March 23, 2004, the petitioner filed a petition for writ of habeas corpus in the Connecticut Superior Court for the Judicial District of Hartford challenging his 2001 conviction on ineffective assistance, prosecutorial misconduct, judicial misconduct, insufficiency of the evidence, and double jeopardy grounds. See Resp't's Mem. Opp'n Pet. Writ Habeas Corpus, App. I. On July 27, 2005, the petitioner withdrew the petition. See id., App. K.

         On January 11, 2006, the petitioner filed a second habeas petition in the Connecticut Superior Court for the Judicial District of Tolland at Rockville. On January 23, 2006, a judge declined to accept the petition. See Saunders v. Warden, TSR-CV06-4000912-S (Conn. Super. Ct. Jan. 23, 2006); Resp't's Mem. Opp'n Pet. Writ Habeas Corpus, App. L. On February 3, 2006, the petitioner filed his third habeas petition in the same court. See Am. Pet. Writ Habeas Corpus at 6. The petitioner raised claims of ineffective assistance of trial and appellate counsel, and prosecutorial misconduct. See Id. The petitioner filed an amended petition on November 30, 2007. See Resp't's Mem. Opp'n Pet. Writ Habeas Corpus, App. M. The state court appointed an attorney to represent the petitioner in the habeas proceeding. See Pet.'r's Reply to Mem. Opp'n Pet. Writ Habeas Corpus, Doc. No. 25 at 19.

         On March 18, 2010, before the Connecticut Superior Court held a hearing on the third state habeas petition, the petitioner filed a federal petition challenging his 2001 conviction on fifty-eight grounds. See Saunders v. Commissioner, Case No. 3:10cv410(MPS) (Pet. Writ Habeas Corpus, Doc. No. 1). On February 15, 2011, the court granted the respondent's motion to dismiss on the ground that the petitioner had not exhausted his available state court remedies as to any of the claims in the petition. See id.; (Ruling and Order, Doc. No. 34).

         In the state habeas matter, a judge held hearings on the claims in the amended petition on May 13 and 15, and August 5, 2010. See Saunders v. Warden, No. CV064000933, 2011 WL 1086895, at *1 (Conn. Super. Ct. Feb. 23, 2011). The petitioner was represented by counsel during all three hearings. See Resp't's Mem. Opp'n Pet. Writ Habeas Corpus, App. V. On February 23, 2011, a judge denied the petition. See Saunders, 2011 WL 1086895, at *14.

         The petitioner appealed the denial of the habeas petition. See Saunders v. Commissioner of Correction, 137 Conn.App. 493, 48 A.3d 728 (2012). The petitioner elected to proceed pro se on appeal. See Pet.'r's Reply to Mem. Opp'n Pet. Writ Habeas Corpus, Doc. No. 25 at 20; Resp't's Mem. Opp'n Pet. Writ Habeas Corpus, App. R.

         On August 14, 2012, the Connecticut Appellate Court dismissed the appeal of the decision denying the petitioner's state habeas petition. See Saunders, 137 Conn. App. at 514, 48 A.3d at 742. On October 18, 2012, the Connecticut Supreme Court denied certification to appeal the decision of the appellate court. See Saunders v. Comm'r of Correction, 307 Conn. 920, 54 A.3d 192 (2012).

         On April 1, 2011, the petitioner filed a fourth habeas petition in the Connecticut Superior Court for the Judicial District of Tolland at Rockville. See Saunders v. Warden, TSR-CV11-4004081-S (Conn. Super. Ct. Apr. 1, 2011).[2] On March 11, 2013, a judge dismissed the habeas petition. See id., Dkt Entry 129.00. The petitioner appealed the dismissal. See id., Dkt. Entry 133.00. On May 16, 2013, the petitioner withdrew the appeal. See id., Dkt. Entry 135.00.

         The petitioner filed the present federal petition on April 20, 2013.[3] The amended petition includes ineffective assistance of counsel claims, prosecutorial misconduct claims, a claim of trial error, and a double jeopardy claim.[4]

         II. Applicable Legal Standard

         A. Exhaustion of Available State Remedies

         A prerequisite to habeas corpus relief under 28 U.S.C. § 2254 is the exhaustion of available state remedies. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement seeks to promote considerations of comity and respect between the federal and state judicial systems. See Martinez v. Ryan, __U.S.__, 132 S.Ct. 1309, 1316 (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."); Coleman v. Thompson; 501 U.S. 722, 731 (1991) (noting the exhaustion requirement, codified at 28 U.S.C. § 2254(b)(1), is "grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights.").

         To satisfy the exhaustion requirement, a petitioner must present the essential factual and legal bases of his federal claim to each appropriate state court, including the highest state court capable of reviewing it, in order to give state courts a full and fair "opportunity to pass upon and correct alleged violations of . . . prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (internal quotation marks and citation omitted). A federal claim has been "fairly present[ed] in each appropriate state court, (including a state supreme court with powers of discretionary review), " if it "alert[s] that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal parentheses and quotation marks omitted). A petitioner "does not fairly present a claim to a state court if that court must read beyond a petition or a brief . . . that does not alert it to the presence of a federal claim in order to find material . . . that does so." Id. at 32.

         Failure to exhaust may be excused only where "there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient to render futile any effort to obtain relief." Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam). A petitioner cannot, however, simply wait until appellate remedies no longer are available and argue that the claim is exhausted. See Galdamez v. Keane, 394 F.3d 68, 73-74 (2d Cir. 2005), cert. denied, 544 U.S. 1025 (2005).

         B. Procedural Default

         1. Procedural Default in State Court Generally Bars Federal Habeas Review

         If a claim has not been exhausted in the state courts, but the petitioner no longer has any available avenue to return to the state courts to exhaust the claim, the claim may be deemed exhausted. See 28 U.S.C. 2254(c)(3) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State . . . if he has a right under the law of the State to raise, by any available procedure, the question presented"); Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir.1991) (although petitioner failed to raise sentencing and prosecutorial misconduct claims on direct appeal, the court deemed the claims to have been exhausted "because those claims [were] . . .procedurally barred from presentation" to the state appellate courts). Nonetheless, under the procedural default doctrine, a federal court will not review the merits of a claim raised in a habeas petition, including a constitutional claim, if the state court declined to address the claim because the prisoner failed to meet a state procedural requirement and the state court decision is based on independent and adequate procedural grounds. See Walker v. Martin, 562 U.S. 307, 316 (2011) (citations omitted). A state rule or requirement must be firmly established and regularly followed by the state in question to qualify as an adequate procedural ground. See Beard v. Kindler, 558 U.S. 53, 130 S.Ct. 612, 618 (2009) (internal quotation marks and citation omitted). A state court decision will be "independent" when it "fairly appears" to rest primarily on state law. Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (citation omitted), cert. denied, 549 U.S. 1133 (2007).

         2. A Federal Habeas Court May Excuse Procedural Default for Cause and Prejudice or a Fundamental Miscarriage of Justice

         Exceptions to the doctrine barring procedurally defaulted claims from being heard in federal court exist. Trevino v. Thaler, 133 S.Ct. 1911, 1917 (2013). A state prisoner can obtain federal habeas review, despite having defaulted on his federal claim in state court pursuant to an independent and adequate state procedural rule, if he can demonstrate cause for the default and actual prejudice resulting from the default or he can show that failure to consider the claim will result in a fundamental miscarriage of justice. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000).

         To establish cause to excuse procedural default, the petitioner must identify "some external impediment preventing counsel from constructing or raising the claim." Murray v. Carrier, 477 U.S. 478, 492 (1986). Such factors include interference by state officials impeding compliance with state rules or a showing that the factual or legal basis for a claim was not reasonably available to defense counsel. See McCleskey v. Zant, 499 U.S. 467, 493-94 (1991).

         "Ineffective assistance of counsel . . . is cause for a procedural default." Murray v. Carrier, 477 U.S. 478, 488 (1986). A petitioner must exhaust his claim of ineffective assistance of counsel claim in state court, however, before a federal court may determine that an attorney's ineffective assistance is a basis to find cause and prejudice and thereby excuse a petitioner's failure to exhaust his state court remedies. See Murray v. Carrier, 477 U.S. 478, 488-89 (1986) ("[W]e think that the exhaustion doctrine, which is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings, generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.") (internal citations and quotations omitted).

         III. Factual Background

         The Connecticut Supreme Court determined that the jury reasonably could have found the following facts:

On January 26, 1997, the [petitioner] and his girlfriend, Susan Bruemmer, went to Tortilla Flat, a restaurant and bar in Danbury, after having spent the previous several hours drinking at another bar. The two remained at Tortilla Flat during the Super Bowl and continued to drink. As the [petitioner] and Bruemmer were getting ready to leave after the end of the game, Bruemmer approached the victim, Dominic Badaracco, Jr., who was seated at the bar, and struck up a conversation with him. Bruemmer was acquainted with the victim because she previously had dated his brother. The conversation soon escalated into an argument, which culminated in Bruemmer's throwing a drink in the victim's face.
The victim then called out to the [petitioner] that he had "better contain [his] bitch." The [petitioner] drew a handgun, approached the victim, and placed the barrel of the gun against the victim's head or neck. A fight ensued between the [petitioner], who is approximately six feet, five inches tall and 220 pounds, and the victim, who was approximately six feet, two inches tall and 230 pounds. The two men proceeded to fight. During the fight, which lasted only a short time, the victim punched the [petitioner] in the face. As a result, the [petitioner] suffered minor injuries including a bloody nose and some cuts and abrasions on his face. The victim's shirt was torn, and a gold chain that he had been wearing around his neck was broken.
As the fight broke out, Bethany McKnight, a bartender, heard someone in the bar yell "there's a gun . . . ." McKnight went into the kitchen to call 911 but discovered that Paula Keeler, the sister-in-law of Dennis Keeler, one of the owners of Tortilla Flat, already had made the call. Dennis Keeler also entered the kitchen to confirm that the police had been called. By this time, the [petitioner] had entered the kitchen from the bar area. Dennis Keeler noticed that the [petitioner] was holstering his weapon. McKnight and Paula Keeler asked the [petitioner] whether he had been shot and if he wanted them to call for an ambulance. The [petitioner] smiled and said no. Paula Keeler thereafter left the kitchen and went upstairs. At this time, the [petitioner] was located within fifteen feet of a door marked as an exit.
The victim, who had remained in the bar area, headed toward the kitchen. As the victim approached the kitchen doorway, he kicked a garbage can, stopped near the doorway and, according to Dennis Keeler, shouted to the [petitioner] that "if he [the petitioner] ever pulled a gun on him again he'd kill him." The victim then continued to move toward the [petitioner]. Dennis Keeler asked the victim "to stop, to let it go...." The victim did not heed Keeler's request, however, and continued to advance in the direction of the [petitioner].
By this time, the [petitioner] was leaning against a stove, wiping blood from his face. McKnight, who had remained in the kitchen, testified that the [petitioner] pulled out his handgun and "just calm [sic] as a cucumber ... started firing." The [petitioner] discharged all five of the bullets from his gun. The victim was struck by four of the five bullets, three of which entered through his back. The other bullet struck the victim in the left arm, near the armpit. The police soon arrived and arrested the [petitioner]. The victim subsequently died as a result of one or more gunshot wounds.

Saunders, 267 Conn. at 366-68, 838 A.2d at 190-91.

         IV. Discussion

         The petitioner raises eleven grounds in the amended petition. Several grounds include multiple claims. The petitioner and the respondent disagree about which claims have been exhausted. The petitioner argues that all eleven grounds have been exhausted, while the respondent argues that grounds one and four through eleven are procedurally defaulted and unexhausted. The respondent concedes that the petitioner has exhausted ground two. Finally, the respondent contends that the third ground asserts a violation of state law that is not cognizable and may not be reviewed by this court.

         As discussed below, the Court finds as follows. Ground one is exhausted, but the court cannot determine whether it is procedurally barred. Ground two is exhausted. Ground three is partially exhausted. The court will determine whether portions of ground three are cognizable upon the full exhaustion of the petitioner's state remedies. Ground four is exhausted and is not procedurally defaulted. Grounds five, six, seven, eight, and nine are unexhausted. As in ground one, the court cannot determine whether grounds seven, eight, and nine are procedurally barred. Grounds ten and eleven are not exhausted but the court cannot determine whether cause and prejudice exists to excuse any procedural default of the petitioner's claims.

         A. Ground One

         1.Ground One Is a Claim Under the Sixth Amendment

         The petitioner asserts that during his first criminal trial, the prosecutor improperly subpoenaed records in the custody of a woman who had been appointed as the petitioner's representative by power of attorney and that the records contained attorney-client information or trial strategy. See Am. Pet. Writ Habeas Corpus at 18. The prosecutor reviewed some of the documents and then returned them to the woman. The petitioner claims that the "state prosecutor's intentional invasion of attorney client privilege constituted a sixth amendment violation of Saunder[']s right to assistance ...


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