United States District Court, D. Connecticut
RULING ON AMENDED PETITION FOR WRIT OF HABEAS
Michael P. Shea, U.S.D.J.
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
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.
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.
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.
petitioner raised three grounds on appeal of his
conviction. 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).
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.
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.
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).
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,
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.
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
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). 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.
petitioner filed the present federal petition on April 20,
2013. The amended petition includes ineffective
assistance of counsel claims, prosecutorial misconduct
claims, a claim of trial error, and a double jeopardy
Applicable Legal Standard
Exhaustion of Available State Remedies
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
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.
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).
Procedural Default in State Court Generally Bars Federal
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
A Federal Habeas Court May Excuse Procedural Default for
Cause and Prejudice or a Fundamental Miscarriage of
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).
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).
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).
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
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.
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.
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.
One Is a Claim Under the Sixth Amendment
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 ...