United States District Court, D. Connecticut
RULING ON PETITION FOR WRIT OF HABEAS CORPUS
A. BOLDEN UNITED STATES DISTRICT JUDGE.
Michael Mourning, commenced this action while he was serving
the probationary period of his sentence. He filed this action
under 28 U.S.C. § 2254, challenging his conviction,
pursuant to a guilty plea, for sale of narcotics. For the
reasons that follow, the petition is DENIED.
August 7, 1996, Mr. Mourning was sentenced on three narcotics
offenses. In the first case, No. CR94-90346, Mr. Mourning was
sentenced to a term of imprisonment of fifteen years,
execution suspended after ten years, along with a five year
term of probation. In the second case, No. CR95-91109, Mr.
Mourning was sentenced to a term of imprisonment of fifteen
years, execution suspended after ten years, to be served
concurrently with the previous sentence. In the third case,
No. CR95-92193, Mr. Mourning was sentenced to a term of
imprisonment of five years, execution suspended, consecutive
to the previous two sentences. As a result of these three
sentences, Mr. Mouring received a total sentence of twenty
years of imprisonment, with its execution suspended after ten
years, followed by five years of probation.
Mourning completed his period of incarceration and began
serving his term of probation on August 4, 2007. On August 6,
2007, Mr. Mourning was arrested and charged with the sale of
narcotics. He also was charged with three counts of violating
the terms of his probation, even though the probationary
period was imposed only on one of the three prior
Mourning, through counsel, moved to dismiss one of the
violation of probation charges, on the ground that any period
of probation on the 1996 case would have expired while he was
serving the sentences in the other two cases. The trial court
denied the motion.
February 25, 2008, Mr. Mourning entered a guilty plea on the
charge of sale of narcotics and admitted to violating
probation in the three pending violation of probation cases.
The trial judge canvassed Mr. Mourning before accepting his
guilty plea. The trial court sentenced Mr. Mourning on the
2007 sale of narcotics case to a total effective term of
imprisonment of fifteen years, execution suspended after
three years, followed by four years of probation. The three
files for violation of probation were terminated.
Mourning v. Warden, No. CV084002448, 2012 WL 335847,
at *2 (Conn. Super. Ct. Jan. 6, 2012); see also Mourning
v. Commissioner of Correction, 992 A.2d 1169, 1172
(Conn. App. 2010).
6, 2008, Mr. Mourning filed a second state habeas action
challenging his conviction for sale of narcotics on the
grounds of ineffective assistance of counsel, prosecutorial
misconduct and actual innocence. Following a two-day hearing,
the trial court denied the petition. Mourning v.
Warden, 2012 WL 335847, at *25. The Connecticut
Appellate Court affirmed the denial and the Connecticut
Supreme Court denied certification. See Mourning v.
Commissioner of Correction, 85 A.3d 680 (Conn. App.)
(per curiam), cert. denied, 88 A.3d 549 (Conn.
Mourning commenced this action by petition filed June 10,
2014, while he was serving the probationary period of his
sentence. On August 6, 2014, he fully discharged the sentence
on the conviction for sale of narcotics.
state habeas court found the following facts.
August 6, 2007, members of the Danbury Police Department
Special Investigations Division were monitoring an area for
sale of narcotics. They saw Mr. Mourning drive into a parking
lot and park next to a white van. Mr. Mourning threw an
object into the driver's side window of the van. The
police officers determined that Mr. Mourning had been paid
$85.00 for five glassine bags marked Macho. The substance in
the bags tested positive for heroin. Mourning, 2012
WL 335847, at *2.
Standard of Review
Court will entertain a petition for writ of habeas corpus
challenging a state court conviction only if the petitioner
claims that his custody violates the Constitution or federal
laws. 28 U.S.C. § 2254(a).
Court cannot grant a petition for a writ of habeas corpus
filed by a person in state custody with regard to any claim
that was rejected on the merits by the state court ...