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Mourning v. Commissioner of Correction

United States District Court, D. Connecticut

October 13, 2016

MICHAEL MOURNING, Petitioner,
v.
COMMISSIONER OF CORRECTION, Respondent.

          RULING ON PETITION FOR WRIT OF HABEAS CORPUS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         Petitioner, 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.

         I. Procedural Background

         On 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.

         Mr. 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 convictions.

         Mr. 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.

         On 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).

         On June 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.[1] 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. 2014).

         Mr. 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.

         II. Factual Background

         The state habeas court found the following facts.

         On 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.

         III. Standard of Review

         The 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).

         The 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 ...


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