United States District Court, D. Connecticut
RULING ON PETITION FOR WRIT OF HABEAS CORPUS
Michael P. Shea United States District Judge.
December 29, 2015, the petitioner, Rory Coleman, an inmate
currently incarcerated at the Willard-Cybulski Correctional
Institution in Enfield, Connecticut, brought a petition for
writ of habeas corpus pro se under 28 U.S.C. §
2254 in this Court challenging his state court convictions
for possession of narcotics with intent to sell by a person
who is not drug-dependent, in violation of Conn. Gen. Stat.
§ 21a-278(b), possession of narcotics, in violation of
Conn. Gen. Stat. § 21a-279(a), and possession of
narcotics within fifteen hundred feet of a school, in
violation of Conn. Gen. Stat. § 21a-279(d). State v.
Coleman, 114 Conn.App. 722, 723 (2009), Resp't App.
A (ECF No. 16-1). He raises three claims in support of his
petition: (1) the evidence presented at his criminal trial
was insufficient to establish the possession element of all
three convictions; (2) the trial court improperly instructed
the jury on the possession element; and (3) trial counsel was
ineffective by failing to request a charge on the possession
element that excluded any reference to joint possession and
by inducing the trial court to reinstruct the jury on the
original charge, thereby precluding appellate review of the
instructional error claim. Petition (ECF No. 1) 9-13,
Coleman v. Warden, 09 Civ. 4003109 (Cobb,
J.), 2013 WL 4872708, *4 (Conn. Super. Ct. Aug. 20,
2013), Resp't App. J (ECF No. 16-11). The respondent
filed an opposition to the petition on July 18, 2016. For the
following reasons, the Court will DENY the petition for writ
of habeas corpus.
Standard of Review
federal court will entertain a petition for writ of habeas
corpus challenging a state court conviction under § 2254
only if the petitioner claims that his custody violates the
Constitution or federal laws. See 28 U.S.C. §
2255(a). A claim that a state conviction was obtained in
violation of state law is not cognizable in this Court.
See Estelle v. McGuire, 502 U.S. 62, 68 (1991).
2254(d) “imposes a highly deferential standard for
evaluating state-court rulings and demands that state-court
decisions be given the benefit of the doubt.”
Renico v. Lett, 559 U.S. 766, 773 (2010)
(citations and internal quotations omitted). This Court
cannot grant a petition for 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 unless the
adjudication of the claim in state court either:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). This is a very difficult standard
to meet. Metrish v. Lancaster, 569 U.S. 351, 357-58
established federal law is found in holdings, not dicta, of
the United States Supreme Court at the time of the state
court decision. See Howes v. Fields, 565 U.S. 499,
505 (2012); Carey v. Musladin, 549 U.S. 70, 74
(2006). “[C]ircuit precedent does not constitute
‘clearly established Federal law, as determined by the
Supreme Court.'” Parker v. Matthews, 567
U.S. 37, 48 (2012) (quoting 28 U.S.C. § 2254(d)(1)). A
decision is “contrary to” clearly established
federal law when it applies a rule different from that set
forth by the Supreme Court or if it decides a case
differently than the Supreme Court on essentially the same
facts. Bell v. Cone, 535 U.S. 685, 694 (2002). A
state court unreasonably applies Supreme Court law when it
has correctly identified the law but unreasonably applies
that law to the facts of the case, or refuses to extend a
legal principle clearly established by the Supreme Court to
circumstances intended to be encompassed by the principle.
See Davis v. Grant, 532 F.3d 132, 140 (2d Cir.
not enough that the state court's decision is incorrect
or erroneous. Eze v. Senkowski, 321 F.3d 110, 124-25
(2d Cir. 2003). Rather, the state court's application of
clearly established law must be objectively unreasonable, a
substantially higher standard. Id.; Schriro v.
Landrigan, 550 U.S. 465, 473 (2007). Thus, a state
prisoner must show that the challenged court ruling
“was so lacking justification that there was an error
well understood and comprehended in existing law beyond any
possibility of fairminded disagreement.” Harrington
v. Richter, 562 U.S. 86, 103 (2011).
reviewing a habeas petition, this Court presumes that the
factual determinations of the state court are correct. 28
U.S.C. § 2254(e)(1). The petitioner bears the burden of
rebutting that presumption by clear and convincing evidence.
Id. Moreover, this Court's “review under
section 2254(d)(1) is limited to the record that was before
the state court that adjudicated the claim on the
merits.” Cullen v. Pinholster, 563 U.S. 170,
case, the petitioner was charged with narcotics offenses
stemming from his participation in a transaction for the sale
of cocaine on May 9, 2005. Direct Appeal R., Resp't App.
B (ECF No. 16-2). The facts of the case are set forth in the
Connecticut Appellate Court's opinion as follows:
On May 9, 2005, Robert Burgos and Brenon Plourde, members of
the Hartford police department, and Peter Borysevicz, a
special agent employed by the federal Drug Enforcement
Administration, were members of a Hartford task force
assigned to investigate narcotic trafficking crimes in
Hartford and its surrounding towns. While conducting
surveillance of a house at 24 Florence Street in Hartford,
Plourde was parked in an undercover minivan in a parking lot
a few streets from the house. A confidential informant
previously had provided information to Burgos, Plourde and
Borysevicz that crack cocaine was being cooked at the
Florence Street location and was being distributed to drug
dealers. The informant had told the police that a man later
identified as Kendrick Leggett was selling drugs in the
neighborhood. The informant had given a physical description
of Leggett, who drove a gold Ford Explorer with tinted
windows and Massachusetts rental plates.
At approximately 8 p.m., on May 9, 2005, a vehicle matching
the description given by the informant arrived at 24 Florence
Street. A passenger got out, and the vehicle departed. At
approximately 8:30 p.m., the same vehicle entered a parking
lot adjacent to the parking lot in which Plourde's
minivan was parked. Plourde radioed to Burgos and Borysevicz.
He notified them that the gold Explorer was in the parking
lot in front of him. Plourde was unable to see into the
A few moments later, an Oldsmobile entered the parking lot
and stopped next to the Explorer. The driver of the
Oldsmobile, later identified as the [petitioner], left his
car and entered the Explorer. When the [petitioner] entered
the Explorer, the interior light went on, and Plourde was
able to see the driver of the Explorer. The driver matched
the physical description of Leggett that had been given by
the informant. When the [petitioner] shut the passenger side
door, the interior light turned off.
A few moments later, the interior light in the Explorer went
on for a second time. Plourde observed the [petitioner]
appearing to examine something white in plastic that appeared
to Plourde to be crack cocaine or powder cocaine. The
[petitioner] held the plastic with the white substance in his
hand. Several minutes later, the interior light came on for a
third time. Plourde saw the [petitioner] and Leggett counting
out money on the dashboard. Plourde notified Burgos and
Borysevicz that the occupants of the Explorer were exchanging
money. He told them to proceed to the location of the
Explorer and to make contact with the individuals inside.
Burgos parked his car directly in front of the Explorer to
block it in and to prevent escape. On leaving his vehicle,
Burgos pulled out his firearm and instructed Leggett to keep
his hands where he could see them. Burgos observed a lot of
movement from the driver, and money was “flying all
over the place.” After opening the door of the
Explorer, Burgos found money on the dashboard, on
Leggett's lap and in his hands. The amount of cash found
on and near Leggett totaled $7700.
Borysevicz parked his car directly in front of the
Oldsmobile. Upon leaving the car, Borysevicz drew his weapon
and told the occupants of the Explorer to put their hands up.
The [petitioner] complied by putting his hands up. Borysevicz
observed money totaling $2046 in the [petitioner]'s lap
and on the floor at his feet. He also found a plastic bag
with a quantity of an off-white rock like substance on the
floor of the passenger side of the vehicle. A field test
performed on the substance revealed that it was freebase
cocaine, also known as crack cocaine. It weighed four and
one-half ounces, or 126 grams. The crack cocaine was seized
within 1500 feet of the Quirk Middle School, a public school
for students in the seventh and eighth grades.
After waiving his Miranda rights, the [petitioner]
provided the police with a handwritten, signed statement. He
claimed that he met with Leggett to purchase an ounce of
crack cocaine. After he handed Leggett $550, Leggett produced
a bag of crack cocaine. Immediately thereafter, the police
approached the vehicle and told Leggett and the [petitioner]
to put their hands up.
Coleman, 114 Conn.App. at 724-26.
conclusion of evidence, the trial court discussed with the
parties the charge it intended to give to the jury. After a
charge conference, it asked both parties whether they had any
issues with the proposed instructions, and neither party had
any. See Criminal Trial Tr. 3, Resp't App. Q
(ECF No. 16-19). The trial court gave the following
instruction to the jury on the possession element with
respect to each count:
For you to find the [petitioner] guilty of this charge, the
State must prove beyond a reasonable doubt that the
[petitioner] knowingly possessed or had cocaine under his
control. Possession may be actual or constructive.
Possession, whether actual or constructive, may be proven by
either direct or circumstantial evidence. Keep in mind that
possession of the cocaine, not ownership, is all that is
Actual possession is established when it is shown that the
[petitioner] had actual physical possession of the cocaine.
Constructive possession is established when it is shown that
the [petitioner] exercised dominion and control over the
cocaine, and had actual knowledge of its presence. Remember
then, constructive possession requires a showing of two
things, control and knowledge.
Constructive possession may be exclusive or shared by others.
The latter is known as joint possession.
Id. at 42-43. The petitioner took no exception to
the charge as given. Id. at 51.
deliberations had begun, the trial court received a note from
the jury requesting “further instruction on [the]
definition of possession. One, constructive, two, joint,
three, any other.” Criminal Trial Tr. 56-57. The trial
court suggested to the parties that it reread its original
instructions on the possession element, and the petitioner
agreed with that plan. Id. at 57, 58. The court then
brought the jury into the courtroom and reread the ...