United States District Court, D. Connecticut
RONALD A. SCHIAVO, Petitioner,
SCOTT ERFE, Respondent.
RULING ON RESPONDENT'S MOTION TO DISMISS THE
PETITION FOR WRIT OF HABEAS CORPUS
A. BOLDEN, UNITED STATES DISTRICT JUDGE
December 19, 2017, Ronald A. Schiavo
(“Petitioner”), filed a petition for writ of
habeas corpus under 28 U.S.C. § 2254, challenging his
state conviction for first-degree manslaughter with a
firearm, in violation of Conn. Gen. Stat. § 53a-55a(a),
and arguing that, in the trial court, there were erroneous
jury instructions, prosecutorial misconduct, and ineffective
assistance of counsel. Pet., ECF No. 1.
Scott Erfe (“Respondent”) has moved to dismiss
the petition, arguing that Mr. Schiavo failed to exhaust his
state court remedies with respect to all of his claims.
Resp't Mot. to Dismiss, ECF No. 20. He argues that all
but one of Mr. Schiavo's seven claims of prosecutorial
impropriety have not been exhausted by the state's
highest court. Mem. of Law in Supp. of Resp't Mot. to
Dismiss, ECF No. 20-1.
response, Mr. Schiavo argues that he complied with the
exhaustion requirement and any failure to do so was the fault
of the state courts. Pet'r Resp. to Resp't Mot. to
Dismiss at 1- 13 (“Pet'r Resp.”), ECF No. 28.
He also contends that any attempt to exhaust his claims
further would be futile. Id. at 13-17.
Alternatively, Mr. Schiavo argues that if the Court agrees
with Mr. Erfe, it should permit his petition to proceed on
the exhausted claims. Id. at 18.
reasons stated below, the Court agrees that Mr. Schiavo has
failed to fully exhaust his state court remedies with respect
to all claims in his petition. Defendant's motion to
dismiss therefore is GRANTED and the
petition is DISMISSED without prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
November 18, 2002, a jury convicted Mr. Schiavo of
first-degree manslaughter with a firearm. Pet. at 2.
Schiavo appealed, arguing that the trial court erred because
“(1) the jury charge was improper and (2) he was
deprived of a fair trial due to prosecutorial
misconduct.” State v. Schiavo, 93 Conn.App.
290, 292 (2006). He argued that the jury instructions were
improper because the Court “improperly instructed the
jury on the (1) return of property exception to self-defense
and (2) duty to retreat exception to self-defense.”
Id. at 295. He also claimed that prosecutorial
impropriety deprived him of a fair trial. Id. at
300. The specific instances of impropriety alleged on direct
appeal included the following: (1) remarks at the beginning
of summation, asking “how . . . we measure a
life?” which appealed to the jury's emotions; and
(2) cross-examination of Mr. Schiavo which implied that he
was changing his testimony from that given at his first
trial. Id. at 303-06.
Connecticut Appellate Court rejected Mr. Schiavo's claims
and affirmed the trial court's judgment.
Schiavo, 93 Conn.App. at 295-308. On March 14, 2006,
the Connecticut Supreme Court denied his petition for
certification to review the Appellate Court's decision.
State v. Schiavo, 277 Conn. 923 (2006).
his direct appeal was pending, Mr. Schiavo filed a petition
for a new trial, claiming that the State of Connecticut
(“State”) violated the rules of discovery by
failing to disclose correspondence from him to third parties,
correspondence confiscated by Department of Correction
officials. State v. Schiavo, No. CR00288078, 2003 WL
1994141 (Conn. Super. Ct. Feb. 19, 2003). The Superior Court
rejected the petition on the merits, id., and Mr.
Schiavo did not appeal the decision.
11, 2006, Mr. Schiavo filed his first petition for writ of
habeas corpus in state court. Record from First State Habeas
at 4, Resp't Ex. I, ECF No. 20-10. He claimed ineffective
assistance of counsel because counsel failed to call an
expert in the field of crime scene reconstruction to
challenge the State's forensic evidence, as well as other
defense witnesses and failed to file the petition for new
trial properly on the discovery issue. Id. at 7-8.
He also reasserted the prosecutorial impropriety claim he
raised in his petition for a new trial and raised a new claim
that the prosecutor improperly “intimidated and
threatened potential witnesses including John Cromer, Amy
DeMayo, and Carla Barbera.” Id. at 18. The
state habeas court denied the petition in a written
memorandum of decision, finding no merit to any of Mr.
Schiavo's claims. Schiavo v. Warden, No.
TSRCV0604001086S, 2012 WL 4122911 (Conn. Super. Ct. Sep. 20,
appeal from the state habeas court's decision, Mr.
Schiavo raised only one claim: that the habeas court erred in
finding that trial counsel was not ineffective for failing to
procure a crime scene reconstruction expert. Pet'r Br.
from First Habeas Case at 3, ECF No. 20-11. The Connecticut
Appellate Court affirmed the habeas court's judgment in a
per curiam decision. Schiavo v. Comm'r of
Corr., 148 Conn.App. 905 (2014). The Connecticut Supreme
Court denied Mr. Schiavo's petition for certification to
appeal the Appellate Court's decision. Schiavo v.
Comm'r of Corr., 311 Conn. 946 (2014).
his first state habeas proceeding was pending on appeal, Mr.
Schiavo filed a second petition for writ of habeas corpus in
state court. Schiavo v. Warden, No.
TSR-CV12-4004954-S (Conn. Super. Ct. Sep. 10, 2012),
In the second petition, he claimed that counsel from his
first state habeas proceeding was ineffective for (1) failing
to raise a claim of ineffective assistance of trial counsel
based on the failure to call John Cromer as a witness for the
defense, and (2) failing to provide the crime scene expert
with sufficient information to bolster his credibility during
the first habeas trial. See Schiavo v. Warden, No.
TSRCV124004954S, 2015 WL 1867887 (Conn. Super. Ct. Mar. 31,
2015). The state habeas court denied the second petition,
finding no deficient performance on the part of first habeas
counsel. Id. Thereafter, the Connecticut Appellate
Court issued a per curiam decision denying Mr.
Schiavo's appeal from the second ...