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Schiavo v. Erfe

United States District Court, D. Connecticut

June 21, 2018

RONALD A. SCHIAVO, Petitioner,
v.
SCOTT ERFE, Respondent.

          RULING ON RESPONDENT'S MOTION TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE

         On 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.

         Warden 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.

         In 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.

         For the 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On November 18, 2002, a jury convicted Mr. Schiavo of first-degree manslaughter with a firearm. Pet. at 2.

         Mr. 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.

         The 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).

         While 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.

         On May 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, 2012).

         On 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).

         While 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), http://civilinquiry.jud.ct.gov/CaseDe-tail/PublicCaseDetail.aspx?DocketNo=TSRCV124004954S. 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 ...


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