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Fluker v. Falcone

United States District Court, D. Connecticut

August 14, 2018

TAVORUS FLUKER, Petitioner,
v.
WARDEN H. FALCONE, Respondent.

          RULING ON PETITION FOR WRIT OF HABEAS CORPUS

          Stefan R. Underhill United States District Judge.

         Tavorus Fluker (“Fluker”), an inmate currently confined at Garner Correctional Institution in Newtown, Connecticut, brings this action pro se seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his 2008 Connecticut convictions for attempted murder, assault and criminal possession of a firearm. For the reasons that follow, the petition is denied.

         I. Standard of Review

         A federal 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. See 28 U.S.C. § 2254(a). A claim that a state conviction was obtained in violation of state law is not cognizable in the federal court. See Estelle v. McGuire, 502 U.S. 62, 68 (1991).

         Section 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 quotation marks omitted). A federal 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 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). That is a very difficult standard to meet. Metrish v. Lancaster, 569 U.S. 351, 357-58 (2013).

         Clearly established federal law is found in holdings, not dicta, of the 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). Thus, “[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)). The law may be a generalized standard or a bright-line rule intended to apply the standard in a particular context. See Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir. 2002).

         A decision is “contrary to” clearly established federal law where the state court 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 the court has correctly identified the governing 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. 2008), cert. denied, 555 U.S. 1176 (2009). It is not enough that the state court decision is incorrect or erroneous. Rather, the state court application of clearly established law must be objectively unreasonable, which is a substantially higher standard. See Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Thus, a state prisoner must show that the challenged court ruling “was so lacking in 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); see also Burt v. Titlow, 571 U.S. 12, 134 S.Ct. 10, 15 (2013) (federal habeas relief warranted only where the state criminal justice system has experienced an “extreme malfunction”).

         When reviewing a habeas petition, the federal court presumes that the factual determinations of the state court are correct. The petitioner has the burden of rebutting that presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (standard for evaluating state-court rulings where constitutional claims have been considered on the merits and which affords state-court rulings the benefit of the doubt is highly deferential and difficult for petitioner to meet). In addition, the federal 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.” See Id.

         II. Procedural History

         On July 11, 2007, Groton Police Detectives Robert Emery and Kevin Curtis executed a warrant for the arrest of Fluker on charges of attempt to commit murder, criminal use of a firearm, criminal possession of a firearm and unlawful discharge of a firearm. See Resp't's Mem. Opp'n Pet. Writ Habeas Corpus, App. B at 9-12, ECF No. 15-2. On July 12, 2007, a judge of the Connecticut Superior Court for the Judicial District of New London arraigned Fluker, read him his rights and set bond at one million dollars. See Id. at 9. On August 6, 2007, Fluker pleaded not guilty to all four counts. See Id. at 6, 8. On July 1, 2008, Michael Regan, State's Attorney for the New London Judicial District, filed a substitute information charging Fluker with one count of criminal attempt to commit murder in violation of Connecticut General Statutes § 53a-49 and 53a-54a, one count of assault in the first degree in violation of Connecticut General Statutes § 53a-59(a)(5), and one count of criminal possession of a firearm in violation of Connecticut General Statutes § 53a-217(a). See Id. at 13. Fluker pleaded not guilty to all three counts of the substitute information. See id.

         A jury trial began on July 25, 2008. See Id. at 4. On August 15, 2008, the jury found Fluker guilty of all three counts. See Id. at 5. On October 17, 2008, a judge sentenced Fluker to a total effective sentence of twenty-five years of imprisonment. See Id. at 4-5, 19.

         Fluker appealed his convictions on two grounds. See State v. Fluker, 123 Conn.App. 355, 357 (2010). He claimed that the state violated the Fifth Amendment's prohibition against presenting evidence of post-Miranda silence at trial and the prosecutor had engaged in prosecutorial misconduct by failing to follow a court order regarding the admissibility of evidence involving the efforts of police to locate him. See Id. On August 24, 2010, the Connecticut Appellate Court affirmed the judgment of conviction. See Id. at 372. On October 14, 2010, the Connecticut Supreme Court denied the petition for certification to appeal from the decision of the Connecticut Appellate Court. See State v. Fluker, 298 Conn. 931 (2010).

         On May 9, 2011, Fluker filed a petition for writ of habeas corpus in the Connecticut Superior Court for the Judicial District of Tolland at Rockville challenging his conviction. See Resp't's Mem. Opp'n Pet. Writ Habeas Corpus, App. H, ECF No. 15-8. On February 25, 2013, a superior court judge granted Fluker leave to file a second amended petition. See id., Dkt. Entry 113.00, 114.00 & App. J. Fluker asserted claims of ineffective assistance of trial counsel, ineffective assistance of appellate counsel, prosecutorial misconduct and actual innocence. See id., App. J.

         Fluker and other witnesses participated in a trial on the claims in the second amended petition on October 16, 2013 and April 25, 2014. See Fluker v. Warden, State Prison, No. CV11-4004147-S, 2014 WL 4290611, at *2 (Conn. Super. Ct. July 18, 2014). On July 16, 2014, a judge denied the petition. See Id. at *8.

         Fluker appealed the denial of the second amended petition. On October 27, 2015, the Connecticut Appellate Court dismissed the appeal of the decision denying the amended habeas petition. See Fluker v. Comm'r of Correction, 160 Conn.App. 908 (2015) (per curiam). On December 9, 2015, the Connecticut Supreme Court denied the petition for certification to appeal the decision of the appellate court. See Fluker v. Comm'r of Correction, 320 Conn. 905 (2015).

         Fluker filed his federal habeas petition in January 2016. The respondent has filed a memorandum in opposition to the petition.

         III. Factual Background

         The Connecticut Appellate Court determined that the jury reasonably could have found the following facts and procedural history:

On the evening of February 9, 2007, the victim, Lewis Camby III, went to Sully's Cafe', a tavern in Groton. Shortly after arriving, he encountered [Fluker]. After exchanging greetings, [Fluker] asked the victim, “what's up with that $300 that you owe Danette [Robinson].”2 After a brief discussion, the two men decided that neither of them wanted to make an issue over the debt owed to Robinson. Subsequent to this conversation, the victim continued socializing within the bar and observed [Fluker] leave through a door located in the poolroom. Upset that [Fluker] had interfered in his personal business, the victim called Robinson to ask why [Fluker] was inquiring about the money that he owed her. A short time later, the victim encountered [Fluker] again. This time, [Fluker] appeared in the poolroom near a door, which exited into the parking lot. During this encounter, after motioning to the victim to come over to where he was standing, [Fluker] grabbed his arm, put a pistol under his chin and said, “I kill [people] like you.” Both men then proceeded toward the door in the poolroom which led into the parking lot. As [Fluker] exited, the victim remained close to the doorway, and the two men began to argue about the recent altercation. At this point, [Fluker] raised his arm and shot the victim in the chest with a large caliber automatic weapon.
Soon after the shooting, officers from the Groton town police department were dispatched to Sully's Cafe'. Upon arriving, Sergeant Jeffrey Scribner entered the tavern and observed the victim being held up by two patrons leaning against the bar. Scribner noticed “a bloody hole in the upper left chest area and in the clothing” of the victim where he had been shot. Despite being very emotional, the victim was alert enough to inform Scribner that he had been shot by “Tavorus.” When Scribner investigated further concerning the identity of the shooter, the victim told him that Tavorus was “Lamar's brother.” Being familiar with Tavorus and Lamar, Scribner concluded that [Tavorus Fluker] was the shooter. Police began a canvass of the crime scene and found a .45 caliber shell casing in the parking lot immediately outside a side door of the bar that led to the poolroom.
Shortly afterward, medical personnel arrived, stabilized the victim and transported him to William W. Backus Hospital. Officer Christopher Hoffman of the Groton town police department accompanied the victim in the ambulance and stayed with him at the hospital until he was flown by Life Star helicopter to Hartford Hospital. While waiting to be transported, the victim, once again, identified [Fluker] as the person who had shot him. The victim told Hoffman that [Fluker] shot him over an outstanding debt that he owed to a mutual friend. Following the victim's identification of [Fluker] as the person who had shot him, the police began looking for [Fluker].
The next morning, [Fluker] left Connecticut and drove to Philadelphia, Pennsylvania. He eventually went to Arkansas. At no time following the shooting did [Fluker] tell anyone he was leaving town or where he was going. That same morning, a warrant was issued for the arrest of [Fluker] in connection with the shooting. As part of their investigation, police contacted other area police departments and the United States Marshals Service for assistance in locating [Fluker]. Police also informed the New London Day newspaper (Day) that a warrant had been issued. Subsequently, the Day published an article concerning [Fluker] and the shooting.
[Fluker] was arrested in Arkansas on July 11, 2008.[1] He then was transported to Newburgh, New York, by the United States Marshals Service and taken into custody by Detectives Robert Emery and Kevin Curtis of the Groton town police department. Once [Fluker] was secured in the transport vehicle, Curtis advised him of his Miranda rights. Subsequently, Emery asked [Fluker] “if he wanted to talk about the case.” Emery testified that “[Fluker] just declined. He said he didn't want to talk about it, and I said okay. And he said he's got five witnesses that will say he didn't do it or wasn't involved.” After Emery asked [Fluker] to supply the names of his alibi witnesses, the defendant responded, “no, that's all right.”

Fluker, 123 Conn.App. 355, 357-60 (2010) (footnotes ...


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