United States District Court, D. Connecticut
RULING ON PETITION FOR WRIT OF HABEAS CORPUS
R. Underhill United States District Judge.
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.
Standard of Review
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).
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;
(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
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).
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
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.
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.
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.
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).
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.
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.
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).
filed his federal habeas petition in January 2016. The
respondent has filed a memorandum in opposition to the
Connecticut Appellate Court determined that the jury
reasonably could have found the following facts and
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
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. 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.”
123 Conn.App. 355, 357-60 (2010) (footnotes