United States District Court, D. Connecticut
JUBAR T. HOLLEY, Petitioner,
ANNE COURNOYER, Respondent.
RULING AND ORDER ON MOTION TO DISMISS PETITION FOR
WRIT OF HABEAS CORPUS
A. Bolden United States District Judge.
April 10, 2017, Jubar T. Holley (“Petitioner”)
filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2254, challenging his four state convictions for
criminal possession of a firearm, in violation of Conn. Gen.
Stat. § 53a-217. Petition, ECF No. 1. On December 11,
2017, Warden Anne Cournoyer (“Respondent”) moved
to dismiss the petition on two grounds. First, Ms. Cournoyer
argues that Mr. Holley failed to exhaust all but one of his
claims. Resp't. Mem. in Supp. of Mot. to Dismiss
(“Resp. Mem.”) at 10, ECF No. 21-1. Second, Ms.
Cournoyer argues that the Mr. Holley's remaining claim, a
Fourth Amendment claim, is barred from review under Stone
v. Powell, 428 U.S. 465 (1976). Id. at 10-16.
following reasons, Ms. Cournoyer's motion to dismiss is
FACTUAL AND PROCEDURAL BACKGROUND
Connecticut Supreme Court set forth the following facts
surrounding Mr. Holley's firearm convictions:
[O]n March 14, 2013, Supervisory Inspector Michael Sullivan
of the Connecticut Division of Criminal Justice and Detective
Zachary Sherry of the Hartford Police Department (affiants)
applied for a search and seizure warrant pertaining to [Mr.
Holley's] residence, a single-family home located in the
town of East Hartford. The affiants were assigned to the
Greater New Britain Shooting Task Force, which is described
as a multiagency investigative unit charged with reducing
violent crime in the greater New Britain area. The affiants
claim over thirty-five years of combined investigative
In their application for a search warrant, the affiants
averred what may be summarized as follows: On March 4, 2013,
Sullivan was in contact with David Pierro, who claimed he was
a retired police officer from Port Chester, New York. Pierro
stated that he had sold a “M16 AR 15 A2 upper
receiver” (upper receiver) to [Mr. Holley] through the
website Gunbroker.com. Pierro stated that he notified the
police regarding this sale because he had performed an
Internet search on [Mr. Holley's] name and discovered
that [Mr. Holley] had previously been involved in a shooting.
The affiants discovered that [Mr. Holley] had a prior
conviction for conspiracy to commit assault in the first
degree, stemming from a 1994 shooting in New Britain.
Sullivan informed Pierro of this fact. Having confirmed [Mr.
Holley's] felony status, Pierro then forwarded documents
from Gunbroker.com to Sullivan indicating that [Mr. Holley]
had made eight other transactions through the website in the
previous two years. Pierro also agreed to ship the upper
receiver to Sullivan upon receipt of payment from [Mr.
Holley] so that the affiants could arrange a controlled
delivery of the upper receiver to [Mr. Holley].
The affiants averred that they confirmed relevant information
regarding [Mr. Holley's] address. They confirmed that the
shipping address that [Mr. Holley] reportedly provided to
Pierro belonged to [Mr. Holley] by verifying land records and
verifying the automobile registration of a car parked in the
driveway. Additionally, the affiants verified that the
telephone number [Mr. Holley] provided to Gunbroker.com
correlated to [Mr. Holley]'s address. On March 7, 2013,
Sullivan received an e-mail from Pierro containing a copy of
a money order for the purchase price of the upper receiver
from [Mr. Holley], which listed [Mr. Holley's] home
address. On March 11, 2013, Sullivan received a package from
Pierro through the mail containing the upper receiver and an
envelope containing the money order, which listed [Mr.
Holley's] address as the return address.
Pierro informed the police that the “only reason”
someone would purchase the upper receiver is if he were
assembling an assault rifle. Pierro elaborated that the fact
that [Mr. Holley] made eight additional purchases within the
previous two years on Gunbroker.com further supported his
conclusion. The Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF), which was assisting the affiants in their
investigation,  agreed with Pierro's conclusion.
Additionally, ATF Special Agent Jacob Berrick informed the
affiants that he was able to access [Mr. Holley's] most
recent purchase on Gunbroker.com, a “MGW AR-15 AR15 90
round drum, ” which the affiants averred is a mechanism
that holds the ammunition for the firearm, for $125. The
affiants averred that the discovery of this transaction
supported the conclusion that [Mr. Holley] was purchasing
separate firearm parts in order to assemble a complete,
Moreover, the affiants averred that from their training and
experience, they “know ... that typical [firearm]
owners do not purchase firearms parts but rather purchase
firearms as a whole. Those people that do purchase firearms
parts are likely to have a greater interest and expertise in
firearms than a typical firearms owner. It is therefore, very
likely that [Mr. Holley] has an advanced knowledge and
interest in firearms and probably has other firearms in his
possession.” The affiants further averred that, from
their training and experience, they have found that those who
illegally possess firearms commonly store such firearms in
The search warrant was issued on March 14, 2013, and executed
the following day. The police seized numerous firearms and
firearm related items from [Mr. Holley's] residence.
State v. Holley, 324 Conn. 344, 348-50 (2016).
State of Connecticut (the “State”) charged Mr.
Holley through a long-form information with thirty-eight
counts of criminal possession of a firearm. Pet'r Supreme
Ct. Br. at 9, Resp't App. D, ECF No. 21-5. Mr. Holley
moved to suppress the evidence obtained from the search,
claiming that the search warrant lacked probable cause.
Holley, 324 Conn. at 350. After a full hearing at
which both parties presented their arguments, the trial court
denied the motion to suppress in a written memorandum of
decision. Id. at 350-51; Petition at 18; Mem. of
Decision on Mot. to Suppress, Resp't App. D at 122. The
court ruled that Mr. Pierro, the citizen informant, provided
detailed information about Mr. Holley's identity,
criminal history, and firearm purchases, which the police
successfully corroborated through further investigation. Mem.
of Decision on Mot. to Suppress, Resp't App. D at 132.
The court found that this information, combined with the
recent purchase of a firearm part, was sufficiently reliable
for the judge issuing the warrant to find probable cause.
Holley thereafter entered pleas of nolo contendere
to four counts of criminal possession of a firearm
conditioned on his right to appeal the trial court's
decision on the motion to suppress. Holley, 324
Conn. at 351. Mr. Holley appealed the trial court's
decision, and the case was transferred directly to the
Connecticut Supreme Court. See Id. at 351 n.7. The
Connecticut Supreme Court affirmed the trial court's
decision, holding that the search warrant affidavit provided
probable cause for the issuing judge to reasonably infer that
Mr. Holley intended to assemble a firearm and that the
information provided by Mr. Pierro was sufficiently reliable.
Id. at 355-61.
Holley did not seek habeas corpus relief in state court. He
did, however, file a motion in state court to correct what he
argued was an illegal sentence. Petition at 4. In support of
his motion, he argued that the court that accepted his pleas
had imposed multiple punishments for the same offense. Mot.
to Correct Illegal Sentence at 8, Resp't App. G, ECF No.
21-8. Specifically, he argued that he received “4
sentences for 1 crime based on essentially the same facts,
same offense, same conduct, at the same time, and for a
single occurrence.” Id. at 9. On July 28,
2017, the trial court denied the motion, ruling that the
charging documents supported four ...