Holley v. Cournoyer

          RULING AND ORDER ON MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

          Victor A. Bolden United States District Judge.

         On 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.

         For the following reasons, Ms. Cournoyer's motion to dismiss is GRANTED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations

         The 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 experience.

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, ^[1] 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.^[2] 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, functioning firearm.

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 their residence.

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).

         The 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. Id.

         Mr. 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.

         Mr. 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 ...