United States District Court, D. Connecticut
RULING ON PETITION FOR WRIT OF HABEAS CORPUS
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
se petitioner Victor Smalls ("Smalls"), a
prisoner currently confined at the Corrigan-Radgowski
Correctional Center ("Corrigan") in Uncasville,
Connecticut, has filed a petition for writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, challenging his 2009 state
court conviction for murder under Conn. Gen. Stat.
§§ 53a-54a. Doc. 1 ("Petition for Writ of Habeas
Corpus"). The respondents, Warden William Faneuff and
Deputy Warden Derrick Molden, opposing the petition, argue
that (1) the Petitioner has failed to exhaust his state court
remedies, and (2) the state appellate court decisions
affirming the judgment of conviction were based on a
reasonable application of clearly established federal law.
Doc. 12 ("Response to Order to Show Cause"). Smalls
filed a reply objecting to that response. Doc. 13
("Petitioner's Traverse to Order to Show Cause"
or "Reply"). By this Ruling, the Court resolves the
Petitioner's request for habeas relief.
FACTS AND PROCEDURAL HISTORY
March 17, 2009, Smalls was convicted after a jury trial on
two criminal charges: murder, in violation of Conn. Gen.
Stat. § 53a-54a, and carrying a pistol without a permit,
in violation of Conn. Gen. Stat. § 29-35(a). Doc. 1, at
3; see also State v. Smalls, 136 Conn.App. 197, 202
Connecticut Appellate Court summarized the underlying facts
of the case as follows:
On the afternoon of March 22, 2007, Colonel Francis, James
Gibson and the victim [Edgar Sanchez] drove to the vicinity
of the Monterey Village housing project, which also is known
as the Carlton Court housing project (apartment complex), in
Norwalk. They parked their vehicle near the apartment
complex, and Gibson went to sell narcotics, while the victim
and Francis went to a nearby diner to wait for Gibson. When
Gibson arrived at the diner, he told Francis and the victim
that he thought something was going on outside and that they
should leave the area. As they were walking back to their
vehicle, Gibson noticed two hooded and masked individuals,
later identified as Jimmy Kave and [Victor Smalls], following
them, and he told the victim and Francis to walk faster. One
of the hooded and masked individuals called out to the men,
and Francis looked back and saw one of the men reach toward
his waistline. Believing that the man was about to pull out a
gun, Francis turned and ran toward the vehicle. The victim
turned around to face the hooded and masked men, and [Smalls]
and Kave both fired several shots at the victim, one of which
hit him, causing his death. Gibson turned and saw both
[Smalls] and Kave firing handguns. [Smalls] and Kave fled the
scene after firing the shots. Francis heard the gunshots and
then heard Gibson yelling for him to get the car. Francis got
the car and parked it near the victim, who was located at or
near the entrance to the apartment complex on Grove Street,
and he and Francis attempted to get the victim into the car,
but the victim collapsed. Gibson applied pressure to the
victim's wound, while he and Francis waited for the
police and an ambulance to arrive.
Moments earlier, a resident of the apartment complex, Tracie
McElveen (T. McElveen), along with her twin sister, Stacie
McElveen (S. McElveen), drove down Grove Street, where they
saw three males walking toward the apartment complex, and
drove into the parking area of the apartment complex shortly
before they heard gunfire. They then saw two males wearing
hoodies run from Grove Street and between buildings twelve
and thirteen of the apartment complex, with their hoods
clenched tight around their faces. T. McElveen then saw the
men run into building thirteen of the apartment complex. As
the McElveens drove away from the apartment complex, they saw
the victim lying on his back, with blood all over him, and
they stopped their car. T. McElveen recognized the injured
male as one of the three males she and her sister had seen
walking toward the apartment complex a short time before. The
other two males they had seen were nearby, and one of them
asked for someone to call 911. S. McElveen then called 911
using her cell phone. The McElveens remained at the scene and
spoke with the police once they arrived at the scene.
A maintenance worker at the apartment complex, Temestocles
Sanchez (T. Sanchez), had been repairing a hole in the wall
in building thirteen when he heard the gunshots. After
hearing the gunshots, he looked out of the window and saw
[Smalls] and Kave run into the building less than a minute
after he heard the shots. T. Sanchez recognized [Smalls], and
he also saw that the other individual had a partially exposed
gun in his hoodie. [Smalls] and Kave began knocking on
apartment doors. T. Sanchez went to report the incident to
his supervisor, and they telephoned the police. [Smalls] and
Kave gained entry into apartment 151, and they began talking
with its occupants, Erica Sawyer and her cousin, Crystal
Burden. Burden, Burden's mother, Maribel Rodriguez, and
Burden's younger sister all lived in apartment 151. Once
Burden's mother left for work and Burden's younger
sister left for school in the morning, Burden and Sawyer were
the only people in apartment 151 until [Smalls] and Kave
arrived. Burden and Sawyer had not left the apartment all
day. After [Smalls] and Kave arrived, they each removed their
sneakers and their hoodies. Burden told [Smalls] and Kave to
leave, but they remained. The police arrived at the scene and
surrounded building thirteen; no one entered or exited the
building, except for the police. The police obtained a master
key from the manager of the apartment complex, secured the
approval of the apartment residents and began knocking on
doors looking for [Smalls] and Kave. Upon entering apartment
151, the police ordered its occupants to come out, and Sawyer
and Burden exited a bedroom. An officer again ordered anyone
else in the apartment to come out. [Smalls] and Kave came out
of the bedroom from which Burden and Sawyer also exited. No.
one else was found in the apartment. The renter of the
apartment, Maribel Rodriguez, arrived home, and the police
obtained her permission to search the apartment. They found
two hoodies, two pairs of men's sneakers and, in the back
of the bedroom closet, a .380 semiautomatic handgun and a
nine millimeter Glock handgun. In the cartridge of the Glock
handgun were four Federal Cartridge Company (Federal)
HydraShok brand nine millimeter bullets. The police also
uncovered a black mask in a pocket of one of the hoodies and
another black mask in one of [Smalls]'s pockets.
In the meantime, the police had arrived at the location of
the shooting and attempted to tend to the unconscious victim.
An ambulance was called, and it transported the victim to the
hospital, where he was pronounced dead, never having regained
consciousness. The paramedic explained that the victim had
"bled . . . out right on the street. He lost most of his
blood there." The medical examiner reported that the
twenty-two year old victim had died as a result of a
"[g]unshot wound to the lower abdomen." The medical
examiner retrieved one bullet from the victim's body,
which, after cleaning and photographing it, she placed in a
labeled container and then turned it over to the police. The
bullet was a nine millimeter caliber, jacket hollow point,
with a Hydra-Shok design.
While at the scene of the shooting, the police collected
eight spent shell casings and one live round. Four of the
shell casings were .380 caliber, as was the one live round.
The remaining shell casings were nine millimeter. It was
determined, to a reasonable degree of certainty, that the
shell casings had come from the handguns that had been seized
from apartment 151. The bullet that killed the victim also
was consistent with one having been fired from the nine
millimeter handgun that was recovered from apartment 151.
None of the shell casings or the handguns contained
fingerprints, and [Smalls] and Kave had no gunpowder residue
on their hands.
Following a probable cause hearing, [Smalls] elected to be
tried by a jury, and a trial ensued. At the close of the
state's evidence, [Smalls] filed a motion for a judgment
of acquittal, which the court denied. [Smalls] called no
witnesses. The jury found [Smalls] guilty of murder and of
carrying a pistol without a permit.
Smalls, 136 Conn.App. at 198-202 (footnotes
omitted). Following his conviction, Smalls was sentenced to a
total effective sentence of forty-five (45) years of
imprisonment. Id. at 202.
direct appeal, Smalls claimed that the trial court improperly
"(1) found that there was probable cause to support
[his] prosecution . . . for causing the death of the victim,
Edgar Sanchez, and (2) concluded that the evidence was
sufficient to sustain [his] conviction for murder as either a
principal or accessory." 136 Conn.App. at 198; Doc. 1,
at 4. The Connecticut Appellate Court rejected both of
Smalls's claims of error and affirmed the judgment of
conviction. 136 Conn.App. at 203-10.
his first claim - i.e., that the trial court
improperly found that there was probable cause to support his
prosecution for causing the death of the victim, Edgar
Sanchez - the Connecticut Appellate Court held that, although
the evidence did not establish whether Smalls or Kave fired
the fatal shot, it warranted a person of reasonable caution
to believe that Smalls had murdered the victim and,
therefore, amounted to probable cause. Id. at 209.
The Court summarized:
The defendant argues that although the evidence reasonably
might "justify an inference that either the defendant or
Kave fired the fatal shot" that killed the victim,
"the only inference that can be derived from [the] facts
is that there is a  percent possibility that the
defendant fired the fatal shot.... And there is a 
percent possibility [that] Kave fired the fatal shot."
He argues that this is insufficient to support a finding of
probable cause to try him for murder. We disagree with the
defendant's assertion that probable cause requires more
than a 50 percent likelihood, which essentially would amount
to a preponderance of the evidence, that the defendant
committed the crime, and we conclude that the evidence
presented at the defendant's hearing in probable cause
would warrant a person of reasonable caution to believe that
the defendant had murdered the victim.
Id. at 208-09.
support of his second claim that "the court improperly
concluded that the evidence was sufficient to sustain the
defendant's conviction for murder as either a principal
or an accessory," Smalls argued that there was no
evidence that he either touched the handgun from which the
fatal shot was fired, or that he intentionally aided Kave in
the commission of the murder, as required by Conn. Gen. Stat.
§ 53a-8(a). Id. at 202-03.
state countered that under the "concert of action
doctrine," the evidence was sufficient to support
Smalls's conviction for murder as a principal or as an
accessory. Id. at 203. At oral argument, Smalls
contended that the "concert of action" doctrine:
"puts a gloss on § 53a-8(a) that is not supported
by the statute's plain language," is not a rule of
law, and is not binding on the appellate court. Id.
at 203 n.4; Doc. 1, at 13.
on the Connecticut Supreme Court's precedent in State
v. Delgado, 247 Conn. 616 (1999), the Connecticut
Appellate Court stated:
"Whether a person who is present at the commission of a
crime aids or abets its commission depends on the
circumstances surrounding his presence there and his conduct
while there.... Since under our law both principals and
accessories are treated as principals ... if the evidence,
taken in the light most favorable to sustaining the verdict,
establishes that [the defendant] committed the [murder]
charged or did some act [that] forms ... a part thereof ...
then the convictions must stand.... Therefore, as we have
stated in the past, the terms accessory and principal refer
to the alternate means by which one substantive crime may be
committed." (Citations omitted; internal quotation marks
136 Conn.App. at 203-04 (quoting State v. Delgado,
247 Conn. 616, 622 (1999)).
the present case to Delgado, the appellate court
agreed with the state that the jury reasonably could have
found that, at the time Smalls was firing his gun at the
victim, he was aware that Kave also was firing at the victim
and, therefore, there was "sufficient concert of action
between the defendant and [the other participant] to support
the accessory allegation.... As such, there was sufficient
evidence to support the jury's conclusion that the
defendant had intentionally contributed to the victim's
murder." Id. at 204 (quoting Delgado,
247 Conn. at 623). In other words, there was sufficient
concert of action between Smalls and Kave to establish that
Smalls intentionally aided in the commission of the murder.
Id. The trial court's judgment of conviction was
petitioned the Connecticut Supreme Court to review the
Connecticut Appellate Court's decision. Doc. 1, at 4, 12.
On the first page of the petition, he framed the issues for
certification the same way he presented them for review by
the appellate court:
I. Whether The Evidence Was Insufficient To Support The
Defendant's Conviction For Murder As Either A Principal
Or An Accessory?
II. Whether The Evidence Was Insufficient To Support The
Trial Court's Finding That Probable Cause Existed That
The Defendant Caused The Death Of Sanchez?
Doc. 1, at 12.
the first issue, the substance of his argument in support of
certification was that the Connecticut Appellate Court, in
affirming the judgment of conviction on sufficiency grounds,
improperly applied the "concert of action" language
from Delgado and its predecessor, State v.
Diaz, 237 Conn. 518, 679 (1996). He argued that the
appellate court's findings were inconsistent with
accessorial liability principles and diluted the state's
burden of proof. See Doc. 1, at 14-16. Smalls
asserted that the concert of action language (1) is
inconsistent with state precedent on accessorial liability,
(2) is inconsistent with the clear language of §
53a-8(a), (3) wrongfully absolves the state of its burden to
prove that another person committed the crime, (4) is
inconsistent with the Second Circuit's decision in
United States v. Ruffin, 613 F.2d 408, 412 (2d Cir.
1979), (5) wrongfully absolves the state of its burden to
prove that the accused helped, supported or assisted the
other person in committing the crime, and (6) is only invoked
when the state, as in this case, is unable to prove whether
the accused or the other participant committed the crime.
Doc. 1, at 14-16.
respect to the second question presented for certification,
Smalls argued that the appellate court improperly upheld the
trial court's finding of probable cause because there was
no direct evidence that Smalls fired the fatal shot, and
"the only permissible inference based on the evidence
was [that] either [Smalls] o[r] Kave killed the victim,"
which is insufficient to find probable cause. Doc. 1, at
Connecticut Supreme Court granted Smalls's petition for
certification, limited to the following issue: "Did the
Appellate Court properly apply the concert of action
doctrine; see State v. Diaz, 237 Conn. 518, 679 A.2d
902 (1996); in concluding that there was sufficient evidence
to support the defendant's conviction for murder as
either a principal or an accessory?" State v.
Smalls, 306 Conn. 906 (2012). See also Doc. 1,
at 20; Doc. 12-2. In his brief to the Supreme Court, Smalls
reiterated his arguments that the concert of action doctrine
is inconsistent with § 53a-8(a) and improperly dilutes
the state's burden of proof. See Doc.12-3
("Petitioner's Brief to the Supreme Court"), at
25-30. He interpreted the doctrine as requiring the state to
prove that the accused "prepared for, and knowingly
participated in, the murder," which is less burdensome
than § 53a-8(a)'s requirement that the accused
"intentionally aid[ed]" another person in
committing the crime. See id., at 30-31. He asserted
that the evidence was insufficient to show that he committed
the murder as a principal because there was no evidence that
he fired the fatal shot. Id., at 31. Moreover, he
argued, the state could not convict him as an accessory
because it could not prove that Kave fired the fatal shot
and, therefore, that Smalls intentionally aided Kave in
killing Sanchez. Id. Smalls also challenged the
appellate court's conclusion that the evidence showed he
was aware that Kave was firing at the victim. See
id., at 32.
per curiam opinion, the Supreme Court dismissed
Smalls's appeal without substantive review of the issue
presented. State v. Smalls, 312 Conn. 148 (2014)
(filed on the case record as Doc.12-4). The Court held as
follows: "After examining the entire record on appeal
and considering the briefs and oral arguments of the parties,
we have determined that the appeal in this case should be
dismissed on the ground that certification was improvidently
granted." Id. at 150. Put simply, upon
additional review, the Connecticut Supreme Court dismissed
the case summarily because it concluded that it never should
have accepted it.
January 25, 2011, while his direct appeal was still pending,
Smalls filed his first petition for writ of habeas corpus in
state court. Doc. 12-7 ("First State Habeas
Petition," App'x G to Respondent's Brief). In
that writ, Smalls claimed that his trial counsel, Eroll
Vincent Skyers, was ineffective during his criminal trial
because Skyers failed to: call an expert witness on
Smalls's behalf, properly cross-examine the state's
witnesses, object to the amended information, or fully
investigate the case. See id., at 5. Smalls later
withdrew this petition on June 4, 2013, before the habeas
trial could be held. Id., at 8; Doc. 1, at 22-23.
filed his second state habeas petition on July 15, 2014,
approximately one month after the Connecticut Supreme Court
dismissed his direct appeal. Doc. 12-8 ("Second State
Habeas Petition," App'x H to Respondent's
Brief). In support of his second petition, Smalls argued
that: (1) the "long form information" upon which he
was convicted did not properly state the elements of
accessorial liability, (2) his trial counsel Skyers was
inadequately prepared for cross examination of witnesses
because he failed to investigate and interview said witnesses
prior to their testimony; (3) Skyers also, inter
alia, failed to move for a bill of particulars, a
dismissal of the information, and/or a new trial; (3)
appellate counsel, Raymond L. Durelli performed in a
"deficient" manner because he failed to challenge
Smalls's conviction for carrying a firearm without a
permit; and (4) Smalls's confinement violated his Eighth
Amendment protection against cruel and unusual punishment
because "he is being held without any meaningful
opportunity to obtain release for a crim[e] committed as a
juvenile." Id. at 7-10. Smalls withdrew his
second petition on March 23, 2017, less than two weeks before
it was scheduled for trial. Id. at 11; Doc. 1, at
seven months after withdrawing this second state habeas
action, Smalls filed the instant federal petition for writ of
habeas corpus (herein "Petition"). Doc. 1, at 1.
STANDARD OF REVIEW
to the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), 28 U.S.C. § 2254(a), "a
district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to
the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or
treaties of the United States." See Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) ("Section
2254(a) permits a federal court to entertain only those
applications alleging that a person is in state custody
'in violation of the Constitution or laws or treaties of
the United States.'"). Because federal habeas relief
may only be obtained for a violation of federal law, it
"does not lie for errors of state law." See
Estelle v. McGuire, 502 U.S. 62, 67(1991) (citation
omitted). Therefore, a claim that a state conviction was
obtained in violation of state law is not cognizable in this
as the Second Circuit stated in Lewis v. Connecticut
Commissioner of Correction, 790 F.3d 109 (2d Cir. 2015):
"[F]ederal courts will not review questions of federal
law presented in a habeas petition when the state court's
decision rests upon a state-law ground that 'is
independent of the federal question and adequate to support
the judgment.'" Cone v. Bell, 556 U.S. 449,
465, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) (quoting
Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct.
2546, 115 L.Ed.2d 640 (1991)).
790 F.3d at 117.
determining whether a state conviction violates federal law,
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 quotations omitted). This
Court cannot grant a petition for 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).
"in order to satisfy § 2254(d)'s substantive
predicates and merit federal review" of the
petitioner's claims for habeas relief, he must establish
either that the state court's decision: "(1)
contravened clearly established federal law, as determined by
the Supreme Court, or (2) was based on an unreasonable
determination of the facts," Lewis, 790 F.3d at
121. This standard for obtaining federal habeas relief is
"difficult to meet," Metrish v. Lancaster,
569 U.S. 351, 357-58 (2013) (quoting Harrington v.
Richter, 562 U.S. 86, 102 (2011)), and "highly
deferential" to state court rulings, "stop[ping]
short of imposing a complete bar on federal-court
relitigation of claims already rejected in state
proceedings," Harrington, 562 U.S. at 102, 105.
established federal law, as determined by the Supreme
Court," refers to the "holdings, as opposed to the
dicta, of [the Court's] decisions as of the time
of the relevant state-court decision." Williams v.
Taylor, 529 U.S. 362, 412 (2000). See also Howes v.
Fields, 565 U.S. 499, 505 (2012); Carey v.
Musladin, 549 U.S. 70, 74 (2006); Kennaugh v.
Miller, 289 F.3d 36, 42 (2d Cir. 2002). "[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)). A decision is "contrary
to" clearly established federal law when it 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).
court unreasonably applies Supreme Court law when it has
correctly identified the 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). Moreover, "an unreasonable application of federal
law is different from an incorrect application of federal
law." Eze v. Senkowski, 321 F.3d 110, 124-25
(2d Cir. 2003) (quoting Williams, 529 U.S. at 410).
Specifically, the state court's application of clearly
established federal law must be "objectively
unreasonable," a substantially higher standard.
Id.; Schriro v. Landrigan, 550 U.S. 465,
473 (2007). Thus, a habeas petitioner 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, 562 U.S. at 103.
Accord Metrish, 569 U.S. at 358. See also
Williams, 529 U.S. at 389 ("state-court judgments
must be upheld unless, after the closest examination of the
state-court judgment, a federal court is firmly convinced
that a federal constitutional right has been violated").
reviewing a habeas petition, the Court presumes that the
factual determinations of the state court are correct, 28
U.S.C. § 2254(e)(1). See Rice v. Collins, 546
U.S. 333, 338-39 (2006) ("State-court factual findings .
. . are presumed correct . . . ."). The petitioner bears
"the burden of rebutting the presumption of correctness
by clear and convincing evidence," 28 U.S.C. §
2254(e)(1). Also, the 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."
Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
when reviewing an application for a writ of habeas corpus by
a state prisoner, a district court must ask three questions
to determine whether habeas relief should be granted:
"(1) Was the principle of the Supreme Court case law
relied upon by the petitioner 'clearly established'
when the state court ruled? (2) If so, was the state
court's decision 'contrary to' that established
Supreme Court precedent? (3) If not, did the state court
decision constitute an 'unreasonable application' of
that principle?" Williams v. Artuz, 237 F.3d
147, 152 (2d Cir. 2000), cert. denied, 534 U.S. 924
(2001). "When applying these standards, the federal
court should review the 'last reasoned decision' by a
state court . . . ." Robinson v. Ignacio, 360
F.3d 1044, 1055 (9th Cir. 2004).