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Smalls v. Faneuff

United States District Court, D. Connecticut

January 7, 2019

VICTOR SMALLS, Petitioner,
WILLIAM FANEUFF, Warden, and DERRICK MOLDEN, Deputy Warden, Respondents.



         Pro 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.[1] 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.


         On 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 (2012) (Doc.12-1).

         The 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.[2] Id. at 202.

         On 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.

         As to 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 [50] percent possibility that the defendant fired the fatal shot.... And there is a [50] 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.

         In 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).[3] Id. at 202-03.

         The 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.

         Relying 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 omitted.)

136 Conn.App. at 203-04 (quoting State v. Delgado, 247 Conn. 616, 622 (1999)).

         Comparing 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 affirmed.[4]

         Smalls 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.

         As to 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.

         With 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 18.[5]

         The 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.

         In a 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.[6]

         On 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.

         Smalls 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 25, 27.

         Approximately 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.


         Pursuant 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 Court.

         Moreover, 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.

         In 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; 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).

         In sum, "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.

         "Clearly 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).

         A state 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").

         When 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).

         In sum, 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).

         III. ...

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