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Francis v. Commissioner of Correction

United States District Court, D. Connecticut

March 15, 2019



          Stefan R. Underhill United States District Judge

         On May 21, 2018, the petitioner, Kermit Francis, a prisoner currently confined at the MacDougall-Walker Correctional Institution in Suffield, Connecticut, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 1996 state convictions for murder and carrying a pistol without a permit, in violation of Conn. Gen. Stat. § 52a-54a and § 29-35. Pet., Doc. No. 1 at 2. In his petition, Francis raises two grounds for relief: (1) the trial court's exclusion of evidence that two of the state's witnesses were gang members violated his rights to due process, confrontation of witnesses, and a defense; and (2) trial counsel was ineffective in failing to investigate the state's confidential informant and present a third-party culpability defense. Id. at 9, 11.

         On July 23, 2018, the respondent, the Commissioner of Correction, moved to dismiss the petition on two grounds: (1) the petition is time-barred under 28 U.S.C. § 2244; and (2) alternatively, Francis has not exhausted his state court remedies with respect to all claims raised in the petition. Comm'r Mot. to Dismiss, Doc. No. 18; Comm'r Mem. of Law in Supp. of its Mot. to Dismiss (“Comm'r Mem.”), Doc. No. 18-1. Francis submitted a written opposition to the motion on October 17, 2018 contending that his petition is not time-barred, and even if it was, the statute of limitations should be tolled and the petition should be granted to avoid a miscarriage of justice. Francis' Opposition to Comm'r's Mot. to Dismiss (“Francis' Opp'n”), Doc. No. 33. For the following reasons, the motion to dismiss is granted. I. Relevant Legal Principles The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) restricts the ability of prisoners to seek federal review of their state criminal convictions. Smith v. McGinnis, 208 F.3d 13, 15 (2d Cir. 2000). AEDPA provides a one-year statute of limitations for federal habeas actions filed by prisoners in custody pursuant to a state judgment. 28 U.S.C. § 2244(d)(1); Murphy v. Strack, 9 Fed.Appx. 71, 72 (2d Cir. 2001). The one-year limitations period runs from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1). A state habeas action or other form of post-conviction review tolls or interrupts the running of the limitation period. 28 U.S.C. § 2244(d)(2); Smith, 208 F.3d at 17. When the state post-conviction review terminates, the “clock restarts” and the limitation period resumes. Holland v. Florida, 560 U.S. 631, 638 (2010) (citing Coates v. Byrd, 211 F.3d 1225 (11th Cir. 2000)); see, e.g., Thomas v. Werholtz, 385 Fed.Appx. 811, 813-14 (10th Cir. 2010) (limitations period ran for seven months until tolled by motion for new trial and resumed when state Supreme Court denied review); Clark v. Barkley, 51 Fed.Appx. 332, 334 (2d Cir. 2002) (limitations period interrupted by coram nobis motion and resumed after denial of motion).

         II. Facts and Procedural History

         The history of Francis' state criminal proceedings is not in dispute:

         On December 23, 1996, Francis was convicted in state court of murder, carrying a pistol without a permit, and altering firearm identification marks, in violation of sections Conn. Gen. Stat. §§ 53a-54a, 29-35, and 29-36. Direct Appeal R., Comm'r App. A, Doc. No. 18-3 at 7; State v. Francis, 246 Conn. 339, 340-41 (1998), Comm'r App. F, Doc. No. 18-8. The trial court sentenced him to sixty years for the murder conviction and imposed concurrent five-year sentences for the firearms convictions. Francis, 246 Conn. at 341 n.5.

         Francis appealed all three convictions, and on August 18, 1998, the Connecticut Supreme Court affirmed his convictions for murder and carrying a pistol without a permit but reversed and remanded for a new trial his conviction for altering firearm identification marks.[1] Francis, 246 Conn. 339. Because the five-year sentence for the alteration conviction ran concurrently with the sentence for murder, Francis remained subject to the sixty-year prison term. Mem. of Decision on Second Habeas Pet., Comm'r App. P, Doc. No. 18-18 at 2. Francis did not seek a petition for certiorari to the United States Supreme Court, and the state did not retry him for the alteration charge. See Appeal R. from Restored Habeas, Comm'r App. Q, Doc. No. 18-19 at 11, 28; Francis' Br. on Appeal from Restored Habeas, Comm'r App. R, Doc. No. 18-20 at 8, 10.

         On January 10, 2000, Francis filed a petition for a new trial in state court. Pet. for New Trial, Comm'r App. H, Doc. No. 18-10. Judgment entered against Francis on October 16, 2000, and on March 21, 2001, the Connecticut Appellate Court granted the respondent's motion to dismiss Francis' appeal from that judgment. Appeal from Pet. for New Trial, Comm'r App. I, Doc. No. 18-11 at 2; Francis v. State of Connecticut, No. A.C. 21414, Comm'r App. K, Doc. No. 18-13 at 2.

         While his appeal from the judgment on the petition for new trial was pending, Francis filed his first petition for writ of habeas corpus in state court, claiming that his criminal trial counsel, Attorney William Collins, was ineffective. Francis v. Commissioner of Correction, 182 Conn.App. 647, 650 (2018), Comm'r App. W, Doc. No. 18-25. Francis withdrew that petition, however, on ...

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