United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS PETITION
R. Underhill United States District Judge
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,
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).
Facts and Procedural History
history of Francis' state criminal proceedings is not in
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.
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. 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.
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.
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 ...