Holness v. Warden
PRISCS-RULING Denying 1 Petition for Writ of Habeas Corpus filed by Karriem S. Holness. The Clerk is directed to enter judgment and close this case. Signed by Judge Warren W. Eginton on 9/18/2012. (Payton, R.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
KARRIEM S. HOLNESS,
WARDEN, STATE PRISON
Case No. 3:09cv468(WWE)
RULING ON PETITION FOR WRIT OF HABEAS CORPUS
The petitioner Karriem Holness, an inmate confined at Corrigan-Radgowski
Correctional Institution in Uncasville, Connecticut, brings this action pro se for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his conviction for assault
and carrying a pistol without a permit. For the reasons set forth below, the petition will
In July 2003, an Assistant State’s Attorney for Connecticut Superior Court for the
Judicial District of Hartford, Geographical Area 14 filed an information charging the
petitioner with one count of criminal attempt to commit murder in violation of
Connecticut General Statutes §§ 53a-49(a) and 53a-54a(a), one count of assault in the
first degree in violation of 53a-59(a)(1), one count of attempt to commit robbery in the
first degree in violation of Connecticut General Statutes §§ 53a-49(a)(2) and 53a134(a)(2) and one count of carrying a pistol without a permit in violation of Connecticut
General Statutes § 29-35(a). See Mem. Opp’n Pet. Writ Habeas Corpus, App. B. In
February 2005, the Assistant State’s Attorney filed a long form information charging the
petitioner with one count of assault in the first degree in violation of 53a-59(a)(1), one
count of assault in the first degree in violation of Connecticut General Statutes § 53a59(a)(3), one count of attempt to commit robbery in the first degree in violation of
Connecticut General Statutes §§ 53a-49(a)(2) and 53a-134(a)(2), one count of carrying
a pistol without a permit in violation of Connecticut General Statutes § 29-35(a) and one
count of conspiracy to commit robbery in the first degree in violation of Connecticut
General Statutes §§ 53a-48 and 53a-134(a)(2). See id.
On March 17, 2005, a jury found the petitioner guilty of the first and second
counts of assault in the first degree and the fourth count of carrying a pistol without a
permit and found the petitioner not guilty of the two robbery counts. See id. On June 9,
2005, the court sentenced the petitioner on the first assault count to twenty years of
imprisonment, execution suspended after fourteen years, followed by five years of
probation and on the second assault count to twenty years of imprisonment, execution
suspended after fourteen years, followed by five years of probation, but then vacated
the sentence on that count, subject to reinstatement if the first assault conviction was
overturned. The court sentenced the petitioner on the fourth count to one year of
imprisonment to be served consecutively to the sentence on the first assault count and
the sentence on the second assault count, if it was reinstated. See State v. Holness,
289 Conn. 535, 536 n.2, 958 A.2d 754, 755 n.2 (2008); Mem. Opp’n Pet. Writ Habeas
Corpus, App. I, Doc. No. 12-47.
On direct appeal, the petitioner claimed that the trial court erred in permitting the
prosecutor to cross-examine him by paraphrasing portions of a testimonial statement
given by Geraldo Rivera to a Manchester Police Department detective in violation of the
Sixth Amendment and (2) the trial court erred in admitting the testimonial statement of
Jerrod Smith because he had no meaningful opportunity to cross-examine Smith about
the content of the statement. See id. at 536, 785 A.2d at 755. The Connecticut
Supreme Court affirmed the judgment of conviction. See id. at 550, 785 A.2d at 762.
The Connecticut Supreme Court determined that the jury reasonably could have
found the following facts.
On Friday evening, June 27, 2003, the victim, Johnny
Figueroa, and two of his friends, Peter Davila and
Shavoyteay Sparks, attended a carnival at St. Bridget's
Church in the town of Manchester. Sparks had driven the
victim to the carnival and had parked his car behind the
residence of Davila's grandmother, Marianne Risley. That
residence, located at 18 Woodland Street in Manchester,
was a short walking distance from the carnival grounds. The
victim also had attended the carnival earlier in the week and
had overheard a group of men discussing the possibility of
robbing him of the jewelry that he had been wearing.
While at the carnival on Friday evening, the victim received a
call on his cellular telephone from a friend, Megan Sears,
who told him that she was in her car behind Risley's home.
Thereafter, the victim, Davila and Sparks left the carnival to
meet Sears. Upon leaving, the three men noticed that
approximately fifteen to twenty men, including the
[petitioner], were following them.
As the victim, Davila and Sparks approached Risley's
residence, Davila separated from the victim and Sparks,
apparently to take a shortcut. At about the same time, one of
the men in the group that had been following the victim and
his two friends called out to the victim. This person, who
subsequently was identified as the [petitioner], stated that he
wanted to speak to the victim. The victim ignored the
[petitioner’s] overture, however, and he and Sparks
continued toward the 18 Woodland Street residence. Upon
arriving there, the victim and Sparks entered an enclosed
porch attached to the residence. The [petitioner] and several
other men followed the victim and Sparks there, and
demanded the victim's jewelry. At this time, Risley emerged
from the house and told the [petitioner] and his companions
to leave or she would call the police. The [petitioner] then
shot the victim in the chest. The [petitioner] and his
companions then fled from the scene.
Id. at 537-38, 958 A.2d at 756.
Standard of Review
The federal court will entertain a petition for writ of habeas corpus challenging a
state court conviction only if the petitioner claims that his custody violates the
Constitution or federal laws. 28 U.S.C. § 2254(a). A claim that a state conviction was
obtained in violation of state law is not cognizable in the federal court. See Estelle v.
McGuire, 502 U.S. 62, 68 (1991).
The federal court cannot grant a petition for a 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
(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). Clearly established federal law is found in holdings, not dicta, of
the Supreme Court at the time of the state court decision. See Carey v. Musladin, 549
U.S. 70, 74 (2006). The law may be a generalized standard or a bright-line rule
intended to apply the standard in a particular context. Kennaugh v. Miller, 289 F.3d 36,
42 (2d Cir.), cert. denied, 537 U.S. 909 (2002).
A decision is “contrary to” clearly established federal law where the state court
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 the
court has correctly identified the governing 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), cert. denied, ___ U.S. ___, 129 S. Ct.
1312 (2009). The state court decision must be more than incorrect; it also must be
objectively unreasonable, which is a substantially higher standard. See Schriro v.
Landrigan, 550 U.S. 465, 473 (2007).
When reviewing a habeas petition, the federal court presumes that the factual
determinations of the state court are correct. The petitioner has the burden of rebutting
that presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Cullen
v. Pinholster, ___ U.S. ___, 131 S. Ct. 1388, 1398 (2011) (standard for evaluating
state-court rulings where constitutional claims have been considered on the merits and
which affords state-court rulings the benefit of the doubt is highly deferential and difficult
for petitioner to meet). In addition, the federal 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. See Id.
The petitioner challenges his conviction on the same two grounds that he raised
on direct appeal. He contends that his rights under the confrontation clause of the Sixth
Amendment were violated when: (1) the trial court permitted the prosecutor to crossexamine him with hearsay statements made by Geraldo Rivera, who was unavailable to
testify at trial and (2) the trial court permitted the prosecutor to introduce into evidence a
written statement given by Jerrod Smith to the Manchester Police Department detective
despite the fact that Smith disavowed knowledge of making the statement during his
testimony at trial. The respondent argues that the first ground is procedurally defaulted
and the second ground should be denied because the court decision on this ground
was neither contrary to nor an unreasonable application of clearly established federal
Hearsay Statements of Geraldo Rivera
The petitioner claims that the trial judge erred in permitting the prosecutor to
cross-examine him by using portions of a testimonial statement given by Geraldo
Rivera to a Manchester Police Department detective. The petitioner claims that this
conduct violated his Sixth Amendment right to confrontation as set forth in Crawford v.
Washington, 541 U.S. 36 (2004), because Rivera did not testify at trial and was not
subject to cross-examination. The respondent argues that this claim should be
dismissed as having been procedurally defaulted because the petitioner waived this
claim at trial.
Under the procedural default doctrine, a federal court will not review the merits of
claim raised in a habeas petition, including a constitutional claim, if the state court
declined to address the claim because the prisoner failed to meet a state procedural
requirement and the state court decision is based on independent and adequate
procedural grounds. See Walker v. Martin, ___ U.S. ___, 131 S. Ct. 1120, 1127-28
(2011) (citations omitted). A state rule or requirement must be firmly established and
regularly followed by the state in question to qualify as an adequate procedural ground.
See Beard v. Kindler, 558 U.S. 53, 130 S. Ct. 612, 618 (2009)(internal quotation marks
and citation omitted). A state court decision will be “independent” when it “fairly
appears” to rest primarily on state law. Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir.
2006) (citation omitted).
Exceptions to the doctrine barring procedurally defaulted claims from being
heard in federal court exist. A state prisoner can obtain federal habeas review despite
having defaulted on his federal claim in state court pursuant to an independent and
adequate state procedural rule, if he can demonstrate cause for the default and actual
prejudice resulting from the default or he can show that failure to consider the claim will
result in a fundamental miscarriage of justice. See Edwards v. Carpenter, 529 U.S.
446, 451 (2000).
The Connecticut Supreme Court determined that the following additional facts
and procedural history were relevant to deciding this claim.
At trial, the [petitioner] testified on direct examination that he
had attended the carnival at St. Bridget's Church on June
27, 2003, with two friends, Rivera and Shane Johnson. The
[petitioner] also acknowledged that he had followed a group
of people from the carnival to the residence located at 18
Woodland Street but testified that he had remained on the
front lawn of that residence and did not enter the enclosed
porch. According to the [petitioner], he ran from the area
after hearing a noise that he presumed was a gunshot. That
night, the [petitioner] returned to his home and, thereafter,
stayed at his brother's home in Rocky Hill for approximately
On cross-examination, the assistant state's attorney
questioned the [petitioner] as to whether it was true that he
had gone to Rivera's house on the morning of June 28,
2003, and asked Rivera to drive him to Hartford for the
purpose of disposing of the weapon that he had used to
shoot the victim. The [petitioner] denied doing so. The
assistant state's attorney then asked the [petitioner] whether
he knew that Rivera had given a statement to the police
explaining that the [petitioner] had arrived at Rivera's home
on the morning after the shooting and, at that time, asked
Rivera for assistance in disposing of the gun used in the
shooting. The [petitioner] admitted that he was aware of
Rivera's statement. Defense counsel did not object to this
portion of the cross-examination.
Following a recess, and outside the presence of the jury,
defense counsel informed the trial court that he was
concerned about the assistant state's attorney's questioning
of the [petitioner] regarding Rivera's statements to the
police. Defense counsel explained that Rivera was
unavailable because, if called on to testify, Rivera intended
to invoke his constitutional privilege against selfincrimination in response to any questions. Although
defense counsel acknowledged that he had not raised a
contemporaneous objection to any of the questions involving
Rivera's statements, defense counsel requested that the
court take some corrective action, ranging “from a mistrial on
one end of the spectrum to some sort of curative instruction
[on the other end].” After observing that defense counsel
had failed to object when the questions were asked, the
court pressed defense counsel to be more specific with
respect to his request. Defense counsel responded: I guess
what I would ask for, [at] this point in time, would be possibly
some sort of curative instruction ... [a]bout ... Rivera not
being available as a witness in this trial.” Following further
discussion between the court and counsel about Rivera's
unavailability, the assistant state's attorney stated that he
“certainly would not object to an instruction that ... Rivera's
statement[s] [were] not introduced for substantive purposes,”
and that “probably, the best thing is, as [defense counsel
has] requested, [an] instruction that [Rivera is] unavailable.”
Defense counsel responded by expressing his agreement
with such an instruction, adding that it was not necessary for
the court to give the instruction until the court delivered its
final charge to the jury at the conclusion of the trial.
The following day, during a discussion about the charging
conference that previously had occurred, the trial court
stated: “Okay. [The] [d]efendant's request, it was added to
the instruction, something about ... Rivera not being
available to either side. And I believe both sides agreed on
the language. Is that right?” Both the assistant state's
attorney and defense counsel responded in the affirmative.
In its final instructions to the jury following the closing
arguments of counsel, the trial court instructed the jury in
relevant part: “During the evidentiary portion of this case,
you heard about statements attributed to ... Rivera. This
court has determined that ... Rivera was unavailable as a
witness in [this] case through no fault of either party, the
state or the defendant.... Rivera was not available for either
direct or cross-examination as a witness, and, therefore, the
statements attributed to ... Rivera are not to be used as
substantive evidence.” Defense counsel took no exception
to this portion of the jury charge.
Holness, 289 Conn. at 539-42, 958 A.2d at 757-58 (footnote omitted).
The Connecticut Supreme Court noted that under State v. Golding, 213 Conn.
233, 567 A.2d 823 (1989), a defendant may raise an unpreserved claim on appeal if
four conditions are met.1 In a situation where an unpreserved claim has been waived at
trial, however, a petitioner cannot satisfy the third prong of the Golding conditions if the
constitutional claim has been waived because “we simply cannot conclude that injustice
has been done to either party . . or that the alleged constitutional violation clearly exists
and clearly deprived the defendant of a fair trial. . . .” State v. Fabricatore, 281 Conn.
469, 481-82, 915 A.2d 872, 880 (2007) (citations and internal quotation marks
The four conditions are as follows: (1) the record of the trial court is sufficient
to review the claimed error; (2) the claim asserts a violation of a fundamental right and
is of constitutional magnitude; (3) it is clear that a violation of the constitution exists and
the violation resulted in a deprivation of the defendant’s right to a fair trial; and (4) if the
claim is subject to a harmless error review, the state neglected to show harmlessness
of the alleged violation of the defendant’s constitutional rights beyond a reasonable
doubt. See id. at 239-40, 567 A.2d at 827.
Relying on its decision in Fabricatore, the Connecticut Supreme Court concluded
that the petitioner’s Sixth Amendment claim was unpreserved and could not be
reviewed because petitioner had waived consideration of the claim at trial. The court
noted that it was clear that the petitioner had agreed to and was satisfied with the
limiting instruction that the trial court had given to the jury regarding the statement that
had been attributed to Rivera during the prosecutor’s cross-examination of the
petitioner. Thus, the petitioner had unequivocally waived his right to review of any
claimed error in his cross-examination regarding the statement by Geraldo Rivera.
Accordingly, the court declined to review the claim on appeal.
It is evident that the Connecticut Supreme Court expressly relied on a state
procedural rule to decline to review the petitioner’s claim. Furthermore, the procedural
rule was definite, well-established and regularly applied at the time the petitioner waived
his right to review. See Fabricatore, 281 Conn. at 478-79, n.12, 915 A.2d 878-79, n.12
(citing cases in which Connecticut Appellate Court held that defendant’s unpreserved
claim was unreviewable because review of claim had been waived at trial and did not
meet third prong of Golding); State v. Tyson, 86 Conn. App. 607, 612-13 (2004)
(“Connecticut courts have consistently held that when a party fails to raise in the trial
court the constitutional claim presented on appeal and affirmatively acquiesces to the
trial court’s order, that party waives any such claim.”), cert. denied, 273 Conn. 927, 873
A.2d 1000 (2005).
Because the state court made an adequate and independent finding that the
petitioner had procedurally defaulted on his claim by waiving it at trial, the court cannot
review the claim unless the petitioner can show “cause and prejudice” or “a
fundamental miscarriage of justice.” Id. at 854 (internal citations omitted).
To establish cause to excuse procedural default, petitioner must identify “some
external impediment preventing counsel from constructing or raising the claim.” Murray
v. Carrier, 477 U.S. 478, 492 (1986). Such factors include interference by state officials
impeding compliance with state rules or a showing that the factual or legal basis for a
claim was not reasonably available to defense counsel. See McCleskey v. Zant, 499
U.S. 467, 493-94 (1991). The petitioner has failed to allege any external cause to
excuse the procedural default by his attorney.
Although ineffective assistance of counsel can constitute cause for failing to
comply with a State’s procedural rule,“[a]ttorney error short of ineffective assistance of
counsel, [however], does not constitute cause for a procedural default even when that
default occurs on appeal rather than at trial.” Murray, 477 U.S. at 488, 492. A claim of
ineffective assistance must be raised in a state court proceeding as an independent
claim before a petitioner may attempt to use it to establish cause for a procedural
default.” See id. at 489. Thus, a petitioner must have properly presented and
exhausted the ineffective assistance of counsel claim in state court before it will be
considered as cause to excuse procedural default. See Edwards v. Carpenter, 529
U.S. 446, 453 (2000). The petitioner does not assert that his attorney was ineffective in
failing to preserve his Sixth Amendment claim for review on appeal or that he has filed
a state habeas petition raising such a claim. Accordingly, the petitioner has not
demonstrated that the procedural default was the result of ineffective assistance of
counsel. Where a petitioner has not shown cause, the court need not address the
prejudice prong of the procedural default standard. See McCleskey, 499 U.S. at 501.
Nor has petitioner shown that failure to consider this claim would result in a
fundamental miscarriage of justice, that is, “the conviction of one who is actually
innocent.” Murray, 477 U.S. at 496. To meet this exception, petitioner must present
“evidence of innocence so strong that a court cannot have confidence in the outcome of
the trial unless the court is also satisfied that the trial was free of nonharmless
constitutional error.” Schlup v. Delo, 513 U.S. 298, 316 (1995). To establish a credible
claim of actual innocence, a petitioner must support his claim “with new reliable
evidence-whether it be exculpatory scientific evidence, trustworthy eye-witness
accounts, or critical physical evidence-that was not presented at trial.” Id. at 324. Actual
innocence requires a showing of factual innocence, not “legal innocence.” Sawyer v.
Whitley, 505 U.S. 333, 339 (1992). The petitioner has not alleged that he is actually
innocent. Nor has he submitted any evidence to support such a claim. Furthermore,
the petitioner has not submitted any new evidence that he was innocent of the charges
for which he was convicted. Because the petitioner has not shown cause or a
fundamental miscarriage of justice, the claim of error on the part of the trial judge set
forth in ground one of the petition is procedurally defaulted, cannot be reviewed, and is
Testimonial Statement of Jerrod Smith
The petitioner claims that the trial judge erred in permitting the state to introduce
into evidence the testimonial statement made by Jerrold Smith to a Manchester Police
Department detective. The petitioner contends that the judge should not have admitted
the statement for substantive purposes because he did not have a meaningful
opportunity to cross-examine Smith regarding the contents of the statement.
The primary purpose of the Confrontation Clause is to prevent out-of-court
statements from being used against a criminal defendant in lieu of in-court testimony
subject to the scrutiny of cross-examination. See Douglas v. Alabama, 380 U.S. 415,
418-19 (1965); Crawford, 541 U.S. at 50-59. In Crawford, the Supreme Court held that
the Sixth Amendment’s Confrontation Clause bars admission against a criminal
defendant of a previously made out of court “testimonial” statement by an unavailable
witness who was not subject to cross-examination by the defendant. Id. at 68. As the
Supreme Court has consistently held, "the Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination that is effective in
whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer,
474 U.S. 15, 20 (1985) (per curiam). In United States v. Owens, 484 U.S. 554 (1988),
the victim testified that he remembered identifying the defendant as his assailant during
an interview following the assault but, on cross-examination, stated that he could not
remember seeing his assailant. See id. at 556. The Supreme Court held that the fact
that the witness could not testify concerning his identification of the defendant because
of a memory lapse did not violate the Federal Rules of Evidence or the defendant’s
rights under the Confrontation Clause of the Sixth Amendment. See id. at 564.
In analyzing this claim, the Connecticut Supreme Court applied the standard
established in Crawford and Owens. Because it applied the correct legal standard, the
decision is not contrary to federal law. See 28 U.S.C. 2254(d)(1); Lurie v. Wittner, 228
F.3d 113, 127 (2d Cir. 2000), cert. denied, 532 U.S. 943 (2001).
The Connecticut Supreme Court determined that although Smith denied having
provided the police with a written statement, he testified that he had given the police an
oral statement and that his signature and initials were on the written statement. Smith
further testified that he did recall divulging some of the information in the written
statement, but denied having any memory of divulging other information in the
statement. Smith swore to testify truthfully when he took that stand at trial, defense
counsel subjected him to extensive cross-examination and he answered all the
questions posed to him by defense counsel. Thus, the petitioner was afforded the
opportunity to question Smith regarding his version of the events that occurred on the
night of shooting and Smith’s alleged statements set forth in the written statement
attributed to Smith and the oral statement that Smith conceded he did give to the police.
Smith responded to questions concerning the incident and the written statement. The
Connecticut Supreme Court concluded that there was no reason to find that “Smith was
functionally unavailable for cross-examination merely because he claimed that he had
not given the police a written statement.” Holness, 289 Conn. at 549, 958 A.2d at 762.
Because the petitioner was afforded a full and fair opportunity to effectively
cross-examine Smith about his version of events, his oral statement made to the police
and the written statement attributed to him by the police, the admission of Smith’s
written statement did not violate the petitioner’s Sixth Amendment rights. See id. at
549-50, 958 A.2d at 762. The decision by the Connecticut Supreme Court is neither
contrary to nor an unreasonable application of United States Supreme Court precedent.
The petition for writ of habeas corpus is denied on this ground.
The Petition for Writ of Habeas Corpus [Doc. No. 1] is DENIED. Because
petitioner has not made a showing of the denial of a constitutional right, a certificate of
appealability will not issue.
The Clerk is directed to enter judgment and close this case.
SO ORDERED this 18th day of September 2012, at Bridgeport, Connecticut.
Warren W. Eginton
Senior United States District Judge
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