Coleman v. Semple

Filing 21

PRISCS- RULING granting 17 Motion to Dismiss; denying 19 Motion to Dismiss; 8 AMENDED PETITION for Writ of Habeas Corpus is Dismissed with out prejudice for failure to exhaust state court remedies.. Signed by Judge Janet Bond Arterton on 6/28/2012. (Payton, R.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
WILLIAM B. COLEMAN

:
:
:
:
:

v.
WARDEN SCOTT SEMPLE

PRISONER
Case No. 3:11cv512 (JBA)

RULING ON RESPONDENT’S MOTION
TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, William B. Coleman, currently confined at
the Garner Correctional Institution in Newtown, Connecticut,
commenced this action for writ of habeas corpus pro se pursuant
to 28 U.S.C. § 2254.

He challenges his 2005 state court

convictions for sexual assault, unlawful restraint, breach of
peace, threatening and larceny.

The respondent moves to dismiss

on the ground that the petitioner has failed to exhaust his state
court remedies as to the claim in the petition.

In opposition to

the motion to dismiss, the petitioner has filed a motion to
dismiss the respondent’s motion to dismiss.

For the reasons that

follow, the respondent’s motion to dismiss is granted and the
petitioner’s motion to dismiss is denied.
I.

Standard of Review
A prerequisite to habeas corpus relief under 28 U.S.C. §

2254 is the exhaustion of available state remedies.

See

O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. §
2254(b)(1)(A).

The exhaustion requirement seeks to promote

considerations of comity between the federal and state judicial

systems.

See Cotto v. Hebert, 331 F.3d 217, 237 (2d Cir.1982).

To satisfy the exhaustion requirement, a petitioner must
present the essential factual and legal bases of his federal
claim to each appropriate state court, including the highest
state court capable of reviewing it, in order to give state
courts a full and fair “opportunity to pass upon and correct
alleged violations of its prisoners’ federal rights.”

Duncan v.

Henry, 513 U.S. 364, 365 (1995) (per curiam) (internal quotation
marks and citation omitted).

A federal claim has been “fairly

present[ed] in each appropriate state court, including a state
supreme court with powers of discretionary review,” if it
“alert[s] that court to the federal nature of the claim.”
Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal parentheses
and quotation marks omitted).

A petitioner “does not fairly

present a claim to a state court if that court must read beyond a
petition or a brief . . . that does not alert it to the presence
of a federal claim in order to find material . . . that does so.”
Id. at 32.
Failure to exhaust may be excused only where “there is no
opportunity to obtain redress in state court or if the corrective
process is so clearly deficient to render futile any effort to
obtain relief.”
curiam).

Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per

A petitioner cannot, however, simply wait until

appellate remedies no longer are available and argue that the
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claim is exhausted.

See Galdamez v. Keane, 394 F.3d 68, 73-74

(2d Cir.), cert. denied, 544 U.S. 1025 (2005).
II.

Procedural Background
On October 7, 2002, in State v. William C., GA04-CR02-

0315150-S an Assistant State’s Attorney in the Connecticut
Superior Court for the Judicial District of Waterbury, filed an
Information charging the petitioner with larceny in the sixth
degree and burglary in the third degree.
Support Mot. Dismiss, App. B.

See Resp’ts’ Mem.

On February 1, 2005, the Assistant

State’s Attorney filed a Substitute Long-Form Information
charging the petitioner with breach of peace in the second
degree, criminal trespass in the first degree, threatening in the
second degree and larceny in the sixth degree.

See id.

On October 11, 2002, in State v. William C., GA04-CR020315338-S, an Assistant State’s Attorney in the Connecticut
Superior Court for the Judicial District of Waterbury, filed an
Information charging the petitioner with sexual assault in the
first degree.

See id.

On February 1, 2005, the Assistant

State’s Attorney filed a Substitute Long-Form Information
charging the petitioner with sexual assault in the first degree,
sexual assault in a spousal relationship and unlawful restraint
in the first degree.

See id.

On February 2, 2005, the State of Connecticut’s motion to
consolidate State v. William C., GA04- CR02-0315150-S and State
3

v. William C., GA04-CR02-0315338-S was granted.

The cases were

tried together.
On February 16, 2005, at the conclusion of the prosecution’s
case, the court granted the defendant’s motion for judgment of
acquittal as to the count of criminal trespass in the first
degree.

See id.

On February 17, 2005, the Assistant State’s

Attorney filed an Amended Substitute Long-Form Information in the
consolidated cases charging the petitioner with one count of
sexual assault of a spouse, one count of unlawful restraint in
the first degree, one count of breach of peace in the second
degree, one count of threatening in the second degree and one
count of larceny in the sixth degree.

See id.

On February 24, 2005, a jury found the petitioner guilty of
one count of sexual assault of a spouse in violation of Conn.
Gen. Stat. § 53a-70b(b); one count of unlawful restraint in
violation of Conn. Gen. Stat. § 53a-95a, one count of breach of
peace in the second degree in violation of Conn. Gen. Stat. §
53a-181, one count of threatening in the second degree in
violation of Conn. Gen. Stat. § 53a-62(a)(1) and one count of
larceny in the sixth degree in violation of Conn. Gen. Stat. §
53a-125b(a).

See Pet. Writ Habeas Corpus at 2; State v. William

C., 103 Conn. App. 508, 510, 930 A.2d 753, 756-57 (2007).

On May

6, 2005, a total effective sentence was imposed of fifteen years
of imprisonment, execution suspended after eight years, followed

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by fifteen years of probation.

See id. at 514-15, 930 A.2d at

759.
On appeal, the petitioner raised four claims.

He argued

that (1) the trial judge erred in admitting evidence of prior
uncharged misconduct, (2) the trial judge improperly admitted
constancy of accusation testimony by the attorney who represented
J, the victim, in her civil custody matter with the petitioner,
(3) the trial judge erred in precluding petitioner’s crossexamination of Jaqueline Ortiz, the police detective who
investigated J’s complaint, as to bias; and (4) the State of
Connecticut failed to conduct an appropriate investigation into
the victim’s veracity constituted prosecutorial misconduct that
deprived the petitioner of his due process right to a fair trial.
See id. at 510-11, 930 A.2d at 757.

On September 4, 2007, the

Connecticut Appellate Court affirmed the judgment of conviction.
See id. at 530, 930 A.2d at 766.
In his petition for certification to the Connecticut Supreme
Court, the petitioner presented the following questions.

Was the

trial judge’s decision to admit prior uncharged misconduct proper
and did impropriety by the prosecutor deprive the petitioner of
due process of law.
E.

See Resp’ts’ Mem. Support Mot. Dismiss, App.

On October 16, 2007, the Connecticut Supreme Court denied the

petition for certification to appeal the decision of the
Connecticut Appellate Court.

See State v. William C., 284 Conn.

5

928, 934 A.2d 244 (2007).
On August 16, 2005, the petitioner filed a state habeas
corpus petition in the Connecticut Superior Court for the
Judicial District of Tolland at Rockville.
Warden, No. CV05-4000622.

See William C. v.

On September 15, 2005, the petitioner

filed a second state habeas corpus petition, also in the
Connecticut Superior Court for the Judicial District of Tolland
at Rockville.

See William C. v. Warden, No. CV05-4000771.

In

November 2005, the trial judge granted a motion to consolidate
the two petitions, with William C. V. Warden, No. CV05-4000622,
becoming the lead case.
The amended petition for writ of habeas corpus asserted one
count of ineffective assistance of trial counsel for failure to
address the constancy of accusation testimony, one count of
ineffective assistance of trial counsel for failure to call
witnesses to impeach the credibility of petitioner’s ex-wife, one
count of ineffective assistance of trial counsel for failure to
call Dr. Plaud as a witness, one count of ineffective assistance
of trial counsel for failure to object to certain testimony and
one count of ineffective assistance of trial counsel for failure
to elicit certain testimony.
Dismiss, App. J.
as to all counts.

See Resp’ts’ Mem. Support Mot.

On August 28, 2009, a judge denied the petition
See id. at App. H.

On appeal, the petitioner raised two claims: (1) whether the
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habeas court abused its discretion in denying the certification
to appeal and (2) whether the habeas court erred in denying the
claim that trial counsel had been ineffective when he failed to
request a limiting instruction immediately before or after the
constancy of accusation testimony of six witnesses.

The

Connecticut Appellate Court affirmed the decision of the habeas
court on August 4, 2009.

See William C. v. Commissioner of

Correction, 126 Conn. App. 185, 10 A.3d 115 (2011).

On March 16,

2011, the Connecticut Supreme Court denied the petition for
certification to appeal the decision of the Connecticut Appellate
Court.

See William C. v. Commissioner of Correction, 300 Conn.

922, 14 A.3d 1007 (2011).
III. Discussion
Ground one of the amended petition is entitled “Constancy of
Accusation.”

Amended Pet. Writ Habeas Corpus at 9.

In the facts

supporting this ground, the petitioner contends that the trial
judge applied the constancy of accusation rule improperly and in
violation of unidentified federal constitutional rights in that
his limiting instruction in connection with the testimony of six
witnesses and his general instruction on the use of constancy of
accusation testimony, as included in the charge to the jury, were
insufficient.

The petitioner also claims that he is actually

innocent of all charges.

The respondent moves to dismiss the

petition on the ground that the petitioner has not exhausted his

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state court remedies as to any ground in the petition.
A.

Instructions on Constancy of Accusation Testimony

The court construes ground one of the petition as including
two claims.

The petitioner contends that: (1) any limiting

instructions given by the trial judge in connection with the
testimony of six witnesses who offered constancy of accusation
testimony violated his federal constitutional rights and (2) the
trial judge’s general instruction on the use of constancy of
accusation testimony included in his charge to the jury violated
his federal constitutional rights.
In the petitioner’s direct appeal of his conviction to the
Connecticut Appellate Court, he argued that the trial judge had
improperly admitted constancy of accusation testimony by Attorney
Peterson, who had represented J, the victim, in her civil custody
matter with the petitioner.

The petitioner claimed that Attorney

Peterson’s testimony was “cumulative and unnecessarily
prejudicial.”
762.

William C., 103 Conn. App. at 521, 930 A.2d at

In support of his argument that Attorney Peterson’s

testimony was prejudicial, the petitioner contended that the
judge’s failure to provide the jury with a specific limiting
instruction on the use of constancy of accusation testimony after
Peterson testified created a substantial risk that the jury would
use the testimony as substantive evidence of his guilt.
at 523, 930 A.2d at 763.

In presenting this claim to the

8

See id.

Connecticut Appellate Court, the petitioner relied solely on
Connecticut law.

Thus, the claim was purely an evidentiary or

state law claim.
In evaluating the petitioner’s arguments, the Connecticut
Appellate Court noted that “[c]laims concerning the admission of
the details of a sexual assault victim’s complaint for
corroborative purposes do not carry constitutional implications
and are purely evidentiary in nature.”
762-63 (citations omitted).

Id. at 521, 930 A.2d at

The Court found that the attorney’s

testimony was not prejudicially cumulative and that the argument
regarding the alleged prejudice caused by the lack of a limiting
instruction by the trial judge after the attorney’s testimony was
without merit because the trial judge gave a general instruction
on the use of constancy of accusation testimony in his jury
charge.1

See Id. at 522-25, 930 A.2d at 763-65.

The Connecticut Appellate Court concluded that the trial
judge did not err “in concluding that the probative value of the
constancy of accusation testimony of [Attorney] Peterson
outweighed its prejudicial effect” and had not abused his
discretion by admitting this testimony at trial over the
objection of petitioner’s attorney.

1

Id. at 525, 930 A.2d at 765.

The Court also noted that the petitioner had not objected
to the jury instructions and had not requested a limiting
instruction after Attorney Peterson’s testimony. Thus, the claim
of instructional error was not preserved and was not reviewable.
9

The petitioner did not raise this ground in his petition for
certification to the Connecticut Supreme Court.
In the state habeas petition, the petitioner challenged the
effectiveness of only one of his trial attorneys.

In ground one

of the petition, he argued that Attorney Michael Gannon was
ineffective because he failed to request that the judge give a
limiting instruction before or after the constancy of accusation
testimony of three of the six witnesses and failed to object to
the testimony of these three witnesses on the ground that the
testimony was cumulative.

The habeas judge concluded that the

petitioner had not shown that he had been prejudiced by Attorney
Gannon’s failure to request limiting instructions as to the three
witnesses that he had cross-examined or by his failure to object
to the testimony of the witnesses as cumulative.

The habeas

judge denied the petition on all grounds.
The petitioner appealed the decision of the habeas court on
the ground that the trial court abused its discretion in denying
his petition for certification to appeal the decision denying the
habeas petition and on the ground that the trial court had erred
in concluding that trial counsel had not been ineffective when he
failed to request limiting instructions in connection with the
constancy of accusation testimony of three witnesses.

The

Connecticut Appellate Court dismissed the appeal.
In deciding whether the petitioner had demonstrated that the

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denial of his petition for certification constituted an abuse of
discretion by the habeas judge, the Connecticut Appellate Court
examined the petitioner’s underlying claim of ineffective
assistance of counsel and concluded that the habeas judge had
“correctly determined that the petitioner failed to demonstrate
that his defense was prejudiced by Gannon’s failure to request a
limiting instruction immediately before or after the constancy of
accusation testimony of the three witnesses that he crossexamined.”

William C., 126 Conn. App. at 190, 10 A.3d at 117.

In response to the petitioner’s argument that the jury
instruction included in the charge to the jury at the end of
trial did not remedy the failure to give a limiting instruction
at the time of the witness testimony, the Appellate Court noted
that Connecticut case law was clear that there was no requirement
that a contemporaneous limiting instruction be given by a trial
judge.

See id., 10 A.3d at 118.

The court further noted that it

was undisputed that the trial judge had included an instruction
in his jury charge regarding the proper use of the constancy of
accusation testimony and that it was “well established that [a]
jury is presumed, in the absence of a fair indication to the
contrary, to have followed the court’s instructions.” Id. at 191,
10 A.3d at 118 (internal quotation marks and citations omitted).
The petitioner’s constancy of accusation claim on direct
appeal as well as his ineffective assistance of counsel claim

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relating to the constancy of accusation testimony in the state
habeas petition were raised and decided as evidentiary or state
law claims.

Here, the petitioner is attempting to argue that any

limiting instructions or general instructions given by the trial
judge on constancy of accusation testimony violated his federal
constitutional rights.

Such claims have not been raised

by the

petitioner either on direct appeal or in his state habeas
petition.

Thus, the claims in ground one of the petition are not

exhausted.
The Second Circuit has held that if a petitioner fails to
exhaust a claim on direct appeal and “it is clear that the
unexhausted claim is [now] procedurally barred by state law,”
then the district court “theoretically has the power to deem the
claim exhausted.”
2001).

Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir.

The respondent argues that although the petitioner has

not exhausted his federal constitutional claims relating to the
instructions given by the trial judge as to constancy of
accusation testimony by raising them on direct appeal, he is not
procedurally barred from raising these claims in state court.
The petitioner is required to use all available means to secure
appellate review of his claims.

See Galdamez, 394 F.3d at 73-74.

The respondent contends that the petitioner could file a
state habeas petition arguing that appellate counsel was
ineffective for failing to raise these federal claims on direct

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appeal.

See Small v. Commissioner of Correction, 286 conn. 707,

721-24, 946 A.2d 1203, 1213-15, cert. denied sub nom., Small v.
Lantz, 555 U.S. 975 (2008).

In addition, the petitioner could

file a state habeas petition asserting a claim that counsel in
the first state habeas was ineffective for failing to assert that
appellate counsel erred by neglecting to claim that the trial
judge violated the petitioner’s constitutional rights in
connection with his instructions on constancy of accusation
testimony.

See Iovieno v. Commissioner of Correction, 242 Conn.

689, 699-701, 699 A.2d 1003, 1009-10 (Conn. 1997); Lozada v.
Warden, 223 Conn. 834, 838-39, 613 A.2d 818 (1992).

In deciding

either of these claims, the state habeas judge would necessarily
address the underlying federal constitutional claims relating to
the criminal trial judge’s instructions relating to constancy of
accusation testimony.

Thus, the petitioner has an available

state remedy with regard to the claims in ground one of the
petition.

Accordingly, the petitioner’s claims are not

procedurally barred and will not be deemed exhausted.

The motion

to dismiss is granted on the ground that the claims included in
the first ground are unexhausted.
B.

Actual Innocence

At the end of the supporting facts section of ground one,
the petitioner claims that he is actually innocent of all
charges.

He provides no facts in support of this claim.
13

The

respondent construes this claim as a separate ground of the
petition and argues that it is unexhausted.
The petitioner did not raise a claim of actual innocence on
direct appeal or in his state habeas petition.

The petitioner

Thus, the claim is not exhausted.2

does not contest this fact.

Accordingly, the motion to dismiss is granted as to claim of
actual innocence to the extent that the petitioner has raised it
as a separate ground of the petition.
In opposition to the motion to dismiss, the petitioner
contends that he is offering his actual innocence argument to
overcome procedural barriers.

The petitioner asserts that he

intended to raise actual innocence as an exception to the
procedural default doctrine with regard to his constancy of
accusation claim.3

2

The petitioner’s claim of actual innocence is not
procedurally barred as he may raise that claim in a state habeas
petition. See Summerville v. Warden, 229 Conn. 397, 422, 641
A.2d 1356 (1994) (holding that “a substantial claim of actual
innocence is cognizable by way of a petition for a writ of habeas
corpus, even in the absence of proof by the petitioner of an
antecedent constitutional violation that affected the result of
his criminal trial”).

3

The Second Circuit has held that if a district court has
deemed a claim raised in a federal habeas petition to have been
exhausted because the petitioner is procedurally barred by state
law from having the claim reviewed in state court, the federal
court “also must deem the claim procedurally defaulted” unless
the “petitioner [can] show cause for the default and prejudice,
or demonstrate that failure to consider the claim will result in
a miscarriage of justice (i.e., the petitioner is actually
14

In the prior section of this ruling, however, the court
concluded that the petitioner was not procedurally barred from
raising the constancy of accusation claim in state court.
Because the court did not determine that the claim had been
procedurally defaulted, the petitioner’s unsupported actual
innocence argument is misplaced.
IV.

Conclusion
The Motion to Dismiss on the ground that none of the claims

for relief has been fully exhausted [doc. # 17] is GRANTED and
the petitioner’s Motion to Dismiss [doc. # 19] the Respondent’s
Motion to Dismiss is DENIED.

The Amended Petition for Writ of

Habeas Corpus [doc. # 8] is DISMISSED without prejudice for
failure to exhaust state court remedies.4
The court concludes that jurists of reason would not find it
debatable that petitioner failed to exhaust his state court
remedies.

Thus, a certificate of appealability will not issue.

See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (holding that,
when the district court denies a habeas petition on procedural

innocent).”

Aparicio, 269 F.3d at 90.

4

As this is not a mixed petition containing unexhausted and
claims, a stay of this action pursuant to Zarvela v. Artuz, 254
F.3d 374, 380-83 (2d Cir. 2001) would be inappropriate. See id.
(When a petition contains both exhausted and unexhausted claims,
the Court of Appeals for the Second Circuit recommends that the
district court stay the exhausted claims and dismiss the
unexhausted claims with a direction to the petitioner to timely
complete the exhaustion process and return to federal court).
15

grounds, a certificate of appealability should issue if jurists
of reason would find debatable the correctness of the district
court’s ruling).

The Clerk is directed to enter judgement and

close this case.
SO ORDERED this 28th day of June 2012, at New Haven
Connecticut.
/s/_________________________
JANET BOND ARTERTON
UNITED STATES DISTRICT JUDGE

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