Fernandez v. Arnone et al
Filing
29
ORDER granting 15 Motion to Dismiss. The Clerk is directed to enter judgment and close this case. Signed by Judge Janet Bond Arterton on 3/6/13. (Tooker, A.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LUIS FERNANDEZ
:
:
:
:
:
v.
L. ARNONE, et al.
PRISONER
Case No. 3:11-cv-1827 (JBA)
RULING ON RESPONDENTS’ MOTION TO DISMISS [Doc. #15]
Petitioner
Luis
MacDougall-Walker
Fernandez,
an
Correctional
inmate
confined
Institution
in
at
the
Suffield,
Connecticut, brings this action pro se for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 (2000).
He challenges his conviction
for sale of narcotics and possession of narcotics.
Respondents
move to dismiss the petition on the grounds that the claims are not
exhausted, some of the claims are not cognizable in a federal
habeas petition and other claims lack merit.
For the reasons that
follow, the respondents’ motion is granted.
I.
Procedural Background
Petitioner was convicted, following a jury trial, of five
counts of sale of narcotics by a non-drug-dependent person, five
counts of possession of narcotics and one count of violation of
probation.
On October 5, 2001, the court sentenced the petitioner
to a total effective term of imprisonment of twenty-eight years,
composed
of
twenty
years
on
the
narcotics
charges
and
a
reinstatement of the original eight-year unexecuted probationary
sentence.
On
direct
appeal,
Petitioner
raised
two
grounds,
improper admission of evidence of prior misconduct and insufficient
evidence to support his conviction for sale of narcotics by a nondrug-dependent person.
the conviction.
The Connecticut Appellate Court affirmed
See State v. Fernandez, 76 Conn. App. 183, 184,
818 A.2d 877, 879 (2003).
In his petition for certification, the
petitioner abandoned the sufficiency of the evidence claim.
Resp’ts’ Mem. App. E at 1.)
(See
On May 21, 2003, the Connecticut
Supreme Court denied the petition for certification.
See State v.
Fernandez, 264 Conn. 901, 823 A.2d 1220 (2003).
On December 15, 2003, Mr. Fernandez filed his first state
habeas
petition
assistance
of
including
trial
December 15, 2005.
twelve
counsel.
The
instances
of
petition was
ineffective
withdrawn
on
(See Resp’ts’ Mem. App. F.)
On February 14, 2006, Petitioner filed his second state habeas
petition including four instances of ineffective assistance of
trial counsel.
The court denied the petition following a hearing.
See Fernandez v. Warden, No. CV064000964S, 2011 WL 1734457 (Conn.
Super. Ct. Apr. 11, 2011).
The appeal of the denial of the second
petition remains pending.
On November 18, 2008, while the second state habeas action was
pending, Petitioner filed a third state habeas petition challenging
his conviction on five grounds: (1) he was given a disproportionate
2
sentence because he is a foreign national; (2) he is being detained
as an enemy combatant and forced into slavery; (3) the court lacked
personal and subject matter jurisdiction over his claims and double
jeopardy; (4) his confinement is a form of torture against a
foreign national; and (5) the Sentence Review Division improperly
concluded that his sentence did not violate his rights under the
Equal Protection and Due Process Clauses and the Eighth Amendment.
(See Resp’ts’ Mem. App. H.)
On November 26, 2008, the state court
rejected the petition under state procedural rules as “wholly
frivolous on its face.”
See Conn. Practice Book § 23-24(a).
The
state court declined to take action on the petitioner’s petition
for certification to appeal because no judgment had entered.
The
Court of Appeals construed the lack of action as a denial of
certification and, on November 23, 2010, determined that the state
court had not abused its discretion in determining that the claims
in the petition were frivolous and dismissed the appeal.
See
Fernandez v. Commissioner of Correction, 125 Conn. App. 220, 22224, 7 A.3d 432, 434-35 (2010), cert. denied, 300 Conn. 924, 15 A.3d
630 (2011).
In November 2011, Petitioner commenced this action.
In his
amended petition, Mr. Fernandez challenges his conviction on four
grounds: (1) lack of a full and fair hearing on his third state
habeas petition and a chance to amend the petition; (2) failure to
3
appoint counsel for the third state habeas petition; (3) double
jeopardy; and (4) disproportionate sentence.
II.
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).
Before filing a petition for writ of habeas corpus in federal
court, the petitioner must exhaust his state court remedies.
See
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. §
2254(b)(1)(A).
The Second Circuit requires the district court to
conduct a two-part inquiry: first, a petitioner must present the
factual and legal bases of his federal claim to the highest state
court capable of reviewing it; and second, he must have utilized
all available means to secure appellate review of his claims.
See
Galdamez v. Keane, 394 F.3d 68, 73-74 (2d Cir.), cert. denied, 544
U.S. 1025 (2005).
Even if claims are unexhausted, however, the
court retains the ability to review and deny such claims on the
merits. See 28 U.S.C. § 2254(b)(2); Rhines v. Weber, 544 U.S. 269,
271 (2005).
III. Discussion
Respondents argue that Mr. Fernandez has not exhausted his
state court remedies on any of the grounds for relief, that the
first two grounds for relief are based on state law and are not
4
cognizable in a federal petition, and that the remaining grounds
lack merit.
A.
State Law Grounds
In his first two grounds for relief, Petitioner argues that he
was neither afforded a proper hearing and chance to amend his
petition nor appointed counsel to assist him on his third state
habeas petition.
Proper grounds for a federal habeas petition are claims that
a state conviction or custody violate the Constitution or federal
law.
See 28 U.S.C. § 2254(a) (federal court entertains petition
for writ of habeas corpus challenging state court conviction only
if petitioner claims that custody violates the Constitution or
federal laws).
Neither the Constitution nor federal law requires
that states provide post-conviction remedies.
See Lackawanna
County Dist. Att’y v. Coss, 532 U.S. 394, 402 (2001) (Constitution
does not require states to provide post-conviction remedies); Word
v. Lord, 648 F.3d 129, 131-32 (2d Cir. 2011) (holding that errors
in state post-conviction proceeding are not cognizable in a federal
habeas petition); see also Pennsylvania v. Finley, 481 U.S. 551,
555 (1987) (prisoner has no constitutional right to counsel in
collateral
attack
on
his
conviction).
Since
state
habeas
proceedings are not required under the Constitution or federal law,
any errors occurring during a state habeas proceeding are not
cognizable in a federal habeas petition. Accordingly, Respondents’
5
motion to dismiss is granted as to the first two grounds for
relief.1
B.
Double Jeopardy Claim
Petitioner asserts the same double jeopardy claim he included
in his third state habeas petition, namely that charging him both
with possession of narcotics by a person who is not drug dependent
and possession of narcotics violated his right to be free from
double jeopardy.
The Fifth Amendment’s Double Jeopardy Clause provides that no
person shall be “subject for the same offense to be twice put in
jeopardy of life and limb.”
The Connecticut Appellate Court
acknowledged that, if the petitioner had been convicted of the two
charges referenced in the statement of the ground for relief, he
would have a viable double jeopardy claim.
However, as the
petitioner clearly stated in his petition that he was convicted of
possession of narcotics and sale of narcotics, two different
crimes,
the
allegations
Connecticut
clearly
Appellate
refuted
any
1
Court
double
concluded
jeopardy
that
claim.
the
See
The cases cited by Petitioner in support of these
grounds are inapposite. Holiday v. Johnston, 313 U.S. 342
(1941), concerns procedures dealing with a federal habeas
petition, not a state petition. United States v. Marr, 856 F.2d
1471 (10th Cir. 1988), concerns the right to an evidentiary
hearing in a federal habeas proceeding. As neither case deals
with a prisoner’s rights at a state habeas proceeding, they do
not support Petitioner’s arguments.
6
Fernandez v. Commissioner of Correction, 125 Conn. App. at 224 n.4,
7 A.3d at 435 n.4.
Petitioner clearly states, both in the amended petition and
his opposition to the motion to dismiss, that he was convicted of
sale of narcotics and possession of narcotics, not the charges
described in the statement of this claim.
(See Amend. Pet. [Doc.
#11] at 2, ¶3; Pet.’s Opp’n [Doc. #27] at 4.)
The actual charges
also are set forth in the Connecticut Appellate Court’s decision on
direct appeal.
A.2d at 879.
See State v. Fernandez, 76 Conn. App. at 183, 818
As there is no factual basis for a double jeopardy
claim, Respondents’ motion to dismiss is granted and the petition
denied on the third ground for relief.
C.
Disproportionate Sentence
In his final ground for relief, Petitioner argues that he was
given a disproportionate sentence.
The Second Circuit has held
that a challenge to the term of imprisonment is not cognizable in
a federal habeas action if the sentence is within the statutory
range.
See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).
Petitioner was convicted of five counts of sale of narcotics
by a non-drug-dependent person in violation of Conn. Gen. Stat. §
21a-278(b).
Each count carries a possible sentence of not less
than five years nor more than twenty years imprisonment for a first
offense, and not less than ten years nor more than twenty-five
years imprisonment for each subsequent offense.
7
Petitioner was
also convicted
of
five
counts
of
possession
violation of Conn. Gen. Stat. § 21a-279(a).
of
narcotics
in
Each count carries a
possible term of imprisonment of not more than seven years for a
first offense, not more than fifteen years for a second offense and
not more than twenty-five years for any subsequent offense; and
fines are also authorized under this section.
Petitioner was sentenced to a term of imprisonment of twenty
years on each of the five sale of narcotics counts and seven years
on each of the five possession of narcotics counts.
All sentences
were to run concurrently and were to run consecutive to the eightyear unexecuted sentence imposed for violation of probation.
Resp’ts’ Mem. App. B. at 16-17, 29-31.)
is within the statutory range.
(See
The twenty year sentence
Thus, Petitioner’s claim is not
cognizable in a federal habeas corpus action; and Respondents’
motion to dismiss is therefore granted as to the fourth ground for
relief.
8
IV.
Conclusion
Respondent’s motion to dismiss [Doc. #15] is GRANTED and the
petition is denied.
Because the petitioner has not shown that he
was denied a constitutional right, a certificate of appealability
will not issue.
The Clerk is directed to enter judgment and close
this case.
SO ORDERED this 6th day of March 2013, at New Haven,
Connecticut.
`
/s/
Janet Bond Arterton
United States District Judge
9
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