Francis v. Semple et al
Filing
31
ORDER granting 12 Motion to Dismiss. 12 Motion to dismiss is GRANTED and the petition is DISMISSED without prejudice. Francis may file a new federal petition after he exhausts his state remedies on all grounds for relief. Because reasona ble jurists would not find it debatable that the petition is a mixed petition containing exhausted and unexhausted claims, a certificate of appealability will not issue. The Clerk is directed to enter judgment and close the case.Signed by Judge Stefan R. Underhill on 1/4/2016. (Pollack, R.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ERNEST FRANCIS,
Petitioner,
v.
SEMPLE and EDWARD MALDONADO,
Respondents.
:
:
:
:
:
:
:
No. 3:14-cv-1875 (SRU)
RULING ON PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Ernest Francis, currently confined at the Osborn Correctional Institution
in Somers, Connecticut, filed this habeas corpus action pursuant to 28 U.S.C. § 2254,
challenging his conviction for murder. The respondents move to dismiss the petition on the
ground that the petitioner failed to exhaust his state court remedies with regard to all grounds for
relief. I agree that the petitioner did not exhaust his state court remedies and grant the
respondents’ motion.
I.
Procedural Background
In 1992, Francis was convicted of murder. On April 15, 1992, he was sentenced to a term
of imprisonment of fifty years. Doc. # 1 at 31. On direct appeal, Francis challenged his
conviction on the grounds that the trial court abused its discretion in precluding him from crossexamining a state’s witness about her probationary status, improperly denied his motion for
judgment of acquittal based upon insufficient evidence, and improperly instructed the jury in
three ways. The Connecticut Supreme Court affirmed the judgment. State v. Francis, 228 Conn.
118, 119–122 (1993).
Francis filed several state post-conviction challenges relating to his conviction. On March
13, 1995, Francis filed a state habeas petition asserting a claim that trial counsel was ineffective.
Following a trial, the court found that, based on information provided by Francis, counsel
decided to pursue a defense of accident rather than extreme emotional disturbance. The court
also held that Francis’ testimony did not support a defense of extreme emotional disturbance.
The trial court denied the petition and also denied certification to appeal. Francis v. Warden, No.
CV950550706S (Conn. Super. Ct. Feb. 18, 1998), Resp’ts’ Mem. App. B-4, Doc. #13-4, at 3945. On appeal to the Connecticut Appellate Court, Francis argued that trial counsel was
ineffective for failing to assert a defense of extreme emotional disturbance. The appellate court
concluded that Francis failed to show that the denial of certification was an abuse of discretion
and dismissed the appeal. Francis v. Comm’r of Correction, 63 Conn. App. 282 (2001).
In 2000, Francis filed a motion to correct illegal sentence. The trial court denied the
motion. On appeal, Francis argues that the trial court improperly considered his lack of veracity,
relied on information outside the record, and relied on inaccurate or mistaken information. State
v. Francis, 69 Conn. App. 378 (2002). The Connecticut Appellate Court concluded that the trial
court lacked jurisdiction to entertain the motion. Francis had filed his motion pursuant to
Connecticut Practice Book Section 43-22, which provides that the court may correct an illegal
sentence or a sentence imposed in an illegal manner. The Connecticut Appellate Court
determined that Francis’ sentence was not illegal because it did not exceed the relevant statutory
maximum, did not violate Francis’ right against double jeopardy, was not ambiguous and was
not internally contradictory. Id. at 382–84. The Court further noted that Practice Book Section
43-22 was limited by a common-law rule that a court cannot modify a sentence that was valid
after execution of the sentence had begun. Accordingly, the Connecticut Appellate Court
2
reversed the trial court’s decision and remanded the case with instructions to dismiss the motion.
Id. at 385. The Connecticut Supreme Court denied certification to appeal. State v. Francis, 260
Conn. 935 (2002).
Also in 2000, Francis filed a second state habeas action challenging his conviction.
Francis v. Warden, No. CV00-0800883, 2011 WL 1367073 (Conn. Super. Ct. Mar. 22, 2011). In
his second amended petition, Francis argued that trial counsel was ineffective because he failed
to investigate a defense of extreme emotional disturbance, request an instruction on the defense
of extreme emotional disturbance and move to disqualify the judge who presided over the
probable cause hearing and trial. The court rejected all three claims after a trial. Francis included
five other claims in his second amended petition: two other instances of ineffective assistance of
counsel, a claim of judicial error for presiding over the probable cause hearing and the trial,
withholding exculpatory evidence, and reliance on inaccurate or mistaken information at
sentencing. Those claims were deemed abandoned when they were not briefed throughout the
duration of the case. On appeal, Francis claimed that the trial court improperly rejected his three
ineffective assistance of counsel claims. The denial of the petition was upheld on appeal. Francis
v. Comm’r of Correction, 142 Conn. App. 530 (2013), cert. denied, 310 Conn. 921 (2013).
In 2004, Francis filed a second motion to correct illegal sentence. He argued that the
sentencing judge improperly signed the arrest warrant and presided over his probable cause
hearing. The state court denied the motion. State v. Francis, No. CR 90-391532 (Conn. Super.
Ct. Nov. 18, 2005), Resp’ts’ Mem. App. F-4, Doc. # 13-26 at 32-44. The denial was affirmed on
appeal. State v. Francis, 108 Conn. App. 901 (2008), cert. denied, 289 Conn. 914 (2008).
In 2008, Francis filed a third state habeas action directed to his conviction alleging
3
ineffective assistance of counsel in his second habeas action. The state court denied the petition
in an oral ruling and denied certification to appeal. Resp’ts’ Mem. App. G-5, Doc. # 13-34 at
135. The Connecticut Appellate Court determined that the trial court did not abuse its discretion
in denying certification and dismissed the appeal. Francis v. Comm’r of Correction, 151 Conn.
App. 574 (2014), cert. denied, 314 Conn. 922 (2014).
In 2010, Francis filed a third motion to correct illegal sentence, again arguing that the
trial court relied on inaccurate and incomplete information at sentencing. He noted that the
sentencing court incorrectly assumed that he had stabbed the victim twice instead of once and
misunderstood his prior criminal record. He also argued that the sentencing hearing was flawed
because he was unable to present evidence of a mental impairment that was not known at the
time of sentencing. The trial court denied the motion. State v. Francis, No. CR 90-391532, 2011
WL 2738882 (Conn. Super. Ct. June 7, 2011). On appeal, the Connecticut Appellate Court
reversed and remanded the case because the court had denied Francis’ request for a public
defender without following procedures similar to those outlined in Anders v. California, 368
U.S. 738, 744 (1967). State v. Francis, 148 Conn. App. 565, 569–70 (2014). The Connecticut
Supreme Court has granted certification on the question whether the appellate court properly
determined that such a procedure was required. State v. Francis, 314 Conn. 908 (2014). The
appeal remains pending.
II.
Standard of Review
A federal court “shall entertain an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C.
4
§ 2254(a). Before filing a petition for writ of habeas corpus in federal court, however, the
petitioner must properly exhaust his state court remedies, thereby giving the state courts an
opportunity to correct any alleged errors. See Baldwin v. Reese, 541 U.S. 27, 29 (2004); 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. 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); see also Richardson v. Superintendent of Mid-Orange
Correctional Facility, 621 F.3d 196, 201 (2d Cir. 2010) (quoting Baldwin, 541 U.S. at 39), cert.
denied sub nom. Richardson v. Inserra, 562 U.S. 1188 (2011) (“Exhaustion requires that the
prisoner ‘fairly present’ the federal claim ‘in each appropriate state court (including a state
supreme court with powers of discretionary review).’”). The petitioner must have informed all of
the state courts of all necessary factual allegations and present essentially the same legal doctrine
he asserts in federal court. See Picard v. Connor, 404 U.S. 270, 278 (1971).
III.
Discussion
Francis challenges his conviction on thirteen grounds. Because some of the grounds are
related, they are grouped together: Ground 1 - the trial court violated his right to confrontation
when it precluded him from questioning a state’s witness regarding her probationary status;
Ground 2 - there was insufficient evidence of intent to cause death; Grounds 3, 4 and 5 – the trial
court improperly instructed the jury on the element of intent, that it could consider false
statements made by Francis as evidence of guilt, and on the jury’s duties regarding the
presumption of innocence; Grounds 6 and 7 – trial counsel was ineffective in failing to pursue a
5
defense of extreme emotional disturbance and in allowing the same judge who had signed the
arrest warrant to preside over the probable cause hearing, pretrial negotiations, trial and
sentencing; Grounds 8, 9, 10 and 13 – the trial court sentenced Francis on incomplete or
inaccurate information; and Grounds 11 and 12 – the state court lacked jurisdiction to hear the
case because Connecticut General Statutes § 54-46a is unconstitutional in that it does not afford
a right to an impartial tribunal.
The respondents move to dismiss the petition on the ground that Francis has not
exhausted his state court remedies with regard to all of the grounds for relief. Specifically, they
contend that Grounds 8, 9 and 10 are not exhausted. They further argue that Grounds 3, 4, 5, 11
and 12 raise only issues of state law and are not cognizable in a federal habeas petition. The
respondents do not reference Ground 13. In their memorandum, the respondents further argue
that, if I were to deem those grounds exhausted, the petition should be denied on the merits.
In Ground 8, Francis states that the trial court enhanced his sentence based on an
inaccurate assessment of his lifestyle. He states that he raised that issue before the Connecticut
Appellate Court which dismissed the claim for lack of jurisdiction. Francis further states that the
state court conceded that it had jurisdiction and dismissed the appeal in error but has refused to
consider the merits of the appeal. Doc. # 1 at 24. Francis provides no citation to support that
assertion.
I assume that Francis’ reference is to footnote 9 in State v. Pagan, 75 Conn. App. 423
(2003), which states:
During oral argument, the assistant state’s attorney brought to this
panel’s attention, the case of State v. Francis, 69 Conn. App. 378,
793 A.3d 1224, cert. denied, 260 Conn. 935, 802, A.2d 88, ___
U.S. ___, 123 S. Ct. 630, 154 L.Ed.2d 536 (2002). In Francis, the
6
panel held that the trial court lacked jurisdiction to consider the
defendant’s claim under Practice Book § 43-22 where the motion
to correct the illegal sentence did not attack the validity of the
sentence as exceeding the maximum statutory limits, did not
violate a mandatory minimum sentence, did not violate double
jeopardy rights and was neither ambiguous nor internally
contradictory. Id., at 384, 793 A.2d 1224. The holding in Francis
is not consistent with State v. McNellis, supra, 15 Conn. App. at
444, 546 A.2d 292. McNellis has not been overruled by an en banc
panel of this court or by our Supreme Court.
75 Conn. App. at 430, n.9. Pagan was a direct appeal. Id. at 424. Footnote nine appears after a
citation to McNellis for the definition of a sentence imposed in an illegal manner. McNellis also
was a direct appeal. 15 Conn. App. at 416. The cited section concerns a direct challenge to the sentence.
There is no reference to a motion filed pursuant to Practice Book section 43-22, no discussion of the
court’s jurisdiction over claims filed under that section and no further explanation of the reference.
Thus, I find no language overruling the jurisdictional basis for the decision of the state
court denying Francis’ motion to correct illegal sentence.
In Ground 9 Francis states that the court considered inaccurate or mistaken information
during his sentencing when it stated that he stabbed the victim twice even though the medical
examiner stated the victim was stabbed only once. Francis states that he raised that issue twice in
the state courts. The first time the petition was dismissed by mistake. There are no reported
decisions referencing a mistaken dismissal and Francis provides no authority for his statement. I
assume that this is another reference to the footnote in Pagan. The second time the decision was
reversed and remanded for the court to consider a separate issue. Doc. # 1 at 25.
In Ground 10, Francis contends that, at sentencing, the trial court relied on inaccurate
information concerning his mental state. He argues that the pre-sentence investigation report
stated that he had no mental health issues, but an expert psychologist at a subsequent habeas
7
hearing opined that Francis suffered from post-traumatic stress disorder. Francis states that the
issue was raised but not addressed by the Connecticut Appellate Court. Doc. # 1 at 25-26.
In Ground 13, Francis states that the trial court relied on an inaccurate assessment of his
criminal history at sentencing. He also argues that the trial court relied on his adolescent criminal
history to conclude that he had made up his mind about a life of crime in violation of Supreme
Court precedent. Francis states that the issue was raised, but not addressed, in the state courts.
Doc. # 1 at 28.
The respondent argues that Francis has not exhausted his state court remedies on the
claims that the court relied on inaccurate information at sentencing. Those claims are included in
Francis’ third state habeas action which is pending before the Connecticut Supreme Court. In
response, Francis states that the issue before the Connecticut Supreme Court is not an issue
included in the instant action. He contends that the state habeas action is irrelevant because he
already raised those claims in support of his motion to correct illegal sentence.
To satisfy the exhaustion requirement, Francis was required to present his claims in a
state court with jurisdiction to consider them. See O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999) (“[T]he state prisoner must give the state courts an opportunity to act on his claims before
he presents those claims to a federal court in a habeas petition.”); Coleman v. Thompson, 501
U.S. 722, 731–32 (1991) (petitioner must comply with state procedural requirements for
presenting claims in state court). See also 28 § U.S.C. 2254(b), (c) (petitioner must afford highest
state court with jurisdiction over claims the opportunity to review the merits of all claims
included in federal petition). Although Francis included those claims in support of his motion to
correct illegal sentence, the Connecticut Appellate Court held that the trial court did not have
8
jurisdiction to address the claims at the time the motion was filed and ordered the trial court to
dismiss the motion. Any appeal of the order considered the propriety of the dismissal, not the
merits of Francis’ claims. By not presenting his claims in a proper manner, Francis deprived the
Connecticut Supreme Court of the opportunity to address the merits of his claims. Thus, Francis’
argument that he was not required to include the claims in his third state habeas petition is
without merit.
Francis states that the pending appeal of the third state habeas action concerns an issue
that is not included in his current federal petition. Doc. # 1 at 30. The issue on appeal is whether
the trial court properly considered Francis’ request for appointment of counsel. Though Francis
is correct that the issue is not included in the federal petition, if the Connecticut Supreme Court
decides in Francis’ favor, the case will be remanded with direction that the public defender be
appointed to represent Francis. The public defender can then evaluate the merits of the claims to
determine whether he should move to withdraw. If the public defender decides that there is merit
to Francis’s challenge to his sentence, those claims will be addressed by the court. Because there
remains a possibility that Francis can present the merits of the claims to the state courts, the
claims are not exhausted. See Galdamez, 394 F.3d at 73-74 (petitioner must utilize all available
means to secure appellate review of his claims).
Francis has filed a mixed petition, containing both exhausted and unexhausted claims.
Federal district courts are generally required to dismiss mixed petitions. See Pliler v. Ford, 542
U.S. 225, 230 (2004) (citing Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)). Under some
circumstances, however, the district court may stay a mixed habeas petition to enable the
petitioner to present his unexhausted claims to the state court and then return to federal court for
9
review of all of his claims. A stay should be utilized only in limited circumstances, where the
petition contains both exhausted and unexhausted claims, the petitioner demonstrates good cause
for failing to exhaust all claims before filing the federal petition, and the petitioner may be timebarred if the case were dismissed. Rhines v. Weber, 544 U.S. 269, 277-78 (2005); see also
Zarvela v. Artuz, 254 F.3d 374, 380-83 (2d Cir. 2001) (recommending that the district court stay
exhausted claims and dismiss unexhausted claims with direction to timely complete the
exhaustion process and return to federal court).
Francis has had pending proceedings collaterally attacking his sentence at all times since
his direct appeal concluded. Because he is not in danger of being time-barred if I dismiss the
petition, a stay is not required.
IV.
Conclusion
The respondent’s motion to dismiss [Doc. # 12] is GRANTED and the petition is
DISMISSED without prejudice. Francis may file a new federal petition after he exhausts his
state remedies on all grounds for relief.
Because reasonable jurists would not find it debatable that the petition is a mixed petition
containing exhausted and unexhausted claims, a certificate of appealability will not issue. See
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Clerk is directed to enter judgment and close the case.
SO ORDERED this 4th day of January 2016, at Bridgeport, Connecticut.
/s/STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?