Fluker v. Falcone

Filing 17

RULING denying re 1 Petition for Writ of Habeas Corpus filed by Tavorus Fluker Signed by Judge Stefan R. Underhill on 8/14/2018. (Oliver, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
TAVORUS FLUKER,
Petitioner,
v.
WARDEN H. FALCONE,
Respondent.

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No. 3:16-cv-82 (SRU)

RULING ON PETITION FOR WRIT OF HABEAS CORPUS
Tavorus Fluker (“Fluker”), an inmate currently confined at Garner Correctional
Institution in Newtown, Connecticut, brings this action pro se seeking a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He challenges his 2008 Connecticut convictions for attempted
murder, assault and criminal possession of a firearm. For the reasons that follow, the petition is
denied.
I.

Standard of Review
A 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.
See 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).
Section 2254(d) “imposes a highly deferential standard for evaluating state-court rulings
and demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559
U.S. 766, 773 (2010) (citations and internal quotation marks omitted). A 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

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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 States; or
(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). That is a very difficult standard to meet. Metrish v. Lancaster, 569 U.S.
351, 357-58 (2013).
Clearly established federal law is found in holdings, not dicta, of the Supreme Court at
the time of the state court decision. See Howes v. Fields, 565 U.S. 499, 505 (2012); Carey v.
Musladin, 549 U.S. 70, 74 (2006). Thus, “[c]ircuit precedent does not constitute “‘clearly
established Federal law, as determined by the Supreme Court.’” Parker v. Matthews, 567 U.S.
37, 48 (2012) (quoting 28 U.S.C. § 2254(d)(1)). The law may be a generalized standard or a
bright-line rule intended to apply the standard in a particular context. See Kennaugh v. Miller,
289 F.3d 36, 42 (2d Cir. 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, 555 U.S. 1176 (2009). It is not enough that the state court decision is incorrect or
erroneous. Rather, the state court application of clearly established law must be objectively
unreasonable, which is a substantially higher standard. See Schriro v. Landrigan, 550 U.S. 465,

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473 (2007). Thus, a state prisoner must show that the challenged court ruling “was so lacking in
justification that there was an error well understood and comprehended in existing law beyond
any possibility of fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011);
see also Burt v. Titlow, 571 U.S. 12, 134 S. Ct. 10, 15 (2013) (federal habeas relief warranted
only where the state criminal justice system has experienced an “extreme malfunction”).
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, 563 U.S. 170, 181 (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.
II.

Procedural History
On July 11, 2007, Groton Police Detectives Robert Emery and Kevin Curtis executed a

warrant for the arrest of Fluker on charges of attempt to commit murder, criminal use of a firearm,
criminal possession of a firearm and unlawful discharge of a firearm. See Resp’t’s Mem. Opp’n
Pet. Writ Habeas Corpus, App. B at 9-12, ECF No. 15-2. On July 12, 2007, a judge of the
Connecticut Superior Court for the Judicial District of New London arraigned Fluker, read him
his rights and set bond at one million dollars. See id. at 9. On August 6, 2007, Fluker pleaded not
guilty to all four counts. See id. at 6, 8. On July 1, 2008, Michael Regan, State’s Attorney for the
New London Judicial District, filed a substitute information charging Fluker with one count of

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criminal attempt to commit murder in violation of Connecticut General Statutes § 53a-49 and
53a-54a, one count of assault in the first degree in violation of Connecticut General Statutes §
53a-59(a)(5), and one count of criminal possession of a firearm in violation of Connecticut
General Statutes § 53a-217(a). See id. at 13. Fluker pleaded not guilty to all three counts of the
substitute information. See id.
A jury trial began on July 25, 2008. See id. at 4. On August 15, 2008, the jury found
Fluker guilty of all three counts. See id. at 5. On October 17, 2008, a judge sentenced Fluker to a
total effective sentence of twenty-five years of imprisonment. See id. at 4-5, 19.
Fluker appealed his convictions on two grounds. See State v. Fluker, 123 Conn. App. 355,
357 (2010). He claimed that the state violated the Fifth Amendment’s prohibition against
presenting evidence of post-Miranda silence at trial and the prosecutor had engaged in
prosecutorial misconduct by failing to follow a court order regarding the admissibility of evidence
involving the efforts of police to locate him. See id. On August 24, 2010, the Connecticut
Appellate Court affirmed the judgment of conviction. See id. at 372. On October 14, 2010, the
Connecticut Supreme Court denied the petition for certification to appeal from the decision of the
Connecticut Appellate Court. See State v. Fluker, 298 Conn. 931 (2010).
On May 9, 2011, Fluker filed a petition for writ of habeas corpus in the Connecticut
Superior Court for the Judicial District of Tolland at Rockville challenging his conviction. See
Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App. H, ECF No. 15-8. On February 25, 2013, a
superior court judge granted Fluker leave to file a second amended petition. See id., Dkt. Entry
113.00, 114.00 & App. J. Fluker asserted claims of ineffective assistance of trial counsel,
ineffective assistance of appellate counsel, prosecutorial misconduct and actual innocence. See
id., App. J.
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Fluker and other witnesses participated in a trial on the claims in the second amended
petition on October 16, 2013 and April 25, 2014. See Fluker v. Warden, State Prison, No. CV114004147-S, 2014 WL 4290611, at *2 (Conn. Super. Ct. July 18, 2014). On July 16, 2014, a judge
denied the petition. See id. at *8.
Fluker appealed the denial of the second amended petition. On October 27, 2015, the
Connecticut Appellate Court dismissed the appeal of the decision denying the amended habeas
petition. See Fluker v. Comm’r of Correction, 160 Conn. App. 908 (2015) (per curiam). On
December 9, 2015, the Connecticut Supreme Court denied the petition for certification to appeal
the decision of the appellate court. See Fluker v. Comm’r of Correction, 320 Conn. 905 (2015).
Fluker filed his federal habeas petition in January 2016. The respondent has filed a
memorandum in opposition to the petition.
III.

Factual Background
The Connecticut Appellate Court determined that the jury reasonably could have found

the following facts and procedural history:
On the evening of February 9, 2007, the victim, Lewis Camby III,
went to Sully's Cafe', a tavern in Groton. Shortly after arriving, he
encountered [Fluker]. After exchanging greetings, [Fluker] asked
the victim, “what's up with that $300 that you owe Danette
[Robinson].”2 After a brief discussion, the two men decided that
neither of them wanted to make an issue over the debt owed to
Robinson. Subsequent to this conversation, the victim continued
socializing within the bar and observed [Fluker] leave through a
door located in the poolroom. Upset that [Fluker] had interfered in
his personal business, the victim called Robinson to ask why
[Fluker] was inquiring about the money that he owed her. A short
time later, the victim encountered [Fluker] again. This time,
[Fluker] appeared in the poolroom near a door, which exited into
the parking lot. During this encounter, after motioning to the victim
to come over to where he was standing, [Fluker] grabbed his arm,
put a pistol under his chin and said, “I kill [people] like you.” Both
men then proceeded toward the door in the poolroom which led into
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the parking lot. As [Fluker] exited, the victim remained close to the
doorway, and the two men began to argue about the recent
altercation. At this point, [Fluker] raised his arm and shot the victim
in the chest with a large caliber automatic weapon.
Soon after the shooting, officers from the Groton town police
department were dispatched to Sully's Cafe'. Upon arriving,
Sergeant Jeffrey Scribner entered the tavern and observed the
victim being held up by two patrons leaning against the bar.
Scribner noticed “a bloody hole in the upper left chest area and in
the clothing” of the victim where he had been shot. Despite being
very emotional, the victim was alert enough to inform Scribner that
he had been shot by “Tavorus.” When Scribner investigated further
concerning the identity of the shooter, the victim told him that
Tavorus was “Lamar's brother.” Being familiar with Tavorus and
Lamar, Scribner concluded that [Tavorus Fluker] was the shooter.
Police began a canvass of the crime scene and found a .45 caliber
shell casing in the parking lot immediately outside a side door of
the bar that led to the poolroom.
Shortly afterward, medical personnel arrived, stabilized the victim
and transported him to William W. Backus Hospital. Officer
Christopher Hoffman of the Groton town police department
accompanied the victim in the ambulance and stayed with him at
the hospital until he was flown by Life Star helicopter to Hartford
Hospital. While waiting to be transported, the victim, once again,
identified [Fluker] as the person who had shot him. The victim told
Hoffman that [Fluker] shot him over an outstanding debt that he
owed to a mutual friend. Following the victim's identification of
[Fluker] as the person who had shot him, the police began looking
for [Fluker].
The next morning, [Fluker] left Connecticut and drove to
Philadelphia, Pennsylvania. He eventually went to Arkansas. At no
time following the shooting did [Fluker] tell anyone he was leaving
town or where he was going. That same morning, a warrant was
issued for the arrest of [Fluker] in connection with the shooting. As
part of their investigation, police contacted other area police
departments and the United States Marshals Service for assistance
in locating [Fluker]. Police also informed the New London Day
newspaper (Day) that a warrant had been issued. Subsequently, the
Day published an article concerning [Fluker] and the shooting.

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[Fluker] was arrested in Arkansas on July 11, 2008.1 He then was
transported to Newburgh, New York, by the United States Marshals
Service and taken into custody by Detectives Robert Emery and
Kevin Curtis of the Groton town police department. Once [Fluker]
was secured in the transport vehicle, Curtis advised him of his
Miranda rights. Subsequently, Emery asked [Fluker] “if he wanted
to talk about the case.” Emery testified that “[Fluker] just declined.
He said he didn't want to talk about it, and I said okay. And he said
he's got five witnesses that will say he didn't do it or wasn't
involved.” After Emery asked [Fluker] to supply the names of his
alibi witnesses, the defendant responded, “no, that's all right.”
Fluker, 123 Conn. App. 355, 357–60 (2010) (footnotes omitted).
IV.

Discussion
There are three grounds in the present petition. Fluker asserts that: (1) the State of

Connecticut erred in presenting evidence of his post-Miranda silence in violation of the Fifth
Amendment; (2) trial counsel was ineffective in failing to: (a) investigate the incident and/or
evidence produced at trial, (b) interview witnesses, and (c) request that the judge hold a hearing to
determine whether a witness’s invocation of his Fifth Amendment right not to testify was valid;
and (3) the prosecutor had engaged in misconduct by threatening to prosecute a potential defense
witness if he testified at trial.
A.

Miranda Claim

Fluker alleges that after his arrest, Groton Police Detectives Emery and Curtis transported
him back to the Groton Police Department. During the ride back to the station, Detective Curtis
advised him of his rights under Miranda v. Arizona, 384 U.S. 436, 478-79 (1966). When

1

Fluker’s Superior Court criminal case file reflects that officers arrested Fluker on July
11, 2007, not July 11, 2008. See Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App. B at 10,
12 (Arrest Warrant Returns dated July 11, 2007), ECF No. 15-2. The State’s Attorney filed a
substitute information on July 1, 2008, and Fluker pleaded not guilty to the substitute information
on that same date. See id., 4, 7, 13 (Docket Entries and Substitute Information). Thus, the
reference by the Connecticut Appellate Court regarding the date of Fluker’s arrest on July 11,
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Detective Emery subsequently asked him about the case, Fluker declined to talk about it. Fluker
then made a statement about witnesses who would testify to his lack of involvement in the crime.
When Detective Emery asked Fluker to name the witnesses, Fluker declined to name them. At
trial, the prosecutor called Detective Emery to testify and elicited testimony regarding the
statements made by Fluker just after his arrest. In addition, the prosecutor made reference to
Fluker’s statement about unidentified alibi witnesses in his closing statement. Fluker contends
that the prosecutor erred in presenting evidence of his post-Miranda silence in violation of Doyle
v. Ohio, 426 U.S. 610 (1976).
The Connecticut Appellate Court found the following additional facts were relevant to its
review Fluker’s Fifth Amendment claim.
On direct examination, Emery described the events that transpired after [Fluker]
was taken into custody and advised of his right to remain silent. The following
exchange between Michael L. Regan, the state's attorney, and Emery occurred at
trial:
“Q. And after he was advised of his rights, was [Fluker] asked any questions?
“A. I asked if he wanted to talk about the case.
“Q. And what did he say?
“A. He just declined. He said he didn't want to talk about it, and I said okay. And
he said he's got five witnesses that will say he didn't do it or wasn't involved.
“Q. And what did you do when he said he had five witnesses that said that he
wasn't involved?
“A. I asked him for the names of the witnesses so I could talk to them.
“Q. And what did he say?
“A. He said no, that's all right.”
[Fluker] did not object to this exchange. During cross-examination, defense
counsel furthered this line of questioning by asking Emery whether [Fluker] ever
told him that he would give the names of his alleged alibi witnesses to his attorney.
Emery testified, “No, I don't recall [whether] he said that.” During closing
argument to the jury, the prosecutor recounted [Fluker's] testimony at trial, stating,
“[a]lso, you remember [that Fluker] testified [that] when he turned himself in that
he had [those alibi] witnesses, but he never gave the police the names of [those]
2008, appears to be a typographical error.
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witnesses.”
Fluker, 123 Conn. App. at 361–62 (citations omitted).
The Fifth Amendment to the United States Constitution provides in relevant part: “No
person shall be ... compelled in any criminal case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of law....” U.S. Const. Amend. V. It is
applicable to state criminal proceedings by virtue of the Fourteenth Amendment. See Malloy v.
Hogan, 378 U.S. 1, 6 (1964). In Miranda, the Supreme Court held that “the prosecution may not
use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination.” 384 U.S. at 444. The Court stated that prior to questioning an
individual during a custodial interrogation, law enforcement officers must inform the individual:
that he has the right to remain silent, that anything he says can be used against him
in a court of law, that he has the right to the presence of an attorney, and that if he
cannot afford an attorney one will be appointed for him prior to any questioning if
he so desires.
Id. at 479. When an individual knowingly and voluntarily waives his Miranda rights, “law
enforcement officials may continue questioning until and unless the suspect clearly requests an
attorney.” Davis v. United States, 512 U.S. 452, 461 (1994).
In Doyle v. Ohio, 426 U.S. 610, 618-19 (1976), the Supreme Court held that “it would be
fundamentally unfair and a deprivation of due process” to permit a defendant's silence after being
advised of his Miranda rights to be used for impeachment purposes at trial. In Anderson v.
Charles, 447 U.S. 404 (1980), the Supreme Court further explained that “Doyle does not apply to
cross-examination that merely inquires into prior inconsistent statements ... [as][s]uch questioning
makes no unfair use of silence because a defendant who voluntarily speaks after receiving
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Miranda warnings has not been induced to remain silent.” Id. at 408. When a defendant
voluntarily speaks, then, the Court held, the “defendant has not remained silent at all.” Id.
In this case, Fluker challenges questions posed by the prosecutor and the answers elicited
by those questions on direct examination of Detective Emery, who questioned Fluker after he had
been read his Miranda rights. Fluker did not object to the questions or the testimony at trial. See
Fluker, 123 Conn. App. at 361. Because the claim was unpreserved, the Connecticut Appellate
Court analyzed the claim under State v. Golding, 213 Conn. 233, 362 (1989). Under the standard
set forth in Golding, a defendant may raise an unpreserved claim on appeal if four conditions are
met.2
The Appellate Court determined that Fluker’s claim met the first two conditions under
Golding. See id. at 363, 1 A.3d at 1221. In addressing the third prong of the Golding standard,
whether the claim involved a violation of a constitutional right and had resulted in the deprivation
of the defendant’s right to a fair trial, the Appellate Court relied on the Supreme Court’s decisions
in both Miranda and Doyle. See id., at 364-65. Because the Appellate Court applied the correct
legal principles, the decision is not contrary to federal law. Thus, the issue is whether the analysis
of the Appellate Court was an unreasonable application of Supreme Court Law.
The Appellate Court noted that it must first determine whether Fluker had invoked his
right to remain silent at the time he responded to questions posed by Detective Emery. A
defendant seeking to invoke his right to remain silent under the Fifth Amendment during an

2

The four conditions are: (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.
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interrogation after having been taken into custody must do so unambiguously. See Berghuis v.
Thompkins, 560 U.S. 370, 381 (2010). Thus, the invocation must be done “through a clear,
unambiguous affirmative action or statement.” United States v. Plugh, 648 F.3d 118, 124 (2d Cir.
2011). “A requirement of an unambiguous invocation of Miranda rights results in an objective
inquiry.” Thompkins, 560 U.S. at 381. If a suspect offers no statement or offers a statement
regarding his or her right to remain silent that is ambiguous or equivocal, the police need not stop
interrogating the suspect and are not required to pose questions to clarify whether the suspect
wants to invoke his or her Miranda rights.” Id. at 389.
Furthermore, a waiver of a defendant’s right to remain silent need not be an express
waiver. A waiver may be implied through “the defendant's silence, coupled with an
understanding of his rights and a course of conduct indicating waiver.” North Carolina v. Butler,
441 U.S. 369, 373 (1979).
In considering the circumstances surrounding the statements made by Fluker, the
Appellate Court observed that Fluker had followed his verbal statement that he did not want to
talk about the case with a statement about witnesses who might provide him with an alibi and
insulate him from liability for the crimes with which he had been charged. Thus, the Court
concluded that Fluker had not unambiguously invoked his right to remain silent at the time he
responded to the questions asked by Detective Emery. “Despite telling Emery that he was not
going to discuss the case . . . [Fluker’s] statements immediately following receipt of his Miranda
warnings clearly indicated that he was not invoking his [F]ifth [A]mendment right to remain
silent.” See Fluker, 123 Conn. App. at 368.
Absent a clear invocation of his right to remain silent, Detective Emery was then
permitted to ask a further question regarding the identities of those alibi witnesses and it was
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permissible for the State’s Attorney to offer testimony regarding Fluker’s statements at trial
without violating Miranda or Doyle. See Bradley v. Meachum, 918 F.3d 338, 343 (2d Cir. 1990)
(“Bradley cannot be said to have invoked his [F]ifth [A]mendment right regarding his willingness
to discuss his involvement in the crime because in the same breath, he denied any involvement.
Accordingly, we hold that any reference at trial to Bradley’s statement that he would not discuss
whether he was involved in the robbery was permissible, because the statement was not the
functional equivalent of silence under the [F]ifth [A]mendment.”). Because Fluker had not
unambiguously invoked his right to remain silent, the Appellate Court determined that the
prohibition set forth in Doyle was not applicable to the questions asked and testimony given by
Detective Emery on direct examination at trial or the reference made by the prosecutor in his
closing statement to Fluker’s statement to Detective Emery regarding alibi or exculpatory
witnesses. See id. at 366-68. I conclude that the Appellate Court’s decision was not an
unreasonable application of Supreme Court law to the facts underlying Fluker’s Miranda claim.
Accordingly, the petition for writ of habeas corpus is denied with respect to the first ground for
relief.
B.

Ineffective Assistance of Trial Counsel

In his second ground for relief, Fluker argues that the state habeas judge erred in
concluding that trial counsel’s performance was either not deficient or that any conduct by
counsel did not prejudice the outcome of the trial. The respondent argues that the habeas judge
correctly determined that Fluker’s ineffective assistance of trial counsel claim did not meet the
standard set forth in Strickland v. Washington, 466 U.S. 668 (1984).
An ineffective assistance of counsel claim is reviewed under the standard set forth in
Strickland. To prevail, a petitioner must demonstrate, first, that counsel’s conduct “fell below an
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objective standard of reasonableness” established by “prevailing professional norms,” and,
second, that counsel’s deficient performance caused prejudice to him. Id. at 687-88.
To satisfy the performance prong of the Strickland test, a petitioner must show that
counsel’s assistance was not “reasonable under the circumstances.” Strickland, 466 U.S. at 688.
Because in hindsight it is “tempting for a defendant to second-guess counsel's assistance after
conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after
it has proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable,” id., at 689, a court must “judge the reasonableness of counsel's challenged conduct
on the facts of the particular case, viewed as of the time of counsel's conduct.” Id. Judicial
scrutiny of counsel’s performance must, therefore, be highly deferential. Id.
To satisfy the prejudice prong of the Strickland test, a petitioner must show that there is a
“reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different;” the probability must “undermine confidence in the outcome” of the
trial. Strickland, 466 U.S. at 694. The court evaluates counsel’s conduct at the time the decisions
were made, not in hindsight, and affords substantial deference to counsel’s decisions. See
Rompilla v. Beard, 545 U.S. 374, 381 (2005). A petitioner must demonstrate both deficient
performance and sufficient prejudice to prevail on a claim of ineffective assistance of counsel.
See Strickland, 466 U.S. at 700. Thus, if the court finds one prong of the standard lacking, it need
not consider the remaining prong. See id. at 697, 700.
A federal court will consider the last reasoned state court decision to determine whether
the denial of the effective assistance of trial counsel claim is an unreasonable application of
federal law. See Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991). Here, the relevant decision was
issued by the Connecticut Superior Court which denied the second amended petition for writ of
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habeas corpus. In analyzing Fluker’s ineffective assistance of counsel claims, the Connecticut
Superior Court judge applied the standard established in Strickland. Because the state court judge
applied the correct legal standard, the state court decision cannot trigger the “contrary to” prong
of section 2254(d)(1).
Fluker argues that trial counsel was ineffective in three ways. He contends that counsel
(1) failed to investigate the incident or evidence produced at trial; (2) did not interview defense
witnesses in preparation for trial; and (3) was ineffective in failing to request that the court hold a
hearing on whether the Fifth Amendment privilege invoked by a witness was valid.
1.

Failure to Investigate

Fluker has a right to have counsel perform an adequate investigation. “[C]ounsel has a
duty to make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary.” Strickland, 466 U.S. at 691. He has no right, however, to have
counsel pursue every evidentiary lead regardless of whether the lead is likely to reveal evidence
beneficial to the defense. Counsel has provided effective assistance if he makes reasonable
decisions to investigate or not investigate certain leads. Even an unreasonable decision not to
investigate will not rise to the level of ineffective assistance if that decision had no effect on the
conviction. See id. at 691-92.
As a preliminary matter, Fluker did not raise his claim of trial counsel’s failure to
investigate the incident (or evidence produced at trial) on appeal to the Connecticut Appellate or
Supreme Courts. Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, Apps. N, P. Thus, that claim of
ineffective assistance of counsel is not exhausted. Even if Fluker had raised the claim on appeal,
however, the Connecticut Superior Court judge addressed the claim and found it was without
merit because Fluker did not sufficiently prove that his counsel’s performance was below the
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objective level of reasonableness that the performance prong of Strickland requires.
In reviewing the failure to investigate claim, the judge noted that if was a general claim
that did not include facts to explain or support it. Because Fluker had not identified the specific
acts or omissions of trial counsel related to his attorney’s failure to investigate, there was
insufficient evidence to conclude that counsel’s performance fell below the objective level of
reasonableness. See Fluker, No. CV11-4004147-S, 2014 WL 4290611, at *4. Thus, the claim of
failure to investigate did not meet the performance prong of the Strickland standard.
Furthermore, Fluker presented no evidence at the habeas trial to show that there was a reasonable
probability that the outcome of the trial would have been different absent counsel’s alleged failure
to investigate the incident [or evidence produced at trial]. Because Fluker did not show that his
counsel’s performance was objectively unreasonable, nor that he was prejudiced by it, the court
concludes that the Superior Court judge’s determination was not an unreasonable application of
Supreme Court law. The petition is denied with respect to the first claim of ineffective assistance
of trial counsel.
2.

Failure to Interview Witnesses

The Second Circuit has held that a decision about whether to call a witness to testify is
usually a matter of trial strategy. See Bierenbaum v. Graham, 607 F.3d 36, 55 (2d Cir. 2010)
(citation omitted). Thus, counsel’s determination “whether to call specific witnesses–- even ones
that might offer exculpatory evidence–- is ordinarily not viewed as a lapse in professional
representation.” United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000) (citations omitted).
Fluker claims that trial counsel failed to interview twelve witnesses prior to the criminal

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trial.3 At the habeas trial, the court heard testimony from six witnesses, Eric Kunze, Derrick R.
Helme, Daniel B. Wilson, Larry W. Sabotta, Lavondi Carter and Paul Winston. The judge
carefully reviewed the testimony of each of the six potential witnesses who were not interviewed
by counsel. See Fluker, No. CV11-4004147-S, 2014 WL 4290611, at *4-5.
The habeas court noted that Fluker claimed that the testimony of those witnesses would
have refuted the allegations that he had been involved in a confrontation with the victim near the
bar before the shooting, and would have shown that he was still at the bar at the time of the
shooting. See id. at *5. The court noted that one witness, Officer Kunze, was called to testify at
trial and did testify. See id., at *4; Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App. S, Trial
Tr. 36-43, Aug. 7, 2008, ECF No. 15-25. Two witnesses, Sabotta and Wilson, were not
interviewed by counsel, but testified at the habeas trial that they did not know the victim or
Fluker on the night in question and could not confirm or deny whether the victim or Fluker was
at the bar. See Fluker, No. CV11-4004147-S, 2014 WL 4290611, at *5; Resp’t’s Mem. Opp’n
Pet. Writ Habeas Corpus, App. T, Habeas Trial Tr. 67-79, Oct. 16, 2013, ECF No. 15-33. Two
witnesses, Carter and Winston, were not interviewed by counsel but offered testimony that was
in direct conflict with Fluker’s testimony that he was at the bar for a period of time on the night
in question. See id. at *5; Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App. T, Habeas Trial
Tr. 10-20; 82-91, Oct. 16, 2013, ECF No. 15-33.

3

Those twelve witnesses were identified in Fluker’s second amended habeas petition as:
Eric Kunze, Derrick R. Helme, Daniel B. Wilson, Larry W. Sabotta, Lavondi Carter, Paul
Wilson/Winston, Otis Grady, Elijah Fluker, John E. Hughley, Savonne K. Mitchell, Ricco Stute
and Jacab Pluoff. See Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App. J, Second Amended
Petition at 3. Paul Wilson was later identified as Paul Winston during his testimony at the
habeas trial. See id. at App. T, Habeas Trial Tr. at 10 Oct. 16, 2013, ECF No. 15-33.
16

The state habeas judge’s factual findings and credibility determinations are “presumed to
be correct,” and Fluker has the “burden of rebutting [that] presumption of correctness by clear
and convincing evidence.” 28 U.S.C. § 2254(e)(1). Furthermore, in reviewing a claim of
ineffective assistance of counsel, I am not permitted to reassess the state habeas judge’s
credibility determinations of witnesses, because I have not heard the testimony or observed the
demeanor of those witnesses. See Shabazz v. Artuz, 336 F.3d 154, 163 (2d Cir. 2003)
(“Credibility determinations are properly within the province of the state court that presided over
the trial and evidentiary hearing.”); Cotto v. Herbert, 331 F.3d 217, 233 (2d Cir. 2003)
(presumption of correctness regarding the factual findings by the trial judge under 28 U.S.C. §
2254(e)(1) is “particularly important when reviewing the trial court’s assessment of witness
credibility”). Fluker has offered no evidence to rebut the habeas judge’s factual or credibility
determinations.
With regard to counsel’s alleged failure to interview witnesses Kunze, Wilson, Sabotta,
Carter and Winston, the judge concluded that, in view of the compelling testimony of the victim
from the criminal trial, there was no reasonable probability that the testimony of any of those
witnesses identified by Fluker at the habeas trial would have resulted in a more favorable
outcome for Fluker. See Fluker, No. CV11-4004147-S, 2014 WL 4290611, at *5. Thus, the
judge determined that Fluker had not met the prejudice prong of the Strickland standard with
respect to the claim that counsel failed to interview five witnesses who testified at the habeas
trial, but did not testify at the criminal trial.
With regard to the sixth witness, Derrick Helme, who also testified at the habeas hearing,
the state habeas judge observed that counsel had in fact interviewed him on multiple occasions
17

prior to the criminal trial and that counsel called him to testify at trial, but he invoked his Fifth
Amendment right not to do so and did not testify. See Resp’t’s Mem. Opp’n Pet. Writ Habeas
Corpus, App. T, Habeas Trial Tr. 47:5-27, 50:2-16; 52:18-26, Oct. 16, 2013, ECF No. 15-33.
Thus, the superior court judge concluded that Fluker’s contention that counsel’s performance
was deficient because she failed to interview Helme before trial was without merit. See id. at *6.
The judge reasonably applied federal law in concluding that the claim that counsel neglected to
interview Helme prior to trial did not meet the performance prong of Strickland.
At the habeas trial, Fluker did not call the other six witnesses, Otis Grady, Elijah Fluker,
John E. Hughley, Savonne K. Mitchell, Ricco Stute and Jacab Pluoff, whom he claimed counsel
had neglected to interview prior to the criminal trial. Nor did he offer any evidence about the
nature of any testimony the six witnesses would have given or how any such testimony would
have impacted the outcome of the trial. Absent any evidence that the six witnesses would have
been available to testify at trial or that their testimony would have relevant or admissible, the
habeas judge held he could not conclude that counsel’s performance was deficient or that any
failure to interview these six witnesses would have prejudiced the outcome of the criminal trial.
That determination by the habeas judge was a reasonable application of the Strickland standards.
For the foregoing reasons the state habeas judge’s determinations that the counsel’s
failure to interview Derrick Helme, Otis Grady, Elijah Fluker, John Hughley, Savonne Mitchell,
Ricco Stute and Jacab Pluoff did not constitute deficient performance and that counsel’s failure
to interview Eric Kunze, Daniel Wilson, Larry Sabotta, Lavondi Carter and Paul Winston was
not prejudicial to the outcome of the criminal trial were not unreasonable applications of the
performance or prejudice prongs of the Strickland standard. Accordingly, the petition is denied
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with respect to the second ineffective assistance of counsel claim.
3.

Failure to Request a Hearing

Fluker claims that the testimony that Helme was going to offer at trial was very important
to his defense. He contends that trial counsel erred in failing to ask the trial judge to hold a
hearing on the validity of Helme’s invocation of his Fifth Amendment right not to testify.
The state habeas judge noted that Fluker’s expert witness had suggested that trial counsel
could have requested the prosecutor to grant or the trial judge to order the prosecutor to grant
Helme immunity from prosecution so that he could testify at trial. See Fluker, No. CV114004147-S, 2014 WL 4290611, at *6. The state habeas court determined that, even if counsel’s
performance was deficient in failing to request a hearing, there was “reasonable likelihood” that
Helme’s testimony would not have changed the outcome of the trial given the testimony of the
other witnesses, including the victim.4 See id. Thus, in reaching that conclusion, the Superior
Court considered counsel’s alleged error in view of all of the evidence that the parties presented
to the judge or jury during the trial. See Strickland, 466 U.S. at 696 (determination of whether
counsel’s ineffectiveness has prejudiced the outcome or result of the criminal trial or proceeding
requires a court to “consider the totality of the evidence before the judge or jury”). Even if
there was a possibility that Helme’s testimony might have affected the outcome of the trial,
Fluker did not demonstrate that it would have changed the outcome. See Harrington v. Richter,
562 U.S. 86, 112 (2011) (“The likelihood of a different result must be substantial, not just

4

The judge noted in a footnote that although he need not reach or fully analyze the
performance component of the claim, he determined that “it was highly unlikely that defense
counsel could have been found deficient for not raising the issue” because there was no “truly
viable challenge that the [prosecutor’s] threat to prosecute Mr. Helme . . . [was] selective or
19

conceivable.”).
The Connecticut Superior judge reasonably decided that the claim of counsel’s failure to
request a hearing to determine the validity of Helme’s invocation of his Fifth Amendment right
to decline to testify at the criminal trial did not meet the prejudice prong of the Strickland. See
Harrington, 562 U.S. at 101 (“The pivotal question is whether the state court's application of the
Strickland standard was unreasonable.”). Accordingly, the petition for writ of habeas corpus is
denied with respect to the third claim of ineffective assistance of counsel.
C.

Prosecutorial Misconduct

Fluker claims that the prosecutor engaged in misconduct when, during the trial, he
threatened to prosecute a witness, Derrick Helme, who was scheduled to testify on Fluker’s
behalf. As indicated above, Helme subsequently took the stand, but invoked his Fifth
Amendment privilege not to testify. Fluker argues that the prosecutor violated his due process
right to a fair trial by preventing him from offering Helme’s testimony.
Prosecutorial misconduct only gives rise to a constitutional violation if the misconduct
“so infected the trial with unfairness as to make the resulting conviction a denial of due process.”
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). In evaluating a claim of prosecutorial
misconduct, the court considers the prosecutor’s conduct in the context of the entire trial “to
determine whether the prosecutor’s behavior amounted to prejudicial error.” United States v.
Young, 470 U.S. 1, 12 (1985). The court must consider how much of the perceived misconduct
was invited by the defense, whether the trial court gave any curative jury instructions and the
strength of the State’s case against the defendant. Darden, 477 U.S. at 181-82.

tactical.” Id. at *6 n.7.
20

Fluker raised his claim of prosecutorial misconduct in the second amended habeas petition
filed in state court. In its review of the claim, the Connecticut Superior Court applied a state case
with a holding that mirrored the federal law applicable to prosecutorial misconduct claims. See
Fluker, No. CV11-4004147-S, 2014 WL 4290611, at *7. Because the Connecticut Superior
Court judge applied the correct legal principles, the decision is not contrary to clearly established
federal law. See Early v. Packer, 537 U.S. 3, 8 (2002) (state court need not be aware of nor cite
relevant Supreme Court cases as long as the reasoning and decision do not contradict applicable
law). Thus, the present issue is whether the analysis of the Connecticut Superior Court judge
constituted an unreasonable application of federal law.
As indicated above, the habeas judge heard testimony from Helme during the trial held on
October 16, 2013. See Fluker, No. CV11-4004147-S, 2014 WL 4290611, at *6; Resp’t’s Mem.
Opp’n Pet. Writ Habeas Corpus, App. T, Habeas Trial Tr. 21-44, Oct. 16, 2013, ECF No. 15-33.
In addition, the judge heard testimony from Fluker’s expert witness, Attorney Jeffrey Kastenband.
See Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App. T, Habeas Trial Tr. 3-37, Apr. 25,
2014, ECF No. 15-34.
The habeas judge observed that the prosecutor’s information regarding the possibility that
Helme would testify falsely at trial appeared to be credible. See Fluker, No. CV11-4004147-S,
2014 WL 4290611, at *6 n.7 & *7. Though Helme was expected to testify falsely, the prosecutor
indicated that a hindering or accessory charge would only be brought against Helme if Fluker was
found guilty. See id. at *7. The Superior Court found that the purpose of informing Fluker’s
attorney, counsel for Helme, and the court of the possibility of pursuing a charge against Helme
was to avert a perjurious statement by Helme rather than to gain an advantage by forcing Helme
21

to invoke his Fifth Amendment right not to testify. See id. In fact, Fluker’s attorney testified that
the prosecutor had affirmatively indicated that he would prosecute Helme if he testified falsely.
See Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App. T, Habeas Trial Tr. 50:5-13, Oct. 16,
2013, ECF No. 15-33. The habeas judge noted that “this court can find nothing improper,
overreaching or abusive about the state's exercise of its prosecutorial powers nor can it be said
that any part of the basis for the threat of prosecution was to provide the state with an advantage
at trial.” Fluker, 2014 WL 4290611 at *7. For those reasons, the judge determined that the actions
of the prosecutor did not rise to the level of improper, overreaching or abusive conduct. Id.
Nor did the judge find that the testimony Helme stated he would have offered at trial
would have changed the outcome of the trial. See id. at *6 & n.8. Helme testified that he would
not have offered Fluker an alibi for the time of the shooting and Helme’s testimony supported
rather than refuted the victim’s description of the circumstances surrounding his being shot by
Fluker. See id.; Resp’t’s Mem. Opp’n Pet. Writ Habeas Corpus, App. T, Habeas Trial Tr. 38:2027; 39:1-10, Oct. 16, 2013, ECF No. 15-33. Thus, the state habeas judge concluded that the
prosecutor had not deprived Fluker of his due process right to a fair trial by threatening to
prosecute Helme if he testified falsely at trial. See Fluker, No. CV11-4004147-S, 2014 WL
4290611, at *7.
The Connecticut Superior Court did not unreasonably apply United States Supreme Court
law in reaching its conclusions that the conduct of the prosecutor was not improper and that the
conduct did not affect the outcome of the trial or deprive Fluker of a fair trial. The petition for
writ of habeas corpus is denied with respect to this ground.

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V.

Conclusion
The Petition for Writ of Habeas Corpus [ECF No. 1] is DENIED. The Clerk is directed

to enter judgment in favor of the respondent and close this case.
Fluker has not shown that he was denied a constitutionally or federally protected right.
Thus, any appeal from this order would not be taken in good faith and a certificate of
appealability will not issue.
SO ORDERED at Bridgeport, Connecticut this 14th day of August 2018.

/s/ STEFAN R. UNDERHILL
Stefan R. Underhill
United States District Judge

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