Schiavo v. Erfe

Filing 29

ORDER granting 20 Motion to Dismiss. The Court dismisses the petition without prejudice to re-opening. The Clerk of the Court is directed to enter a judgment of dismissal and close this case. Mr. Schiavo may file a motion to re-open the case and attach an amended petition upon completion of the exhaustion process. Alternatively, he may move to re-open the case and attach an amended petition withdrawing any unexhausted claims. Signed by Judge Victor A. Bolden on 6/21/2018. (McDonough, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

RONALD A. SCHIAVO,
Petitioner,
v.
No. 3:17-cv-2108 (VAB)
SCOTT ERFE,
Respondent.

RULING ON RESPONDENT’S MOTION TO DISMISS THE
PETITION FOR WRIT OF HABEAS CORPUS
On December 19, 2017, Ronald A. Schiavo (“Petitioner”), filed a petition for writ of
habeas corpus under 28 U.S.C. § 2254, challenging his state conviction for first-degree
manslaughter with a firearm, in violation of Conn. Gen. Stat. § 53a-55a(a), and arguing that, in
the trial court, there were erroneous jury instructions, prosecutorial misconduct, and ineffective
assistance of counsel. Pet., ECF No. 1.
Warden Scott Erfe (“Respondent”) has moved to dismiss the petition, arguing that Mr.
Schiavo failed to exhaust his state court remedies with respect to all of his claims. Resp’t Mot. to
Dismiss, ECF No. 20. He argues that all but one of Mr. Schiavo’s seven claims of prosecutorial
impropriety have not been exhausted by the state’s highest court. Mem. of Law in Supp. of
Resp’t Mot. to Dismiss, ECF No. 20-1.
In response, Mr. Schiavo argues that he complied with the exhaustion requirement and
any failure to do so was the fault of the state courts. Pet’r Resp. to Resp’t Mot. to Dismiss at 1–
13 (“Pet’r Resp.”), ECF No. 28. He also contends that any attempt to exhaust his claims further

would be futile. Id. at 13–17. Alternatively, Mr. Schiavo argues that if the Court agrees with Mr.
Erfe, it should permit his petition to proceed on the exhausted claims. Id. at 18.
For the reasons stated below, the Court agrees that Mr. Schiavo has failed to fully exhaust
his state court remedies with respect to all claims in his petition. Defendant’s motion to dismiss
therefore is GRANTED and the petition is DISMISSED without prejudice.
I.

FACTUAL AND PROCEDURAL BACKGROUND
On November 18, 2002, a jury convicted Mr. Schiavo of first-degree manslaughter with a

firearm. Pet. at 2.
Mr. Schiavo appealed, arguing that the trial court erred because “(1) the jury charge was
improper and (2) he was deprived of a fair trial due to prosecutorial misconduct.” State v.
Schiavo, 93 Conn. App. 290, 292 (2006). He argued that the jury instructions were improper
because the Court “improperly instructed the jury on the (1) return of property exception to selfdefense and (2) duty to retreat exception to self-defense.” Id. at 295. He also claimed that
prosecutorial impropriety deprived him of a fair trial. Id. at 300. The specific instances of
impropriety alleged on direct appeal included the following: (1) remarks at the beginning of
summation, asking “how . . . we measure a life?” which appealed to the jury’s emotions; and (2)
cross-examination of Mr. Schiavo which implied that he was changing his testimony from that
given at his first trial. Id. at 303–06.
The Connecticut Appellate Court rejected Mr. Schiavo’s claims and affirmed the trial
court’s judgment. Schiavo, 93 Conn. App. at 295–308. On March 14, 2006, the Connecticut
Supreme Court denied his petition for certification to review the Appellate Court’s decision.
State v. Schiavo, 277 Conn. 923 (2006).

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While his direct appeal was pending, Mr. Schiavo filed a petition for a new trial, claiming
that the State of Connecticut (“State”) violated the rules of discovery by failing to disclose
correspondence from him to third parties, correspondence confiscated by Department of
Correction officials. State v. Schiavo, No. CR00288078, 2003 WL 1994141 (Conn. Super. Ct.
Feb. 19, 2003). The Superior Court rejected the petition on the merits, id., and Mr. Schiavo did
not appeal the decision.
On May 11, 2006, Mr. Schiavo filed his first petition for writ of habeas corpus in state
court. Record from First State Habeas at 4, Resp’t Ex. I, ECF No. 20-10. He claimed ineffective
assistance of counsel because counsel failed to call an expert in the field of crime scene
reconstruction to challenge the State’s forensic evidence, as well as other defense witnesses and
failed to file the petition for new trial properly on the discovery issue. Id. at 7–8. He also reasserted the prosecutorial impropriety claim he raised in his petition for a new trial and raised a
new claim that the prosecutor improperly “intimidated and threatened potential witnesses
including John Cromer, Amy DeMayo, and Carla Barbera.” Id. at 18. The state habeas court
denied the petition in a written memorandum of decision, finding no merit to any of Mr.
Schiavo’s claims. Schiavo v. Warden, No. TSRCV0604001086S, 2012 WL 4122911 (Conn.
Super. Ct. Sep. 20, 2012).
On appeal from the state habeas court’s decision, Mr. Schiavo raised only one claim: that
the habeas court erred in finding that trial counsel was not ineffective for failing to procure a
crime scene reconstruction expert. Pet’r Br. from First Habeas Case at 3, ECF No. 20-11. The
Connecticut Appellate Court affirmed the habeas court’s judgment in a per curiam decision.
Schiavo v. Comm’r of Corr., 148 Conn. App. 905 (2014). The Connecticut Supreme Court

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denied Mr. Schiavo’s petition for certification to appeal the Appellate Court’s decision. Schiavo
v. Comm’r of Corr., 311 Conn. 946 (2014).
While his first state habeas proceeding was pending on appeal, Mr. Schiavo filed a
second petition for writ of habeas corpus in state court. Schiavo v. Warden, No. TSR-CV124004954-S (Conn. Super. Ct. Sep. 10, 2012), http://civilinquiry.jud.ct.gov/CaseDetail/PublicCaseDetail.aspx?DocketNo=TSRCV124004954S. In the second petition, he claimed
that counsel from his first state habeas proceeding was ineffective for (1) failing to raise a claim
of ineffective assistance of trial counsel based on the failure to call John Cromer as a witness for
the defense, and (2) failing to provide the crime scene expert with sufficient information to
bolster his credibility during the first habeas trial. See Schiavo v. Warden, No.
TSRCV124004954S, 2015 WL 1867887 (Conn. Super. Ct. Mar. 31, 2015). The state habeas
court denied the second petition, finding no deficient performance on the part of first habeas
counsel. Id. Thereafter, the Connecticut Appellate Court issued a per curiam decision denying
Mr. Schiavo’s appeal from the second habeas court decision. Schiavo v. Comm’r of Corr., 170
Conn. App. 901 (2016). On March 15, 2017, the Connecticut Supreme Court denied the petition
for certification to appeal the Appellate Court’s decision. Schiavo v. Comm’r of Corr., 325 Conn.
903 (2017).
Approximately nine months later, Mr. Schiavo filed his § 2254 petition in this Court.
II.

STANDARD OF REVIEW
A petition for writ of habeas corpus challenging a state court conviction under § 2254

will be considered, 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 this Court. See Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In

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conducting habeas review, a federal court is limited to deciding whether a conviction violated the
Constitution, laws or treaties of the United States.”). The petitioner must establish that the state
court’s adjudication of the claim 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). Clearly established federal law is found in holdings, not dicta, of the United
States Supreme Court at the time of the state court’s decision. See Howes v. Fields, 565 U.S.
499, 505 (2012); Carey v. Musladin, 549 U.S. 70, 74 (2006). A decision is “contrary to” clearly
established federal law when it 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 United States Supreme
Court law when it has correctly identified the 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).
A prerequisite to federal habeas corpus relief under 28 U.S.C. § 2254 is the exhaustion of
available state court remedies. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The Second
Circuit requires the court to conduct a two-part inquiry to determine exhaustion. First, the
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 used all available means to secure appellate
review of his claims. See Galdamez v. Keane, 394 F.3d 68, 73–74 (2d Cir. 2005).

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Failure to exhaust state court remedies may be excused only if “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.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam); see 28 U.S.C. §
2254(b)(1)(B). The petitioner may not, however, simply wait until appellate remedies are no
longer available and then argue that the claim is exhausted. See Galdamez, 394 F.3d at 72–74.
The Second Circuit has held that a court, when confronted with a “mixed petition”
containing both exhausted and unexhausted habeas claims, has discretion either to dismiss the
petition in its entirety or dismiss only the unexhausted claims and stay the balance of the petition.
Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001). In some cases, as in Zarvela, a stay of the petition
is more appropriate because “an outright dismissal ‘could jeopardize the timeliness of a collateral
attack.’” Id. at 380 (quoting Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000)); see also
Duncan v. Walker, 533 U.S. 167, 181 (2001) (pendency of first federal habeas petition did not
toll limitations period under 28 U.S.C. § 2254(d)(2)).
More recently, however, the United States Supreme Court held that staying a mixed
petition “decreas[es] a petitioner’s incentive to exhaust all his claims in state court prior to filing
his federal petition,” and permits a petitioner to delay resolution of his federal proceedings.
Rhines v. Weber, 544 U.S. 269, 277 (2005). The Court therefore cautioned that “stay and
abeyance is only appropriate when the district court determines there was good cause for the
petitioner’s failure to exhaust his claims first in state court.” Id.
As an alternative to staying the petition, the district court may dismiss the petition in its
entirety without prejudice to re-opening after completing the exhaustion process. See Fine v.
Erfe, No. 3:17-cv-531 (AWT), 2017 WL 1362682, at *4 (D. Conn. Apr. 11, 2017) (“Rather than
staying this case, the court will dismiss without prejudice to reopening the case after completion

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of the exhaustion process.”). This approach provides the same protection as an order staying the
petition and ensures that the new petition will not be procedurally barred. Id.; see also Abrahams
v. Comm’r of Corr., No. 3:10-cv-519 (MRK), 2010 WL 5093113, at *5 (D. Conn. Dec. 8, 2010)
(dismissing mixed petition without prejudice for failure to exhaust is not adjudication on merits
that renders subsequent petition successive).
III.

DISCUSSION
In this petition, Mr. Schiavo raises three issues: (1) that trial court error in instructing the

jury on self-defense, particularly the return of property and duty to retreat exceptions; (2)
prosecutorial misconduct; and (3) ineffective assistance of trial counsel based on the failure to
call a crime scene expert. Pet. at 9–80. There is no dispute that the first and third grounds for
relief have been fully exhausted in state court.1
With respect to the second ground for relief, the petition alleges seven instances of
prosecutorial impropriety: (1) failure to disclose correspondence obtained by the Department of
Correction before sentencing; (2) improper questioning of Carla Barbera about the gun used
during the crime; (3) improper cross-examination of Arllin Collier; (4) improper crossexamination of Mr. Schiavo to damage his credibility; (5) improper argument during summation
on the issue of self-defense; (6) improper attempt to vouch for the state’s witnesses’ credibility
during summation; and (7) improper appeal to the jury’s emotions during summation. Pet. at 24–
43.

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Mr. Schiavo raised the instructional error claims on direct appeal, which the Connecticut
Appellate Court addressed. Schiavo, 93 Conn. App. at 295–300. He raised the ineffective
assistance of trial counsel claim in his first state habeas proceeding and on appeal from that
proceeding. Schiavo, 148 Conn. App. 905.
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Mr. Schiavo raised the first prosecutorial impropriety issue in his petition for new trial
and in his first state habeas proceeding. Schiavo, 2003 WL 1994141; Schiavo, 2012 WL
4122911. He did not, however, appeal the denial of his petition for new trial, and his appeal from
his first state habeas proceeding did not include a claim regarding the pre-sentence discovery
issue. To properly exhaust a claim in state court, Mr. Schiavo must present the claim to the
highest state court for adjudication. See Galdamez, 394 F.3d at 73–74. His failure to (1) appeal
the state court decision denying his petition for new trial or (2) include on appeal from his first
state habeas proceeding a claim that the prosecutor violated his right to a fair trial by failing to
disclose the correspondence obtained by the Department of Correction therefore renders this
claim unexhausted.
The second and third claims of prosecutorial impropriety were not raised on direct
appeal. Although in his first state habeas proceeding, Mr. Schiavo alleged that the prosecutor
“intimidated and threatened potential witnesses including John Cromer, Amy DeMayo, and
Carla Barbera,” Resp’t Ex. I at 18, he did not address the specific errors regarding the questions
the prosecutor posed to Barbera and Collier. Even if he did, he failed to raise either of these
claims on appeal from his first state habeas proceeding. The second and third prosecutorial
claims therefore are also unexhausted.
Mr. Erfe does not dispute that Mr. Schiavo fully exhausted the impropriety claim
regarding the prosecutor’s cross-examination of him during trial. The Court agrees that Mr.
Schiavo exhausted this claim on direct appeal from his conviction. See Schiavo, 93 Conn. App.
at 303–06.
The fifth and sixth impropriety claims have never been raised in any of Mr. Schiavo’s
post-conviction state court proceedings. Although he raised claims of prosecutorial impropriety

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in some of those proceedings, none concerned the prosecutor’s arguments during summation on
self-defense or the credibility of her own witnesses. The fifth and sixth impropriety claims
therefore are unexhausted.
As for the seventh impropriety claim—that the prosecutor attempted to appeal to the
jury’s passions and emotions—Mr. Schiavo relies on four different portions of the prosecutor’s
summation: (a) the beginning of the prosecutor’s summation where she asks the jury, “How do
we measure a life?”; (b) an argument that Mr. Schiavo was “bragging” about killing the victim;
(c) commenting on Mr. Schiavo’s history with drugs; and (d) commenting on Mr. Schiavo’s
possession of a gun. Pet. at 41–42. Mr. Schiavo addressed the first portion of the prosecutor’s
summation on direct appeal. See Resp’t Ex. B at 41–42; Schiavo, 93 Conn. App. at 903–04. He
did not, however, address any of the three remaining arguments on direct appeal, in his petition
for new trial, or in either of his two state habeas proceedings. The seventh impropriety claim
therefore is exhausted, to the extent it challenges the prosecutor’s remarks at the beginning of her
closing argument asking about “[h]ow [to] measure a life?,” but is unexhausted with respect to
the other three portions of summation addressed in the instant petition.
The Court has considered Mr. Schiavo’s arguments in opposition to the motion to
dismiss, but disagrees with them. First, he argues that he complied with exhaustion simply by
raising a prosecutorial impropriety claim on direct appeal and that Mr. Erfe improperly divided
his impropriety claim into seven sub-claims. Pet’r Resp. at 4. It is well-established, however,
that, to properly exhaust a claim, a petitioner must present the factual and legal bases of the
claim to the highest state court for adjudication. See Galdamez, 394 F.3d at 73–74; Daye v.
Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc); see also Ellman v. Davis, 42 F.3d
144, 147 (2d Cir. 1994) (“petitioner’s claims must be fairly presented so that the state has the

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opportunity to correct any alleged constitutional violations”). The prosecution did not have an
opportunity to respond to, and the state court did not have an opportunity to rule on, the majority
of Mr. Schiavo’s impropriety claims. Furthermore, the petition, and not Mr. Erfe’s motion,
presents seven separate claims of prosecutorial impropriety. Pet. at 24–43.
Mr. Schiavo also appears to argue that Connecticut’s standard of review of prosecutorial
impropriety claims, which requires the reviewing court to view the alleged impropriety “within
the context of the entire trial,” Schiavo, 93 Conn. App. at 301 (quoting State v. Spencer, 275
Conn. 171, 177–79 (2005)), creates an obligation on the part of the state courts to review the
entire record and identify all potential instances of prosecutorial impropriety. Pet’r Resp. at 5–12.
He misconstrues the standard. The standard of review is how the court reviews each claim
presented by the claimant, which on direct appeal was Mr. Schiavo. It is the duty of the appellant
on direct appeal and the petitioner in a habeas corpus proceeding to present all of the claims to
the court. See Jordan v. Lefevre, 206 F.3d 196, 198–99 (2d Cir. 2000) (“Arguing a single claim
at length and making only passing reference to possible other claims to be found in the attached
briefs does not fairly apprise the state court of those remaining claims.”). Mr. Schiavo’s
exhaustion argument thus fails.
Finally, Mr. Schiavo argues that it would be futile to return to state court to raise his
unexhausted prosecutorial impropriety claims. Pet’r Resp. at 12–20. The Court disagrees. Mr.
Schiavo could petition the state court for a writ of habeas corpus on the grounds that appellate
counsel was ineffective to raise these additional claims of prosecutorial impropriety on direct
appeal or that the first habeas counsel was ineffective for failing to raise a claim of ineffective
assistance of trial counsel, based on the failure to object and/or move for a new trial because of
these improprieties. Although Mr. Schiavo may be correct that the state court may reject such a

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petition as procedurally barred, the Court will not speculate on how the state court will decide
such claims.
IV.

CONCLUSION
Mr. Erfe’s motion to dismiss is GRANTED.
The Court concludes that Mr. Schiavo has failed to exhaust all of the claims in his § 2254

petition. The Court therefore DISMISSES the petition without prejudice subject to re-opening
after Mr. Schiavo has exhausted his claims.
Alternatively, Mr. Schiavo may waive all unexhausted claims in his petition, which
include prosecutorial impropriety claims 1, 2, 3, 5, 6, 7(b), 7(c), and 7(d), as explained above, by
filing a motion to re-open the case with an attached amended petition raising only the exhausted
claims. Mr. Schiavo is advised, however, that doing so may prevent him from raising
unexhausted claims in any successive petition filed in this Court.
The Clerk of the Court is directed to enter a judgment of dismissal and close this case.
Mr. Schiavo may file a motion to re-open the case and attach an amended petition upon
completion of the exhaustion process. Alternatively, he may move to re-open the case and attach
an amended petition withdrawing any unexhausted claims.
SO ORDERED at Bridgeport, Connecticut this 21st day of June, 2018.

/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

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