Damato v. Murphy

Page 143

641 F.Supp.2d 143

Gary DAMATO v. Warden MURPHY.

No. 3:08cv855 (SRU).

United States District Court, D. Connecticut.

August 12, 2009.

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Gary Damato, Newtown, CT, pro se.

Jo Anne Sulik, Michael E. O'Hare, Chief State Attorney Office, Rocky Hill, CT, for Murphy Warden.

RULING ON PETITION FOR WRIT OF HABEAS CORPUS AND PETITIONER'S MOTION FOR SUMMARY JUDGMENT

STEFAN R. UNDERHILL, District Judge.

Gary Damato is currently confined at the Garner Correctional Institution in Newtown, Connecticut. He brings this action for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to challenge his 2004 conviction for inciting injury, attempt to assault a prosecutor and attempted murder. The respondent has filed a memorandum in opposition to the petition and Damato has filed a motion for summary judgment seeking the relief requested in his petition. For the reasons that follow, the petition and Damato's motion for summary judgment are denied.

I. Standard of Review

A federal court will entertain a petition for a writ of habeas corpus challenging a state court conviction only if the petitioner claims that his custody violates the United States Constitution or federal law. 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. Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).

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 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). For purposes of the habeas statute, federal law defined by the Supreme Court "may be either a generalized standard enunciated in the Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 537 U.S. 909, 123 S.Ct. 251, 154 L.Ed.2d 187 (2002). Clearly established federal law is found in holdings, not dicta, of the Supreme Court at the time of the relevant state court decision. Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006).

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 has decided a case on materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (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. The state court decision must be more than incorrect; it also must be objectively unreasonable, "a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007).

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. 28 U.S.C. § 2254(e)(1); Boyette v. Lefevre, 246 F.3d 76, 88-89 (2d Cir.2001) (noting that deference or presumption of correctness is afforded state court findings where state court has adjudicated constitutional claims on the merits). Because collateral review of a conviction applies a different standard than the direct appeal, an error that may have supported reversal on direct appeal will not necessarily be sufficient to grant a habeas petition. Brecht v. Abrahamson, 507 U.S. 619, 634, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

II. Procedural History

On September 30, 2004, Damato was convicted by a jury of inciting injury to persons, attempted assault on a prosecutor and attempted murder. On October 25, 2005, he was sentenced to a term of imprisonment of twenty-one years.

Damato appealed his conviction on the same seven grounds raised in this petition. See State v. Damato, 105 Conn.App. 335, 937 A.2d 1232 (2008). (Am. Application for a Writ of Habeas Corpus, doc. # 16; hereinafter, "Petition"). The Connecticut Appellate Court affirmed the conviction, and Damato sought certification from the Connecticut Supreme Court. On April 21, 2008, the Connecticut Supreme Court denied certification. See State v. Damato, 286 Conn. 920, 949 A.2d 481 (2008).

In December 2005, Damato filed a petition for a writ of habeas corpus in state court, alleging ineffective assistance of trial counsel. The petition was denied. See Damato v. Warden, No. TSR CV05 4000842-S, 2007 WL 2938382 (Conn.Super.Ct. Sept. 20, 2007), appended to Application for a Writ of Habeas Corpus, doc. # 1, as Ex. B. Damato does not raise any issues from the state habeas action in this case.

III. Factual Background

The Connecticut Appellate Court determined that the jury reasonably could have found the following facts. Assistant State's Attorney Christopher Parakilas prosecuted Damato's son in a narcotics case and also prosecuted Damato in an assault case. Damato plotted to assault or murder Parakilas, and took several steps in furtherance of a plan to do so. He solicited his friend, Cord Campbell, to find a gun and to hire another individual to kill Parakilas for $5000. Damato followed, or had someone follow, Parakilas to a restaurant, "reconnoitered Parakilas's place of residence," and provided detailed information to Campbell. On November 14, 2002, Tommy Carbone, an acquaintance of Damato and Damato's son, told the state police that he had overheard Damato discussing a "hit" on Parakilas over the telephone. In the following days, Carbone engaged Damato in recorded conversations regarding Parakilas. A warrant was issued and Damato was arrested on November 19, 2002. State v. Damato, 105 Conn.App. at 338, 937 A.2d 1232.

IV. Discussion

Damato asserts seven grounds for relief: (1) there was insufficient evidence to support his convictions on the charges of attempted assault of a prosecutor and attempted murder, (2) there was insufficient evidence to support his conviction on the charge of inciting injury to persons, (3) the trial court's misstatement of the law on the charge of inciting injury to persons deprived Damato of due process and violated his right to freedom of speech, (4) the admission of evidence of prior misconduct deprived Damato of a fair trial, (5) the trial court's failure to give a specific jury instruction regarding the credibility of a jailhouse informant deprived Damato of due process, (6) the trial court improperly admitted rebuttal testimony regarding statements made by Damato, and (7) the trial court deprived Damato of a fair trial by admitting repeated referenced to Damato's pending and unrelated assault charge. (See Petition 4, 10.)

A. Insufficient Evidence on Charges of Attempted Assault and Attempted Murder

Damato's first ground for relief is that the state presented insufficient evidence to support his conviction for attempted assault and attempted murder. "[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Federal courts, however, do not relitigate state trials and make independent determinations of guilt or innocence. See Herrera v. Collins, 506 U.S. 390, 401-02, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). When a petitioner challenges the sufficiency of the evidence used to convict him, the court must view the evidence in the light most favorable to the prosecution and determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). In discussing this standard, the Supreme Court has emphasized "the deference owed the trier of fact and, correspondingly, the sharply limited nature of constitutional sufficiency [of the evidence] review." Wright v. West, 505 U.S. 277, 296, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992). The Connecticut Appellate Court cited and applied this standard in reviewing Damato's sufficiency of the evidence claims. See Damato, 105 Conn.App. at 340-47, 937 A.2d 1232. Thus, the state decision was not contrary to established Supreme Court law.

To obtain a conviction of attempt to commit murder or attempt to assault a prosecutor, the state was required to prove as an element that Damato intentionally committed a "substantial step" in a course of conduct that would result in commission of the crime. Conn. Gen.Stat. § 53a-49(a)(2), § 53a-54a, § 53a-167d(a). See also, e.g., State v. Wells, 100 Conn.App. 337, 343-44, 917 A.2d 1008, cert. denied, 282 Conn. 919, 925 A.2d 1102 (2007) (identifying the elements of attempt to commit assault). Damato argued before the Connecticut Appellate Court that the state failed to present sufficient evidence to establish that he took a "substantial step" toward the commission of murder or assault of the prosecutor. Damato argued that the evidence did not support that he "followed Parakilas and reconnoitered Parakilas' residence." Damato, 105 Conn.App. at 339, 937 A.2d 1232.

At trial, the prosecution presented the following evidence. Damato was upset with Parakilas and thought Parakilas was harassing his son. (Resp't Mem. of Law in Opp'n, doc. # 64, App. H, Tr. 09/20/04 at 612-13.) Damato's friend Cord Campbell, a convicted felon,...