Marshall v. Berone

CHARLES MARSHALL, Petitioner, v. CHRISTINE BERONE, et al., Respondents.

CIVIL CASE NO. 3:19cv1509 (JCH)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JULY 14, 2020

RULING ON MOTION TO DISMISS

The petitioner, Charles Marshall, a prisoner currently incarcerated at MacDougall-Walker Correctional Institution, filed his Petition for a Writ of Habeas Corpus on September 25, 2019, pro se, pursuant to 28 U.S.C. § 2254.

The petitioner challenges his state conviction, following a trial to the court, of one count of burglary in the first degree in violation of Connecticut General Statutes § 53a-101(a)(1); one count of burglary in the first degree in violation of Connecticut General Statutes § 53a-101(a)(2); two counts of burglary in the second degree in violation of Connecticut General Statutes § 53a-102(a)(2); and one count of assault in the first degree in violation of Connecticut General Statutes § 53a-59(a)(1)¹. See Petition (Doc. No. 1); State v. Marshall, 132 Conn. App. 718, 720-21 (2011), cert. denied, 303 Conn. 933 (2012). On March 19, 2010, the petitioner was sentenced to a total effective sentence of sixty-two and one-half years of incarceration, although this sentence was later modified on January 22, 2019, by the Sentence Review Division of the ConnecticutSuperior Court to a sentence of fifty-two and one-half years' incarceration.² See State v. Marshall, No. UWYCR04204586, 2019 WL 2440209, at *1-3 (Conn. Super. Ct. Jan. 22, 2019) (reviewing petitioner's sentence and remanding to the Superior Court for resentencing).

Respondents have filed a Motion to Dismiss, arguing that two out of four grounds for relief have not been exhausted in accordance with section 2254(b)(1)(A). (Doc. No. 14 at 2) (citing 28 U.S.C. § 2254(b)(1)(A)). The respondents maintain that the Petition constitutes a "mixed petition", which should be dismissed in its entirety. Id. In response, the petitioner admits that he has not fully exhausted all of his grounds for relief, and he seeks to withdraw all of his claims for relief in his Petition so that he may fully exhaust his state court remedies. After consideration of the Petition, respondents' arguments for dismissal, and the petitioner's response thereto, the court concludes that the Petition should be dismissed without prejudice.

I. PROCEDURAL BACKGROUND

The court takes judicial notice and incorporates herein the facts underlying petitioner's arrest as set forth by the Connecticut Appellate Court relevant to the petitioner's direct appeal. See Marshall, 132 Conn. App. at 721. In considering the petitioner's state habeas petition, the Connecticut Superior Court summarized the following procedural background:

The petitioner was the defendant in several different criminal cases in the judicial district of Waterbury. In docket number CR07-363203 ("assault case"), the petitioner was charged in a substitute information with one count of burglary in the first degree in violation of General Statutes § 53a-101(a)(1), one count of burglary in the first degree in violation of General Statutes § 53a-101(a)(2), one count burglary in the second degree in violation of General Statutes § 53a-102(a)(2), and one count of assault in the first degree in violation of General Statutes § 53a-59(a)(1). The petitioner was also charged in an amended Part B information with being a persistent serious felony offender in violation of General Statutes § 53a-40(c). In docket number CR08-368369, the petitioner was charged in a substitute information with one count of burglary in the second degree in violation of General Statutes § 53a-102(a)(2). The petitioner was also charged in an amended Part B information with being a persistent serious felony offender in violation of General Statutes § 53a-40(c). After the state successfully sought the consolidation of these two dockets, the petitioner waived his right to a jury trial and opted to have the consolidated matters tried to the court.

The consolidated cases were tried to the court, Schuman, J., who determined that the petitioner had not acted in self-defense and convicted the petitioner on all counts. The court also found the petitioner guilty of two separately charged counts of violation of probation and revoked his probation. The petitioner entered guilty pleas to the two charges of being a persistent serious felony offender. The court ordered a presentence investigation (PSI) report and continued the matter for sentencing. On March 19, 2010, the court sentenced the petitioner to a total effective sentence of sixty-two and one-half years of incarceration.

Marshall v. Warden, No. CV134005144S, 2015 WL 9809753, at *1 (Conn. Super. Ct. Dec. 10, 2015), aff'd sub nom. Marshall v. Comm'r of Corr., 184 Conn. App. 709, 196 A.3d 388 (2018). At his trial, the petitioner was represented by appointed counsel Dennis Harrigan. Id.

The petitioner, who was then represented by different appointed counsel, Special Public Defender Kirstin B. Coffin, filed a direct appeal of the judgment of conviction to the Connecticut Appellate Court. See Marshall, 132 Conn. App. at 720. On appeal, the petitioner "contend[ed] that: (1) there was insufficient evidence (a) to establish that he was guilty of assault because the state failed to disprove his claim of self-defense, (b) to convicthim of burglary in the first degree for the burglary that occurred at 103 Waterville Street, and (c) to establish that he was the individual who committed the burglaries at 29 and 103 Waterville Street; and (2) the trial court abused its discretion in finding that he violated his probation." Id. at 720-21. In a decision dated December 27, 2011, the Connecticut Appellate Court affirmed the judgment of the trial court. Id. at 720.

The petitioner sought certification to the Connecticut Supreme Court, which denied certification on February 3, 2012. State v. Marshall, 303 Conn. 933 (2012). The petitioner did not petition for a writ of certiorari in the United States Supreme Court.

Commencing in March 2012, the petitioner filed several pro se petitions for writ of habeas corpus that all challenged his convictions; the Connecticut Superior Court subsequently consolidated his petitions into one case.³ See Marshall, 2015 WL 9809753 at *1.

On September 4, 2015, Attorney Evan K. Buchberger of the Day Law Firm filed a fifth amended petition, which became the operative petition, raising claims in five counts: (1) the petitioner's right to due process was violated: (2) the petitioner's right to effective assistance of counsel was violated by an actual conflict of interest; (3) the petitioner's right to effective assistance of counsel was violated; (4) the petitioner's right to effective assistance of appellate counsel was violated; and (5) the petitioner's right to equal protection was violated. Marshall, 2015 WL 9809753 at *1. In his third count, the petitioner asserted that Attorney Harrigan was ineffective because he failed to: (1)oppose consolidation of multiple dockets; (2) challenge identifications based on unduly suggestive photo arrays and their admission into evidence; (3) raise and present an alibi defense (specifically, the testimony of Robert Figueroa); (4) present the eye-witness testimony of James Batista (supporting the claim of self-defense); and (5) object to the court's exclusion of the petitioner from the in-chambers conference to discuss a possible conflict of interest. See Fifth Amended Petition, Respondents' Appendix T (Doc. No. 14-20 at 46-47); Marshall, 2015 WL 9809753 at *5 (noting "the petitioner's third and primary count alleges that Attorney Harrigan was ineffective in five ways in that he failed to: (1) oppose consolidation of multiple dockets; (2) challenge identifications based on unduly suggestive photo arrays and their admission into evidence; and (3) object to the court's exclusion of the petitioner from the in-chambers conference to discuss a possible conflict of interest.").

After briefing and hearing testimony from the petitioner's former defense counsel, Attorney Harrigan, the Connecticut Superior Court issued a written decision, dated December 10, 2015, denying the fifth amended petition for habeas corpus relief in its entirety. Marshall, 2015 WL 9809753 at *1.

The petitioner appealed this denial to the Connecticut Appellate Court on the grounds of ineffective assistance of trial counsel. Specifically, the petitioner claimed that the habeas court erroneously determined that his trial counsel did not provide ineffective assistance on the basis of (1) his attorney having an actual conflict of interest as a result of his prior representation of a witness in an unrelated criminal case; (2) failing to object to the trial court's exclusion of the petitioner from participation in an in-chambers conference; (3) failing to move to suppress one witness's identification of him from a photographic array; and (4) failing to challenge the consolidation of his two criminal cases for trial. See Marshall v. Comm'r of Corr., 184 Conn. App. 709, 711 (2018).

In a unanimous decision issued on September 18, 2018, the Connecticut Appellate Court affirmed the judgment of the state habeas court. Id. at 711, 727.

The petitioner filed a petition to the Connecticut Supreme Court to certify the case for review as to whether the "Appellate Court err[ed] when it determined that the habeas court did not abuse its discretion in denying the petitioner's petition for certification and denying his petition for writ of habeas corpus where the petitioner's trial counsel provided ineffective assistance on the basis of: (1) an actual conflict of interest due to his prior representation of the state's key witness, in an unrelated criminal matter, [and] (2) failing to object to the petitioner's exclusion from an in-chambers conference to discuss the possible conflict of interest[.]" See Petition for Certification, Respondents' Appendix W (Doc. No. 14-23 at 2). On November 28, 2018, the Connecticut Supreme Court denied the...