Schwartz v. Comm'r of Corr.

ROBERT SCHWARTZ, Petitioner, v. COMMISSIONER OF CORRECTION, Respondent.

3:19cv1149 (MPS)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

October 23, 2020

RULING ON PETITITION FOR HABEAS CORPUS RELIEF

On July 25, 2019, Petitioner Robert Schwartz, Sr., who is currently in the custody of the Connecticut Department of Correction confined at Carl Robinson Correctional Institution, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254, challenging his 2015 state conviction for violating a protective order.¹ ECF No. 1. Petitioner raised four grounds for relief: (1) the state's witnesses gave perjured testimony during his jury trial; (2) the trial court improperly relied on perjured testimony and an inaccurate pre-sentence investigation ("PSI") report in sentencing Petitioner; (3) the prosecutor committed misconduct by presenting a case against Petitioner consisting of perjured testimony; and (4) both the state and the trial court failed to "fully examine" Petitioner's case, including specific facts in family court orders. Id. at 6-11.

On October 1, 2019, this court dismissed the petition without prejudice because it appeared that Petitioner had only exhausted the second ground for relief as required for bringing a federal habeas petition under § 2254. ECF No. 7 at 4. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The court noted that Petitioner had exhausted this second claim for relief on direct appeal, but that the other three claims for relief had not been raised or were currentlypending in Petitioner's state habeas petition. ECF No. 7 at 4. This court provided that Petitioner could move to reopen this case by attaching an amended petition after fully exhausting his claims in state court, or he could file a notice indicating his intention to waive all unexhausted claims and proceed solely on the exhausted claims. Id. at 5.

On January 13, 2020, Petitioner filed his notice indicating that he intends to proceed with this petition on his fully exhausted grounds despite the risk that a new petition asserting other grounds after full exhaustion could be barred. ECF No. 13. Petitioner also filed a motion to reopen with an attached an amended petition. ECF Nos. 10, 10-1. The court reopened this case and ordered Respondent to show cause why the petition for writ of habeas corpus relief should not be granted. ECF No. 15.

In his amended petition, Petitioner now asserts two grounds for habeas relief: (1) "The evidence was insufficient to prove [Petitioner] was in violation of a criminal protective order;" and (2) "The [Petitioner's] due process rights were violated when the trial court used materially unreliable information at his sentencing hearing." ECF No. 10-1 at 9, 11.

Respondent has filed a response, arguing that one of the two grounds for relief has not been exhausted in accordance with 28 U.S.C. § 2254(b)(1)(A), and that the amended petition can be denied on the merits. Response, ECF No. 19. Petitioner has filed an objection to Respondent's arguments.² Pet.'s Obj., ECF No. 20. He asserts that he did exhaust his state court remedies onboth grounds because his second claim was in the appeal brief that was "reviewed and ruled on by both Appellate and [Connecticut] Supreme Court[.]" Id. at 2

After consideration of the petition, Respondent's arguments, and Petitioner's response thereto, the court concludes that the petition must be DENIED.

I. PROCEDURAL BACKGROUND

After a jury trial, Petitioner was found guilty on July 14, 2015, of violating a protective order. ECF No. 10-1 at 1; State v. Schwartz, No. H14H-CR15-0677832-S. On August 31, 2015, the trial court sentenced him to five years in prison, execution suspended after three years, and five years of probation. ECF No. 10-1 at 1; Schwartz, No. H14H-CR15-0677832-S.

On December 11, 2015, Petitioner appealed his conviction to the Connecticut Appellate Court and raised two grounds for relief: "(1) there was insufficient evidence presented at trial to support his conviction; and (2) the trial court denied him due process by using, and denying him the opportunity to contest, unreliable information during sentencing." State v. Robert S., 179 Conn. App. 831, 832 (2018). The Appellate Court rejected Petitioner's claims and affirmed the conviction. Id. The Appellate Court concluded that "the jury reasonably could have found the following facts" on the basis of the evidence:

The defendant and the victim were married in 2006 and divorced in 2013. The couple has two minor children, ages four and five at the time of trial, both of whom live with the victim. On October 22, 2014, the court, Murphy, J., issued a protective order against the defendant, naming the victim as the protected person. The order provided in relevant part: "Do not contact the protected person in any manner, including by written, electronic or telephone contact, and do not contact the protected person's home, workplace or others with whom contact would be likely to cause annoyance or alarm to the protected person." Under "Additional Orders of Protection," the order provided: "Any access to the minor child must be arranged and facilitated through a third party relative," and "[t]he [d]efendant is allowed to have contact with the protected person only through Our Family Wizard software."

In 2015, the victim and the children were living at the maternal grandmother's home in Bloomfield. That house had a landline telephone (landline). On January 5, 2015, a phone call was placed from the defendant's cell phone to the landline. The victim recognized the defendant's cell phone number on the landline's caller ID. The victim did not answer the phone call. The victim felt anxious when she received this phone call. She checked on the children, checked the doors and locks, and then called the police.

Officer Adrian J. Loignon of the Bloomfield Police Department responded to the residence. Officer Loignon spoke to the victim, who showed him the landline's caller ID. Officer Loignon recorded the phone number from the caller ID, and when he returned to the police department, called the phone number four times. No one answered his calls, and the voicemail box was full. Officer Loignon reviewed the police department's in-house records and learned that the phone number recorded from the caller ID was listed as the defendant's phone number. He also reviewed the in-house records and confirmed that there was a protective order prohibiting the defendant from contacting the victim. On the basis of this information, Officer Loignon applied for an arrest warrant for the defendant.

Id. at 833-834 (footnotes omitted). Petitioner sought review from the Connecticut Supreme Court of the Appellate Court's decision, presenting the following questions:

1) Did the Appellate Court improperly hold that ownership of a cell phone, coupled with evidence that a single call was made from that cell phone - even one that failed to result in any ensuing conversation or voice message - permitted the jury to conclude beyond a reasonable doubt that the call was placed intentionally (i.e., not "through accident, mistake, carelessness, or absent-mindedness") by the owner of the phone?

2) Where the Appellate Court adopted a presumption that, in the absence of any credible evidence to the contrary, a jury may infer that the owner of a cell phone intentionally placed any call originating from that phone, did it impermissibly shift the burden of proving all elements of a crime from the state to the defendant?

Resp.'s Appendix E; ECF No. 19-5 at 2-3. The Connecticut Supreme Court denied the petition for certification to appeal the Appellate Court's decision. State v. Robert S., 328 Conn. 933 (2018).

Petitioner filed for a sentence review but his sentence was upheld. ECF No. 10-1 at 5; ECF No. 19 at 3 n.3; State v. Schwartz, No. H14HCR15677832, 2017 WL 778570, at *1 (Conn. Super. Ct. Feb. 1, 2017).³ In that ruling, the Sentence Review Division noted:

[Petitioner] claims that at the center of the case was his desire to be with his children, which he claims prompted his calls. He argues that he is not violent and only wants time with his children. He accused the victim and her family of threatening him. He submitted statistics relating to average sentences for defendants convicted of the same offenses in support of his claim that the sentence imposed in this case was inappropriate. He requests that his sentence be reduced to time served.

Id. at *1. It observed that the trial court imposed the sentence noting that Petitioner had a short criminal record but "was described by relatives and friends as stubborn and aggressive[;]" that Petitioner was "manipulative" and would not "abide by orders[;]" and that the victim's safety was at stake. Id. It affirmed the trial court's sentence, concluding:

there is nothing inappropriate or disproportionate about the sentence imposed by the trial court in this case. The petitioner intentionally violated a court order and seeks to minimize his behavior by claiming he was trying to visit his children. This type of conduct warrants the sentence imposed by the trial court. The conduct that led to his conviction and his failure to accept responsibility for that conduct suggest he continues to present a []safety risk to the victim and the community.

Id. at 2.

On October 4, 2018, Petitioner filed a petition for writ of habeas corpus in state court. ECF No. 10-1 at 18; Schwartz v. Comm'r of Corr., No. TSR-CV18-4009745-S (Conn. Super. Ct. Oct. 4, 2018). Petitioner represents that he raised three grounds for relief: (1) the prosecutorial impropriety and violation of motion in limine; (2) the perjured testimony of rebuttal witness, alleged victim, divorce counsel of victim; and (3) ineffective assistance of trial counsel. ECF No. 10-1 at 18. That petition remains pending. Schwartz, No. TSR-CV18-4009745-S. On March 11,2019, Petitioner filed another petition for postconviction relief that was declined for review by the state court by...