Smalls v. Faneuff

VICTOR SMALLS, Petitioner, v. WILLIAM FANEUFF, Warden, and DERRICK MOLDEN, Deputy Warden, Respondents.

No. 3:17-CV-1739 (CSH)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

JANUARY 7, 2019

RULING ON PETITION FOR WRIT OF HABEAS CORPUS

Haight, Senior District Judge:

Pro se petitioner Victor Smalls ("Smalls"), a prisoner currently confined at the Corrigan-Radgowski Correctional Center ("Corrigan") in Uncasville, Connecticut, has filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his 2009 state court conviction for murder under Conn. Gen. Stat. §§ 53a-54a.¹ Doc. 1 ("Petition for Writ of Habeas Corpus"). The respondents, Warden William Faneuff and Deputy Warden Derrick Molden, opposing the petition, argue that (1) the Petitioner has failed to exhaust his state court remedies, and (2) the state appellate court decisions affirming the judgment of conviction were based on a reasonable application of clearly established federal law. Doc. 12 ("Response to Order to Show Cause"). Smalls filed a reply objecting to that response. Doc. 13 ("Petitioner's Traverse to Order to Show Cause" or "Reply"). By this Ruling, the Court resolves the Petitioner's request for habeas relief.

I. FACTS AND PROCEDURAL HISTORY

On March 17, 2009, Smalls was convicted after a jury trial on two criminal charges: murder, in violation of Conn. Gen. Stat. § 53a-54a, and carrying a pistol without a permit, in violation of Conn. Gen. Stat. § 29-35(a). Doc. 1, at 3; see also State v. Smalls, 136 Conn. App. 197, 202 (2012) (Doc.12-1).

The Connecticut Appellate Court summarized the underlying facts of the case as follows:

On the afternoon of March 22, 2007, Colonel Francis, James Gibson and the victim [Edgar Sanchez] drove to the vicinity of the Monterey Village housing project, which also is known as the Carlton Court housing project (apartment complex), in Norwalk. They parked their vehicle near the apartment complex, and Gibson went to sell narcotics, while the victim and Francis went to a nearby diner to wait for Gibson. When Gibson arrived at the diner, he told Francis and the victim that he thought something was going on outside and that they should leave the area. As they were walking back to their vehicle, Gibson noticed two hooded and masked individuals, later identified as Jimmy Kave and [Victor Smalls], following them, and he told the victim and Francis to walk faster. One of the hooded and masked individuals called out to the men, and Francis looked back and saw one of the men reach toward his waistline. Believing that the man was about to pull out a gun, Francis turned and ran toward the vehicle. The victim turned around to face the hooded and masked men, and [Smalls] and Kave both fired several shots at the victim, one of which hit him, causing his death. Gibson turned and saw both [Smalls] and Kave firing handguns. [Smalls] and Kave fled the scene after firing the shots. Francis heard the gunshots and then heard Gibson yelling for him to get the car. Francis got the car and parked it near the victim, who was located at or near the entrance to the apartment complex on Grove Street, and he and Francis attempted to get the victim into the car, but the victim collapsed. Gibson applied pressure to the victim's wound, while he and Francis waited for the police and an ambulance to arrive.

Moments earlier, a resident of the apartment complex, Tracie McElveen (T. McElveen), along with her twin sister, Stacie McElveen (S. McElveen), drove down Grove Street, where they saw three males walking toward the apartment complex, and drove into the parking area of the apartment complex shortly before they heard gunfire. They then saw two males wearing hoodies run from Grove Street and between buildings twelve and thirteen of the apartment complex, with their hoods clenched tight around their faces. T. McElveen then saw the men run into building thirteen of the apartment complex. As the McElveens drove away from the apartment complex, they saw the victim lying on his back, with blood all over him,and they stopped their car. T. McElveen recognized the injured male as one of the three males she and her sister had seen walking toward the apartment complex a short time before. The other two males they had seen were nearby, and one of them asked for someone to call 911. S. McElveen then called 911 using her cell phone. The McElveens remained at the scene and spoke with the police once they arrived at the scene.

A maintenance worker at the apartment complex, Temestocles Sanchez (T. Sanchez), had been repairing a hole in the wall in building thirteen when he heard the gunshots. After hearing the gunshots, he looked out of the window and saw [Smalls] and Kave run into the building less than a minute after he heard the shots. T. Sanchez recognized [Smalls], and he also saw that the other individual had a partially exposed gun in his hoodie. [Smalls] and Kave began knocking on apartment doors. T. Sanchez went to report the incident to his supervisor, and they telephoned the police. [Smalls] and Kave gained entry into apartment 151, and they began talking with its occupants, Erica Sawyer and her cousin, Crystal Burden. Burden, Burden's mother, Maribel Rodriguez, and Burden's younger sister all lived in apartment 151. Once Burden's mother left for work and Burden's younger sister left for school in the morning, Burden and Sawyer were the only people in apartment 151 until [Smalls] and Kave arrived. Burden and Sawyer had not left the apartment all day. After [Smalls] and Kave arrived, they each removed their sneakers and their hoodies. Burden told [Smalls] and Kave to leave, but they remained. The police arrived at the scene and surrounded building thirteen; no one entered or exited the building, except for the police. The police obtained a master key from the manager of the apartment complex, secured the approval of the apartment residents and began knocking on doors looking for [Smalls] and Kave. Upon entering apartment 151, the police ordered its occupants to come out, and Sawyer and Burden exited a bedroom. An officer again ordered anyone else in the apartment to come out. [Smalls] and Kave came out of the bedroom from which Burden and Sawyer also exited. No one else was found in the apartment. The renter of the apartment, Maribel Rodriguez, arrived home, and the police obtained her permission to search the apartment. They found two hoodies, two pairs of men's sneakers and, in the back of the bedroom closet, a .380 semiautomatic handgun and a nine millimeter Glock handgun. In the cartridge of the Glock handgun were four Federal Cartridge Company (Federal) HydraShok brand nine millimeter bullets. The police also uncovered a black mask in a pocket of one of the hoodies and another black mask in one of [Smalls]'s pockets.

In the meantime, the police had arrived at the location of the shooting and attempted to tend to the unconscious victim. An ambulance was called, and it transported the victim to the hospital, where he was pronounced dead, never having regained consciousness. The paramedic explained that the victim had "bled . . . out right on the street. He lost most of his blood there." The medical examiner reported that the twenty-two year old victim had died as a result of a "[g]unshot wound to the lowerabdomen." The medical examiner retrieved one bullet from the victim's body, which, after cleaning and photographing it, she placed in a labeled container and then turned it over to the police. The bullet was a nine millimeter caliber, jacket hollow point, with a Hydra-Shok design.

While at the scene of the shooting, the police collected eight spent shell casings and one live round. Four of the shell casings were .380 caliber, as was the one live round. The remaining shell casings were nine millimeter. It was determined, to a reasonable degree of certainty, that the shell casings had come from the handguns that had been seized from apartment 151. The bullet that killed the victim also was consistent with one having been fired from the nine millimeter handgun that was recovered from apartment 151. None of the shell casings or the handguns contained fingerprints, and [Smalls] and Kave had no gunpowder residue on their hands.

Following a probable cause hearing, [Smalls] elected to be tried by a jury, and a trial ensued. At the close of the state's evidence, [Smalls] filed a motion for a judgment of acquittal, which the court denied. [Smalls] called no witnesses. The jury found [Smalls] guilty of murder and of carrying a pistol without a permit.

Smalls, 136 Conn. App. at 198-202 (footnotes omitted). Following his conviction, Smalls was sentenced to a total effective sentence of forty-five (45) years of imprisonment.² Id. at 202.

On direct appeal, Smalls claimed that the trial court improperly "(1) found that there was probable cause to support [his] prosecution . . . for causing the death of the victim, Edgar Sanchez, and (2) concluded that the evidence was sufficient to sustain [his] conviction for murder as either a principal or accessory." 136 Conn. App. at 198; Doc. 1, at 4. The Connecticut Appellate Court rejected both of Smalls's claims of error and affirmed the judgment of conviction. 136 Conn. App. at 203-10.

As to his first claim - i.e., that the trial court improperly found that there was probable cause to support his prosecution for causing the death of the victim, Edgar Sanchez - the Connecticut Appellate Court held that, although the evidence did not establish whether Smalls or Kave fired thefatal shot, it warranted a person of reasonable caution to believe that Smalls had murdered the victim and, therefore, amounted to probable cause. Id. at 209. The Court summarized:

The defendant argues that although the evidence reasonably might "justify an inference that either the defendant or Kave fired the fatal shot" that killed the victim, "the only inference that can be derived from [the] facts is that there is a [50] percent

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