Francis v. Comm'r of Corr.

• Decision Date: 25 August 2021
• Docket Number: 3:18-cv-847 (SRU)
• Court: U.S. District Court — District of Connecticut
• Parties: KERMIT FRANCIS, Petitioner, v. COMMISSIONER OF CORRECTION, et al., [1] Respondents.

KERMIT FRANCIS, Petitioner, v. COMMISSIONER OF CORRECTION, et al., ^[1] Respondents.

No. 3:18-cv-847 (SRU)

United States District Court, D. Connecticut

August 25, 2021

ORDER

Stefan R. Underhill, United States District Judge.

In this remanded habeas action, the Commissioner of Correction (the “Commissioner”) asks me to dismiss Kermit Francis's petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254. Francis is currently serving a 60-year sentence in state custody for his 1996 convictions for murder and carrying a pistol without a permit.

In March 2019, I granted the Commissioner's motion to dismiss Francis's petition as untimely. See Ruling, Doc. No. 34. But I also issued a certificate of appealability because this case presented a close question. More specifically, my ruling relied on my conclusion that the Connecticut Supreme Court's reversal of Francis's third count of conviction-for altering or removing an identification mark on a pistol-resulted in a remand for a purely ministerial purpose. In September 2020, the Second Circuit vacated the judgment I had entered in favor of the Commissioner and remanded based on its view that this case could be resolved on simpler grounds with further factfinding.

Following the remand, I appointed pro bono counsel for Francis, and, in May 2021, the Commissioner filed a renewed motion to dismiss based on the untimeliness of Francis's petition. After full briefing and an oral argument, the motion-which I treat as a motion for summary judgment, as described below-is now ripe for decision. Because Francis's petition is untimely, I grant the Commissioner's motion to dismiss.

I. Standard of Review

A. AEDPA

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “restricts the ability of prisoners to seek federal review of their state criminal convictions.” Smith v. McGinnis, 208 F.3d 13, 15 (2d Cir. 2000). AEDPA provides a one-year statute of limitations for federal habeas actions filed by prisoners in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1); Murphy v. Strack, 9 Fed.Appx. 71, 72 (2d Cir. 2001). As relevant here, AEDPA's one-year limitations period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2241(d)(1)(A).

AEDPA's one-year statute of limitations is tolled for “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” Id. § 2244(d)(2); see also McGinnis, 208 F.3d at 17. When the state post-conviction review terminates, the “clock restarts” and the limitation period resumes. Holland v. Florida, 560 U.S. 631, 638 (2010) (citing Coates v. Byrd, 211 F.3d 1225 (11th Cir. 2000)). As discussed further below, section 2244(d) “is subject to equitable tolling.” Id. at 649.

B. Conversion Into Motion For Summary Judgment

In its renewed motion to dismiss, doc. no. 62, the Commissioner does not cite Rule 12. Instead, the Commissioner simply cites to AEDPA's one-year statute of limitations as the basis for its “motion to dismiss.” See Comm'rs Mot. to Dismiss, Doc. No. 62, at 1 (citing 28 U.S.C. § 2244(d)(1)). As a formal matter, it seems likely that the Commissioner's “motion to dismiss” is actually an “answer” to Francis's habeas petition. See Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts, available at https://www.uscourts.gov/sites/default/files/rulesgoverningsection2254and2255casesin theu.s.districtcourts-dec12019.pdf (last accessed Aug. 25, 2021). In any event, I treat the Commissioner's filing as a motion to dismiss Francis's habeas petition for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).^[2]

“If, on a motion under Rule 12(b)(6) . . ., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). To be sure, in evaluating a motion to dismiss, I may-without converting the motion into a motion for summary judgment-consider documents attached to, incorporated by reference in, or integral to the complaint and those matters properly subject to judicial notice. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002). However, in connection with this motion to dismiss, both parties have presented materials beyond the pleadings. Most notably, in opposition to the Commissioner's motion to dismiss, Francis submitted a sworn declaration. See Decl. of K. Francis in Supp. Opp'n to Comm'rs Renewed Mot. to Dismiss, Doc. No. 65-1. Thus, in my view, I must convert the Commissioner's motion to dismiss into a motion for summary judgment. When a court makes that conversion, “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d). In this case, at the August 19 hearing on the Commissioner's motion to dismiss, the parties consented to my treating the Commissioner's motion to dismiss as a motion for summary judgment and confirmed that they have presented all the material that they wish to present.

Because I treat the Commissioner's motion to dismiss as a motion for summary judgment, the Commissioner can prevail only if the record demonstrates that “there is no genuine dispute as to any material fact” and that the Commissioner “is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986). When ruling on a summary judgment motion, the court must construe the facts of record in the light most favorable to the nonmoving party and must resolve all ambiguities and draw all reasonable inferences against the moving party. See Anderson, 477 U.S. at 255. Thus, I view the record in the light most favorable to Francis and draw all reasonable inferences in his favor.

II. Background

A. Factual Background

In considering Francis's direct appeal in 1998, the Connecticut Supreme Court articulated the facts that a “jury reasonably could have found” in this case:

On December 20, 1993, the defendant, along with Casey Wilcox, Andre Shirley and Corey Rosemond, were selling crack cocaine in the area of Wilcox's residence at 88 Atwood Street in Hartford. The victim, Moses Barber, Jr., a regular customer, purchased drugs from the defendant. After making his purchase, he walked away. The victim later returned to Wilcox's porch and engaged in an argument with the defendant concerning the drug sale. The victim and the defendant left the porch and the defendant proceeded up a dark driveway between two buildings directly across the street from Wilcox's residence. The victim remained near the street. As they continued to argue, the defendant approached the victim and shot him. The victim died later that night as a result of a gunshot wound to his abdomen.

On December 21, 1993, Wilcox asked the defendant for his guns for the purpose of threatening an individual who had accused Wilcox of shooting the victim. The defendant went into the basement of a house on Atwood Street, and emerged with a handgun and rifle, which he gave to Wilcox. Wilcox, in turn, gave the weapons to Rosemond and instructed Rosemond to put the weapons in the trunk of a vehicle parked behind Wilcox's residence. The next morning, Hartford police officers, armed with a search warrant, seized the weapons from the trunk of the vehicle and, thereafter, learned that the defendant did not have a permit to carry a pistol or revolver. Moreover, the police officers found that the serial number on the pistol had been ground off.

Thereafter, Wilcox, Shirley and Rosemond gave statements implicating the defendant in the murder, and a warrant was issued on December 23, 1993, for the defendant's arrest. The defendant was arrested in New York in June, 1995.

State v. Francis, 246 Conn. 339, 342-43 (1998).

B. Procedural Background

In October 1996, Francis stood trial in Connecticut Superior Court for (1) murder, in violation of Conn. Gen. Stat. § 53a-54a, (2) carrying a pistol without a permit, in violation of Conn. Gen. Stat. § 29-35, and (3) altering or removing an identification mark on a pistol, in violation of Conn. Gen. Stat. § 29-36. See Direct Appeal Record, App'x A to Comm'rs First Mot. to Dismiss, Doc. No. 18-3 (“Direct Appeal Record”), at 4-9 (criminal docket sheet, information, and judgment).^[3] At trial, Francis was represented by Attorney William Collins. See id. at 10 (appeal form). The jury found Francis guilty on all three counts. See Id. at 8 (judgment). And so, on December 23, the state trial court entered judgment against Francis and sentenced him to a total effective sentence of 60 years' imprisonment: 60 years for the murder conviction and concurrent five-year sentences for each firearm conviction. See Id. at 8-9 (judgment).

Just days later (on December 27), Francis timely filed an application for sentence review with the Sentencing Review Division of the Connecticut Superior Court (the “SRD”). See Sentencing Review Decision App'x G to Comm'rs First Mot. to Dismiss (“SRD Decision”), Doc. No. 18-9, at 3. In February 1997, Francis also timely filed a direct appeal to the Connecticut Supreme Court. See Direct Appeal Record, Doc. No. 18-3, at 10-17 (appeal forms); see also Conn. Gen. Stat. § 51-199(b) (allowing appeal directly to Connecticut Supreme Court in certain instances). In that direct appeal, Francis was represented by assistant public defender Mark Rademacher. See Direct Appeal Record, Doc. No. 18-3, at 10 (appeal form). On August 18, 1998, the Connecticut Supreme Court affirmed Francis's convictions for murder and carrying a pistol without a permit but...