Gonzalez v. Comm'r
| Decision Date | 20 July 2012 |
| Docket Number | Case No. 3:11cv1012 (VLB) |
| Court | U.S. District Court — District of Connecticut |
| Parties | ALFREDO GONZALEZ v. COMMISSIONER, ET AL. |
The petitioner, Alfredo Gonzalez, currently confined at the MacDougall Correctional Institution in Suffield, Connecticut, commenced this action for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. He challenges his 2008 state court convictions for accessory to commit manslaughter, conspiracy to commit assault, hindering prosecution and criminal possession of a firearm. The respondents move to dismiss on the ground that the petitioner has failed to exhaust his state court remedies as to the claim in the petition. For the reasons that follow, the respondents' motion to dismiss will be granted.
A prerequisite to habeas corpus relief under 28 U.S.C. § 2254 is the exhaustion of available state remedies. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement seeks to promote considerations of comity between the federal and state judicial systems. See Cotto v. Hebert, 331 F.3d 217, 237 (2d Cir.1982).
To satisfy the exhaustion requirement, a petitioner must present theessential factual and legal bases of his federal claim to each appropriate state court, including the highest state court capable of reviewing it, in order to give state courts a full and fair "opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (internal quotation marks and citation omitted). A federal claim has been "fairly present[ed] in each appropriate state court, including a state supreme court with powers of discretionary review," if it "alert[s] that court to the federal nature of the claim." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (). A petitioner "does not fairly present a claim to a state court if that court must read beyond a petition or a brief . . . that does not alert it to the presence of a federal claim in order to find material . . . that does so." Id. at 32.
Failure to exhaust may be excused only where "there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient to render futile any effort to obtain relief." Duckworth v. Serrano, 454 U.S. 1, 3 (1981) (per curiam). A petitioner cannot, however, simply wait until appellate remedies no longer are available and argue that the claim is exhausted. See Galdamez v. Keane, 394 F.3d 68, 73-74 (2d Cir.), cert. denied, 544 U.S. 1025 (2005).
After the petitioner's arrest in May 2006, an Assistant State's Attorney in the Connecticut Superior Court for the Judicial District of Waterbury, filed an Information charging the petitioner with one count of conspiracy to commitmurder in violation of Conn. Gen. Stat. §§ 53a-48 and 53a-54a(a), one count of accessory to murder in violation of Conn. Gen. Stat. §§ 53a-8 and 53a-54a(a) and one count of hindering prosecution in the second degree in violation of Conn. Gen. Stat. § 53a-166. See Pet. Writ Habeas Corpus at 10. On April 8, 2008, the Assistant State's Attorney filed a Substitute Long Form Information charging the petitioner with one count of conspiracy to commit murder in violation of Conn. Gen. Stat. §§ 53a-48 and 53a-54a(a), one count of accessory to murder in violation of Conn. Gen. Stat. §§ 53a-8 and 53a-54a(a), one count of accessory to intentional manslaughter in the first degree with a firearm in violation of Conn. Gen. Stat. §§ 53a-8 and 53a-55a, one count of conspiracy to commit assault in the first degree in violation of Conn. Gen. Stat. §§ 53a-48 and 53a-59(a)(5), one count of hindering prosecution in the second degree in violation of Conn. Gen. Stat. § 53a-166 and one count of criminal possession of a firearm in violation of Conn. Gen. Stat. § 53a-217(a)(1). See id at 5-9.
On May 15, 2008, a jury found the petitioner not guilty of accessory to murder and conspiracy to commit murder, but guilty of accessory to intentional manslaughter, conspiracy to commit assault, hindering prosecution and possession of a firearm. See State v. Gonzalez, 300 Conn. 490, 495, 15 A.3d 1049, 1052 (2011). On August 1, 2008, a judge imposed a total effective sentence of thirty-eight years of imprisonment followed by ten years of special parole. See id. at 514-15, 930 A.2d at 759.
On appeal, the petitioner raised one claim. He argued that the trial judgeomitted an essential element of the charge of manslaughter as an accessory in his instructions to the jury. Specifically, the judge failed to instruct the jury as to the element of the general intent of the accessory that a firearm be used in the commission of the offense of manslaughter. See id. at 492, 15 A.3d at 1050. On April 5, 2011, the Connecticut Supreme Court affirmed the judgement of conviction. See id. at 510, 15 A.3d at 1062.
The petitioner includes only one ground in the present petition. He claims that Pet. Writ Habeas Corpus at 28. In the facts supporting this ground, the petitioner contends that Conn. Gen. Stat. § 53a-55a "is violative of the United States Constitution in that it does not require the state to prove an essential element of the substantial crime charged: the intent to use a firearm." Id. The respondents move to dismiss the petition on the ground that the petitioner has not exhausted his state court remedies as to the sole ground in the petition. The respondents argue that the petitioner did not fairly present the federal constitutional challenge raised in ground one of the present petition in his direct appeal to the Connecticut Supreme Court. Thus, the claim has not been exhausted.
In the petitioner's direct appeal of his conviction to the Connecticut Supreme Court, the petitioner challenged his conviction on the ground that thetrial judge's jury instructions were deficient in that judge had failed to include an essential element of the offense of manslaughter in the first degree with a firearm as an accessory. See Pet. Writ Habeas Corpus at 13, 33-46. The petitioner described the essential element as the general intent that a firearm be used in the commission of the offense.
In determining whether the trial judge had correctly instructed the jury as to the manslaughter charge, the Connecticut Supreme Court reviewed the Connecticut Appellate Court's statutory interpretation of the elements of the crime of manslaughter in the first degree with a firearm as an accessory in violation of Conn. Gen. Stat. §§ 53a-55a and 53a-8 in State v. Miller, 95 Conn. App. 362, 896 A.2d 844 (2006), cert. denied, . In Miller, the Connecticut Appellate Court examined past Connecticut precedent and concluded that "there is a dual intent required for commission of the crime of manslaughter in the first degree with a firearm as an accessory, namely, that the defendant intended to inflict serious physical injury and that he intended to aid the principal in doing so." Id. at 377, 896 A.2d at 855. Furthermore, neither the principal nor the accessory is required to prove that the principal "intended the use, carrying or threatened use of [a] firearm" because proof of that element is satisfied if the principal in fact used a firearm in committing the offense of manslaughter in the first degree. Id.
The Connecticut Supreme Court concluded that the Connecticut Appellate Court had correctly decided Miller and that the state must prove the following elements to establish accessory liability under Conn. Gen. Stat. § 53a-8 formanslaughter in the first degree with a firearm in violation of Conn. Gen. Stat. § 53a-55a: (1) the defendant acting with intent to cause serious physical injury to another person; (2) intentionally aided a principal offender in causing the death of such person or of a third person; and (3) that the principal, in committing the act, used, carried or threatened to use a firearm. Because the jury instructions on the manslaughter count given by the judge at the end of the petitioner's trial conformed to the decision by the Appellate Court in Miller and were "a proper statement of the essential elements of manslaughter in the first degree with a firearm as an accessory," the Connecticut Supreme Court held that the trial judge had correctly instructed the jury on the manslaughter count. Gonzalez, 300 Conn. at 495, 15 A.3d at 1052.
Although petitioner's counsel on direct appeal made reference to the Due Process Clause of the Fourteenth Amendment in his brief, that reference was made in the context of his challenge to the court's jury instruction. See Pet. Writ Habeas Corpus at 454. In the petition before this court, the challenge is to the manslaughter statute itself. The petitioner claims that the statutory scheme violates the Due Process Clause of the Fifth and Fourteenth Amendment because it does not require the State to prove every element of the offense. In the petitioner's brief in support of this claim, it is evident that the petitioner is attempting to raise a claim that the statute governing manslaughter in the first degree with a firearm is unconstitutional under the Supreme Court's decision in Mullaney v. Wilbur, 421 U.S. 684 (1975) and not that the charge given by theConnecticut Superior Court was deficient.1 (See Mem. Support Pet. Writ Habeas Corpus, Doc. No. 1-2.) This claim was not raised on appeal to the Connecticut Supreme Court. Nor did the petitioner's brief in support of his appeal put the Connecticut Supreme Court on notice of this claim. Thus, the claim presenter to this court has not been fairly presented to the highest state court and is not exhausted.
The Second Circuit has held that if...
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