2009 Ct. Sup. 5886
No. CV 01 0457822Connecticut Superior Court Judicial District of New Haven at New Haven
March 26, 2009

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

ANTHONY V. DEMAYO, Judge Trial Referee.

The petitioner, Munsur Khalif Abdullah, formerly Lawrence Townsend, was convicted by a jury of murder in violation of General Statutes § 53a-54a. See State v. Townsend, 211 Conn. 215, 558 A.2d 669 (1989) (affirming the petitioner’s conviction). The facts underlying his conviction are as follows: On February 18, 1986, the petitioner entered the Gary Crooks Center in Bridgeport, carrying a rifle under his coat and looking for the victim, Joseph Kelly, whom he found and shot to death. Upon his arrest, the petitioner admitted shooting the victim. In addition, the petitioner stated he shot the victim because the victim had insulted his wife and under Muslim law he was permitted to kill any person who did so. See id.
At trial, evidence was presented that demonstrated the petitioner’s clear premeditation, including testing the murder weapon and expressing his anger with the victim prior to the murder.

The petitioner was sentenced to life in prison on January 15, 1988. At the petitioner’s sentencing, the trial court, McKeever, J., remarked: “You are an assaulted (sic) personality, Mr. Townsend, who resorted to the worse kinds of violence in the past, all of which is fully documented in your record. And as I consider the crime for which you were tried in this court and found guilty, I consider it to be an absolute and heartless execution, totally without cause or justification and, therefore, it is the sentence of this court you be confined to the custody of the Commission of Corrections for the balance of the term of your natural life.”

In the present petition for writ of habeas corpus, [1] the petitioner alleges the following. “Connecticut’s judicial system, including its procedures for charging, negotiating, and/or processing criminal cases, systemically result in a disproportionately greater `trial penalty’ to black defendants, including the petitioner, who refuse the plea bargain sentences offered to them than to white defendants who refuse the plea bargain sentences offered to them. This system discriminates based on race against black defendants, and did so against the petitioner . . . CT Page 5887 The petitioner’s sentence is longer than it would have been absent the influence of the racially discriminatory aspects of Connecticut’s judicial system.” He claims violations of his federal and state equal protection rights and rights under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). The petitioner seeks to prove his claims through the commissioning of a study, which would analyze sentencing patterns in the State of Connecticut.[2]

The respondent seeks dismissal of the petition pursuant to Practice Book § 23-29(2). The respondent argues that the petitioner’s federal and state equal protection claims cannot provide habeas corpus relief because he has failed to show that his sentence was the result of purposeful discrimination pursuant to the United States Supreme Court’s decision i McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987). In addition, the respondent argues that the petitioner has no enforceable rights under the CERD.

The petitioner argues that McCleskey should not be followed, “as the Supreme Court of the United States has demonstrated in recent constitutional decisions . . . a commitment to overruling precedents that lack firm grounding in due process and equal protection jurisprudence, and . . . McCleskey is such a case.” (Citations omitted.) The petitioner further argues that even if his federal equal protection claims fail under McCleskey, that his state equal protection claims survive because a petitioner need not show purposeful discrimination, pursuant to the Connecticut Supreme Court’s decision in Sheff v. O’Neill, 238 Conn. 1, 678 A.2d 1267 (1996). Finally, the petitioner refutes the respondent’s argument that he has no enforceable rights under the CERD.

“The standard this court must apply is well-established. Practice Book § 23-29 permits `[t]he judicial authority . . . at any time, upon its own motion or upon motion of the respondent, [to] dismiss the petition, or any count thereof, if it determines that . . . (2) the petition, or a count thereof, fails to state a claim upon which habeas corpus relief can be granted . . .’ `A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction . . .’ Pedro v. Miller, 281 Conn. 112, 116 [914 A.2d 524] (2007). `When a . . . court decides a jurisdictional question raised by a pre-trial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner CT Page 5888 most favorable to the pleader . . .’ Lagassey v. State, 268 Conn. 723, 736 [846 A.2d 831] (2004).” Abraham v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 04 4000215 (February 27, 2007, Swords, J.).

This court finds that the respondent is entitled to dismissal of the petition because the petitioner cannot, as a matter of law and fact, state a claim upon which habeas corpus relief can be granted.

Petitioner’s Federal Equal Protection Claims
The petitioner’s federal equal protection claims are governed by the United States Supreme Court’s decision in McCleskey v. Kemp, supra, 481 U.S. 279. In McCleskey, the petitioner claimed: “[T]he Georgia capital sentencing process is administered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments to the United States Constitution. In support of his claim, McCleskey proffered a statistical study . . . (the Baldus study) that purports to show a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant.” Id., 286. “In its broadest form, McCleskey’s claim of discrimination extend[ed] to every actor in the Georgia capital sentencing process, from the prosecutor who sought the death penalty and the jury that imposed the sentence, to the State itself that enacted the capital punishment statute and allows it to remain in effect despite its allegedly discriminatory application.” Id., 292.

The United States Supreme Court affirmed the decision of the Court of Appeals dismissing the petitioner’s claim. See id., 291-92. “Our analysis begins with the basic principle that a defendant who alleges an equal protection violation has the burden of proving `the existence of purposeful discrimination.’ . . . A corollary to this principle is that a criminal defendant must prove that the purposeful discrimination `had a discriminatory effect’ on him . . . Thus, to prevail under the Equal Protection Clause, McCleskey must prove that the decision makers in his case acted with discriminatory purpose. He offers no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence. Instead, he relies solely on the Baldus
study. McCleskey argues that the Baldus study compels an inference that his sentence rests on purposeful discrimination. McCleskey’s claim that these statistics are sufficient proof of discrimination, without regard to the facts of a particular case, would extend to all capital cases in Georgia, at least where the victim was white and the defendant is black.” (Citations omitted.) Id., 292-93.

CT Page 5889 The Court found that while statistical studies, such as the Baldus
Study, might serve “as proof of intent to discriminate in certain limited contexts,”[3] it did not apply in challenges to capital sentencing decisions for the following reasons. Id., 293-97. First, “each particular decision to impose the death penalty is made by a petit jury selected from a properly constituted venire. Each jury is unique in its composition, and the Constitution requires that its decision rest on consideration of innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular capital offense. Thus, the application of an inference drawn from the general statistics to a specific decision in a trial and sentencing simply is not comparable to the application of an inference drawn from general statistics to a specific venire-selection or Title VII case. In those cases, the statistics relate to fewer entities, and fewer variables are relevant to the challenged decisions.” Id. 294-95.

In addition, “the decision maker has an opportunity to explain the statistical disparity. Here, the State has no practical opportunity to rebut the Baldus study . . . [Furthermore] jurors cannot be called . . . to testify to the motives and influences that led to their verdict . . . Similarly, the policy considerations behind a prosecutor’s traditionally wide discretion suggest the impropriety of our requiring prosecutors to defend their decisions to seek death penalties, often years after they were made . . . Moreover, absent far stronger proof, it is unnecessary to seek such a rebuttal, because a legitimate and unchallenged explanation for the decision is apparent from the record: McCleskey committed an act for which the United States Constitution and Georgia laws permit imposition of the death penalty.” Id., 296-97.

Finally and most persuasively, the Court stated: “McCleskey challenges decisions at the heart of the State’s criminal justice system. [O]ne of society’s most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder. Implementation of these laws necessarily requires discretionary judgments. Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. The unique nature of the decisions at issue in this case also counsels against adopting such an inference from the disparities indicated by th Baldus study. Accordingly, we hold that the Baldus study is clearly insufficient to support an inference that any of the decision makers in McCleskey’s case acted with discriminatory purpose.” Id., 297.

In sum, the Supreme Court reiterated the well established principle that a petitioner attempting to prove a violation of his federal equal CT Page 5890 protection rights must show either a discriminatory purpose or intent and a discriminatory effect. See id., 292-93. The Court refused to infer a discriminatory purpose from a statistical study, such as the Baldus
Study, in the context of capital sentencing decisions and outlined its reasons for this refusal. See id., 294-97. This court declines the petitioner’s invitation to depart from McCleskey. Because the petitioner has failed to plead any facts showing that his sentence was the result of purposeful discrimination and instead relies on a yet-to-be commissioned statistical study, his federal equal protection claims must fail.

Petitioner’s State Equal Protection Claims
“[I]t is beyond debate that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher levels of protection for such rights . . . [A]lthough we may follow the analytical approach taken by courts construing the federal constitution, our use of that approach for purposes of the state constitution will not necessarily lead to the same result as that arrived at under the federal constitution.” (Internal quotation marks omitted.) Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 155-56, 957 A.2d 407
(2008). Nevertheless, for the reasons discussed below, this court finds that the petitioner has also failed to state a cognizable equal protection claim under the Connecticut Constitution.

The petitioner argues that he need not show purposeful discrimination to make out a cognizable equal protection claim under the Connecticut Constitution and relies on the Connecticut Supreme Court’s decision i Sheff v. O’Neill, supra, 238 Conn. 1. This court finds, however, that the Connecticut Supreme Court’s holding in Sheff was unique to the circumstances presented in that case and therefore, the petitioner is not relieved of his burden of showing that his sentence was motivated by a discriminatory purpose. See Wendt v. Wendt, 59 Conn.App. 656, 685-86, 757 A.2d 1225, cert. denied, 255 Conn. 918, 763 A.2d 1044 (2000).

In Wendt, the Appellate Court, discussing the Supreme Court’s holding in Sheff, stated the following: “The plaintiff attempts to transfor Sheff v. O’Neill, 238 Conn. 1, 678 A.2d 1267 (1996) (en banc), into a new pronouncement of law that allows state constitutional challenges on the basis of disparate impact. In Sheff, our Supreme Court held that the legislature was required to remedy both de jure and de facto segregation in public schools . . . The court did not intend to allow state constitutional challenges on the basis of disparate impact, and it ruled as it did because it relied in part on the `independent constitutional significance’ of the word `segregation’ in article first, § 20, of our CT Page 5891 state constitution and the affirmative constitutional obligation to provide a substantially equal educational opportunity under article eighth, § 1 . . . [A] showing of discriminatory impact alone cannot provide the basis for the plaintiff’s constitutional challenge.” (Citation omitted.) Id.; see also Golab v. New Britain, 205 Conn. 17, 26, 529 A.2d 1297 (1987) (“[a]n equal protection claim based on unequal application of the law does not arise from conclusory allegations regarding past decisions, but rather must be established by competent evidence . . . There must be a showing of intentional or purposeful discrimination” (Citations omitted; internal quotation marks omitted.)) Shawmut Mortgage Co. v. Wheat, 245 Conn. 744, 755 n. 9, 717 A.2d 664
(1998) (“defendant has failed to provide an adequate record for review of her claim because the mortgage act is gender-neutral on its face and the defendant has not introduced any evidence demonstrating that the purpose or intent of the mortgage act is to discriminate”).

Next, this court must decide whether purposeful discrimination will be inferred from a yet-to-be commissioned statistical study. In February 2008, a Superior Court judge denied respondent’s motion to dismiss petitioners’ claims of racial disparity in the imposition of the death penalty. See In re Claims of Racial Disparity, Superior Court, judicial district of Tolland, Docket No. CV 05 4000632 (February 27, 2008, Fuger, J.). Judge Fuger stated:

The petition is not a global challenge to the death penalty, instead, the petition alleges that there is impermissible racial disparity and other impermissible factors that creep into the decisions to charge, to prosecute, to impose and to inflict this most ultimate of penalties. The petition clearly asserts that this is a violation of the Constitution of the State of Connecticut. It is clear that such a claim under the federal Constitution would be unavailing. See McCleskey v. Kemp, 481 U.S. 279 (1987). Statistical challenges to the imposition of the death penalty were ruled insufficient in that in order to achieve federal habeas relief the petitioner must demonstrate racial discrimination in his or her own case . . . It is well established in Connecticut that our Constitution may contain greater individual rights than those contained within the United States Constitution . . . It is clear that the petitioners may seek to demonstrate that the imposition of the death penalty in Connecticut violates the Constitution of the state of Connecticut, even though such a statistical attack CT Page 5892 might be unavailing on the federal arena. It is clear then, that the petition alleges a cause of action upon which this Court could afford relief. (Citations omitted; internal quotation marks omitted.)


Interestingly, the court also noted that “[b]eing able to state a cognizable claim does not, of course, in any way mean that the petitioners will be successful in obtaining their desired relief. As correctly noted by the respondent the burden of proof in the habeas petition rests with the petitioner . . . Despite the fact that this Court is going to deny the respondent’s motion to dismiss, it does not necessarily follow that the petitioners will ultimately be successful in this petition. It is a heavy burden of proof that the petitioners undertake and, if the offer of proof submitted by the respondent as to what would have been presented in this motion to dismiss is any indication, one that will generate a vigorous opposition from the respondent. The denial of the motion to dismiss is not to prejudice the right of the respondent to seek summary judgment, if appropriate, or to renew a motion for judgment following the petitioner’s presentation of their case.” Id.

The present petition is distinguishable from the petition presented to the court In re Claims of Racial Disparity. The petitioners In re Claims of Racial Disparity based their equal protection claims on an alleged racial disparity between defendants who were given the death penalty. Here, the petitioner alleges there is a “disproportionately greater `trial penalty’ to black defendants . . . who refuse the plea bargain sentences offered to them than to white defendants who refuse the plea bargain sentences offered to them.” A study aimed at discovering the petitioner’s allegations of racial disparity would be an incredible undertaking. The petitioner makes no distinction amongst the types of crimes, [4] the victims of the crimes or any other variable. In a hearing addressing petitioner’s motion for discovery held on March 14, 2005, the Chief Public Defender testified that the Division of Public Defender Services would be “disinclined” to conduct such a large study because of its associated cost.[5] This court agrees that the scope, let alone the cost, of such a study would be an enormous burden on the State of Connecticut, which is already in the midst of a worsening budgetary crisis.

In conclusion, the petitioner is not relieved of his burden of pleading facts that demonstrate his sentence was the result of purposeful discrimination. See Wendt v. Wendt, supra, 59 Conn.App. 685-86. Despite CT Page 5893 the ruling of In re Claims of Racial Disparity, this court declines to infer the existence of a discriminatory purpose from a statistical study that the Division of Public Defender Services is disinclined to commission. Therefore, the petitioner’s equal protection claims under the Connecticut Constitution are dismissed.

Petitioner’s Claims Pursuant to the CERD
Finally, the petitioner claims he is entitled to relief because his sentence violates the International Convention on the Elimination of All Forms of Racial Discrimination, known as “CERD.” The United States District Court for the District of Connecticut has rejected the argument that the CERD provides a private right of action. See U.S. v. Perez, United States District Court, Docket No. 3:02cr7 (JBA) (D.Conn. April 29, 2004). “Moreover, with respect to . . . the CERD, the United States expressly declared upon ratification that the provisions of the Convention are not self-executing . . . The United States thus clarified that . . . the CERD did not create a private right of action enforceable in U.S. courts. See Flores v. Southern Peru Copper Corp., 343 F.3d 140, 163
(2d Cir. 2003) (Self-executing treaties are those that immediate[ly] creat[e] rights and duties of private individuals which are enforceable and [are] to be enforced by domestic tribunals. Non-self-executing treaties require implementing action by the political branches of government or . . . are otherwise unsuitable for judicial application) . . . This Court, therefore, has no authority to decide [defendant’s] claims under the . . . CERD.” (Citations omitted; internal quotation marks omitted.) Id. Numerous courts have agreed with this finding. See, e.g., Akuma v. State, United States District Court, Docket No. 07-1058 (JBS) (D.N.J. September 17, 2008); Gambaro v. U.S., United States District Court, Docket No. CA 06-391-ML (D.R.I. August 2, 2007); Rotar v. Placer County Superior Court, United States District Court, Docket No. CIV S-07-0044 DFL EFB PS (E.D.Cal. April 16, 2007); Johnson v. Quander, 370 F.Sup.2d 79, 100-01 (D.D.C. 2005), aff’d, 440 F.3d 489
(D.C. Cir. 2006), cert. denied, 549 U.S. 945, 127 S.Ct. 103, 166 L.Ed.2d 255 (2006).

Therefore, the petitioner’s claims pursuant to the CERD are dismissed.

The petition for writ of habeas corpus is hereby dismissed in its entirety as the petitioner has failed to state any claim for which habeas corpus relief may be granted.

[1] The petitioner has filed numerous legal actions, including several CT Page 5894 under his former name, Lawrence Townsend. See e.g., Townsend v. Warden, Superior Court, judicial district of New Haven, Docket No. CV 00 0444237 (July 22, 2003, Zoarski, J.T.R.); Townsend v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 91 00012238 (February 25, 1997, Bishop, J.); Townsend v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 91 00012238 (September 22, 1995, Bishop, J.); see also Townsend v. Meachum, United States Court of Appeals, Docket No. 96-2479 (2d Cir. March 6, 1997) (affirming judgment of the United States District Court for the District of Connecticut dismissing petitioner’s habeas corpus claims).
[2] The Petitioner filed a “Motion for Discovery” on December 14, 2004. In this motion, the Petitioner relied on the findings of the Judicial Branch’s “Task Force on Minority Fairness” (April 1996) which stated in part: “A large number of participants in public hearings and focus groups indicated a perception that sentences were not fair-that they were biased in favor of Caucasians . . . Because of these perceptions, further studies of sentencing patterns need to be funded.” The Petitioner noted that he was able to secure initial funding from the Division of Public Defender Services to analyze sentencing patterns in support of his petition. He also named an expert, who was willing to pursue the study. The State objected to the motion and a hearing was held on March 14, 2005. At the hearing, the Deputy Chief Public Defender (now the Chief Public Defender), Susan O. Storey, testified that the Division of Public Defender Services would he “disinclined” to conduct such a large study because of its associated cost to the State. The motion was denied by the court, DeMayo, J.T.R., on March 15, 2005.
[3] The Court “accepted statistical disparities as proof of an equal protection violation in the selection of the jury venire in a particular district” and “in the form of multiple-regression analysis to prove statutory violations under Title VII of the Civil Rights Act of 1964.” (Citations omitted.) Id., 293-94.
[4] Although previous versions of the petition appear to narrow the scope of the study to defendants convicted of murder, the petitioner’s most recent amended petition, filed February 24, 2009, simply alleges that there is a racial disparity in the trial penalty amongst defendants who refuse plea bargains.
[5] The Chief Public Defender’s testimony indicated that in excess of $100,000 was spent to conduct a study analyzing capital cases alone.

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