19-1033
   Francis v. Commissioner of Correction


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE
A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for the Second Circuit,
   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
   City of New York, on the 23rd day of September, two thousand twenty.

   PRESENT:
                    GERARD E. LYNCH,
                    RICHARD J. SULLIVAN,
                    MICHAEL H. PARK,
                         Circuit Judges.
   _____________________________________

   Kermit Francis,

                            Petitioner-Appellant,

                    v.                                             No. 19-1033

   Commissioner of Correction,

                            Respondent-Appellee,

   Mulligan, Warden,

                             Respondent.
_____________________________________

For Petitioner-Appellant:                   RANDOLPH Z. VOLKELL, Merrick, NY.


For Respondent-Appellee:                    JAMES M. RALLS, Assistant State’s
                                            Attorney, Appellate Bureau, Office of
                                            the Chief State’s Attorney, Rocky Hill,
                                            CT.



      Appeal from the United States District Court for the District of Connecticut

(Stefan R. Underhill, Chief Judge).

      UPON         DUE   CONSIDERATION,           IT   IS   HEREBY     ORDERED,

ADJUDGED, AND DECREED that the district court’s judgment is VACATED,

and the case is REMANDED to the district court for further proceedings consistent

with this order.

      Petitioner-Appellant Kermit Francis appeals from a judgment of the district

court (Underhill, C.J.) dismissing his petition for a writ of habeas corpus under 28

U.S.C. § 2254 as time barred.         We assume the parties’ familiarity with the

underlying facts, procedural history, and issues on appeal.

      As relevant here, the statute of limitations applicable to habeas petitions is

one year 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.”

§ 2244(d)(1)(A).     Between the district court and the parties, we are told that

Francis’s judgment became final on three different dates.

       The district court identified November 16, 1998 – the last day on which

Francis could petition the U.S. Supreme Court to review his conviction – as the

date that the judgment became final.              The Commissioner of Correction, by

contrast, argues that Francis’s judgment became final sometime before

December 2, 1998, when the Sentence Review Division of the Connecticut Superior

Court 1 affirmed Francis’s sentence. 2 But in either case, Francis’s petition would

have been time barred when he filed it in May 2018.

       Not surprisingly, Francis disagrees with both. Although he acknowledges

that his convictions for murder and possession of a firearm without a permit

became final in 1998, he insists that the third count of his information, for alteration

of a firearm serial number, was still pending at that time, having been sent back to



1 The Sentence Review Division is “an arm of the [Connecticut] Superior Court,” which possesses
“discretionary authority to review prison sentences.” State v. Nardini, 

, 122, 127
(1982). “[N]either the state nor the defendant may appeal from the decision of the [S]entence
[R]eview [D]ivision.”

Specifically, the Commissioner’s brief on appeal argues that Francis’s judgment became final
when the vacated count for altering a firearm serial number was dismissed, which, according to
the Commissioner, occurred prior to the issuance of the Sentence Review Division’s decision –
that is, “December 1, 1998, at the latest.” Commissioner Br. at 9.

                                              3
the Connecticut Superior Court for a new trial. And while the state ultimately

chose not to retry him, Francis tells us that this last count was not formally

dismissed until September 25, 2018, when he received a “mittimus” from the state

court. 3 It was not until that date, says Francis, that his judgment became final.

       “[F]inality is variously defined, and its precise meaning depends on

context.”     Burrell v. United States, 

, 163 (2d Cir. 2006) (internal

quotation marks omitted).           In a criminal case, “[f]inal judgment . . . means

sentence” – in other words, “[t]he sentence is the judgment.” Burton v. Stewart,

, 156 (2007) (emphasis added) (quoting Berman v. United States, 

, 212 (1937)).       A literal reading of that rule would seem to support the

Commissioner’s position that Francis’s judgment became final sometime in late

1998, before the Sentence Review Division affirmed Francis’s sentence on the

murder and permit counts. But things are not that simple.




3 Under Connecticut law, a mittimus is “a clerical document by virtue of which a person is
transported to and rightly held in prison.” Comm’r of Corr. v. Gordon, 

, 392 (1994).
“If the judgment of the court and the language of the mittimus conflict, the judgment prevails
because the prisoner is not detained by virtue of the warrant of commitment, but on account of
the judgment and sentence.”

Francis did not provide that mittimus to
the district court or to us, and neither party has attempted to explain the significance of a newly
issued mittimus where, as here, a defendant has been incarcerated for well over two decades.

                                                4
       Francis was charged in a multicount information, and it is a general rule that

a charging instrument, even one with multiple counts, results in only a single

judgment. See 

; see also United States v. Dodson, 

,

274 (4th Cir. 2002) (explaining that when “convictions and sentences arise from a

multicount indictment, a single judgment of conviction results”). 4                    A natural

consequence of that fact, it seems to us, is that each count in an information must

be formally disposed of – whether through a conviction, an acquittal, or a

dismissal – for a judgment to become final. But there is an exception: when an

appellate court affirms a conviction and sentence on at least one count and

remands the case to the trial court “only [for] the ministerial task of entering a new

judgment, the original judgment is the relevant judgment for habeas purposes.”




4  Connecticut courts have adopted a similar stance with respect to multi-count charging
instruments. See State v. Dowdy, 

, 327 (Super. Ct. 1967) (“A sentence is the
judgment in a single case. Each case ends in a single judgment no matter how many separate
offenses are charged in the single information in the case. If on the other hand, a single accused
is proceeded against on two or more separate and distinct informations there are as many
separate cases against the accused as there are separate informations and each of those cases in
which there is a conviction ends in a sentence or judgment.” (quoting Moquin v. Walker, 4 Conn.
Supp. 364, 365 (Super. Ct. 1936)); see also State v. Wright, 

, 685 (2015) (referring to
“the judgment of conviction” rendered following the defendant’s conviction on a multi-count
information (emphasis added)).

                                                 5
Gonzalez v. United States, 

, 236 (2d Cir. 2015); see also 

.

      The district court relied on that ministerial exception to decide Francis’s

case. Specifically, instead of determining when the alteration count was formally

dismissed, the district court reasoned that the Connecticut Supreme Court’s

remand to the Superior Court was for a purely ministerial purpose, as the Superior

Court was not required to take any action unless the state ultimately chose to retry

Francis (which it did not). So, according to the district court, no matter when the

alteration count was formally dismissed, the statute of limitations began to run on

November 16, 1998, once the window to petition the U.S. Supreme Court for

review had closed and the case had been sent back down, since the Superior Court

did not end up exercising any discretionary authority following the remand. See

Francis v. Comm’r of Corr., No. 18-cv-847 (SRU), 

, at *5 (D. Conn.

Mar. 15, 2019).    While all this raises an interesting legal question, it appears

possible (maybe even likely) that this case can be resolved on simpler grounds.

      The Commissioner tells us that the alteration charge was formally dismissed

and Francis was resentenced sometime in late 1998. If that is true, and if Francis




                                          6
was made aware of the dismissal at that time, that would conclusively resolve this

case.

        But, unfortunately, we cannot assess the accuracy of the Commissioner’s

position based on the record before us. To start, while the Commissioner argues

that the Sentence Review Division’s reference to “the remaining two counts,” State

v. Francis, No. CR 95474852, 

, at *1 (Conn. Super. Ct. Dec. 2, 1998),

indicates that the alteration count had already been dismissed, we are not so sure.

The Sentence Review Division just as easily could have been referring to the fact

that there were only two counts with convictions remaining to support Francis’s

sentence, his conviction on the alteration count having been vacated on appeal.

Moreover, given that the Commissioner did not make this argument below, and

instead proposed the position that the district court ultimately adopted, we are

reluctant to rely on his proposed reading of the Sentence Review Division’s

opinion.    And although the Commissioner states that his position is further

supported by a transcript from a September 1998 Superior Court proceeding, that

transcript is not part of the record. So we can only guess at its contents.

        Without a clear answer on this issue, we conclude that the best approach is

to send the case back to the district court for further factual development on when

                                         7
the alteration count was formally dismissed (and when Francis learned of that

dismissal). The district court is better suited to engage in this fact finding in the

first instance, including by reviewing the 1998 transcript and the 2018 mittimus

that the parties claim support their respective positions.

         Accordingly, the district court’s judgment is VACATED, and the case is

REMANDED to the district court for further proceedings consistent with this

order.     Should any appeal ensue, either party may restore our jurisdiction

pursuant to the procedure outlined in United States v. Jacobson, 

, 22 (2d

Cir. 1994), in which event the appeal will be referred to this panel.

                                       FOR THE COURT:
                                       Catherine O’Hagan Wolfe, Clerk of Court




                                          8