264403 v. Warden, State Prison (2010)

MEMORANDUM OF DECISION

On June 1, 2007, the petitioner filed a petition for a writ of habeas corpus which was amended on July 29, 2008.   He claims that he was denied the effective assistance of counsel at the trial level and that the court erroneously reappointed ineffective counsel, both in violation of the sixth and fourteenth amendments to the United States Constitution, and article first, §§ 8 and 9, of the Constitution of the State of Connecticut.   He claims that his June 29, 2006 conviction of assault of a police officer, in violation of General Statutes § 53a-167c(a)(1) should be vacated.

The matter came to trial on January 27, April 7, and June 11, 2009.   The court heard testimony from the petitioner, four state police troopers and trial counsel, Attorney Christine Schwartzstein.   The respondent called no witnesses.   Among the numerous exhibits received by the court are the transcripts of the underlying trial and sentencing.   The petitioner filed his post-trial brief on September 24, 2009.   On October 15, 2009, the respondent filed its post-trial brief.   The court has reviewed all of the testimony and evidence and makes the following findings of fact.

FINDINGS OF FACT

1. The petitioner was the defendant in a case in the judicial district of Stamford-Norwalk at Norwalk under docket number CR040106657.   He was charged with two counts of assault on a police officer in violation of General Statutes § 53a-167c(a)(1).

2. As stated by the Appellate Court, the jury could have reasonably found the following facts to be true regarding the underlying offense.  “At approximately 6:45 a.m. on November 9, 2004, four uniformed state police troopers, David Febbraio, Jose Orama, John Jacobi and Wayne Rogalski, were having breakfast at the Diamond Deli, a restaurant located in Norwalk.   Shortly before 7 a.m., the defendant, who recently had lost his job, entered the deli, purchased a cup of coffee and began to shout and scream about the United States' immigration policies.   The defendant shouted at the troopers and demanded that they return illegal immigrants to their country of origin.   Orama, who remained seated at his table, informed the defendant that his behavior was inappropriate and asked the defendant to leave the deli.   The defendant complied with this request.   Approximately five minutes later, the defendant drove his car back into the deli's parking lot and parked it in front of the deli's front door, thereby obstructing the flow of traffic in the crowded lot.   The defendant exited his car and reentered the deli, where he began to scream and yell about the presence of immigrants.   The defendant walked to the troopers' table, slapped his fist on the table and shouted profanity.”  State v. Cyrta, 107 Conn.App. 656, 657, 946 A.2d 288, cert. denied, 288 Conn. 912, 954 A.2d 185 (2008).

3. “The troopers, who were concerned that the defendant's conduct could turn violent, concluded that some course of action was necessary.   Orama and Febbraio subsequently stood up at their table and Orama attempted to calm the defendant down by asking him what was wrong and informing him that the deli was not the appropriate forum for such behavior.   The defendant again left the building but continued to shout profanity as he walked outside.   The troopers left their table and followed the defendant out of the deli.   With Febbraio standing nearby, Orama approached the defendant and asked him if he had a problem.   The defendant responded by taunting Orama.   The defendant then informed the troopers that he was going to leave the parking lot.   Orama asked the defendant to remain where he was.   The defendant ignored Orama and opened the driver's side door of his vehicle.   Orama, who was holding a cup of hot coffee, reached for the car door, and the defendant put his hand on Orama's chest and pushed him away.   Orama informed the defendant that he was under arrest for breach of peace.”  Id., 657-58.

4. “After the defendant began to struggle with the troopers, Febbraio attempted to subdue him by putting him in an ‘arm bar’ position, which consisted of grabbing the defendant's right arm, raising it behind the defendant's back and pushing the defendant up against the defendant's car.   The defendant, who was much larger than Febbraio, continued to struggle.   At this point, Jacobi shouted that he was prepared to dispense pepper spray.   After another warning, Jacobi released pepper spray.   The majority of the pepper spray landed in Febbraio's face, and the defendant turned around and put Febbraio in a “bear hug” by wrapping his arms underneath Febbraio's arms and across his chest.   The defendant pulled Febbraio upward and Febbraio screamed out in pain as his left upper arm bone dislocated from his shoulder socket.”   Id., 658.

5. “After Febbraio's shoulder was dislocated, the defendant lowered his grasp to Febbraio's waist.   The two men continued to struggle and fell to the ground, where the defendant fell on top of Febbraio.   In an attempt to get the defendant off him, Febbraio used his right fist to punch the defendant.   The other troopers were then able to pull the defendant off Febbraio.   The defendant was arrested, and Febbraio was taken to Norwalk Hospital via ambulance, where X-rays revealed a severe dislocation of his left shoulder and a spiral fracture on the outer top portion of his right hand.   The dislocated shoulder was reset in the emergency room, and a hand surgeon repaired the fractured hand.”  Id., 658-59.

6. On June 29, 2006, the petitioner was convicted after a jury trial of one count of assault of a peace officer in violation of General Statutes § 53a-167c(a)(1) ¹ and was sentenced to ten years incarceration, execution suspended after six years and five years probation.²

7. The petitioner was represented at the underlying criminal trial by Attorney Christine Schwartzstein, an Assistant Public Defender with the Norwalk Office of the Public Defender.

8. On appeal, the petitioner's conviction was upheld.   See State v. Cyrta, supra, 170 Conn.App. 656.

9. Petitioner called as witnesses Trooper Wayne Rogalski who was one of the four troopers who tried to subdue petitioner.   He generally testified that the events of November 9, 2004 were those found as facts by the Appellate Court.   Trooper John Jacobi also testified about the same events from his prospective, describing his use of the pepper spray and generally confirming the facts as stated by Trooper Rogalski.   Petitioner also called retired Trooper David Febbraio who described how petitioner dislocated his left arm and how his right hand was broken in his attempt to extricate himself from petitioner's hold on him.

10. Trial counsel, Attorney Christine Schwartzstein, testified that she had engaged an investigator to investigate the assault, that she had provided petitioner with any documentation that she had, and that she had met repeatedly with the petitioner.   She also stated that it was unnecessary for her to file a discovery motion because the state had an open file policy, but she did anyway on June 15, 2005, in case there was anything more that she did not yet have.   She also testified that, as a strategic decision, she did not file a motion for discovery for the medical reports of the injured officer because it would place the focus on the severity of the injuries to Trooper Febbraio when all he had to testify to was that “he was in pain.”   She also made it clear that she was dismissed as counsel because petitioner represented that he wished to hire private counsel and that there was no conflict of interest with her reappointment as petitioner's counsel.   As to her strategic decision not to request a lesser included offense jury instruction, this was an issue she had discussed with petitioner and he fully agreed because he viewed this as an “all or nothing.”

11. The Court will discuss additional facts as needed.

DISCUSSION

In count one of his amended petition, the petitioner alleges that Schwartzstein was ineffective in that she failed to:  (1) undertake a proper investigation of the case;  (2) give the petitioner discovery obtained from the prosecution;  (3) file a discovery request until twelve days before trial;  (4) object to or seek a continuance because of the late production of a police report on the first day of trial;  (5) examine the medical records of Trooper Febbraio;  (6) request a jury instruction of lesser included offenses;  (7) supplement her oral motion to acquit with a written motion;  (8) address the prosecution's failure to prove the element of intent during her presentation at trial;  (9) honor petitioner's request not to make certain statements at sentencing;  (10) provide him with documents that he requested prior to sentencing;  and (11) decline reappointment “despite evident issue of conflict of interest and/or the appearance of conflict of interest.” ³

“A criminal defendant's right to the effective assistance of counsel ․ is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution ․ To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong.   To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ․ by the [s]ixth [a]mendment ․ To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different ․ The claim will succeed only if both prongs are satisfied ․ It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

“Judicial scrutiny of counsel's performance must be highly deferential.   It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable ․ A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ․ There are countless ways to provide effective assistance in any given case.   Even the best criminal defense attorneys would not defend a particular client in the same way.”  (Citations omitted;  internal quotation marks omitted.)  Strickland v. Washington, supra, 466 U.S. 688-89.

In paragraphs M(1) and (5) of his amended petition, the petitioner alleges that Schwartzstein failed to undertake a proper investigation and to examine the medical records of Fabbraio.   In his brief, he argues that had Schwartzstein conducted a proper investigation, including an examination of Fabbraio's medical records, she would have uncovered evidence demonstrating that the petitioner's conduct was not the proximate, i.e., direct and material, cause of Fabbraio's injuries and that Fabbraio and the other police officers were not acting in the performance of their duties at the time of the incident, both of which are defenses to the crime for which the petitioner was convicted.

“Because a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction ․ Regardless, counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it.”   (Citations omitted;  internal quotation marks omitted.)  Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721, 789 A.2d 1046 (2002).  “The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner.”  Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001).

At the habeas trial, Schwartzstein testified that she engaged an investigator to investigate the petitioner's case and that to the best of her recollection the investigator only talked to the petitioner, as no witnesses were developed.   She stated that the petitioner never gave her any names of specific witnesses that he wanted her to interview.   Schwartzstein further testified that she did not interview any of the police officers involved in the incident but that the investigator may have.   Regarding Fabbraio's medical records, she explained that she strategically decided not to obtain and introduce them into evidence because she did not want to highlight the severity of Fabbraio's injuries, especially when he only had to testify that he was in pain.

Contrary to Schwartzstein's testimony, the petitioner testified that Schwartzstein never told him that she had engaged an investigator and never mentioned anything about an investigation to him.   Moreover, at the habeas trial, the petitioner attempted to elicit testimony from Rogalski, Jacobi and Fabbraio that they had been breaking departmental rules by eating breakfast together at the deli on the morning of the incident in an effort to prove that they responded disproportionately to the situation.   He argued that because the police officers knew they were breaking departmental rules that morning they were edgy and therefore, used excessive force in responding to petitioner's actions.   In addition, he sought to elicit testimony from them to demonstrate that Fabbraio's injured hand may have been caused by him having struck the equipment worn by one of the other police officers and that his dislocated shoulder may have been caused by a pre-existing injury, by his own actions or by the actions of the other officers in trying to arrest the petitioner.   The petitioner also attempted to obtain Fabbraio's medical records for this reason.

This court sustained the respondent's objections to this line of questioning and limited the disclosure of the medical records produced by Fabbraio on relevancy grounds, as it is irrelevant whether Fabbraio may have had a pre-existing condition or whether the injuries to his hand and shoulder may have been caused by his own actions or those of the other police officers in arresting the petitioner.   General Statues § 53a-167c(a) provides in relevant part:  “A person is guilty of assault of public safety ․ personnel when, with intent to prevent a reasonably identifiable peace officer ․ from performing his or her duties, and while such peace officer ․ is acting in the performance of his or her duties, (1) such person causes physical injury to such peace officer ․” General Statutes § 53a-3(3) defines “physical injury” as “impairment of physical condition or pain ․” In order for legal causation to exist in a criminal prosecution, the state must prove beyond a reasonable doubt that the defendant was both the cause in fact, or actual cause, as well as the proximate cause of the victim's injuries ․ In order that conduct be the actual cause of a particular result it is almost always sufficient that the result would not have happened in the absence of the conduct;  or, putting it another way, that but for the antecedent conduct the result would not have occurred ․ On the other hand, proximate cause requires that the forbidden result which actually occurs must be enough similar to, and occur in a manner enough similar to, the result or manner which the defendant intended (in the case of crimes of intention) ․” (Emphasis added;  internal quotation marks omitted.)  State v. Guitard, 61 Conn.App. 531, 541-42, 765 A.2d 30, cert. denied, 255 Conn. 952, 770 A.2d 32 (2001).  “[The doctrine of intervening cause] refers to a situation in which the defendant's conduct is a ‘but for’ cause, or cause in fact, of the victim's injury, but nonetheless some other circumstance subsequently occurs-the source of which may be an act of the victim, the act of some other person, or some nonhuman force-that does more than supply a concurring or contributing cause of the injury, but is unforeseeable and sufficiently powerful in its effect that it serves to relieve the defendant of criminal responsibility for his conduct.”  (Emphasis added.)   State v. Munoz, 233 Conn. 106, 124, 659 A.2d 683 (1995).

All that the prosecution had to prove in the present case was that, if the petitioner had not resisted arrest and struggled, Fabbraio would not have been injured.   The scope of Fabbraio's injuries is irrelevant.   Moreover, the precise manner in which Fabbraio became injured in the altercation or whether he had a pre-existing condition would not have changed the outcome of the petitioner's trial.   Even if Fabbraio's injuries did not result literally from one the petitioner's actions, it is clear that in the absence of the petitioner's conduct Fabbraio would not have been injured.   Likewise, the petitioner has not demonstrated that further investigation would have revealed any evidence of an intervening cause.   He has not shown that any act of Fabbraio's or of one of the other officers in attempting to arrest the petitioner was anything but a contributing cause of Fabbraio's injuries.

Moreover, the petitioner's argument that the police officers used excessive force, i.e., were not acting in the performance of their duties, because they were edgy that morning having allegedly broken departmental rules by congregating for breakfast is attenuated at best.   The petitioner did not present any evidence demonstrating that the police officers used excessive force.   The only evidence he presented is that police officers are no longer trained to use the tactics that Fabbraio, Rogalski, Jacobi and Orama used in arresting the petitioner, as they are not the most effective.

Overall, the petitioner has failed to demonstrate what benefit additional investigation would have revealed.   Accordingly, the court cannot conclude that Schwartzstein was deficient in her performance for failing to investigate the petitioner's case further or for failing to obtain Fabbraio's medical records.  “[T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment ․” (Citation omitted.)  Iovieno v. Commissioner of Correction, 67 Conn.App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851 (2002).   The petitioner has not overcome this presumption.   Furthermore, he has failed to prove that Schwartzstein's alleged errors prejudiced his defense.   There is not a reasonable probability that additional investigation, including an examination of Fabbraio's medical records, would have changed the result of the underlying criminal proceedings.

In paragraphs M(1) through (4) of his amended petition, the petitioner makes numerous allegations relating to discovery and Schwartzstein's alleged ineffectiveness.   Specifically, he alleges that Schwartzstein was ineffective in that she failed to provide him with documents obtained from the prosecution and with Fabbraio's medical records, did not file a discovery request until twelve days before trial and failed to object to and seek a continuance on account of the late production of a police report.   In addition, in paragraph M(10), the petitioner alleges that Schwartzstein failed to give him documents that he requested prior to sentencing.

At the habeas trial, Schwartzstein testified that there is no question in her mind that she would have given the petitioner copies of everything that she had obtained from the prosecution.   Although she did not see the petitioner at the correctional facility, she testified that she had opportunities to talk with him in confidence and pass papers back and forth at the Norwalk courthouse.   She also indicated that she gave him the documents that he requested in preparation for his address to the court at sentencing.   Additionally, she testified that she did not file a motion for discovery earlier because her office has an open file policy with the prosecution and that the only reason she filed one in June 2006 was to cover her bases in case something had been overlooked.   The only discovery that she obtained after having filed the motion was the police report that the prosecution produced on the first day of trial.   As to the late production of that report, Schwartzstein testified that she would have asked for a continuance if she felt that it was necessary.   Furthermore, as noted supra, Schwartzstein explained that she did not obtain Fabbraio's medical records for strategic reasons.   Contrary to Schwartzstein's testimony, the petitioner testified at the habeas trial that he never received any documents from Schwartzstein despite his requests.   He could not, however, recollect whether he had asked for any documents prior to sentencing.

Regardless of whether these alleged errors constitute deficient performance, the petitioner has failed to demonstrate that any of them prejudiced his case.   There was no showing that Schwartzstein's allegedly late filing of the motion for discovery had any effect on the petitioner's case.   The only discovery received thereafter consisted of a single police report.   That police report is not in evidence.   Moreover, the petitioner notably has not alleged that it was exculpatory in nature, which leads the court to conclude that it had little, if any, impact on the outcome of the criminal trial.   Similarly, there was no showing that Schwartzstein's failure to object to the late production of the police report or to seek a continuance on account of it had any impact on the outcome of the criminal trial.   As for the alleged failure to provide the petitioner with documents obtained through discovery and with Fabbraio's medical records, the petitioner failed to demonstrate that had he received these documents there is a reasonable probability that the result of the proceeding would have been different.

In paragraphs M(6) through (8) of his amended petition, the petitioner makes several claims relating to Schwartzstein's deficient performance during trial.   In paragraph M(6), he alleges that she failed to request a jury instruction on lesser included offenses.   In paragraph M(7), he alleges that she only made an oral motion to acquit, and in paragraph M(8), he alleges that she did not address the fact that the prosecution failed to prove he assaulted public safety personnel because it failed to prove that he had the requisite intent.   Despite these allegations, the petitioner has not met his burden in establishing deficient performance on the part of Schwartzstein or assuming deficient performance, prejudice resulting therefrom.

Schwartzstein testified at the habeas trial that she did not request a jury instruction on lesser included offenses “[b]ecause for [the petitioner] this was all or nothing.” ⁴  It was a trial strategy.   She explained that the petitioner maintained his innocence since day one and that he desired a jury trial since day one.   She also testified:  “I believe our defense always was that [the petitioner] never had the intent and didn't commit [the assault].” ⁵

“[I]nterfering with an officer is a lesser offense included in the greater offense of assault of public safety personnel.”  State v. Tyson, 86 Conn.App. 607, 616, 862 A.2d 363, cert. denied, 273 Conn. 927, 873 A.2d 1000 (2004).  “To support a conviction for interfering with an officer, the state must prove beyond a reasonable doubt that the defendant obstructed, resisted, hindered or endangered an officer in the performance of his or her duties.  General Statutes § 53a-167a(a).   Additionally, the state must prove that the defendant had the specific intent to interfere with an officer.”   State v. Williams, 110 Conn.App. 778, 793, 956 A.2d 1176, cert. denied, 289 Conn. 957, 961 A.2d 424 (2008).   Since intent to interfere with an officer is an element of the lesser included offense of interfering with an officer and an element of the offense of assault of public safety personnel, it would have been inconsistent for Schwartzstein to request jury instructions on this lesser included offense while at the same time defending the petitioner on the ground that he never had such intent.   As testified to by Schwartzstein, the petitioner insisted on this course of representation.   Given the above, the court cannot find Schwartzstein deficient for failing to request a jury instruction on the lesser included offense of interfering with an officer.

Similarly, the court cannot find Schwartzstein deficient for failing to address the element of intent during the criminal trial, as the record reveals the contrary.   In cross-examining Febrraio, Orama, Jacobi and Rogalski, Schwartzstein elicited testimony from them that the petitioner had voluntarily left the deli, demonstrating that the petitioner did not intend to interfere with them.⁶  She also tried to elicit testimony from them that it is a normal reaction to go down to the ground when one is sprayed with pepper spray, which is how she argued the officers were injured.⁷  Furthermore, throughout her closing argument at the criminal trial, Schwartzstein emphasized that the petitioner was “complying with every order that the police officers gave him to the best of his ability” and that he did not have the intent to interfere with an identifiable police officer.⁸

As for the claim that Schwartzstein was deficient in failing to supplement her oral motion to acquit with a written motion, even assuming deficient performance, the petitioner has failed to demonstrate that such conduct prejudiced his case.   Once the prosecution rested, Schwartzstein made an oral motion for acquittal, arguing that the prosecution's evidence was insufficient to support a guilty verdict.⁹  The motion was denied, as the trial court found that there was sufficient evidence to allow the case to proceed.¹⁰  Moreover, on direct appeal, the Appellate Court held that “[t]he jury reasonably could have found that the defendant was guilty beyond a reasonable doubt of assaulting a peace officer.”  State v. Cyrta, supra, 107 Conn.App. 661.   It is not reasonably probable that a written motion to acquit would have changed the outcome of the proceedings, as both the trial court and the Appellate Court found that there was sufficient evidence from which the jury could have found the defendant guilty.

In paragraph M(9) of his amended petition, the petitioner alleges that “[a]t sentencing, Schwartzstein made statements belaboring subject matter adverse and contrary to [his] requests which were likely to increase his period of incarceration ․ At the habeas trial, petitioner's counsel questioned Schwartzstein whether the petitioner had told her that he did not want her to mention his mental health issues.   She testified that he asked her not to mention them during the trial but that it was understood that she would mention them at sentencing for mitigation purposes.   Petitioner's counsel also asked Schwartzstein whether she had stated at sentencing that the petitioner needed time hanging over his head, to which she responded she did not know.   Other than this colloquy, the petitioner did not elicit any testimony or produce any evidence at trial in support of this claim.   A review of the sentencing transcript reveals that although Schwartzstein brought up the petitioner's mental health issues at sentencing, she did so in an effort to advocate for leniency.¹¹  Accordingly, the court finds that the petitioner has, if not completely abandoned this claim, failed to meet his burden of proof as to it.

The petitioner's last claim of ineffective assistance of counsel is premised upon Schwartzstein's acceptance of reappointment after the court had granted the petitioner's motion to dismiss her as counsel.   The petitioner asserts that since he sought to dismiss Schwartzstein on account of her ineffectiveness, a conflict of interest arose upon her acceptance of reappointment, as “[the petitioner] had a potential malpractice claim against her as the result of the dismissal.” ¹²

“Where a constitutional right to counsel exists ․ there is a correlative right to representation that is free from conflicts of interest.”  (Emphasis in original;  internal quotation marks omitted.)  Morgan v. Commissioner of Correction, 87 Conn.App. 126, 132-33, 866 A.2d 649 (2002).  “Unlike other claims of ineffective assistance of counsel, where a petitioner claims that his counsel's performance was deficient because of an actual conflict of interest, prejudice does not need to be established ․ Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties.   Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests ․ In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth amendment the defendant has a two-pronged task.   He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance ․ [T]o sustain his burden, the petitioner must establish that an actual conflict existed;  the mere possibility of conflict is insufficient.”  (Citations omitted;  internal quotation marks omitted.)  Zollo v. Commissioner of Correction, 93 Conn.App. 755, 757-58, 890 A.2d 120, cert. denied, 278 Conn. 904, 896 A.2d 108 (2006).

In November 2005, the petitioner filed a motion to dismiss Schwartzstein as his counsel.   In his motion, he indicated that Schwartzstein had failed to perform her duties, refused to allow him to view any items, failed to investigate information, failed to discuss the case and would not return calls or send responses to mail.¹³  On January 10, 2006, the petitioner appeared before the court, (Holden, J.), and indicated, upon being asked, that he wanted time to hire his own lawyer.   It appears that the court granted the petitioner's motion to dismiss based upon this representation.¹⁴  The court did not discuss the particulars of the motion.   At the habeas trial, the petitioner testified that he believed that Schwartzstein was dismissed based upon his motion and that he never asked for a private attorney;  he simply wanted a different public defender.   Schwartzstein testified at the habeas trial that it was her understanding that she was dismissed as counsel because the petitioner wanted to hire private counsel.

On April 24, 2006, the court (Dooley, J.) reappointed Schwartzstein as the petitioner's counsel based upon the petitioner's desire to have a public defender reappointed and upon Attorney Elizabeth Reid's representations that Schwartzstein had been the petitioner's public defender, that she had worked “extremely hard on behalf of [the petitioner],” that there had been “no break down in the attorney/client relationship,” and that upon reappointment of the public defenders, Schwartzstein would be reassigned to the petitioner's case.¹⁵  The petitioner did not object to Schwartzstein's reappointment at that time, other than indicating that she “just assumes [he's] guilty and [he's] going to take a plea.” ¹⁶  He now asserts that her reappointment created a conflict of interest.  “An attorney [facing a possible conflict] in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.”  (Internal quotation marks omitted.)  State v. Barnes, 99 Conn.App. 203, 220, 913 A.2d 460, cert. denied, 281 Conn. 921, 918 A.2d 272 (2007).   Here, Schwartzstein testified that she never felt a conflict of interest in representing the petitioner even though she had been dismissed as counsel.   As noted supra, she did not believe that she had been dismissed for cause;  she believed she had been dismissed because of the petitioner's desire to hire private counsel.   Given the circumstances of her dismissal, this court agrees with Schwartzstein's assessment that her reappointment as the petitioner's counsel did not create an actual conflict of interest.

“Allegations that a defendant is simply unhappy with counsel's performance, without more, do not create a conflict of interest.”  State v. Barnes, supra, 99 Conn.App. 217-18.   That is, unsubstantiated complaints about counsel's performance and disagreements with counsel's tactical and strategic decisions do not create a conflict of interest warranting the withdrawal of counsel.   See State v. Vega, 259 Conn. 374, 391, 788 A.2d 1221, cert. denied, 537 U.S. 836, 123 S.Ct. 152, 154 L.Ed.2d 56 (2002).   As testified to by the petitioner at the habeas trial, he sought to dismiss Schwartzstein because he was unhappy with her performance.   Specifically, he was unhappy with the plea bargain that she presented to him in November 2005.   It was at that point that he realized that he had to get another attorney.   Although his motion to dismiss contains several allegations of deficient performance by Schwartzstein, none of them were ever substantiated.   Accordingly, the court cannot find that Schwartzstein's reappointment as counsel created a conflict of interest.

There is no evidence that Schwartzstein's interests were diverse from those of the petitioner.   She notably was not representing the petitioner and at the same time defending against a malpractice suit or grievance filed by the petitioner.   Moreover, the petitioner has not presented any evidence demonstrating the Schwartzstein's performance was adversely affected by an actual conflict of interest.   In short, the petitioner has failed to prove this claim.

In count two of his amended petition, the petitioner alleges that the trial court denied him due process and his right to the effective assistance of counsel by reappointing Schwartzstein after it had granted his motion to dismiss her for cause.¹⁷  In the return, the respondent pleaded the affirmative defense of procedural default as to count two, alleging that the petitioner failed to pursue the claim in the trial court or on direct appeal.   The petitioner replied denying that the defense of procedural default applies to his claim and asserting that he failed to pursue the claim in the trial court or on direct appeal because of the ineffective assistance of his counsel and of the lack of a preserved record for appeal.

“A respondent seeking to raise an affirmative defense of procedural default must file a return to the habeas petition responding to the allegations of the petitioner and ‘alleg[ing] any facts in support of any claim of procedural default ․’ Practice Book § 23-30(b) ․” (Citation omitted.)  Crawford v. Commissioner of Correction, 294 Conn. 165, 175-76, 982 A.2d 620 (2009).   “Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice.”   Zabian v. Commissioner of Correction, 115 Conn.App. 144, 152, 971 A.2d 822 (2009).  “The cause and prejudice standard is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvert[e]nce or ignorance ․ Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition ․ [T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate's procedural rule ․ [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel or ․ some interference by officials ․ would constitute cause under this standard ․ Cause and prejudice must be established conjunctively ․ If the petitioner fails to demonstrate either one, a trial court will not review the merits of his habeas claim.”  (Citations omitted;  internal quotation marks omitted.)  Crawford v. Commissioner of Correction, supra, 191.

“[W]hen a defendant ․ alleges that the trial court's failure to inquire about a possible conflict of interest led to the deprivation of a constitutional right during the criminal prosecution, the claim is proper for a direct appeal ․” (Citations omitted;  internal quotation marks omitted.)   Morgan v. Commissioner of Correction, supra, 87 Conn.App. 134.   Accordingly, the petitioner must demonstrate cause and prejudice for failing to raise this claim at trial or on appeal;  he has failed to do so.   The petitioner argues that Schwartzstein's failure to object to her reappointment and/or to disclose her conflict of interest to the trial court prevented him from pursuing this claim at trial or on appeal.   As discussed supra, Schwartzstein's reappointment after the trial court granted the petitioner's motion to dismiss her as counsel did not create an actual conflict of interest necessitating her to decline reappointment.   Accordingly, her failure to object to her reappointment does not constitute ineffectiveness of counsel.  “[A]ttorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of ․ procedure.”  (Internal quotation marks omitted.)  Crawford v. Commissioner of Correction, supra, 294 Conn. 194.   Count two of the petitioner's petition is, thus, procedurally defaulted.

In any event, “[t]o safeguard a criminal defendant's right to the effective assistance of counsel, a trial court has an affirmative obligation to explore the possibility of conflict when such conflict is brought to the attention of the trial judge in a timely manner.”  (Emphasis added;  internal quotation marks omitted.)  State v. Vega, supra, 259 Conn. 389.   As discussed supra, it was never brought to the attention of the trial court that even a potential conflict of interest existed.   The trial court did not, therefore, have an affirmative obligation to explore such possibility nor can it be said to have deprived the petitioner of a constitutional right by not doing so.

CONCLUSION

Based on the foregoing, the petition for a writ of habeas corpus is denied.   Judgment may enter in favor of the respondent.   Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.

BY THE COURT,

T. Santos, J.

FOOTNOTES

FN1. Petitioner's Exhibit [Exh.] 19, p. 129..  FN1. Petitioner's Exhibit [Exh.] 19, p. 129.

FN2. Petitioner's Exh. 20, p. 38..  FN2. Petitioner's Exh. 20, p. 38.

FN3. Amended Petition ¶¶ M(1)-(11)..  FN3. Amended Petition ¶¶ M(1)-(11).

FN4. Transcript of January 29, 2009, p. 53..  FN4. Transcript of January 29, 2009, p. 53.

FN5. Transcript of January 29, 2009, p. 65..  FN5. Transcript of January 29, 2009, p. 65.

FN6. Petitioner's Exh. 18, pp. 51, 103, 127 and 168..  FN6. Petitioner's Exh. 18, pp. 51, 103, 127 and 168.

FN7. Petitioner's Exh. 18, pp. 58, 105-06, 132 and 171..  FN7. Petitioner's Exh. 18, pp. 58, 105-06, 132 and 171.

FN8. Petitioner's Exh. 19, p. 84..  FN8. Petitioner's Exh. 19, p. 84.

FN9. Petitioner's Exh. 18, p. 179..  FN9. Petitioner's Exh. 18, p. 179.

FN10. Petitioner's Exh. 18, p. 180..  FN10. Petitioner's Exh. 18, p. 180.

FN11. Petitioner's Exh. 20, pp. 8-11..  FN11. Petitioner's Exh. 20, pp. 8-11.

FN12. Petitioner's Post-trial Brief, p. 12..  FN12. Petitioner's Post-trial Brief, p. 12.

FN13. Petitioner's Exh. 9..  FN13. Petitioner's Exh. 9.

FN14. Petitioner's Exh. 10..  FN14. Petitioner's Exh. 10.

FN15. Petitioner's Exh. 14, pp. 1-2..  FN15. Petitioner's Exh. 14, pp. 1-2.

FN16. Petitioner's Exh. 14, p. 1..  FN16. Petitioner's Exh. 14, p. 1.

FN17. Amended Petition ¶¶ S, T and U..  FN17. Amended Petition ¶¶ S, T and U.

Santos, Thelma A., J.