Edward R. Lambert v. Commissioner of Correction (2009)

(EXCERPT:  COURT'S RULING)

THE COURT:  All right.   The following will constitute the decision of this Court.   Madam Court Reporter, please prepare this portion of the transcript for my signature.

The petitioner in this case has filed a two-count amended petition alleging in count one that his confinement is illegal because he was denied the effective assistance of his trial defense counsel and in count two that he was denied the effective assistance of his counsel in his first habeas petition.

In the return the respondent has raised on count one the claim of procedural default.   The reply denies that.

Count one is going to be denied on the grounds of procedural default.   The petitioner has filed a previous habeas petition alleging ineffective assistance by trial defense counsel Attorney Paul Eschuk.   Count one of this complaint alleges the identical ground that he was denied the effective assistance of his attorney.   Now, to be sure, different facts are stated.   However, the claim in the first habeas petition and the claim in the second habeas petition are identical;  that is that the petitioner was denied the effective assistance of counsel.   Since the issue of procedural default has been raised in the return the burden then rests with the petitioner to demonstrate the cause for failing to raise the issues that he is addressing in count one in his first petition and prejudice.   Now this is required to be pled in the reply.   In other words, in the reply the petitioner is required to state sufficient facts to support a cause of prejudice.   He didn't do that.   But even if we get by that, there has been no proof submitted to this Court whatsoever that there was any cause for failing to include the matters that were brought up in count one in the original habeas petition tried before Judge Holden on December 4, 2000.   Consequently, this Court will find then that the petitioner is procedurally defaulted as to count one.

Moreover, even had there been no procedural default it is clear to this Court that the petitioner received appropriate representation by Attorney Eschuk.   The Court heard testimony from three witnesses.

Attorney Eschuk testified and without going over his testimony in detail, Attorney Eschuk clearly established that he had performed well above the minimum standard required by an attorney.   He successfully negotiated a plea agreement.   He presented that plea agreement to the petitioner and the petitioner voluntarily accepted and agreed to the plea bargain.

Now the argument that's been raised in this court by petitioner and his sister is that Attorney Eschuk threatened the petitioner with the death penalty if he didn't take the 32-year pretrial agreement.   I find that testimony to be incredible and not worthy of belief.

At no time did Mr. Eschuk refer to this as a death penalty case, and in fact, assured the petitioner that it was not.   As to the petitioner's testimony given here today under oath that Mr. Eschuk told him his choices were to either go to trial and get death or accept the 32 years the Court will note in Exhibit B which also as the same as Exhibit 6-so both parties have introduced identical transcripts-on page 42 when asked that very same question on December 4 of 2000 the petitioner under oath replied “He told me that my options were to take the 32 years or go to trial and get 60.”   And on page 57 he repeated that and that he indicated Mr. Eschuk told him that life was the maximum penalty.

Now what I'm confronted with is a petitioner who in December 4, 2000 said one thing under oath and today said a different thing under oath.   It's crystal clear that he has violated one of those oaths, either on December 4, 2000 or today.   The petitioner has demonstrated clearly, clearly demonstrated that he will say whatever suits his purpose at the time.

Consequently this court will give no credibility to any of the testimony by the petitioner.

Which gets to count two.   Count two alleges ineffective assistance by habeas counsel.   The only issue raised-I'm sorry-the only evidence presented to this Court today that would deal with the performance of Attorney Hess in the first habeas trial is the testimony of the petitioner which, as I've already noted, is not worthy of belief.   But even if taken at its face value, the best that it establishes is that Mr. Hess did not meet with the petitioner prior to the trial of the habeas case.

Now there are two prongs that one must look at in determining whether or not there has been ineffective assistance of counsel.   These are the prongs established by the Strickland and Washington case.   The first prong is there must be deficient performance.   Arguably a failure by the attorney to meet with his or her client prior to trial could be classified as deficient performance.   However, this Court is not about to rule that the failure to meet with a client is per se deficient performance.   There may be good and valid reasons why it didn't take place even if this Court gives any credence to the testimony of the petitioner.   The second prong of the Strickland standard requires a showing of prejudice as a result of that deficient performance.   It's clear under Connecticut law that this Court is free to deny a habeas petition on either ground.   It is required for the petitioner to be afforded relief but he must show cause and prejudice in the conjunctive and the Court is free to deny on either ground, whichever is easier.

Well, in this case the easiest way in which to deny count two is the finding of no prejudice because there hasn't been the slightest evidence to demonstrate that even had there not been a meeting with Mr. Hess, that had there be a meeting with Mr. Hess important matters would have been conveyed to him and the result of the habeas trial would have been different.   Consequently the petitioner has failed in his burden of demonstrating prejudice.

Now, I want to make it clear that he has failed in both burdens.   First, the Court does not believe the testimony that Mr. Hess failed to meet with Mr. Lambert.   Secondly, even if true, that does not necessarily establish deficient performance.   And, at any rate, there is clearly is no prejudice shown.

Madam Clerk, if you would please serve the appeal papers on the petitioner.   The appeal papers have been handed to the petitioner.   Are there any further matters from either side?

MS. MASI:  No, your Honor.

MS. JUNIEWIC:  No, your Honor.

THE COURT:  I thank both counsel for conducting themselves in a professional manner and again, I do appreciate you premarking the exhibits even though I didn't let them in.   But, nevertheless, I do appreciate that.

There being nothing further, the court will be adjourned.

(At this time, this hearing concluded.)

Honorable Stanley Fuger, Judge

Fuger, S.T., J.