Howard Cosby v. Warden (2010)

MEMORANDUM OF DECISION

THE COURT:  All right.   The following will constitute the decision of this Court.

Madam Court Reporter, please prepare the transcript for my signature.

There are some things to keep in mind in dealing with a habeas corpus petition.   Number one, the petitioner, unlike the defendant in a criminal case, does not come into the habeas corpus petition trial with the presumption of innocence.   He, in fact, comes before the Court as one who has been convicted.   He is not a defendant;  he is a convict.

Second, the burden of proving the right to relief rests with the petitioner.   It does not rest with the respondent.

Now, here, we have a case in which an attorney is alleged to have been ineffective in his representation of the petitioner.   The governing case in this habeas corpus arena about ineffective assistance of counsel is the U.S. Supreme Court case Strickland v. Washington.

In essence, in Strickland, there was set up a two-part test to determine whether an attorney was ineffective.   A petitioner-in order to achieve relief-must prove both parts of this two-part test.   A failure to prove both parts will result in a denial of the petition.

Moreover, it's clear that a habeas Court need not even decide on both prongs if the petitioner fails on one of the prongs, and a Court is free to deny a petition on the basis of whatever is easier.

To prove ineffective assistance of counsel, a petitioner must demonstrate that his lawyer was-and I'll use the term-guilty, although I don't mean guilty in the criminal sense, of deficient performance;  that is, that the attorney failed to perform in a manner expected of a reasonably prudent and experienced practitioner.

Secondly, the petitioner must also prove that as a result of that deficient performance, the petitioner suffered prejudice.

And that brings us to the evidence in this case, which consists almost exclusively of the testimony of the petitioner getting on the witness stand and telling his version of the events that took place the night the victim, Tiffany, was sexually assaulted.

It's important to remember that a habeas petition is not a retrial of the original case.   It is not an opportunity for counsel to attempt to put on evidence and present a different picture of what took place.

The Court has read the transcript, has read the appellate decision in this case, and is satisfied that there is more than sufficient evidence-as wasthe Appellate Court convinced that there was more than sufficient evidence-with which to convict the petitioner of the crime of sexual assault in the first degree.

The petitioner added nothing in his testimony to suggest that Attorney Abbamonte was in any way ineffective.   In fact, there's very little evidence surrounding what Attorney Abbamonte did or did not do.   The Court has no basis on the evidence presented to it to make any conclusion that Attorney Abbamonte was deficient in his performance, much less that there was any prejudice.

The argument that the testimony of Tracy Cosby and Lorraine Gonzalez should have been presented will fail on the ground that their testimony does not establish prejudice.

While their testimony does go to provide an explanation for the presence of the petitioner in Rhode Island other than fleeing the state of Connecticut to avoid prosecution it is not persuasive evidence.   That argument was made to the jury, and the jury rejected it.

The Court cannot find that the failure to present Tracy Cosby and Lorraine Gonzalez's testimony, even if it were deemed to be deficient performance not to call them-and the Court does not make that finding-that there is no prejudiceas a result.

At its bottom line, in order to grant a habeas petition, the Court must be satisfied that its confidence in the underlying conviction has been shaken, and this Court has heard nothing to render the decision of the criminal trial Court anything other than reliable.

Consequently, the petition for a writ of habeas corpus is denied.

Madam Clerk, have you served the appeal papers-had the Marshal do so?

And may the record reflect that the appeal papers have been handed to the counsel for the petitioner and the petitioner.

Is there any further business, Mr. Eisenman?

ATTY. EISENMAN:  No, Your Honor;  thank you.

THE COURT:  Is there anything further?

ATTY. JAUMANN:  No, Your Honor.

THE COURT:  Very well.   Court will be adjourned.

ATTY. JAUMANN:  Thank you.

(The matter was concluded, and court was adjourned.)

Stanley T. Fuger, Jr., Superior Court Judge

Fuger, S.T., J.