148489 v. Commissioner of Correction (2010)

Memorandum of Decision

The petitioner, Travis Davis, alleges in his petition for a Writ of Habeas Corpus filed on December 7, 2005 ¹ that he was deprived of the effective assistance of counsel in his original habeas trial in which he challenged the legality of his confinement for several serious offenses.   He specifically claims to have been deprived of the effective assistance of counsel because his assigned habeas counsel, Atty. Raymond Rigat, was ill prepared for the trial and that this necessitated the petitioner having to ask for Atty. Rigat to be relieved and to represent himself.   As an aside, this petition marks the first time that this Court has ever seen a self-represented litigant claim to have been denied the effective assistance of counsel.

This matter came on for trial before this Court on May 3 and 4, 2010 at which time testimony was received from the petitioner, the petitioner's trial defense counsel, Atty. Thomas Conroy, the petitioner's original habeas counsel, Atty. Raymond Rigat, Atty. Karen Goodrow, and Senior States Atty. James Clark.   In addition, the Court received several pieces of documentary evidence, including transcripts of the petitioner's underlying criminal and habeas trials.   As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.

The Court has reviewed all of the testimony and documentary 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 New Haven under Docket Number CR6-391349 entitled State v. Davis in which he was charged with:  Attempted Assault in the 1st degree in violation of CGS §§ 53a-49(a)(2) and 53a-59(a)(1);  attempted assault on a police officer in violation of CGS § 53a-49(a)(2) and 53a-167c(a)(1);  commission of a class A, B, or C felony with a firearm in violation of CGS § 53-202k;  and, criminal Possession of a Firearm in violation of CGS § 53a-217(a)(1).   The petitioner was also charged in a Part B information with being a persistent serious felony offender and a persistent dangerous felony offender.

2. The petitioner, after a trial to the jury, was convicted of all counts.

3. On December 20, 1996, the petitioner was sentenced to a total effective sentence of thirty (30) years to serve by the Court, Fracasse, J.

4.  The petitioner appealed this conviction, and the Appellate Court affirmed the convictions, but remanded the case back for re-sentencing.  State v. Davis, 51 Conn.App. 171 (1998).

5. On February 8, 1999, the Court once again sentenced the petitioner to a total effective sentence of thirty years.

6. Additional facts shall be discussed as necessary.

Discussion of Law

The petitioner represented himself at the habeas trial.   Ordinarily that would be the end of this inquiry because while one does have the right to have the effective assistance of counsel, a petitioner cannot decline the assistance of a lawyer and then make the argument that his or her own performance was substandard and obtain relief from the court.   There is, however, a twist to this case.   The petitioner argues that the only reason that he had to represent himself was that his special public defender assigned to his habeas case (Atty. Raymond Rigat) was inadequately prepared for trial and that this necessitated the petitioner releasing Atty. Rigat and proceeding to trial as a self-represented litigant.   So, the key question that needs answering is just that.   If Atty. Rigat was, in fact, prepared to try this habeas case, then the fact that the petitioner elected to relieve counsel and proceed on his own makes this a scenario that does not permit the court to adjudge relief.   On the other hand, if the petitioner were forced into a self-represented situation because his habeas counsel was ill prepared, then relief may be merited.

It is important at the outset to understand a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime.   While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not.  “It is undoubtedly true that ‘[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt.  In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).’  Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) ․ The presumption of innocence, however, does not outlast the judgment of conviction at trial ․ Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is ‘innocent,’ but on the contrary as one who has been convicted by due process of law.”  Summerville v. Warden, 229 Conn. 397 at 422-423 (1994).   The burden of proof in a habeas petition, therefore, rightfully rests upon the petitioner.

In order to prevail on the issue of whether there has been ineffective representation by the petitioner's counsel, the petitioner must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d (1984), before the Court can grant relief.   Specifically, the petitioner must first show “that counsel's performance was deficient.   This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”  Strickland, infra at 687.   If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving “that the deficient performance prejudiced the defense.   This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.   Unless a defendant makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable.”  Strickland, infra at 687.   In short, the petitioner must show both deficiency and prejudice.   A failure to prove both, even though counsel's performance may have been substandard, will result in denial of the petition.

In the instant case, the petitioner alleges that his habeas counsel was not prepared for trial.   If the petitioner successfully demonstrates that despite adequate opportunity to prepare for trial his duly assigned habeas counsel was not prepared, it is clear that this would be deficient performance on the part of the special public defender assigned to represent him at the habeas trial.   Given that the petitioner has a statutory entitlement, if indigent, to be represented by a public defender in a habeas trial, the prejudice prong would be clearly established if the petitioner was thereby not afforded his right to counsel.   The key predicate and the linchpin of this case is the question of whether Atty. Rigat was prepared for trial or not.

In resolving factual matters in habeas matters this Court “may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial.”  Beasley v. Commissioner of Corrections, 47 Conn.App. 253 at 264 (1979), cert. den., 243 Conn. 967 (1998).  “A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to 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.”  Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317 (2000).

Moreover, “[j]udicial 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 ․ The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges.   Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense.   Counsel's performance and even willingness to serve could be adversely affected.   Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client.”  Strickland vs.   Washington, 466 U.S. 668 at 688 (1984).

The burden of persuasion in a habeas case justifiably rests with the petitioner because of the “fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence.”   Summerville v. Warden, 229 Conn. 397 at 419 (1994).   There is, therefore, a strong societal interest “in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility.”  Id.

This admonition from the United States Supreme Court bears reiteration.  “A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged ‘action might be considered sound trial strategy’ ․ [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable and professional judgment.”  (Citations omitted.)  Strickland v. Washington, supra, 466 U.S. 689-90.

The question of Atty. Rigat's preparedness is somewhat subjective.   There are no clear objective criteria that can be applied in determining this question.   This Court did receive the sworn testimony of Mr. Rigat to the effect that he was indeed prepared and looking forward to trying the petitioner's case.   There was the testimony that Atty. Rigat had participated in numerous habeas cases.   He did testify to the procedure followed in his office for the preparation of habeas cases and detailed that his associate and paralegal had conducted the necessary witness interviews and met with the petitioner.   More than likely however, it is here where the problem between the petitioner and his habeas counsel had its genesis.   Both Mr. Rigat and the petitioner were in agreement that the first time that the two had met face to face was on the day that the petitioner's habeas trial was to commence.

The medical profession speaks of an intangible called “bedside manner.”   The practice of law does not have a directly comparable word, but just as a good “bedside manner is important to a Medical Doctor, so too is good client rapport important to a lawyer.   It is clear that in the instant case, Atty. Rigat's “bedside manner” was somewhat lacking.   The petitioner was perhaps justifiably upset that the first time he met his lawyer was the day of trial.   While this is not a good practice, it is not, in and of itself, indicative of a lack of preparation.   Mr. Rigat detailed in his testimony that it was his practice to use associates and his paralegal to conduct interviews and meet with the client.   He also testified quite clearly that he was indeed prepared and the petitioner did not present any evidence that could lead this court to conclude otherwise.

Consequently this Court will find that Atty. Rigat was indeed adequately prepared to go forward in his representation of the petitioner at the first habeas trial and that the petitioner, although unhappy that Mr. Rigat had not met with him before the date of the habeas trial was not forced to represent himself.   There is, therefore, no finding of deficient performance nor is there any prejudice.   There was no ineffective assistance by counsel.

In Count Three, the petitioner alleges that the New Haven police withheld exculpatory evidence, specifically that the gun found at the scene did not have any fingerprints on it.   The United States Supreme Court has held that “the suppression by the prosecution of evidence favorable to an accused ․ violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”  Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1193, 10 L.Ed.2d 215 (1963).  “This type of violation of the defendant's due process rights is commonly referred to as a Brady violation.”  (Internal quotation marks omitted.)  Quintana v. Commissioner of Correction, 55 Conn.App. 426, 436-37, 739 A.2d 701, cert. denied, 252 Conn. 904, 743 A.2d 614 (1999).  “To establish a Brady violation, the [petitioner] must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [petitioner], and (3) it was material [either to guilt or to punishment].”  State v. Pink, 274 Conn. 241, 253, 875 A.2d 447 (2005).  “[E]vidence is favorable if it is either exculpatory or impeaching.”   Morant v. Commissioner of Correction, 117 pp. 279, 285, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009).   “[E]vidence is material duly if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  (Internal quotation marks omitted.)   State v. Floyd, 253 Conn. 700, 744, 756 A.2d 799 (2000).

Contrary to the petitioner's contention, the evidence allegedly suppressed by the state was not favorable to him and cannot, therefore be classified as Brady material.   The fact that the weapon found at the scene of the shooting did not have any fingerprints is not in and of itself exculpatory, particularly given the other evidence that points to the petitioner's case.   While it certainly would have been something that the defense would likely have placed before the jury, it is also highly unlikely that the results of the trial would have been any different.

Accordingly, the Petition for a Writ of Habeas Corpus is denied.

S.T. Fuger.   Jr., Judge

FOOTNOTES

FN1. The petition initially contained four counts.   Count one alleging ineffective assistance of trial defense counsel was dismissed as being res judicata having previously been adversely decided to the petitioner.   Count four was voluntarily withdrawn with prejudice by the petitioner at trial.   As to the remaining counts, count two alleges ineffective assistance of habeas counsel and count three alleges a Brady violation..  FN1. The petition initially contained four counts.   Count one alleging ineffective assistance of trial defense counsel was dismissed as being res judicata having previously been adversely decided to the petitioner.   Count four was voluntarily withdrawn with prejudice by the petitioner at trial.   As to the remaining counts, count two alleges ineffective assistance of habeas counsel and count three alleges a Brady violation.

Fuger, S.T., J.