James Baker v. Warden, State Prison (2010)

EXCERPT HABEAS DECISION

THE COURT:  The Court has reviewed the entirety of the evidence, and that includes the testimony that was taken yesterday, and certainly all the exhibits that have been entered into evidence, and so the record is clear, trial commenced yesterday and testimony was heard from the petitioner, Mr. James Baker.

In evidence is Respondent's A, a copy of the appellate court decision in the matter of State v. James Baker, AC17227, a reported decision at 50 Conn.App. 268, a 1998 decision of the appellate court.

Respondent's B is a transcript from proceedings in the matter of State v. Baker, CR94-0394923, from the Judicial District of New Haven.

Respondent's C is a transcript from proceedings in the matter of State v. Baker, same docket number as previously referenced, again, the Judicial District of New Haven.   Those proceedings were January 12, 1996, and if I didn't indicate already, Respondent's B were proceedings from September 24, 2003.

That is the entirety of the record and the exhibits that were admitted into evidence.

With regard to this claim, the court makes the following findings.

Mr. Baker is in the custody of the commissioner of corrections and currently housed in Cheshire, Connecticut.   Mr. Baker was previously housed at the Walker-MacDougall Correctional Institution.   Mr. Baker, on a prior occasion, pleaded not guilty to charges, including murder, in violation of Connecticut General Statute Section 53a-54a and 53a-8, accessory to committing murder and conspiracy to commit murder, in violation of Connecticut General Statute Section 53a-54a and 53a-48.

Subsequent to March 21, 1994, this court finds that Mr. Baker appeared in the Judicial District of New Haven upon presentment to charges and entered a plea of not guilty and elected a trial by jury.

In the Spring of 1994, Mr. Lawrence Hopkins filed an appearance on behalf of Mr. Baker and was his counsel, in fact.

Thereafter, Mr. Baker proceeded to a trial before a jury.   Upon conclusion, Mr. Baker was convicted of murder, in violation of the statutes previously referenced, and conspiracy to commit murder, again, in violation of the statutes previously referenced.

The trial occurred before the Honorable Judge Joseph Licari.   At sentencing, the court, Judge Licari, committed Mr. Baker to the custody of the commissioner of corrections upon a finding of guilty due to the conviction of murder for a term of fifty years to serve.   With regard to the charge of accessory, the court, Licari, J., sentenced Mr. Baker to a term of fifteen years to serve concurrent with the sentence previously imposed, for a total effective sentence of fifty years to serve.   Mr. Baker was sentenced on January 12, 1996.

Subsequent to that proceeding, Mr. Baker appealed his case unsuccessfully to the State of Connecticut Appellate Court in the decision that was previously referenced.

Subsequent to that, this court finds that Mr. Baker instituted a petition for a writ of habeas corpus in which he was represented by Attorney Joseph Visone.

In evidence is a transcript, Petitioner's B, of a proceeding stemming from State v. Baker, not an action which can be constituted as a civil action against a warden or a commissioner of correction.   The transcript speaks for itself and the court, as indicated initially, certainly read the entirety of the transcript and heard testimony concerning this proceeding.

This court finds as a result of the proceeding on September 24, 2003, the court, Licari, J., granted a motion for modification of Mr. Baker's sentence with respect to the conviction of murder and reduced same to a term of thirty-two years.   With regard to the conspiracy sentence, the court left that sentence intact, leaving a total effective net sentence following modification of thirty-two years to serve.

With regard to the events and circumstances giving rise to the conviction for which Mr. Baker is incarcerated, the court finds helpful a review of the facts as cited by the appellate court at page 268, 269, 270 in the reported decision, where the court, in a decision by Judge Sullivan, states the jury reasonably could have found the following facts.

On March 21, 1994, the victim, Amenophis Morris, was shot and killed while standing on the porch of his home on Exchange Street in New Haven.   Earlier that day, the defendant, the petitioner herein, had had a confrontation with Jeffrey Dolphin, with whom the defendant sold drugs.

The court, in referencing the defendant in the recitation of the decision by the appellate court, refers specifically to the petitioner, Mr. James Baker.

The defendant believed Dolphin was responsible for a third party's loss of certain drugs.   At page 270, the appellate court continues, after the confrontation, Jermaine Harris, Trent Butler and Terrence Stevenson arrived, and the defendant told them that Dolphin was responsible for losing drugs.   Stevenson and Dolphin went to look for the drugs but were unsuccessful.   Thereafter, Dolphin and Stevenson reunited with Harris, Butler and the defendant.   Harris pulled a gun on Dolphin and stated “Why don't we make this asshole do it?”   Stevenson asked Dolphin if he had ever killed anyone, to which Dolphin replied that he had not.   Stevenson told Dolphin that there was someone he wanted Dolphin to kill.   Then Stevenson forced Dolphin into the defendant's car and all five men drove off.   Dolphin heard the name Amenophis and heard a reference to money that was owed.

The defendant drove to Exchange Street and parked the car.   Harris and Stevenson got out of the car and walked up to the victim, who was standing on his porch.   Harris was carrying a gun and was wearing a black army fatigue jacket and a mask.   The defendant and Butler got out of the car and stood in front of it.   Dolphin heard five to eight shots and observed the victim fall.

Thereafter, the men jumped into the car and Harris said, “I got that bastard.”   Eventually, the men let Dolphin out of the car.   Before doing so, however, Butler told Dolphin, “I know where your mother and sister live” and “they've been finding bodies in Bridgeport.”

The victim's neighbor, Luis Deleon, observed the shooting from his porch across the street.   He saw a person wearing a black mask and an army jacket walk toward the victim's residence, pull out a gun and fire six shots.   He saw the victim fall to the ground and saw the assailant flee.

Of note, the petitioner, at the proceeding addressed in Respondent's B of September 24, 2003, admitted his involvement in this event, and in his testimony yesterday the petitioner on cross-examination admitted that he was the driver of the car in this event described in the appellate court proceeding, which involved essentially an execution of the victim in that matter.

Here, the petitioner, in advancing his apparent second petition for writ of habeas corpus dated March 29, 2007, set forth a number of claims.

Yesterday, the court granted the respondent's motion to dismiss the entirety of count two and three and certain aspects of count one, in particular subparagraphs 2(c), (d), (e), paragraph 3, 5, 7 and 8 in their entirety, and by way of articulation, the court found wanting any proof upon which a finder of fact could rule in favor of the petitioner.

Suffice to say, those claims appear to have been abandoned.   Indeed, the petitioner offered to withdraw those claims, which the court found an absence of good cause, and in the same context granted the motion to dismiss.

That being said, the remainder of the allegations survive for purposes of review in this proceeding.   With regard to the remainder of the claims that exist, the petitioner has set forth what can be described as a claim of ineffective assistance of counsel.   With regard to this claim of ineffective assistance of counsel, a petitioner claiming ineffective assistance of counsel must prove deficient performance and prejudice.   That is clear both under the United States Constitution and the Connecticut Constitution.

Counsel are directed, of course, to the leading cases on the issue of ineffective assistance of counsel, Strickland v. Washington, 466 U.S. 668, 104 Supreme Court 2052, 80 Lawyer's Edition 2d 674, 1984, and also Ledbetter v. Commissioner of Correction, 275 Connecticut 451, 880 Atlantic 2d 160, a 2005 decision of the Connecticut Supreme Court, cert. denied 546 U.S. 1187, 2006.

To prove deficient performance a petitioner must show that defense counsel's representation, quote, “fell below an objective standard of reasonableness ․” end quote.   That's from Duperry v. Solnit, 261 Connecticut 309, 335, 803 Atlantic 2d, 287, 2002.

Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, and that is from Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 Atlantic 2d, 239, cert. denied, 275 Connecticut 920, 883 Atlantic 2d 1254, 2005.

To prove prejudice the petitioner must establish that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different.   That's from Ledbetter v. Commissioner of Correction at page 458.

With regard to a claim of ineffective assistance of counsel such as that advanced here, should the court find an absence of either deficient performance or prejudice, the petition may be denied.

It's important to note that there is a critical difference between the legal status of a person that has been accused of a crime as opposed to one who has been convicted of a crime.   While a 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.   Counsel is guided to the case of In re Winship, 397 U.S. 385, a 1970 decision by the United States Supreme Court.

With regard to the presumption of innocence, it is certainly well established that a habeas court cannot in hindsight second guess an attorney's trial strategy.  Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 804, 837 Atlantic 2d 849, cert. denied, 268 Conn. 907, 845 Atlantic 2d 413, cert. denied, sub nom., Toccaline v. Lantz, 2004.

Indeed, the burden is high for a petitioner to prevail in a petition for a writ of habeas corpus, and it is with that backdrop that this case was presented yesterday.

With regard to the claims pled in this matter, the petitioner alleges in count one, paragraph 2(a) that he should be granted relief for what he claims is deficient performance on the part of his attorney, Mr. Hopkins, in that the petitioner specifically alleges at 2(a) that his trial counsel failed to engage meaningfully in plea bargaining and to advise the petitioner in a timely manner of the state's position regarding plea negotiations prior to trial.

With regard to this claim, the court has already stated the evidence that has been submitted with respect to all of the claims.

Here, the petitioner testified and the court had opportunity to observe the petitioner both on direct, cross-examination, redirect and re-cross, and in viewing the testimony of the petitioner, the court would note the following.

The petitioner is of mature years and apparently has a criminal history dating back to at least 1985, when he was convicted in December of that year for a felony offense.   On July 10, 1985, the petitioner was convicted of larceny in the sixth degree.   In addition, the petitioner has a number of other felony convictions in his criminal history prior to his testimony yesterday, not the least of which are the two which give rise to his present sentence.

The petitioner attended public school in the city of New Haven and withdrew from same in the seventh grade, and the court accredits that testimony by Mr. Baker.   The court also accredits Mr. Baker's testimony that to his credit, while incarcerated he took advantage of continuing education and obtained a couple of components of his high school equivalency, including passing writing and reading, and is awaiting results on other aspects, including social studies, I believe, and science, or at least social studies, which he completed very recently.

This court concludes that Mr. Baker understood the full ramifications of this proceeding, was able to assist his attorney and certainly understood the nature of the proceedings that occurred with respect to the pretrial time period prior to his going to trial on the murder charges in New Haven.

However, that being said, this court finds that to a large extent Mr. Baker's testimony is not believable and incredible, and the court is persuaded to draw this conclusion in part due to Mr. Baker's demeanor on the stand and, frankly, the entirety of the substance of Mr. Baker's responses to questions about communications between he and his former attorney, Mr. Hopkins, to accredit Mr. Baker's testimony yesterday would be to conclude that Mr. Hopkins never had one substantive discussion of any type regarding the nature of the charges against Mr. Baker, the substance of any police reports, statements and evidence which the state or prosecution possessed against Mr. Baker, any aspect of trial strategy, any aspect of discussing witnesses, or discussing any component which might be described within the ambit of criminal defense representation.

This is particularly incredible, this testimony by Mr. Baker, when viewed in light of Mr. Baker's claim yesterday that he did not understand plea bargaining.

What's clear, especially from inquiry from the court, is that Mr. Baker was party to a number of pleas of guilty that were entered into a court of law which can be described as situations in which Mr. Baker changed a plea of not guilty to guilty in open court with assistance of an attorney before a judge in exchange for a particular sentence to be imposed.   Mr. Baker's testimony was very clear on cross-examination, where Mr. Baker testified that he, quote, didn't know what a plea bargain is.   His actual language was, “I don't know what a plea bargain is.”

Later, when questioned by the court, Mr. Baker attempted to explain the logical inconsistency between that testimony and the record, which reveals that in fact Mr. Baker pleaded guilty on a number of occasions in court dating back over decades and Mr. Baker stated that he did not understand that one might be able to enter a plea of guilty in exchange for testifying against someone, including a co-accused.

This court finds that in not accrediting the petitioner's testimony there is an absence of credible proof to persuade this Court that the presumption of adequate representation should fall through good and reliable probative evidence in this civil proceeding and that relief ought to be granted with regard to this and the other claims.

Even assuming Mr. Baker's testimony were to be accredited, there is insufficient evidence that the state made any specific plea offer for a term certain.   Mr. Baker would have this court believe that Mr. Hopkins at the time of trial presented Mr. Baker with an option of pleading guilty to murder without any reference to specific term and indicated that he might have a right to argue for a lesser sentence.

There is no constitutional right to a plea bargain, and in not accrediting Mr. Baker's testimony the court cannot find deficient performance on the part of Mr. Hopkins, nor can the court conclude there is any prejudice.

This court does make a finding, based upon the totality of the testimony presented and the evidence, that it was Mr. Baker's decision to proceed to trial and to take his chances, in essence, before a jury.

This court also makes a finding that certain of the co-accuseds referenced in the appellate court summary of the factual scenario which surrounded this tragic event reveals that the co-defendants, certain of them pleaded guilty at different times.

It's clear the petitioner availed himself previously of some type of relief in a prior habeas corpus petition.   That petition is not before this court.   It is clear further that Mr. Visone, at least in the context of a motion for modification, succeeded in reducing Mr. Baker's sentence from a net sentence of fifty years to thirty-two years upon a representation by the attorney that Mr. Baker at that time in 2003 was willing to testify against a co-accused.   Mr. Visone, in the motion for modification proceeding, comments about the stature of a so-called snitch while incarcerated and that that's not a good position to be in and that Mr. Baker was taking a risk in making such a decision.

This court makes a finding that Mr. Baker has attempted in several instances, at his modification, at his underlying trial, and, indeed, in this habeas corpus proceeding to manipulate proceedings to his advantage, and, in essence, that is what is being attempted to do here.

For the reasons already stated, the petitioner fails in proving his claim under subsection 2(a) of his complaint.

With regard to the allegation of 2(b), that the trial attorney was deficient for failing to advise the petitioner of his rights to sentence review and appeal, the court finds that there is an absence of any prejudice with respect to this claim.   It is clear from examination of the transcript at sentencing in evidence, Petitioner's C, that Mr. Baker was advised specifically at page 12 of that transcript of his notice of right to have his sentence reviewed and notice of right to appeal.

The court has already taken judicial notice that Mr. Baker in fact appealed his case and conviction to the appellate court unsuccessfully.   With respect to sentence review and the other rights about which Mr. Baker was apprised, Mr. Baker credibly testified that he signed these notices and, indeed, read them.   That was his testimony yesterday.

In addition, the record is abundantly clear that Mr. Baker did not testify that had he been told by his attorney of a right of sentence review that he would have in fact pursued a petition for sentence review.

The court finds an absence of deficient performance on the part of the attorney and an absence of prejudice, and with regard to 2(b), the petitioner's claim does not prevail.

The court has already dismissed subparagraphs 2(c), (d), (e) of count two, and the remainder of the complaint.

Due to an absence of sufficient proof to prevail in this petition for writ of habeas corpus, the petition is denied.   Judgment may enter in favor of the respondent.

Mr. Clifton?

ATTY. CLIFTON:  Judge, I just point out, there's been no mention of paragraph four yet.   It was not part of the decision yesterday.

THE COURT:  All right.   Pardon me.

With regard to the court's articulation, there is a claim that trial counsel was ineffective in that he failed to discuss trial strategy with the petitioner.

The court does not accredit the testimony by Mr. Baker in this regard.

With regard to decisions of strategy, these are issues left to an attorney.   The court notes that Mr. Baker here is not claiming that if he proceeded to trial he would actually win, but that if he were afforded the opportunity to plead out, he would have pleaded out pretrial had he known of a possibility, which this court cannot conclude existed, that Mr. Baker could testify against a co-accused.   This court does not accredit that testimony, cannot conclude that if Mr. Baker was in fact presented with a scenario in which a conditional plea might be entered, i.e., if you testify against a co-accused, you'll be afforded a particular sentence.   That scenario is far too speculative for the court to engage in, and with respect to trial strategy, there is nothing on the record credible to believe that had the attorney employed a different strategy, a different outcome more favorable to the petitioner would have resulted.

Having rejected the petitioner's testimony with regard to the complete absence of any discussion, the presumption of adequate representation prevails.   In addition, there is no prejudice, especially in light of the sentence modification which eventuated from Mr. Visone's representation, as reflected in Exhibit B.

With regard to the remainder of count one, I believe there is an absence of proof, and the court has already addressed paragraphs five, seven and eight in the prior dismissal.

I believe I've now addressed the entirety of the complaint and my ruling on all aspects thereof, as I indicated, with regard to judgment entering in favor of the respondent.

I'm also requesting that notice of appeal rights be prepared for the petitioner.   The record shall reflect notice of appeal rights are being served upon the petitioner and his attorney at this time.

I'm also requesting a copy of a transcript for my signature be prepared.   I shall sign same and it shall constitute a memorandum of decision.   The court has no objection to the tolling of the time period in which the petitioner might appeal, assuming the petitioner makes a timely request for a transcript.

In addition, I am requesting that should an appeal follow, that the petitioner, through his counsel, prepare a judgment file within thirty days.

With that, this matter is concluded.   Court stands adjourned until 10 a.m. tomorrow morning.

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Nazzaro, J.

Nazzaro, John J., J.