Jourdan Huertas v. Warden (2010)

HABEAS

THE COURT:  Good morning, Marshal.

Good morning everyone.

All right.   Let's take it from the top again.   We're here on Jourdan Huertas v. Warden.   The docket is CV07-4001950.

Could I have appearances of counsel for the record.

ATTY. BODNER:  Rebecca Bodner for the petitioner, Jourdan Huertas.

ATTY. GREENALCH:  Richard Keenan Greenalch, Jr. for the respondent, warden.

ATTY. MELCHIONNE:  Madeline Melchionne from the Attorney General's office for the warden.

THE COURT:  All right.   Good morning, counsel.

Good morning, Mr. Huertas.

We were here to begin the trial of the habeas petition that Mr. Huertas filed claiming ineffective assistance of counsel relating to counsel's alleged failure to request an increase in bond in Mr. Huertas' case.

There was a motion to stay the proceeding in light of the Appellate Court's decision in Gonzalez v. Commissioner of Correction -that is at 122 Conn.App. 705-just issued in July of this year.

The state in that case has petitioned the Supreme Court to take certification of the matter, and as I understand it, as of today, there's been no ruling from the Supreme Court on whether they're going to accept certification.

Is that correct, Mr. Greenalch?

ATTY. GREENALCH:  That is correct, Your Honor.

THE COURT:  All right.   So I did discuss with counsel in light of the status of the Gonzalez matter, whether-what we needed to do by way of evidence in this case, and I believe counsel have worked on a stipulation.

Is that correct?

ATTY. BODNER:  That's correct, Your Honor.

THE COURT:  And have you-have certain facts you're ready to stipulate to?

ATTY. BODNER:  Yes, Your Honor.

ATTY. GREENALCH:  If I may, Your Honor-

THE COURT:  Sure.

ATTY. GREENALCH:-just  for the record on the record, if you want to make a ruling on my motion.

THE COURT:  Sure. I was going to do it the other way, but let me do that first.

ATTY. GREENALCH:  Oh. If you want to do it the other way, that's fine.

THE COURT:  Well, let me do that first.

With respect to the motion to stay, there was an opposition filed by Attorney Bodner on behalf of Mr. Huertas, and the motion to stay to the Superior Court would suggest that I am in a position as a Superior Court judge to not necessarily follow the Appellate Court's ruling because it may be overruled by the Supreme Court.

Whether it is or not overruled by the Supreme Court, as of today, it's binding on me.   And I don't have the option as a Superior Court judge to ignore what the Appellate Court has told me the state of the law is.   So Gonzalez is the state of the law as we go forward today.   And I can't just assume that, one, the Supreme Court will grant cert, or two, that having-hearing it following the grant of cert they will reverse;  and then the matter would have to wait a year or two until the Supreme Court actually-the case is briefed.   The Supreme Court decides it.

And I understand that Mr. Huertas' incarceration termination date isn't until 2016, and we're only talking about seventeen days on this petition.

But nevertheless, if I stay the petition, then the witnesses would have to wait a year or more.   Their recollections would be-could become stale.   We had everybody here today;  so for all of those reasons, I'm going to deny the motion to stay the matter, and we are going to proceed.

So-and I gave counsel a heads-up of that in chambers before we came out, and I heard them.   I reviewed the briefs, and we talked about it in chambers.

And I don't believe counsel wanted to be heard any further on the motion.   Is that correct?

ATTY. BODNER:  That is correct.

ATTY. GREENALCH:  That is correct, Your Honor.

THE COURT:  All right.   So in light of that, then we can proceed with evidence, or if there's a stipulation as to some facts that would shorten the need for evidence or eliminate the need for evidence, I'll hear that.

ATTY. BODNER:  We have a stipulation which I'll read into the record-

THE COURT:  Okay.

ATTY. BODNER:-which  we feel would eliminate the need for evidence.

THE COURT:  All right.

ATTY. BODNER:  Okay. One, on March 29, 2005, petitioner was admitted into custody in lieu of bond for Docket No. CR05-107971.   Two, on September 30, 2005, petitioner posted bond and was released.

Three, on November 28, 2005, he was admitted into the custody-into custody in lieu of bond for Docket No. CR05-110662.

Four, on February 17, 2006, bond was imposed for Docket No. CR06-111404.

Five, on September 8, 2006, petitioner was sentenced on Docket Nos. CR05-107971 and CR06-111404.   Six, the sentence imposed was ten years to serve on each of the above docket numbers and to run concurrent with each other.

Seven, his sentence was imposed in Docket No. CR05-110662.

Eight, petitioner received 185 days of credit on Docket CR05-107971, representing time spent in pretrial confinement in lieu of bond from March 29, 2005 to September 30, 2005.

ATTY. MELCHIONNE:  Can I just interrupt here?   I believe that was one-should have been 186 days of credit.

ATTY. BODNER:  I believe that's what I said.

ATTY. MELCHIONNE:  Okay.

THE COURT:  I thought you said 185.

ATTY. BODNER:  I'm sorry. 186.

THE COURT:  Okay.

ATTY. BODNER:  186 days.

THE COURT:  All right.

ATTY. BODNER:  Nine, petitioner received 203 days of jail credit on Docket CR06-111404, representing the time spent in pretrial confinement from February 17, 2006 to September 8, 2006.

Ten, Attorney Matthew Maddox entered his appearance on Docket CR05-107971 on May 5, 2005.

Eleven, Attorney Maddox was not present at petitioner's arraignment in Docket CR05-110662 on November 28, 2005.

Twelve, Attorney Maddox was present and representing the petitioner at his plea in Docket CR05-107971 and CR06-111404 on April 28, 2006.

And thirteen, Attorney Maddox did not address the issue of bond on CR05-107971 on either April 28, 2006 or at sentencing on September 8, 2006.

THE COURT:  All right.   So let me just back up for a second.   April 28, 2006 was the-what happened on that day?

ATTY. BODNER:  That was the plea on both dockets.

THE COURT:  All right.   So the plea on both dockets.   And then-so there was then a gap of five months between the plea and the sentencing.

ATTY. BODNER:  That's correct.

THE COURT:  And on April 28, 2006, did Attorney Maddox ask for a bond increase in docket ending 971?

ATTY. BODNER:  No;  he did not.

THE COURT:  All right.   And was there-is there a stipulation as to whether there was any strategic reason not to do so?

ATTY. GREENALCH:  Yes, Your Honor.   There was no strategic reason on that.

THE COURT:  All right.   Okay. And had Attorney Maddox asked for an increase in bond on April 28, 2006, assuming it had been granted at that time, would the petitioner have received the additional seventeen days of credit that are at issue in this matter?

ATTY. BODNER:  Yes.

ATTY. GREENALCH:  Yes, Your Honor.

THE COURT:  All right.   And, Attorney Greenalch and Melchionne, is the stipulation as recited by Attorney Bodner correct as to what you've stipulated to?

ATTY. MELCHIONNE:  Yes, Your Honor.

ATTY. GREENALCH:  Yes, Your Honor.

THE COURT:  Okay. All right.

Attorney Greenalch, in light of the state of the law, assuming Gonzalez is binding on me and the stipulation of facts, is there any argument you have as to why I should not grant the petition?

ATTY. GREENALCH:  Your Honor, we just respectfully feel that-as you pointed out, you're bound by Gonzalez.   We feel Gonzalez was incorrectly decided by a divided panel, and we're appealing that decision.   Through our-as I briefed and saw our position on it, so we don't concede that;  but our only argument at this point would be a legal interpretation.

THE COURT:  All right.   Attorney Bodner, anything further?

ATTY. BODNER:  No, Your Honor.

THE COURT:  All right.   Well, given the stipulation of facts, the Court finds that this case is factually indistinguishable from Gonzalez;  that the stipulation is that Attorney Maddox was representing the petitioner on both files, and at a time when he could have requested an increase in bond that would have resulted in the additional seventeen days of credit that are at issue in this matter, he had no strategic reason not to request that.

And given-that's the same exact scenario that existed in Gonzalez v. Commissioner of Corrections.   Let me just also ask.

My understanding is the petitioner was prepared to put on an expert witness who would have testified that it was-it was a failure to provide effective assistance of counsel to make that request.   Is that-

ATTY. BODNER:  That is correct.

THE COURT:  All right.   And, Attorney Greenalch, did you intend to put on a counter-expert to that?

ATTY. GREENALCH:  We were not going to, Your Honor.   We were just going to challenge that testimony.

THE COURT:  Okay. All right.   So in light of that and in light of the findings in Gonzalez v. Commissioner of Correction, I do find that the failure to request the increase in bond was ineffective assistance of counsel;  that the petitioner was entitled to that under the majority opinion in Gonzalez;  and that he was prejudiced because he lost seventeen days of credit which he would have otherwise received.

So following the ruling in Gonzalez v. Commissioner of Correction, the petition is granted, and the petitioner is awarded the seventeen days of credit;  and the state can take the appeal and move to consolidate this case with Gonzalez and get it all sorted out at the same time.

ATTY. GREENALCH:  Thank you, Your Honor.

THE COURT:  Anything further?

ATTY. MELCHIONNE:  No.

ATTY. BODNER:  No, Your Honor.

THE COURT:  All right.   All right.   We will stand in recess.   Thank you, counsel, for working that out.

ATTY. BODNER:  Thank you.

(The matter was concluded, and court stood in recess.)

William H. Bright Jr., Superior Court Judge

Bright, William H., J.