Jeffrey Dontigney v. Warden, State Prison (2010)

HABEAS DECISION

DECISION

THE COURT:  I have considered the evidence produced at this habeas trial, the testimony and the exhibits.   I've considered the arguments of counsel, I've reviewed the file and, for reasons that I will detail, the petition for a writ of habeas corpus is denied.

This is the petitioner's third habeas attack on his conviction for a murder that occurred in 1987.   The long history of this case shows how indulgent, some would say overindulgent our system is in giving convicted persons opportunities to attack their conviction years later.   We do so for the sake of insuring that innocent persons are not convicted and that all defendants receive a fair trial.

However, in this case numerous state and federal judges and justices have reviewed the petitioner's conviction and his representation by counsel and ultimately have found nothing improper in his conviction or his representation.   I now join these judges.

Hopefully, this will end the attacks on the petitioner's 21-year-old conviction and bring closure to this case and the victims of it, but that, of course, is out of my hands.

The petitioner's claims fall into two broad categories:  First, actual innocence, and, second, ineffective assistance of habeas corpus counsel.   I will first address his actual innocence claims.

I find, first, that the testimony of William Waldner is not newly-discovered evidence under the applicable definition which provides that newly-discovered evidence is evidence that was not reasonably discoverable at the time of the trial.

A transcript of Mr. Waldner's testimony, which is an exhibit in this trial, reveals that the petitioner was present when Mr. Waldner observed the victim with her wrist taped.

Since the petitioner, thus, knew that Mr. Waldner had observed the victim in this state, it was, thus, reasonably possible to produce Mr. Waldner at the criminal trial.

Page three of Mr. Waldner's transcript also suggests that the petitioner knew about this witness at the time of trial.

So Mr. Waldner is not newly-discovered, or his testimony is not newly-discovered evidence under the applicable definition.

The same is true of witness Michael Hard, although it is admittedly a closer call.   My questioning of Mr. Hard revealed that he and the petitioner were friends and that Mr. Hard occasionally socialized with the petitioner and the victim.   The petitioner saw Mr. Hard regularly until after his conviction.

Thus, the petitioner knew at the time that Mr. Hard was a person who had seen the victim shortly before her death and could have spoken to him at any time after her death about whether he had seen the victim in a distraught state.   Thus, this was evidence that could reasonably have been discovered at the time of trial and, therefore, is not newly discovered.

Without newly-discovered evidence, under binding appellate court case law, the petitioner's actual innocence claim must fail, but even with the evidence, it could have been considered ․ but even if I consider the evidence to be newly discovered, I would alternatively find that the petitioner has not met his burden to establish by clear and convincing evidence that taking into account all of the evidence, both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial, he is actually innocent of the crime of which he stands convicted.

The suggestion of these two new witnesses was that the victim was suicidal and may have committed ․ and therefore supports the theory that the victim may have committed suicide.

This theory, however, is simply belied by the scientific evidence in this case.   This evidence clearly points to the fact that the petitioner murdered the victim and then he tried to stage the suicide.

First, the gun was found in the victim's right hand, but the entry wound was on the left temple with the exit wound on the back of the right side of her head at a lower level than the entry wound.   The entry wound was a non-contact wound that was fired from up to four feet away from the victim's head.   Although there was gunshot residue on the victim's shoulder, there was none on her right hand.   Also the police reported that the petitioner told them that the victim shot herself in the right side of her head.   All of this, essentially most of this is scientific evidence.   All of this refutes the theory that this was self-inflicted or suicide.

In addition, the petitioner gave the police a dubious reason for why he would retrieve a loaded weapon and carry it to the location of a person who was threatening to kill herself.   That reason was to make some symbolic point about her alleged drug use.   Then, according to the petitioner, she snatched the gun, despite the petitioner's superior size and her intoxication.   This evidence casts grave doubts on the petitioner's explanation for this incident.

Third, after hearing the gunshot and returning to the room to observe the injured victim, the petitioner did not summon medical attention.   Even though his sister lived downstairs from his apartment and was at home when the incident occurred, the petitioner left the premises and drove five miles to his mother's home before calling the police.

When one considers this strong evidence of the petitioner's guilt, the newly-produced evidence does not clearly and convincingly establish that the petitioner is actually innocent of this crime.

I will now address the petitioner's claim of ineffective assistance of habeas counsel, Attorney James Swaine, a claim that we also refer to as the Lozada claim.

First, I find that the petitioner has waived this claim.   There is really no question that the petitioner voluntarily withdrew this claim before Judge Kaplan on November 30th, 2006.   Any fair reading of the transcript would reveal that the petitioner insisted on withdrawing with prejudice, even though his attorney asked that it be withdrawn without prejudice and the court urged the petitioner not to withdraw at all.

Page seven of the November 30th transcript provides:

“THE COURT:  And if you try to refile this same habeas case on these same issues, the issues outlined in the remand order, you will not be allowed to do so.   That would be subject to dismissal.”

“THE PETITIONER:  I understand, Your Honor.”

“THE COURT:  And knowing all that, you want this withdrawn with prejudice?”

“THE PETITIONER:  Immediately, if not sooner.”

“THE COURT:  Immediately, if not sooner?”

“THE PETITIONER:  If not sooner.”

“THE COURT:  So you do want it withdrawn?”

“THE PETITIONER:  Yes, sir.”

The petitioner was thoroughly canvassed.   The withdrawal of a second habeas petition is not the relinquishment of a constitutional right and there is no authority that requires a canvass any more thorough than the one he received.

The only real question here with regard to the waiver is whether the petitioner can overcome it by alleging it was the result of ineffective ․ the ineffective assistance of Attorney Bansley, in that he gave the petitioner bad advice.

Although the petitioner has not clearly made that allegation in his 12-page, single-spaced reply, he has suggested it in paragraphs 10 and 23, and I will liberally construe those allegations to be allegations of ineffective assistance by Mr. Bansley.

Nonetheless, even if I credit the petitioner's testimony that he relied on Mr. Bansley's advice that he was better off going to federal court and not pursuing his state claims, I find no ineffective assistance by Mr. Bansley because I think the advice he gave to the petitioner was appropriate.

As I will detail, there was and is no merit in the petitioner's continuing on with his state habeas petition against Mr. Swaine.   Therefore, the only option left was for the petitioner to go to the federal courts.   This was reasonable advice because there were no more available remedies in state court.

The fact that the petitioner did not later on prevail in federal court does not mean it was bad advice.   It only means that the petitioner had claims that did not prevail, but the petitioner made the choice, given reasonable advice by counsel, to go to federal court and see if he would prevail.   Now he must live up to his own decision and accept the consequences.

In any event, an alternative, even if the petitioner did not waive his rights to claim ineffective assistance of counsel against Mr. Swaine, I find no ineffective assistance of counsel.

A petitioner on this sort of claim faces what the appellate court has labeled a Herculean task in that he must show that habeas counsel was ineffective in arguing that trial counsel was ineffective.

What Mr. Swaine did is exactly what Mr. Rozwaski, to his credit, has done;  go with your strongest claims.   This is a recognized and valid strategy;  the same strategy that would govern an appellate counsel, who must use his judgment as to what claims to raise.   See Valeriano v. Bronson, 209 Connecticut 75 at 88 to 90, 1988.

As we need to recognize, legal issues, like the currency, depreciate through over issue.   The shotgun approach in which every possible claim is raised is not very credible to the court.   It would have diluted Mr. Swaine's very professional approach of litigating the three strongest claims to add the weaker claims that the petitioner has raised in this case.   I will not go into these claims in any great detail.   I will say that I have found that none has merit.   I will mention a few.

In assessing these claims, I credit the testimony of Mr. Swaine, who is a well-trained and extremely experienced attorney who made a most impressive and forthright witness in this trial.   He provided very thoughtful and thorough representation to the petitioner for which the petitioner should be grateful.   I do not credit the petitioner's testimony in any material respect on this claim.

Mr. Swaine reasonably concluded that Attorney Ira Grudberg, the petitioner's trial counsel, had presented the best defense available, which was essentially reasonable doubt.   There was never any evidence that a third party other than the petitioner or the victim did the shooting that Mr. Swaine could have argued that Mr. Grudberg should have presented.   Mr. Grudberg presented the petitioner's defense witnesses at the trial and suggested that the victim's death was self-inflicted.

It is true that Mr. Grudberg did not present the petitioner's testimony, but Mr. Swaine challenged that decision to no avail.   There was no reasonable step that Mr. Grudberg or Mr. Swaine failed to take with respect to presenting the petitioner's defense.

Now the petitioner has raised the claim that Mr. Swaine was ineffective in failing to argue that prejudice should have been presumed if counsel was deficient in advising the petitioner regarding his testimony.

The case that the petitioner cites is Laws v. Warden, which is a superior court decision from 1990.   In that decision there is no analysis of whether the issue of prejudice should be addressed in this sort of ineffective assistance of counsel claim.   The court just does not address it.   I'm not bound by this decision.   There was no appellate court decision on the merits with regard to the Laws case and I find its analysis faulty in that it simply does not address the question of whether prejudice should be presumed or not.

The petitioner, through counsel, analogizes this issue to a conflict of interest case, a case in which a defendant's attorney has a conflict of interest, but those cases are different.   In those cases a conflict of interest affects and permeates the entire trial and it is impossible to determine prejudice.

Here, it is very possible to determine prejudice, and both Judge Sferrazza and the appellate court did so in this very case.   In these sort of cases you hear what the petitioner's testimony would have been and determine whether it would have made a difference in the trial.   In a case in which trial counsel allegedly was deficient in letting his client testify, which is the reverse of the present situation, you would also have to and be able to assess the impact of that testimony on a trial.

There is no reason in this instance to reduce the petitioner's burden and not to consider the prejudice component on a collateral attack of a final judgment.

And in this regard, I would cite the 2nd Circuit decision of Brown v. Artuz, A-r-t-u-z, 124 F.3d 73 at 74, 2nd Circuit, 1997.   In that case Judge Newman, speaking for the court, stated as follows:

“We conclude that the decision whether a defendant should testify at trial is for the defendant to make;  that trial counsel's duty of effective assistance includes the responsibility to advise the defendant concerning the exercise of this constitutional right and that the two-part test established in Strickland should be used to assess a defendant's claim that defense counsel rendered ineffective assistance by preventing him from testifying, or at least failing to advise him to concerning his right to testify.”

This is a case precisely on point that, although not binding because it's not a state court decision, counsel should have brought to the court's attention before raising this claim.

I will add that raising this claim on the day of closing argument is totally unfair.   This petition has been pending for at least ․ since at least 2004, depending on how you construe the somewhat unfortunate progression of this case, but that's when the first claims of ineffective assistance of counsel against Mr. Swaine were raised.   The petitioner has never in those six years or more suggested this claim.   Now, at closing argument, the petitioner raises it.   This is trial by ambuscade.   The state never had an opportunity to defend against this claim.   It would have asked Mr. Swaine about it if it had some notice.   I deny this claim, in part because it is not alleged in the petition and in part on the merits for the reasons I've stated.

One of the claims that the petitioner alleges that Mr. Swaine should have raised is that Mr. Grudberg was ineffective for not filing or litigating a motion to suppress.   The only possible aspect of that claim appears to be that Mr. Grudberg did not raise the petitioner's intoxication at the time.

As Mr. Swaine testified, a suppression hearing on this issue would have pitted the petitioner, who I find to be a person with questionable credibility, against several police officers and, thus, likely would not have been successful.

Mr. Swaine credibly concluded after reviewing the matter that the petitioner's actions in going with the police and in talking to them were voluntary.

While I credit this testimony, this whole chapter in this case shows how little people can remember about a trial that took place 21 years ago.   The fact is that a motion to suppress was filed, it was denied, and as no one to this point has observed, regrettably, the petitioner's intoxication was raised by Mr. Grudberg on cross-examination of Officer Murphy.   See Exhibit I, pages 45 to 47.   So this issue was raised, at least to some extent.

In any event, from Mr. Swaine's testimony we know that the statements that were ultimately admitted were not inculpatory, so there was no real benefit to a suppression hearing.   Further, if the petitioner had testified before the jury, which he claims now that he wanted to do, the statements would have come in anyway on cross-examination, so there was no, really no point, from Mr. Swaine's perspective, of arguing that the statements should not have come in.

A somewhat independent claim is that the petitioner ․ is that Mr. Swaine allowed the petitioner to testify at the habeas hearing when he was allegedly under the influence of medication at the time of his habeas testimony on most, though not on all of the days when he did testify.   The claim again is that Mr. Swaine was ineffective in letting the petitioner do this.

There is no evidence to support this allegation other than the petitioner's testimony, which I do not credit.   The petitioner does not remember whether he told Mr. Swaine he was on medication and Mr. Swaine does not remember that either, but Mr. Swaine does remember that the petitioner was a fully-engaged and actively-involved client.   There is no claim that anyone else, the trial judge or the assistant state's attorney at the time in 1994, observed that the petitioner was not competent to testify.

Further, a review of the transcript of the habeas hearing reveals that the petitioner was most responsive to the questions asked.   Indeed, the first habeas court, Judge Sferrazza, stated on page six that the court had the opportunity to observe the petitioner's demeanor on the stand while he was sober and found the petitioner to cut a less than impressive and sympathetic figure as a witness.

While it is true that the claim now is that the petitioner was under the influence of medication rather than under the influence of alcohol, nonetheless, Judge Sferrazza's observations in 1994 that the petitioner seemed sober are important to the court and suggest that certainly there was nothing impairing the petitioner's competency to testify at the time.

I, too, had the opportunity to observe the petitioner testify when he ․ in this trial, when he was not under the influence of any medication or alcohol.   I agree with Judge Sferrazza's diplomatic characterization that the petitioner cuts a less than impressive and sympathetic figure as a witness.

Thus, even if we credit the allegation that the petitioner was under the influence of medication at the time, which I do not, the petitioner cannot show that his testimony would have been any more credible if he were completely alert because he simply is not a credible witness.

For those reasons the petition for a writ of habeas corpus is denied.

The court reporter, the court monitor is ordered to produce a transcript of this decision which will constitute the court's memorandum of decision.

The petitioner is entitled to be advised of his right to appeal.   The petitioner, through counsel, shall prepare a judgment file within thirty days of the decision.

* * *

Schuman, J.

Schuman, Carl J., J.