Ernest Francis v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

The petitioner, Ernest Francis, alleges, inter alia, in his petition for a writ of habeas corpus, initially filed on August 9, 2000 and amended on April 15, 2002 and again on September 4, 2002, that he was denied the effective assistance of trial counsel in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut.¹  For reasons set forth more fully below, the petition is denied.

This matter came to trial on October 15, 2009 and March 2, 2010.   The court heard testimony from Attorney Jeffrey Beck, who testified on behalf of the petitioner as a legal expert, and Peter Zeman, a certified psychiatrist.   In addition, the petitioner entered into evidence transcripts of his probable cause hearing, criminal trial and prior habeas trial.   He also entered into evidence other documents, including, but not limited to, Zeman's psychiatric report.   The petitioner and the respondent filed posttrial briefs on November 12, 2010 and February 8, 2011 respectively.

The Court has reviewed all of the testimony and evidence and makes the following findings of fact.

FINDINGS OF FACT

1.  The petitioner was the defendant in a criminal case in the judicial district of Hartford under docket number CR90–391532.   He was charged with murder in violation of General Statutes § 53a–54a(a).

2. As stated by the Supreme Court, the jury could reasonably have found the following facts underlying the offense:  “On March 8, 1990, the [petitioner] and the victim were incarcerated at the Hartford community correctional center.   The two men became involved in an altercation during which the victim and several other inmates attacked the [petitioner].   During the course of this altercation, the [petitioner] was stabbed in his leg with a shank, a prison term for a homemade weapon.   The [petitioner] believed that it was the victim who had stabbed him.   Both men were subsequently released from custody.

3. “On August 12, 1990, the [petitioner] and the victim met again.   At approximately 4 p.m. on that day, two witnesses, Jennifer Green and Sandra Brown, were on the porch of Brown's residence at 165 Homestead Avenue in Hartford.   At that time, they saw a young man, later determined to be the victim, walking toward them on Homestead Avenue, holding an ‘ice pop’ in his hand.   At the same time, two additional witnesses, Victor Lowe and Fred Faucette, were standing on the sidewalk of Homestead Avenue.   They also noticed the victim.

4. “All four witnesses then observed a red Mitsubishi automobile drive up Homestead Avenue, pass the victim, stop suddenly, back up and halt near him.   The [petitioner] then emerged from the driver's side of the car and approached the victim.   An argument ensued between the two men.   This confrontation occurred twenty to forty feet from Lowe and Faucette.

5. “While the [petitioner] and victim exchanged words, the four witnesses observed, from different vantage points, that the [petitioner] held his right hand behind his back.   From where they were located, both Green and Brown observed that the [petitioner's] hand, which was behind his back, was on the handle of a knife.   Upon seeing the knife, Brown commented to Green, ‘He wouldn't dare do that.’

6. “After further words had been exchanged, the victim agreed to fight the [petitioner].   The victim did not, however, make any physical movement toward the [petitioner].   The [petitioner] then pulled the knife from behind his back and began to make stabbing motions at the victim.   One of these stabbing motions cut the victim's ice pop in half as the victim was retreating.

7. “The victim ran into a nearby yard where he was pursued by the [petitioner].   There, the [petitioner] stabbed the victim in the upper left portion of his chest, causing his death.   The [petitioner] then reentered the car and left the scene.   He was arrested in Miami, Florida, on August 17, 1990.”  State v. Francis, 228 Conn. 118, 120–21, 635 A.2d 762 (1993).

8. After a jury trial, presided over by the Honorable Thomas P. Miano, the petitioner was convicted as charged and sentenced to fifty years imprisonment.

9. The petitioner was represented at trial by Attorney Kenneth Simon.

10. Additional facts will be discussed as needed.

DISCUSSION

The petitioner alleges in his second amended petition that his trial counsel rendered ineffective assistance by failing (1) to investigate a defense of extreme emotional disturbance (EED), (2) to request an instruction on the defense of EED and (3) to move to disqualify Judge Miano from presiding at his hearing in probable cause and his criminal trial.²

Prior to initiating the present matter, the petitioner filed a habeas corpus petition in March 1995, alleging, inter alia, that his trial counsel rendered ineffective assistance by failing to present a defense of EED. The petitioner represented himself in that matter.³  After a trial, at which Attorney Simon and the petitioner testified, the habeas court, Corrigan, J.T.R., denied the petition.   See Francis v. Warden, Superior Court, judicial district of Hartford, Docket No. CV 95 0660706 (February 18, 1998, Corrigan, J.T.R.), aff'd 63 Conn.App. 282, 775 A.2d 1004, cert. denied, 256 Conn. 933, 776 A.2d 1150 (2001).   The habeas court found that Attorney Simon had considered a defense of EED but that based on information supplied to him by the petitioner he chose instead to pursue a defense of accident.   It also found that the petitioner's own testimony did not support a defense of EED. Accordingly, the habeas court denied the petitioner's claim of ineffective assistance of counsel.

In the petitioner's present habeas corpus matter, the respondent moved to dismiss the petitioner's claim of ineffective assistance of trial counsel based upon the doctrine of res judicata.   The habeas court, Rittenband, J.T.R., denied the respondent's motion, finding, inter alia, that newly discovered evidence supported the petitioner's claim.⁴  In the return to the petitioner's second amended petition, filed subsequent to the habeas court's decision on the motion to dismiss, the respondent again raised the doctrine of res judicata as to the petitioner's claim of ineffective assistance of trial counsel.  “The law of the case doctrine provides that [w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case ․ A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision.”  (Internal quotation marks omitted.)  General Electric Capitol Corporation v. Rizvi, 113 Conn.App. 673, 681, 971 A.2d 41 (2009).   Although this Court is not necessarily bound by the habeas court's prior decision on this issue, in light of the prior decision and the evidence presented at the present habeas trial, this Court declines to reconsider the issue.   Accordingly, this Court will address the petitioner's claims on the merits.

“To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong.   To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ․ by the [s]ixth [a]mendment ․ To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different ․ The claim will succeed only if both prongs are satisfied ․ It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Small v. Commissioner of Correction, 286 Conn. 707, 712–13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

“Judicial 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 ․ A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 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;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ․ There are countless ways to provide effective assistance in any given case.   Even the best criminal defense attorneys would not defend a particular client in the same way.”  (Citations omitted;  internal quotation marks omitted.)  Strickland v. Washington, supra, 466 U.S. 689.

Ineffective Assistance of Counsel Re Defense of EED

The petitioner first alleges that his trial counsel rendered ineffective assistance by failing to investigate and request an instruction on the defense of EED.

Pursuant to General Statutes § 53a–54a, “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person ․ except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be ․

“[E]xtreme emotional disturbance is a mitigating circumstance which will reduce the crime of murder to manslaughter ․ Pursuant to General Statutes § 53a–12(b), [w]hen a defense declared to be an affirmative defense is raised at a trial, the defendant shall have the burden of establishing such defense by a preponderance of the evidence.”  (Citations omitted;  internal quotation marks omitted.)  State v. Ruben T., 104 Conn.App. 780, 785–86, 936 A.2d 270 (2007), cert. denied, 285 Conn. 917, 943 A.2d 476 (2008).  “To sustain his burden of establishing extreme emotional disturbance by a preponderance of the evidence, the defendant must persuade the trier of fact that:  (1) the emotional disturbance is not a mental disease or defect that rises to the level of insanity as defined by the penal code;  (2) the defendant was exposed to an extremely unusual and overwhelming state, that is, not mere annoyance or unhappiness;  and (3) the defendant had an extreme emotional reaction to it, as a result of which there was a loss of self-control, and reason was overborne by extreme intense feeling, such as passion, anger, distress, grief, excessive agitation or other similar emotions ․ Consideration is given to whether the intensity of these feelings was such that his usual intellectual controls failed and the normal rational thinking for that individual no longer prevailed at the time of the act ․ [T]he term ‘extreme’ refers to the greatest degree of intensity away from the norm for that individual.”  (Citations omitted;  internal quotation marks omitted.)  Id., 785–86.  “If there is sufficient evidence of a legal defense, the defendant is entitled, as a matter of law, to a requested jury charge on that defense.”  State v. Person, 236 Conn. 342, 352, 673 A.2d 463 (1996).

Attorney Simon testified at the petitioner's first habeas trial.   At that time, he testified that “[he] had different versions of what had happened from [the petitioner] right up until the time that [the petitioner] testified” which “handcuffed [his] decision-making process.” ⁵  Early on in the case, the petitioner had told Attorney Simon's investigator that “the victim was stabbed by his own knife, that he fell on the knife or against the knife.”   At some point, he even told the investigator that “[he wasn't] there at all.” ⁶  Attorney Simon explained that “[he] really didn't know what [the petitioner's] defense was going to be, even until such time as—as the state had rested its case [b]ecause for so long a time [he] had been left with either it was an accident or [the petitioner] wasn't there.  [The petitioner] never told [him] that he was—felt that he was emotionally disturbed at the time of this offense.” ⁷  He further testified that although he believed the petitioner's account of the assault in the jail, he believed it “would have provided very hard evidence of a motive for [the petitioner] to go after [the victim]” and he did not believe that in general the circumstances of the crime supported a defense of EED.⁸

During his testimony, Attorney Simon did demonstrate a misunderstanding of the defense of EED, stating:  “[I]f the situation presented itself as a stabbing, where you get stabbed and then you stab immediately thereafter ․ I would think that the defense might well lie.   I don't—there is a time frame here between the time of the incident and—of the original incident ․ and the later incident that takes place on the street.   And the case law is pretty clear about things having to happen immediately or very quickly.   That's my understanding of an [EED] defense.” ⁹  Contrary to Attorney Simon's understanding, “[a] homicide influenced by an extreme emotional disturbance ․ is not one which is necessarily committed in the ‘hot blood’ stage, but rather one that was brought about by a significant mental trauma that caused the defendant to brood for a long period of time and then react violently, seemingly without provocation.”  (Citations omitted;  internal quotation marks omitted.)  State v. Ruben T., supra, 104 Conn.App. 785–86.   Notably, Attorney Simon's misunderstanding of the EED defense was only one reason why he did not believe that EED would be a good defense in the petitioner's case.¹⁰

Despite his misunderstanding of the defense of EED, Attorney Simon did not perform deficiently by failing to investigate or present such a defense.  “The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.   Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant.   In particular, what investigation decisions are reasonable depends critically on such information.   For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether.   And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable.”  Strickland v. Washington, supra, 466 U.S. 691.   As testified to by Attorney Simon, the petitioner gave him different accounts of what had happened right up until the time of his testimony at the criminal trial and at no time did the petitioner indicate that he had an extreme emotional reaction to the incident in jail which led him to lose self-control when he saw the victim on the street approximately five months later.   Accordingly, Attorney Simon cannot be faulted for failing to investigate an EED defense.

Nonetheless, even if Attorney Simon had further investigated an EED defense, the petitioner has not demonstrated what benefit any additional investigation would have revealed.   See Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001) (“[t]he burden to demonstrate what benefit additional investigation would have revealed is on the petitioner”).   At his criminal trial, the petitioner testified that while he was incarcerated in March 1990, fourteen “youths” approached him about a neighborhood incident.   He denied any involvement in it.   Nonetheless, the victim hit him and the others “jumped on him.”   He fell to the ground and as he saw the victim coming at him with a homemade weapon, he threw his legs up.   The victim stabbed him in the leg.   The petitioner testified that he was subsequently able to break free and alert a correctional officer who sent him to the medical department where his injuries were documented.   The jail incident itself, however, was never documented.   Other than indicating that he had a scar from the incident, the petitioner did not describe any other effects that the incident had on him.   In fact, he testified on cross-examination that “[he] wasn't even thinking about that issue [the jail incident] too much.” ¹¹

At the present habeas trial, Zeman, a certified psychiatrist, opined that the petitioner was suffering from post-traumatic stress disorder stemming from the jail incident on the date of the stabbing incident.   His opinion was based upon about four hours of interviews with the petitioner between July 5, 2007 and November 9, 2007 and on his review of police reports, the petitioner's presentence investigation report and a report of psychological testing performed on the petitioner in 2003.   Fifteen years after the incident, the petitioner apparently reported to Zeman that he had and continues to have nightmares about the jail incident and that during the months following the attack in jail “he would avoid closed places such as buses, would avoid going to areas where he perceived himself as being more vulnerable or in danger of being attacked again, and was generally more cautious, on guard, and startled easily.”   He also stated, in regards to the stabbing incident, that “[he] never lost control like that before.” ¹²

This Court does not find Zeman's opinion to be particularly reliable.   Notably, in stating that he would have reached the same opinion back in 1992, Zeman acknowledged that “had [he] received the information that [the petitioner] provided to [him] during when [he] did this actual evaluation, [he] would have written a very similar report to the one [he] wrote ․ and reached the same opinions.” ¹³  As noted by the respondent, by the time Zeman evaluated the petitioner, the petitioner was “schooled” in the defense of EED, having pursued a claim of ineffective assistance of trial counsel for failure to present such a defense in 1997.   Moreover, based on his testimony in 1992 and 1997, in which he claimed that he unknowingly fatally stabbed the victim after being blinded by juice from his ice pop, it is unlikely that the petitioner would have relayed the same information to Zeman in 1992 as he did fifteen years later in 2007.   In short, there is simply no credible evidence that a psychiatric evaluation in 1992 would have yielded the same results.   Consequently, Attorney Simon did not render ineffective assistance by failing to investigate a defense of EED.

Similarly, Attorney Simon did not render ineffective assistance in failing to request an instruction on the defense of EED. The petitioner argues that despite Attorney Simon's failure to pursue a defense of EED, there was sufficient evidence presented at his criminal trial for an instruction on the defense and accordingly, Attorney Simon should have requested such an instruction.   While there arguably may have been sufficient evidence for the trial court to instruct the jury on the defense of EED,¹⁴ the petitioner has not demonstrated that had Attorney Simon successfully requested such an instruction, there is a reasonable probability that the outcome of his criminal trial would have been different.   That is, the petitioner has not shown that a defense of EED likely would have succeeded at trial.

As noted by the habeas court, Corrigan, J.T.R., in its memorandum of decision on the petitioner's earlier habeas petition:  “The petitioner's own testimony removes him from that state [extreme emotional disturbance].   He testified here that he swung the knife only when he was blinded by the juice from the freeze pop and didn't realize the knife had struck the victim until he saw blood on it as he went back to his car.”  Francis v. Warden, supra, Superior Court, Docket No. CV 95 0550706.   Although the jury could have rejected those parts of the petitioner's testimony that contradicted a defense of EED;  see, e.g., State v. Person, supra, 236 Conn. 347 (“[t]he [jury] can disbelieve any or all of the evidence ․ and can construe [the] evidence in a manner different from the parties' assertions”);  the petitioner has not established that there is a reasonable probability that the jury would have found him not guilty of murder had the trial court given an instruction on the defense of EED.

The jury had before it the testimony of four witnesses who saw the stabbing incident.   The four eyewitnesses testified more or less to the same facts.   They testified that they heard and saw a car stop suddenly on the street and that the petitioner got out of the car and approached the victim who was walking on the sidewalk.   As the petitioner approached the victim, he had his hand on a knife behind his back.   After the petitioner and the victim exchanged some words, the eyewitnesses testified that the petitioner stabbed the victim as the victim tried to move away.   Two of the eyewitnesses testified that prior to the stabbing they heard the petitioner ask the victim if he remembered him from jail.   After stabbing the petitioner, all of the eyewitnesses testified that the petitioner got back into the car and that the car drove off.¹⁵  There was also evidence before the jury that the petitioner and the victim were incarcerated at the same time and that they occupied cells right next to each other on March 8, 1990.¹⁶  Apart from this evidence, the only evidence presented concerning the alleged jail assault was the petitioner's own testimony.   As noted supra, the petitioner testified that a group of inmates, including the victim, jumped him and that the victim stabbed him in the leg with a homemade weapon.¹⁷  Without more, the evidence before the jury was more consistent with a finding that the petitioner intentionally stabbed the victim in retaliation for the alleged jail assault than with a finding that the petitioner's self-control and reason were overborne by intense feelings stemming from “a significant mental trauma that caused [him] to brood for a long period of time and then react violently, seemingly without provocation.”   (Internal quotation marks omitted.)  State v. Person, supra, 236 Conn. 351–52.   As mentioned supra, there was very little evidence of the affect, if any, that the alleged jail assault had on the petitioner.   Accordingly, Attorney Simon's failure to request an instruction on the defense of EED does not undermine this Court's confidence in the outcome of the proceedings.   This claim of ineffective assistance of counsel thus, fails.

Ineffective Assistance of Counsel Re Disqualification of Trial Judge

The petitioner also claims that his trial counsel rendered ineffective assistance by failing to seek Judge Miano's removal from presiding over his hearing in probable cause and his criminal trial.   Specifically, he alleges (1) that pursuant to General Statutes § 51–183h, Judge Miano should not have presided over the hearing in probable cause because he signed the arrest warrant and (2) that pursuant to Canon 3(c)(1)(A) of the Code of Judicial Conduct, he should not have presided over the petitioner's criminal trial because by signing the arrest warrant and presiding over the hearing in probable cause Judge Miano obtained “personal knowledge of disputed evidentiary facts concerning the proceeding” and had an interest in continuing to affirm his probable cause determination allowing the petitioner's arrest and continued prosecution.

Section 51–183h provides:  “No judge may preside at the hearing of any motion attacking the validity or sufficiency of any bench warrant of arrest which he has signed.”   A hearing in probable cause is not the equivalent of a motion attacking an arrest warrant's validity or sufficiency.  “The probable cause hearing is designed to safeguard an accused's rights by requiring the state to demonstrate, at an early stage of the prosecution, that the evidence of the defendant's guilt is sufficient to warrant a prosecution in connection with the particular charge.”  (Emphasis added.)  State v. Reynolds, 264 Conn. 1, 27, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d (2004).   The Supreme Court has, however, acknowledged “that the statutes [including § 51–183h] and rules of practice evince a preference for having a different judge reconsider previously decided questions, or questions similar to those previously decided [and] ․ that the determination of probable cause required for issuing warrants, although not identical, is sufficiently similar to the determination required for the constitutional probable cause hearing to justify the extension, by implication, of the preference that a different judge preside over the probable cause proceedings.”  State v. Canales, 281 Conn. 572, 595, 916 A.2d 7676 (2007).   Nonetheless, the Supreme Court stated that “the law does not mandate that a judge who has issued warrants decline to preside over the subsequent probable cause hearing” and that it “would not conclude that the trial court's actions [in such a situation] violated due process without some indication of actual bias.”  Id., 595, 599.

Based upon the above, the petitioner's claim that Attorney Simon rendered ineffective assistance by failing to move for Judge Miano's recusal from the petitioner's probable cause hearing fails.   Contrary to the petitioner's assertion, a judge who signs the warrant for a defendant's arrest is not automatically disqualified from presiding over the defendant's hearing in probable cause.   The petitioner has not advanced any other grounds on which Attorney Simon should have moved to recuse Judge Miano from the probable cause hearing.   Accordingly, his claim fails.

The petitioner's claim that Attorney Simon should have moved to recuse Judge Miano from the criminal trial likewise fails.

Canon 3(c) of the Code of Judicial Conduct governs judicial disqualification.   It provides in relevant part:  “(1) A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:  (A) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding ․” “Canon 3(c)[ (1)(A) ] thus encompasses two distinct grounds for disqualification:  actual bias and the appearance of partiality ․ As such, [t]o prevail on its claim of a violation of this canon, [a party] need not show actual bias.   The [party] has met its burden if it can prove that the conduct in question gave rise to a reasonable appearance of impropriety.”  (Citation omitted;  internal quotation marks omitted.)  Tracey v. Tracey, 97 Conn.App. 278, 281, 903 A.2d 679 (2006).   That is, “[t]he question is not whether the judge is impartial in fact.   It is simply whether another, not knowing whether or not the judge is actually impartial, might reasonably question his ․ impartiality, on the basis of all of the circumstances.”  (Internal quotation marks omitted.)  State v. Petaway, 107 Conn.App. 730, 737–38, 946 A.2d 906, cert. denied, 289 Conn. 926, 958 A.2d 162 (2008).

“A factual basis is necessary to determine whether a reasonable person, knowing all of the circumstances, might reasonably question the trial judge's impartiality ․ It is a fundamental principle that to demonstrate bias sufficient to support a claim of judicial disqualification, the due administration of justice requires that such a demonstration be based on more than opinion or conclusion.”  State v. Ortiz, 83 Conn.App. 142, 150–51, 848 A.2d 1246, cert. denied, 270 Conn. 915, 853 A.2d 530 (2004).  “[S]peculation is insufficient to establish an appearance of impropriety.”  Tracey v. Tracey, supra, 97 Conn.App. 284.   Furthermore, “the bias or prejudice sufficient to result in a disqualification must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.”  (Emphasis added.)  Id., 283–84.

The petitioner alleges that by signing the warrant for his arrest and by presiding over his hearing in probable cause, Judge Miano had personal knowledge of disputed evidentiary facts.   As noted supra, knowledge obtained by a judge from his participation in the case is not sufficient to disqualify him.   The petitioner further argues that Judge Miano's involvement in his case from its very inception raises the “possibility” that he had an interest in the outcome of the case, i.e., an interest in continuing to affirm his probable cause determinations.   In other words, it is the petitioner's contention that the acts of signing the warrant for his arrest and presiding over his hearing in probable cause, standing alone, automatically biased Judge Miano and disqualified him from presiding over the criminal trial.   The petitioner's contention is mere speculation and conjecture divorced from any factual predicate of partiality.  “[T]he law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea.”  (Internal quotation marks omitted.)  Tracey v. Tracey, supra, 97 Conn.App. 285–86.   The fact that a judge has presided at numerous stages of the criminal proceedings does not sufficiently compromise his impartiality to automatically require his disqualification.   Each stage of the criminal proceedings involves independent determinations with varying burdens of proof, and notably, in the petitioner's case, a jury, not Judge Miano, was responsible for deciding the petitioner's guilt or innocence.   Accordingly, Attorney Simon cannot be faulted for failing to move for Judge Miano's recusal from the petitioner's criminal trial.

CONCLUSION

Based on the foregoing, the petition for a writ of habeas corpus is DENIED.   Judgment may enter in favor of the respondent.   Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.

BY THE COURT

T. Santos, J.

FOOTNOTES

FN1. In his second amended petition, the petitioner also alleges (1) that the trial court improperly presided over his criminal trial after having found probable cause for his arrest and having presided over his probable cause hearing, (2) that the prosecution withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and (3) that the trial court relied upon inaccurate or mistaken information in sentencing him.   The petitioner did not brief these claims.   Accordingly, they are deemed abandoned.   See Raynor v. Commissioner of Correction, 177 Conn.App. 788, 796–97, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010) (“[r]eviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief ․ Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly”)..  FN1. In his second amended petition, the petitioner also alleges (1) that the trial court improperly presided over his criminal trial after having found probable cause for his arrest and having presided over his probable cause hearing, (2) that the prosecution withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and (3) that the trial court relied upon inaccurate or mistaken information in sentencing him.   The petitioner did not brief these claims.   Accordingly, they are deemed abandoned.   See Raynor v. Commissioner of Correction, 177 Conn.App. 788, 796–97, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010) (“[r]eviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief ․ Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly”).

FN2. The petitioner also alleges that his trial counsel rendered ineffective assistance by failing (1) to properly object and preserve issues for appeal and (2) to correct inaccurate or mistaken information relied on by the trial court at the petitioner's sentencing.   The petitioner did not brief these issues.   Accordingly, they are deemed abandoned.   See footnote 1..  FN2. The petitioner also alleges that his trial counsel rendered ineffective assistance by failing (1) to properly object and preserve issues for appeal and (2) to correct inaccurate or mistaken information relied on by the trial court at the petitioner's sentencing.   The petitioner did not brief these issues.   Accordingly, they are deemed abandoned.   See footnote 1.

FN3. The petitioner represented himself with Attorney James Shanley as appointed standby counsel.   Petitioner's Exhibit [Exh.] 4A, p.1..  FN3. The petitioner represented himself with Attorney James Shanley as appointed standby counsel.   Petitioner's Exhibit [Exh.] 4A, p.1.

FN4. “The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made ․ The doctrine ․ applies to criminal as well as civil proceedings and to state habeas corpus proceedings.”  (Internal quotation marks omitted.)  Kearney v. Commissioner of Correction, 113 Conn.App. 223, 234, 965 A.2d 608 (2009).  “[A] second [habeas] petition alleging the same ground as a previously denied petition will elude dismissal if it alleges ․ new facts or proffers new evidence not reasonably available at the time of the earlier petition.”  Id., 235..  FN4. “The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made ․ The doctrine ․ applies to criminal as well as civil proceedings and to state habeas corpus proceedings.”  (Internal quotation marks omitted.)  Kearney v. Commissioner of Correction, 113 Conn.App. 223, 234, 965 A.2d 608 (2009).  “[A] second [habeas] petition alleging the same ground as a previously denied petition will elude dismissal if it alleges ․ new facts or proffers new evidence not reasonably available at the time of the earlier petition.”  Id., 235.

FN5. Petitioner's Exh. 4A, p. 48..  FN5. Petitioner's Exh. 4A, p. 48.

FN6. Petitioner's Exh. 4A, p. 20..  FN6. Petitioner's Exh. 4A, p. 20.

FN7. Petitioner's Exh. 4A, pp. 49–50..  FN7. Petitioner's Exh. 4A, pp. 49–50.

FN8. Petitioner's Exh. 4B, p. 4..  FN8. Petitioner's Exh. 4B, p. 4.

FN9. Petitioner's Exh. 4A, p. 39–40..  FN9. Petitioner's Exh. 4A, p. 39–40.

FN10. “Mr. Francis:  Is there—is there sworn testimony today that because of the time passage between the time I got out of jail and the incident occurred, that EED wouldn't be a good defense because of time passage?“[The Court]:  That's his testimony.“Mr. Francis:  Is that correct?“[Attorney Simon]:  That is one reason.”   Petitioner's Exh. 4A, p. 41..  FN10. “Mr. Francis:  Is there—is there sworn testimony today that because of the time passage between the time I got out of jail and the incident occurred, that EED wouldn't be a good defense because of time passage?“[The Court]:  That's his testimony.“Mr. Francis:  Is that correct?“[Attorney Simon]:  That is one reason.”   Petitioner's Exh. 4A, p. 41.

FN11. Petitioner's Exh. 2C, p. 220–26, 265..  FN11. Petitioner's Exh. 2C, p. 220–26, 265.

FN12. Petitioner's Exh. 8, p.3..  FN12. Petitioner's Exh. 8, p.3.

FN13. Habeas Trial Transcript, March 2, 2010, p. 17..  FN13. Habeas Trial Transcript, March 2, 2010, p. 17.

FN14. At the time of the petitioner's criminal trial, “[a] defendant [was] entitled to have instructions presented relating to any theory of defense for which there [was] any foundation in the evidence, no matter how weak or incredible.”  State v. Bryan, 34 Conn.App. 317, 324, 641 A.2d 443 (1994), overruled by State v. Person, supra, 236 Conn. 342.   The “any evidence” standard no longer applies to affirmative defenses.   See State v. Person, supra, 236 Conn. 353 (“[b]ecause the defendant bears the burden of proof of an affirmative defense ․ we now hold that a defendant is entitled to a requested instruction on the affirmative defense of extreme emotional disturbance only if there is sufficient evidence for a rational juror to find that all the elements of the defense are established by a preponderance of the evidence” [citation omitted] )..  FN14. At the time of the petitioner's criminal trial, “[a] defendant [was] entitled to have instructions presented relating to any theory of defense for which there [was] any foundation in the evidence, no matter how weak or incredible.”  State v. Bryan, 34 Conn.App. 317, 324, 641 A.2d 443 (1994), overruled by State v. Person, supra, 236 Conn. 342.   The “any evidence” standard no longer applies to affirmative defenses.   See State v. Person, supra, 236 Conn. 353 (“[b]ecause the defendant bears the burden of proof of an affirmative defense ․ we now hold that a defendant is entitled to a requested instruction on the affirmative defense of extreme emotional disturbance only if there is sufficient evidence for a rational juror to find that all the elements of the defense are established by a preponderance of the evidence” [citation omitted] ).

FN15. Petitioner's Exh. 1B, pp. 151–263;  Petitioner's Exh. 2A, pp. 1–146..  FN15. Petitioner's Exh. 1B, pp. 151–263;  Petitioner's Exh. 2A, pp. 1–146.

FN16. Petitioner's Exh. 2C, p. 158–59..  FN16. Petitioner's Exh. 2C, p. 158–59.

FN17. Petitioner's Exh. 2C, pp. 220–26..  FN17. Petitioner's Exh. 2C, pp. 220–26.

Santos, Thelma A., J.