Mark Kalphat v. Warden, State Prison (2011)

HABEAS DECISION

DECISION

THE COURT:  I have reviewed the testimony, the exhibits, the file and considered the arguments of counsel and for the following reasons the petition for a writ of habeas corpus is denied.

This case largely comes down to a credibility issue of whether to believe the petitioner's version of what he told his attorneys or his attorneys' version of what he told them.

I credit his attorneys' version and I do not credit the petitioner's version.

Mr. Minnella was very clear that the petitioner never said he had an alias or that the drugs were his and Mr. Minnella said he asked the petitioner all along and the petitioner's story was consistent.   The petitioner could not supply any information to Mr. Minnella concerning M. Patterson.

Importantly, Mr. Minnella's testimony was corroborated to some degree by Attorney Greg Nolan.   The petitioner also told Mr. Nolan that M. Patterson was the person who hired the petitioner to pick up the boxes and the petitioner did not mention to Mr. Nolan that Patterson was an alias.

I found Mr. Nolan's testimony very credible.   Mr. Nolan spoke to the petitioner for four hours in preparation for the motion to suppress.   Although Mr. Nolan acknowledged that the theory of standing had already been developed prior to his talking to the petitioner, it would seem incredible that the petitioner, who was no stranger to the criminal justice system, would never tell Mr. Nolan during a four-hour preparation session what he claims that he told Mr. Minnella.

Therefore, the fact that the petitioner never told Mr. Nolan that M. Patterson was an alias corroborates the fact that he never told Mr. Minnella that.

The courier theory that the petitioner supplied to Mr. Minnella is also consistent with the theory that the petitioner gave to the police on the day of his arrest when his conscience was guilty and that prior consistent, or that prior statement to the police corroborates the view that the petitioner also told Mr. Minnella that he was a courier.

So, I credit the testimony that the petitioner never told his attorneys that the drugs were his and that M. Patterson was an alias.   It appears that the alias theory is one that the petitioner developed after he learned from the court what he needed to do to win the motion.   Given this view of the evidence, it follows that the petitioner's attorneys did not render deficient performance.

Although there was some evidence in the file, such as reports and statements from the ABF employees that counsel had showing that ABF employees knew the petitioner as M. Patterson or that the petitioner had been picking up packages with this name and address, further investigation by petitioner's attorneys would not have supported the alias theory.   There was no solid evidence that the petitioner ever signed as ․ Well, there was no evidence the petitioner ever signed as M. Patterson or presented himself with I.D. for that name and the evidence that he used the name M. Patterson was thin, at best.

The investigation or further investigation would have revealed that the ABF employees assumed that the petitioner was M. Patterson, but that that assumption was unsupported and unjustified.

Even given some evidence in the reports that ABF employees assumed the petitioner was M. Patterson, counsel questioned ․ Mr. Minnella questioned the petitioner on this matter repeatedly and the petitioner never supplied any information concerning M. Patterson or that the drugs were his.

So, even if Mr. Minnella had confronted the petitioner with this information in the reports concerning ABF employees, it would have been difficult, at best, to elicit a different story from the petitioner and counsel would have had to risk suborning perjury to present the petitioner's testimony concerning the alias theory.

It's important to note that no part of Mr. Minnella's reasoning was a fear that putting the petitioner on the stand to say that the drugs were his might risk having that evidence come in in the state's case in chief.   Mr. Minnella understood the rule of Rakas v. Illinois and Simmons, I believe, versus United States, that testimony used at a suppression hearing to establish standing cannot be used by the government in its case in chief.   He understood that rule and no part of his decision not to present the alias theory was based on a misunderstanding of that rule.

So, for all these reasons, the bailment theory, although weak in retrospect, was the best theory that counsel could present;  therefore, I find no deficient performance.   Because there was no deficient performance, I do not reach the issue of prejudice.

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

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Schuman, J.

Schuman, Carl J., J.