Darel Edwards v. Warden, State Prison (2010)

DECISION

DECISION

THE COURT:  We are back on the record in the matter of Mr. Darel Edwards.   Both counsel are present, and I do apologize for the lengthy recess, but I wanted to make a complete and thorough view of the exhibits.

Again, I do want to thank both counsel for an orderly presentation of this case.   With respect to this matter, I know it's a very serious matter to Mr. Edwards, his attorney, and certainly serious to the respondent warden.

With regard to this matter, we commenced evidence on July 20 and concluded with evidence today and the court is prepared to rule and make a number of findings.

Firstly, the court finds that Mr. Edwards is, indeed, in the custody of the commissioner of corrections.   The petitioner was a defendant in the Judicial District of New Haven at New Haven.   He was charged with assault in the first degree with a firearm, in violation of Connecticut General Statute Section 53a–59a(5), possession of a pistol without a permit, in violation of Connecticut General Statute Section 29–35, criminal possession of a pistol, in violation of Connecticut General Statute Section 53a–217c.

At all times referenced herein, the petitioner was represented by Public Defender Attorney Joseph Lopez.   The petitioner pleaded not guilty and elected a trial before a jury and proceeded to a trial.   After several days of evidence before the Honorable Judge Joseph Licari, the petitioner was found guilty on the charges of assault in the first degree with a firearm and carrying a pistol without a permit.

Subsequent to being found guilty by a jury, pursuant to a stipulation entered into on the record between Mr. Edwards and the State of Connecticut, the petitioner pleaded guilty to one count of criminal possession of a pistol, in violation of Connecticut General Statute Section 53a–217c, and he pled guilty to being a persistent felony offender, in violation of Connecticut General Statute Section 53a–40f, and having committed a Class B felony with a firearm, in violation of Connecticut General Statute Section 53–202k.

Subsequently, on or about December 17, 2004, the court, Judge Licari, sentenced the petitioner to a total effective sentence of twenty years.

The petitioner, thereafter, filed an appeal of his conviction.   On his appeal the petitioner was represented by Attorney Daniel Krisch as a Special Public Defender.   The appeal to the appellate court was unsuccessful in a reported decision, State v. Edwards, 99 Conn.App. 407, 2007.

The petitioner here presents two claims.   Count one is a claim of ineffective assistance of his trial counsel, Mr. Lopez;  count two is a claim of ineffective assistance of his appellate counsel, Mr. Krisch.   Count three was permitted to be withdrawn prior to the commencement of evidence.

The petitioner requests in his prayer for relief that his conviction be vacated and that the case be remanded to the trial court for further proceedings;  that he be released from custody and/or such other relief in law and equity that may obtain.

The respondent warden essentially denied the allegations in counts one and two and actually did raise issues of procedural default, deliberate bypass and res judicata.

With regard to this case, a number of exhibits were introduced, including transcripts from the underlying trial, various aspects of the appellate court case which was referenced, briefs by various parties, the transcript of the appeal record, the actual decision of State v. Edwards, which the court cited.

In addition, the respondents introduced a number of exhibits purported to be statements from the underlying investigation in the matter of State v. Edwards.

With regard to the general facts surrounding and giving rise to this conviction, the facts were adequately summarized by the appellate court in a decision by Judge Pellegrino at page 409, where Judge Pellegrino writes as follows:

At approximately 9 p.m. on July 27, 2003, the defendant, the petitioner herein, and three other men drove to an apartment building at 316 Blatchley Avenue in New Haven.   A group of people were standing outside of the building, including the defendant's girlfriend, Janine Bordeaux, and DeJuano Wells.   Bordeaux and Wells appeared to be arguing with each other.   The defendant then confronted Wells.   After arguing with Wells briefly, the defendant/petitioner retrieved a gun from the car in which he had arrived.   He shot Wells several times, wounding him in the buttocks and legs, and, then fled the scene.   Approximately two months later, the petitioner was arrested.

A trial followed, a verdict of guilty resulted and the petitioner pleaded guilty to the charges on Part B information, which has already been referenced, as well as the appellate court history.

In this case, all parties are guided by the accepted case law regarding habeas corpus, and where making a claim of ineffective assistance of counsel, whether it's trial counsel or appellate counsel, it is the burden of the petitioner to prove both deficient performance and prejudice.   If there is an absence of either element, the petition fails.

Counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.   The habeas case is not an opportunity to re-litigate the claim.   It's well established that a habeas court cannot in hindsight second guess an attorney's trial strategy.

With regard to the specifics of the petition, the court will address each of those claims and the evidence which bears upon them.   The court will, in its discussion, take up count two, firstly, the claim of ineffective assistance of appellate counsel.

To satisfy the burden, the petitioner must prove prejudice and our Supreme Court has stated to satisfy the prejudice prong a petitioner must show a reasonable probability that but for appellate counsel's error or errors, he, the petitioner, would have prevailed in his appeal.

That's from Small v. Commissioner of Correction, 286 Connecticut 707, page 720, a 2008 decision of our Supreme Court.

Here there are specific allegations of deficient performance and prejudice articulated by the petitioner in his amended complaint or petition dated September 18, 2009.

Count two in paragraph 22 alleges that appellate counsel failed to raise all possible issues for appeal and paragraph 23 alleges appellate counsel failed to adequately research issues for appeal.   Paragraph 24 alleges appellate counsel failed to adequately brief the claims and issues for appeal.   In addition, the petitioner alleges deprivation of his rights pursuant to the United States and the State of Connecticut Constitution.   He claims prejudice as a result of claimed deficiencies.

In looking at this particular count, the court will note that it during this proceeding denied a request to withdraw the count.   The request was actually made in the context of a motion.   The court denied the motion because substantial evidence had been presented on this claim and, therefore, saw fit to reach the merits of the issues.

With regard to this particular appellate attorney and his work in representing Mr. Edwards, the court cannot help but observe that the testimony of Mr. Krisch on July 20 was, in this court's view, a textbook example of how an appellate attorney ought to approach representing an individual.

Attorney Krisch accepted appointment to represent Mr. Edwards as a special public defender.   The court accredits Mr. Krisch's testimony that upon joining the law firm of Horton, Shields and Knox, he specialized in the area of appellate practice and, in so doing, focused much of his work in the area of reviewing cases for the purpose of filing an appeal and then preparing briefs and then arguing legal claims before courts of appeals and this court makes a finding that Mr. Krisch did that in this instance.

And with specific testimony on his custom and practice, Mr. Krisch here in fact testified that he graduated from Columbia in 1995.   He then obtained his law degree from the University of Connecticut School of Law in 1999.   He passed both the Connecticut and State of New York bar exams.   He clerked for Justice Ellen Ash Peters on the Connecticut Supreme Court and thereafter joined Attorney Wes Horton and others in this appellate practice.

Mr. Krisch testified that it was his custom, upon accepting an appeal, to review all information from trial.   Firstly, to review the entire record and to read the transcript of the underlying trial, first quickly, and then on a second more thorough run through with eye toward culling out specific potential issues to raise on appeal.   The process was consciously thorough and methodical.

In addition, Attorney Krisch testified that at the time he accepted appointment to represent Mr. Edwards, he had argued approximately nine to ten criminal appeals.   He has done substantial more work since accepting appointment on this particular case.

He also testified credibly that he had occasion to actually speak with the petitioner and he reviewed the record and, upon his review, determined that there existed one issue which he found to have possible merit, which was the issue addressed by the appellate court.   That issue, in a general sense, can be described as claiming the trial court improperly failed to grant the petitioner's motion in limine to preclude the state from questioning a defense witness about her prior criminal conduct.

The appellate court held that the claim was not properly before the court;  that the petitioner, through his counsel, had failed to preserve the issue for appellate review;  that the trial court did not, in fact, rule on the motion in limine on the record;  that defense counsel did not seek a ruling of the motion on the record, nor did counsel object during the state's attorney's cross-examination of this witness regarding her criminal record.

The appellate court sought not to review the claim pursuant to the standards set forth in State v. Golding and declined to invoke the plain error doctrine.

Interestingly, Attorney Krisch testified that he had attempted to actually have Judge Licari comment about whether or not he in fact had ruled on the motion in limine at trial, and, suffice to say, this court heard testimony at length from Attorney Lopez about the circumstances surrounding this issue and the court accredits the testimony of Mr. Lopez that the issue of the impeachment, criminal history, if you will, of the witness was discussed in chambers and that Mr. Lopez did not press the court for an on-the-record ruling of the motion in limine to keep out reference to a 23–year–old larceny and falsely reporting an incident, two different scenarios, of a witness who testified for the defense, whose principal testimony was to address the testimony by a prosecution witness, Veronica Holmes.

Specifically, the defense witness, Carolyn Woodard, testified at trial that the state's witness, Veronica Holmes, was in her residence at a time Ms. Holmes claimed to have observed the shooting of the victim here by Mr. Edwards.

The court accredits Attorney Lopez's testimony that he was familiar with Judge Licari as a public defender.   Mr. Lopez had been a public defender in the Judicial District of New Haven.   He had been in the juvenile court and the GA. He admitted that this was his first jury trial.

That notwithstanding, Mr. Lopez decided not to object to the line of questioning during the case when the prosecuting attorney brought out history on cross-examination of Woodard that she had conduct consistent with a lack of truth and veracity;  specifically that there was an incident in Florida involving making a false statement to the police and that she had larcenous history.

I believe the record bears out that the state did not cross-examine specifically on the issue of criminal conviction per se, but on conduct in accordance with the Connecticut Code of Evidence 6–6(b), I believe.

So, the appellate court never reached the merits of the issue and the court found no merit to the claim advanced.

Here, Krisch testified, interestingly, that he did not see any other issue viable and it was his view that advancing any other issue would amount to essentially advancing frivolous claims.

Questions were asked of Krisch about other potential issues, including this stipulation that was entered into which provided that if the petitioner was found guilty of the crimes charged, he would then enter a plea of guilty to being a persistent felony offender and also criminal possession of a firearm.   Given his felonious history, there were other issues which Krisch reviewed and rejected.

Before I leave the issue of the stipulation, clearly the record, and the court has reviewed the entirety of the record along with the transcripts, demonstrates that Judge Licari had to canvass Mr. Edwards three times before Mr. Edwards responded appropriately on whether he understood the implications of this stipulation.

In plain speak, the attorney, Mr. Lopez, testified credibly that it made no sense to force the state to proceed to a trial, especially in front of the jury on the issue of the Part B if the jury convicted Mr. Edwards of the underlying offenses.

It was a strategic tactical decision which he discussed with Mr. Edwards.   Mr. Edwards acknowledged as much in his testimony.   Certainly, the petitioner did not want before the finder of fact his felonious history and certainly any history having to deal with firearms or past firearm use or conviction, and it was for that reason that the stipulation was entered into.

Notably, the stipulation was entered into prior to the conclusion of all the evidence in the case.

Doubtless, once the verdict of guilty came in, Mr. Edwards was disappointed and perhaps even emotionally upset, which resulted in apparent confusion on the implications of the stipulation.   That confusion, however, was erased through the thorough and substantive canvass by Judge Licari, which is born out on the record, that Mr. Edwards, who has a degree of intelligence here, understood the full implications of the plea.

The court does note that Mr. Edwards did testify and the court found him to be reasonably intelligent and read that he, indeed, graduated from the Wilbur Cross High School in New Haven, which this court is familiar with, having lived in New Haven for six years.   In addition, it's referenced in the record that Mr. Edwards may have had some college, and his ability to respond to questions in this proceeding on both direct and cross-examination and redirect and re-cross certainly reflects a better than average intellect.

Here, Mr. Krisch testified credibly that there were no other issues which were meritorious to advance, in so many words.   In fact, he did not raise the guilty plea because he considered the whole issue as frivolous under Anders v. Commissioner.

I asked Mr. Krisch about that and as far as any other issue, Mr. Krisch did testify that he, in accord with his custom, reviewed the legal issue identified with his client and he actually forwarded a copy of the brief to his client prior to oral argument and at all times kept his client very much informed and involved in the process and his was a very specific and surgical approach in terms of raising one issue for appeal.   It reflects a seasoned appellate attorney who avoids a shotgun approach, so-called, which requires the court to address frivolous claims and claims which unfortunately detract from any potential ones with merit and the court accredits Mr. Krisch's testimony in this regard.

The court is familiar that, frankly, the law firm of Wes Horton, Kim Knox and Krisch and Company, again, is a well-respected appellate law firm.   Wes Horton and his partners bring a high degree of professionalism to their practice and that was displayed by the then young associate, Mr. Krisch, at the beginning of his career in appellate advocacy.   It is rare that this court observes, frankly, an attorney with as much experience in terms of quality on the appellate level coming in to do special public defender work as Mr. Krisch displayed here with his measured and meticulous approach.

It is alleged in paragraph 22, that appellate counsel failed to raise all possible issues for appeal.   The court finds no prejudice with respect to this claim and no deficiency, and for those reasons that claim is unproven.

Paragraph 23 alleges that counsel failed to adequately research issues for appeal.   This court finds that claim to be unproven.

This court finds that Mr. Krisch did a meticulous review of the law and researching the record, as well as talking with his client, and, somewhat surprisingly, actually conferred with trial counsel, Mr. Lopez, in Krisch's words, several times, and, again, for benefit of others, Mr. Krisch followed an appellate worksheet, which was his custom, thereby following a tried and true procedure of reviewing the record and re-reviewing the record for the purpose of culling out issues.

The court makes a finding that Krisch specifically reviewed this issue of—an issue brought up by Mr. Edwards, without recalling it specifically, but found it to have no matter.

With regard to 23, that claim is unproven.   There is no prejudice.   There is no deficient performance.

With regard to paragraph 24, it's alleged that appellate counsel failed to adequately brief the claims and issues for appeal.   That claim is unproven.

On the contrary, Mr. Krisch displayed a high degree of professionalism with regard to his methodology and implementation of the process.

With regard to this case, there is no basis upon which this finder of fact can conclude that had Mr. Krisch raised any other issue for appeal than the one he did, that evidence exists to show a reasonable probability that he, the petitioner, would have prevailed on his appeal.   Therefore, the petitioner does not meet the burden of proof required under Small v. Commissioner of Correction.

The court makes a specific finding that Attorney Krisch's performance was reasonable and did not fall below the range of competency displayed by lawyers with ordinary training and skill in the area of criminal and appellate law.   There is no deprivation of any constitutional right, vis-a-vis the United States Constitution or the Connecticut Constitution, and for those reasons the petitioner fails with regard to count two.

Count one alleges ineffective assistance of counsel at trial, Mr. Lopez, and with regard to this particular count, the petitioner claims in his amended petition of September 18 that counsel, in paragraph 10, failed to adequately investigate, locate and call at trial witnesses who would have provided exculpatory testimony at trial.

The short answer in response to this claim is that this is unproven.

With regard to the testimony of Mr. Lopez, Mr. Lopez, interestingly enough, obtained his undergraduate degree from Central Connecticut State University in the area of engineering.   He then went on to law school.   He attended the Western New England College of Law and became a public defender in approximately 1996.   He worked in the GA and juvenile courts before ascending to the Judicial District of New Haven, where he represented individuals accused of serious felonies and misdemeanor offenses.

Here, Mr. Lopez had the benefit and assistance of an investigator.   The court finds that Mr. Lopez obtained all reports, records, statements, evidence against his client, Mr. Edwards.   He developed a strategy of defense, looking to cast blame elsewhere for the shooting.   The chosen strategy was to divert attention on Mr. Edwards and place it possibly upon his brother, whom I believe was named Lamar.   He discussed this strategy with his client and pursued this strategy at trial.

Pretrial, this court finds that Mr. Lopez did meet with his client, had substantive discussions about the defense.   He was aware that the victim in this shooting, DeJuano Wells, would possibly not testify.

The court accredits Mr. Lopez's testimony that he actually had several conferences with Mr.—or with the victim, and it appeared the victim, himself, was reluctant to testify.

Here, he appreciated then that the state's case would proceed in the absence of the victim, and one of the key witnesses against Mr. Edwards was an individual who was described as a cousin of some degree, a Veronica Holmes.   Mr. Lopez appreciated that Veronica Holmes would testify that she observed Mr. Edwards in some type of argument or dispute with the victim and at some point in time Ms. Holmes would testify that the petitioner shot the victim.

The attorney was, of course, acquainted with the significance of this eye witness testimony.   The attorney was able to locate this Carolyn Woodard, who, as the court has already mentioned, would likely testify that she knew Veronica Holmes and that Holmes was actually in Woodard's residence at the time of the shooting and only came out afterward.

The attorney carefully reviewed the information.   He filed what he termed lots of motions.   Indeed, he filed the motion to prevent the state from using the two Florida events involving Ms. Woodard or Woodward, a larceny and false statement scenario.

The court finds no prejudice by virtue of Mr. Lopez not seeking a ruling on the record on the motion in limine.

The court accredits counsel's testimony that Judge Licari, in chambers, made clear he would likely permit the evidence to come in.   That being the case, the court understands as well Attorney Lopez's failure to object to the line of questioning.

The court acknowledges that Mr. Lopez testified that he, Lopez, thought he had preserved the issue for appeal by virtue of this process.

The court will not even reach the issue of deficient performance, finding no prejudice for the following reasons.

This is a matter of evidence.   This is a matter about which the court has discretion.   This court, frankly, cannot hypothecate a jurist denying admissibility of the evidence under these circumstances.

Therefore, even if the motion in limine were ruled upon on the record, the court cannot conclude that Judge Licari would have granted the motion, but, more significantly, perhaps for purposes of the appellate record, even if counsel preserved it for appeal by having the judge deny the motion on the record or by objecting on the record, with the court, in all likelihood, overruling the objection, the court does not, this court does not find that this issue would likely have changed the outcome of appeal.

In other words, even if these issues had been properly preserved, under the evidence presented in this case and the circumstances amply supported by the record, there's no reason that a reasonable jurist would have concluded that the jury verdict should be set aside and a new trial ordered.

Indeed, because the conduct inquired about had to do with falsity and a larcenous past, this would have been proper cross-examination.

And I realize that the petitioner is making the argument that counsel failed to preserve the record.   The deficient record or the existence thereof is obviously observed by Judge Pellegrino in the appellate court decision, but that doesn't change the outcome here where the court finds no prejudice regarding Attorney Lopez's conduct.

Although Attorney Lopez, somewhat in Machiavellian sense, says, “I erroneously believed I made objections in chambers, not on the record.   It was my mistake,” again, although he chooses to fall on his sword, so to speak, to mix metaphors, there still is no deficiency, there still is no prejudice with regard to this purported mistake.

This court is certainly well acquainted with the appellate court practice of disposing of an issue on procedural rather than substantive grounds and does not attach any significance by the court's declining to review the issue under the plain error doctrine.

Here, the record reveals that Mr. Lopez conducted very vigorous cross-examination of all of the state's witnesses, and the state's witnesses were substantial.

At trial, the prosecution presented testimony from Officer Diago Contero (phonetic) of the New Haven Police Department about his response to the scene of the event on July 27, 2003 in the Fair Haven Section of New Haven near Blatchley Avenue where he found a black male obviously in physical distress, having been shot four times in the legs.   Officer Contero saw the petitioner's then girlfriend, Janine Bordeaux.   She identified her boyfriend, whom she described as David Cooper.   She saw Edwards shoot the victim.   There was cross-examination on the absence of shell casings found, also the absence of blood.

With regard to Janine Bordeaux, Ms. Bordeaux testified at trial.   Arguably, inconsistent with her prior statements to the police, she claimed that she never said that she saw her boyfriend, Mr. Edwards, with a gun, and there was much cross, redirect, recross on what she told an officer and, arguably, confusion resulted from the cross-examination by Attorney Lopez.   In essence, Ms. Bordeaux attempted to recant her statement to one of the New Haven officers that she saw Darel with a gun.

The state was actually prompted to recall Mr. Contero with the New Haven Police Department on this issue of the Janine Bordeaux statements.

The state presented Veronica Holmes, as was already referenced, and, again, there was extensive cross-examination by Mr. Lopez.   Significantly, at trial Ms. Holmes testified that she approached the victim, who said something to the effect of “He shot me ‘cause ․”

So I may have misspoke if I said that Holmes was the cousin of the defendant.   I don't recall.   I know she was the cousin of one of the two.   But, in any event, Ms. Holmes did pick out a photo of Mr. Edwards from a lineup and she was cross-examined extensively again on what she told the police.   There was also attempted cross-examination of Ms. Holmes regarding whether she worked at Yale and whether or not she had been party to some type of civil action involving a child.

The court finds no prejudice with regard to any claims associated with this cross-examination which may have involved a different Veronica Holmes.

The state also presented testimony from a Dr. Manish Tanden (phonetic) from the Yale–New Haven Hospital who testified about the serious gunshot wounds.

Other officers from the New Haven Police Department testified—Walter Shredders, Greg Casman (phonetic spellings), about various aspects of gathering of evidence.   Casman testified about actually apprehending Mr. Edwards.

The state's expert, Ed Jacimowitz (phonetic), testified about .38–caliber round hollow points and other technical evidence.

Officer Herb Johnson of the New Haven Police testified about he and Officer Vasquez going over to Blatchley, he saw victim, DeJuano Wells, did a neighborhood canvass, met up with Bordeaux.   She, too, picked out the photograph of Darel Cooper, also known as Darel Edwards, from a photo array.   This officer showed Veronica Holmes a photo array as well.

Testimony was introduced about Mr. Edwards' having contact with this officer and purportedly arranging to meet the officer on a number of occasions, and I have in my notes that Mr. Edwards failed to show up for a meeting at least two times.

Casman testified that he apprehended Mr. Edwards.   Mr. Edwards was arrested, he was given his Miranda rights and he made some type of statement about being in a blue Camry.

The state presented evidence from an Alex Moreno (phonetic), who worked for a company called Chef's Solutions.   There was testimony about Mr. Edwards at one time working for the company, but according to Moreno, Mr. Edwards' employment ceased the day before on July 26.   Any claim that Mr. Edwards may have been working was contradicted by this individual.

The state also presented testimony from a parole officer for the petitioner, a Vincent Delucia (phonetic).   Reference to the stipulation has already been made on the record.

Interestingly, Mr. Lopez put on a defense.   There was a canvass of Mr. Edwards and about his decision to preserve his fifth amendment right against self-incrimination.   There was a thorough canvass by Judge Licari that Mr. Edwards understood his right not to testify, sought to exercise that.

That notwithstanding, Mr. Lopez called a number of witnesses—Vicky Lashawn Bradley (phonetic), who testified about Veronica Holmes purportedly coming outside of Carolyn Woodard's residence after the shooting, so that was to corroborate the Carolyn Woodard testimony.

Carolyn Woodard's testimony has already been referenced.   Essentially, she was called to contradict Holmes, to indicate that Holmes was inside Woodard's house.   Mention has already been made about Ms. Woodard's history of larceny and falsity coming out.

The respondent argued, I think correctly today, that there was significant testimony in the state's rebuttal case presented by Detective Herb Johnson and that Mr. Johnson testified that when the police initially interviewed Woodard, she indicated that at the time the shooting went on Ms. Woodard said she was sleeping and was awoken, essentially, I believe, by her sons, with some type of reference to someone being shot.   So it's with that backdrop that Mr. Lopez represented Mr. Edwards.

Specifically, counsel makes a number of allegations.   I mentioned paragraph 10.   There. was reference to, I think it was Paul Smith, who was interviewed.   Counsel testified that he interviewed the gentleman.   He was not at all impressed with him and he chose not to call him and that was a tactical decision by the attorney.

This court will not second guess—in accordance with the appellate court in Toccaline v. Commissioner, the court will not second guess trial counsel's strategy.

Mr. Lopez was aware that this individual, Paul, might provide some type of corroborative exculpatory information, but the attorney viewed it as not credible, and that's the classic hindsight analysis which this court will avoid in terms of the wisdom to call Mr.—I think his name is Paul Smith.

Attorney Lopez testified credibly that Smith wouldn't help;  his demeanor would not come across well;, he would not make a good witness;  he would take away from Woodard;  he was a friend of his client.

Of note, at the time Mr. Lopez made these judgments, he had four to five jury trials while acting as a public defender in the GA. He had defended a number of cases involving drugs, assault, burglary, so he was not inexperienced, although this was his first trial.

With regard to paragraph 10, the court will not speculate as to the substance of other witnesses who purportedly should have been called, other than to state this court makes a finding that there has been no testimony brought out at the trial which this court would find to be credible, or credible enough to contradict the attorney's decision to not call such an individual.

This court accredits Mr. Lopez's testimony that he did an exhaustive investigation, he pursued all leads, he talked to his client, talked with anyone that would be a potential witness and can find no deficiency with regard to the allegations in paragraph 10.   By the same token, there is no prejudice.   For those reasons, the allegations fail.

With regard to paragraph 11, it's alleged that trial counsel failed to adequately and properly cross-examine the state's witnesses and, had he done so, the petitioner would not have been convicted.

This court observes that the scope of cross-examination is a tactical decision.   The issue of when to object is strictly a tactical decision.

Based upon a review of the record, the court can find no deficiency or prejudice by the conduct of Mr. Lopez with respect to this allegation of cross-examining the state's witnesses.   For those reasons, the allegations in paragraph 11 are unproven.

With regard to paragraph 12, it's alleged trial counsel failed to argue on the record defense's motion in limine relative to the prior Florida convictions of its witness, Carolyn Woodard.

This court finds no prejudice with respect to the allegation in paragraph 12, and for that reason and the reasons previously stated by the court, paragraph 12 is unproven.

Paragraph 13 alleges that trial counsel failed to obtain a court ruling on the record relative to the defense motion in limine.   For reasons already indicated, this court concludes there is no prejudice with respect to this paragraph;  paragraph 13 fails.

Paragraph 14 alleges trial counsel failed to object at trial when the state cross-examined Carolyn Woodard regarding her Florida convictions.

This court makes a finding that trial counsel did not object, but conducted himself in that manner because he believed that his objections would likely not be sustained.   There is no prejudice by virtue of this process.

Again, the court appreciates part of the petitioner's claim is that counsel failed to preserve the record.

For reasons already indicated, had he preserved it, there's no reason to conclude this claim would have upset the verdict by the jury or, indeed, the sentence imposed by the court following the jury verdict and the plea of guilty to the Part B information which called for enhanced penalties given Mr. Edwards' felonious history.   For all those reasons, paragraph 14 is unproven.

Paragraph 15 alleges trial counsel failed to adequately and fully advise petitioner of the ramifications of entering into a stipulation regarding counts two and three of the information.

A short response to this allegation is that there is no prejudice proven with regard to this claim.   The record and the transcript abundantly makes clear that the trial court, Judge Licari, reviewed in detail the consequences of the stipulation.

In addition, this court accredits the testimony of Attorney Lopez that he explained fully his reasoning and explanation to the client for entering into the stipulation.

And again, although Mr. Edwards can be described as distraught and confused following the finding of guilty by the jury, this court cannot conclude Mr. Edwards did not appreciate the consequences or ramifications, so called, of entering into the stipulation based upon the representations in open court on the record and also this court's ability to measure the demeanor of Mr. Edwards while on the stand answering questions by both counsel here.   For those reasons, again, there is no prejudice and paragraph 15 is unproven.

It is alleged in paragraph 16 that trial counsel failed to fully consult with and advise petitioner as to the Part B information exposure.

This court finds that to be unproven.   The transcript in evidence tacitly notes the several breaks in the plea or canvass process by Judge Licari, once, twice, and then the third time, in between which it is clear the judge recommended to Mr. Lopez that he confer further with his client, and this court accredits Mr. Lopez's testimony that he, in fact, did that, and the eventual successful plea canvass, or the canvass regarding the stipulation reflects that Mr. Edwards had a meaningful discussion with his attorney.   For all of those reasons, paragraph 16 is unproven.

Paragraph 17 alleges that trial counsel failed to consult with and advise the petitioner of any enhancement penalty that he may have been facing exposure to.

This court finds that claim to be unproven.   There is no prejudice.

The court does note that Mr. Edwards was exposed to, I believe, in excess of forty years in state's prison.   In fact, Judge Licari imposed a total effective sentence of twenty years, and Judge Licari did remark at sentencing, even if he were to disregard the enhancement statutes, he still would be imposing the twenty years with respect to Mr. Edwards.

This court tacitly accredits, again, the testimony of Mr. Lopez that he, in fact, had a discussion involving enhancement penalties.   This court makes a finding that Mr. Edwards, in fact, understood that prior to entering into the stipulation, which is on the record.

Paragraph 18 alleges that trial counsel failed to adequately preserve and protect the record for appeal.   This claim is unproven.   For reasons already indicated, there is no prejudice to any aspect about counsel's failure to preserve a motion in limine issue or the failure to object to the cross-examination of Woodard on the larcenous and police false statement past conduct.   Paragraph 18 is unproven.

This court finds neither deficient performance or prejudice.   This court makes a tacit finding that Mr. Lopez's representation was not deficient.   There is no violation of Mr. Edwards' rights under the federal and state constitution.

For all of those foregoing reasons, the court respectfully denies the petition for writ of habeas corpus with respect to the claims of ineffective assistance of both his trial and appellate counsel.

Judgment may enter in favor of the respondent.

Should an appeal follow, I request that the petitioner's counsel prepare a judgment file within thirty days.   I'm requesting that notice of appeal rights be prepared for the petitioner.

The record shall reflect those notices are being handed to the marshal.   The marshal is serving notice of appeal rights on Mr. Edwards and his attorney in accordance with law.

I'm requesting that a transcript of this on bench ruling be prepared for my signature.   It shall constitute a memorandum of decision.

The appeal period shall be tolled following receipt of the transcript of the signed decision by the trial counsel.

Nazzaro, J.

Nazzaro, John J., J.