271454 v. Warden, State Prison (2011)

MEMORANDUM OF DECISION

On May 17, 2006, the petitioner, Canton Martin, filed a petition for a writ of habeas corpus, amended on February 25, 2009, and again on August 31, 2009, alleging, in Count One, that he was denied the effective assistance of appellate counsel in violation of the sixth and fourteenth amendments to the United States Constitution and article first, § 8, of the Constitution of Connecticut.   In Count Two, the petitioner alleges that, because of newly discovered evidence disclosed by the F.B.I. to the State's Attorney, his conviction should be vacated.   Finally, in Count Three, the petitioner claims he was prejudiced by the late disclosure of Brady material.   The respondent's return asserts procedural default as to any alleged trial court error, misconduct or impropriety.   The petitioner's reply to the return raises ineffective assistance of prior counsel as the cause and prejudice for the procedural default.

This matter came to trial on March 28, 2011.   The Court heard testimony from Attorney James Streeto, petitioner's appellate counsel and Attorney David Shannon, one of the State's Attorneys in his trial.   In addition, the petitioner entered into evidence a copy of a letter from the F.B.I. Laboratory regarding the bullet analysis in this case, an affidavit from the F.B.I. authenticating the copy of the letter, an F.B.I press release announcing discontinuation of bullet lead examinations, and the appendix to petitioner's appellate brief.   Respondent proffered the transcripts of petitioner's criminal trial, the appellate court record, the appellate briefs of the petitioner and the State, petitioner's appellate reply brief, and all of the foregoing in digital format.   The petitioner and the respondent filed, respectively, post-trial briefs on June 19, 2011 and July 20, 2011.

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 three criminal cases in the judicial district of Danbury under the docket numbers CR99–0105096, CR99–0105551 and CR99–01066609.   In file ending in numbers 096, he was charged with robbery in the first degree in violation of C.G.S. § 53a–133 and § 53a–134(a)(2), and felony murder in violation of C.G.S. § 53a–54c.   In file ending in numbers 551 there were four counts of tampering with a witness in violation of C.G.S. § 53a–151a.   Finally, in file ending in numbers 609 there was one count of tampering with a witness in violation of C.G.S. § 53a–151a.

2. As stated by the Appellate Court, the jury could reasonably have found the following facts underlying the offenses:  “At 6 a.m., on January 18, 1999, the defendant called Nicole Harris and asked her to drive from Bridgeport to Danbury to pick up his cousin, Tommie L. Martin.   At approximately 8:30 a.m., Harris and the defendant picked up Tommie Martin in Danbury.   Harris then drove Tommie Martin and the defendant to a gasoline station located next to Gallo's Hi–Way Package Store (Gallo's) in Danbury.   After filling Harris' brown Chevrolet Chevette with gas, Harris drove along the street, passing Gallo's, and turned onto the street next to Gallo's, where she parked.   The defendant and Tommie Martin left Harris' vehicle and went toward Gallo's.   After five minutes, the defendant and Tommie Martin returned to the vehicle and Tommie Martin told Harris to drive around the block.   When the vehicle was in front of Gallo's, Tommie Martin told Harris to drive by slowly.   As Tommie Martin peered into Gallo's, he said, ‘[h]e's by himself,’ and the defendant responded, ‘I have my heat on me, we'll go back in.’   Tommie Martin told Harris to turn her vehicle around and park next to Gallo's.   The defendant and Tommie Martin left the vehicle and returned ten minutes later with bottles of E & J brandy.   When they reentered the vehicle, Tommie Martin told Harris to drive onto the highway.   While driving toward Bridgeport, the defendant and Tommie Martin talked excitedly and were asking each other, ‘[W]as it worth it?’   Shortly thereafter, police were called to the liquor store, where they found the victim, Robert Gallo, lying motionless, having been shot multiple times.   The cash register had been disturbed, and two bottles of E & J brandy were missing.   Gallo died as a result of his injuries.   The defendant subsequently told Harris that he and Tommie Martin were involved in the robbery and shooting at Gallo's.

3. “On January 20, 1999, the defendant called Harris and told her to come to his apartment to pick up something.   When she arrived, the defendant handed Harris a shoebox containing a .25 caliber handgun wrapped in a towel.   In March 1999, Harris turned the gun over to the police, and ballistics tests confirmed that it had been used to fire the bullets that killed Gallo.

4. “On January 25, 1999, the Danbury police department obtained a search warrant for the defendant's and Tommie Martin's residence at 2108 Seaview Avenue in Bridgeport.   The police executed the warrant.   The police seized a sawed-off shotgun, a box of .25 caliber ammunition, a .22 caliber firearm and a magazine for a .22 caliber firearm.   Subsequent laboratory analysis of the bullets recovered from the victim's body and those in a box of .25 caliber cartridges found at the defendant's apartment revealed their chemical elements to be indistinguishable.   They all had come from that box of ammunition.

5. “While awaiting trial, the defendant attempted to contact Harris from prison and did contact associates of Harris to urge her not to cooperate with the state and to dispose of the .25 caliber handgun, which she had been hiding.”  State v. Martin, 77 Conn.App. 778, 781–82, A.2d 835, cert. denied, 266 Conn. 906, 832 A.2d 73 (2003).

6. After a jury trial, presided over by the Honorable Gary J. White, the petitioner was convicted as charged ¹ and sentenced to a total effective sentence of ninety years.²

7. The petitioner was represented on appeal by Attorney James Streeto.   Mr. Streeto is with the Legal Services Unit, or appellate unit, of the Office of the Chief Public Defender where he has worked since 1999.   He was admitted to the Connecticut Bar in 1987 and had been a practicing lawyer for about thirteen or fourteen years when he took on petitioner's appeal.

8. Attorney Streeto testified at the habeas trial that he raised seven claims in the appeal, which is more than usual.   He actually identified over one hundred and fifty possible claims—one hundred and ninety-four, to be precise—that he winnowed down to the seven, which, in his opinion and experience, were the best claims to include in the appellate brief.   He further stated that he considered raising the issue of judicial misconduct, but for strategic reasons he did not, particularly because the Appellate and Supreme Courts tend to frown on them in the absence of really uncontroverted and egregious facts which Mr. Streeto felt were not present in the instant case.   Mr. Streeto additionally had prior experience of unsuccessfully raising a claim of judicial misconduct in a prior appeal arising out of a case in which, according to Mr. Streeto, the purported judicial misconduct was worse.³  This additional prior experience informed Mr. Streeto's decision to not raise a claim of judicial misconduct on appeal and, instead, raise claims that had more potential of prevailing.

9. Additional facts will be discussed as needed.

DISCUSSION

I.

The petitioner's first claim is that Mr. Streeto rendered ineffective assistance of appellate counsel.   The petitioner first identifies almost four dozen trial court and other errors and claims that Mr. Streeto failed to challenge this myriad of purported errors on direct appeal.⁴  Count one also separately identifies five other issues that were not raised on appeal by Mr. Streeto as bases for deficient performance:  1) the trial court improperly ruled on the petitioner's motion to suppress his statements to the police and the effects of State v. Stoddard, 206 Conn. 157, 537 A.2d 446 (1998);  2) the trial court ruled that even if there was an obligation to turn over the contents of the Stoddard letter to the petitioner, which the police were aware of, the fact indicated that the petitioner would not have listened to his attorney's advice to remain silent;  3) the trial court indicated that even though the letter may have been timely sent and in the possession of the police, the letter had to be directed to a known suspect;  4) this ruling makes it almost impossible for the Public Defender's Office to be called by a defendant who is not given access to a Public Defender until he is presented in court and thus denied the petitioner his rights under the 5th and 6th Amendments to the United States Constitution, as well as under the Connecticut Constitution Article 1, Sections 7, 8 and 9;  and 5) failure to raise Brady violations by the state regarding the finding of a .22 caliber gun, disclosure of James Darden as a witness and what he would testify to, and the information from the witness, Anthony Gallo, regarding the number of E & J Brandy bottles that were stolen during the robbery.   These allegations can be further pared down and the court shall refer to them as Stoddard ⁵ and Brady ⁶ claims on appeal.

“Our Supreme Court has distinguished the standards of review for claims of ineffective assistance of trial counsel and of appellate counsel.   See Small v. Commissioner of Correction, 286 Conn. 707, 721–24, 946 A.2d 1203, cert. denied sub nom.  Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).   For claims of ineffective assistance of appellate counsel, ‘[courts] must assess whether there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed [on] appeal, i.e., [obtaining] reversal of his conviction or granting of a new trial.’  Id., 722.

“ ‘Our Supreme Court has adopted [the] two-part analysis [set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], in reviewing claims of ineffective assistance of appellate counsel ․ The first part of the Strickland analysis requires the petitioner to establish that appellate counsel's representation fell below an objective standard of reasonableness considering all of the circumstances ․ [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 ․ The right to counsel is not the right to perfect representation ․ [Although] an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue.   A brief that raises every colorable issue runs the risk of burying good arguments ․ in a verbal mound made up of strong and weak contentions ․ Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues ․ Most cases present only one, two, or three significant questions ․ The effect of adding weak arguments will be to dilute the force of the stronger ones ․ Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation.’  (Internal quotation marks omitted.)  Bailey v. Commissioner of Correction, 107 Conn.App. 362, 366–67, 947 A.2d 2, cert. denied, 287 Conn. 922, 951 A.2d 568 (2008).”   Johnson v. Commissioner of Correction, 131 Conn.App. 805, 808–09 (2011).

Furthermore, “[i]n a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation ․ but by demonstrable realities.”  (Internal quotation marks omitted.)  Crawford v. Commissioner of Correction, 285 Conn. 585, 599, 940 A.2d 789 (2008).

The first part of this court's analysis must be whether Mr. Streeto's representation fell below an objective standard of reasonableness considering all of the circumstances.   The circumstances in this case encompass an appellate attorney's consideration of nearly two hundred potential claims that were winnowed down to seven claims that were fully briefed and addressed on their respective merits by the Appellate Court.   The petitioner's post-trial brief argues that appellate counsel chose “weaker” issues without any objective proof why any or all of the nearly four dozen “stronger” omitted issues would have resulted in a reversal of the convictions and a new trial.   The record before this court belies the assertions of deficient performance.   Additionally, the petitioner has not affirmatively shown that he would have prevailed on appeal had the Stoddard and Brady claims been raised.

The allegations in count one that Mr. Streeto rendered deficient performance are wholly unsubstantiated.   Therefore, the claim asserting ineffective assistance by appellate counsel is denied.

II.

The second count of the amended petition alleges that, because of newly discovered evidence disclosed by the F.B.I. to the State's Attorney, the petitioner's conviction should be vacated.   This claim is indistinguishable, especially in light of the petitioner's assertion that this evidence is clear and convincing and would have proven that he is not guilty, from an actual innocence claim.   The Supreme Court very recently discussed the standard for actual innocence claims raised via habeas corpus petitions.

“Actual innocence, also referred to as factual innocence;  Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998);  is different than legal innocence.   Actual innocence is not demonstrated merely by showing that there was insufficient evidence to prove guilt beyond a reasonable doubt.   See Ankerman v. Commissioner of Correction, 122 Conn.App. 246, 252, 999 A.2d 789 (petitioner's claim that state failed to prove element of specific intent ‘is essentially one of sufficiency of the evidence and not one of actual innocence’), cert. denied, 298 Conn. 922, 4 A.3d 1225 (2010);  People v. Barnslater, 373 Ill.App.3d 512, 520, 869 N.E.2d 293 (‘actual innocence [does] not concern whether a defendant had been proved guilty beyond a reasonable doubt’ [internal quotation marks omitted] ), appeal denied, 225 Ill.2d 641, 875 N.E.2d 1115 (2007);  Ex parte Franklin, 72 S.W.3d 671, 678 (Tex.Crim.App.2002) (petitioner asserting freestanding actual innocence ‘must establish his innocence of the crime by clear and convincing evidence and not merely that he would be found not guilty by a subsequent jury’).

“Rather, actual innocence is demonstrated by affirmative proof that the petitioner did not commit the crime.   See Carriger v. Stewart, 132 F.3d 463, 476–77 (9th Cir.1997) (‘Requiring affirmative proof of innocence is appropriate, because when a petitioner makes a freestanding claim of innocence, he is claiming that he is entitled to relief despite a constitutionally valid conviction ․ Although the postconviction evidence [the petitioner] presents casts a vast shadow of doubt over the reliability of his conviction, nearly all of it serves only to undercut the evidence presented at trial, not affirmatively to prove [his] innocence.  [The petitioner] has presented no evidence, for example, demonstrating he was elsewhere at the time of the murder, nor is there any new and reliable physical evidence, such as DNA, that would preclude any possibility of [his] guilt.’  [Citations omitted.] ), cert. denied, 523 U.S. 1133, 118 S.Ct. 1827, 140 L.Ed.2d 963 (1998);  People v. Barnslater, supra, 373 Ill.App.3d 520 (‘actual innocence mean[s] total vindication, or exoneration’ [internal quotation marks omitted] );  Beach v. State, 353 Mont. 411, 421, 220 P.3d 667 (2009) (‘[a] petitioner predicates a substantive “actual innocence” claim on the assertion that he did not commit the crime of which he has been convicted’);  Ex parte Franklin, supra, 72 S.W.3d 677 (‘clear and convincing evidence that no reasonable juror would have convicted [the petitioner] in light of the newly discovered evidence ․ requires ․ evidence that goes towards affirmatively proving [the petitioner's] innocence’);  see also Turner v. Commonwealth, 56 Va.App. 391, 411, 694 S.E.2d 251 (2010) (explaining that relief on petition for ‘a writ of actual innocence’ is available ‘only to those individuals who can establish that they did not, as a matter of fact, commit the crime for which they were convicted and not to those who merely produce evidence contrary to the evidence presented at their criminal trial’ [internal quotation marks omitted] ), appeal granted, Docket No. 101457, 2011 Va. LEXIS 9 (Va. January 7, 2011) ․

“Affirmative proof of actual innocence is that which might tend to establish that the petitioner could not have committed the crime even though it is unknown who committed the crime, that a third party committed the crime or that no crime actually occurred.”  Gould v. Commissioner of Correction, 301 Conn. 544, 560–63, 22 A.3d 1196 (2011).

The evidence presented to this court—the two letters from the F.B.I.—fall very short of this exacting actual innocence standard.   The claim in count two is without any real or meaningful evidentiary support and is denied.

III.

The third and final count of the amended petition alleges that the petitioner was prejudiced by the late disclosure of Brady material.

“In [Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),] ․ the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused ․ violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.   To establish a Brady violation, the [petitioner] must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [petitioner], and (3) it was material [either to guilt or to punishment].”  (Internal quotation marks omitted.)   Walker v. Commissioner of Correction, 103 Conn.App. 485, 492, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007).

“ ‘In order to obtain relief under Brady, a defendant bears the heavy burden of satisfying all three prongs of the aforementioned test ․ Even if a defendant is able to demonstrate that the government suppressed favorable evidence, he must still demonstrate that the evidence is material.   The test for materiality is well established.   Undisclosed exculpatory evidence is material, and constitutional error results from its suppression by the government, if there is ‘a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.’  (Citation omitted;  emphasis in original;  internal quotation marks omitted.)  State v. Garlington, 122 Conn.App. 345, 358, 998 A.2d 1197, cert. denied, 298 Conn. 910, 4A.3d 835 (2010).

“ ‘In analyzing a Brady claim, the courts must avoid concentrating on the suppressed evidence in isolation.   Rather, we must place it in the context of the entire record.   Evidence that may first appear to be quite compelling when considered alone can lose its potency when weighed and measured with all the other evidence, both inculpatory and exculpatory.   Implicit in the standard of materiality is the notion that the significance of any particular bit of evidence can only be determined by comparison to the rest.’  (Internal quotation marks omitted.)  State v. Shannon, 212 Conn. 387, 399–400, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S.Ct. 510, 107 L.Ed.2d 512 (1989).”  William B. v. Commissioner of Correction, 128 Conn.App. 478, 485–86, 17 A.3d 522, cert. denied, 302 Conn. 912, 27 A.3d 371 (2011).

The petitioner has identified the state's inclusion of the .22 caliber gun in its open file, Mr. Gallo's indication of the number of missing bottles of alcohol, and the disclosure, after the selection of the jury, of Mr. Darden as a state's witness as Brady violations.   Viewing these three averred violations in the context of the entire record, the court concludes that the petitioner has failed to prove that all three were material and that the result of the criminal trial would have been different had these three purported Brady violations not occurred.

CONCLUSION

Based upon the foregoing, the petition for a writ of habeas corpus is denied.   Counsel for the petitioner shall prepare and within thirty days submit to the clerk a judgment file.

It is so ordered.

T. Santos, J.

FOOTNOTES

FN1. Respondent's Exhibit (Exh.) AA, pp.12–25..  FN1. Respondent's Exhibit (Exh.) AA, pp.12–25.

FN2. Respondent's Exh. CC, pp. 48–49..  FN2. Respondent's Exh. CC, pp. 48–49.

FN3. Attorney Streeto testified that the case was named “State v. Barrett ” and was decided “probably in '95, '96.”   The court takes judicial notice of the Appellate Court decision in State v. Barrett, 43 Conn.App. 667, 685 A.2d 677 (1996), cert. denied, 240 Conn. 923, 692 A.2d 819 (1997), which indicates that Mr. Streeto was appellate counsel for the defendant/appellant.   The Appellate Court's treatment of the claimed judicial bias or misconduct is located at pages 678–80 of that decision..  FN3. Attorney Streeto testified that the case was named “State v. Barrett ” and was decided “probably in '95, '96.”   The court takes judicial notice of the Appellate Court decision in State v. Barrett, 43 Conn.App. 667, 685 A.2d 677 (1996), cert. denied, 240 Conn. 923, 692 A.2d 819 (1997), which indicates that Mr. Streeto was appellate counsel for the defendant/appellant.   The Appellate Court's treatment of the claimed judicial bias or misconduct is located at pages 678–80 of that decision.

FN4. The respondent's return asserts procedural default as to all these trial court errors.   Given that the amended petition makes these allegations in the context of appellate counsel's failure to raise make these challenges on direct appeal, the court finds that the petitioner has not procedurally defaulted..  FN4. The respondent's return asserts procedural default as to all these trial court errors.   Given that the amended petition makes these allegations in the context of appellate counsel's failure to raise make these challenges on direct appeal, the court finds that the petitioner has not procedurally defaulted.

FN5. “The principal issue in [Stoddard was] whether the police are constitutionally required under state law to inform a suspect whom they are holding for custodial interrogation of timely efforts by counsel to render pertinent legal assistance.”  State v. Stoddard, supra, 206 Conn. 157–58.   The Supreme Court concluded that “[i]n light of both the historical record and our due process tradition, ․ a suspect must be informed promptly of timely efforts by counsel to render pertinent legal assistance.   Armed with that information, the suspect must be permitted to choose whether he wishes to speak with counsel, in which event interrogation must cease, or whether he will forego assistance of counsel, in which event counsel need not be afforded access to the suspect.   The police may not preclude the suspect from exercising the choice to which he is constitutionally entitled by responding in less than forthright fashion to the efforts by counsel to contact the suspect.   The police, because they are responsible for the suspect's isolation, have a duty to act reasonably, diligently and promptly to provide counsel with accurate information and to apprise the suspect of the efforts by counsel.”  Id., at 166–67..  FN5. “The principal issue in [Stoddard was] whether the police are constitutionally required under state law to inform a suspect whom they are holding for custodial interrogation of timely efforts by counsel to render pertinent legal assistance.”  State v. Stoddard, supra, 206 Conn. 157–58.   The Supreme Court concluded that “[i]n light of both the historical record and our due process tradition, ․ a suspect must be informed promptly of timely efforts by counsel to render pertinent legal assistance.   Armed with that information, the suspect must be permitted to choose whether he wishes to speak with counsel, in which event interrogation must cease, or whether he will forego assistance of counsel, in which event counsel need not be afforded access to the suspect.   The police may not preclude the suspect from exercising the choice to which he is constitutionally entitled by responding in less than forthright fashion to the efforts by counsel to contact the suspect.   The police, because they are responsible for the suspect's isolation, have a duty to act reasonably, diligently and promptly to provide counsel with accurate information and to apprise the suspect of the efforts by counsel.”  Id., at 166–67.

FN6. “In [Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),] ․ the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused ․ violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.   To establish a Brady violation, the [petitioner] must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [petitioner], and (3) it was material [either to guilt or to punishment].”  (Internal quotation marks omitted.)  Walker v. Commissioner of Correction, 103 Conn.App. 485, 492, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007)..  FN6. “In [Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),] ․ the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused ․ violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.   To establish a Brady violation, the [petitioner] must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [petitioner], and (3) it was material [either to guilt or to punishment].”  (Internal quotation marks omitted.)  Walker v. Commissioner of Correction, 103 Conn.App. 485, 492, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007).

Santos, Thelma A., J.