Billie Hunt v. Warden, State Prison (2011)

DECISION

THE COURT:  The record will reflect we are here on the matter of Billie Hunt versus Warden, and that's Docket Number CV10–4003366, and all parties please identify themselves for the record.

ATTY. SULIK:  Good morning, Your Honor.   Jo–Ann Sulik, Assistant State's Attorney, for the warden.

THE COURT:  Okay.

THE PETITIONER:  And Billie Hunt, pro se.

THE COURT:  All right.   As a preliminary matter, the court will indicate that based on some of the testimony the court heard, namely some of the testimony that was provided by Attorney Maser in his testimony last week regarding, frankly, claims in Mr. Hunt's current petition that he alleges Attorney Maser failed to make and testimony that Attorney Maser provided through some of the documentation and pleadings, the court requested and has received from the clerk between now and then a copy of the final operative petition that was filed by Attorney Maser, which is a matter of record and the court can take judicial notice of, under Docket Number CV05–40005544, and that's dated May 1, 2009 and the file date is the same day.

The court also has had an opportunity to review the transcript, a certified copy of the transcript of the memorandum of decision, the oral decision on that matter issued by His Honor Judge John Nazzaro on September 9th of 2009.

After reviewing all those documents and putting that together with the defendant's current petition, frankly, the court finds that in its entirety all of the claims that currently remain pending in the petitioner's, in the current petition have either directly in His Honor Judge Nazzaro's decision on September 9th, 2009 or in previous rulings that the judge refers to in his decision, have previously been resolved and decided in ways that would, frankly, preclude any of the defendant's claims.

And specifically I note that there is a generalized finding by Judge Nazzaro that Attorneys Mastronardi, Attorney Mirsky and Attorney Summons were, in fact ․ or did, in fact, provide effective assistance of counsel for Mr. Hunt and/or the court's finding in that decision indicates that there had been a prior finding by another judge that one or more of those attorneys had provided effective assistance of counsel to Mr. Hunt.

Also, reviewing Attorney Maser's claim, and I know for a fact, notwithstanding Mr. Hunt's claims that Attorney Summons attempted to sort of walk away, specifically in His Honor Nazzaro's May 9, 2009 opinion the court finds that Attorney Summons, in fact, consulted with an expert witness.   That expert witness advised her that Mr. Hunt had no viable claims.   She attempted to convey that information to Mr. Hunt. Mr. Hunt was not happy with that information.   Notwithstanding that her own expert had indicated to her that that expert believed there were no viable claims, she continued forward with the hearing.

And those are findings based specifically by Judge Nazzaro and, again, he finds that Attorney Summons provided effective assistance of counsel.

Notwithstanding, Attorney Maser—and I want to talk about him, because the claims are currently that Attorney Maser supposedly filed, failed to provide effective assistance of counsel by failing to raise numerous claims, and I know if one compares the 16–page petition that was filed by Attorney Maser with the current claims by Mr. Hunt, the ones that are still remaining, in one way or another every single one of these claims is contained in Attorney Maser's petition of May 1, 2009, therefore, has been heard.

And again, some of the wording in the current petition may be slightly different, but in substance every single one of these claims, including claims of failure to raise ․ and again, these are multiple claims because he's claiming, Mr. Hunt currently claims ineffectiveness by Attorney Maser for failure to raise ineffectiveness by Attorney Summons for failure to raise ineffectiveness against one or all of his trial counsel and appellate counsel.   In one way or another all of the claims of ․ again, there's a general finding by Judge Nazzaro that all attorneys at the trial level provided effective assistance of counsel.

There's also a factual finding by Judge Nazzaro that there was, in fact, discussion of a five-year pre-trial offer, that was conveyed to Mr. Hunt by Attorney Mirsky;  that Mr. Hunt specifically rejected that;  that Mr. Hunt specifically had given his attorneys, either one or all of them, marching orders that he was going to trial.

There's a finding by the judge as to whether or not claims of unconstitutionality of the statutes, whether or not he had been informed of what he was going to trial on and whether or not he was prepared for trial.

And again, Judge Nazzaro, either directly in his opinion or in referring to other factual findings that he relied on from prior decisions, makes a finding that Mr. Hunt's attorneys properly prepared him, advised him for trial, made appropriate tactical decisions, in calling or not calling witnesses.

In the issues with the pre-sentence investigation, one of the claims here, I note, just for the record, I think Mr. Hunt claims that hisattorneys were ineffective for failing to request a continuance for either completion of the PSI and/or sentencing.   I note that there's a specific finding of fact by Judge Nazzaro that the PSI was complicated by the fact that Mr. Hunt himself failed to appear at two prior scheduled PSI dates and, therefore, Judge Nazzaro finds if there was any missing information or any problem with the PSI being incomplete, he finds that specifically that that all falls on Mr. Hunt's shoulders.

And again, these facts have been decided by the judge, and I note again, if one takes the current petition, the active counts and claims that are remaining, Judge Nazzaro's September 9, 2009 opinion and Attorney Maser's May 1, 2009 second amended petition for writ of habeas corpus, this court finds now that there is nothing remaining in Mr. Hunt's current petition that has not, in fact, already been decided factually by His Honor Judge Nazzaro in a prior claim.

And again, all of the underlying facts of whether attorneys were effective or not, whether an attorney failed to provide him information, whether he was aware of certain things, the court finds factually have all been resolved by prior courts.

This court, again, is not going to revisit those findings.   Mr. Hunt has had, at least from what I can tell, two prior full hearings where these issues have been decided.

Attorney Maser, again, based on the findings of the court as to that hearing, again, attempted to ․ did attempt to raise, frankly, all of the claims Mr. Hunt now claims he failed to raise and Judge Nazzaro, in fact, ruled on those claims.

So, either by reasons of it being a successive petition or by reasons of it being res judicata, or, frankly, by reasons of the petition, current petition being frivolous and being no more than sort of nuanced wordings of claims that have already been decided, the court is going to dismiss;  find that Mr. Hunt has not and cannot meet his burden on one or all of those grounds, is going to dismiss all remaining counts of the petition.

ATTY. SULIK:  Your Honor, the respondent would request that the court also make a finding that nothing that it heard on October 13th or October 20th in any way calls into question the prior decisions of Judge Nazzaro and Judge Hadden.

THE COURT:  Oh, no.   I mean, I'm making a specific finding again that the court is, in fact, accepting all of the factual findings by those, made in those prior hearings, and I do note—and you're right.   I should note for the record Mr. Hunt, although the court has allowed him now nearly two full days of evidence, or attempts to present evidence, has presented not one fact to this court that would allow this court or cause this court to bring in question any of the prior findings.   In fact, most of his own testimony ․ and I'm talking about the narrative testimony form that he gave on the first day of the hearing, would actually cause the court to find that the majority of—

Actually, I would say this, would probably cause the court to entertain the belief that the facts and circumstances alleged against him in his original trial were more than accurate.

He, frankly, doesn't deny that he was, in his own testimony ․ and I think I'm quoting, he doesn't deny that he was in Torrington.   He, frankly, admits that he knew Lisa Lajou (phonetic). He admits that after she got arrested he needed, and I quote, “I was a drug dealer.   I needed to keep the money flowing, so I showed up at the place.”

I think he indicates he inquired of a bartender whether or not the bartender was going to continue working with him to sell drugs at the location;  that the bartender needed to think about it.

The only thing he, frankly, disputes is whether or not he was selling drugs before March of 1999, but he freely admitted in his own testimony that after Lisa Lajou got arrested, which I believe it was around March of 1999, he, himself, went to the bar, inquired about selling drugs and then engaged in ․ fully admitted engaging in at least one drug deal where the police showed up and arrested him.

What he probably did not understand is that's probably the time where the police were already doing surveillance and identified you as a person dealing drugs at the location.   But, again, his own testimony he freely admits that he was, in fact, dealing drugs at the location and started dealing those drugs before the police ․ before the time and place where the police indicate they then subsequently got undercover buys into him.

Again, that isn't necessary for the court's decision here, but I just note it as a matter of record that, again, that's his own testimony.

So he doesn't dispute that he was selling drugs at the location.   He only disputes in his own testimony whether the four or five months prior to the time the police got undercover buys into him or alleged they did, whether he was providing somebody with drugs at the location.

Again, as the court indicated to him when he testified, that really wasn't relevant to his case.   He was arrested and charged on claims that subsequent to that time the police claimed they, themselves, engaged in at least two undercover buys into him.

Again, all of the issues with regards to ․ and again, I'll note Attorney Maser's testimony.   There's a claim that his attorney, that there's again multiple ineffectives for his trial attorney's alleged failure to pursue the motion to suppress fully and to conclusion.

Again, the court credits Attorney Maser's testimony, one, he raised the claim and, two, there was information in at least one ․ I don't know if it was Judge Hadden or Judge Nazzaro found that, and his attorney testified he did that not intending to go forward with the motion to suppress, but to have a free shot at cross-examining the police officer so he would have an idea of what the police officer was going to testify to at trial.

Now, again, a more than sound tactical move, a legal move that an attorney has absolute one hundred percent discretion on and frankly, and again, in this court's opinion, as criminal defense attorney, is a rather intelligent move that many attorneys fail to take advantage of.   But, again, it was not a mistake.   It was a, frankly, intended tactical move on his attorney's part.

And again, ineffective assistance isn't about nuances.   It's not about mistakes.   It is not about even forgetfulness.   It is about an attorney's work or services that falls below that of a reasonably competent attorney.   And again, there's been multiple findings ․ for some of these attorneys there's already been multiple findings.

Again, at least Judge Hadden, I think, in sometime around 2005 and Judge–Nazzaro in about 2009, for some of these attorneys Judge Hadden has ruled on their effectiveness and Judge Nazzaro has also, at least directly or indirectly by ruling on some of the claims made by Attorney Maser, has subsequently ruled on their effectiveness and, again, this court, for all of the reasons stated, is not going to rehash those issues.

I think from what I've heard from Attorney Maser so far, reviewing his complaint and the full decision, again, by Attorney Nazzaro, which for the record I'll state encompasses 28 pages of transcript, has fully addressed previously all of these issues.   And again, for all those reasons and for those findings, the court is dismissing all of the remaining counts in Mr. Hunt's petition, and I'd ask the clerk to provide him with his notice of appellate rights.

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Newson, J.

Newson, John M., J.