Tobias Anderson v. Warden–Cheshire (2012)

MEMORANDUM OF DECISION

I. STATEMENT OF CASE

In his November 22, 2006 Third Amended Habeas Corpus Complaint, the Petitioner attacks his 1987 conviction for kidnapping, attempted sexual assault and attempted robbery.   These convictions were affirmed in State v. Anderson, 212 Conn. 31 (1989).   The Third Amended Habeas Complaint initially contained thirty-seven counts.   The number of these counts and claims were narrowed and terminated in a series of proceedings more fully described below.   Following the Appellate Court decision in Tobias Anderson v. Commission of Correction, 114 Conn.App. 778 (2009), a further proceeding was required to address counts 26 and 35.

The following facts and procedural history are relevant to the petitioner's appeal.   The petitioner was convicted, after a jury trial, of kidnapping in the first degree in violation of General Statutes § 53a–92(a)(2)(B), attempt to commit robbery in the first degree in violation of General Statutes §§ 53a–49(a)(2) and 53a–134(a)(3), and attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a–49(a)(2) and 53a–70(a).   The court, Kline, J., sentenced the defendant to a term of twenty-five years imprisonment to run consecutively to a previously imposed sentence of thirty-five years.   The-petitioner appealed from his conviction, which our Supreme Court affirmed in State v. Anderson, 212 Conn. 31, 561 A.2d 897 (1989).   The petitioner sought post-conviction relief in five separate actions preceding the present petition.[1]. On February 25, 2003, the petitioner filed this action, his fifth petition for a writ of habeas corpus.   Subsequently, on April 15, 2004, the petitioner's habeas counsel, attorneys Robert J. McKay and Scott W. Sawyer, amended the petition to make the following allegations:  (1) the petitioner was denied the effective assistance of trial and habeas counsel, (2) prosecutorial misconduct, (3) judicial bias and (4) that the cumulative effect of the errors committed by the trial judge, prosecutor and defense counsel prevented the petitioner from receiving a fair and impartial trial.   On August 6, 2004, the respondent filed a return asserting, inter alia, that (1) the petitioner's claim that he was denied the effective assistance of trial counsel was a successive petition and, therefore, an abuse of the writ, (2) the petitioner was procedurally defaulted regarding his claims of judicial bias and prosecutorial misconduct, and he could not establish good cause or prejudice sufficient to excuse his failure to have asserted those claims on direct appeal, and (3) the petitioner's claim of “cumulative effect” stemming from a variety of alleged errors failed to state a claim on which relief could be granted.   The respondent also filed a motion to dismiss (1) the ineffectiveness claims as successive and because the petitioner failed to state new facts or to proffer new evidence not reasonably available to him at the time of the prior petition alleging ineffectiveness and (2) the cumulative effect claims because they failed to state a claim on which relief may be granted.

In August 2004, McKay and Sawyer moved to withdraw as the petitioner's counsel due to the deterioration of the attorney-client relationship and their refusal to litigate claims that they deemed frivolous.   This motion was granted.   Attorney Justine F. Miller, who thereafter was appointed to represent the petitioner, filed an amended petition on August 1, 2005.   The respondent once more moved to dismiss the petitioner's ineffective assistance claims as successive.   On January 11, 2006, the court granted the respondent's motion.   Subsequently, the petitioner moved for the appointment of new counsel, claiming that Miler had failed to pursue all of his claims adequately.   Miller also moved to withdraw.   On January 17, 2006, the court denied the petitioner's motion and granted Miller's motion to withdraw.   The court further found that the petitioner had forfeited his right to court-appointed counsel.   On November 14, 2006, the petitioner, proceeding pro se, filed a thirty-seven count, third amended petition.   Counts one through fourteen alleged judicial misconduct, counts fifteen through twenty-one alleged prosecutorial misconduct, and counts twenty-two through thirty-seven[2] alleged ineffective assistance of trial and habeas counsel.   The respondent filed a return seeking a dismissal of all counts and raising the affirmative defenses that the petitioner's judicial and prosecutorial misconduct claims were procedurally defaulted, the claims against trial counsel were successive and the claim against habeas counsel failed to state a claim on which relief may be granted.   The petitioner filed a reply denying that he was procedurally defaulted on any claims and stating that his claims were not successive.   On August 29, 2007, the petitioner filed a motion for summary judgment regarding his ineffective assistance of counsel and judicial misconduct claims.   The respondent objected to the petitioner's motion and sought summary judgment in her favor on all claims pursued by the petitioner relating to the disqualification of the trial judge.

On November 19, 2007, the court, Hon. Anthony V. DeMayo, judge trial referee, issued a decision denying the petition.   The court concluded that (1) the petitioner's reply to the respondent's return did not comply with Practice Book § 23–31(c),[3] and, thus, he was procedurally defaulted from asserting his claims of judicial and prosecutorial misconduct set forth in counts one through twenty-one, (2) counts fourteen and twenty-one, regarding the petitioner's cumulative error claim, were not claims on which habeas relief could be granted and (3) counts twenty-two through thirty-six were successive petitions.

The petitioner did, however, assert different grounds for relief in counts twenty-six and thirty-five.   In count twenty-six, the petitioner alleged that trial counsel's performance was deficient for failing to file an application for sentence review and requests the restoration of his sentence review rights.   This is the first time that the petitioner raised this claim.   We conclude that because this claim states a ground for relief different from that raised in previous petitions, the petitioner is entitled to a hearing on this count.   See Carter v. Commissioner of Correction, supra, 109 Conn.App. 306.

Additionally, in count thirty-five, the petitioner alleged that habeas counsel, attorney David A. Dee, rendered ineffective assistance.   Because this is the first time that the petitioner raised this claim, he is entitled to a hearing.  “[A] person convicted of a crime is entitled to seek a writ of habeas corpus on the ground that his attorney in his prior habeas corpus proceeding rendered ineffective assistance.”  (Internal quotation marks omitted.)   Stevenson v. Commissioner of Correction, 112 Conn.App. 675, 684, 963 A.2d 1077, cert. denied, 291 Conn. 904, A.2d (2009).   We conclude, therefore, that the petitioner is entitled to a hearing on this count.

Tobias Anderson v. Commissioner of Correction, 114 Conn.App. _, _ (2009).

Habeas Hearings

On February 17, 2010, and March 31, 2010, hearings were conducted and evidence concluded in connection with the instant matter.   The sole witness was the Petitioner.   The Petitioner offered only his high school transcripts as documentary evidence.   The State offered no additional evidence.

The Petitioner withdrew count 26 during the March 31, 2010 hearing, Transcript ¶ 25, when the State of Connecticut counsel agreed and stipulated that the State had no objection to the Court reinstating the Petitioner's right to apply for subject review.   In light of the stipulation, the Court does reinstate the Petitioner's right to reapply for sentence review.

The sole remaining count to be addressed is count 35 of the Third Amended Complaint.   The essence of count 35 is a claim of ineffective assistance of Petitioner's prior habeas counsel, Attorney David A. Dee. The allegation is that Attorney Dee was ineffective for failing to raise various claims that the trial judge ¹ should have been disqualified from presiding at the Petitioner's 1987 criminal jury trial, wherein he was convicted of kidnapping, attempted sexual assault in the first degree, and attempted robbery in the first degree.   The Petitioner asserts that such disqualification was mandated because Judge Kline had issued search and arrest warrants pertaining to the Petitioner's case prior to presiding over the Petitioner's criminal jury trial.

The parties agreed during the evidentiary portion of the habeas hearing that the Honorable M. Morgan Kline did, in fact, sign both search and seizure and arrest warrants in connection with the criminal proceedings against the Petitioner that eventually led to the subject criminal trial that led to his conviction, incarceration and instant petition for a writ of habeas corpus.

H. LEGAL STANDARDS

“There are two components to a claim of ineffective assistance of counsel.”   Johnson v. Commissioner of Correction, 218 Conn. 404, 424 (1991).   A habeas petitioner must demonstrate (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense.  Strickland v. Washington, 466 U.S. 668, 687, 104 S.CT. 2052, 80 L.Ed.2d 674 (1984);  Johnson, 218 Conn.App. 424.   The burden rests with the petitioner to prove his allegations not for the respondent to disprove them.  Rodriquez v. Commissioner of Correction, 35 Conn.App. 527, 537 (1994).

Ineffective assistance of prior habeas counsel is a cognizable claim under Connecticut law.  “To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective;  and (2) that his trial counsel was ineffective.”  “A convicted defendant's claim that counsel assistance was so defective as to require reversal of a conviction has two components.   First the defendant must show that counsel's performance was deficient ․ Second, the defendant must show that the deficient performance prejudiced the defense ․ unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.   (Citations omitted.)  Lozada v. Warden, State Prison, 223 Conn.App. 834, 842–43 (1992).

During the testimonial phase of the habeas hearing in instant matter, the Petitioner revisited, but did not expand, all prior claims he made as to ineffective assistance of trial counsel, prosecutorial misconduct and judicial bias/misconduct, that are found in the thirty-five counts that had previously been dismissed/withdrawn from the instant thirty-seven count petition.

As our Supreme Court noted in Lozada v. Warden, supra, p. 844, “Although the petitioner must, by necessity, repeat his allegations of trial counsel's inadequacy, there [may] never have been a proper determination of that issue in the first habeas proceeding because of the allegedly incompetent habeas counsel.   The claim of ineffective assistance of habeas counsel, when added to the claim of ineffective assistance of trial counsel, results in a different issue.”

As noted above in the Appellate Court's history of the proceedings in this matter following the Petitioner's subject conviction, there have been five separate actions preceding the subject action, see footnote 1 for a complete description of the prior post-conviction actions.   Ineffective assistance of trial counsel was the subject matter of the first and second petitions for a new trial and the three previous habeas complaints.   Prosecutorial misconduct and judicial misconduct were alleged in the fifth action, a further habeas proceeding and the Petitioner withdrew that habeas petition.

In the instant matter, the Petitioner, in his post-trial brief, has abandoned all issues except his claim that prior habeas counsel was ineffective for failing to raise various claims that the trial judge should have been disqualified.

Some of the evidence offered by the Petitioner in support of this claim of judicial misconduct was reviewed in the initial appeal.  State v. Anderson, 212 Conn. 41 (1989).²

The court noted “In the instant case, the defendant has not established that the court's remarks were materially false or unreliable.   The court's comments regarding the likelihood of the defendant committing a murder in the future was made in the context of a general discussion concerning the defendant's propensity to commit violent crimes.   Such a comment was not unfounded, as all of the crimes of which the defendant has been convicted were violent in nature.   Moreover, the court's statement that it knew that the defendant had lied during the trial was based on the court's knowledge and observation.   The trial court is not an automaton that is required to close its eyes to what has transpired at trial.   The trial court, like the jury, may assess a witness's credibility, and if relevant, may comment on it (citations omitted).   Furthermore, the defendant had an opportunity to speak at the sentencing hearing where he could have disputed the court's observations;  however, he declined to do so ․ Not only has the defendant offered no evidence challenging the liability of the court's statements, but, when the record is read as a whole, it is clear that the court did not substantially rely on any one piece of information when it determined the defendant's sentence.   The sentence imposed by the court was based on its review of the defendant's presentence investigation report, his poor demeanor and lack of veracity at trial and the fact that he had recently been convicted of several similar violent crimes in an unrelated case and his general lack of remorse for the crimes of which he had been convicted.”  State v. Anderson, 212 Conn. 31, 49–50 (1989).

Count 35 of November 14, 2006 Third Amended Complaint alleges that Attorney David A. Dee was ineffective in habeas case # 87–080.   Counts 1 through 34 were either previously withdrawn, dismissed, or as previously noted count 26 was resolved as previously described herein, the Petitioner incorporates the three hundred and twelve paragraphs found in counts 1 through 34 into Paragraph 313, that is Paragraph 1 of count 35.   In essence, he has repeated all claims of ineffective assistance of his trial counsel, prosecutorial misconduct and judicial bias and/or misconduct that were found in the preceding thirty-four counts by incorporating the same into the first paragraph of count 35.

However, the Petitioner's post-trial brief abandons all issues except his claim that the prior habeas counsel, Attorney David A. Dee, was ineffective or failed to raise claims that the trial judge, the Hon. M. Morgan Kline, should have been disqualified from presiding in the 1987 jury trial because Judge Kline signed the search and arrest warrants and later presided over the criminal jury trial.

As previously noted, the evidentiary basis for the claim of judicial disqualification, the fact that Judge Kline signed the search and arrest warrants in the underlying criminal action before acting as the trial judge in the subject criminal jury trial in 1987, is stipulated and agreed to by the State/Respondent.

This court rejects the Petitioner's legal predicate that having signed warrants and having made the concurrent and necessary findings of probable cause based on the contents of those warrants, the signor was then disqualified from acting as the trial judge of a jury trial.   In State v. Canales, 281 Conn. 572 (2007), the Connecticut Supreme Court rejected the claim that Canon 3(c)(1) of the Code of Judicial Conduct required disqualification.   Instead, the court noted the United States Supreme Court “consistently has held that a judge's failure to disqualify himself or herself will implicate the due process clause only when the right to disqualification arises from [actual bias] on the part of that judge ․” Canales at 594.   The court went on to note “The requirements of due process are less rigorous than those of the Code of Judicial Conduct, which mandates both [impartiality and the appearance of impartiality].  Canales at 594.   The trial court in Canales was the same judge who had signed the search and arrest warrants and later presided at the defendant's probable cause hearing.   No reversible error was found.   Here, Judge Kline did make the probable cause findings when issuing the search and arrest warrants.   However, Judge Kline merely presided at the criminal trial where a jury made a finding, beyond a reasonable doubt, of the defendant's guilt on the various charges presented.

In sum, this court rejects the legal conclusion the Petitioner asserts based on factual predicate that even if there were a violation of Canon 3(c)(1) of the Code of Judicial Conduct were found to have existed due to Judge Kline's signing both the arrest and search warrants and later presiding over the criminal jury trial of the Petitioner, that would not be the basis for a conclusion of judicial misconduct denying due process rights.

As the Petitioner has offered no other relevant evidence at the habeas hearings other than his own testimony and the stipulation of counsel that Judge Kline both signed the search and arrest warrants and later served as the trial judge at Anderson's criminal trial, the court finds insufficient evidence has been offered to sustain the Petitioner's burden of proof with respect to establishing bias, prejudice or misconduct on the judicial authority.

As noted above, “To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective.”   Here the basis for these claims of ineffective trial counsel has been previously examined in several petitions and found to be without merit.   However, further consideration of those claims was given again by conducting a habeas hearing and by allowing evidence to be produced to establish the alleged ineffectiveness of trial counsel by failing to raise the issue of judicial misconduct and/or the alleged ineffectiveness of habeas counsel for failing to prove the ineffectiveness of the trial counsel.   The court is unable to find and the Petitioner failed to offer sufficient evidence to establish judicial misconduct.   Therefore, there is insufficient evidence from which the court could conclude that trial counsel was ineffective in failing to raise an issue of judicial misconduct.   Logically then, the habeas counsel cannot be found to provide ineffective assistance to the Petitioner for failing to assert and prove ineffective assistance of trial counsel for failing to raise and prove judicial misconduct or, independently, to prove judicial misconduct in a habeas proceeding.

HOLDINGS

By stipulation of the parties, the court reinstates the Petitioner's right to apply for a sentence review pursuant to count 36 of the November 14, 2006 Third Amended Complaint.

Count 35 is dismissed as the Petitioner has failed to prove his allegations that his habeas counsel, Attorney David A. Dee, was ineffective for failing to raise various claims that the trial judge should have been disqualified from presiding in the Petitioner's 1987 criminal jury trial.

BY THE COURT

ZFEMETIS, J.

FOOTNOTES

FN1. The criminal court trial judge in this matter was the Honorable M. Morgan Kline..  FN1. The criminal court trial judge in this matter was the Honorable M. Morgan Kline.

FN2. Footnotes eight through ten inclusive..  FN2. Footnotes eight through ten inclusive.

Zemetis, Terence A., J.