227089 v. Commissioner of Correction (2012)

Memorandum of Decision

The petitioner, Ramon Lopez, inmate # 227089, alleges in his petition for a Writ of Habeas Corpus initially filed on December 13, 2005 ¹ and amended for the final time on December 15, 2009, that his conviction of:  one count of intentional Murder in violation of CGS § 53a–54a;  two counts of attempted Murder in violation of CGS § 53a–49 and 53a–54(a);  and two counts of Assault in the 1st degree in violation of CGS § 53a–59(a)(5) is unconstitutional under both the United States Constitution and the Constitution of the State of Connecticut and that as a result he is entitled to have his convictions and sentence set aside.   The petitioner was convicted of these charges following a trial to the jury in the Judicial District of Fairfield on October 2nd, 2003.   On December 5th, 2003, the petitioner was sentenced to a total effective sentence of one hundred (100) years to serve.   The petitioner's criminal convictions were affirmed by the Connecticut Supreme Court at State v. Lopez, 289 Conn. 779 (2007).   While there are several claims embodied within this petition, it is clear, based upon the conduct of the case by his habeas counsel, the evidence presented to the habeas trial court, and the arguments of counsel, that this habeas petition focuses upon the petitioner's allegation that his trial defense counsel, Atty. Lawrence Hopkins, was ineffective in his representation by failing to investigate and present the petitioner's alibi defense.

During the trial on the merits of this habeas petition the Court received testimony from the petitioner, his sister, Ms. Rose Lopez, Mr. Vincent Wilson, Mr. Elijah Lewis, Ms. Star Semedo, Police Sergeant Griselie Doszpoj and Detective Warren Delmonte of the City of Bridgeport Police Department, Ms. Kiaga Johnson, Atty. Lawrence Hopkins, Atty. Robert Berke, the petitioner's trial defense counsel.²  Additionally, Atty. Norman Pattis testified as an expert witness.   Finally, the Court received the transcripts of the criminal trial testimony, as well as other pieces of documentary evidence into evidence.

It should not be necessary for this Court to comment upon the methodology used for the findings of fact, however, it is important to keep this in mind when considering the resolution of this petition.   First and foremost, any fact finder, whether it be the judge in a bench trial or the jury is limited to using only the evidence lawfully placed before it.   It is improper in resolving issues of fact to consider matters that are outside the record of trial, engage in speculation, or supposition.   While “truth” should be a concrete concept, when deciding what facts are true for the purposes of resolving a petition, the Court is limited to considering only the properly admitted evidence before it in finding that truth.   Consequently, it must be reiterated that the following findings of fact are derived from the evidence adduced at the habeas trial.

Findings of Fact

1. The petitioner was a defendant in a criminal case proceeding in the Judicial District of Fairfield at Bridgeport under Docket No. CR02–182760 in which he was charged with one count of intentional Murder in violation of CGS § 53a–54a;  two counts of attempted Murder in violation of CGS §§ 53a–49 and 53a–54(a);  and two counts of Assault in the 1st degree in violation of CGS § 53a–59(a)(5).

2. On October 2nd, 2003, the jury returned its verdict of guilty as to all counts.

3. In its decision,³ the Supreme Court found that a jury could reasonably have concluded that the following facts were true.  “In the early morning hours of February 2, 2002, several people were gathered inside and outside of Pettway's Variety Store (Pettway's) at the northwest corner of the intersection of Stratford Avenue and Fifth Street in Bridgeport.   Stratford Avenue runs in a generally east-west direction and has one-way traffic heading east.   Fifth Street runs in a generally north-south direction and ends at Stratford Avenue.   The three victims, Shariff Abdul–Hakeem, also known as ‘Polo,’ his brother, Manuel Rosado, and Gary Burton, were standing outside the store.   Lou Diamond and a man known as ‘Chef,’ came out of Pettway's, gave Abdul–Hakeem and Rosado a ‘grim’ look and then walked north on Fifth Street.   Shortly thereafter, Diamond and Chef, who had covered the lower parts of their faces with some type of cloths, turned around and walked back down Fifth Street toward Pettway's.   At the same time, a third unidentified person carrying a gun ran from the east side of Fifth Street to the west side and joined Diamond and Chef. Meanwhile, a white car had come down Fourth Street, the next street to the west of Fifth Street, turned east onto Stratford Avenue and stopped on the north side of that street.   Two men got out of the rear driver's side door and the car then crossed Stratford Avenue and parked on the south side of the street.   Although two men wore cloths over their lower faces, an eyewitness, Tony Payton, knew both men and was able to identify them as Boo McClain and the defendant.   McClain carried a handgun and the defendant carried a shotgun.   As McClain and the defendant approached Pettway's, the defendant said to the people gathered on the side-walk, ‘All right freeze, nobody move,’ and he cocked the shotgun.   The people on the sidewalk then rushed toward and started banging on the door to Pettway's, which had a ‘buzzer lock.’   The door opened and several people were able to get inside the store.   Rosado, who was standing outside the store facing Fifth Street, turned toward Fourth Street to see the reason for the commotion.   He saw the defendant, whom he had known for about one year before the shooting and with whom he had been incarcerated, aiming a gun at him.   As Rosado dove for the door to Pettway's, McClain, the defendant and the three men who were approaching Pettway's down Fifth Street opened fire on the crowd.   After the shooting, the defendant yelled, ‘I told you I was going to get you, Polo, I told you I was going to get you.’   McClain and the defendant then ran back up Stratford Avenue and reentered the white car, which turned around and sped back up Fourth Street.   At the same time, Diamond and Chef ran back up Fifth Street.   A later ballistics analysis revealed that two separate shotguns and four separate handguns had been used in the shooting.   Abdul–Hakeem received bullet wounds in his left calf and left buttock.   The bullet that hit his left buttock exited from the right side of his abdomen, and Abdul Hakeem died several hours after the shooting as the result of uncontrollable bleeding from the wound.   Rosado received shotgun wounds to his legs.   Burton was wounded when a bullet hit him in the ribs and another bullet grazed his hip.”

4. The petitioner was represented throughout the merits of this trial by Attorney Lawrence Hopkins.   His counsel for sentencing was Attorney Robert Berke.⁴

5. The petitioner asserts that he, his sister and Ms. Star Semedo were in Ansonia at the time of the shootings and that he could not have been guilty of the crimes.   This court finds that this assertion and the “alibi” are not worthy of belief and that even had the evidence been presented at trial, there is no reasonable probability that the result would have been different.

6. Additional facts will be discussed, as necessary, in subsequent portions of this decision.

Discussion

The petitioner now comes before this Court seeking to have this court set aside his convictions of guilty to the charges of one count of intentional Murder in violation of CGS § 53a–54a;  two counts of attempted Murder in violation of CGS § 53a–49 and 53a–54(a);  and two counts of Assault in the 1st degree in violation of CGS § 53a–59(a)(5) and order that his case be returned to the docket for a new trial.   It is important to understand that this instant proceeding is an action seeking the issuance of a writ of habeas corpus.   This case having been tried and appealed to the Connecticut Supreme Court is now in the “court of last resort.”   A petition for a writ of habeas corpus is, therefore, an application for extraordinary judicial relief in which, contrary to the criminal trial court, the burden rests with the petitioner.⁵

In this case, there is little doubt that a bloody shooting resulting in two men being wounded and a third killed took place.   It is the identification of the petitioner as one of the shooters that he claims to be in issue.   The petitioner alleges that he was in possession of a viable alibi that could, indeed should have, been presented to the jury through his own testimony, the testimony of his sister and Ms. Star Semedo.   The petitioner has alleged that his trial defense counsel was ineffective in the manner in which he represented the petitioner at trial because he failed to adequately investigate this claim of alibi and to present this testimony.   Notwithstanding, the Court disagrees and will deny the petition for a writ of habeas corpus.

At the outset, one must understand that there is a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime.   While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not.  “It is undoubtedly true that ‘[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt.  In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).’  Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) ․ The presumption of innocence, however, does not outlast the judgment of conviction at trial.”  Summerville v. Warden, 229 Conn. 397 at 422–23 (1994).   Consequently, even though our courts have recognized that “a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial,” Summerville v. Warden, 229 Conn. 397 at 422 (1994), the burden of proving entitlement to the grant of a writ rests with the petitioner.  “Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is ‘innocent,’ but on the contrary as one who has been convicted by due process of law.”  Summerville v. Warden, infra, at 422.

The writ of habeas corpus is an ancient and time-honored component of our Anglo–American jurisprudence.  “We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo–American jurisprudence:  ‘the most celebrated writ in the English law.’   3 Blackstone Commentaries 129.   It is a writ antecedent to statute, and throwing its root deep into the genius of our common law ․ It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement.   It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I.” ⁶ Fay v. Noia, 372 U.S. 391 at 399 (1963).   When the United States achieved independence from England, the writ was embodied in our law as well.  “Received into our own law in the colonial period, given explicit recognition in the Federal Constitution, Art. I, § 9, cl. 2, incorporated in the first grant of federal court jurisdiction, Act of September 24, 1789, c. 20, § 14, 1 Stat. 81–82, habeas corpus was early confirmed by Chief Justice John Marshall to be a ‘great constitutional privilege.’   Ex parte Bollman and Swartwout, 4 Cranch 75, 95.”  Fay v. Noia, infra at 400 (1963).

Issuance of a writ of habeas corpus is a remedy whose “most basic traditions and purposes are to avoid the grievous wrong of holding a person in custody in violation of the federal constitution and thereby protect individuals from unconstitutional convictions and help guarantee the integrity of the criminal process by ensuring that trials are fundamentally fair.”  O'Neal v. McAnnich, 513 U.S. 432 at 442 (1995).   Moreover, when a court reviews a petition for habeas corpus, “it must decide whether the petitioner is in custody in violation of the Constitution or laws or treaties of the United States.   The court does not review a judgment, but the lawfulness of the petitioner's custody simpliciter.”  Coleman v. Thompson, 501 U.S. 722 at 730 (1991).   So, the writ of habeas corpus “has been for centuries esteemed the best and only sufficient defense of personal freedom.”  Lonchar v. Thomas, 517 U.S. 314 (1996).

Ineffective Assistance of Trial Defense Counsel

A criminal defendant, of course, has an absolute Constitutional right to persist in a plea of not guilty, even in the face of what some might think to be seemingly insurmountable obstacles and overwhelming evidence.   He or she has an absolute right to hold the government to its justifiably high burden of proof and take the matter to a jury of his or her peers.   The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers.   Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt.⁷  Moreover, all criminal defendants are entitled to the representation of counsel.   The sixth amendment to the United States constitution provides in relevant part:  “In all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him ․ and to have the assistance of counsel for his defense.”   The sixth amendment right of confrontation and right to counsel is made applicable to the states through the due process clause of the fourteenth amendment.   See Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), respectively.   The Sixth Amendment right to counsel is necessarily the right to an effective counsel.   Notwithstanding, our Constitutions do not require that a criminal defendant receive perfect representation.

It is not, and never has been, for the trial defense counsel to make the decisions that a client must make.   The defendant decides how to plead, whether to testify, whether to waive the right to trial by jury, etc.   Nevertheless, effective representation is crucial.  “Because a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the ‘right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.’  Copas v. Commissioner of Correction, 234 Conn 139, 154 (1995).”   See Baillargeon v. Commissioner of Correction, 67 Conn.App. 716 at 721 (2002).   Consequently, an attorney who fails to offer his or her client proper counsel at critical junctures in the trial may well be providing ineffective representation.

Any claim of ineffective assistance of counsel must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d (1984), before the Court can grant relief.   Specifically, the petitioner must first show “that counsel's performance was deficient.   This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”  Strickland, infra at 687.   If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving “that the deficient performance prejudiced the defense.   This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.   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.”  Strickland, infra at 687.   In short, the petitioner must show both deficiency and prejudice.   A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.

As already noted, a criminal defendant is entitled to the representation of trained and competent legal counsel.   Notwithstanding, “[t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.   See Bell v. Cone, 535 U.S. 685 at 702 (2002);  Kimmelman v. Morrison, 477 U.S. 365, 382 (1986);  Strickland v. Washington, 466 U.S. 668, 689;  United States v. Cronic, 466 U.S. 648, 656 (1984).”   Yarborough v. Gentry, 540 U.S. (October 20, 2003).   This court sincerely doubts that any defense attorney has ever conducted the perfect criminal trial.

Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner.   A habeas court “may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial.”  Beasley v. Commissioner of Corrections, 47 Conn.App. 253 at 264 (1979), cert. den., 243 Conn. 967 (1998).  “A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.”  Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317 (2000).   Here, the evidence at the habeas trial establishes that the petitioner may have had a viable alibi defense to this charge.   The viability of that alibi depends in large part upon the credibility of the three witnesses who could be called upon to establish that alibi.   Notably, the petitioner, his sister, Rosa, and a family friend, Star Semedo.

At this point, the court needs to comment upon the credibility of the petitioner and his witnesses.   All three of these witnesses have an easily discernible vested interest in the outcome of this case.   The petitioner's interest and to a somewhat lesser extent his sister's are so obvious that detailed explanation should be unnecessary.   Ms. Semedo's interest in the outcome, while a bit more attenuated is still palpably visible.   She is a longtime friend of the petitioner and his sister.   She is also the mother of the petitioner and his sister's niece and nephew.

At the habeas trial, the petitioner essentially presented the alibi defense that he said should have been used at his criminal trial.   Rosa Lopez testified that she and the petitioner were at their home in Bridgeport on Friday evening, February 1, 2002.   They were discussing a Super Bowl party that they thought might take place on Sunday February 3, 2002 ⁸ with themselves and their father.   Sometime in the early evening hours, Ms. Star Semedo called to invite them up to her home in Ansonia where the three of them stayed the night, leaving in the mid morning hours of February 2, 2002 to return to Bridgeport.   This is the essence of the alibi and, if said alibi evidence is believed, then it would be a good defense to the charges levied against the petitioner as he could not both be in Ansonia with his sister and a friend and shooting three men in Bridgeport at the same time.

Atty. Pattis, testifying as an expert witness opined that the failure of a trial defense counsel to investigate and present a client's alibi if viable would be deficient performance.   This court clearly agrees with that opinion, however, this court also finds that the alibi evidence is not worthy of belief and that an attorney cannot be held to be ineffective for failing to present a defective alibi defense.   Moreover, under Strickland, in order for the court to grant relief, it is not enough to show deficient performance on the part of trial defense counsel, a petitioner must also show that he was prejudiced by that deficient performance.

Insofar as prejudice is concerned, the petitioner must show “that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”   Strickland, infra at 694.  “To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal.  Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962);  D'Amico v. Manson, 193 Conn. 144, 156–57, 476 A.2d 543 (1984);  see also Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989).   In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction.”  (Internal quotation marks omitted.)  Buckley v. Commissioner of Correction, 222 Conn. 460–61.”   Summerville v. Warden, 229 Conn. 397 at 419 (1994).

There are numerous problems with this alibi evidence.   First, nobody ever approached the police or the prosecutors to inform them that they had the wrong man on trial.   While the petitioner did tell Atty. Hopkins about this alibi, it never went any further than that.   Neither Ms. Semedo not Ms. Lopez tried to speak with Atty. Hopkins about this alibi.   Rosa Lopez testified at the habeas trial that the first she heard about her brother being arrested for murder was several months later when she read about it in the newspaper.   This, however, conflicts with the fact that the police were at her house the morning of the murder executing a search warrant and arrested the petitioner.   Rosa Lopez also said that the Super Bowl party for her father was her idea and her mother's.   This conflicts with the evidence that her mother had but recently thrown her father out of the house and the petitioner's statement that they could not hold the party at the house where they lived as a result.   A glaring problem with the habeas testimony is not the lack of consistency between the testimony of Ms. Semedo and Ms. Lopez, but the uncanny similarity.   Despite testifying that they had not collaborated on their alibi stories, both Ms. Lopez and Ms. Semedo offered a very similar description of their activities in Ansonia:  to wit (in the words of Ms. Lopez) “We ate food, watched TV. We just goofed around mainly, ” and (in the words of Ms. Semedo) “We goofed around, we ate, we watched TV. ” This almost identical description of events gives lie to the assertion that the women did not collaborate and rehearse their story.   Even Atty. Pattis, the petitioner's own expert admitted that he was troubled by the inconsistencies in the testimony.

Atty. Berke, in preparation for sentencing interviewed Ms. Semedo who gave a vague statement about this purported alibi.   Unlike her testimony at the habeas trial some eight years later, when Ms. Semedo talked to Atty. Berke, she could not recall the dates she was with the petitioner and made reference to the petitioner babysitting her children at the time of the incident.   Interestingly, this latter statement is corroborated in part by the fact that there were two children, with the surname “Semedo” present at the house when the police executed the search warrant on February 2, 2002, as was Rosa Lopez.⁹  While the evidence from Atty. Berke was hearsy, it does serve as a prior inconsistent statement of Ms. Semedo that this court feels further undermines her credibility.

The petitioner initially told Atty. Hopkins that his alibi witnesses were Ms. Semedo and his mother, Rosa Ortiz.   This caused grave concern to Mr. Hopkins because the petitioner had previously used an alibi defense that had failed in which the star witness was his mother, Rosa Ortiz.   That is one of the reasons that Atty. Hopkins elected to forgo using the sketchy alibi evidence.   Of course, that problem was gone by the time of the habeas trial, because the petitioner now says that it was his sister Rosa Lopez, not his mother Rosa Ortiz.

Given the weakness of this potential alibi testimony and its doubtful propensity to induce reasonable doubt in the minds of the jury, this Court finds that the reliability of the petitioner's conviction has not been undermined.   Indeed, had Attorney Hopkins gone forward with this alibi defense as the petitioner says he wanted, the likelihood of conviction would have gone up, not down.   A rejected alibi is generally fatal to a criminal defendant's chances for acquittal.

This Court is aware of the “fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence.”  Summerville v. Warden, supra.   Furthermore, this Court understands that there is a strong societal interest in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility.”   Id.

Keeping this in mind, it is clear that this is a case in which the trial defense counsel made the correct strategic judgment in not pursuing this alibi and calling these missing witnesses in order to establish an alibi defense that may well have led a jury to conclude that the petitioner was lying to escape a finding of guilty.

The Petition for a Writ of Habeas Corpus is denied.

S.T. Fuger, Jr., Judge

FOOTNOTES

FN1. The Court feels compelled to address what on its face appears to be an inordinately long period of time between the filing of the pro se petition in December 2005 and the release of this Memorandum of Decision.   Habeas Corpus petitions are privileged matters that should be tried expeditiously, and based upon this Court's extensive experience administering and adjudicating the habeas docket between 2002 and 2010, that goal is normally met.   Notwithstanding there are cases that “push the envelope,” so to speak, of which the instant case seems to be an example.   Many habeas petitioners, even though asserting their innocence or wrongful conviction, realize that the best chance for prevailing in a habeas matter lies in the first habeas petition.   While subsequent petitions challenging the representation of habeas counsel, may be possible, these petitions almost invariably prove to be unavailing because the ultimate issue in any habeas petition is whether the petitioner is burdened with an unreliable conviction.   In the instant case, there were delays attendant upon the initial appointment of counsel with the petitioner being represented throughout the course of this matter by five attorneys.   Actual trial in this matter commenced on December 17, 2009 and continued on divers days thereafter until December 2, 2011.   Almost all of the delays encountered in this trial process were the result of petitioner requesting time to locate and subpoena witnesses to appear on his behalf.   Given the lengthy time that had ensued between initial trial day and final trial day, the parties were permitted to file post-trial briefs, the last of which was received on December 2, 2011, thereby starting the 120–day period in which this Court was to render a Memorandum of Decision..  FN1. The Court feels compelled to address what on its face appears to be an inordinately long period of time between the filing of the pro se petition in December 2005 and the release of this Memorandum of Decision.   Habeas Corpus petitions are privileged matters that should be tried expeditiously, and based upon this Court's extensive experience administering and adjudicating the habeas docket between 2002 and 2010, that goal is normally met.   Notwithstanding there are cases that “push the envelope,” so to speak, of which the instant case seems to be an example.   Many habeas petitioners, even though asserting their innocence or wrongful conviction, realize that the best chance for prevailing in a habeas matter lies in the first habeas petition.   While subsequent petitions challenging the representation of habeas counsel, may be possible, these petitions almost invariably prove to be unavailing because the ultimate issue in any habeas petition is whether the petitioner is burdened with an unreliable conviction.   In the instant case, there were delays attendant upon the initial appointment of counsel with the petitioner being represented throughout the course of this matter by five attorneys.   Actual trial in this matter commenced on December 17, 2009 and continued on divers days thereafter until December 2, 2011.   Almost all of the delays encountered in this trial process were the result of petitioner requesting time to locate and subpoena witnesses to appear on his behalf.   Given the lengthy time that had ensued between initial trial day and final trial day, the parties were permitted to file post-trial briefs, the last of which was received on December 2, 2011, thereby starting the 120–day period in which this Court was to render a Memorandum of Decision.

FN2. Notably, the following persons did not testify at the habeas trial:  Det. Llanos, Det. Nandori, Carl Alexander, Michael Holbrook, Michael Cabral, Francisco Soares, John Soares, Donna Jones and Kepal Petuay.   The petitioner alleged that they would have produced favorable evidence, had they testified and that Atty. Hopkins was ineffective for not calling these witnesses.   In the absence of direct evidence from these persons, this habeas court cannot determine if what they might have said would have led to an acquittal of the petitioner.   Consequently, any claim of ineffectiveness for failing to interview, interrogate or subpoena these witnesses for trial is deemed abandoned..  FN2. Notably, the following persons did not testify at the habeas trial:  Det. Llanos, Det. Nandori, Carl Alexander, Michael Holbrook, Michael Cabral, Francisco Soares, John Soares, Donna Jones and Kepal Petuay.   The petitioner alleged that they would have produced favorable evidence, had they testified and that Atty. Hopkins was ineffective for not calling these witnesses.   In the absence of direct evidence from these persons, this habeas court cannot determine if what they might have said would have led to an acquittal of the petitioner.   Consequently, any claim of ineffectiveness for failing to interview, interrogate or subpoena these witnesses for trial is deemed abandoned.

FN3. State v. Lopez, 289 Conn. 779 (2007)..  FN3. State v. Lopez, 289 Conn. 779 (2007).

FN4. There does not appear to be any challenge to the representation of Attorney Berke, consequently, this Court concludes that his representation is presumptively constitutionally valid and acceptable to the petitioner as he raised no challenge to Attorney Berke when he had the chance to do so..  FN4. There does not appear to be any challenge to the representation of Attorney Berke, consequently, this Court concludes that his representation is presumptively constitutionally valid and acceptable to the petitioner as he raised no challenge to Attorney Berke when he had the chance to do so.

FN5. This may seem to be difficult for a layman to accept, given the oft-repeated phrase that “one is innocent until proven guilty.”   However, in a habeas corpus proceeding, the petitioner is not innocent and has, in fact been already proven guilty beyond all reasonable doubt.   Moreover, a habeas petitioner has more likely than not had the opportunity to have at least one appellate court review the case to determine of there have been any errors of law that were made by the trial court.   Given that a habeas petition is often called the “court of last resort” it should not be unexpected that the burden of showing an irregularity must now rest with the petitioner..  FN5. This may seem to be difficult for a layman to accept, given the oft-repeated phrase that “one is innocent until proven guilty.”   However, in a habeas corpus proceeding, the petitioner is not innocent and has, in fact been already proven guilty beyond all reasonable doubt.   Moreover, a habeas petitioner has more likely than not had the opportunity to have at least one appellate court review the case to determine of there have been any errors of law that were made by the trial court.   Given that a habeas petition is often called the “court of last resort” it should not be unexpected that the burden of showing an irregularity must now rest with the petitioner.

FN6. Edward I reigned in England in the late 13th century AD..  FN6. Edward I reigned in England in the late 13th century AD.

FN7. “The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation.   The ‘demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula “beyond a reasonable doubt” seems to have occurred as late as 1798.   It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.’  “ In re Winship, 397 U.S. 358 at 361 (1970)..  FN7. “The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation.   The ‘demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula “beyond a reasonable doubt” seems to have occurred as late as 1798.   It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.’  “ In re Winship, 397 U.S. 358 at 361 (1970).

FN8. Super Bowl XXXVI between the St. Louis Rams and the New England Patriots was indeed on February 3, 2002.   The Patriots were victorious over the Rams by the score of 20 to 17, with the winning field goal being kicked in the final few seconds of the game..  FN8. Super Bowl XXXVI between the St. Louis Rams and the New England Patriots was indeed on February 3, 2002.   The Patriots were victorious over the Rams by the score of 20 to 17, with the winning field goal being kicked in the final few seconds of the game.

FN9. Had the petitioner been in Ansonia with Ms. Semedo and Ms. Lopez as he claimed at the habeas trial, it is inconceivable that Ms. Lopez would have remained mute and allowed her brother to be taken into custody for a murder that she knew he could not have committed.   This tends to further undermine the credibility of the petitioner's alibi..  FN9. Had the petitioner been in Ansonia with Ms. Semedo and Ms. Lopez as he claimed at the habeas trial, it is inconceivable that Ms. Lopez would have remained mute and allowed her brother to be taken into custody for a murder that she knew he could not have committed.   This tends to further undermine the credibility of the petitioner's alibi.

Fuger, S.T., J.