309162 v. Warden, State Prison (2012)

MEMORANDUM OF DECISION

On November 10, 2005, the petitioner filed a petition for a writ of habeas corpus, which was amended on March 22, 2010, and again on April 8, 2010.   Petitioner claims that he was denied the effective assistance of trial counsel, John Williams, who represented him between arraignment and the start of trial, and of trial counsel, Norman Pattis, who tried his case, in a number of ways which included, inter alia, failure to conduct an adequate investigation, failure to review and properly utilize victims' statements, failure to adequately cross-examine certain witnesses, failure to consult with a medical expert regarding review of medical exams of the victims, failure to request expert review of the forensic interviews, medical reports, police reports and other information, and failure to adequately advise petitioner of his right to testify, all in violation of the fifth, sixth, and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut.   For reasons set forth more fully below, the petition is denied.

The matter came to trial on November 1, 2, 3, and 4, 2010, and December 21, 2010.   The Court heard testimony from the petitioner, Attorneys John Williams and Norman Pattis, trial counsel, Tomas Hernandez, petitioner's nephew, Rumalda V., petitioner's mother, Juana V., petitioner's wife, Margerita V., petitioner's niece, Zenon V., petitioner's brother, Attorney Pam Favereau, a legal expert in the area of criminal defense, and Dr. David Mantell, a forensic psychologist.   Additionally, petitioner entered into evidence the trial transcripts, the Informations in the three cases in which petitioner was charged, the decision of the Appellate Court in petitioner's appeal, an Inventory of documents filed by the prosecutor, a memo from Attorney Pattis to Attorney Williams dated November 17, 2004, letters in Spanish written by petitioner to his daughters, the report of the forensic study and interviews of the victims by The Aetna Foundation Children's Center, and letters from one of the daughters to the petitioner and to her mother.   The petitioner and respondent filed post-trial briefs on August 11, 2011, arid September 7, 2011, respectively.   On September 9, 2011, the petitioner filed notice with the court that he would not, as permitted by the briefing order, be filing a reply brief.

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 Hartford bearing docket numbers CR03–0187597, CR03–0187865, and CR03–0187866.   In CR03–0187865 he was charged with sexual assault in the first degree, in violation of C.G.S. § 53a–70(a)(2), sexual assault in the second degree, in violation of C.G.S. § 53a–71(a)(1), and illegal sexual contact, in violation of C.G.S. § 53–21(2).   In CR03–0187865 he was charged with illegal sexual contact, in violation of C.G.S. § 53–21(2), and, finally, in CR0–0187866, with sexual assault in the first degree, in violation of C.G.S. § 53a–70(a)(2), and illegal sexual contact, in violation of C.G.S.53–21(2).

2. The petitioner was initially represented by Attorney Richard Montanez.   On or about April 2004, Attorney John Williams filed an appearance in petitioner's cases in lieu of Attorney Montanez.   The petitioner was represented by Attorney Norman Pattis at the criminal trial of petitioner's cases.

3. As stated by the Appellate, the jury could reasonably have found the following facts underlying the offense:  “Between March and November 2002, three complaints were received by the Department of Children and Families (department) that the defendant physically (but not sexually) abused family members.   Sometimes the defendant would strike M so hard with a belt that it left marks on her back.   The children were frightened of him.   Following the third complaint in November 2002, the department removed the children from the defendant's home and placed them in foster care.   Despite the history of physical abuse, the department planned to reunite the family.

4. “On February 21, 2003, three months after placement in foster care, the daughters first claimed they previously had been sexually abused by their father.   M told her foster mother and a social worker, Betsy Dela Cruz, that the defendant had sexually abused her and her sisters.   M testified at trial that the defendant had vaginal sexual intercourse with her on a daily basis when she was between twelve and fourteen years old.   S testified that the defendant had both vaginal and anal intercourse with her many times when she was between ten and twelve years old.   A testified that the defendant had touched her private parts.   The defendant was arrested and charged pursuant to these allegations.

5. “The principal evidence against the defendant was the testimony of the victims.   There was no physical evidence presented to corroborate the victims' stories.   The state's medical expert, Elaine Yordan, physically examined the victims.   She testified that none of the girls had scarring, lesions or transsection of the hymenal rim, despite allegations from M and S that they had been subjected to frequent vaginal and anal intercourse.   Yordan testified that her findings neither proved nor disproved sexual abuse.   She explained that the absence of scarring and lesions could have been the result of the length of time between the last opportunity for abuse and the examinations.   The absence of damage to the hymenal rim may have been because M and S had started menstruating before the abuse started, which would physiologically allow a girl's hymen to elasticize and prevent such injury.   Yordan stated that her findings could equally support conclusions that the girls were or were not sexually assaulted.

6. “During trial, the state requested that the court take judicial notice of the existence of a protective order prohibiting any contact between the defendant and his daughters.   The court deferred judgment on that request until further evidence was offered.   Subsequently, the state offered into evidence two letters purportedly written by the defendant to M at some time after the daughters had been placed in foster care and had made the allegations of sexual abuse.   M testified that the letters were delivered by her mother, but the handwriting was the defendant's.   The content of the letters also made specific reference to the author's being the defendant.   The court admitted the letters into evidence, ․ without objection, as relevant to show the defendant's consciousness of guilt.   One letter stated:  ‘I'm paying for being bad with you ․’ The second letter instructed:  ‘[W]hen you read this letter tear it up so they won't find you with it.’   After the letters were read into evidence, the court reconsidered the state's request that the court take judicial notice of the no contact order.   The court found that the no contact order was relevant to put the letters in context and that its probative value outweighed its prejudicial nature.   Over the defendant's objection, the court took judicial notice of the existence of the no contact order barring the defendant from having any contact with his daughters.”  State v. Martin V., 102 Conn.App. 381, 383–85, 926 A.2d 49, cert. denied, 284 Conn. 911, 931 A.2d 933 (2007).

7. Petitioner was convicted as charged in all three cases.¹

8. On May 9, 2005, the court, Sheldon, J., sentenced the petitioner to a total effective sentence of sixty years imprisonment, execution suspended after thirty-eight years, followed by probation.²

9. Additional fact will be discussed as needed.

DISCUSSION

The second amended petition raises claims in four counts:  first, ineffective assistance by Attorney Pattis;  second, ineffective assistance by Attorney Williams;  third, a free-standing due process claim;  and fourth, ineffective assistance by Attorney Williams.   Given that counts two and four allege ineffective assistance by the same attorney, the court shall address all allegations against Mr. Williams under the same heading.

I.

“In reviewing claims that are based on ineffective assistance of counsel, [courts must apply] the familiar and well settled standard of review articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  ‘In Strickland, which applies to claims of ineffective assistance during criminal proceedings generally, the United States Supreme Court determined that the claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.’  (Emphasis in original.)  Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008).  ‘The first prong is satisfied by proving that counsel made errors so serious that he was not functioning as the “counsel” guaranteed by the sixth amendment.   The second prong is satisfied if it is demonstrated that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’  Russell v. Commissioner of Correction, 49 Conn.App. 52, 53, 712 A.2d 978, cert. denied, 247 Conn. 916, 722 A.2d 807 (1998), cert. denied sub nom.  Russell v. Armstrong, 525 U.S. 1161, 119 S.Ct. 1073, 143 L.Ed.2d 76 (1999).

“ ‘Because both prongs [of Strickland ] must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong ․ Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.’  (Internal quotation marks omitted.)  Pierce v. Commissioner of Correction, 100 Conn.App. 1, 11–12, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).'  “ Crocker v. Commissioner of Correction, 126 Conn.App. 110, 116–17, 10 A.3d 1079, cert. denied, 300 Conn. 919, 14 A.3d 333 (2011).  “Unless a [petitioner] makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unworkable ․” (Internal quotation marks omitted.)  Harris v. Commissioner of Correction, 126 Conn.App. 453, 458, 11 A.3d 730, cert. denied, 300 Conn. 932, 17 A.3d 69 (2011).

II.

In the first count, the petitioner raises no less than thirteen separate and distinct failures by Mr. Pattis.   These individual failures are best addressed, however, in more logical and coherent groupings:  failures in the pretrial phase;  failures during the trial phase;  failures pertaining to expert witnesses;  and failures to properly advise the petitioner.

A.

The petitioner asserts two deficiencies by Mr. Pattis centering on the pretrial phase, namely that he failed to conduct an adequate pretrial investigation and make decisions regarding the choice of defenses that were not based upon adequate factual investigation.

“The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner.  United States v. Green, 882 F.2d 999, 1003 (5th Cir.1989) (petitioner could not succeed on claim of ineffective assistance of counsel because he failed to show what further investigation would have revealed and how it would have helped him);  see also Nieves v. Commissioner of Correction, 51 Conn.App. 615, 624, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999) (petitioner could not succeed on claim of ineffective assistance on basis of counsel's failure to conduct proper investigation in absence of showing that he was prejudiced by counsel's failure to interview witnesses).”  Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001).

Courts must be “mindful of the principle that, although ‘it is incumbent on a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction ․ counsel need not track down each and every lead or personally investigate every evidentiary possibility ․ In 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 ․ One cannot successfully attack, with the advantage of hindsight, a trial counsel's trial choices and strategies that otherwise constitutionally comport with the standards of competence.’  (Internal quotation marks omitted.)   Edwards v. Commissioner of Correction, 87 Conn.App. 517, 525–26, 865 A.2d 1231 (2005).”  Johnson v. Commissioner of Correction, 285 Conn. 556, 583–84, 941 A.2d 248 (2008).

Although the claimed deficient performance is that of Mr. Pattis, two prior attorneys represented the petitioner.   First, the petitioner was represented by Attorney Ricardo Montanez.   The petitioner thereafter was represented by Attorney John Williams, then a partner in the law firm Williams & Pattis.   Mr. Williams testified that he replaced Mr. Montanez as defense counsel for the petitioner.   According to Mr. Williams, he reviewed a “great, great” quantity of materials compiled by Mr. Montanez, who had extensively investigated the case, and many times discussed the case with him and prepared for trial.   Mr. Williams intended to handle the trial portion of the case while Mr. Pattis, conducted the jury selection portion.

The petitioner presented the testimony of several witnesses, all of whom are family members and related to the petitioner.   The court finds the testimonial evidence presented by the petitioner's family members to either be not credible (e.g., that the petitioner was never alone with the victims;  that they always did everything together as a family unit) or not of any meaningful assistance in establishing a defense or undermining the respective credibility of each of the three victims (e.g., the location of the children's and parent's rooms;  where the children slept).   Even if Mr. Pattis had presented these witnesses to the jury and added them to the crucible of jury scrutiny, the court fails to discern how their testimonies, which did not support an alibi defense and did not meaningfully undermine the victims' testimonies, would have impacted the jury verdicts.

The petitioner has not, therefore, proven that Mr. Pattis conducted an inadequate pretrial investigation and made decisions regarding the choice of defenses that were not based upon adequate factual investigation.   The petitioner has neither affirmatively proven deficient performance nor, assuming deficient performance, in no way undermined this court's confidence in the outcome of the criminal trial.

B.

The next grouping of failures allegedly occurred during the trial itself.   Thus, according to the petitioner, Mr. Pattis failed to:  review and utilize the victims' statements taken March 4, 2003;  adequately cross-examine the three victims based on their prior inconsistent statements and information contained within the DCF materials;  translate letters from M.M. which contained exonerating, exculpatory and/or impeachment information and failed to utilize these letters during her cross-examination;  stipulated to the admission of state's exhibit 3 as an accurate translation of state's exhibit 2 without verifying its accuracy;  failed to present an affirmative defense;  and made decisions regarding the choice of defense that were not based upon adequate factual investigation.

“ ‘An attorney's line of questioning on examination of a witness clearly is tactical in nature.  [As such, this] court will not, in hindsight, second-guess counsel's trial strategy.’  State v. Drakeford, 63 Conn.App. 419, 427, 777 A.2d 202 (2001), aff'd, 261 Conn. 420, 802 A.2d 844 (2002).   The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance ․” Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).

Here, Mr. Pattis testified that cross-examination of children, in particular one as young as A., is difficult.   Mr. Pattis was aware of DCF materials and prior statements such as the report by A. to the school.   According to Mr. Pattis, such witnesses are often sympathetic and it is difficult to conduct a vigorous cross-examination that strives to highlight inconsistencies between prior statements and court testimony.   Mr. Pattis stated that he did not want to “go to war” with a witness such as A. Mr. Pattis employed a reasonable tactic in light of his trial strategy and this court will not, as the petitioner strives to do, second guess Mr. Pattis.   The court cannot conclude that Mr. Pattis's cross-examination fell below an objective standard of reasonableness.   See Duperry v. Solnit, 261 Conn. 309, 335–36, 803 A.2d 287 (2002).

As to the translated letters from M.M. which contained “exonerating, exculpatory and/or impeachment information” and that Mr. Pattis failed to utilize these letters during her cross-examination, as well as the stipulation to the admission of state's exhibit 3 as an accurate translation of state's exhibit 2 without verifying its accuracy, Mr. Pattis testified that use of such a letter is problematic because of language that could be interpreted in more than one way.   Thus, by way of example, a profession of love for the father in that situation is a double-edged sword used with great reluctance.   And as to stipulating to the admission of state's exhibit 3 without verifying it accuracy, a translation of a letter the petitioner wrote to one of the victims, the petitioner has not demonstrated any actual or even potential harm from the letter's admission.³  The court finds that Mr. Pattis' tactics and strategy did not fall below an objective standard of reasonableness.   In the absence of any other evidence to support these allegations, the petitioner has failed to prove deficient performance.

Lastly, the petitioner further asserts that Mr. Pattis failed to present an affirmative defense and made decisions regarding the choice of defense that were not based upon adequate factual investigation.   Although the petitioner questioned Mr. Pattis why he had not used an affirmative defense, the petitioner failed to show to this court what affirmative defense, if any, the petitioner in fact had that could or should have been raised.   The petitioner's defense was that he was innocent, that he had not committed the offenses he was charged with.   The petitioner has failed to prove that Mr. Pattis rendered deficient performance regarding any purported affirmative defenses or his choice of defense.

C.

The third grouping of allegations pertains to expert witnesses.   According to the petitioner, Mr. Pattis failed to consult with and present the testimony of a medical expert as to whether the victims' normal colposcopic exams that showed no evidence of genital trauma were inconsistent with an adult male engaging in daily forcible vaginal and/or anal intercourse with a child aged 6, 10 and 12.   The petitioner presented no evidence from a medical expert in support of this claim.   Mr. Pattis testified that there was no need for the petitioner to put on expert medical testimony because the state's expert's conclusions were inconclusive.   The court finds that this claim is unsubstantiated and essentially abandoned.

The petitioner also alleges that Mr. Pattis failed to consult with an expert to review and critique the forensic interviews, medical reports, police reports and other information allegedly supporting the allegations of sexual assault, and failed to present such expert's testimony at trial in order to aid the jury in assessing the reliability of the allegations and the victims' testimony.   Mr. Pattis testified that he did not retain an expert to review the forensic interview videotapes because that might open the door to the videotapes being played to the jury.   Mr. Pattis did view the forensic interviews.

The petitioner presented testimony from Attorney Favreau and Dr. Mantell in support of this claim.   Although Attorney Favreau rendered opinions about the legal representation and Dr. Mantell rendered opinions about the forensic interviews, interviews which neither were evidence in the criminal trial nor full exhibits in the habeas trial, the court assigns no weight to the opinions presented by both of the petitioner's experts.   Attorney Favreau's trial experience minimizes the weight of her testimony and opinions to the point where they are virtually meaningless.   Conversely, Dr. Mantell's experience is much more extensive, although use and admission of the taped forensic interviews would have had far more potential to prejudice the defendant compared to any information gleaned from the forensic interviews.

Essentially, the petitioner has alleged multiple failures by Mr. Pattis to consult with and use experts.   The petitioner has attempted to show deficient performance and prejudice by presenting two experts of his own.   The court finds, however, that the petitioner's experts themselves have failed to show the benefit of utilizing experts.   The petitioner has failed to show both deficient performance and any prejudice stemming therefrom.

D.

The final area in which Mr. Pattis is alleged to have performed deficiently is that he failed to adequately advise the petitioner concerning his right to testify and ensure that he made an informed, knowing and voluntary decision to forego his right to testify.   The court addresses these claims below in the context of its discussion of the freestanding due process claim and relies on that discussion to conclude that these purported failures are entirely unsubstantiated.   As discussed in more detail below, the petitioner has failed to show he was unaware of his right to testify.

III.

Count two of the second amended petition alleges ineffective assistance by Mr. Williams.   More specifically, that he failed to:  conduct an adequate pretrial investigation;  interview his client, the petitioner;  failed to review the victims' March 4, 2003 statements;  translate the letters from M.M. and presumably use them to either prove a defense or impeach one or more of the victims;  consult with a medical expert regarding the normal examinations;  and failure to consult with an expert to review and critique the forensic interviews, medical reports, police reports and other information “allegedly” supporting the allegations of sexual assault.⁴  In count four, the petition also raises claims directed against Mr. Williams and seven additional purported failures, albeit ones that resulted in the petitioner not accepting a plea offer made by the state.   These allegations can be succinctly addressed.

From this court's findings of fact and the preceding discussion of the allegations in count one, the court also concludes that the claims raised in count two are baseless.

The uncontroverted evidence shows that although Mr. Williams initially represented the petitioner, the dissolution of the Williams & Pattis law firm and Mr. Williams' unavailability at the time of trial resulted in Mr. Pattis assuming control of the representation.⁵  Although Mr. Williams concluded that predecessor counsel's investigation was thorough, he strove to obtain more information pertaining to the juvenile court proceedings.   However, Mr. Williams was unable to get full access to the juvenile court record.   Mr. Pattis ultimately represented the petitioner at trial because the law firm of Williams & Pattis dissolved as 2004 transitioned to 2005, as well as that Mr. Williams attended his son's wedding in Hawaii very proximate in time to the onset of the petitioner's trial.   Mr. Williams testified that the petitioner agreed that Mr. Pattis, who had developed a profound interest in the petitioner's criminal cases and had excellent rapport with the petitioner, should represent him at trial.

There is no evidence that Mr. Williams either conducted the jury selection or represented the petitioner at trial and sentencing.   Similar to any claim that Mr. Montanez somehow was ineffective, if the petitioner were to make such a claim, Mr. Williams also was not ineffective during the pretrial phase as alleged in count two.

The claim in count four, however, is not baseless, given that the rendering of deficient performance that results in a defendant not accepting a plea offer may rise to the level of ineffective assistance of counsel.   See, e.g., H.P.T. v. Commissioner of Correction, 127 Conn.App. 480, 14 A.3d 1047 (2011), pet. cert. filed March 28, 2011 (counsel's failure to communicate plea offer through an interpreter was deficient);  Ebron v. Commissioner of Correction, 120 Conn.App. 560, 992 A.2d 1200, cert. granted on other grounds, 297 Conn. 912, 995 A.2d 954 (2010);  Sanders v. Commissioner of Correction, 83 Conn.App. 543, 553, 851 A.2d 313 (affirming remedy of habeas court reducing sentence to reflect pending plea offer rejected as result of ineffective assistance of pretrial counsel), cert. denied, 271 Conn. 914, 859 A.2d 569 (2004).⁶  The evidence presented in the instant case does not, however, support the petitioner's contentions.

On or about April or May 2004, the prosecutor offered the petitioner a sentence of twenty years, execution suspended after the service of nine years, followed by twenty years probation, in exchange for his guilty plea to three counts each of sexual assault in the third degree and risk of injury to a minor, as well as one count of violating a protective order.   The petitioner was represented by Mr. Williams at the time of this plea offer.   The petitioner now alleges that Mr. Williams failed to:  review all relevant information contained within the state's file such that he was able to meaningfully advise the petitioner concerning the state's offer;  conduct an investigation in order to adequately assess the strength of the defenses to be offered at trial;  meaningfully discuss with the petitioner the evidence that the state would offer against him at trial;  meaningfully discuss with the petitioner the likelihood of prevailing at trial;  advise the petitioner that the state did not need to present physical or medical evidence in order for him to be convicted as charged;  advise the petitioner about his exposure if convicted after trial;  and meaningfully convey the state's offer to the petitioner.

On May 26, 2004, the petitioner and Mr. Williams appeared before the court, Solomon, J., to either accept or reject the plea offer.   Petitioner's Exhibit 1. The transcript of the May 26, 2004 proceeding reflects that a Spanish interpreter was present.   Judge Solomon first asked the petitioner whether he had discussed the plea offer with his attorney.   The petitioner answered “Yes.” When asked whether he had made a decision to accept or reject the plea offer, the petitioner responded “Reject.”   Upon further questioning the petitioner indicated that it was his voluntary decision to reject the plea offer.  Id., pg. 2.

The petitioner testified that the plea offer was first made when he was represented by Mr. Montanez, and that he and Mr. Montanez discussed the plea offer.   According to the petitioner, Mr. Williams never visited him in jail to discuss the plea offer prior to May 26, 2004 and the accept/reject proceeding.   The petitioner testified, however, that he did not accept the plea offer because he was neither going to plead guilty to something that never occurred nor plead guilty to those charges.

Mr. Williams testified that he reviewed the great quantity of materials that he received from predecessor counsel, Mr. Montanez, and also had many discussions with him about his investigation and preparation of the case.   Mr. Williams further noted, contrary to the petitioner's allegations, that he met with the petitioner during the course of his representation to discuss the cases.   Other than efforts to review the contents of juvenile court file, Mr. Williams concluded that no further investigation was necessary.   Mr. Williams acknowledged on cross-examination that he was quite certain that he did not consult with a medical expert and, although he could not recall specifically why not, that he did not think it was necessary.

Mr. Williams had no recollection, when asked on direct examination, of plea offers.   On cross-examination by the respondent and after his recollection was refreshed, Mr. Williams testified that he and the petitioner discussed the state's plea offer.   The petitioner maintained his innocence and was not interested in pleading guilty to offenses that he maintained he did not commit.   Mr. Williams testified that he discussed the petitioner's exposure and the evidence the state was going to present.   The petitioner would not, however, deviate from his assertion that he was innocent and wanted to proceed to trial.

Based upon the foregoing, the court concludes that the petitioner has failed to show that Mr. Williams rendered deficient performance.   Even assuming that the petitioner had somehow made such a showing, which he has not, the petitioner has failed to demonstrate how such deficient performance resulted in prejudice.   The petitioner has not, in any way, undermined this court's confidence in the outcome of the criminal trial.

IV.

The final claim to be addressed is count three, a freestanding due process violation claim premised on the petitioner being deprived of his right to testify.   The petitioner alleges that this deprivation occurred for the following reasons:  the trial court's canvass of the petitioner as to his right to testify was constitutionally insufficient given the petitioner's responses;  trial counsel did not advise the petitioner that he had a personal right to testify;  trial counsel usurped the decision of whether or not the petitioner would testify;  the petitioner did not know and understand that the decision to testify or not testify was constitutionally his to make and was not counsel's choice;  and the petitioner did not knowingly, intelligently and voluntarily waive or forego his right to testify.   The respondent has raised procedural default as to the allegations directed at the trial court itself.   The petitioner's reply asserts that he has not procedurally defaulted and in a vague manner references counsel's obligations.   These vague references perhaps could be viewed as an assertion of ineffective assistance of counsel, although they fall short of being specific factual allegations in support of claimed cause and prejudice.   See Practice Book § 23–31(c).

“Practice Book § 23–31(a) requires a petitioner to file a reply ‘[i]f the return alleges any defense or claim that the petitioner is not entitled to relief, and such allegations are not put in dispute by the petition ․’ The reply must admit or deny those allegations;  Practice Book § 23–31(b);  and ‘allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default ․’ Practice Book § 23–31(c).  ‘[T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate's procedural rule ․ [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel ․ or ․ some interference by officials ․ would constitute cause under this standard ․ A court will not reach the merits of the habeas claim when the petitioner fails to make the required showing.’  (Internal quotation marks omitted.)  Anderson v. Commissioner of Correction, [114 Conn.App. 778, 788, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009).]”  Moody v. Commissioner of Correction, 127 Conn.App. 293, 299, 14 A.3d 408, cert. denied, 300 Conn. 943, 17 A.3d 478 (2011).

“It is axiomatic that ‘[i]t is the right of every criminal defendant to testify on his own behalf ․ and to make that decision after full consultation with trial counsel ․ Nevertheless, the burden [is] on the petitioner to show that he was not aware of his right to testify, not on the state to show that he was.’  (Citations omitted;  internal quotation marks omitted.)  Lewis v. Commissioner of Correction, 89 Conn.App. 850, 870–71, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005).   Furthermore, although ‘the due process clause of the Fifth Amendment may be understood to grant the accused the right to testify, the if and when of whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney.’  (Internal quotation marks omitted.)  Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 814–15, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom.  Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).”  Henderson v. Commissioner of Correction, 129 Conn.App. 188, 195–96, 19 A.3d 705, cert. denied, 303 Conn. 901 (2011).

The petitioner specifically alleges trial court error, an allegation that is subject to procedural default unless cause and prejudice is both alleged and shown.   The court concludes that the petitioner has both failed to allege and prove the required cause and prejudice.   Furthermore, a review of Judge Sheldon's canvass, conducted through an interpreter, clearly shows that he strove to ascertain that the petitioner's decision not to testify was his own personal decision made with the advice of counsel.⁷  The petitioner was aware of his right to testify and his responses to Judge Sheldon indicate such awareness.   Any trial court error, even if not procedurally defaulted, is without merit.

The petitioner testified that he wanted to testify during the criminal trial because he thought it would help his case.   The petitioner also testified that Mr. Pattis informed him that his testimony would not help and would not be believed.   Mr. Pattis testified that the petitioner did not testify because doing so would run a high risk of being an unsympathetic witness because of the charges as well as the physical violence against his wife.   Mr. Pattis further testified that the petitioner did not seem confident about the case or the proceedings and, therefore, would not make a good witness.   Additionally, Mr. Pattis testified that he used an interpreter and was satisfied that the petitioner knew he had a right to testify.

The court concludes, based upon the foregoing, that the petitioner's freestanding claim of a due process violation premised on the purported deprivation of his right to testify is wholly unsubstantiated.   The petitioner has failed to show that he was unaware of his right to testify.

CONCLUSION

Judgment shall enter denying the petition for a writ of habeas corpus.   Counsel for the petitioner shall prepare a judgment file, which shall be filed with the clerk within thirty days of the date of this decision.

So ordered.

T. Santos, J.

FOOTNOTES

FN1. Petitioner's Exhibit (Exh.) 5, pp. 3–13..  FN1. Petitioner's Exhibit (Exh.) 5, pp. 3–13.

FN2. Petitioner's Exh. 6, 7, and 8..  FN2. Petitioner's Exh. 6, 7, and 8.

FN3. It is not readily apparent why this particular letter, one of two that was translated, has been singled out.   Another letter from the petitioner was also translated and entered into evidence.   Apparently, one letter was translated by the state and the other by prior defense counsel.   The petitioner here has singled out the letter translated by the state.   The fact that the state translated the letter does not automatically make that translated letter any more suspect than a letter translated by predecessor counsel..  FN3. It is not readily apparent why this particular letter, one of two that was translated, has been singled out.   Another letter from the petitioner was also translated and entered into evidence.   Apparently, one letter was translated by the state and the other by prior defense counsel.   The petitioner here has singled out the letter translated by the state.   The fact that the state translated the letter does not automatically make that translated letter any more suspect than a letter translated by predecessor counsel.

FN4. The court notes and disapproves of petitioner's counsel repeated use of terms more appropriate in preconviction versus post-conviction proceedings.   The petitioner stands before this court duly convicted and sentenced in accordance with the law—unless proven otherwise.   The use of terms more appropriately confined to pre-conviction proceedings is even more disconcerting given that the petitioner has not alleged that he is actually innocent..  FN4. The court notes and disapproves of petitioner's counsel repeated use of terms more appropriate in preconviction versus post-conviction proceedings.   The petitioner stands before this court duly convicted and sentenced in accordance with the law—unless proven otherwise.   The use of terms more appropriately confined to pre-conviction proceedings is even more disconcerting given that the petitioner has not alleged that he is actually innocent.

FN5. The evidence does not show whether there was a law firm appearance or whether counsel filed individual appearances..  FN5. The evidence does not show whether there was a law firm appearance or whether counsel filed individual appearances.

FN6. See also Ham v. Commissioner of Correction, 301 Conn. 697, 701 n.5, 703 n.7, 23 A.3d 682 (2011), in which the Supreme Court notes that there presently are two cases pending in the United States Supreme Court that will address ineffective assistance of counsel in the pre-trial/plea agreement phase..  FN6. See also Ham v. Commissioner of Correction, 301 Conn. 697, 701 n.5, 703 n.7, 23 A.3d 682 (2011), in which the Supreme Court notes that there presently are two cases pending in the United States Supreme Court that will address ineffective assistance of counsel in the pre-trial/plea agreement phase.

FN7. Petitioner's Exh. 3, pp. 112–14..  FN7. Petitioner's Exh. 3, pp. 112–14.

Santos, Thelma A., J.