167892 v. Warden, State Prison (2012)

MEMORANDUM OF DECISION

The petitioner, Michael Mourning, alleges in his petition for a writ of habeas corpus, initially filed on June 6, 2008, and amended on September 24, 2008, and again on August 19, 2010, that he was denied the effective assistance of trial counsel, that he was denied a fair trial because of prosecutorial misconduct, and that he is actually innocent of the crimes,¹ all in violation of the sixth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the constitution of Connecticut.   For the reasons set forth more fully below, the petition is denied.

This matter came to trial on March 24, 2011, and March 25, 2011.   The Court heard testimony from Attorney Jennifer De Castro–Tunnard, petitioner's trial counsel, Detectives James Hicks and James Fisher of the Danbury Police Department, and Mark Dunlop, employee of CVS where the crimes occurred.   Additionally, petitioner entered into evidence a transcript of his plea and sentencing, the Danbury Police Incident Report, the Arraignment Report and Affidavit, a transcript of a Motion to Dismiss a violation of probation, an affidavit of Detective James Fisher referencing the CVS surveillance video, statement of Vernon Atherton dated September 20, 2007, statement of Vernon Atherton dated January 29, 2007, handwritten notes relating to plea offer, and a Department of Corrections list of petitioner's movements among different D.O.C. facilities.   Respondent proffered the Memorandum of Decision in the Motion to Dismiss one of three violations of probation which resulted from the arrest for the crime in the instant habeas, the Supplemental Danbury Police Incident Report, a Request for Discovery and Inspection and a Motion to Dismiss filed by Attorney Tunnard in each of two of the violation of probation which petitioner later admitted, and a hand written by Vernon Atherton dated August 20, 2007.   The petitioner and respondent filed post-trial briefs on August 25, 2011, and September 1, respectively.   The petitioner filed his reply brief on September 15, 2011.

The Court has reviewed all of the testimony and evidence and makes the following findings of fact.

FINDINGS OF FACT

1. The petitioner was the defendant in certain criminal cases in the judicial district of Danbury.   In CR07–0130161 he was charged with sale of a hallucinogen or narcotic, in violation of C.G.S. § 21a–277a, and in CR94–0090346, CR95–009109 and CR95–0092193, he was charged with violations of probation, in violation of § 53a–32, based on the arrest in the first file.

2. At all times relevant to the petitioner's claims, he was represented by Attorney Jennifer Tunnard.   Ms. Tunnard has practiced law for twenty-one years.   She is a graduate of Fordham College and the Jacob D. Fitchburg Law Center and is admitted to the bar in both New York and Connecticut.   Attorney Tunnard first practiced in New York as a prosecutor from 1990 to 1996.   While in the state's attorney's office, she worked in the appellate unit and the grand jury units handling mostly felony crimes.   In the grand jury unit she later specialized in sex crimes.   She then joined two successive insurance companies as in-house defense counsel for the next six and half years until she entered private practice primarily representing plaintiffs in negligence matters.   When she returned to the state of Connecticut she began handling criminal matters again as a special public defender.   Her first trial in Connecticut in 2005 was a murder case in Bridgeport which resulted in an acquittal.   Sometime in September or October of 2007, Attorney Tunnard was appointed to represent petitioner as a special public defender.

3. On February 25, 2008, the petitioner entered a guilty plea to the charge of sale of narcotics, and admitted a violation of probation in three pending violation cases, before the Honorable Frank A. Iannotti, who thoroughly canvassed him.²

4. The factual allegations underlying the charges, as summarized by the prosecutor at the petitioner's plea hearing are as follows:  “Your Honor, on the sale of narcotics file, this was an incident that took place on August 6, of 2007, in the town of Danbury.   On or about that date, members of the special investigation's division were doing a—were observing an area and monitoring for sale of narcotics, and they saw the defendant, Michael Mourning, drive into a parking lot with his vehicle that was registered to him.   The officers saw him drive over to a white van and threw an object into the driver's side of the window.   They came in and were able to determine that he had been paid eighty-five dollars for five glassine baggies marked Macho, which was later tested positive for heroin.” ³

5. The petitioner admitted that the facts, as recited by the prosecutor, essentially were correct.⁴

6. The court, Iannotti, J., sentenced the petitioner on all four charges to a total effective sentence of fifteen years, execution suspended after three years, with four years probation.   The three probation files were terminated.⁵

7. Additional facts will be discussed as needed.

DISCUSSION

I.

The petitioner first claims that he received ineffective assistance of counsel, in that Attorney Tunnard allegedly rendered deficient performance in the following ways:  failed to conduct a thorough investigation of the charges;  failed to keep apprised of the proceedings against, and the pleas entered, by the petitioner's co-defendants, especially as they related to the petitioner's defenses;  failed to secure and safeguard a security videotape relevant to the petitioner's defense that had been reviewed by members of the Danbury Police Department;  failed to obtain and safeguard co-defendant Vernon Atherton's alleged confessionary statement obtained by the State's investigator prior to Atherton's entry of a plea;  failed to elicit identification of all exculpatory evidence know to prosecuting State's Attorney Zingaro;  failed to make note of factual errors set forth in the sentencing of Vernon Atherton on October 11, 2007;  did not properly advise the petitioner of the nature and elements of his offense prior to the entry of his plea;  and did not advise the petitioner of his ability to file a direct appeal.

The respondent's return to the second amended petition denies these allegations and, via incorporation of the return to the first amended petition, asserts has procedurally defaulted as to numerous claims.   The court notes that the first amended petition was filed by the petitioner prior to the appointment of a special public defender.   The second amended petition, filed by and through counsel, is the operative complaint.   Accordingly, the affirmative defenses as to claims made by the petitioner himself in the first amended petition are inapplicable to the claims raised in the second amended petition.

II.

“To prevail on a constitutional claim of ineffective assistance of counsel resulting from a guilty plea, a petitioner must establish both that his counsel's performance was deficient and that the deficient performance prejudiced him.   See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985);  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);  Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721, 789 A.2d 1046 (2002).   To satisfy the performance prong, the petitioner must show that counsel's representation fell below an objective standard of reasonableness ․ To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial ․ A reviewing court can find against a petitioner on either ground, whichever is easier ․ The petitioner cannot rely on mere conjecture or speculation to satisfy either the performance or prejudice prong but must instead offer demonstrable evidence in support of his claim.”  (Citations omitted;  internal quotation marks omitted.)  Petty v. Commissioner of Correction, 125 Conn.App. 185, 187–88, 7 A.3d 411 (2010), cert. denied, 300 Conn. 903 (2011).

III.

Several of the petitioner's allegations against Attorney Tunnard pertain to her investigation.  “[A]lthough 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.”  Crawford v. Commissioner of Correction, 285 Conn. 585, 598–99, 940 A.2d 789 (2008).

Attorney Tunnard testified about the investigation which, according to her credible testimony, the petitioner was kept informed about.   After her appointment as a special public defender, she obtained a copy of the public defender's file, met with the petitioner and hired a private investigator, Thomas Murphy.   An important part of the investigation was determining whether the CVS store possessed a videotape that showed the events observed and reported by the police.   Although a camera trained on the CVS parking lot captured footage, the videotape failed to show anything with sufficient detail to be utilized.   According to Attorney Tunnard, she also instructed the investigator to see if any witnesses could be located and either she or the investigator spoke directly with the petitioner's co-defendants or their respective counsel.   Although counsel for co-defendant Dube indicated to Attorney Tunnard that Mr. Dube would not be helpful to the petitioner, Attorney Tunnard met with Mr. Dube and his attorney.   Mr. Dube told Attorney Tunnard that the co-defendants had gone to the CVS parking lot to purchase drugs from the petitioner, which stands in stark contradiction to Mr. Atherton's statements discussed in greater detail below.

Investigator Murphy took a statement on January 29, 2008, from Vernon Atherton, one of the petitioner's co-defendants.⁶  The statement taken by Mr. Murphy sought to clarify and amend a prior statement made by Atherton on September 20, 2007,⁷ in the criminal case pending against the petitioner.   Mr. Atherton indicated in the earlier statement that the petitioner had thrown “balled up” money into the vehicle that Atherton, Dube and Bloom were occupying, and that Dube looked at the money, crinkled it and threw some of it back to the petitioner.⁸  The earlier statement by Mr. Atherton additionally indicates that Dube threw drugs down onto the floor of the vehicle in the area of the driver's seat where Atherton was sitting.   The statement to Mr. Murphy reiterates the money-throwing exchange and Mr. Atherton's assertion that the heroin found by police in the folds of the front seat belonged to him, as well as that he had admitted possessing the heroin in court prior to sentencing.⁹  In the second statement Mr. Atherton indicates that he never saw any drugs being sold between the petitioner and Dube.

Attorney Tunnard further testified that she spoke with the petitioner's probation officer and filed a discovery motion because of the impending violation of probation hearing, which would occur well before any criminal trial, if at all, would begin.   Attorney Tunnard received a copy of the violation of probation warrant and was able to obtain other documentation to prepare for the hearing.   In addition to the arrest for selling drugs, the petitioner apparently also had dirty urines and had failed to timely apprise the Office of Adult Probation of address changes.

The evidence presented to this court also shows that Attorney Tunnard filed a motion to dismiss the charge of violation of probation,¹⁰ which was argued before the court, Shaban, J., on January 30, 2008.¹¹  In a memorandum of decision dated February 7, 2008,¹² Judge Shaban denied the motion to dismiss.   Shortly thereafter, on February 25, 2008, the petitioner admitted the violations of probation and pleaded guilty to one count of sale of narcotics, in violation of General Statutes § 21a–277(a).¹³

Based upon the foregoing, the petitioner has not proven that Attorney Tunnard rendered deficient performance premised on the investigation she conducted and oversaw.   The petitioner's claims that counsel failed to conduct a thorough investigation of the charges, failed to keep the petitioner apprised of the proceedings and the pleas entered by the petitioner's co-defendants,¹⁴ especially as they related to the petitioner's defenses,¹⁵ failed to elicit identification of all exculpatory evidence know to prosecuting attorney, failed to obtain and safeguard co-defendant Vernon Atherton's alleged confessionary statement obtained by the State's investigator prior to Atherton's entry of a plea, and failed to make note of factual errors set forth in the sentencing of Vernon Atherton on October 11, 2007 are unsubstantiated and without merit.   The petitioner has neither proven the required deficient performance by counsel, nor that he would have persisted in his ‘not guilty’ plea and proceeded to trial.

As to the allegation that Attorney Tunnard did not properly advise the petitioner of the nature and elements of his offense prior to the entry of his plea, the court draws attention to the fact that the only evidence the court has to consider is counsel's testimony that she discussed the nature and elements of the new charge and the violations of probation charges, as well as the petitioner's and Attorney Tunnard's responses to Judge Iannotti during the plea canvass.   It bears repetition and emphasis that the petitioner himself admitted that the facts put on the record by the prosecutor in support of the convictions were essentially correct.¹⁶  Based upon the foregoing, the court finds that this particular allegation is wholly unsubstantiated and borders on the frivolous.

The remaining allegation against Attorney Tunnard is that she did not advise the petitioner of his ability to file a direct appeal.   In Ghant v. Commissioner of Correction, 255 Conn. 1, 17, 761 A.2d 740 (2000), the Supreme Court adopted the test enunciated in Roe v. Flores–Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2002).  “Roe, as adopted by [Ghant ], held that in cases in which a criminal defendant neither instructs counsel to file an appeal nor asks that an appeal not be filed, ‘counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing.   In making this determination, courts must take into account all the information counsel knew or should have known.’  Roe v. Flores–Ortega, supra, 528 U.S. 480.”  Ryan v. Commissioner of Correction, 114 Conn.App. 331, 336, 969 A.2d 221, cert. denied, 292 Conn. 910, 973 A.2d 108 (2009).

There is no evidence whatsoever that the petitioner reasonably demonstrated to Attorney Tunnard that he was interested in appealing.   As to the first part of the Roe/Ghant test, the petitioner highlights that the Appellate Court's decision in Mourning v. Commissioner of Correction, 120 Conn.App. 612, 615 n.1, 992 A.2d 1169, cert. denied, 297 Conn. 919, 996 A.2d 1192 (2010),¹⁷ contains language that supports the contention an appeal would be nonfrivolous.¹⁸  Whether or not any purported error in the sentencing and/or mittimus had merit as a basis for an appeal, or perhaps may have provided a basis for a sentence modification or correction, all three of the probations were terminated by Judge Iannotti on February 25, 2008.   Any errors by the original sentencing court, Mihalakos, J., were completely negated and rendered moot by the termination of all three probations on February 25, 2008.   Thus, the potential appellate issue highlighted by the petitioner in reality is a chimera and fails to satisfy the first part of the Roe/Ghant test.

Based upon the foregoing, the petitioner has failed to prove ineffective assistance of counsel as to all alleged bases of deficient performance.   The petitioner has also presented no evidence at all addressing the Strickland/Hill prejudice prong, that he would have persisted in a plea of “not guilty” and proceeded to trial.   The claim of ineffective assistance of counsel is denied.

IV.

The remaining claim to be addressed is the petitioner's allegation that he was deprived of his right to a fair trial and due process of law because of prosecutorial misconduct.   The second amended petition alleges the following:  that the prosecutor did not make the petitioner aware, though his attorney, of exculpatory information with respect to his case prior to sentencing regardless of whether it was requested or not;  that “State's Attorney Zingaro at sentencing on August 7, 1996, allowed Attorney Sedensky to represent to the Court unopposed that [the petitioner] had three violations of probation pending when he only had one violation of probation pending”; ¹⁹  and “State's Attorney Sedensky misrepresented to the Court [the petitioner's] violation of probation status at his violation of probation hearing, and he presented erroneous documentation to support his allegation of multiple violations of probation status.” ²⁰

As to the allegation that exculpatory information was not made available to the defense, which pertains to the CVS videotape, the petitioner has failed to present any evidence whatsoever that the videotape was exculpatory or even potentially exculpatory.

The court fails to discern the rationale or logic of the next allegation, that Ms. Zingaro at sentencing on August 7, 1996, allowed Mr. Sedensky to purportedly make some misrepresentation about the number of pending violations of probation.   This allegation on its face appears completely nonsensical.   There is no evidence whatsoever as to one prosecutor “allowing” another prosecutor to make misrepresentations, let alone at the time the petitioner was originally sentenced on August 7, 1996.   If the incorporation of that date was a scrivener's error by the petitioner's present counsel, the court notes that none of the transcripts entered as full exhibits indicate that both Ms. Zingaro and Mr. Sedensky were present at any of the petitioner's underlying proceedings.   As difficult as it may be to decipher this allegation, the court concludes there is no evidence presented in support of the claim.

Lastly, as to the claims that State's Attorney Sedensky misrepresented to the Court the petitioner's violation of probation status at his violation of probation hearing and that he presented erroneous documentation to support his allegation of multiple violations of probation status, the court stresses that these allegations are made in the context of an allegation that there was prosecutorial misconduct.   Thus, the petitioner is claiming that the prosecutor made misrepresentations and presented erroneous information to the court.   The tenor of the petitioner's allegations is not that these serious affirmative actions were accidental or even the result of negligence.   Instead, the petitioner's allegations, made by and through appointed counsel, strongly imply that there was affirmative misconduct by the prosecutor.

Again, however, there is a complete lack of evidence to substantiate these very serious allegations against a fellow officer of the court.   The transcript of the January 30, 2008 hearing on the motion to dismiss,²¹ heard by Judge Shaban, reflects that Mr. Sedensky presented arguments to the court that countered Ms. Tunnard's arguments and sought to discern the Judge Mihalakos's intent at sentencing in 1996.   This court can detect nothing but a good faith effort by the state to ascertain the original sentencing court's intent, a far cry from any purported misconduct.   Consequently, these last claims must also fail.

CONCLUSION

The petition for a writ of habeas corpus is denied.   Counsel for the petitioner shall prepare and within thirty days of this judgment file with the clerk a judgment file.

T. Santos, J.

FOOTNOTES

FN1. The petitioner withdrew the claim of actual innocence..  FN1. The petitioner withdrew the claim of actual innocence.

FN2. Petitioner's Exhibit (Exh.) 6, pp. 1–5..  FN2. Petitioner's Exhibit (Exh.) 6, pp. 1–5.

FN3. Petitioner's Exh. 6, p. 3..  FN3. Petitioner's Exh. 6, p. 3.

FN4. Petitioner's Exh. 6, p. 5..  FN4. Petitioner's Exh. 6, p. 5.

FN5. Petitioner's Exh. 6, p. 6..  FN5. Petitioner's Exh. 6, p. 6.

FN6. Petitioner's Exh. 17.   The date at the top of the statement form indicates “1/29/07.”   Given that the offense date is August 6, 2007, that the statement taken by Mr. Murphy seeks to clarify and amend a statement Vernon Atherton made on September 20, 2007, and that the petitioner was sentenced on February 25, 2008, the statement to Mr. Murphy was made January 29, 2008, approximately one month prior to the sentencing..  FN6. Petitioner's Exh. 17.   The date at the top of the statement form indicates “1/29/07.”   Given that the offense date is August 6, 2007, that the statement taken by Mr. Murphy seeks to clarify and amend a statement Vernon Atherton made on September 20, 2007, and that the petitioner was sentenced on February 25, 2008, the statement to Mr. Murphy was made January 29, 2008, approximately one month prior to the sentencing.

FN7. The court notes that one of the respondent's exhibits, X, is a short note, notarized on August 14, 2007, from Mr. Atherton in which he states that he saw the petitioner toss money to Dube, who looked at the money and then tossed some money back to the petitioner..  FN7. The court notes that one of the respondent's exhibits, X, is a short note, notarized on August 14, 2007, from Mr. Atherton in which he states that he saw the petitioner toss money to Dube, who looked at the money and then tossed some money back to the petitioner.

FN8. Petitioner's Exh. 16, p. 1..  FN8. Petitioner's Exh. 16, p. 1.

FN9. Petitioner's Exh. 17..  FN9. Petitioner's Exh. 17.

FN10. Respondent's Exh. U..  FN10. Respondent's Exh. U.

FN11. Petitioner's Exh. 12..  FN11. Petitioner's Exh. 12.

FN12. Respondent's Exh. B..  FN12. Respondent's Exh. B.

FN13. Petitioner's Exh. 6, pp. 1–2..  FN13. Petitioner's Exh. 6, pp. 1–2.

FN14. Even the transcript of the petitioner's sentencing proceeding belies this allegation.   Attorney Tunnard was aware of the status of the co-defendants' cases.   See Petitioner's Exh. 6, pp. 6–9..  FN14. Even the transcript of the petitioner's sentencing proceeding belies this allegation.   Attorney Tunnard was aware of the status of the co-defendants' cases.   See Petitioner's Exh. 6, pp. 6–9.

FN15. The court notes that the petitioner did not testify in the instant habeas corpus matter.   It is entirely unclear what any of these “defenses” may have been.   The petitioner initially asserted a claim of actual innocence, but that claim was withdrawn..  FN15. The court notes that the petitioner did not testify in the instant habeas corpus matter.   It is entirely unclear what any of these “defenses” may have been.   The petitioner initially asserted a claim of actual innocence, but that claim was withdrawn.

FN16. Petitioner's Exh. 6, p. 5..  FN16. Petitioner's Exh. 6, p. 5.

FN17. The court notes that the prior habeas corpus petition at issue in that appeal involved only the three violations of probation matters and not the charge of sale of narcotics.   This court's granting of the respondent's motion to dismiss the petition was affirmed by the Appellate Court and the Supreme Court denied certification to appeal..  FN17. The court notes that the prior habeas corpus petition at issue in that appeal involved only the three violations of probation matters and not the charge of sale of narcotics.   This court's granting of the respondent's motion to dismiss the petition was affirmed by the Appellate Court and the Supreme Court denied certification to appeal.

FN18. This language by the Appellate Court clearly is dicta and not germane to any issue raised on appeal..  FN18. This language by the Appellate Court clearly is dicta and not germane to any issue raised on appeal.

FN19. Second Amended Petition, p. 11..  FN19. Second Amended Petition, p. 11.

FN20. Second Amended Petition, p. 12..  FN20. Second Amended Petition, p. 12.

FN21. Petitioner's Exh. 12, pp. 14–20..  FN21. Petitioner's Exh. 12, pp. 14–20.

Santos, Thelma A., J.