288194 v. Warden (2012)

MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT

The issue in this habeas action is whether petitioner's, Anthony W. Rogers appellate counsel was deficient in failing to adequately brief, before the Appellate Court the issues of whether the trial court erred in granting the state's motion to join certain charges for trial, and denying petitioner's motion to sever certain charges, and if so, whether there is a reasonable probability that, but for appellate counsel's omissions, the petitioner would have prevailed on appeal.

The petitioner was convicted, after a jury trial, of murder, conspiracy to commit murder, attempt to commit assault in the first degree and carrying a pistol without a permit.   The trial court sentenced the petitioner to a total effective sentence of seventy-one years.   The petitioner appealed the judgments of conviction to the Appellate Court, which affirmed them.  State v. Rogers, 123 Conn.App. 848, 3 A.3d 194 (2010).   The petitioner then petitioned the Connecticut Supreme Court to review the Appellate Court's decision, but the Supreme Court denied certification.  State v. Rogers, 299 Conn. 906, 10 A.3d 524 (2010).   The Appellate Court's decision fully sets forth the facts that reasonably could have been found by the jury, and the trial court's analysis of the joinder severance issues.  State v. Rogers, supra, 123 Conn.App. 848.   Therefore, it is unnecessary for this court to repeat those matters here.

On January 24, 2011, the petitioner filed this petition for a writ of habeas corpus in which he claims that his appellate counsel,¹ John Williams, was ineffective in failing to adequately brief issues raised on appeal including that:  (1) the trial court erred in granting the state's motion to join certain informations in a single trial;  (2) the trial court erred in denying the petitioner's motion to sever certain charges;  and (3) the trial court erred in allowing evidence of uncharged misconduct.

On May 24, 2011, the petitioner filed his first motion for summary judgment in this case.   The respondent opposed that motion and filed its own motion for summary judgment.   The court denied those motions, without prejudice, for the parties to close the pleadings as required by Practice Book § 23–37.   The parties have since closed the pleadings and filed the exact same motions for summary judgment, oppositions and briefs.

The petitioner's memorandum in support of his motion for summary judgment is limited to the issues of whether appellate counsel was ineffective in not briefing the issues of joinder and severance, and does not specifically address the issue of uncharged misconduct.   Accordingly, the court considers the issue of uncharged misconduct abandoned by the petitioner.  State v. Rogers, supra, 123 Conn.App. 860 (“[a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly” (internal quotation marks omitted)).

In particular, the petitioner claims that the Appellate Court “has already ruled that counsel's performance was inadequate” based on the Appellate Court's refusal to consider the issues raised on appeal due to counsel's failure to adequately brief them.  State v. Rogers, supra, 123 Conn.App. 860.   Petitioner also claims that the trial court's decision, joining differing charges in different informations for trial was erroneous based on a recent Connecticut Supreme Court decision, decided after the trial court issued its decision in this case.  State v. Gupta, 297 Conn. 211, 998 A.2d 1085 (2010).   Petitioner claims that State v. Gupta, supra, 297 Conn. 211 altered the standard for considering claims of joinder and that had appellate counsel adequately briefed the issue of joinder and presented argument based on the Gupta case to the Appellate and Supreme Courts, petitioner would have prevailed on appeal.   The petitioner also claims that the trial court's decision not to sever certain charges was erroneous and his appellate counsel was ineffective in not adequately briefing the severance issue.   In particular, petitioner claims that the failure to sever certain charges prevented him from exercising his right to testify on some charges but not to testify on others.   He also claims that he would have prevailed on the severance issue has it been properly briefed on appeal.

The respondent has opposed the petitioner's motion for summary judgment, and has also filed a motion for summary judgment.²  The respondent does not specifically address the issue of whether appellate counsel's failure to brief the issues of joinder and severance on appeal was deficient except to say that the petitioner asserts the wrong standard.   The respondent's primary argument is that the petitioner was not prejudiced by counsel's failure to brief the joinder issue because even if appellate counsel had properly briefed the issue of joinder and the appellate court had considered it on the merits, the petitioner would not have prevailed on appeal.

Practice Book § 23–37 permits a habeas court to grant summary judgment “if the pleadings, affidavits and any other evidence submitted show that there is no genuine issue of material fact between the parties requiring a trial and the moving party is entitled to judgment as a matter of law.”   See, e.g., Lawrence v. Commissioner of Correction, 125 Conn.App. 759, 762, 9 A.2d 772 (2010), cert. denied, 300 Conn. 936, 17 A.3d 474.   Both parties agree that there are no material disputed facts and that the issue presented is a legal issue that may be decided on summary judgment.

The issue presented in the motions for summary judgment involve the effectiveness of appellate counsel.   The standards governing a habeas court's review of such a claim is now established.  “A criminal defendant's right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution.   See, e.g., Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985);  In re Christina M, 280 Conn. 474, 489, 908 A.2d 1073 (2006).”   Small v. Commissioner of Correction, 286 Conn. 707, 712–13, 946 A.2d 1203 (2008), cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336.

“To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).   Strickland requires that a petitioner satisfy both ‘a “performance prong” and a “prejudice prong.”   To satisfy the performance prong, a claimant must demonstrate that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed ․ by the [s]ixth [a]mendment.”   [Id.] To satisfy the “prejudice prong, a claimant must demonstrate that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.”  Id., 694.   The claim will succeed only if both prongs are satisfied.'  Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom.  Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006).   It is well settled that ‘[a] reviewing court can find against a petitioner on either ground, whichever is easier.’  (Emphasis added.)  Valeriano v. Bronson, 209 Conn. 75, 86, 546 A.2d 1380 (1988);  see also Strickland v. Washington, supra, 697 (‘a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant’).”  Small v. Commissioner of Correction, supra, 286 Conn 713.

In reviewing the prejudice prong of an ineffective assistance claim involving the actions of appellate counsel, the habeas court must assess whether there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal.   Small v. Commissioner of Correction, supra, 286 Conn. 717–23;  see also Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).  “[T]o determine whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily analyzes the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm.”  Small v. Commissioner of Correction, supra, 722.

As to the issue of joinder, the petitioner claims that in State v. Gupta, supra, 297 Conn. 211, the Supreme Court made “it absolutely clear that there is no longer a presumption in favor of joining unrelated criminal cases for a single mega-trial, as was done in this case.   The court disagrees and finds that Gupta did not establish a new standard for reviewing claims of improper joinder but rather, the Supreme Court simply applied the well established standard to the particular facts presented in that case.   The Gupta case contains no language to suggest that the Supreme Court is reversing prior cases or creating a new standard.   Moreover, and contrary to the petitioner's claim, the Gupta court recognized and applied the presumption in favor of joinder when it stated:  “[T]his court consistently has recognized a clear presumption in favor of joinder and against severance ․ and, therefore, absent an abuse of discretion ․ will not second guess the considered judgment of the trial court as to the joinder or severance of two or more charges ․ On appeal, [t]he defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court's instructions.”  (Citations omitted;  internal quotation marks omitted.)  State v. Gupta, supra, 297 Conn. 222–23, quoting State v. McKenzie Adams, 281 Conn. 486, 519–20, 915 A.2d 822, cert. denied, 552 U.S. 888, 128 S.Ct. 248, 169 L.Ed.2d 148 (2007).³

On appeal, had the Appellate Court considered the issue on the merits, it would have afforded the trial court's decision to consolidate two of the informations broad discretion.  State v. Gupta, supra, 297 Conn. 222.   Having reviewed the trial court's decision to grant the state's motion to join two of the three informations in this case, and the standards that the Appellate Court would have applied, the court finds that it is not reasonably probable that the petitioner would have prevailed in his direct appeal had the issue been properly briefed.

Turning to the petitioner's claim that the trial court erred in failing to sever certain charges, the court similarly concludes that had this issue been briefed by appellate counsel and had the issue been considered on the merits by the Appellate Court, it is not reasonably probable that the petitioner would have prevailed.   Had the Appellate Court reviewed this issue on the merits, it would have applied a standard affording broad discretion to the trial court:  “The question of severance is within the sound discretion of the trial court and that discretion must not be disturbed unless it has been manifestly abused The discretion of a court to order separate trials should be exercised only when a joint trial will be substantially prejudicial to the rights of the defendant, and this means something more than that a joint trial will be less than advantageous to the defendant ․ [A]n accused bears a heavy burden to show that the denial of severance resulted in substantial injustice because of a manifest abuse of discretion in denying severance.”  (Citations omitted;  internal quotation marks omitted.)  State v. Schroff, 198 Conn. 405, 408–09, 503 A.2d 167 (1986).

When addressing a claim by a defendant that severance is necessary because the defendant wanted to testify to some matters but not to others, the Appellate Court has held that the defendant must make a “convincing showing that he has both important testimony to give concerning [some counts] and [a] strong need to refrain from testifying on [others].   In making such a showing, it is essential that the defendant present enough information regarding the nature of the testimony he wishes to give on [some counts] and his reasons for not wishing to testify on [others] to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of economy and expedition in judicial administration against the defendant's interest in having a free choice with respect to testifying.”  (Internal quotation marks omitted.)  State v. Marsala, 43 Conn.App. 527, 535–36, 684 A.2d 1199 (1996), cert. denied, 239 Conn. 957, 688 A.2d 329 (1997).   The Appellate and Supreme Courts have dismissed appeals where the defendant failed to provide information concerning his expected testimony or reasons for not wanting to testify.  Id. (severance issue rejected on appeal because defendant failed to give the trial court any indication as to why he wanted to testify);  State v. Schroff, supra, 198 Conn. 408–09 (severance issue rejected on appeal where defendant failed to disclose the substance of his expected testimony, or his reasons for not wanting to testify on the other counts).

Here, the trial court denied the petitioner's motion to sever certain counts because the petitioner failed to provide the trial court with his reasons for not wanting to testify on certain charges.   As a result of the petitioner's failure to provide this information, and applying the appropriate standard, the trial court denied petitioner's motion to sever.   This court finds that had the issue of the trial court's denial of petitioner's motion to sever been properly briefed by appellate counsel, the Appellate Court would have affirmed the trial court's decision for the same reason given by the trial court—lack of reasons for not wanting to testify.   Accordingly, the court concludes that the petitioner has failed to meet his burden to establish that there is a reasonable probability that he would have prevailed on appeal on the issue of severing the charges.

Because on both issues, joinder and severance, the court finds that there was no prejudice to the petitioner, it is unnecessary for the court to determine if appellate counsel's conduct was deficient under the first prong of the Strickland test.   See, e.g., Valeriano v. Bronson, supra, 209 Conn. 86;  Small v. Commissioner of Correction, supra, 286 Conn 713.

In conclusion, and based on the foregoing, the court denies the petitioner's motion for summary judgment.   The court grant's the respondent's motion for summary judgment on the issue of joinder only, as that was the only ground raised by the respondent in its motion for summary judgment.   As to the severance issue, the court has concluded that the petitioner cannot, as a matter of law, demonstrate the required prejudice resulting from the failure to raise this claim on appeal.   Given that there are no material facts in dispute and that the petitioner cannot prevail on the severance issue, the court dismisses the ineffective assistance of appellate counsel claim premised on the severance issue.  Practice Book § 23–29(5);  Newsome v. Commissioner of Correction, 109 Conn.App. 159, 161–62 and n.3, 951 A.2d 582, cert. denied, 289 Conn. 918, 957 A.2d 878 (2008).”

As to the petitioner's third claim to summary judgment on the issue of uncharged misconduct, neither the petitioner's nor the state's briefs addresses it.   Accordingly, summary judgment is denied as to that claim.⁴

So ordered.

Cobb, J.

FOOTNOTES

FN1. Petitioner's habeas counsel, John Williams, also represented the petitioner in his direct appeal of his convictions to the Appellate and Supreme Courts.   On March 3, 2011, the respondent moved to disqualify Mr. Williams from representing the petitioner in this habeas case on the grounds that Mr. Williams' prior representation of the petitioner created a conflict of interest.   On March 24, 2011, the habeas court, Schuman, J., granted in part and denied in part the respondent's motion for disqualification.   The court recognized that:  “It would ordinarily he an inherent conflict of interest for present habeas counsel to argue that he was ineffective in a prior proceeding.   At the least, doing so deprives the respondent of an opportunity to cross-examine or call the attorney as a witness to challenge his confession of ineffectiveness.”   The court, however, determined that if the matter could be resolved on a motion for summary judgment without a trial and on the existing record, then Mr. Williams could remain as petitioner's counsel.   However, the court stated that if no summary judgment motion was filed or if a summary judgment motion was filed, but denied by the court resulting in a trial, then, under such circumstances, Mr. Williams would be disqualified.   The respondent renewed its motion to disqualify Mr. Williams when it filed its second motion for summary judgment.   This court adopts the same approach concerning disqualification as Judge Schuman since the posture of these motions has not changed and this court thoroughly canvassed the petitioner on this issue..  FN1. Petitioner's habeas counsel, John Williams, also represented the petitioner in his direct appeal of his convictions to the Appellate and Supreme Courts.   On March 3, 2011, the respondent moved to disqualify Mr. Williams from representing the petitioner in this habeas case on the grounds that Mr. Williams' prior representation of the petitioner created a conflict of interest.   On March 24, 2011, the habeas court, Schuman, J., granted in part and denied in part the respondent's motion for disqualification.   The court recognized that:  “It would ordinarily he an inherent conflict of interest for present habeas counsel to argue that he was ineffective in a prior proceeding.   At the least, doing so deprives the respondent of an opportunity to cross-examine or call the attorney as a witness to challenge his confession of ineffectiveness.”   The court, however, determined that if the matter could be resolved on a motion for summary judgment without a trial and on the existing record, then Mr. Williams could remain as petitioner's counsel.   However, the court stated that if no summary judgment motion was filed or if a summary judgment motion was filed, but denied by the court resulting in a trial, then, under such circumstances, Mr. Williams would be disqualified.   The respondent renewed its motion to disqualify Mr. Williams when it filed its second motion for summary judgment.   This court adopts the same approach concerning disqualification as Judge Schuman since the posture of these motions has not changed and this court thoroughly canvassed the petitioner on this issue.

FN2. In the respondent's memorandum in support of its motion for summary judgment, it claims that the petitioner has failed to allege in his habeas petition that he was prejudiced by counsel's ineffectiveness, in that he failed to allege that he would have prevailed on the joinder issue on appeal had the issue been briefed and the Appellate Court considered it.   The respondent has failed to brief this pleading issue and, therefore, the court deems it abandoned.   See Raynor v. Commissioner of Correction, 177 Conn.App. 788, 796–97, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010) (“[r]eviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief ․ Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly”)..  FN2. In the respondent's memorandum in support of its motion for summary judgment, it claims that the petitioner has failed to allege in his habeas petition that he was prejudiced by counsel's ineffectiveness, in that he failed to allege that he would have prevailed on the joinder issue on appeal had the issue been briefed and the Appellate Court considered it.   The respondent has failed to brief this pleading issue and, therefore, the court deems it abandoned.   See Raynor v. Commissioner of Correction, 177 Conn.App. 788, 796–97, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010) (“[r]eviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief ․ Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly”).

FN3. The court points out that the trial court issued its decision consolidating two of the three cases on October 30, 2007.   This case was argued to the Appellate Court on May 20, 2010 and decided on September 21, 2010.   Certification was denied by the Supreme Court on November 4, 2010.   Gupta was decided by the Supreme Court on June 29, 2010.   Accordingly, even though this case was argued before Gupta was decided, appellate counsel had time before the decision was issued to file additional and appropriate filings with the Appellate Court and in its brief seeking certification to the Supreme Court..  FN3. The court points out that the trial court issued its decision consolidating two of the three cases on October 30, 2007.   This case was argued to the Appellate Court on May 20, 2010 and decided on September 21, 2010.   Certification was denied by the Supreme Court on November 4, 2010.   Gupta was decided by the Supreme Court on June 29, 2010.   Accordingly, even though this case was argued before Gupta was decided, appellate counsel had time before the decision was issued to file additional and appropriate filings with the Appellate Court and in its brief seeking certification to the Supreme Court.

FN4. It is unclear to the court whether or not this uncharged misconduct claim is intended to be a separate claim.   However, since it is plead that way, the court will treat it that way..  FN4. It is unclear to the court whether or not this uncharged misconduct claim is intended to be a separate claim.   However, since it is plead that way, the court will treat it that way.

Cobb, Susan Quinn, J.