Adam Osoria v. Warden (2012)

MEMORANDUM OF DECISION

I. Procedural history

The petitioner was the defendant in a matter pending in the Judicial District of New Haven under Docket No. CR02–0000781.   At all relevant times during the underlying criminal prosecution, the petitioner was represented by Attorney Donald Dakers, a special public defender.   The matter was tried to a jury, which found the petitioner guilty on the charges of Robbery 1st Degree, in violation of General Statutes § 53a–134(a)(4), Attempt to Commit Robbery 1st Degree, in violation of General Statutes §§ 53a–134(a)(4)/53a–49(a)(2), and two counts of Accessory to Commit Larceny 3rd Degree, in violation of General Statutes §§ 53a–124(a)(1)/53a–8(a).   On April 11, 2003, the trial court, Harper, J., sentenced the petitioner to a total effective sentence of 33 years incarceration.   The petitioner took a direct appeal of his convictions, which were all affirmed in State v. Osoria, 86 Conn.App. 507, 861 A.2d 1207 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1082 (2005).   On May 4, 2006, the petitioner was re-sentenced by Damiani, J. to a total effective term of 32 years, suspended after 18 years incarceration, followed by 5 years of probation.¹

The petitioner filed a prior petition for writ of habeas corpus under Docket No. CV05–4000251, which was tried before the court, Swords, J., on August 26, 2008.   During that habeas trial, the petitioner was represented at all relevant times by Attorney Sebastian DeSantis.   The court issued a written memorandum of decision denying the petition on December 12, 2008.   Subsequently, the petitioner filed the present petition for writ of habeas corpus on July 16, 2009.   Following the appointment of counsel, an amended petition was filed on August 8, 2011 claiming that Attorney DeSantis rendered ineffective assistance during the prior habeas.   The respondent filed a return generally denying the claims asserted in the petition and also asserted the special defense of res judicata.²  The matter was tried before the court on November 29, 2011.   Further procedural history and background will be provided as needed in the opinion.

II. Law and Discussion

“[The United States Supreme Court] has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial.”  Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  “The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the ample opportunity to meet the case of the prosecution to which they are entitled.”   Id. 685.  “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”  Id. 686.

When a petitioner brings a claim that counsel in a prior habeas proceeding provided ineffective assistance in litigating a claim of ineffectiveness against the petitioner's former criminal trial counsel, the petitioner must ultimately prove that both his prior habeas counsel and trial counsel were ineffective in order to prevail.  (Emphasis added.)  Lozada v. Warden, 223 Conn. 834, 842–44, 613 A.2d 818 (1992).  “A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ․ has two components.   First, the defendant must show that counsel's performance was deficient.   This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed to a defendant by the Sixth Amendment.   Second, the defendant must show 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 the defendant makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable.”  Id. 687.  “[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.”  Id. 688.  “Judicial scrutiny of counsel's performance must be highly deferential.   It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”  Id. 689.  “Thus, a court ․ must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.  [The defendant] must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.   The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.   In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.   At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”  Id. 690.

Under the second prong of the test, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.”  Id. 691.   “[A]ctual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.”  Id. 693.  “Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.”  Id. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.”  Id. “The defendant 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.”  Id. 694.  “An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like.”  Id. 695.   The court “must consider the totality of the evidence before the judge or jury.”  Id. “In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner's failure to prove either is fatal to a habeas petition.”  Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).

CLAIMS OF INEFFECTIVENESS AGAINST PRIOR HABEAS COUNSEL

The petitioner first claims that Attorney DeSantis failed to properly investigate and present evidence that Attorney Dakers failed to investigate and present a possible alibi defense, failed to call certain witnesses, including his former co-defendants, Jimmy Santos and Christian Lopes, to show that they would have testified favorably for him if Attorney Dakers had called them to testify at the criminal trial, that Attorney DeSantis failed to present expert medical testimony or records regarding a significant leg injury ³ the petitioner had suffered during his youth that, if presented by Attorney Dakers at trial, would have proven that the petitioner was not capable of committing certain acts alleged as part of the crimes for which he was convicted, and that Attorney DeSantis failed to prove that Attorney Dakers failed to request a proper jury instruction regarding the testimony provided against him at trial by co-defendant Jimmy Santos.

As to the each of these claims, however, the petitioner has failed to present evidence to support his claim.   It was the petitioner's burden to present the supposed alibi witness, former codefendants and expert medical witness at this habeas trail to offer what he or she would have testified to if they had been called to testify at the prior habeas or criminal trials, but no such evidence was presented before this court.  Nieves v. Commissioner of Correction, 51 Conn.App. 615, 622–24, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999) (holding that petitioner's failure to present evidence showing what witnesses who were not called would have said if called to testify was fatal to his claim).⁴  It was also the petitioner's burden to point out the specific deficiency in the jury instructions that were given, as well as the specific jury instruction or instructions that should have been given regarding the testimony of co-defendant Jimmy Santos, but, again, no such evidence was produced.  Id. The petitioner's failure to present evidence on these issues is fatal to these claims.  Id.

The petitioner also claims that Attorney DeSantis was ineffective for failing to prove that Attorney Dakers was ineffective for not providing the petitioner with a Spanish interpreter during the criminal trial proceedings, because Attorney DeSantis failed to properly cross-examine Attorney Dakers on this issue at the prior habeas hearing.   The only substantive evidence presented on this subject during this habeas trial was the petitioner's own testimony,⁵ while he could understand English, he could not read and write in English, so he could not understand any of the police reports or statements Attorney Dakers was presenting him during the pretrial phase of the trial.   On this issue, the court simply did not find the testimony of the petitioner credible.

Although the petitioner claimed in his testimony that Attorney Dakers never took any time to discuss the police reports and witness statements he'd given to the petitioner as part of the discovery in his case, and that he could not otherwise understand them because of his difficulty with reading English, the petitioner also claimed at other points in his testimony here, and at his prior habeas hearing, that he pointed out numerous inconsistencies in witness statements and other issues contained in the discovery to Attorney Dakers, but that Attorney Dakers would ignore him.   There is no question that the petitioner was bi-lingual, and that his primary language had been Spanish prior to moving to the United States, however, the ability to formulate arguments to his attorney about inconsistencies in the evidence against him would obviously have required the petitioner to be able to read and comprehend the discovery, all of which was in English.   Additionally, one of the victims also testified at trial that the petitioner spoke to him in English during the commission of the robbery.   Also, although the petitioner had several involvements with the criminal justice system prior to his arrest on this matter, there was no complaint issued by him that he was having any problem with Attorney Dakers, or that he was having difficulty understanding what was going on in court, until the day before jury selection was scheduled to begin in his case.   With his prior involvement in the criminal justice system, the court believes the petitioner would have known enough to make a complaint to the court well prior to the eve of trial if Attorney Dakers really had been ignoring his requests for an interpreter and he really did not understand what he was being charged with.   The petitioner has also failed to direct the court through the evidence presented to the specific instances or areas where Attorney DeSantis' cross examination of Attorney Dakers on this issue at the prior habeas was faulty.   Strickland v. Washington, supra, 466 U.S. 690.   Finally, the court also credits the testimony of Attorney Dakers that the petitioner did not exhibit any difficulty nor make any complaint to him that he was unable to understand the conversations they were having or the discovery he was being given prior to the eve of trial.   Based on the above, the petitioner has failed to prove that Attorney DeSantis provided ineffective assistance on this issue, so there is no need to address the issue of prejudice.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

The petitioner also makes a claim that Attorney DeSantis was ineffective for failing to prove that Attorney Dakers failed to properly communicate with the petitioner about the possible penalties he faced for his crimes and about the possibility of negotiating a plea agreement.   As to the claim that the petitioner was not aware of the possible penalties he faced, the court found the testimony of Attorney Dakers credible that he advised the petitioner of the possible penalties he faced.   As for the claim regarding plea offers, Attorney Dakers did obtain plea offers for the petitioner, and tried to get the petitioner to accept them, but, as the petitioner testified in the prior habeas proceeding, and similarly in the present one, he wasn't accepting any plea deals, “Cause I [didn't] commit this crime.”   Therefore, the court does not find that Attorney DeSantis was ineffective for failing to prove otherwise as to these issues at the prior habeas trial.  Strickland v. Washington, supra, 466 U.S. 669.

The petitioner also makes some additional generalized claims, such as that Attorney DeSantis failed to “investigate ․ all aspects surrounding the circumstances of the crimes for which the petitioner was convicted,” and failed to “properly examine or cross examine witnesses ․ including, but not limited to Attorney Dakers ․” While Attorney Dakers did testify at this hearing, the petitioner failed to present any evidence tending to show any specific instances where Attorney DeSantis was constitutionally deficient in his cross-examination.  Strickland v. Washington, supra, 466 U.S. 690.   As to the remainder of these “catchall” claims, other than those claims that have been addressed specifically within this opinion, the petitioner has failed to produce any additional evidence or witnesses before this court, which, again, is fatal to these claims.  Nieves v. Commissioner of Correction, supra, 51 Conn.App. 622–24.

In summary, the petitioner has failed to prove that his prior habeas counsel, Attorney Sebastian DeSantis, provided ineffective assistance of counsel.   Strickland v. Washington, supra, 466 U.S. 689.   Based on this finding, there is no need to address the issue of whether the petitioner was prejudiced at all by Attorney DeSantis' performance.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.   Additionally, based on the court's finding that the petitioner has failed to prove ineffectiveness against Attorney DeSantis, it is not necessary to engage in a separate analysis as to whether Attorney Dakers also provided ineffective assistance at the criminal trial level.  Lozada v. Warden, supra, 223 Conn. 842–44.

III. Conclusion

Based on the foregoing, the petition for writ of habeas corpus is DENIED.   If the petitioner wishes to appeal this matter, then counsel shall prepare and submit a judgment file to the clerk's office within thirty (30) days.

Hon. John M. Newson

FOOTNOTES

FN1. None of the records presented before this court indicate the basis for the petitioner's resentencing..  FN1. None of the records presented before this court indicate the basis for the petitioner's resentencing.

FN2. Where a present petition is based on a claim of ineffectiveness against habeas counsel, although the petitioner must prove that both prior habeas counsel and trial counsel were ineffective to prevail, the special defense of res judicata not applicable, because the claim of ineffectiveness against prior habeas counsel infers that the issue of ineffectiveness against trial counsel may not have been adequately litigated.  Lozada v. Warden, 223 Conn. 834, 842–44, 613 A.2d 818 (1992)..  FN2. Where a present petition is based on a claim of ineffectiveness against habeas counsel, although the petitioner must prove that both prior habeas counsel and trial counsel were ineffective to prevail, the special defense of res judicata not applicable, because the claim of ineffectiveness against prior habeas counsel infers that the issue of ineffectiveness against trial counsel may not have been adequately litigated.  Lozada v. Warden, 223 Conn. 834, 842–44, 613 A.2d 818 (1992).

FN3. Evidence presented showed that the petitioner had suffered a broken femur in an accident in 1998 which required the insertion of a rod and screws.   It was the petitioner's claim that evidence of the lingering effects from this injury would have shown that he was not capable of walking the significant distance his co-defendant testified they walked together to steal the vehicle that they ultimately used to commit the crimes for which he was convicted..  FN3. Evidence presented showed that the petitioner had suffered a broken femur in an accident in 1998 which required the insertion of a rod and screws.   It was the petitioner's claim that evidence of the lingering effects from this injury would have shown that he was not capable of walking the significant distance his co-defendant testified they walked together to steal the vehicle that they ultimately used to commit the crimes for which he was convicted.

FN4. Notwithstanding that the court will not reach the merits of these claims, it should be noted that even as of the time of this trial, nearly nine years after his conviction, the petitioner can only identify his supposed alibi witness by first name and can only identify where he was supposed to have lived at the time of his criminal trial by general reference to an area near where the petitioner lived.   Jimmy Santos and Christian Lopes both gave written statements to police implicating the petitioner in the crimes, and Santos actually testified against the petitioner as a State's witness at the criminal trial, so any recantation now would obviously have had some significant issues to overcome.   Finally, as to the claimed physical limitations caused by the petitioner's prior leg injury, not only did the petitioner admit in his own testimony that he was able to engage in athletic activities such as basketball subsequent to his leg injury, there was also detailed evidence presented during the criminal trial about the petitioner fleeing from police on several occasions and scaling fire escapes, climbing balconies, jumping from heights as high as 10–12 feet, and jumping across building rooftops in order to elude capture..  FN4. Notwithstanding that the court will not reach the merits of these claims, it should be noted that even as of the time of this trial, nearly nine years after his conviction, the petitioner can only identify his supposed alibi witness by first name and can only identify where he was supposed to have lived at the time of his criminal trial by general reference to an area near where the petitioner lived.   Jimmy Santos and Christian Lopes both gave written statements to police implicating the petitioner in the crimes, and Santos actually testified against the petitioner as a State's witness at the criminal trial, so any recantation now would obviously have had some significant issues to overcome.   Finally, as to the claimed physical limitations caused by the petitioner's prior leg injury, not only did the petitioner admit in his own testimony that he was able to engage in athletic activities such as basketball subsequent to his leg injury, there was also detailed evidence presented during the criminal trial about the petitioner fleeing from police on several occasions and scaling fire escapes, climbing balconies, jumping from heights as high as 10–12 feet, and jumping across building rooftops in order to elude capture.

FN5. There was testimony presented from the petitioner's mother claiming that he did not understand English at the time of his arrest, but she also claimed that the petitioner had only moved to the United State from Puerto Rico about 4–5 months prior to his arrest, when records show that he had an arrest in New Haven nearly 18 months prior to his arrest on this incident..  FN5. There was testimony presented from the petitioner's mother claiming that he did not understand English at the time of his arrest, but she also claimed that the petitioner had only moved to the United State from Puerto Rico about 4–5 months prior to his arrest, when records show that he had an arrest in New Haven nearly 18 months prior to his arrest on this incident.

Newson, John M., J.