Clyde Meikle v. Warden, State Prison (2012)

EXCERPT:  DECISION

THE COURT:  All right.   The Court is prepared to rule.   All right.   This is the petitioner's second petition for habeas corpus.   In his amended petition he claims that his prior habeas counsel, Mark Diamond, was ineffective for failing to raise certain claims regarding the conduct of trial counsel, Martin Zeldis, regarding Zeldis' failure to challenge the chain of custody of the weapon and failing to provide the petitioner with a police report.

At the trial in this matter the petitioner introduced exhibits, including trial transcripts and the testimony of Mr. Zeldis and the petitioner.   Mr. Diamond was not called as a witness.   The state called no witnesses.   It is the petitioner's burden of proof to establish that both of these attorneys were ineffective.   In Harris v. Commissioner, 126 Conn.App. 453, cert. denied 300 Conn. 932, the Supreme Court stated that a person convicted of a crime is entitled to pursue a writ of habeas corpus on the ground that his prior habeas corpus counsel was ineffective.

However, to succeed in his bid for a writ of habeas corpus under such circumstances, the petitioner must prove both that his appointed habeas counsel was ineffective, in this case Mr. Diamond, and that his trial counsel was ineffective, in this case Mr. Zeldis.   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.   Second, the defendant must show that the deficient performance prejudiced the defense.

Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unworkable.   Only if the petitioner succeeds in this herculean task will he receive a new trial.   This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on the ineffective assistance of trial or appellate counsel.

Here, while the Court heard testimony from Mr. Zeldis regarding his conduct at trial, there was absolutely no evidence presented in this case, credible evidence that is, as to Mr. Diamond's conduct, how it was deficient or how it prejudiced the petitioner.   Mr. Diamond was not called as a witness, nor was any other witness called, other than the petitioner, to assess Mr. Diamond's conduct.

As this petition is directed at Mr. Diamond's conduct, such evidence would have been crucial to this case.   Even though no evidence of Diamond's conduct was produced at this trial, the Court credits Mr. Zeldis' testimony and finds that the petitioner has not proven that Mr. Zeldis' performance was deficient or that he was prejudiced by such conduct.

Accordingly, the Court finds the petitioner has failed to prove his claims against Mr. Diamond.   The petition is denied.

All right.   This decision of the Court is an appealable decision.   The clerk will provide the petitioner with the appeal documents.   And I would ask the court monitor to type this decision and I'll sign it as a decision in this case.   Is there anything else?

ATTY. PILLSBURY:  No, Your Honor.   Thank you.

THE COURT:  Thank you.   Court's adjourned.

(This matter was concluded.)

Cobb, J.

Cobb, Susan Quinn, J.