Wright v. Warden (2012)

MEMORANDUM OF DECISION

(Excerpt)

THE COURT:  Just for the record, the Court has had the opportunity, prior to this time, and, again, familiarized itself with the exhibits that have been filed here and have taken some time to familiarize himself with them, has considered the testimony of the parties, or the witnesses, that have been presented and the arguments of the parties.

As to count 1;  the claim of ineffective assistance of habeas counsel.   And, as we know the standard is essentially the Strickland versus Washington standard, where the petitioner has to show deficient performance as well as prejudice.   As to the claims that petitioner has brought here, he has shown neither.

His first claim is that habeas appellate counsel was ineffective and that he failed to present evidence and adequately brief.   That trial attorney failed to present a material witness.   And, again, is argued by the state.   The evidence shown,—this material witness was this Mr. Dupass (phonetic) who, while he could account for the whereabouts of the petitioner's brother as not being involved in the shooting, as was testified to by counsel.   Neither he nor any of the other witnesses that he was able to locate, could remove the petitioner from near or around the location where the shooting took place at the bar, where at least one or more eyewitnesses identified him, and so as in his estimation he made the claim that, although he attempted to look into the issues with Mr. Dupass, and other witnesses, that he testified to, none of them—Mr.   Dupass specifically, was not able to remove the petitioner from the location.   And again, based on the theory of defense that essentially they picked the wrong guy for the shooting, Mr. Dupass—his testimony would have actually conflicted with that theory, and that he would have placed, essentially, the person who they were trying to place the blame on—or the theory of the defense was that he mixed up the brothers and he would have taken the individual they were essentially trying to claim third-couple culpability on out of the picture.

And so therefore counsel made a strategic decision.   He had that specific decision and others, that the Court will not go into length about, which are part of the record, but, again, counsel had sound strategic decisions for the decisions he made, and in any event, even if the petitioner has failed to show otherwise how he was prejudiced by that information not being brought forward.

As to his Count claim 1b;  that habeas counsel was ineffective and that he failed to present sufficient evidence that appellate attorney was ineffective for failing to claim that the co-defendant was acquitted.   Again, as the Court has stated, there is numerous cases in the State of Connecticut that (inaudible) hold, that results in different proceedings, even regarding the same defendant, let alone co-defendants, are not relevant to each other, they are completely different and distinct.   There are different juries, there may be different witnesses, witnesses might testify slightly different, but there is case law all over the place in the State of Connecticut, and elsewhere, that indicates that a result in one hearing,—or co-defendants being tried separately—one result does not affect the other, and so counsel could neither be deficient in his performance, nor could the petitioner have anyway been prejudiced by habeas counsel failure to raise that issue.

And finally as to claim 1c;  claims that habeas counsel was ineffective, that he failed to present evidence that appellate attorney was ineffective for not challenging the petitioner's separate conviction under 53–202k.   And again, it is a matter of record.   Frankly, again, it is difficult to decipher what the claim is, assuming the claim is that it was illegally submitted to the jury somehow as a separate criminal charge, as opposed to a question to the jury as a sentence enhancement.   The records and the exhibits submitted prove that it did not, in fact, go to the jury as a separate charge but simply went to the jury as a yes/no question, that did they find that the act was committed with a weapon, which is the proper way that it is supposed to be done, and the record and the information from the trial prove that.   And so, again, the petitioner had failed to either prove deficient performance or prejudice in any manner as to the claim.

And we move on to claim 4;  the only still remaining claim.   And, again, as what was just testified to by habeas appellate counsel, although he was willing and able, and, frankly, did attempt to get an articulation from the Court, that claim was denied.   He was there after on two separate occasions, contacted;  one by an individual purporting to be a relative or contacting him on behalf of his client and indicated that he wanted to stop and cease doing any work on the file, notwithstanding, counsel, as would be expected, did not accept that representation, but sent a letter to his client asking him—essentially requiring whether or not that was the case.   And testified, and the Court believes credibly, that he then received what he recognized to be a phone message directly from the petitioner indicating he did not wish him to do anymore legal work or to file anymore legal motions on his behalf, as counsel frankly was required;—he  received direction from his client—he ceased to do that.   On the other hand, as counsel is also required, he is not able to,—what we call leave—leave his client in a lurch, did what he felt was necessary to make sure that his client's rights were protected and got his brief filed, but all and all, if counsel failed to do that, he did it at his client's direction.   In any event, there was no proof or no evidence presented as to what issues supposedly needed to be articulated by the habeas Court.   That is there was no proof of evidence as to what supposedly was missing, nor was there any evidence or proof presented as to how that would have affected the outcome and it would have been the petitioner's burden to prove that—whatever that information that would have been presented in the Court's articulation, if it was granted, would have somehow benefited him and that he would have prevailed on his appeal if it had been included, and none of that evidence has been presented, here, before the Court today.

So for all those reasons, the Court finds that the petitioner has failed to meet his burden.   He has failed to show either lack of performance—or what I should say, he has failed to show any constitutionally deficient performance by either habeas counsel or habeas appellate counsel.

He has also failed to show, as to any of his claims, that there was any prejudice.   And for those reasons, the petition for writ of habeas corpus is denied.

The record should reflect that the petitioner will be given a copy of his notice of right to appeal;  the Marshal is now taking and handing to the petitioner.

And if the petitioner desires to appeal, again, he has been given notice of his rights and the requirements, and he should exercise those rights.

(End of excerpt)

Newson, J.

Newson, John M., J.