Jerome Moore v. Warden (2012)

MEMORANDUM OF DECISION

I. Procedural History

The petitioner was the defendant in a matter pending in the Waterbury Judicial District, where he was charged with one count of Possession of Narcotics with Intent to Sell, in violation of General Statutes § 21a–178(b), and one count of Possession of Narcotics with Intent to Sell within 1,500' of a School, in violation of General Statutes § 21a–178a(b).  At all relevant times during the criminal proceedings, the petitioner was represented by Attorney Jerry Attanasio.   The facts that could have reasonably been found, as taken from the Appellate Court decision, were as follows:

At approximately 7:45 a.m. on September 29, 2006, three officers from the Waterbury police department entered the common hallway of an apartment building located at 417 East Main Street in that city with valid warrants for the arrest of the defendant.   The officers saw the defendant standing in the common hallway outside of the door to a common bathroom, dressed only in a T-shirt and boxer shorts.   The officers indicated to the defendant that they had warrants for his arrest and placed him under arrest.   After being placed in handcuffs, the defendant indicated to the officers that he wanted additional clothing before going to the police station.   The officers acceded to his request and asked the defendant where his clothing was located.   The defendant nodded toward his apartment, the door to which was ajar.   One of the officers then knocked on the partially open door, which swung open as a consequence.   The defendant's one room apartment contained a bed in which the officer saw the defendant's wife, Ebony Moore.   Ebony Moore did not indicate to the officers in any way that they could not enter.   Furthermore, upon entering, the officers did not intend to search the apartment;  instead their sole intent was to retrieve the defendant's clothes.   This intent was expressed to Ebony Moore when the officers indicated to her that they were entering to get clothing for the defendant;  neither threats nor use of force were issued to gain entry.   After entering the apartment for that purpose, one of the officers noticed crack cocaine on top of a dresser and seized it.   The defendant subsequently moved to suppress the seizure of those narcotics.

(Footnote omitted.)  State v. Moore, 120 Conn.App. 512, 514–15, 992 A.2d 357, cert. denied, 297 Conn. 910, 995 A.2d 638 (2010).   After jury trial, the petitioner was convicted of both counts.   On June 3, 2008, the court, Alander, J., sentenced the petitioner to 9 years to serve on the Possession of Narcotics with Intent to Sell, in violation of General Statutes § 21a–178(b), and 3 years consecutive on the Possession of Narcotics with Intent to Sell within 1,500' of a School, in violation of General Statutes § 21a–278a(b), for a total effective sentence of 12 years incarceration, which was imposed to run concurrently to another sentence the petitioner was already serving.   The petitioner appealed his convictions, which were affirmed in State v. Moore, supra.¹

The petitioner commenced the present action by filing a petition for writ of habeas corpus on June 24, 2008.   After the appointment of counsel, a four-count amended petition was filed on December 30, 2011, the first count alleging ineffective assistance of trial counsel based on certain deficiencies in the representation, the second count alleging ineffective assistance of counsel due to a conflict of interest, the third count alleging a due process violation by the court based on its handling of the conflict of interest issue, and the fourth count alleging ineffective assistance of appellate counsel for failing to raise any of the first three claims on appeal.   The respondent filed an amended return on January 11, 2012, and the matter was tried to the court on January 11 and 26, 2012.

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.

“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 to 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).

COUNTS ONE and TWO—INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL/CONFLICT OF INTEREST

Although the petitioner separates these claims into two separate counts in his petition, the substance of each count claims that a conflict of interest prevented trial counsel from effectively representing him.   Count One alleges the conflict affected counsel's performance at trial, and Count Two alleges that the conflict affected counsel's performance during the pretrial stages of the case.

“The Sixth Amendment to the United States Constitution ․ and Article First, § 8, of the Connecticut Constitution, guarantee to a criminal defendant the right to effective assistance of counsel ․ As an adjunct to this right, a criminal defendant is entitled to be represented by an attorney free from conflicts of interest ․ Thus, [t]he underlying right to conflict free representation is effective assistance of counsel ․” (Internal citations omitted;  internal quotation marks omitted.)  Rodriguez v. Commissioner of Correction, 131 Conn.App. 336, 342–43 (2011).  “Our Supreme Court has established the proof requirements where a habeas corpus petitioner claims ineffective assistance of counsel because of a claimed conflict of interest.   Where ․ the defendant claims that his counsel was burdened by an actual conflict of interest ․ the defendant need not establish actual prejudice ․ Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties.   Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests ․ In a case of a claimed conflict of interest, therefore, in order to establish a violation of the sixth amendment the defendant has a two-pronged task.   He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance.”  (Internal quotation marks omitted.)  Day v. Commissioner of Correction, 118 Conn.App. 130, 136–37, (2009), cert. denied, 294 Conn. 930, 986 A.2d 1055 (2010).

“The [United States Court of Appeals for the Second Circuit] has honed this test further.   Once a [petitioner] has established that there is an actual conflict, he must show that a lapse of representation ․ resulted from the conflict ․ To prove a lapse of representation, a [petitioner] must demonstrate that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests ․ Nevertheless, no lapse of representation should be found to have occurred when a foregone strategy or tactic either is against the petitioner's interest or is so insubstantial that even the most ardent and talented, conflict-free advocate would likely have avoided it ․ In short, the alleged foregone strategy must possess sufficient substance to be a viable alternative.”  (Alterations in original;  internal citations omitted;  internal quotation marks omitted.)  Santiago v. Commissioner of Correction, 87 Conn.App. 568, 584, cert. denied, 273 Conn. 930 (2005).  “An actual conflict of interest is more than a theoretical conflict ․ [T]he possibility of conflict is insufficient to impugn a criminal conviction ․ A conflict is merely a potential conflict of interest if the interests of the defendant may place the attorney under inconsistent duties at some time in the future ․ To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest impairment or compromise of his interests for the benefit of another party ․ A mere theoretical division of loyalties is not enough ․ If a petitioner fails to meet that standard, for example, where only a potential conflict of interest has been established, prejudice will not be presumed, and the familiar Strickland ² prongs will apply.”  (Emphasis in original;  internal citations omitted;  internal quotation marks omitted.)  Anderson v. Commissioner of Correction, 127 Conn.App. 538, 550, 15 A.3d 658, cert. granted, 301 Conn. 921, 22 A.3d 1280 (2011).³

“Cases involving conflicts of interest usually arise in the context of representation of multiple codefendants by one attorney where the attorney adduces evidence or advances arguments on behalf of one defendant that are damaging to the interests of the other defendant ․ A conflict of interest also arises [however] if trial counsel simultaneously represents the defendant and another individual associated with the incident and that representation inhibits counsel's ability to represent the defendant.”  (Internal citations omitted.)  Santiago v. Commissioner of Correction, supra, 87 Conn.App. at 583.   Finally, “an attorney may [also] be considered to be laboring under an impaired duty of loyalty, and thereby be subject to conflicting interests, because of interests or factors personal to him that are inconsistent, diverse or otherwise discordant with [the interests] of his client ․” (Internal citation omitted.)  State v. Crespo, 246 Conn. 665, 689–90, 718 A.2d 925 (1998).

A. COUNT ONE

The petitioner claims in count one that he was denied his constitutional right to testify in his own defense when counsel violated his duty of loyalty by incorrectly reporting to the court that he believed the petitioner intended to present false testimony.   Some additional factual background is necessary for the resolution of this claim.   On December 14, 2007, after the State had rested its case in chief, trial counsel made an oral motion to withdraw from the case based on “certain ethical obligations.”  (Petitioner's Exhibit 25, Transcript of State v. Jerome Moore, Excerpt from December 14, 2007, pp. 2).   The court, Alander, J., then indicated that there had been an in chambers discussion prior to going on the record where “defense counsel indicated that ethical issues arose concerning Mr. Moore's declaration of his intent to testify.”  (Id., pp. 3).   Although the court indicated that it had received no direct information from defense counsel that the precise basis for counsel's ethical concerns was his belief that Mr. Moore intended to provide false testimony, the court then referenced Rule 3.3 of the Rules of Professional Conduct ⁴ , gave an explanation of what it believed counsel's obligations were under circumstances where counsel believed his client was going to testify falsely, and read certain portions of the commentary to Rule 3.3 into the record.  (Id., pp.3–6).⁵  The court deferred action on counsel's oral motion to withdraw and ordered him to discuss the matter with Mr. Moore and to report back on whether the matter did in fact involve an issue of proposed false testimony, which, if necessary, the court indicated, would need to be referred to another judge to hold a hearing on the matter.   After the recess, counsel reported back to the court that Mr. Moore had decided not to testify, and again sought to withdraw from the case.  (Id., pp. 7).   The court denied the motion to withdraw on grounds that it would necessitate a mistrial at that stage of the case, and canvassed Mr. Moore regarding the waiver of his right to testify and his understanding regarding counsel's ethical obligations to the court.  (Id., 8–11).   Although Mr. Moore indicated that he had decided not to testify of his own free will, he was clearly unhappy, and blamed counsel for his circumstances.  (Id.)

The central issue to the present claim is the level of “knowledge” a lawyer must have before invoking Rule 3.3(a)(3) when it involves the proposed testimony of a defendant in a criminal trial?   In the present case, the petitioner had given a written statement subsequent to his arrest in which he admitted to possession of the drugs found in the apartment and explicitly exculpated his fiancé, Ebony Moore, from any involvement with those drugs.   Ebony Moore, the only other person residing in the one-room apartment with the petitioner, also gave a written statement to the police indicating that she knew the petitioner had been selling drugs.   At the habeas trial, defense counsel testified that the petitioner had always admitted to possession of the drugs found in the apartment during their pretrial discussions, and that he had also regularly admitted that he had been selling drugs in and around the area of the apartment up to the night before he was arrested.   When it came time to decide whether he would testify at the trial,⁶ however, and when counsel questioned the petitioner about what he was going to testify to in light of his written statement and his lengthy record of prior drug arrests, the petitioner said, “I'll just try to blame it on Ebony.”   Counsel immediately advised the petitioner of his concerns with the proposed testimony, but the petitioner persisted, so counsel proceeded to advise the petitioner of his ethical obligations under Rule 3.3, including that he would not be able to question the petitioner when he took the stand, which would obviously alert the court to a problem, and that he might ultimately have an obligation to notify the court if the petitioner insisted on his intended course of testimony.   Notwithstanding, the petitioner continued to assert that he was going to “just blame it on Ebony,” at which point counsel approached the court and the in chambers conference referenced above occurred.

Rule 3.3(a)(3) of the Rules of Professional Conduct requires a criminal defense attorney to have “actual knowledge” that his client intends to offer false testimony before the attorney may invoke the requirements of rule.   State v. Chambers, 296 Conn. 397, 416, 994 A.2d 1248 (2010).   In the present case, the court is satisfied that defense counsel did have the “actual knowledge” required, because the petitioner actually told him he was going to lie about who the drugs found in the apartment belonged to.   See LaSalle v. Commissioner, Superior Court, Judicial District of Tolland, Geographical Area # 19 at Somers, Docket No. CV06–4001260 (April 4, 2011, Schuman, J.).   Counsel had been representing the petitioner for some eight months at the time this issue arose on December 14, 2007, a period during which the petitioner had always admitted to counsel that the drugs in question were his.   The petitioner also had a violation of probation hearing and a suppression hearing prior to trial.   In preparation for these hearings, counsel had further opportunities to assess and discuss with the petitioner his possible testimony, before ultimately advising the petitioner that testifying would not be in his best interests.   Based on the foregoing, this court is satisfied that counsel “actually knew,” as well as any other person can know what is in another's mind, that the petitioner was going to offer false testimony.  State v. Chambers, supra, 296 Conn. 419.

The next issue that must be addressed is whether, upon determining that the petitioner was going to offer false testimony, counsel took the appropriate steps to address the issue.   When counseling the petitioner against offering his false testimony failed, defense counsel took the next appropriate step by notifying the court during an in chambers discussion that he had an “ethical issue” and then sought to withdraw on the record, in each case only providing the trial court with the minimum amount of information necessary to alert the court to the basic nature of the issue, but not revealing any specifics about attorney-client privileged communications.   Under Rule 3.3, the steps counsel took were appropriate, because while meeting his obligation as an officer of the court, he also continued to honor his duty of confidentiality and maintained his role as an advocate to the petitioner.  Id., 412–13, 419.   It is also important to note that neither during any of the discussions before the trial court, nor during any of the proceedings before this court, did the petitioner make any effort to refute the assertion that he intended to offer false testimony by blaming possession of the drugs on Ebony Moore, which this court may accept as his acquiescence by silence to that factual claim.⁷  Id. 422.

Under the circumstances of the present case, counsel's conduct was reasonable and appropriate under the requirements of Rules of Professional Conduct.   Strickland v. Washington, 466 U.S. 688.   That alone is fatal to the petitioner's claim.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.   Additionally, however, based on the petitioner's claims as to what he would have testified to if he had taken the stand during his criminal trial;  (see Footnote 7);  there is no reason to believe the result of the trial would have been different, so he has also failed to establish prejudice.  Strickland v. Washington, 466 U.S. 694.

B. COUNT TWO

In Count Two, the petitioner claims that defense counsel was ineffective during the pretrial stages of the case.   The petitioner claims that, because of a material breakdown in the attorney-client relationship, counsel failed to adequately discuss the charges and evidence with him, failed to adequately investigate the case, failed to properly explain plea offers, and failed to pursue and discuss available defenses.   Simply put, the petitioner was not credible in the least sense as to these claims.

The petitioner claims that the issues above were created by the irretrievable breakdown of the relationship between he and defense counsel, which led to counsel refusing or failing to adequately communicate with him about the case.   However, the truth in this case was the exact opposite.   Defense counsel did not have any trouble communicating, or at least attempting to communicate, with the petitioner throughout the course of the case, and continued diligently to try to defend the petitioner to the best of his abilities.   The petitioner, however, because he did not like the news he was getting about his case from counsel or the pretrial offers the State was making, proceeded to do everything he could to make life difficult for counsel and to try to delay the case as long as possible from being called in to begin trial to try to obtain what he believed was a “fair” pretrial offer.

The petitioner claims that the several motions to withdraw filed by defense counsel during the pretrial stages of the case support his claim that the relationship had broken down to such an extent that counsel was not able to effectively represent him.   That evidence, however, does not support the petitioner's claims.   Instead, this evidence goes to show the difficulties in the representation that were created by the petitioner's own conduct.

There were motions to withdraw filed at two separate points during the pretrial stages of the case.   First, defense counsel filed several motions to withdraw his appearance during the month of May 2007.⁸  Generally, according to the testimony of defense counsel, which the court credits, these motions were based on a combination of the fact that the petitioner was becoming increasingly difficult and unreasonable regarding the pretrial offers in his case,⁹ was uncooperative with counsel's attempts to investigate facts and witnesses that might be relevant to the case, including intentionally misleading them on the issue of his actual home address, and had threatened a senior attorney in defense counsel's firm during a phone call to discuss some of these difficulties.   The motions to withdraw were addressed during a court hearing on June 6, 2007, where counsel indicated that he and the petitioner had spoken about the issues and that he was willing to remain in the case as defense counsel.   The petitioner, although addressed directly by the court, remained silent and did not contradict counsel's representations, nor did the he contest counsel's continued involvement in the case.   Based upon the information presented, the court, Alexander, J. denied the motion to withdraw.  (Petitioner's Exhibit 12, Transcript of State v. Jerome Moore, June 6, 2007, pp. 2.) ¹⁰

Another motion to withdraw was addressed beginning in October 2007.¹¹  This motion was filed after the petitioner instructed counsel, and the court, that he had hired another attorney and no longer wanted Attorney Attanasio's services.¹²  After numerous continuances, however, it became clear that no new attorney was going to be filing an appearance.  (See Footnote 11).   During a discussion about the status of the petitioner's representation on November 9, 2007, Attorney Attanasio, again, indicated he was willing to continue to represent the petitioner, which the petitioner acknowledged and, again, lodged no objection to Attorney Attanasio's continued representation.  (Petitioner's Exhibit 16, Transcript of State v. Jerome Moore, November 7, 2007).¹³

When the issue of conflict of interest was raised during the pretrial stages of the case, the trial court properly discharged its duty to conduct an inquiry into the matter on the record;  State v. Parrott, 262 Conn. 276, 286–87, 811 A.2d 705 (2003);  and the petitioner and trial counsel indicated by their words or conduct on each occasion that they had spoken and resolved whatever issues there were between them.  State v. Drakeford, 63 Conn.App. 419, 777 A.2d 202 (2001), aff'd, 261 Conn. 420;  802 A.2d 844 (2002) (trial court is allowed to rely on representation made parties before it as to whether facts supporting a conflict of interest exist).   The court also credits the testimony of trial counsel that, despite the petitioner's increasing antagonism, he continued to make diligent efforts to investigate the facts of the case and to represent the petitioner to the best of his abilities.   There are many times during the representation of criminal defendants where counsel and his client may have significant disagreement over a particular fact or circumstance involved in the case—such as the present case where the petitioner continued to insist that counsel get him a 5–year pretrial offer when counsel was advising him that the first offer of 9 years was reasonable in light of the number of cases he had pending and lengthy criminal record—but, not every conflict or disagreement between counsel and a client rises to a constitutional claim of deprivation of the right to the effective assistance of counsel.   See Anderson v. Commissioner, 127 Conn.App. 538, 551, 15 A.3d 658, cert. granted, 301 Conn. 921, 22 A.3d 1280 (2011) (certification granted only as to question of whether Appellate Court properly decided petitioner had not been deprived of his right to effective assistance of counsel when both he and a co-defendant were represented by attorneys from the same public defenders' office).   The focus of the Strickland inquiry is counsel's conduct, gauged against that of a reasonably competent defense attorney under similar circumstances, and conduct such as the present case that was more than reasonable in its own right cannot be rendered constitutionally ineffective by the unreasonable conduct and demands of a client who, of his own volition, insists on making the representation difficult and fails or refuses to accept counsel's competent legal advice.  Strickland v. Washington, supra, 466 U.S. 688 (“[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.”).

Based on the above, the petitioner has failed to establish that he was denied his right to the effective assistance of counsel in a Constitutional sense during the pretrial stages of his case.  Rodriguez v. Commissioner of Correction, 131 Conn.App. 336, 342–43, 27 A.3d 404 (2011), cert. granted, 304 Conn. 911, (2012).   Additionally, the petitioner has failed to present any credible evidence showing how he was prejudiced by counsel's conduct, as opposed to his own unreasonableness.  Strickland v. Washington, supra, 466 U.S. 695.¹⁴  Therefore, on either the performance prong or the prejudice prong, the petitioner's claim fails.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

COUNT THREE—DEPRIVATION OF DUE PROCESS BY TRIAL COURT

In Count Three, the petitioner claims that the trial court deprived him of his right to testify in his own defense, because of the allegedly improper procedure the trial court indicated it was going to use to try to determine if the petitioner's proposed testimony was in fact false.   The correctness of the procedure proposed by the court need not be examined, however, because the respondent has raised the special defense of procedural default to this claim, and this defense prevails.  Jackson v. Commissioner of Correction, 227 Conn. 124, 135–36, 629 A.2d 413 (1993).

“Claims of judicial error that a criminal defendant failed to raise on direct appeal are reviewable in a petition for habeas corpus only if the petitioner can show ‘cause and prejudice’ for his prior default.”  (Citation omitted.)   Delgado v. Commissioner of Correction, 114 Conn.App. 609, 611, 970 A.2d 792, cert. denied, 292 Conn. 920, 974 A.2d 721 (2009).   The petitioner did not raise this issue on appeal following his criminal trial.  State v. Moore, supra, 120 Conn.App. 512;  see also Footnote 1. Count Three of the present petition does not allege, nor did the petitioner present any evidence during the habeas trial relating to, either “cause” or “prejudice” for his failure to have raised this claim on direct appeal.   Therefore, the petitioner is procedurally defaulted from pursuing this claim for the first time in the present habeas petition.  Jackson v. Commissioner of Correction, supra, 227 Conn. 135–36.

COUNT FOUR—INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

In Count Four, the petitioner alleges that appellate counsel, Attorney Mary Anne Royle, was ineffective for failing to raise the claims cited in Counts One, Two and Three on appeal.   The only evidence submitted on this issue by the petitioner was to admit copies of the appellate and reply briefs submitted by Attorney Royle as exhibits.   Although these exhibits establish that the claims in Counts One through Three were not raised on appeal, the mere absence of these claims is insufficient to overcome the rebuttable presumption that appellate counsel's decision to not raise these claims were within the bounds of reasonable professional judgment.  Sanders v. Commissioner of Correction, 83 Conn.App. 543, 551, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004);  Strickland v. Washington, supra, 466 U.S. 690 (“[T]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.”).   Therefore, the petitioner's claim must fail.   Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

III. Conclusion

For the reasons stated herein, the petition for writ of habeas corpus is DENIED as to all counts.   If the petitioner wishes to appeal this decision, then counsel shall prepare and submit a judgment file to the clerk of within thirty (30) days.

Hon. John M. Newson

FOOTNOTES

FN1. The only issues raised in this appeal related to the trial court's denial of a motion to suppress:  whether the trial court properly denied the motion, and whether the warrantless entry into the petitioner's apartment violated his rights under Article First, § 7, of the Connecticut Constitution..  FN1. The only issues raised in this appeal related to the trial court's denial of a motion to suppress:  whether the trial court properly denied the motion, and whether the warrantless entry into the petitioner's apartment violated his rights under Article First, § 7, of the Connecticut Constitution.

FN2. Strickland v. Washington, 466 U.S. 668, 687 (1984) (petitioner claiming ineffectiveness of counsel must prove unreasonably deficient performance by counsel and prejudice, meaning counsel's deficient performance so undermined the proceeding that the result cannot be relied upon.).  FN2. Strickland v. Washington, 466 U.S. 668, 687 (1984) (petitioner claiming ineffectiveness of counsel must prove unreasonably deficient performance by counsel and prejudice, meaning counsel's deficient performance so undermined the proceeding that the result cannot be relied upon.)

FN3. Certification granted on the question of whether Appellate Court properly determined that defendant was not denied his constitutional right to the effective assistance of counsel when he and co-defendant were represented by separate attorneys from the same Public Defender's Office..  FN3. Certification granted on the question of whether Appellate Court properly determined that defendant was not denied his constitutional right to the effective assistance of counsel when he and co-defendant were represented by separate attorneys from the same Public Defender's Office.

FN4. Rule 3.3.   Candor toward the Tribunal:(a) A lawyer shall not knowingly:  (1) Make a false statement of fact or law to a tribunal or fall to correct a false statement of material fact or law previously made to the tribunal by the lawyer;  (2) Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;  or (3) Offer evidence that the lawyer knows to be false.   If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal;  (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal;  (c) The duties stated in subsections (a) and (b) continue at least to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6;  (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse;  (e) When, prior to judgment, a lawyer becomes aware of discussion or conduct by a juror which violates the trial court's instructions to the jury, the lawyer shall promptly report that discussion or conduct to the trial judge..  FN4. Rule 3.3.   Candor toward the Tribunal:(a) A lawyer shall not knowingly:  (1) Make a false statement of fact or law to a tribunal or fall to correct a false statement of material fact or law previously made to the tribunal by the lawyer;  (2) Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;  or (3) Offer evidence that the lawyer knows to be false.   If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal;  (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal;  (c) The duties stated in subsections (a) and (b) continue at least to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6;  (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse;  (e) When, prior to judgment, a lawyer becomes aware of discussion or conduct by a juror which violates the trial court's instructions to the jury, the lawyer shall promptly report that discussion or conduct to the trial judge.

FN5. THE COURT:  “We had a discussion in chambers where defense counsel indicated to me that ethical issues had arose concerning Mr. Moore's declaration of his intent to testify.   I just want to make it clear to counsel and to Mr. Moore the following:  My view on counsel's ethical obligations, as it relates to candor toward the tribunal, are laid out in Rule 3.3 of the Rules of Professional Conduct.   It states that a lawyer shall not knowingly offer evidence that the lawyer knows to be false.   Now, it's not clear to me whether that's the precise issue involved here.   But if it is, I want to make it clear to counsel and to Mr. Moore my view of counsel's obligations under this rule.   It states as follows ․ There is also a commentary to the rule, which states as follows ․ It then goes on to say, in some jurisdictions, however, courts have required counsel to present the accused as a witness and to give a narrative statement if the accused so desires, even if counsel knows that the testimony or statement will be false.   The obligation of the advocate under the Rules of Professional Conduct is subordinate to such requirements.   I have indicated to counsel in chambers that I don't believe calling Mr. Moore and allowing him to give a narrative statement complies with the obligations under the Rule as set forth in Connecticut.   So to me the issues are as follows:  If it is an issue of potentially false testimony by Mr. Moore, that I think defense counsel first has the obligation to determine whether he feels—that he know it is false testimony.   If you believe so, that you need to discuss that with Mr. Moore.   You need to let him know that if he continues to express his intent to take the stand and give such testimony that you will need to disclose it to the Court, so that the court can determine whether the proposed testimony is, in fact, false.   And, if so, not allow Mr. Moore to give such testimony.   If the court does not so find, then he will be allowed to give the testimony.   That hearing should be held before another Judge, other than myself.   I would refer it to a different Judge to hold the hearing ․.  FN5. THE COURT:  “We had a discussion in chambers where defense counsel indicated to me that ethical issues had arose concerning Mr. Moore's declaration of his intent to testify.   I just want to make it clear to counsel and to Mr. Moore the following:  My view on counsel's ethical obligations, as it relates to candor toward the tribunal, are laid out in Rule 3.3 of the Rules of Professional Conduct.   It states that a lawyer shall not knowingly offer evidence that the lawyer knows to be false.   Now, it's not clear to me whether that's the precise issue involved here.   But if it is, I want to make it clear to counsel and to Mr. Moore my view of counsel's obligations under this rule.   It states as follows ․ There is also a commentary to the rule, which states as follows ․ It then goes on to say, in some jurisdictions, however, courts have required counsel to present the accused as a witness and to give a narrative statement if the accused so desires, even if counsel knows that the testimony or statement will be false.   The obligation of the advocate under the Rules of Professional Conduct is subordinate to such requirements.   I have indicated to counsel in chambers that I don't believe calling Mr. Moore and allowing him to give a narrative statement complies with the obligations under the Rule as set forth in Connecticut.   So to me the issues are as follows:  If it is an issue of potentially false testimony by Mr. Moore, that I think defense counsel first has the obligation to determine whether he feels—that he know it is false testimony.   If you believe so, that you need to discuss that with Mr. Moore.   You need to let him know that if he continues to express his intent to take the stand and give such testimony that you will need to disclose it to the Court, so that the court can determine whether the proposed testimony is, in fact, false.   And, if so, not allow Mr. Moore to give such testimony.   If the court does not so find, then he will be allowed to give the testimony.   That hearing should be held before another Judge, other than myself.   I would refer it to a different Judge to hold the hearing ․

FN6. It should be noted that the petitioner had a violation of probation hearing and a motion to suppress hearing prior to the trial, both of which were related to this arrest, and he did not testify at either of those prior hearings based on counsel's advice..  FN6. It should be noted that the petitioner had a violation of probation hearing and a motion to suppress hearing prior to the trial, both of which were related to this arrest, and he did not testify at either of those prior hearings based on counsel's advice.

FN7. The closest the petitioner came to disputing trial counsel's claims was during cross-examination at the habeas trial when, after being questioned about what his proposed defense was going to be in light of his written confession, the petitioner said, “I wasn't going to say nothing about those drugs, I just wanted to testify as to what happened that day.”   However, based on the remainder of the petitioner's testimony, the “what happened that day” dealt specifically with who possessed the drugs, whether he had in fact voluntarily signed the confession, and how and where the drugs were found in the apartment..  FN7. The closest the petitioner came to disputing trial counsel's claims was during cross-examination at the habeas trial when, after being questioned about what his proposed defense was going to be in light of his written confession, the petitioner said, “I wasn't going to say nothing about those drugs, I just wanted to testify as to what happened that day.”   However, based on the remainder of the petitioner's testimony, the “what happened that day” dealt specifically with who possessed the drugs, whether he had in fact voluntarily signed the confession, and how and where the drugs were found in the apartment.

FN8. The actual motions were not made full exhibits in this case, so the court is not aware of the specific contents or allegations contained in the various motions filed..  FN8. The actual motions were not made full exhibits in this case, so the court is not aware of the specific contents or allegations contained in the various motions filed.

FN9. Despite the fact that the outstanding offer in the file was 9 years to serve on four or five outstanding files when defense counsel filed in lieu of the petitioner's prior counsel, which included a violation of probation partly based on the arrest that is the subject of this petition, the petitioner continued to insist that counsel get him a 5–year offer.   After losing his violation of probation hearing, which counsel had advised him against having, and warned him that the pretrial offer would likely increase, the court increased the offer to resolve the remainder of the cases to 12 years, but the petitioner continued to insist that counsel obtain him that same 5–year offer..  FN9. Despite the fact that the outstanding offer in the file was 9 years to serve on four or five outstanding files when defense counsel filed in lieu of the petitioner's prior counsel, which included a violation of probation partly based on the arrest that is the subject of this petition, the petitioner continued to insist that counsel get him a 5–year offer.   After losing his violation of probation hearing, which counsel had advised him against having, and warned him that the pretrial offer would likely increase, the court increased the offer to resolve the remainder of the cases to 12 years, but the petitioner continued to insist that counsel obtain him that same 5–year offer.

FN10. THE COURT:  This was originally down for a motion to withdraw appearance.   Mr. Moore stated on the record that he was willing to work with Mr. Minella's office.   I did send in Attorney Attanasio to discuss this.   And, gentlemen, without revealing the substance, were you able to communicate with each other what needed to be done or what he was looking for the possible trial.MR. ATTANASIO:  Yes, we were, your Honor.THE COURT:  All right.   And do you believe, again, Mr. Attanasio—and I know obviously the situation will continue to unfold, that you would be able to comply with Mr. Moore's concerns in representing him in the defense.MR. ATTANASIO:  Yes, your Honor..  FN10. THE COURT:  This was originally down for a motion to withdraw appearance.   Mr. Moore stated on the record that he was willing to work with Mr. Minella's office.   I did send in Attorney Attanasio to discuss this.   And, gentlemen, without revealing the substance, were you able to communicate with each other what needed to be done or what he was looking for the possible trial.MR. ATTANASIO:  Yes, we were, your Honor.THE COURT:  All right.   And do you believe, again, Mr. Attanasio—and I know obviously the situation will continue to unfold, that you would be able to comply with Mr. Moore's concerns in representing him in the defense.MR. ATTANASIO:  Yes, your Honor.

FN11. The record does not reflect exactly when this motion was filed..  FN11. The record does not reflect exactly when this motion was filed.

FN12. Exhibit 13, Transcript of State v. Jerome Moore, October 3, 2007.Petitioner's Exhibit 14, Transcript of State v. Jerome Moore, October 17, 2007.Petitioner's Exhibit 15, Transcript of State v. Jerome Moore, October 24, 2007;  andPetitioner's Exhibit 16, Transcript of State v. Jerome Moore, November 7, 2007..  FN12. Exhibit 13, Transcript of State v. Jerome Moore, October 3, 2007.Petitioner's Exhibit 14, Transcript of State v. Jerome Moore, October 17, 2007.Petitioner's Exhibit 15, Transcript of State v. Jerome Moore, October 24, 2007;  andPetitioner's Exhibit 16, Transcript of State v. Jerome Moore, November 7, 2007.

FN13. The transcripts of these two hearings on counsel's motions to withdraw also directly contradict counsel's argument before the trial court when he later attempted to withdraw on December 14, 2007 where he claimed, “Your honor, the relationship was broken down during the pretrial process to the extent where I would not be able to adequately represent him.   However, I was not let out of the case, and now it is beyond repair.”   (Petitioner's Exhibit 25, Transcript of State v. Jerome Moore, December 14, 2007, pp. 6.).  FN13. The transcripts of these two hearings on counsel's motions to withdraw also directly contradict counsel's argument before the trial court when he later attempted to withdraw on December 14, 2007 where he claimed, “Your honor, the relationship was broken down during the pretrial process to the extent where I would not be able to adequately represent him.   However, I was not let out of the case, and now it is beyond repair.”   (Petitioner's Exhibit 25, Transcript of State v. Jerome Moore, December 14, 2007, pp. 6.)

FN14. Counsel had obtained pretrial offers during the course of the case that were more than reasonable under the circumstances, and advised the petitioner to accept them, but the petitioner refused and insisted on going to trial, despite the fact that the State possessed a signed statement he had given to the police not only confessing to possession of the drugs in question, but also explicitly exonerating his girlfriend, the only other person who lived in the one-room apartment where the drugs were found..  FN14. Counsel had obtained pretrial offers during the course of the case that were more than reasonable under the circumstances, and advised the petitioner to accept them, but the petitioner refused and insisted on going to trial, despite the fact that the State possessed a signed statement he had given to the police not only confessing to possession of the drugs in question, but also explicitly exonerating his girlfriend, the only other person who lived in the one-room apartment where the drugs were found.

Newson, John M., J.