Daniel Diaz v. Warden (2012)

MEMORANDUM OF DECISION

THE COURT:  Again, as the Court indicated, I've taken the chance to review and look over the evidence, some of the relevant exhibits, and the Court is prepared to enter its ruling.

This is a claim of ineffective assistance where the petitioner has had a prior habeas, and as correctly stated during arguments by the respondent's counsel, in order to prevail on a claim of ineffective assistance against a prior habeas counsel, the petitioner needs to prove not only the two prongs of Strickland v. Washington against prior habeas counsel but also needs to prove the two prongs of ineffectiveness against the prior counsel of record.

And here, there was a prior habeas that made claims against both appellate counsel and trial counsel;  so in order for the petitioner to prevail on either prong, he needs to prove ineffectiveness against his prior habeas counsel and prove ineffectiveness against either his prior appellate counsel or his prior trial counsel to win on—for lack of a better word—on either prong of his attack.

If he fails to prove ineffectiveness against either attorney in line, his claim fails.   If he fails to prove either of the two prongs of ineffectiveness under the Strickland v. Washington standard against either attorney at either level, his claim fails.

And as we know, the claim of ineffectiveness, the petitioner is required to prove both that his attorney's performance was constitutionally deficient and that there was prejudice;  and the prejudice prong means that there is some showing that but for counsel's unconstitutional error—unconstitutionally—I'm sorry.

But for counsel's constitutionally deficient performance, the result likely would have been different or better or more in favor of the petitioner.

And so I'll address each of the petitioner's claims directly.   As to Claim 11(a), he claims that his prior habeas counsel was ineffective for failing to prove that his trial—criminal trial counsel was ineffective for not having the substance identified as drugs and testified to as drugs at his trial retested.

In a habeas matter, it is—if the petitioner makes a claim that there has been either a failure to present evidence or a failure to conduct an investigation, it is the petitioner's burden to present that additional evidence or that additional thing that could have been located by way of investigation.

Here, that would require the petitioner to prove or to present some competent evidence that the substance entered at trial was, in fact, not drugs in order to prove his claim against either—in order to prove his claim against either counsel.

The petitioner has failed to present any evidence whatsoever that would lead any competent fact finder to find that the substance entered at trial was anything but drugs.   And in fact, the evidence shows that not only was there a field test, but there was a lab test that was testified to;  and therefore, presumptively, the substance is what it was alleged to be, which was drugs.

So as to either counsel, either habeas counsel or criminal trial counsel, the Court finds that the petitioner has failed to meet his burden of showing that either counsel was ineffective, nor has he shown that he was prejudiced in any way by either counsel's performance;  and so Claim 11(a) is dismissed.

As to Claim 11(b), the petitioner claims that habeas counsel was ineffective for not proving that trial counsel was ineffective—oh;  I see.   Habeas counsel was ineffective for failing to prove criminal trial counsel's ineffectiveness in not requesting a continuance so that the testimony of Mr. Michael Rosado could be presented and also for habeas counsel failing to request a continuance or a capias for Mr. Rosado—even though he was under subpoena—to testify at the habeas trial and didn't show up.

As to the issues with trial counsel, again, if the petitioner claims that there is a witness who should have been presented by trial counsel, it is his burden to present that witness, to present the testimony of what that witness would have presented, and failing to do so was fatal to the claim.

Mr. Rosado was not here and was not presented to testify, so that fact alone as to the claims against criminal trial counsel and habeas counsel is fatal to this claim.

Additionally, on alternative grounds, trial counsel testified competently and coherently as to the efforts he made to try to locate Mr. Rosado and that he was unable to represent—to locate him.   And the Court credits that testimony.

And in fact, the petitioner agreed with the testimony and indicated that he consulted with his attorney on this issue and agreed at trial that no further efforts needed to be made and that they would continue with the trial without the—with the criminal trial without requesting a continuance to make further efforts to locate Mr. Rosado.

So on all of those grounds, I also find that the petitioner has failed to prove that his criminal trial counsel, Attorney Aleil's, performance was in any way deficient.   As to habeas counsel, again, he has not—the petitioner has not presented any testimony from Mr. Rosado, and therefore, that claim is also dismissed.

As to Claim 11(c), petitioner claims that habeas counsel failed to adequately question Attorney Aleil as to why, despite the petitioner's unwillingness, Aleil didn't request a continuance from the Court to locate Mr. Rosado.

Again, that's a similar—similarly phrased but almost identical to the prior issue.   It deals with trial counsel, Aleil—criminal trial counsel's alleged failure to call Mr. Rosado to the stand.

Again, A, the Court—Mr.   Rosado was not presented here to testify, so that's fatal to that claim as a matter of law;  but in any event, as the Court has already found, Attorney Aleil testified—and the court credits—that he made significant efforts to locate the witness.

He was unfindable, and finally, Mr. Rosado [sic] admitted during his own testimony that he agreed with his attorney and actually consented to continuing with the criminal trial without making further efforts to locate Mr. Rosado.

So again, for all of those reasons, he has failed to show deficient performance, and he has also failed to show prejudice;  and that actually goes to (b) and (c).  And again—so Count 11(c) or Claim 11(c) is denied.

Again, Claim 12(a) was withdrawn by the petitioner during trial, so the Court will not address that.

As to Claim 13, again, that's the claim that habeas trial counsel was ineffective for failing to prove that trial—the criminal trial appellate counsel, Attorney Cone, was ineffective.

And frankly, there was no evidence presented whatsoever as to anything to do with Attorney Cone at this trial.   There was no evidence as to how he was ineffective.   There was no evidence presented as to what standards he should have met, what claims he should have presented, what claims—or how he failed to present the claims.

There's just merely no evidence from which a competent fact finder could find that there's any reason to believe that if he had done something, the result on appeal would have been different.   And again, it's the petitioner's burden not just to raise claims but to present some competent evidence before the Court from which the Court can find and relate.

And even if there's somewhat of a legal issue, the facts underlying those issues such as there's a presumption that when counsel, including appellate counsel, makes decisions to do or not to do something, they are presumed to have done those with good strategic decisions in mind.

And absent at least some modicum of proof, the petitioner can't overcome that presumption merely by saying he didn't do anything.   And again, here, there's been no evidence presented at all on this issue.

I think, if I remember correctly, other than the petitioner's claims or statements, no;  he didn't present this issue.   And so as to Claim 13, the Court is going to deny that, again, for lack of evidence.

As to Claims 14(a) and (b), a general claim that habeas trial counsel was ineffective for failing to, A, thoroughly investigate on his own all pertinent aspects surrounding the circumstances of the crimes the petitioner was convicted of, and B, to locate and interview and call witnesses to testify.

Again, generally, that's a claim of failure to present witnesses or failure to present evidence, and it is the petitioner's burden in order to prove that claim to present that evidence or those witnesses that the attorney allegedly failed to locate or failed to present.

None of that has been presented here;  and therefore, it is fatal to those claims, and they are denied.

I believe that represents all of them.   So for those reasons, the Court finds that the petitioner has failed to prove ineffectiveness, meaning deficient performance against any of his counsel, that being Attorney Aleil, Attorney Cone, or Attorney Barton.

He has also failed—and the Court specifically finds he's also failed to prove or find any prejudice by any conduct engaged in by Attorney Barton or Attorney Aleil.   And as to Attorney Cone, as the Court indicated, there simply is no evidence whatsoever on that issue.

And so for those reasons, the writ—the petition for writ of habeas corpus is denied.   The record will reflect the petitioner has been given notice of his rights to appeal.

If there is going to be an appeal, counsel will prepare and submit a judgment file to the Court within thirty days.

And the Court will order a transcript of his comment—of my comments from this portion of the hearing, which will stand as the Court's memorandum of decision in this matter.

John M. Newson, Superior Court Judge

Newson, John M., J.