Luis Rojas v. Warden (2012)

MEMORANDUM OF DECISION

THE COURT:  During the recess, the Court has taken the opportunity to review the exhibits.   I've also actually had the opportunity to consider the testimony that was presented, as well as reviewing my own notes on the testimony that was presented.

It's a claim of ineffective assistance against counsel, and as all are aware, the seminal case on that is the Strickland v. Washington standard, where the petitioner is required to prove two things in order to prevail on an ineffectiveness claim.

One, that counsel's performance was deficient in that it fell below that of a reasonably competent defense attorney under the circumstances;  and two, the petitioner must also prove that the particular conduct of counsel somehow prejudiced him, meaning that but for counsel's conduct, there's a likelihood that the result would have been different or better, in favor of the petitioner.

Again, in considering this matter and the testimony of all the parties here, the Court will find with regard to Attorney Cohen's performance, at least with respect to his own admission here that he failed to conduct any independent investigation in this matter—that means failed to contact any independent witnesses, failed to make an effort, I think, with the exception of Ms. Ortiz.

And it wasn't clear, frankly, from the Court's understanding of his testimony whether he simply presumed Ms. Ortiz was not going to talk with him or that he made an actual effort to contact her and she refused;  but even giving him the benefit of the doubt, his admission that he wholly failed to make any effort to contact any of the witnesses in this case is ineffective.   A failure to investigate by counsel is ineffective.

Counsel's job is not simply to rely on the papers and the documents that he or she are provided but to perform their own independent investigation into the facts and circumstances in the case.

Other than that, the Court would find, frankly, that Attorney Cohen's performance in this matter was that of a competent attorney.

There were difficulties in the relationship.   The Court finds factually—and this is supported wholly throughout the record.   Not only did the Court review the transcripts, I also take judicial notice of the appellate decision in this matter.

Mr. Rojas was simply a difficult person who was unhappy with his representation, and the Court believes he did everything he could do to make things difficult, did not trust his attorney, did not want to hear his attorney's advice.   And that in and of itself is not deficient performance if an attorney is attempting to provide his client with advice and the client simply refuses to accept it or believes he is, quote/unquote, smarter than the attorney.

And here, Mr. Rojas—and it's all over the transcripts—is insisting that counsel file pretrial motions, that counsel file discovery motions.   The Court tries to explain to him that that's not necessary.   The attorney tries to explain to him that that's not necessary.

So this is clearly a case where the petitioner wanted to run the legal part of the case and simply believed that he knew better than the attorney as to what was supposed to be done;  and it's made clear to him, there's an open file policy, so there's no need for pretrial motions.

And so again, the mere fact that Mr. Rojas did not like the information he was getting from counsel and refused to accept that information does not make counsel's efforts to communicate with him deficient.

I will review for purposes of detail the claims in the petition.   There's a single claim of ineffectiveness, and they are broken down into several subchapters.   In Subparagraph A, it's a claim that counsel failed to attend certain pretrial conferences from August through October, and there's claims that in various ways, that supposedly prejudiced the petitioner.

One, the Court does not find that Attorney Cohen's failure to attend these pretrial conferences was in any way deficient, and in fact, reviewing the record, as it says, I think he admitted that he was not at one of them or maybe two of them.

But reviewing the record, it's frankly not clear whether or not he was not at the pretrial conference or he simply was not present when the case was called on the record, which are two very different things.   And I think his testimony was they pre-try the cases in Part A in the bunker, and then some may or may not be called on the record.

However, even if there could be a showing that that somehow was deficient, there has been no proof here as to how those things actually prejudiced Mr. Rojas.   Merely claiming that there was a delay in talking to him, there was a delay in trying to go see witnesses, there was a delay in him being able to review his police reports is not enough.

It's the petitioner's burden to present the actual evidence or the actual things that counsel caused to be affected, such as he should have found Witness A and to present the testimony of Witness A or other such things;  and none of that was presented here.

And so as to the sub-claims under Paragraph A, there's A through (vi)—well, I'll start with (i) through (iv).   Specifically, there's no evidence as to how Mr. Rojas was prejudiced at all by the delay as to Claims A(i) through (iv).

Claim (v) claims that counsel failed to participate in pretrial discussions and diminished the petitioner's ability for a more favorable plea agreement.   It's clear from the record.   It's clear from the transcripts.   It was clear from Mr. Rojas' testimony and demeanor here today;  he was not interested at the beginning, middle, or end of his case of considering any pretrial offers.

He wanted a trial.   He insisted he was innocent, and under those circumstances, the law is that there's absolutely no duty of counsel to seek a pretrial offer when the client makes it clear that he or she is not interested.   And Mr. Rojas made that one-hundred percent perfectly clear, not only to Mr. Cohen in private;  he made it clear on the record to the Court and here today.

He was not at any point in time—and I know counsel's argument, well, that was before he got the information.   That's not what the evidence here is.   And he did not equivocate at all in his testimony here today that he wanted a trial, and he wasn't interested in taking any offers at any point.

As to Claim (vi), again, the claim that he failed to communicate with the petitioner in a timely manner about his defense strategy, the operative term in there being timely.   But again, there's been no proof as to prejudice or how that time delay, in fact, affected the defense other than the hypothesis of he could have found witnesses or he could have investigated alternative theories.

As to Sub-claim B, claims that counsel failed to provide the petitioner with a copy of the police reports.   And again, Attorney Cohen testified, in his best memory, he's got a letter that says he sent that information to the petitioner on or about October 11.   There may have been some ongoing discovery, but as far as he believed, he sent it to the petitioner at that time.

Again, even if it was later, even if it was in January—as I believe the petitioner made claim—there has been no showing about how that late disclosure of that evidence to him—even if I assume the petitioner's argument—prejudiced him in his ability to come up with a defense to these charges.

And I note, for the record, in reviewing the evidence and the statements, there's not only the victim but an individual on the street who chased the individuals coming out of the apartment down the street who both identified the petitioner.   The individual on the street not only identifies him by his street name but then gives the police his real name, and that's how they identified him.

So forgetting about the timeliness of the—of the disclosure of evidence, there's a substantially strong case against the petitioner in that he goes by a particular street name, which he was pretty adamant about, and that's Capone.   The victim knows him as Capone and identified him in court.

And just as importantly, an individual who tried to chase the perpetrators down the street when the victim yelled he was robbed identified the petitioner as one of the three individuals running away from the apartment.

And also, to digress, to address the evidence with this Gladys [sic] Ortiz statement and this discrepancy between the B and the Balumba;  again, admittedly, the statement is not clear, and one could make—a good defense attorney could make some hay about it.

I think what's more important is she clearly talks about a Balumba and a Capone as the individuals who got back into the car after the incident occurred, and she clearly talks about three individuals getting into the car—running to her and getting into the car.   So at worst, she confirms the victim's testimony that there were three people in the apartment.   She confirms the good Samaritan on the street's testimony that there was three people running down the street.

And so one could easily also say that she's actually talking about two individuals.   But again, I'm not saying counsel could make hay over it, but again, strong evidence, at a minimum, that corroborates the petitioner's involvement in the crime.

As to Sub-claim C, the petitioner's claim is that counsel failed to properly cross-examine and impeach the credibility of witnesses.   It is the petitioner's burden if they claim that there's been a failure to present certain witnesses or certain evidence regarding witnesses or testimony from witnesses to present those witnesses before the habeas Court and to present the evidence that should have been presented at trial for the habeas Court's consideration.

Failure to do that is fatal to the claim, and as none of these supposed witnesses were presented here to testify or to be cross-examined about their prior criminal histories, felony records, pending charges, or any deals that may have been pending with the state, the petitioner has failed to meet his burden.   It's fatal to his claim, and that claim is dismissed.

As to Sub-claim D, again, that the petitioner— that counsel failed to properly and effectively investigate the evidence against petitioner;  again, the Court has found that Attorney Cohen failed to conduct any independent investigation, which is in itself deficient, and that's by his own admission.   That's deficient performance.   However, the petitioner has failed to present any actual evidence as to how that prejudiced him.

The one claim I want to specifically address under D is that the petitioner claims that counsel failed to communicate with the petitioner properly.   I find that factually unproven.   I believe counsel made efforts to communicate with the petitioner.   Simply that the petitioner just did not want to hear—and states of his own words, he doesn't trust him, and he didn't think he was working for him.   And I think that's different from counsel not making an effort, although counsel did admit, at times, he found it difficult.

As to claim—Sub-claim (ii), a claim that counsel failed to attend the photo array.   The issue with that here is there wasn't actually any evidence presented that Attorney Cohen was notified that the photo array was going to be taken care of;  and reading the witness' testimony, at least it was his claim—and he showed up in court the morning of his testimony, and they gave him a photo array to look at.

But again, even if, the question is or the issue is, even if it was deficient for him to have known about that and not to have shown up, there's been no showing of prejudice.

The victim got on the stand.   The victim identified the petitioner on the stand, and Attorney Cohen vigorously cross-examined the victim about the fact that when he looked at the photo array, he apparently was unable to identify the petitioner;  and so even if Attorney Cohen had—even by failing to show up at the photo array, he appropriately used the fact that the victim, at least in looking at the photo array, was not able to identify the petitioner.   And so there's no deficiency and no prejudice, either, in that matter.

Again, Claims (iii) and (iv) are failures to investigate and call witnesses and failure to use inconsistent statements by those witnesses.   Again, as stated before, it's the petitioner's burden to present those witnesses or present that evidence that they claim counsel failed to present at trial.   As none of that information has been presented here, it is fatal to those claims;  and that's (iii) and (iv) under Subsection D.

As to claim—Subsection E, it's a claim that counsel failed to properly and effectively file pretrial motions.   Subsection (i) is that he failed to file a Franks motion.   A Franks claim is a claim that there are either substantial misrepresentations in a warrant or that there is information that is so inaccurate that if that information were removed that it would remove the probable cause for the arrest from the warrant.

Here, the only claim related to the warrant is a claim that there's this—that the officer, of his own volition, added that Ms. Ortiz had indicated that B meant Balumba, and there may have been some cross-references.

Even if you take that out, in the warrant is the identification of the petitioner by his nickname—by the victim—of Capone, and then the identification of Capone running down the street by the witness, and Joshue—I want to say Santiago, but that may be incorrect—who knows him, identifies him to the police and gives the police his real name as Luis Rojas.

So even if you removed everything that Gladys Ortiz—not Gladys;  I'm sorry—but Ms. Ortiz said in the warrant, you've still got probable cause because you've got the victim identifying him by his known street name, and you've got an individual who identifies him as one of the people he saw running away from the scene.   So there was no deficiency in counsel failing to file a Franks motion, and the petitioner was not otherwise prejudiced.

As to the claim that counsel failed to file timely motions for disclosure and et cetera, again, based on the testimony, there was no deficiency in that matter.   Hartford State's Attorney's Office has an open-file policy.   They do not require counsel to file discovery motions, and counsel's testimony was that the open-file policy is, whatever we have, you're entitled to look in our file.

And more importantly, even if there was some deficiency, the petitioner has failed to prove how not filing these motions in any way prejudiced him in preparation for trial or at trial.

And Claim F, that counsel failed to provide effective representation by, again, calling witnesses, impeaching witnesses, failing to pursue any effective theory of defense, failed to offer evidence of prior inconsistent statements;  again, it's the petitioner's burden to present that evidence or those theories.

And again, the petitioner testified himself on the stand.   There was not one iota of evidence as to his claim, I wasn't there;  I didn't do it.   They misidentified me.   He himself had an opportunity to testify here and never once offered, I had an alibi.

I was somewhere else.   I was with my girlfriend.   I was with my mother.   Nothing.

And so specifically as to that—and that's Sub-claim (iii), that counsel failed to pursue an effective theory of defense—most importantly, the petitioner here had an opportunity to testify and offered nothing as to what he believed his theory of defense was, and again, nor was there any offer from the petitioner as to any of the other claims under F. And no evidence having been presented, it's fatal to those claims, and they are dismissed.

Finally, as to Sub-claim G, a claim that counsel was able to perform ineffectively because of his physical condition or medication;  again, there was no evidence presented on that subject whatsoever, and again, that claim is going to be deemed abandoned—dismissed as abandoned.

Again, so for all the reasons stated here, the Court denies the petition for writ of habeas corpus.

The record will reflect that the petitioner is going to be provided notice of his rights to appeal.

If he does desire to appeal, counsel shall prepare and submit a judgment file to the clerk within thirty days.

And I will order a copy of my comments from this portion of the trial, which will stand as the Court's memorandum of decision.

And I would note the footnote from the Appellate Court which I think is appropriate for this case, and that's Footnote 5, which indicates, a defendant is not entitled to demand a reassignment of counsel simply on the basis of a breakdown in communication which he himself induced.   Although the Constitution guarantees a defendant counsel that is effective, it does not guarantee counsel who the defendant will like.

I think that's most appropriate in this case.

And again, for all the reasons stated, the petition is denied and dismissed, and we'll stand adjourned until Tuesday at 10 a.m. in this court.

(The matter was concluded, and court was adjourned for the day.)

John M. Newson, Superior Court Judge

Newson, John M., J.