201077 v. Warden, State Prison (2012)

MEMORANDUM OF DECISION

The petitioner, Alison Barlow, in this his third habeas corpus case, seeks to have his sentences for attempted murder, conspiracy to commit murder, two counts of first degree assault, and alteration of a serial marker vacated based on claims of ineffective assistance of his original criminal defense counsel, now Judge Sheridan Moore, and one of his former habeas counsel, Attorney Christopher Neary.   The petitioner received a total, effective sentence of thirty-five years incarceration, and his convictions were affirmed on direct appeal.  State v. Barlow, 70 Conn.App. 232 (2002), cert. denied, 261 Conn 929 (2002).   Two previous habeas cases arising from this criminal case were denied on March 23, 2006, and December 7, 2009, by Judge Fuger and Judge Nazzaro, respectively.

In his first habeas petition, filed in July 2004, the petitioner acting pro se, alleged that Moore rendered ineffective assistance in ways substantially similar to the allegations against her in the present case.   These allegations include Moore's failure to advise the petitioner that a judicially indicated plea offer by Judge Damiani was a one-time offer of short duration;  her failure to communicate with the petitioner and keep him informed about his criminal case on a regular basis;  and her failure to explain to him the strengths and weaknesses of the state's case and his defense, see Barlow v. Warden, Superior Court, Tolland J.D., d.n. CV 04–4000036.   This pro se petition was amended by appointed habeas counsel, Attorney Peter Tsimbidaros, and the amended petition deleted the claims of ineffective assistance of Moore.   Judge Fuger denied the amended petition after trial based on procedural default grounds, Barlow v. Warden, Superior Court, Tolland J.D., d.n. CV 04–4000036 (March 23, 2006).

Shortly, thereafter, on April 24, 2006, the petitioner filed a second habeas petition in which he again, pro se, asserted the same claims of ineffective assistance against Moore.   He also alleged that his first habeas counsel, Attorney Tsimbidaros, provided ineffective assistance by removing the ineffectiveness claims, which the petitioner had included in his original habeas petition, after the petitioner had urged Tsimbidaros not to do so.

Attorney Neary was appointed to represent the petitioner in this second habeas case.   After consulting with the petitioner, on July 1, 2009, Attorney Neary filed an amended petition which, once again, deleted the allegations of ineffective assistance against Moore, and, instead, asserted ineffectiveness claims against appellate counsel and previous habeas counsel.   The claims against habeas counsel were later withdrawn at the second habeas trial.   Judge Nazzaro denied the second habeas case, Barlow v. Warden, Superior Court, Tolland J.D., dn.   CV 06–4001351 (September 24, 2009).   This decision was also affirmed on appeal, Barlow v. Commissioner, 131 Conn.App. 90 (2011), cert. denied, 302 Conn. 037 (2011).

On March 23, 2020, the petitioner filed the habeas petition which is the subject of this memorandum.   This third habeas petition again alleges ineffective assistance of Moore as well as second habeas counsel, Attorney Neary.

I.

A.

The litigation history related above raises the issue of whether the petitioner is barred from pursing claims of ineffective assistance against Judge Moore under the deliberate bypass rule.   Before the court conducts deliberate bypass analysis, the court must resolve the threshhold question of whether the deliberate bypass rule remains a viable part of habeas corpus jurisprudence in Connecticut.   If the doctrine is viable, the court must address that analysis first with respect to the first count of the third, amended petition because a deliberate bypass implicates the jurisdiction of the habeas court to afford relief.  Cajigas v. Warden, 179 Conn. 78, 81 (1979);  Galland v. Bronson, 204 Conn. 330, 333 (1987);  Smith v. Barbieri, 29 Conn.App. 817, 819 (1993), holding that the petition ought to have dismissed rather than denied for deliberate bypass, Id., 821.

B

The United States Supreme Court proclaimed the deliberate bypass doctrine applicable to collateral attacks in federal court on criminal convictions in the case of Fay v. Noia, 372 U.S. 391 (1963).   That case held that a federal habeas petitioner is barred from raising issues which the petitioner could have asserted on direct appeal unless the petitioner can prove that the inmate did not “deliberately bypass the orderly procedure of the state courts.”   Johnson v. Commissioner, 218 Conn. 408, 411 (1991).   Deliberate bypass is a rather narrow rule which only applies to cases of “intentional relinquishment or abandonment of a known right.”  Id., 411–12.   Action by counsel without knowledge and participation of the petitioner is insufficient to invoke the forfeiture of a habeas claim.  Id., 442.

Although not obligated to do so, the Connecticut Supreme Court adopted the deliberate bypass rule of Fay v. Noia, supra, in Vena v. Warden, 154 Conn. 363, 366–67 (1966).  “Unless such a procedure as that herein laid down is followed, the way is left open for any long-term prisoner deliberately to defer his habeas corpus action until the requisite evidence for a conviction has disappeared ․” Id. The petitioner bears the burden of alleging and proving the absence of deliberate bypass.  Id.

The United States Supreme Court later replaced the narrow forfeiture of deliberate bypass with the broader “cause and prejudice” standard announced in Wainwright v. Sykes, 433 U.S. 72 (1977).   Under Wainwright a habeas petitioner may waive the opportunity to raise an issue at the habeas level by failing to utilize procedures available to raise the issue at earlier proceedings, such as at trial or by direct appeal.  Johnson v. Commissioner, supra, 419–422.   Unlike the deliberate bypass rule, the cause and prejudice standard operates to bar even those claims of which the petitioner was ignorant unless that inaction was the result of good cause.  Id. The burden of alleging and proving procedural default is on the respondent, Practice Book 23–30(b), although, the ultimate burden to show good cause to excuse the default is on the petitioner.  Lewis v. Commissioner, 117 Conn.App. 120, 122, fn 1 (2009).

The Court in Johnson v. Commissioner, supra, expressly left open the question of whether the cause and prejudice standard would apply to the failure to raise an issue on appeal as well as defaults occurring at trial.  Id., 416–17.   The affirmative answer came in Jackson v. Commissioner, 227 Conn. 124, 132 (1993).

The query then becomes whether the cause and prejudice test entirely replaced the deliberate bypass rule or merely relegated its use to secondary consideration.   In most circumstances where the petitioner has neglected to raise an issue at an earlier proceeding, the cause and prejudice test will be dispositive whether the bypass was deliberate or not.   The doctrine of deliberate bypass takes its place on the back burner.   The language of both Johnson v. Commissioner, supra, and Jackson v. Commissioner, supra, militates against declaring the demise of the deliberate bypass test, however.

In Johnson, our Supreme Court observed that “[i]f deliberate bypass were the sole barrier to such review, it could seldom be invoked for a default at trial,” supra 417 (emphasis added).   This passage was quoted in Jackson v. Commissioner, supra, 133.   The use of the word “sole” implies that the older deliberate bypass consideration persists alongside the newer cause and prejudice standard;  that is deliberate bypass is another “barrier” for certain types of default but no longer the sole barrier.

Indeed, our Supreme Court expressly stated in both cases that “[i]n those rare instances in which a deliberate bypass is found, of course, habeas review would be barred for that reason alone, apart from the cause and prejudice standard.”   Johnson v. Commissioner, supra, 417;  Jackson v. Commissioner, supra, 133, (emphasis added).   Clearly, our Supreme Court intended that both doctrines may need to be evaluated depending on whether the failure to employ an available procedure to raise on issue was knowingly and intentionally abandoned or otherwise.

Although Justice Berdon in a number of dissenting/concurring opinions lauds the demise of the deliberate bypass doctrine, his characterization of the situation seems to ignore the express recognition of the vitality of the doctrine as stated in the quotes from Johnson and Jackson.   See e.g. Clarke v. Commissioner, 249 Conn. 350, 363 (1999).   In addition, appellate cases decided after the Johnson and Jackson decisions were rendered have discussed the deliberate bypass test.   Such mention of that doctrine would be unnecessary if the deliberate bypass rule were totally extinguished by the adoption of the cause and prejudice standard of Wainwright v. Sykes, supra.

In Simms v. Warden, 230 Conn. 608 (1994), one year after the Jackson decision was published, our Supreme Court observed that the habeas petition in the case before it lacked the essential allegation of an absence of deliberate bypass.  Id., 617.  “The petitioner's testimony that he asked his counsel to pursue the issue [of recusal] may be relevant to his claim of ineffective assistance of counsel, but it does not address the issue of deliberate bypass of the process of direct appeal or of cause and prejudice for failure to present such an issue in the direct appeal.”  Id. (Emphasis added.)

In 1997, the Appellate Court mentioned both deliberate bypass and cause and prejudice in the same sentence when discussing a federal court decision.   The Appellate Court noted the failure to address whether the habeas petitioner “had deliberately bypassed a direct appeal (the deliberate bypass rule) or whether he had established both a cause for his failure to raise a constitutional issue previously and a showing that he was prejudiced by the alleged constitutional violation (the cause and prejudice standard).”  State v. Connelly, 46 Conn.App. 486, 494 (1997).

After Jackson v. Commissioner, supra, was decided, the Appellate Court continued to apply the deliberate bypass rule concluding “that the petitioner did not satisfy the threshold question of proving that the habeas corpus action is not a deliberate bypass of a direct appeal and, therefore, the habeas court should not have heard the petition on its merits.”  Smth v. Barbieri, 29 Conn.App. 817, 821 (1993), (emphasis added).   The Appellate Court then remanded the case to the habeas court to convert the denial of the petition to a dismissal based on a breach of the deliberate bypass standard.  Id.

The Appellate Court also discussed the deliberate bypass test in Tyson v. Warden, 24 Conn.App. 729 (1991), a case decided after Johnson v. Commissioner, supra.  “[W]e note that as a general proposition a petitioner in a habeas corpus proceeding must allege and prove by a fair preponderance of the evidence in a habeas court that he did not deliberately bypass the exercise of his right to direct appeal.  Id., 732.

More recently, the Appellate Court remarked in a footnote that usually ineffective claims raised “for the first time in a petition for a writ of habeas corpus [will] not violate the deliberate bypass rule.”  Lorthe v. Commissioner, 103 Conn.App. 662, 697, fn 26 (2007).   Such a comment would have been superfluous if the deliberate bypass rule were defunct and of historical interest only.

This court concludes that the deliberate bypass rule and the cause and prejudice standard coexist.   It is evident that where the doctrines overlap, the cause and prejudice analysis of Wainwright v. Sykes, supra, will predominate because the broader applicability of that doctrine will subsume the need to consider deliberate bypass.   The cause and prejudice test embraces a much larger set of procedural omissions than the subset of intentional waiver cases to which the deliberate bypass rule is confined.   But to reiterate the observations of our Supreme Court in Johnson and Jackson, “in rare cases” the deliberate bypass rule will bar habeas review “apart from the cause and prejudice standard.”  Johnson v. Commissioner, supra, 417;  Jackson v. Commissioner, supra, 133.

C.

The court next addresses the issue of whether the deliberate bypass rule applies in the present case, in which the choice to delete claims occurred in a previous habeas action rather than on direct appeal.   In Valeriano v. Bronson, 209 Conn. 75 (1988), our Supreme Court held that the deliberate bypass rule applies to claims of ineffective assistance of counsel rather than the cause and prejudice standard.  Id., 83.   In footnote 7, the Court stated, “[W]e conclude only that the deliberate bypass test applies to ineffective assistance of appellate counsel claims even when the basis for the ineffectiveness is the omission of an issue on appeal.”  Id. Furthermore, “when a petitioner raises a claim of ineffective assistance of appellate counsel because his attorney did not raise an issue on direct appeal, the deliberate bypass standard should be utilized.”  Id., 85 (emphasis added).   The Appellate Court has stated that the later decision of Johnson v. Commissioner, supra, did not overturn this principle.  Ostolaza v. Warden, 26 Conn.App. 758, 773 (1992).

Our Supreme Court also held in Valeriano v. Bronson, supra, that because of the holding of State v. Leecan, 198 Conn. 517 (1986), which prohibits a criminal defendant from raising most claims of ineffective assistance of counsel through direct appeal, the deliberate bypass rule will be satisfied “automatically.”  Valeriano v. Bronson, supra, 85.   However, that automatic satisfaction only arose in a case where the petitioner raised that issue for the first time against trial counsel at a habeas hearing, see Lorthe v. Commissioner, supra, 697, fn 26.   The basis for automatic satisfaction of the deliberate bypass test announced in Valeriano v. Bronson, was that State v. Leecan, supra, disallowed a criminal defendant from raising such a claim by way of direct appeal.   In circumstances where the habeas petitioner in previous habeas trials intentionally withdraws an ineffective assistance claim, that basis is absent.   In other words, the habeas petitioner is allowed to raise the claim in a previous proceeding, and, if the petitioner knowingly and intentionally declines to pursue that claim, no automatic satisfaction of the deliberate bypass rule obtains.

In the present case, the petitioner, acting pro se, asserted ineffective assistance claims against his defense attorney, now Judge Moore, in two previous habeas cases.   Clearly, the petitioner was well aware of these allegations of ineffectiveness, and those earlier habeas cases afforded him the opportunity to litigate any such claims.   Thus, the petitioner cannot defend against the deliberate bypass rule on the ground of a lack of knowledge of the right to assert the claims of ineffective assistance against Moore.

However, the deliberate bypass test demands more.   Waiver of such a claim requires “an intentional relinquishment or abandonment ․ by the petitioner personally ․” Johnson v. Commissioner, supra, 411–12.   If habeas counsel made the decision to forego the claim, the deliberate bypass rule would bar such a claim only if the petitioner personally “participated” in the decision-making process.  Id.

The petitioner testified that Attorney Tsimbidaros amended his 2004 habeas petition and removed the ineffective assistance claims against Moore against the petitioner's wishes.   But the petitioner also acknowledged that, with respect to his second habeas case filed in 2006, he and Attorney Neary did discuss whether to pursue any ineffective assistance allegations against Moore.   These allegations are substantially similar to the ones the petitioner asserts in the present case.

Attorney Neary testified that before he filed the amended habeas petition which deleted the ineffective assistance count pertaining to Moore, he and the petitioner reviewed the petitioner's goals in the second habeas case.   He testified further that, after this review and a discussion of the available evidence as to these allegations, he recommended to the petitioner that they remove that claim from the case in preference for the stronger claim of ineffective assistance of appellate counsel for failing to raise jury instruction error on direct appeal, see State v. Barlow, supra.

After the conversations, the petitioner informed Neary that he did not want to pursue the ineffectiveness claims against Moore.   Based on this agreed-upon course of action, the allegations of ineffective assistance by Moore were dropped through the filing of an amended petition.

The court finds Attorney Neary's testimony credible and determines that the petitioner knowingly, voluntarily, and intentionally declined to have Neary pursue the allegations pertaining to Moore in the 2006 habeas case.   Consequently, the petitioner deliberately bypassed the opportunity to have these claims adjudicated in that second habeas action.

Our Supreme Court has ruled that habeas corpus cannot be used as an alternative to direct appeal.  Cajigas v. Warden, 179 Conn. 78, 81 (1979).   Nor should multiple, serialized habeas filings be countenanced when the petitioner has deliberately waived adjudication of issues in previous habeas actions.   The deliberate bypass standard serves two important functions, Valeriano v. Bronson, supra, 79;  viz., 1. to prevent deferral of the disposition of claims which could have been resolved in earlier proceedings;  and 2. to prevent piecemeal litigation.  Id. This, the petitioner's third habeas action in which he has asserted claims of ineffectiveness against Moore, is a blatant example of the procedural evils that the deliberate bypass rule was created to thwart.   The proper disposition of a violation of the deliberate bypass rule, which as noted above is jurisdictional, is dismissal of the first count of the amended petition.  Smith v. Barbieri, supra, 821.

II

The second count alleges that Attorney Neary rendered ineffective assistance by deleting the ineffective assistance claims against trial counsel, now Judge Moore, from the 2006 habeas petition;  by deleting claims of ineffective assistance of previous habeas counsel, Attorney Tsimbidaros, for doing the same thing in the 2004 habeas case.   Of course, the deliberate bypass analysis pertaining to the first count is inapplicable to the claims against Attorney Neary because this third habeas action is the first opportunity for the petitioner to litigate that claim.

Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims.  Johnson v. Commissioner, 218 Conn. 403, 425 (1991);  Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992).   The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different.  Id.

As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness.  Johnson v. Commissioner, supra.   This standard of reasonableness is measured by prevailing, professional norms.  Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation.  Id.

If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel's competence.  Pelletier v. Warden, 32 Conn.App. 38, 46 (1993).   In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different.  Levine v. Manson, 195 Conn. 636, 640 (1985).   Reasonable probability means a probability sufficient to undermine confidence in the verdict.  Daeira v. Commissioner, 107 Conn.App. 539, 542–43 (2008), cert. denied, 289 Conn. 911 (2008);  that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt.  Id.

It should be noted that the United States Supreme Court has recently sanctioned the use of habeas corpus to provide relief where an inmate contends that trial counsel provided deficient representation by failing to fulfill counsel's duty to communicate plea offers effectively to the client, which failure caused the client to reject the offer to the client's detriment.   Missouri v. Frye, U.S. (March 21, 2012);  Lafler v. Cooper, U.S. (March 21, 2012).

With respect to the claim that Attorney Neary and Attorney Tsimbidaros ought to have included counts of ineffective assistance pertaining to Moore, the petitioner argues in his post-trial brief that the evidence established that Moore failed to ensure that the petitioner had a meaningful chance to consider a plea offer;  that Moore failed to recommend to the petitioner that he accept the offer;  that Moore failed to explain the consequences of rejecting the offer;  that she failed to prepare adequately for trial;  and that Moore failed to inform the petitioner as to trial strategy.

As to the specifications of ineffectiveness regarding substandard trial preparation and communication with the petitioner as to trial strategy, the petitioner has failed to meet his burden of proving prejudice by a preponderance of the evidence.   The petitioner proffered no evidence that any unperformed act or any uncommunicated information, if performed or communicated to the petitioner, would have affected the outcome of the criminal trial in any degree.   No evidence was adduced that exculpatory evidence or testimony remained undiscovered or unutilized because of any inaction by Moore.   The petitioner merely lists the purported wrongs without evidence of harmful impact to his criminal case.   Therefore, the petitioner's claims of ineffectiveness of habeas counsel based on the ineffectiveness of trial counsel as to these allegations must also fail.

Regarding Moore's representation surrounding the petitioner's rejection of the plea offer, the court finds the following facts.   On January 13, 1997, then Attorney Moore was appointed as a special public defender to represent the petitioner who was facing charges in the Waterbury J.D. of attempted murder, assault first degree, and altering a serial marker on a pistol.   After several court appearances, negotiations with the prosecutor, and judicial pretrial discussions, on April 21, 1997, the prosecutor offered to recommend, after guilty pleas, a total, effective sentence of eighteen years incarceration, execution suspended after the service of fourteen years imprisonment.   However, Judge Damiani indicated that he was likely to impose a total, effective sentence of fourteen years, execution suspended after nine years.   The petitioner was willing to plead guilty but only if the unsuspended portion of imprisonment was reduced to six years.

Judge Damiani explained to the petitioner, on the record, that if his offer was rejected on that day, April 21, 1997, the case would be tried;  that the offer of a nine year unsuspended term would be withdrawn;  that if the petitioner later changed his mind and wished to plead guilty, the sentence to serve in prison would be greater than nine years;  and that, if convicted after a trial, the petitioner faced a maximum prison sentence of eighty-five years.   In response to the judge's explanation and inquiry petitioner declined the offer because he wanted to learn of the disposition of his co-defendant before changing his plea.   However, the prosecutor adamantly proclaimed that the petitioner's trial would precede that of any co-accused.   Judge Damiani concluded the interchange by stating that, with the petitioner's rejection of the offer, the “[n]ine years is gone.”

The petitioner now contends that Moore never explained to him that the nine-year offer was of limited duration.   The court finds this testimony unworthy of belief.   That testimony is contradicted by the testimony of Judge Moore and the transcript of the proceeding of April 21, 1997.

Despite Judge Damiani's admonition, the judge kept the offer open over a three-year period.   Moore repeatedly stressed to the petitioner that the nine-year offer was firm and that postponement of trial until a codefendant's case was concluded was highly unlikely.

The petitioner told Moore that he was not at the crime scene at the time of the drive-by shooting and that the codefendant's statements to the contrary were false.   The petitioner chose to have the jury decide his fate rather than accept the nine-year prison term.

The petitioner also asserts that Moore never discussed the strengths and weaknesses of his case with him.   However, Moore testified that she thoroughly reviewed the evidence and interviewed every witness that the petitioner identified as well as other witnesses.   She discussed the results of her efforts with the petitioner.   She pointed out to him the impact of the petitioner's previous history of felony and assault convictions on both the plea negotiations and the trial.   Shell casings found at the location of the drive-by shooting were analyzed by the state's forensics expert and determined to have been fired by a pistol seized from the petitioner's vehicle.

The defense presented at trial was that the weapon found in the petitioner's vehicle was accessible to others and that the petitioner was elsewhere at the time of the shooting.   Except for a coconspirator, no one identified the petitioner as one of the shooters.

Moore acknowledged that it was her practice never to recommend to a criminal defense client to accept or reject a plea offer.   She abstained from doing so to avoid later claims of a coerced plea.   In particular, she made no recommendation to the petitioner as to whether to accept or reject the nine-year offer.   The question arises as to whether a practice eschewing such a recommendation comports with effective representation.

There is no per se requirement obligating defense counsel to make such a recommendation.  Edwards v. Commissioner, 87 Conn.App. 517, 524–25 (2005);  Vasquez v. Commissioner, 123 Conn.App. 424, 437–40 (2010);  Purdy v. United States, 208 F.3d 41, 48 (2nd Cir.2000).  “Counsel's conclusion as to how best to advise a client in order to avoid, on the one hand, failing to give advice and, on the other, coercing a plea enjoys a wide range of reasonableness ․” Vazquez v. Commissioner, supra, 438.   The need for recommendation depends on “countless” factors, such as “the defendant's chances of prevailing at trial, the likely disparity in sentencing after a full trial as compared to a guilty plea, ․ whether [the] defendant has maintained his innocence, and the defendant's comprehension of the various factors that will inform [the] plea decision.  Id.

The court has found that Moore fully apprised the petitioner as to the terms of the plea offer, including its temporary nature, the strengths and weaknesses of the prosecution and defense cases, and the possible outcomes after trial.   As related above, Judge Damiani also explained to the petitioner this information.   The proof of the petitioner's guilt hinged on the believability of a coconspirator and circumstantial proof linking a weapon to the petitioner, that is, conviction was not a foregone conclusion.

The cases which have found defense counsel wanting for failure to recommend acceptance of a plea offer have typically involved hopeless cases where going to trial was “suicidal” and where the disparity between the plea offer and the potential sentence after trial was enormous.   See e.g., Borea v. Keane, 99 F.3d 492 (2nd Cir.1996).   The circumstances of the present case differ markedly from such a scenario.

Judge Moore, at the time of the petitioner's criminal case, had seventeen years of experience handling serious criminal matters as a special public defender and five and one-half years as a public defender for the Waterbury J.D. This experience entailed defending clients charged with murder and trying such cases to verdict.   No expert witness testified critically of Moore's representation of the petitioner.   To the contrary, Attorney Neary averred that he examined Moore's performance for the petitioner's defense and found no basis for such an ineffective assistance claim against her.

The court determines that the petitioner has failed to prove that Moore was deficient in any of the ways alleged surrounding the petitioner's rejection of the nine-year plea offer.   As a result, the petitioner has also failed to meet his burden of establishing that Attorney Neary or Attorney Tsimbidaros rendered ineffective assistance by withdrawing the claims against Moore through amended petitions.   The habeas corpus petition is denied as to the second count.

In sum, the petition is dismissed as to the first count and denied as to the second count.

Sferrazza, S.J.

Sferrazza, Samuel J., S.J.