Leonard R. Talton v. The Warden, State Prison (2013)

DECISION

RULING

During the recess the court has taken the opportunity to consider, obviously, applicable case law, the evidence, reviewed the exhibits and the arguments of the parties and the court at this time is prepared to issue its ruling.

The petitioner makes two separate claims:  First, he brings a claim of ineffective assistance against appellate counsel.

And again, the standard here or the claim here in count one is that appellate counsel failed to do certain things in order to be able to raise a claim and all the claims relate to the presence or positioning of the corrections officers during the trial.

And the court notes with the exception of the—Exhibit 1, which, frankly, merely references the fact that there are corrections officers, and I quote the language used by Attorney Hopkins is:  “Coming in and out of the courtroom,” despite the petitioner's testimony that he claims they were sitting directly behind him.   The petitioner has failed to meet his burden of proof.

Effectively what the petitioner claims is that appellate counsel failed to properly do his job to raise an issue.   However, he has presented no evidence whatsoever here.   Although, a petitioner is not required to call appellate counsel here to testify, the court does note, however, that all counsel in a habeas proceeding come to this court with the presumption that they have provided constitutionally sufficient representation and it is the petitioner's burden to overcome that presumption.   The mere absence of a claim on appeal in and of itself proves absolutely nothing, and other than the fact that it wasn't brought forward, this claim regarding the positioning of the corrections officers or the appellate counsel's failure to properly seek to rectify that record, there really is no evidence that's been presented before this court that would lead this court to make any finding that there was any prejudice or any deficient performance.   There's no proof that here that appellate counsel could have even “rectified” the record or gotten these things placed on the record.   This is—it sounds like at least from the evidence that was presented to this court, this was information that was never, in fact, placed on the record.

Where one thinks of rectification, again, it's mostly things that are either—were placed on the record and were incorrect;  things that the court failed to rule on, although they were placed before the court;  such as, a motion where maybe the court rules on three of the issues raised and forgets to do the fourth and things of that sort.

Here, we're talking about events, at least from the limited evidence that was presented before the court, that were possibly never addressed on the record other than this conversation where Attorney Hopkins mentions there are COs coming in and out of the courtroom.

So, again, I don't feel that—or I don't—based on what the court has before, the petitioner has failed to meet his burden of proof to show that appellate counsel's performance was in any way deficient or that he was in anyway prejudiced because he has failed to show—frankly, he's failed to show by any reasonable basis that appellate counsel could have gotten this done and he's failed to show what, if anything, would have been the result of this information, had it come forward:  Would it have changed appeal at all, and that is also his burden, and the petitioner has failed to present any evidence that would support either a finding of prejudice or deficient performance.

And that goes to all three claims regarding appellate counsel, which although slightly differently worded, all relate to the same issue of his failure to properly present or to prepare the record so that the issue regarding the corrections officers in the courtroom could be presented on appeal.

As to the second count, which is an ineffective assistance claim against prior habeas counsel, Attorney Desantis.   And again, the law is clear is that not only does the petitioner have to prove—

Sir, you can sit down.   When I'm done, then you can have a chance to address the court.

Not only in a claim of ineffective assistance against habeas counsel does the petitioner have to prove in order to prevail that habeas counsel was ineffective, he also must prove by necessity that trial counsel was ineffective in order to prevail.   And by that I mean the claim of ineffectiveness, the prejudice prong is effectively that if habeas counsel had done his or her job, I would have prevailed, and that means I would have been able to prove that my trial counsel was, in fact, ineffective.   And so in order to prevail on count two, the petitioner must prove that both Attorney Desantis and Attorney Hopkins were ineffective.   And in this case the petitioner has failed to prove either—that either counsel was ineffective as to any of the claims presented.

And I note that with regards to Claim A, that trial counsel did not conduct a probable cause hearing competently.

Claim B, trial counsel did not move to have Judge Devlin recuse himself for bias.

C, trial counsel failed to adequately cross-examine concerning witness Grear's statements to police.

D, trial counsel failed to effectively and competently handle all aspects of the direct and cross examination of Grear.   With respect to all of those, the petitioner failed to present any evidence to support their claim and so the court deems those matters to be—have been abandoned and renders judgment on those—dismisses them and renders judgment on those claims for the respondent.

As to Claim E, that trial counsel failed to object to the introduction of prejudicial gang related evidence.   First, the court finds that the court does not believe it even has the authority to rule on this matter, as the issue of this introduction of gang related evidence was dealt with on appeal.   There's—issue was somewhat addressed and so the law is that an issue that has been dealt with on direct appeal may not be raised as a habeas matter even if that is an improper ruling.

Again, as to that with regards to the habeas case here, the petitioner has failed to present any evidence to support his claim, which is his obligation, and so I would alternatively find that if my first ruling is inappropriate, that he—again, failing to present any evidence, I find that he has failed to establish his claim.   I dismiss that and—a claim as abandoned and render judgment in favor of the respondent.

As to Claim F, again, a claim that trial counsel failed to object and move for a mistrial concerning the prosecution's—informing the jury that the petitioner and his brother were both incarcerated.

Again, there was no proof—no evidence relating to that subject presented here before the court, and so the court rules on those, as it has with A through E, and judgment is rendered in favor of the respondent on Claim F, also.

The only remaining claims, there are G and H, which—although there are two separate claims, it looks like they are just merely copies;  they're identical to each other.

And again, this relates to trial counsel's alleged failure to object to the corrections officers in the courtroom and their presence and that habeas counsel effectively failed to prove that trial counsel was ineffective for dealing with this issue.

And again, the minimal evidence that was presented here was the petitioner's claim that there were corrections officers sitting behind me.

I note, however, with regards to the transcript, the limited transcript that was presented, Attorney Hopkins indicates, not that corrections officers are sitting behind and on top of the petitioner, but that they are coming in and out of the courtroom, which is significantly different.

And so, again, based on that evidence I find that the—and I note for the record, although the petitioner claims that this issue was dealt with at least once before, that he raised the issue himself, I find it somewhat interesting that the transcript of whatever that interaction was with the court, was not presented here.

But again, that aside, the evidence fails to establish at this point that there was any constitutional or rights violation based on the mere presence of the corrections officers in court;  therefore, fails to establish that either trial counsel was defective in his performance for failing to more vigorously address the issue, and also fails to establish that habeas counsel was deficient in his basis, and in fact, habeas counsel indicated that he remembers the matter and believes that he must not have raised it because after reviewing it, he believed it not to be a viable issue.

And I also find as to both habeas counsel and trial counsel the petitioner has failed to prove that either—that he was prejudiced by eithers conduct with regards to this issue, and so any one of those findings will be enough to deny this claim, and so as to all claims made by the petitioner the court finds that he has failed to meet the burden of proof.

The petition is denied.

Court renders judgment in favor of the Respondent.

The record will reflect that the court will order the clerk to provide the petitioner with a copy of a notice of rights to appeal, which she is now doing.

Court will order that, if there is going to be an appeal, counsel shall prepare and submit a judgment file to the clerk within thirty days.

Any and all other appellate paperwork and notices must be filed within the time frames required by Practice Book and statutory rule.

I will order a transcript of my comments from this portion of the hearing to prepared for my signature and that will stand in lieu of a written memorandum of decision.

Newson, J.

THE COURT:  Mr. Talton, you indicated you wanted to say something, sir.

THE PETITIONER:  Yes.

I just want the record to reflect, I realize that your hands are tied, but I just want the record to reflect the fact that from attorney—from attorney to attorney, with the exception of Ms. Coffin, who actually really tried to do something about my case, I've been blocked on my—on my real issues by all of my attorneys and I realize that you're going to make that judgment due to the fact that you have no other alternative.

All I—all I really tried to do from the beginning of my case is seek justice.   The state have blocked me on every end for me trying to seek justice, and I just feel like it's a shaft;  feel like I had one day in court, when I went to trial, which lasted maybe about an hour.   There's no evidence presented and it's a shame that I wasn't even—no type of offer, nothing made to me, and even though I was charged with—I was charged with this day in America shouldn't be where a man doesn't get his constitutional right for his day in court.   And I just think that that's shame and it shouldn't be—shouldn't be about color.   It should be about justice and certainly justice correctly and everybody afforded the opportunity and their constitutional right regards of what somebody may think they did or they didn't and that's all I want to say, Your Honor, and I know that your hands are tied in this position and—I appreciate that.

I know that you rendered the right judgment because there was nothing you could do.

Thank you.

THE COURT:  Anything else from anyone?

ATTY. MACIULEWSKI:  No, Your Honor.

THE COURT:  All right.   Stand adjourned in this courtroom until 10 a.m. tomorrow morning.

(End of excerpt as ordered.)

(The hearing concluded and court was adjourned.)

Newson, John M., J.