276570 v. Warden (2013)

MEMORANDUM OF DECISION

The petitioner, John Ruffin, brings this petition for a writ of habeas corpus claiming that both his trial attorney and his appellate counsel were ineffective.   The court held a hearing on the petition on May 6, 2013.   The court has considered the evidence and legal arguments of the parties, and finds the issues for the respondent and denies the petition.

The underlying case involved a shooting of a seven-year-old girl in Stamford, which resulted in the death of the victim.   The petitioner was charged with manslaughter in the first degree in violation of General Statutes § 53a–55(a)(3), conspiracy to commit murder in violation of General Statutes §§ 53a–54a(a) and 53a–48(a) and two counts of attempt to commit murder in violation of General Statutes §§ 53a–54a(a) and 53a–49(a).   On July 13, 1994, after a jury trial, the petitioner was found not guilty of manslaughter in the first degree, but guilty of conspiracy to commit murder and attempt to commit murder.   The petitioner was sentenced by the trial court to forty years imprisonment.   The petitioner appealed his conviction, which was transferred to the Supreme Court, where the conviction was affirmed.   See State v. Ruffin, 241 Conn. 502, 699 A.2d 872 (1997).   Attorney Philip Russell represented the petitioner at his criminal trial and on his direct appeal.

In his amended petition, the petitioner claims that Attorney Russell, as both his trial and appellate counsel, rendered ineffective assistance in numerous ways Specifically, he alleges that, as his trial counsel, Attorney Russell failed to:

(1) File appropriate pretrial motions;

(2) Fully investigate the facts and circumstances giving rise to the petitioner's arrest;

(3) Adequately apprise the petitioner of the strengths and weaknesses of possible defenses and mitigating factors that could be presented on his behalf so that he could make an informed decision regarding whether to accept any plea offers;

(4) Meaningfully explain to the petitioner all plea offers made;

(5) Explain the maximum and minimum sentences which could be imposed for each of the charged crimes;

(6) Explain the elements of each of the charged crimes;

(7) Adequately investigate all potential defenses and mitigating factors;

(8) Properly preserve issues for appeal;

(9) Adequately pursue pretrial negotiations;

(10) Pursue a motion for change of venue based on the quantity and prejudicial nature of the pretrial media coverage of the case;

(11) File appropriate motions in limine;

(12) Take adequate precautions to avoid the introduction of evidence the prejudicial nature of which outweighed its probative value;

(13) Exercise a peremptory challenge on a venire person who recognized the petitioner and expressed fear for her safety and that of her children based on prior contact of an abusive nature with the petitioner;

(14) Take appropriate steps to investigate and address alleged juror misconduct;

(15) Consult with and present the testimony of expert witnesses;

(16) Move to disqualify counsel for the co-defendant who had previously represented the petitioner;

(17) Present available witnesses and evidence in support of the petitioner's theory of defense and to impeach the testimony of the State's witnesses;

(18) Adequately investigate factual bases for impeaching the testimony of the State's witnesses;

(19) Ensure that the trial court's jury instructions were fair;

(20) Adequately advise the petitioner regarding the defense to be employed;

(21) Adequately object to statements introduced into evidence under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986);

(22) Effectively pursue proper posttrial motions including, but not limited to, a motion for new trial based upon possible juror misconduct;

(23) Present available witnesses to testify on behalf of the petitioner at sentencing;  and

(24) That he opened the door, allowing the introduction of evidence the prejudicial nature of which outweighed its probative value.

As his appellate counsel, the petitioner specifically alleges that Attorney Russell failed to:

(1) Raise all issues on appeal including, but not limited to, a pattern of prosecutorial misconduct;  and

(2) Properly brief all issues raised on appeal.

Count one—Claims of Ineffective Assistance of Trial Counsel

To establish a claim of ineffective assistance of trial counsel, the petitioner has the burden to establish that “(1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.”  (Emphasis in original.)  Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008);  Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  “To satisfy the performance prong, a claimant must demonstrate that ‘counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed ․ by the [s]ixth [a]mendment.’  “ Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom.  Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687.   It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action.   Rather, petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the “counsel” guaranteed by the sixth amendment and as a result, he was deprived of a fair trial.  Harris v. Commissioner of Correction, 107 Conn.App. 833, 845–46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008);  Giannotti v. Warden, 26 Conn.App. 125, 130, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992).

Under the second prong of the test, the prejudice prong, the petitioner must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.  Strickland v. Washington, supra, 466 U.S. 687;  Fernandez v. Commissioner of Correction, 291 Conn. 830, 835, 970 A.2d 721 (2009).

Ultimately, “[t]he 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.”  Strickland v. Washington, supra, 466 U.S. 686.   When assessing counsel's performance, the habeas court is required to “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ․” Id., 689.

Count Two—Claims of Ineffective Assistance of Appellate Counsel

It is now established that:  “[a] criminal defendant's right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution.   See, e.g., Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985);  In re Christina M., 280 Conn. 474, 489, 908 A.2d 1073 (2006).”  Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).   To succeed on a claim of ineffective assistance of appellate counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, supra, 466 U.S. 668.  Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).   For claims of ineffective assistance of appellate counsel, however, in assessing the prejudice prong, the habeas court must determine “whether there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed in his appeal, i.e., reversal of his conviction or granting of a new trial ․ [T]o determine whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily analyzes the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm.”  (Internal quotation marks omitted.)   Moody v. Commissioner of Correction, 127 Conn.App. 293, 301, 14 A.3d 408, cert. denied, 300 Conn. 943, 17 A.3d 478 (2011);  Small v. Commissioner of Correction, supra, 286 Conn. 722;  see also Smith v. Robbins, supra, 528 U.S. 285.

Discussion

“Because both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong.”  (Internal quotation marks omitted.)  Hunnicutt v. Commissioner of Correction, 83 Conn.App. 199, 206, 848 A.2d 1229, cert. denied, 270 Conn. 914, 853 A.2d 527 (2004).   Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim.  Aillon v. Meachum, 211 Conn. 352, 362, 559 A.2d 206 (1989);  Griffin v. Commissioner of Correction, 98 Conn.App. 361, 365–66, 909 A.2d 60 (2006).

Assuming arguendo that Attorney Russell's performance during the trial and subsequently during the appeal process was deficient, the petitioner must nevertheless prove that as a result he was prejudiced.   At the habeas trial, the petitioner presented the testimony of Attorney Russell and another fact witness and spent much of the trial in attempting to prove that Attorney Russell failed to take certain actions.   However, the petitioner failed to proffer any evidence that he was prejudiced due to the alleged deficient performance by Attorney Russell.   The petitioner did not offer any expert witness testimony or any other evidence to show that there was a “reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.”  (Internal quotation marks omitted.)  Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 799, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom.  Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).

On the basis of the Court's examination of the criminal trial transcript, the evidentiary record strongly supported the complicity of the petitioner in the underlying charges of attempted murder and conspiracy to commit murder.   At trial, the state presented several witnesses, all of whom were either co-conspirators or active participants in the shooting, and they placed the petitioner at the scene of the shooting and implicated him in the planning and executing of the shooting.   These witnesses testified that the petitioner had a weapon in his possession and was an active participant in the crime.   There was testimony by multiple witnesses, who were either all part of the conspiracy or the shooting, that the petitioner had in his possession an AR–15, which is a semi-automatic assault rifle, and that he exited one of the two cars that transported the seven participants to the area of the shooting.   However, because the AR–15 was so conspicuous, the participants were able to convince the petitioner to return to the car and exchange the AR–15 with a hand gun.

The petitioner was a known drug dealer, who had a conflict with rival drug dealers, referred to as the “Jamaicans.”   Earlier in the day of the shooting, one of the state's female witnesses, who was associated with the petitioner and his colleagues, was involved in a fight with a female associated with the Jamaicans, in which she was injured and maced in the face.   She informed the petitioner and his colleagues of the fight and the injuries she received at the hands of those associated with the Jamaicans.   The petitioner and his co-conspirators decided to seek revenge on the Jamaicans.   The petitioner and six others drove in two separate vehicles with a number of firearms to confront the Jamaicans and a firefight ensued between the rivals.   During the shootout, a seven-year-old girl, who was attending a birthday party, was shot and killed in the crossfire.   The jury heard testimony that the petitioner and the Jamaicans were rivals, providing motive for the shooting.   Due to the strength of the State's case against the petitioner, there is no reasonable probability that, but for counsel's alleged errors, the outcome of the petitioner's trial and/or direct appeal would have been different.

Moreover, in two of his twenty-six counts of ineffective assistance of trial counsel, the petitioner alleges that Attorney Russell failed to adequately apprise him of the strengths and weaknesses of possible defenses and mitigating factors that could be presented on his behalf and to meaningfully explain to him all plea offers made so that he could make an informed decision regarding whether to accept any plea offers.

Under such circumstances, “to establish prejudice, a petitioner need establish ․ that (1) it is reasonably probable that, if not for counsel's deficient performance, the petitioner would have accepted the plea offer, and (2) the trial judge would have conditionally accepted the plea agreement if it had been presented to the court.”  Ebron v. Commissioner of Correction, 307 Conn. 342, 357, 53 A.3d 983 (2012), cert. denied, 133 S.Ct. 1726, 185 L.Ed.2d 802 (2013).

The petitioner did not explicitly allege in his petition that he would have taken any plea offers had his trial counsel adequately explained the offers as well as the strengths and weakness of his case.   However, the Court will treat these two counts as implicitly alleging that he would haves avoided trial and taken a plea offer.   At his habeas trial, the petitioner testified that he rejected the State's initial offer of 120 years to serve and a subsequent offer of forty years to serve.   Attorney Russell testified that he conveyed an offer of sixty years to serve, which the petitioner rejected.   Attorney Russell did not recall the offer of 120 years or any other offers.   Assuming that Attorney Russell performed deficiently with respect to the plea offers, the petitioner, nevertheless, did not testify at his habeas trial that, but for this deficient performance, he would have taken an offer.   It is also unreasonable to believe that he would have taken an offer of 120 years to serve.   Because he failed to establish the first prong of the test as set by Ebron, the petitioner has failed to establish that he was prejudiced due to his trial counsel's alleged ineffective representation regarding the plea offers.

The petitioner also alleges that there was juror misconduct, which Attorney Russell failed to investigate.   A review of the trial court's transcripts reveals that the trial court was aware of the alleged misconduct, held a hearing on the matter and because there was a lack of foundation, denied the petitioner's request for further investigation.   The petitioner offered the testimony of Mr. Brett Green, who was incarcerated at the same time with the Petitioner for a period of time.   Mr. Green testified that he knew Marvita McCoy one of the jurors on the petitioner's jury.   He attempted to testify that she may have had reluctance or trepidation serving on the jury, but the habeas court did not allow his testimony because it was based only on hearsay.   Even if there were juror misconduct that Attorney Russell failed to properly investigate or raise with the trial court, which was not the case, the petitioner has provided no other evidence that there was a “reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different,” i.e., that he would not have been convicted of the crimes of conspiracy to commit murder and attempt to commit murder.  Toccaline, 80 Conn.App. 792, 799.

Because the petitioner has failed to show any prejudice, his claims fail and the court need not reach the performance question See Ancona v. Commissioner of Correction, 100 Conn.App. 283, 290, 918 A.2d 283, cert. denied, 282 Conn. 918, 925 A.2d 1099 (2007).

Conclusion

For all of the foregoing reasons, the amended petition is denied.

So ordered.

Kwak, J.

Kwak, Hunchu, J.