108050 v. Warden (2013)

MEMORANDUM OF DECISION

On November 2, 2010, the petitioner, Howard Gombert, filed a petition for a writ of habeas corpus, which was amended by assigned counsel on March 6, 2013.   The amended petition raises claims in three counts and challenges the petitioner's convictions in docket numbers CR 00–100901, CR 01–104455 and CR 00–102299, judicial district of Litchfield.   These convictions stem from the petitioner's guilty pleas under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

On November 6, 2001, the petitioner, who was represented by Public Defender Christopher Cosgrove, pleaded guilty under the Alford doctrine as follows:  in docket number CR00–100901, to one count of sexual assault in the third degree in violation of General Statutes § 53a–72a(a)(1)(a), one count of assault in the third degree in violation of General Statutes § 53a–61(a)(1), and one count of unlawful restraint in the first degree in violation of General Statutes § 53a–95;  in docket number CR01–104455, to one count of criminal trespass in the second degree in violation of General Statutes § 53a–108;  and in docket number CR 00–102299, to two counts of violation of a protective order in violation of General Statutes § 53a–223(a).   The prosecutor stated the factual bases the state intended to prove at trial for each of these counts.   The court canvassed the petitioner about his pleas and, after finding they were knowing, voluntary and with a factual basis, accepted the pleas.   On January 11, 2002, the petitioner was sentenced in accordance with the plea agreement to a total effective sentence of twelve years, execution suspended after the service of four years, followed by fifteen years of probation.

The petitioner now claims in count one of the amended petition that he was denied his right to effective assistance of counsel in violation of the sixth and fourteenth amendments of the United States constitution and article first, § 8 and § 9, of the constitution of Connecticut.   More specifically, as enumerated in the indicated paragraphs of the amended petition, the petitioner alleges defense counsel performed deficiently by failing to:

(22)(A)  & (B)—properly investigate all viable defenses and advise the petitioner regarding these defenses;

(22)(C)—properly investigate other evidence that was inconsistent with the state's theory of the case;

(22)(D)—file and argue a motion to suppress;

(22)(E)—investigate what occurred to the petitioner's belongings and guarantee their proper return to the petitioner;  and

(22)(F)—insure that the petitioner's parental rights would not be interfered with by a protective order.

In count two:

(26)-(30), alleges various failures by counsel to properly advise the petitioner, most of which are also asserted in count one, and which resulted in the petitioner being induced into pleading guilty, thereby violating his right to due process as guaranteed by fourteenth amendments of the United States constitution and article first, § 8 and § 9, of the constitution of Connecticut.

In count three:

(32), the petitioner asserts a due process violation premised on prosecutorial misconduct because the prosecutor failed to honor the terms of the plea agreement.

The respondent's return denies the petitioner's claims and asserts the affirmative defense of procedural default as to the alleged prosecutorial misconduct in count three.   The petitioner did not, in accordance with Practice Book § 23–31, file a reply to the return.

The parties appeared before this court on April 29, 2013, for a trial on the merits.   Other than the petitioner's own testimony, he did not present any other witnesses and the respondent called Attorney Christopher Cosgrove, the petitioner's defense counsel and Senior State's Attorney James Fletcher as witnesses.   Additionally, the parties entered into evidence various documents, primarily transcripts, copies of several motions to suppress, and copies of letters from former defense counsel to the petitioner.

The court has reviewed all of the testimony and evidence and for the reasons stated more fully below, denies the petition for a writ of habeas corpus.

DISCUSSION

I. Ineffective assistance of counsel standard

“To prevail on the merits of a constitutional claim of ineffective assistance of counsel, a habeas petitioner must establish deficient performance and actual prejudice.   See Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ];  see also Hill v. Lockhart, [474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ].   For ineffective assistance claims resulting from guilty verdicts, [courts] apply the two-pronged standard set forth in Strickland, and for ineffective assistance claims resulting from guilty pleas, [courts] apply the standard set forth in Hill. See Hill v. Lockhart, supra, 474 U.S. 59 (modifying Strickland standard for analyzing prejudice in cases where petitioner entered guilty plea).

“To satisfy the performance prong under Strickland–Hill, ‘the petitioner must show that counsel's representation fell below an objective standard of reasonableness ․ A petitioner who accepts counsel's advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases ․ The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ․ Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist ․ A reviewing court must view counsel's conduct with a strong presumption that it falls within the wide range of reasonable professional assistance ․

“ ‘To satisfy the prejudice prong [under Strickland–Hill ], the petitioner must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial ․ Reasonable probability does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome ․ A reviewing court can find against a petitioner on either ground, whichever is easier.’  (Internal quotation marks omitted.)  Mock v. Commissioner of Correction, [115 Conn.App. 99, 104–05, 971 A.2d 802, cert. denied, 293 Conn. 918, 979 A.2d 940 (2009) ].   We also note, however, ‘that [i]n many guilty plea cases, the prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective assistance challenges to convictions obtained through a trial.   For example, where the alleged error of counsel is a failure to investigate ․ the determination whether the error prejudiced the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea.   This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.’  (Citations omitted;  internal quotation marks omitted.)   Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 722–23, 789 A.2d 1046 (2002).”  Norton v. Commissioner of Correction, 132 Conn.App. 850, 854–55, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).

II. Failures to investigate and advise

The petitioner alleges in paragraphs (22)(A), (B) and (C) of count one that Attorney Cosgrove was ineffective for failing to investigate all viable defenses, advise the petitioner regarding these defenses, and properly investigate other evidence that was inconsistent with the state's theory of the case.   The petitioner did not present any credible evidence in support of these allegations.

Furthermore, the trial court conducted a thorough canvass of the petitioner as to his plea.   During the canvass, the court explained to the petitioner that as a result of his plea, he was giving up his right to a trial.   The petitioner stated that he understood.   The petitioner also indicated that he discussed with his attorney, the nature of the state's evidence against him and that he reviewed the elements of the crime to which he was pleading.   The petitioner stated that he was satisfied with the advice and representation that his attorney, Mr. Cosgrove, had provided to him concerning his decision to plead guilty under the Alford doctrine.   The petitioner also stated that he was pleading guilty because he felt that if he went to trial, he probably would be found guilty and face a more severe penalty than what he would receive under the plea agreement.   Respondent's Exhibit–A, pp. 15–17.

“The burden to demonstrate the benefit of additional investigation is on the petitioner.  Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001).”  Morris v. Commissioner of Correction, 131 Conn.App. 839, 846, 29 A.3d 914, cert. denied, 303 Conn. 915, 33 A.3d 739 (2011).   See also Leatherwood v. Commissioner of Correction, 105 Conn.App. 644, 646, 938 A.2d 1285, cert. denied, 286 Conn. 908, 944 A.2d 979 (2008).

The petitioner did not present any credible evidence that shows Attorney Cosgrove performed deficiently by not properly investigating all viable defenses and evidence, nor that he somehow failed to properly advise the petitioner thereof.   The claims alleging failures to investigate and advise the petitioner are without merit and denied.

III. Failure to file and argue a motion to suppress

In paragraph (22)(D) of count one, the petitioner alleges that his trial counsel failed to file and argue a motion to suppress.   The court denies this claim because Attorney Cosgrove filed three motions to suppress on behalf of the petitioner with the trial court.   Respondent's Exhibits D–F. Additionally, Attorney Cosgrove testified at the habeas trial that these motions were never argued before the trial court because the petitioner decided to enter a plea rather than go to trial.   The court concludes that the petitioner has failed to show Attorney Cosgrove's performance was deficient.

IV. Petitioner's belongings and interference with parental rights

In count one, paragraphs (22)(E) and (F), the petitioner further alleges, respectively, that counsel failed to investigate what occurred to the petitioner's belongings and guarantee their proper return to the petitioner, and ensure that his parental rights would not be interfered with by a protective order.

A review of the transcripts entered into evidence clearly shows that while the petitioner had concerns about these two issues, they were never conditions of the plea agreement.   Additionally, Attorney Cosgrove testified that he filed two motions with the trial court for the return of the petitioner's property, much of which was pornographic, items of women's clothing and jewelry, whose ownership could not be established.   As a condition of the petitioner's plea agreement and as a registered sex offender, the petitioner is not allowed to possess any sexually explicit materials, so much of his property at issue would not have been allowed to be returned to him.   Attorney Cosgrove also testified that there was a flood during which some of the petitioner's items were lost, but that the Public Defender's office returned all of the items in its possession to the petitioner.   The court finds that Attorney Cosgrove's representation was more than adequate regarding these two issues.

Furthermore, the court notes that these two claims in no way challenge the legality of the petitioner's confinement as a result of his guilty plea.   These allegations fail, therefore, to state a claim upon which habeas corpus relief may be granted.  Baker v. Commissioner of Correction, 281 Conn. 241, 251, 914 A.2d 1034 (2007) (“despite this expansion of the writ beyond its initial objective of securing immediate release from illegal detention, in order to invoke successfully the jurisdiction of the habeas court, a petitioner must allege ‘an interest sufficient to give rise to habeas relief.”);  Johnson v. Commissioner of Correction, 258 Conn. 804, 815, 786 A.2d 1091 (2002).

V. Due process violations

In count two, paragraphs (26)-(30), the petitioner alleges various failures by counsel to properly advise the petitioner, most of which are also asserted in count one, and which resulted in the petitioner being induced into pleading guilty, thereby violating his right to due process as guaranteed by fourteenth amendments of the United States constitution and article first, § 8 and § 9, of the constitution of Connecticut.

As already discussed above, the trial court conducted a thorough canvass of the petitioner as to his plea.   The petitioner stated that he understood the court's explanation to him that his plea meant he was giving up his right to a trial.   Additionally, the petitioner acknowledged that counsel had discussed the nature of the state's evidence against him and reviewed the elements of the crime to which he was pleading.   The petitioner also acknowledged that he was satisfied with the advice and representation that his attorney, Mr. Cosgrove, had provided to him concerning his decision to plead guilty under the Alford doctrine.   The petitioner accepted the guilty plea because he felt that going to trial would probably result in being found guilty and receive a longer sentence than the sentence arrived at via the plea agreement.   Respondent's Exhibit–A, pp. 15–17.

Based on the court's discussion and conclusions of the claims of ineffective assistance in count one, the court also concludes that the petitioner has failed to prove a violation of his right to due process.

VI. Prosecutorial misconduct/failure to honor terms of the plea agreement

In paragraph (32) of count three, the petitioner asserts a due process violation premised on prosecutorial misconduct because the prosecutor failed to honor the terms of the plea agreement.   The petitioner alleged that the state's attorney failed to honor the terms of the plea agreement by refusing to return the petitioner's property and assisted the victim, Miss Gunderman, to use her protective order to interfere with his parental rights.   The court finds both that the petitioner has procedurally defaulted and, even considering the allegations on their merits, that there was no prosecutorial misconduct on the part of the state's attorney for his alleged failure to honor the terms of the plea agreement.

“[O]ur Supreme Court has stated that ‘under Cobham v. Commissioner of Correction, [258 Conn. 30, 38, 779 A.2d 80 (2001) ], the petitioner first was required to raise his Santobello claim ¹ via a motion to correct an illegal sentence or on direct appeal.   As a general matter, a defendant who files a petition for a writ of habeas corpus will be deemed to have procedurally defaulted unless he exhausts at least one of those remedies.’   Orcutt v. Commissioner of Correction, 284 Conn. 724, 737, 937 A.2d 656 (2007).  ‘Failing to recognize the factual or legal basis for a claim or failing to raise a claim despite recognizing it does not constitute cause for a procedural default.’  Mercer v. Commissioner of Correction, 49 Conn.App. 819, 824, 717 A.2d 763, cert. denied, 247 Conn. 920, 722 A.2d 810 (1998).”   Chaparro v. Commissioner of Correction, 120 Conn.App. 41, 49, 990 A.2d 1261, cert. denied, 297 Conn. 903, 994 A.2d 1287 (2010);  see also Zabian v. Commissioner of Correction, 115 Conn.App. 144, 151, 971 A.2d 822 (2009) ( “Cobham makes clear that a Santobello claim must first be raised by either a motion to correct an illegal sentence pursuant to Practice Book § 43–22 or on direct appeal”).

“ ‘When a respondent seeks to raise an affirmative defense of procedural default, the rules of practice require that he or she must file a return to the habeas petition “alleg[ing] any facts in support of any claim of procedural default ․ or any other claim that the petitioner is not entitled to relief.”  Practice Book § 23–30(b).  “If the return alleges any defense or claim that the petitioner is not entitled to relief, and such allegations are not put in dispute by the petition, the petitioner shall file a reply.”   Practice Book § 23–31(a).  “The reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default.”  Practice Book § 23–31(c).  Johnson v. Commissioner of Correction, 285 Conn. 556, 567, 941 A.2d 248 (2008).’

“ ‘The appropriate standard for reviewability of [a procedurally defaulted claim] ․ is the cause and prejudice standard.   Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition ․ [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance.

“ ‘Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice ․ [When] no evidence [of cause and prejudice] has been provided [to the habeas court], [the reviewing] court can independently conclude that the petitioner has failed to meet the cause and prejudice test.”  (Citation omitted;  internal quotation marks omitted.)  Council v. Commissioner of Correction, 286 Conn. 477, 489–90, 944 A.2d 340 (2008).’  “ Anderson v. Commissioner of Correction, 114 Conn.App. 778, 787, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009).

The petitioner's claim here is a prototypical Santobello claim and must first be raised either with the trial court via a motion to correct an illegal sentence or on direct appeal.   Such a claim is subject to the affirmative defense of procedural default.   The petitioner neither alleged nor showed the cause and prejudice which would permit the review of the issues despite the claim that he is procedurally defaulted from litigating prosecutorial misconduct premised on a Santobello claim in the present habeas petition.

Furthermore, as mentioned previously, return of the petitioner's property and the alleged interference with his parental rights were never part of the plea agreement.   Attorney Cosgrove testified that all of the petitioner's property was returned with the exception of the items to which he was not entitled and the items lost in the flood.   As to his parental rights, a review of the plea canvass reveals that as a condition of the plea agreement, the petitioner was not to have any contact with the victim, Miss Gunderman, and their daughter in common, except pursuant to civil court orders.   The State's Attorney has no control over what a civil court may order regarding the petitioner's contact with his daughter.   Respondent's Exhibit A, pp. 11, 14, Respondent's Exhibit B, pp. 19–27.   Therefore, even addressing the claim on its merits, it must be denied.

CONCLUSION

Based upon the foregoing, the court concludes that the petitioner has failed to prove the claims raised in the amended petition.   Accordingly, judgment shall enter for the respondent on the petition for a writ of habeas corpus.   Counsel for the petitioner shall file a judgment file with the clerk within thirty days of the date of this decision.

It is so ordered.

Kwak, J.

FOOTNOTES

FN1. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (“when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled”)..  FN1. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (“when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled”).

Kwak, Hunchu, J.