Ira Alston v. Warden (2013)

MEMORANDUM OF DECISION

I. Procedural History

The petitioner was the defendant in a matter pending in the Judicial District of New Haven.   He was initially represented for a period of about one year by assigned counsel, Attorney Paul Carty, which included a hearing in probable cause held pursuant to General Statutes § 54–46a.   Following Attorney Carty's withdrawal, Attorney Audin Grogins represented the petitioner for a matter of weeks before withdrawing for personal medical reasons.   Attorney Richard Silverstein was subsequently appointed as assigned counsel for the petitioner and continued to represent him through the conclusion of trial.   The case was tried to a jury, which returned verdicts of guilty on July 3, 2002 on the lesser included offense for murder of manslaughter in the first degree with a firearm, in violation of General Statutes § 53a–55,¹ and carrying a pistol without a permit, in violation of General Statutes § 29–35.²  On November 1, 2002, the trial court, Licari, J., imposed a total effective sentence of thirty-five years incarceration.   The petitioner appealed his convictions, which were affirmed in State v. Alston, 272 Conn. 432, 862 A.2d 817 (2005).

The petitioner commenced the present action by filing a petition for writ of habeas corpus on March 9, 2007.³  A final, six-count, Fourth Amended Petition was filed on February 1, 2013.   The respondent filed a return on March 14, 2013 generally denying the claims in the petition and raising special defenses of waiver, procedural default, and res judicata.   The petitioner filed a reply to the return on May 17, 2013, and the matter was tried to the court on May 20, 2013.   Additional procedural history will be reported throughout the body of this opinion as necessary.

II. Law and Discussion

Count one of the petition is titled “lack of jurisdiction.”   The specific allegations, however, assert that the charging documents in the case failed to set forth cognizable offenses, because the March 9, 2000 indictment charging the petitioner with murder failed to specify the elements of the crime or the name of the victim and the amended May 31, 2002 indictment failed to identify the pistol the petitioner was alleged to have been carrying or the elements of the crime of carrying a pistol without a permit.   The petition goes on to allege that “the failure of said information to charge cognizable offenses prohibited Petitioner from preparing and planning relevant defenses to be advanced at trial.” ⁴  “[I]n determining the nature of a pleading filed by a party, [the court is] not bound by the label affixed to that pleading by the party.”  Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 576, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).   There is no allegation present in count one that could reasonably be read to assert that inadequacies in the indictments rendered the trial court without jurisdiction over the petitioner.  Id. Instead, notwithstanding the title, count one sets forth a due process claim of inadequate notice.  Id.

The respondent has raised the special defense of procedural default to count one.   Failure to raise a constitutional claim at the trial level or on direct appeal prior to bringing a habeas action constitutes procedural default.   Barile v. Commissioner of Correction, 80 Conn.App. 787, 788, 837 A.2d 827, cert. denied, 268 Conn. 915, 847 A.2d 310 (2004).  “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 ․” (Alterations in original.)   Saunders v. Commissioner of Correction, 137 Conn.App. 493, 498–99, 48 A.3d 728 (2012).

Simply “[f]ailing 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.”  (Citation omitted;  quotation marks omitted.)   Chaparro v. Commissioner of Correction, 120 Conn.App. 41, 49, 990 A.2d 1261, cert. denied, 297 Conn. 903, 994 A.2d 1287 (2010).   However, “[i]f a petitioner can prove that his attorney's performance fell fellow acceptable standards, and that, as a result, he was deprived of a fair trial or appeal, he will necessarily have established a basis for ‘cause’ and will invariably have demonstrated ‘prejudice.’  “ (Alteration in original.)  Caban v. Commissioner of Correction, 113 Conn.App. 165, 173, 965 A.2d 601, cert. denied, 292 Conn. 901, 971 A.2d 40 (2009);  Valeriano v. Bronson, 209 Conn. 75, 84–84, 546 A.2d 1380 (1988).  “Because [c]ause and prejudice must be established conjunctively, we may dispose of this claim if the petitioner fails to meet either prong.”  (Alteration in original;  citation omitted.)   Chaparro, supra, 120 Conn.App. 48.  “[A] habeas court generally should decide the threshold issue of cause and prejudice when it is raised as a defense because, in the ordinary case, failing to do so undermines the prudential considerations that the cause and prejudice rule was designed to promote.”  Taylor v. Commissioner of Correction, 284 Conn. 433, 447 n.18, 936 A.2d 611 (2007).

In the present case, the petitioner conceded that he failed to raise a claim at the trial level or on direct appeal challenging the trial court's jurisdiction because of inadequacies in the charging documents.⁵  This claim, therefore, is subject to procedural default unless the petitioner can establish “cause” and “prejudice” for his failure to have done so.   Chaparro, supra, 120 Conn.App. 48.

The petitioner failed to present any evidence to this court as to why no claim about the alleged inadequacy of the indictments against him was raised at the trial level or on direct appeal.   Although the petitioner did allege a separate claim of ineffective assistance against Attorney Carty for failing to address this issue during the hearing in probable cause, which would have established “cause” and “prejudice,” if proven;  Valeriano v. Bronson, supra, 209 Conn. 84–84;  the petitioner failed to present any evidence as to his legal and strategic consideration of this issue, how, if at all, the alleged inadequacies affected his ability to defend the petitioner at the hearing in probable cause, or what effect, if any, the alleged deficiencies had on the outcome of the hearing.   There is also a claim of ineffective assistance against Attorney Silverstein for failing to raise this issue during his representation of the petitioner, however, the petitioner also failed to present any evidence during the habeas trial relating to Attorney Silverstein's consideration of this issue, or lack thereof.   Based on the foregoing, therefore, count one is procedurally defaulted.  Chaparro, supra, 120 Conn.App. 48.

The petitioner next alleges numerous “trial court errors” in count two of his petition, including such things as the court limiting the cross examination of certain witnesses, giving an improper credibility instruction, giving an improper instruction on what constituted a firearm, giving multiple different definitions of reasonable doubt, instructing a particular witness not to answer a question during cross examination, and giving jury instructions that unlawfully broadened the “use element” of the firearm charge.   The respondent has also raised the special defense of procedural default to count two.

An improper jury instruction on an essential element of a crime charged may result in the violation of the defendant's due process right to a fair trial.   E.g., State v. Papandrea, 120 Conn.App. 224, 235, 991 A.2d 617 (2010).   The right to cross examine, although not unlimited, is also a constitutional right, one guaranteed under the confrontation clause, and may not be unduly restricted.  State v. Rodriquez, 139 Conn.App. 594, 607, 56 A.3d 980 (2012).   Although the petitioner raised numerous claims of error on direct appeal, he did not raise any of the claims set forth in count two.   Therefore, these claims are also subject to being procedurally defaulted unless the petitioner meets the “cause” and “prejudice” test.  Barile v. Commissioner of Correction, supra, 80 Conn.App. 788.

Again, the petition in the present case alleges ineffective assistance against trial and appellate counsel, either of which could have served to establish the “cause” and “prejudice” necessary to defeat the special defense of procedural default.  Valeriano v. Bronson, supra, 209 Conn. 75.   Where the complaint fails, however, is that it does not contain any claim against either trial or appellate counsel that could fairly be said to relate to any of the errors alleged in count two nor did the petitioner present any such evidence during the trial.   Therefore, count two is also procedurally defaulted.   Chaparro, supra, 120 Conn.App. 48.

In count three, the petitioner makes numerous claims of prosecutorial impropriety and the respondent, again, has raised the defense of procedural default.   A claim of prosecutorial impropriety implicates a defendant's rights to due process and a fair trial and, therefore, is a claim of constitutional magnitude that should be raised during trial or on direct appeal.   E.g., State v. Medrano, 308 Conn. 604, 610–11, 65 A.3d 503, 510 (2013).   Once again, however, there was no evidence presented to this court that the issues asserted in count three were raised by the petitioner during his criminal trial or on direct appeal.   Therefore, the claims in count three are also subject to being procedurally defaulted.  Barile v. Commissioner of Correction, supra, 80 Conn.App. 787, 788.   Also, as with the claims above, the petition generally fails to contain any claims of ineffectiveness against trial and appellate counsel relating to the issues raised in count three and, even in those places where the allegations of ineffectiveness against counsel could fairly be read to encompass the issues raised in count three, the petitioner failed to present any evidence to support those claims during the habeas trial.   See, Nieves v. Commissioner of Correction, 51 Conn.App. 615, 622–24, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999) (petitioner's burden to present affirmative evidence to support claims).   Therefore, as with the claims in counts one and two, the claims in count three are procedurally defaulted.   Chaparro, supra, 120 Conn.App. 48.

In counts four and five, the petitioner makes claims of ineffective assistance, respectively, against Attorney Richard Silverstein, for his representation at trial, and Attorney Damon Kirschbaum, for his representation on appeal.   The relevant standard for a claim of ineffective assistance against trial counsel is set forth in the case of Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), where the petitioner must establish both that his counsel's performance was constitutionally deficient, meaning that it was less than that of a reasonably competent defense counsel in similar circumstances, and that the petitioner suffered prejudice as a result of that performance, meaning that there is a reasonable probability that he suffered a less favorable outcome than he otherwise would have.   When a claim of ineffectiveness is made against appellate counsel, the test is similar, however, under the prejudice prong “he must establish that there is a reasonable probability that but for appellate counsel's error, the petitioner would have prevailed in his direct appeal.”  (Internal quotation marks omitted.)  Davis v. Commissioner of Correction, 117 Conn.App. 737, 740, 980 A.2d 933 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062 (2010).

In the present case, the petitioner failed to prove his claim of ineffective assistance against either Attorney Silverstein or Attorney Kirschbaum.   The only evidence presented regarding Attorney Silverstein's representation of thee petitioner were the conclusions and presumptive claims of the petitioner about who he thought counsel interviewed and what he thought counsel had investigated, which lacked any substantial credibility, and the abstract opinions of a legal expert.   By abstract, the court does not intend to disparage the expert personally, but means that he only had the verbal reports of the petitioner to support many of his findings, leaving him only able to offer that, if certain things were true, then they might constitute ineffective assistance of counsel.   The petitioner did testify to a single instance where he alleged that Attorney Silverstein came to visit with him at the prison while under the influence of alcohol, however, he failed to establish that, even if true, such conduct was anything more than an isolated incident or had any effect on the overall representation he received.  Strickland v. Washington, supra, 466 U.S. 688 (“[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances”).   Absent from the habeas trial was any evidence about the processes, investigations, interviews, or legal strategies employed by Attorney Silverstein in preparing the petitioner's defense, why he made certain decisions, or his general understanding of the case against the petitioner.  Id. With regard to the claims against Attorney Kirschbaum, the petitioner presented no evidence at all regarding his representation of the petitioner on appeal.

“[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment”;  Strickland v. Washington, supra, 466 U.S. 690;  and it is the petitioner's duty to present affirmative evidence to support his claims that counsel's performance deprived him of his constitutional right to the effective assistance of counsel.  Nieves v. Commissioner of Correction, supra, 51 Conn.App. 622–24.   Since the petitioner has failed to present any substantive evidence about the representation he received from either trial or appellate counsel, the claims of ineffective assistance in count four fail.  Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).

The final claim, count six, alleges “Aggregate Error.”   In other words, the petitioner claims the cumulative effect of errors during his trial resulted in an unlawful conviction.   Our Supreme Court has had the opportunity to address such a claim and has said the following:

The defendant in State v. Tillman, 220 Conn. 487, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S.Ct. 3000, 120 L.Ed.2d 876 (1992), made a similar claim.   He argued that a group of instructional claims of error, none of which individually constituted error, should be aggregated to form a separate basis for a claim of a constitutional violation of a right to a fair trial ․ We rejected the defendant's claim in Tillman, and we reject the defendant's analogous claim in this case.   We decline to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.

(Citation omitted.)  State v. Robinson, 227 Conn. 711, 747, 631 A.2d 288, 307 (1993).   Therefore, count six is denied, because it fails to state a claim upon which relief can be granted.  Id.

III. Conclusion

Based on the foregoing, the petition for writ of habeas corpus is DENIED.

If the petitioner wishes to appeal this ruling, then counsel shall prepare and submit a judgment file to the clerk within thirty (30) days.   All other necessary appellate forms shall be filed within the time-frames set forth in applicable Practice Book and/or statutory sections.

Hon. John M. Newson

FOOTNOTES

FN1. General Statutes § 53a–55a.   Manslaughter in the first degree with a firearm:  Class B felony, provides:  “(a) A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a–55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm ․”General Statutes § 53a–55.   Manslaughter in the first degree:  Class B felony, provides in pertinent part:  “(a) A person is guilty of manslaughter in the first degree when:  (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person;  or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance ․”.  FN1. General Statutes § 53a–55a.   Manslaughter in the first degree with a firearm:  Class B felony, provides:  “(a) A person is guilty of manslaughter in the first degree with a firearm when he commits manslaughter in the first degree as provided in section 53a–55, and in the commission of such offense he uses, or is armed with and threatens the use of or displays or represents by his words or conduct that he possesses a pistol, revolver, shotgun, machine gun, rifle or other firearm ․”General Statutes § 53a–55.   Manslaughter in the first degree:  Class B felony, provides in pertinent part:  “(a) A person is guilty of manslaughter in the first degree when:  (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person;  or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance ․”

FN2. General Statutes § 29–35.   Carrying of pistol or revolver without permit prohibited.   Exceptions, provides, in pertinent part:  “(a) No person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29–28 ․”.  FN2. General Statutes § 29–35.   Carrying of pistol or revolver without permit prohibited.   Exceptions, provides, in pertinent part:  “(a) No person shall carry any pistol or revolver upon his or her person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29–28 ․”

FN3. A prior petition involving the same conviction filed on January 24, 2005 has also been consolidated with this action..  FN3. A prior petition involving the same conviction filed on January 24, 2005 has also been consolidated with this action.

FN4. Fourth Amended Petition, pp. 2, ¶ 10..  FN4. Fourth Amended Petition, pp. 2, ¶ 10.

FN5. Fourth Amended Petition, pp. 2, ¶ 11, 13 and 14..  FN5. Fourth Amended Petition, pp. 2, ¶ 11, 13 and 14.

Newson, John M., J.