Ernest Francis v. Warden (2011)

MEMORANDUM OF DECISION

And again, during the lunch break, the Court has taken the opportunity to review, not all, clearly, but a decent portion of the exhibits.

The Court reviewed its own trial testimony notes from the last time and earlier this morning.   And primarily the Court looked through the exhibits as they relate to the matters that are remaining here today.

And just for the record, for certain findings of fact, the Court has looked through these, and with regard to a certain of these exhibits, I am just going to read certain things into the record, which the Court—or should be considered as findings of fact by the Court.

With regard, generally, to the claims that there was inaccurate information presented at the defendant's sentencing—and again, the Court will issue rulings on these matters later but ․

Petitioner's Exhibit 6, which is the sentencing transcript—beginning at page—well there is two numbers on the page—at the top right-hand corner is page 18, which is typed into the transcript.   On the bottom right-hand corner is written page 52.   And this is a continuation of some of the discussion, or the comments by the State's Attorney, where he says, and I quote,—and there aren't line numbers, so its beginning just past the middle of the page—and the State's Attorney indicates, “He was subsequently convicted and there was some question of about what he was actually convicted of.   The docket numbers and the statute numbers differ from the name of charge, but it did involve a narcotic offense and the underlying, or gravamen of the offense, was that he was involved in a sale situation.

The other thing that is detailed in the presentence investigation is the assault in the second degree, Your Honor, and I think that is in error.   I don't think the defendant was convicted of assault in the second degree.   The sentence that is reflected there, is the same sentence as he received in the possession of narcotics offense, and I think that—I think that Mr. Simon or myself have more or less agreed that when we looked at the records, that sentence was apparently imposed in the narcotics offense and there was—a part of that was a conviction of assault in the third degree.

So, again, clearly the State's Attorney makes an effort to indicate to the Court that there is some question about the accuracy of the presentence investigation.

As to the Court itself, on page forty-nine of that same transcript,—this is Petitioner's Exhibit 6—and this starts off at the bottom of page forty-nine—or I'm sorry—yeah, forty-nine, the Court indicates—hold on—I'm sorry it's forty-nine to fifty.

PETITIONER:  May I say one thing, Your Honor?

THE COURT:  No, you may not;  this is my time.

PETITIONER:  Okay. Sorry, Your Honor.

THE COURT:  The Court indicates—and it starts at the bottom, the last full paragraph on page forty-nine, and, again, a handwritten number on the bottom right hand of the page is eighty-three.  “This is the most serious type of offense known in our society, is taken—intentionally taken another humans—another person's life.   And this was done on this Sunday afternoon without hesitancy.   The gentleman's record, I thought he had four felony convictions and I have been corrected, and apparently the PSI has been corrected.”

So, again, the Court specifically notes that they're aware that there is dispute as to whether or not the convictions and the record that the petitioner has before it, is accurate.

As to the issue, again, and there is a generalized claim that the Court sentenced him—and again, that first there was a claim that the sentencing information as to his prior record was incorrect, and there is also this claim that there was inaccurate information as to the fact that the victim had only been stabbed once, and that there was some indication by the Court, or other parties, that there were two stabbings or wounds inflicted.

And again, I will note for the record, this is, again, Petitioner's Exhibit 6, at page forty-eight, and about towards the bottom third of the page,—actually it is the last full sentence.   The defendant raised his right hand with the knife and with a downward thrust apparently “grazed,”—emphasized added—” grazed” the victim.   The victim—turning over to page forty-nine—by one account, I think it was Mr. Lowe, retreated a short distance only to be struck by a second downward thrust of the knife into the upper-left-chest area.

So, again, whether or not that first indication of “grazed” could be interpreted to mean that the victim was stabbed, quote, unquote, “once or twice,” again, the Court is interpreting what it believes it remembered from the testimony, specifically of one of the witnesses that testified.   Again, more than fair game for a Court, as will the State's Attorney, as will the defense's Attorney, as will the defendant, to fairly interrupt what he or she believes the evidence to be, or the evidence before it to be.

With regards to the issue of the probable-cause finding;  again, the Court did review the transcript of the probable-cause hearing.   Again, breezed through it quickly over the luncheon recess;  and that is Exhibit 10.   And again, the defendant has cited no case law, nor is the Court aware of any, first;  that requires the Court to use magical words.

The defendant here admits, in his own testimony, he was the only person tried for this offense.   He was the only person, other than his attorney sitting at defendant's table, but still insist here today that the Court had to specifically identify by saying his name or some other specificity that he was finding probable cause against him for this crime, although, by his own admission, he was the only person sitting—or the only person being charged with this crime.

He seems to indicate,—the petitioner—that there may be some issue with identification.   And, again, I note, I'm looking at this transcript and there is a page number thirty—again, this is Exhibit number 10, up in the top right-hand corner is page number thirty, and, again, they are interviewing one of the witnesses, I believe this may be Mr.—I am not sure which one it is, but it says:  “You picked out a photograph?   Answer:  Yes. Question:  And who were you identifying when you were asked to identify?   Answer:  The defendant.   Okay. And did they ask you to pick out the defendant or did they ask you to look at some pictures?   Ah, they said they had wanted me to look at some photos.   And you picked out the person you saw getting out of the car?   Yes, ah huh.   You did your best to do that?   Yes.

And then again on the last page, beginning at page thirty-two, the Court indicates:  All right, the Court will make a finding of probable cause.   The factor that the Court considers is the quick stopping of the car, the gentlemen getting out and rushing toward the victim with a knife held;  the testimony of the knife held behind the back.   There was a knife.   Also by several witnesses;  the thrusting motion to the chest area,—upper-chest area—also the report that I think the clerk has now—the medical report—indicating the wound, and the wound that was inflicted.   I don't know if it was one or two, I am not sure.   I read it earlier, but the location of the wound, it was a downward motion.   The track was downward, consistent with the thrusting motion described by the witnesses, also the location of the wound, itself, on the upper left-chest area.   It apparently penetrated the aorta;  all these things I mentioned as to the issue of intent, so the Court finds there was probable cause and intent.   There was—there has been identification.

Next, the Court finds that there is probable cause to the extent to cause the death of another.   And based upon the testimony, the Court makes the finding of probable cause that was actual causation of the death of another person—that it was actual causation of the death of another person.   All right, probable cause is found.  (As read.)

Now, again, being that the defendant himself admits he was the only individual charged with this crime, the only suspect sitting at defense counsel table, the Court finds it frankly somewhat preposterous that he could claim those terms could mean anything but the fact that Court would find probable cause, that he, the person being charged with the crime and who the probable cause hearing was solely about, could indicate anything except for the fact that probable cause was being found, that he, the only defendant charged,—the only suspect in this crime—that there was a probable-cause finding being made that referred to him.   And again, the petitioner has presented nothing here to show that the Court needed to do anything additional than what it did, or to use any special magical words over and above what it did to mean, or so that it could be clearly understood that the Court was making a finding that this petitioner—as to this petitioner, I should say, that there was probable cause to believe that he had committed the crime, murder, as charged.

And again, those are just some findings of fact.

The Court would note, again, for the record, likely that there will be additional litigation because of this, and likely that there will be claim by the petitioner that certain of his evidence was unable to be presented today because this Court denied or refused to grant him certain continuances to assist him in obtaining certain transcripts, etc., etc.

And the Court would just note in its brief review of this record, of court records which the Court can take judicial note of, including some of the things that have been submitted here, such as Judge Gold's recent decision on the motion, petition for new trial that, not including appeals, just initiated litigation, this Court counted some eight or nine initiated litigations by this petitioner, whether with or without counsel, dating back to the time of his conviction, where he has in one way or another challenged some aspect of this matter.   And so the petitioner, over the course of nearly a decade now, has had numerous opportunities to obtain numerous documents and information and litigated this substantially and has had the opportunity—and has, frankly, in this—in other courts presented numerous copies of documentation.

I note that as significant frankly because—we will deal with issue number one:  This claim of Judge Miano allegedly participating in—or presiding over pretrial negotiations.

First;  I found Attorney Murname—specifically, I found both counsel to be credible and thorough in their testimony.   I specifically found Attorney Murname to be extremely credible.   He presented as a person that did a thorough investigation He indicates that he made an effort to speak to both attorneys involved in the matter, indicated and appeared that he was willing to pursue issues presented to him by the petitioner.   And, again, this was not initially the reason the petitioner, who retained him privately—and, again, I think that is significant—he retained him privately, and specifically had asked him initially to review another issue.   Attorney Murname indicates this issue of allegedly Judge Miano participating in pretrial negotiations and then presiding over the trial was raised.   The Court found him credible when he indicated that if had been able to find anything to support that, that he felt it would have been helpful to the petitioner and would have used it in his discussion with both counsel.   Both indicated they had no memory of attorney—I mean of Judge Miano presiding over any of the pretrial negotiations.

And the Court notes its comments about the length and the substance of litigation that Mr. Francis is engaged in this because here we are some nine years after his conviction, yet he still cannot produce one piece of evidence, not one transcript, not one court notation, nothing to substantiate the fact that an offer was conveyed to him by Judge Miano.

And again, that's more than this letter, which again, I fairly—fairly could be interpreted—I am talking about Exhibit number 14, which fairly can be interpreted a number of different ways.   But without any substance, without any human substance to the context of that letter, that's all it is, is speculation.   The only human substance, the only concrete evidence we have on that is Attorney Murname, who indicates, I spoke to both attorneys, they both indicated to me that they had no memory of Judge Miano presiding, i.e.;   being engaged in actively participating in pretrial negations, nor—and he said he looked for it—was he able to find a single transcript.   And he said, I looked at all of the pretrial dates to see if I could find a transcript where Judge Miano had come out on the record and presided over a pretrial hearing;  I was not able to find that either.

And so this Court finds, frankly, difficult to believe that if a Judge was presiding over pretrial negotiations in the petitioner's case, that there would not be some record, even if it is just for the case to be called and to be continued—every case that comes into court on any—every particular day—whether the petitioner comes out on the record or not, somebody has to go into court and continue the case.   It is rare that it doesn't—it happens on occasions but rare that it does, especially in a Part A murder case.

But, again, nine years later the petitioner cannot present any shred of evidence other than this letter, which again—fairly—and I think, again, the Court credits Attorney Murname's testimony that that comports with what he was told by Judge—I mean by State's Attorney Thomas, that Judge Miano indicated, even though they were engaged in jury selection, if the petitioner and defense counsel and the State wanted to continue negotiations, he would give them that opportunity to try to resolve the case.   But, again, there's no—and, again, it's a petitioner's burden to prove.   There is no proof that there was any credible evidence that this has occurred, that there was any credible evidence that Judge Miano had directly participated in trying to negotiate a disposition.   And so the Court, again, finds that, again, that evidence is not credible.

The petitioner indicates—and I will try to go through this in detail.

And, again, those are some findings of fact that should be noted for the record.

As to count 2, that the Law Office of Gary Mastronardi was ineffective in failing to raise a claim that petitioner's habeas corpus hearing—at the habeas corpus hearing, that trial counsel and appellate counsel was ineffective for failing to appeal the finding of probable cause.

Again, in order to—the standard for ineffectiveness is, again, trial counsel performs somehow or in some way that was so lacking that it undermines the credibility of the outcome of the proceeding.   Strickland v. Washington is the seminal case.   In other words, but for counsels' errors, or but for counsels' performance, the likelihood is that there may have been a different outcome or a different proceeding.   Here, essentially, he is claiming that if my habeas attorneys had done their job, then they would have be able to prove that my appellate attorneys didn't do their job and I would have gotten a different result, i.e., I would have been able to appeal my probable-cause finding and I would have won.

Again, A;  if the petitioner cannot prove either prong, the performance prong of counsel that counsel failed to perform in an adequate and constitutionally sufficient manner or, the second prong, which is that there was somehow prejudice, i.e., there would have been a different outcome;  they lose.

First;  the Court has heard no credible evidence that would lead the Court to believe that counsel failed to perform adequately, that counsel—I mean—I am talking about the Law Offices of Gary Mastronardi—that they failed—no credible evidence that they failed to try conduct a thorough investigation into the facts and circumstances of the petitioner's case.   Frankly, the Court, has, again, reviewed the probable-cause transcript.

And, again, in that transcript the defendant is the only person—he is identified by numerous witnesses, he is identified by numerous people as chasing the victim and stabbing the victim.

So as to either prong, whether it is the alleged deficient performance of his counsel, Attorney Mastronardi, in not raising this issue, or the claim of prejudice that he somehow would have obtained a different or better result.   As to that matter, the Court finds that the petitioner has failed to sustain his burden, and so the writ for petition of habeas corpus, as to paragraph 14, which is also detailed as count 2, is denied.

As to count 15—paragraph 15, I should say, the petitioner's due-process rights were violated as a state created general statute, 54–46a, and held the petitioner to answer to a crime for murder, under said statute, without following all the procedures prescribed by law.   The Court (unintelligible) that authority to do so, the State actions were via the Court, again, take this, somewhat confusing, I'll take that as general claim that the allegation as the petitioner has verbally, I think, clarified, that Judge Miano allegedly failed to follow all procedures that were required in bringing him to the probable-cause hearing and finding probable cause, etc., etc.

And, again, as the evidence has sort of demonstrated (1) it's the petitioner's burden to bring that proof forward to show that there—there first was a violation, and he has not done that.   Again, the Court has not heard any evidence that it finds credible, that would lead it to believe that there was any actual violation of the petitioner's rights.   Again, other than the petitioner's claim of that the Court needs to use some specialized and specific language such as identifying him specifically by name or some other highly technical reading of the statute that, again, he's been able to cite no case law or no other authority for.   And, again, by the Court's review of the evidence and exhibits submitted, the language and the information read into the record by the Court would sufficiently indicate to any reasonable person that, again, the defendant being the only person charged, the only suspect in this matter, and the only defendant sitting at the defense table during the probable cause hearing, that all of the Court's language couldn't be talking about anyone other than him.   And the Court uses the words, intent, cause, identification, and says, specifically, I find probable cause to find that there was intent to cause death.   All of those words, again, were intended to be talking about the petitioner, the defendant in that case, whichever word you want to use.

So, again, as to paragraph 15, the petitioner had failed to meet his burden and the writ—petition for writ of habeas corpus is denied.

Again, paragraph 16 is a similar claim, but claims that Attorney—the Law Offices of Gary Mastronardi was ineffective for failing to raise the issue the Court just dealt with in paragraph 15, on appeal, or in the trial court prior to putting the petitioner to plea.   Again, for many or all of the same reasons the Court has just iterated—or reiterated, as to the claims against—as to the claim the Court has also finds that he has failed to meet his burden as to this claim.   Again, primarily because from all of the evidence the Court heard, the Law Office of Mastronardi, meaning Attorneys Mastronardi and Attorney Murname, worked thoroughly to try and investigate all the petitioner's claims and allegations, did a thorough background investigation and presented those claims that they thought they had credible and viable evidence and rejected those claims that they did not believe they had evidence to support.   That is the same thing any rational, competent attorney would do.   Attorneys have a duty to present, and to represent their clients vigorously.   They also have a duty to make the legal decisions and tactical decisions on what claims to bring and what not to bring.   The Court found both of them credible.   Again, specifically, in—most detailed testimony was from Attorney Murname, that many claims were considered and that claims were not brought forward if they didn't believe that they had evidence to support them and instead pursued claims that they thought they had a decent opportunity to win.

So, again, I find counsel's performance was sufficient and that they performed adequately and competently as to that count.   But, again, I also find that the petitioner's failed to bring forth any evidence to be able to show that he was in anyway prejudiced even if one could find that counsel's performance was inadequate.   Because, again, the petitioner had failed to present any credible or substantive evidence that he would have obtained a different result.

Count 20, which is—I mean paragraph 20, which is also listed as count 4, claims that, again, the Law Offices of Mastronardi was ineffective for failing to raise the issue that trial counsel, Kenneth Simon, was ineffective when he allowed the same Court that signed the petitioner's arrest warrant and conducted the petitioner's probable-cause hearing, to offer the petitioner twenty-seven years, and then moving on to conduct the petitioner's trial.   Again, first, as the Court sort of dealt with in dismissing some of the petitioner's claims on, I think it was on October 28th, there is no legal requirement in the State of Connecticut that a Judge—that a different Judge than signs an arrest warrant on a murder case, preside over the probable-cause hearing.   There is no requirement that that happened, and, so, we need to start there.

So, any claim that would result from allegedly Judge Miano signing the warrant and then sign over—sign over the—then preside over the probable-cause hearing, the Court has sort of dealt with that issue.

Secondly, as the Court has discussed, there has been no credible evidence presented that Judge Miano, in fact, was the person who participated and conveyed or help construct the supposed twenty-seven-year pretrial offer.   There is some indication, that, again, that there may have been some discussion about resolving the case, but as the Court has detailed earlier in its decision, the petitioner has failed to present any substantive or credible evidence that Judge Miano, in fact, participated in pretrial negotiations, meaning;  there is no clerk notations, no live testimony, no transcripts.   And the one person who could testify to the issue, who investigated the issue, again, Attorney Murname was very clear that both counsel indicated they had no memory of Judge Miano actively participating in pretrial negotiations.

That having been said, again the fact that Judge Miano then became the trial-Judge becomes a moot issue because there is no claim and no proof that he actively participated in trying to resolve the case in making an offer to resolve the case, so, therefore, clearly, his presiding over the trial and being the sentencing Judge, cannot be called into question because there is no issue or no real substantive claim that he provided a number, or tried, quote, unquote, in the defendant's words, “try to get the matter resolved and was angry that he rejected the petitioner's offer.”

And so, that all having been said, again, the Court finds that Attorney Mastronardi, having investigated this issue, Attorney Murname specifically, and indicating that he was not able to find any credible evidence to support these claims, it cannot be said that their office was ineffective in failing to raise them.   And by that, the Court finds that, again, as to this claim, they performed adequately and sufficiently because they investigated the claim thoroughly.   They considered the claim and decided to not bring the claim because they were not able to find any evidence to support it;  that is competent and effective assistance of counsel.   Again, even if supposedly there could be some showing that they were not effective, the petitioner, again, has failed to present any evidence to show that he was in anyway prejudiced by this claim.   Again, he hasn't shown that Judge Miano actually presided over the pretrial such as that would have affected his decision making if and when the petitioner was convicted and now it came time for the Court to sentence him.   Obviously the petitioner's claim would be that, well, if the Judge ordered me twenty-seven years and I rejected his offer, and there is emphasis there, and then I went to trial in front of him, he's obviously going to punish me for rejecting his offer.

Again, there has been no credible evidence supported—presented to support that claim.   And frankly, most of the evidence, and all of the evidence this Court heard seems to refute the fact that Judge Miano had anything to do with pretrial negotiations.

Paragraph 21, which is also listed as count 5. Again, ineffectiveness against the Law Offices of Gary Mastronardi for failing to raise the issue that trial counsel was ineffective in allowing the petitioner to plead not guilty where the Court never made a valid finding of probable cause in accordance with the procedures prescribed by law.

Again, this is another claim that relates back to the alleged faulty probable-cause finding.   Since, again, the Court had made a finding for the record that the information it has indicates that there was more than sufficient evidence for the Court to make a probable-cause finding.   The Court has rejected the petitioner's claim that the Court needs to use some magical words or, conversely, that the words used by this Court weren't sufficient under all the facts and circumstance present to clearly indicate that the Court was making a finding that this petitioner—as to this petitioner, that there was probable cause to believe that he had committed the crime of murder.

For all of the same reasons, the Court finds that the petitioner has failed to meet his burden as to this claim, and the petition for writ of habeas corpus is denied.

And again, if I didn't say this, to count 20, which is listed as paragraph 4, the petitioner for writ of habeas corpus is also denied for the reasons previously stated on the record.

As to count 6, which is also listed as paragraph 22, again, The Law Office of Gary Mastronardi was ineffective when it failed to raise the issue that trial counsel was ineffective when he allowed the petitioner to be sentenced on the basis of inaccurate information.   And then that paragraph goes on to relate the basic inaccuracies that the petitioner claims and that he has reiterated here at trial.   And again, based on one of the findings of fact that the Court placed on the record in reading the portion of the sentencing transcript:  First;  as to his claim that he was sentenced on the basis of inaccuracies in his prior criminal history.   Again, the State's Attorney clearly made a point to know—to make the Court aware that there was a question about the accuracy of his criminal history.   The Court, itself, noted that he was aware, in his sentencing comments, that he was aware that there was an inaccuracy in his sentencing transcript.   And the Court, to the extent, did read Judge Gold's decision on the petition for new trial.   And to some extent I will adopt the theory of his finding that reading throughout the sentencing transcript as a whole, it is clear that if there was any reliance at all by the Court—”if” as to these alleged inaccuracies—that it was minimal, it was harmless to the petitioner, it was clear that that Court's focus and really almost the entirety of the Court's comments relate to the petitioner and the nature of the offense, the petitioner driving, stopping the car, chasing the victim down—and so to the extent, even if there was some consideration, and again, I—this Court finds from the record it has, it looks clear that the Court accepted the fact that the record it had before it was inaccurate and did not rely substantially on—it relied on the fact the defendant had some convictions but admitted that there was a question about the accuracy of those convictions.   But, again, all-in-all, from the comments I reviewed, and I reviewed the entirety of sentencing, it appears that if there any potential effect of—of those inaccuracies, were minimal, in light of the nature of the crime and the offense and what the Court heard at sentencing.

So, again, so as to that count, again, as with the others, the Court would find that, again, Attorney Mastronardi—that there was no ineffective assistance by trial counsel;  they performed adequately.   In fact, they didn't have to do anything with regards to this issue because the State's Attorney actually raised the issue.   So an effective counsel would have said, oh, by the way, Your Honor, there is inaccuracies in my client's record I need to bring to your attention.   That was taken care of by the State's Attorney's Office and the State's Attorney actually indicates on the record that he sat down with trial counsel, they went through the record, and they, together, did their best to make sure that that was accurate;  that is what a competent attorney would do.   A competent attorney, realizing that there some question about his client's criminal history—not only sits down with the State's Attorney and talks with him about it, but then, again, as a result of the discussion, will assume that the State's Attorneys willingness to go out and—which, again, he has a forthright duty, but then the State's Attorney goes out himself and notifies the Court that this was brought to my attention, we are notifying the Court.

So, I think, again, counsel performed competently and effectively in making sure that he discussed the matter with the State's Attorney.   As a result of that conversation, inaccuracies were made known to the Court;  that's effective assistance of counsel;  that is what counsel is expected to do.   What happens with that information then, again, is up to the Court.

I think the Court, in its own sentencing comments, indicated, I accept the fact that there is inaccuracies in the criminal record.

So I find, again, that counsel performed adequately and effectively.   And, again, even if it could be found that somehow counsel's performance was not adequate, under the prejudice prong I find that the petitioner has failed to present any evidence here to show that he was prejudiced by this information, or prejudiced in anyway by the Court allegedly relying to an—to an excessive extent on these inaccuracies.   Meaning that;  he has shown here that the result would have been in anyway different than what he got, that he would have gotten a better sentence or a lesser sentence if the Court had been aware that the conviction was—and I think actually the State's Attorney—(unintelligible) the assault, indicated, they believe it was an assault 3rd And his claim here was it wasn't an assault 2nd, it was, in fact, an assault 3rd, but that the sentence was wrong.   That specifically was brought to the Court's attention by the State's Attorney.

As to the probation, I believe the State's Attorney said that—he indicated that the probation as to the assault charge was wrong, that he believed that that was actually the probation received as to the drug conviction.   And, in fact, again, the record would show that it's unlikely he was prejudiced because that charge was nolled or dismissed after the sentencing.   The probation charge.   Whatever case he was on probation for was done.

So, again, the petitioner as to count 6 has failed to show that counsel in anyway failed to perform his duty in such a manner to make the outcome of the sentencing unreliable.   I think he did exactly what was expected by making sure that the issue of the inaccuracies in the presentence investigation were addressed.   He also saw and incurred—made sure that that was addressed on the record;  that is all he can be expected to do.

And I also make a finding that the petitioner has failed to show even if that he was in anyway prejudiced by that information on the record—or I should say, prejudiced by the way in which—again, counsel made sure that the Court was aware of the inaccuracies, and the petitioner has failed to show how, in anyway, he could be prejudiced by his counsel making sure that the Court knew that his record was not, in fact, accurate.   That would only seem to benefit the petitioner because by the way it was corrected it looked—when brought to the Court's attention that he had less felony convictions than the Court initially thought he did.   And the Court actually indicates that;  I thought he had 4 felonies, now he's only has 3.

And that was including the murder conviction which he was being sentenced for.

So, again, for all of those reasons, as to all of the counts, the Court finds that the petitioner has failed to sustain his burden.

And again, as to all counts, so the record is clear, the Court finds both;  that counsel performed effectively and did his duty and performed in a way a competent attorney, under the circumstances at the time, would have.

Alternatively, the Court also find that the petitioner has failed to make a showing as to any of these counts, how, or in what way he was prejudiced, or that there was any prejudice.   So as to either prong under the Strickland v. Washington test, and, again, the cases that follow, petitioner claims fail, and for those reasons the petition for writ of habeas corpus is denied.

The record will reflect that the petitioner is being handed his notice of rights to appeal.

All right.

And, again, the Clerk in this matter, since he is represented pro se, will prepare the judgment file.

And again, defendant has been provided of his rights to appeal.

Anything Attorney Sulik?

ATTY. SULIK:  Yes, Your Honor, just a minor correction.   I believe on two occasions you inadvertently stated that this conviction was 9 years old;  it is 19.

THE COURT:  Oh, 19.   I'm sorry.   You're correct.

I think I was—I think I was looking at the—the—some of the habeas petitions.

Right, the conviction for—for the record, I should be corrected, and according to the petition, was in April 15th of 1992.   And again, that only goes to further to support the Court's indications that there has been litigation on this thing for nearly two decades, and yet, again, the petitioner has not—or the petitioner has had almost two decades to consider this litigation and has not been able to bring any evidence credible or independent evidence to the Court's attention—or to “a” Court's attention, again, as to this allegation, specifically, about Judge Miano presiding over pretrial negations.

PETITIONER:  (Unintelligible) One thing, also, Your Honor, it was assault 3rd on a victim over 60 I was on probation for, which would have been clearly illegal.

THE COURT:  Either way.   It was brought to the Court's attention that there was inaccuracy in your record, and I made a finding, and it doesn't appear from the transcript that I read that the Court substantially relied on your prior criminal history as opposed to the fact that you chased a man down and stabbed him while he was trying to—an unarmed man—while he was trying to retreat over a 5 or 6 month old jail dispute.   And frankly from my reading, that was—that was the substance of what—not all, but the substance of what the Court was concerned with, and the fact that you did have a prior criminal record.   But, I think, again, from my reading of the transcript, the Court's focus was on the nature of the offense primarily.

All right.   Good luck Mr. Francis.

PETITIONER:  Thank you.

CLERK:  (Unintelligible)

THE COURT:  What? Yeah. Oh, and I will order a transcript of my comments, which will become the Memorandum of Decision.

MONITOR:  Where would you like me to start?

(Unintelligible)

THE COURT:  As soon as I came out here on the record and started with my findings of fact.   Everything I said when I came out on the bench after—

MONITOR:—after  their argument?

THE COURT:  After their argument should be considered my Memorandum of Decision, yes.

Newson J. Superior Court Judge

Newson, John M., J.