251319 v. Warden (2013)

MEMORANDUM OF DECISION

On February 1, 2011, the petitioner, John Gauthier, filed a petition for a writ of habeas corpus, which was amended for the second and final time by assigned counsel on February 25, 2013.   The second amended petition raises claims in two counts and challenges the petitioner's convictions in docket numbers CR 08–0243369, judicial district of Hartford, following a jury trial.   The petitioner was represented by Attorney Raul Davila during portions of the underlying criminal matter and at other times represented himself with Attorney Davila acting as standby counsel.

The petitioner was charged by way of a substitute information in docket number CR 08–0243369 with one count of assault in the first degree in violation of General Statutes § 53a–59(a)(2), and one count of assault in the second degree in violation of General Statutes § 53a–60(a)(1).   The petitioner pleaded not guilty to these charges and elected a jury trial.   The state additionally charged the petitioner in two part B informations with being a persistent serious felony offender and having committed an offense while on release in violation, respectively, of General Statutes §§ 53a–40(j) and 53a–40b.   After a trial to a jury, the petitioner was convicted of the lesser included offense of assault in the second degree in violation of General Statutes § 53a–60(a)(1).   The petitioner thereafter pleaded guilty to both part B informations and, on January 3, 2011, was sentenced to a total effective sentence of twenty years, execution suspended after the service of twelve years, followed by five years probation.

The petitioner appealed from the judgment of conviction and claimed that the trial “court's denial of his request for a continuance violated his constitutional right to present a defense.”  State v. Gauthier, 140 Conn.App. 69, 71, cert. denied, 308 Conn. 907, 61 A.3d 1097 (2013).   The Appellate Court affirmed the judgment of conviction.  Id.

The petitioner asserts in count one of the second 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.   More specifically, as identified in the following paragraphs of the second amended petition, the petitioner alleges defense counsel performed deficiently by failing to:  12.a.) properly prepare for trial, having spent only one hour discussing the facts of the case with the petitioner;  12.b.) properly understand the theory of the state's case, and therefore did not cross-examine witnesses in such a way as to test the state's case and put the state to its proof;  12.c.) meaningfully communicate with the petitioner, to the extent that the attorney-client relationship had broken down completely, yet counsel persisted in representing the petitioner at trial;  12.d.) fully investigate the factual background of the charges against the petitioner;  and 12.e.) investigate and prepare the case, and other errors at trial, resulting in the petitioner not being able to properly put on his own case, and prejudiced the petitioner in the presentation thereof.

Count two alleges that the trial court's canvass of the petitioner when he chose to represent himself during the criminal trial was deficient, thus violating his right to a knowing and voluntary waiver of his right to counsel.   More specifically, count two alleges in the following paragraphs that:  17.a.) the trial court failed to question the petitioner regarding “․ and additional facts essential to a broad understanding of the case.”  (Practice Book § 44–3(3));  and 17.b.) the trial court spoke in broad generalities regarding the dangers and disadvantages of self-representation, and did not explain the advantages of having counsel represent him, particularly with respect to the rules of evidence, procedure, and examination of witnesses, all of which fell on the petitioner's shoulders for the remainder of the trial.   The second count explicitly asserts that the petitioner has not raised the claims in count two at trial or on appeal.

The respondent's return denies the petitioner's claims and asserts affirmative defenses to each count.   As to count one, the respondent avers that the claim in count one fails to state a claim upon which habeas corpus relief can be granted, as well as that the petitioner is not entitled to habeas corpus relief, because he represented himself during the criminal trial.   As to count two, the respondent raises the affirmative defense of procedural default premised on the petitioner not raising this claim either at trial or on direct appeal before raising it in this petition.   The petitioner's reply denies both affirmative defenses and alleges he can prove cause and prejudice as to count two.

The parties appeared before this court on April 22 and May 28, 2013, for a trial on the merits.   The petitioner testified and also presented testimony from investigator Donald Light and Attorney Raul Davila.   Additionally, the parties entered into evidence various documents such as the trial transcripts, copies of investigative reports, copies of correspondence and notes, and copies of numerous documents from the criminal court file.

The court has reviewed all of the testimony and evidence.   For the reasons articulated more fully below, the petition for writ of habeas corpus is denied.

DISCUSSION

I. Criminal proceedings and direct appeal

The Appellate Court decision summarizes “[t]he following facts, which the jury reasonably could have found, and procedural history are relevant to [the] appeal.   In the early morning hours of September 20, 2008, Kevin Haythe and the victim were drinking with a mutual friend in the friend's New Britain apartment.   When an argument developed between the mutual friend and Haythe, the victim accompanied Haythe outside the apartment.   While outside, Haythe continued to argue with the mutual friend, who remained on a second floor porch.   The [petitioner], his girlfriend and others, meanwhile, were standing in the yard of a neighboring house.   Apparently believing that the victim was the one arguing with the friend rather than Haythe, the [petitioner] yelled at the victim to ‘calm down.’   He added:  ‘[D]on't think I don't know what you did ․ if I see you around here after tomorrow I'll shoot you in the face.’ ¹  The victim walked away and went into the backyard.   As the victim stood in the backyard sending a text message, the [petitioner] approached the victim and ‘sucker punched’ him on the left side of his face.   The victim fell to his knees and the [petitioner] ‘jumped on [the victim's] back.’   The [petitioner] ‘dug’ his fingers into the victim's eye sockets and ‘tried to pull [his eyes] out.’   The victim screamed ‘[Haythe], please get him off me, get him off me, he's digging my eyes out, he's digging my eyes out.’   Haythe ‘tapped’ the [petitioner] and said ‘it's enough ․ get off him’ and the [petitioner] stopped.²  The victim was treated for his injuries.   As a result of this incident, the victim's right eye was ‘severely deviated outward’ and will ‘never come back’ to its proper position in the eye socket.   He suffered a complete loss of vision in his right eye.   The [petitioner] was arrested and charged pursuant to a second substitute information with assault in the first degree in violation of General Statutes § 53a–59(a)(2) ․

“On October 28, 2010, the second day of trial, the [petitioner] requested to have his special public defender, Raul Davila, dismissed and to have new counsel appointed or, in the alternative, to represent himself.   After a lengthy hearing, the court denied the [petitioner]'s request.   On November 1, 2010, the [petitioner] again requested to represent himself.   After canvassing the [petitioner], the court granted his request to represent himself and appointed Davila as standby counsel.   Later that day, the state rested and the [petitioner] called one witness to the stand.

“On November 2, 2010, the [petitioner] requested a continuance in order to call Davila's investigator, Donald Light, as a witness.   The [petitioner] said he wanted Light to testify about statements allegedly made to him by two of the state's witnesses, Eldridge Evans, who lived on the first floor of the New Britain apartment building where Haythe and the victim had been visiting on September 20, 2008, and Haythe.   Light had included in his report to Davila references to Haythe's statements.   Haythe and Evans both testified as to the events of that night during the state's case.   The court conducted a probing inquiry;  both sides relied on Light's report for the substance of Light's proposed testimony regarding Haythe's statements.   The [petitioner] orally represented to the court the content of Evans' statement to Light.

“The [petitioner] informed the court that aside from Light, he had no additional witnesses.   Davila represented that Light was unavailable that morning, that he ‘might’ be available that afternoon, but he was '99.9 percent assured' that Light would be available the next day.   The [petitioner] represented that Light would testify that (1) Evans told Light that he denied any knowledge of the incident at issue because he ‘was probably drunk,’ which testimony the [petitioner] claimed contradicted Evans' testimony describing the events of the night at issue, (2) Haythe told him ‘that there had been harsh words exchanged between the [petitioner] and the victim which provoked the fight,’ which statement, the [petitioner] argued, was contrary to Haythe's testimony that there were no words exchanged, (3) Haythe told Light that he saw the [petitioner] ‘hit’ the victim, which, the [petitioner] argued, was contrary to Haythe's testimony, because the movement involved in hitting someone is ‘totally different’ from the movement involved in eye-gouging, (4) Haythe admitted to Light to being under the influence of alcohol ‘and/or drugs' at the time of the incident, which statement, the [petitioner] suggested, was contrary to Haythe's testimony that he had consumed alcohol and was unaware of any drug use and (5) Haythe's description to Light of the location of the fight was inconsistent with Haythe's testimony.

“The court denied the [petitioner]'s request for a continuance.   The court reasoned that, to the extent that there were inconsistencies between statements to Light and in-court testimony, neither Davila, who cross-examined Haythe, nor the [petitioner], who cross-examined Evans, had asked these witnesses about any such inconsistencies.   The court further determined that none of Light's proposed testimony was either admissible or material.   The [petitioner] rested his case.   The jury found him guilty of assault in the second degree.”   (Footnote omitted.)  State v. Gauthier, supra, 140 Conn.App. 71–74.

On direct appeal, the petitioner “claim[ed] that the court's denial of his request for a continuance violated his constitutional right to present a defense.”  Id., 71.   The Appellate Court affirmed the judgment of conviction, concluding “[t]he court did not abuse its discretion in denying the request of even a relatively short continuance, where there was no abuse of discretion in the court's preemptive evidentiary rulings and where the evidence sought to be admitted in any event would quite assuredly have made no difference in the outcome.”  Id., 81.

II. Count one—ineffective assistance of counsel

The petitioner in count one of his amended petition alleges that his trial counsel, Attorney Raul Davila, rendered ineffective assistance because he failed to properly investigate and prepare for his case, and because Attorney Davila only spent one hour discussing the facts with the petitioner.   The petitioner made a motion to represent himself in the middle of his trial, which the trial court granted after a thorough canvass.   Attorney Davila was appointed as standby counsel.   The legal standard this court must apply to these claims is well established.³

“ ‘A petitioner's right to the effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution, and by article first, § 8, of the Connecticut constitution.   The right to counsel is the right to the effective assistance of counsel ․ The right to counsel, however, is the right to effective assistance and not the right to perfect representation.’  (Internal quotation marks omitted.)  Woods v. Commissioner of Correction, supra, 85 Conn.App. 549.

“ ‘In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction ․ That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense ․ Unless a [petitioner] makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable.’  (Internal quotation marks omitted.)   Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 798, 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).

“To establish the first prong of the Strickland test, the petitioner must first establish that his attorney's performance was ‘not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ․’ (Citations omitted;  internal quotation marks omitted.)  Summerville v. Warden, 29 Conn.App. 162, 170, 614 A.2d 842 (1992), rev'd on other grounds, 229 Conn. 397, 641 A.2d 1356 (1994).   The court must be mindful that ‘[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’  (Internal quotation marks omitted.)   Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 798–99.

“Turning to the prejudice component of the Strickland test, ‘[i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding ․ Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different ․ When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.’  (Internal quotation marks omitted.)  Woods v. Commissioner of Correction, supra, 85 Conn.App. 550.   A court ‘hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury ․ [A] court making the prejudice inquiry must ask if the [petitioner] has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.’  Strickland v. Washington, supra, 466 U.S. 695–96.”  Lewis v. Commissioner of Correction, 89 Conn.App. 850, 854–56, 877 A.2d 11, cert. denied, 275 Conn. 905, 882 A.2d 672 (2005).

A review of the trial transcripts, as well as his testimony at the habeas trial, indicates that Attorney Davila was familiar with all of the state's witnesses as well as the state's file.   Attorney Davila cross-examined the state's witnesses and wanted to assert self-defense on behalf of the petitioner.   However, before Attorney Davila was able to present such a defense, the petitioner began to represent himself and ultimately decided not to testify and abandoned the self-defense strategy.

Regardless of the length of time Attorney Davila met with the petitioner, the amount of time an attorney spends with his client does not, in and of itself, rise to the level of being deficient performance.  Gonzalez v. Commissioner of Correction, 124 Conn.App. 740, 744–45, 6 A.3d 152 (2009) (per curiam) (petitioner failed to show required prejudice by only showing he was Spanish speaking and met a single time assisted by an interpreter with his attorney to prepare defense against serious felony charges);  Lewis v. Commissioner of Correction, supra, 89 Conn.App. 868 n.5 (although it may have been helpful to trial counsel to meet with client, no deficient performance or prejudice when other associate in firm met with defendant).   Furthermore, the petitioner has not presented any evidence that affirmatively shows that he was prejudiced because Attorney Davila only met with him for an hour.

It was evident during the criminal trial that the petitioner was not satisfied with Attorney Davila's cross-examination of some of the state's witnesses, however, the petitioner's dissatisfaction does not prove his trial counsel's ineffectiveness.   The petitioner must affirmatively show, by overcoming the strong presumption that counsel's questions were shaped by reasonable professional judgment, that Attorney Davila's trial strategy and the tactics he employed were not sound.  Goodrum v. Commissioner of Correction, 63 Conn.App. 297, 303, 776 A.2d 461, cert. denied, 258 Conn. 902, 782 A.2d 136 (2001);  Minnifield v. Commissioner of Correction, 62 Conn.App. 68, 71–72, 767 A.2d 1262 (2001).   More important, the petitioner did not present any evidence that had questions that he deemed necessary been asked that the outcome would have been different.

The court finds Attorney Davila's testimony credible based on the review of the trial transcripts and his testimony at the habeas trial.   Attorney Davila was an experienced litigator who had been in practice since 1993 and represented clients in thousands of cases.   It was Attorney Davila's practice to review the entire file and he testified that he reviewed everything with the petitioner.   He also discussed the charges in laymen's terms with the petitioner and discussed the pros and cons, strengths and weaknesses of trial versus a plea.   According to Attorney Davila, he informed the petitioner that he may or may not object to questions during trial depending on whether it helped or hurt the petitioner.   The court finds relevant that the petitioner used Attorney Davila's closing arguments even after he chose to represent himself during the trial.   If the petitioner were truly dissatisfied with Attorney Davila's representation, it is unlikely that he would have used the closing arguments that Attorney Davila prepared.

Because the petitioner has failed to meet his burden of proving that Attorney Davila's representation was ineffective, the court denies count one of his petition.

III. Count two—trial court errors

The second count of the amended petition asserts two claims of trial court error stemming from its canvass of the petitioner when he chose to represent himself during the criminal trial.   The second count explicitly asserts that the petitioner has not previously raised the claims in count two at trial or on appeal.   The respondent's return asserted procedural default as to these claims in count two and the petitioner's reply alleges ineffective assistance of counsel as the cause and prejudice for the procedural default.

“ ‘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 claims that the trial court failed to sufficiently canvass the petitioner regarding his motion for self-representation.   This matter should have been raised with the trial court or on appeal and the petitioner is procedurally defaulted from raising this issue with the habeas court unless he proves the asserted ineffective assistance (i.e., cause and prejudice).   See Crawford v. Commissioner of Correction, 294 Conn. 165, 190, 982 A.2d 620 (2009).   The petitioner has not presented any evidence that either his trial attorney or appellate counsel rendered deficient performance, let alone the required prejudice.   Thus, the court concludes that the petitioner has procedurally defaulted as to the claims in count two.   Even if the petitioner were not procedurally defaulted, this court's review of the trial transcript shows that the trial court, Alander, J. conducted a very thorough canvass of the petitioner, including the elements of the crimes charged, the maximum penalties, the dangers and disadvantages of self-representation, and his right to a lawyer.   After the canvass the petitioner knowingly and intelligently made a voluntary decision to dismiss his trial counsel and to represent himself during the remainder of his trial.   Respondent's Exhibit A (Transcript, Oct. 29, 2010), at 254–98.   The petitioner also made a motion to represent himself earlier in the trial and the court also conducted a limited canvass at the time, but denied his motion because it would have unduly delayed the trial.   Id., at 113–24.

Attorney Davila was not the first trial counsel to represent Mr. Gauthier.   The petitioner was represented by Attorney Cashman, whom the petitioner asked to dismiss and requested another attorney, at which time Attorney Davila was appointed.  Id., at 131–32.   The petitioner also dismissed another trial counsel, Attorney Jim Schultz in another case.   This court finds that the petitioner was acquainted with the canvass required for self-representation and made the voluntary decision to represent himself.   Therefore, and based upon the foregoing, the court concludes that even if the claims in count two were not procedurally defaulted, they are entirely without merit.

CONCLUSION

Based upon the foregoing, the court concludes that the petitioner has failed to prove the claims raised in his amended petition.   Accordingly, judgment shall enter denying 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. “The victim testified that he had been arrested for raping the defendant's girlfriend and pleaded guilty to unlawful restraint in that case”.  FN1. “The victim testified that he had been arrested for raping the defendant's girlfriend and pleaded guilty to unlawful restraint in that case”

FN2. “Several witnesses testified about the melee.”.  FN2. “Several witnesses testified about the melee.”

FN3. The respondent's return asserts that count one fails to state a claim upon which habeas corpus relief may be granted because the petitioner represented himself during portions of the trial.   Clearly there would be no factual basis for ineffective assistance if the petitioner was not represented by counsel.   But that does not hold true for when the petitioner is represented during other, even critical, stages of the criminal proceedings.   Counsel's performance then must meet the constitutional threshold..  FN3. The respondent's return asserts that count one fails to state a claim upon which habeas corpus relief may be granted because the petitioner represented himself during portions of the trial.   Clearly there would be no factual basis for ineffective assistance if the petitioner was not represented by counsel.   But that does not hold true for when the petitioner is represented during other, even critical, stages of the criminal proceedings.   Counsel's performance then must meet the constitutional threshold.

Kwak, Hunchu, J.