Bobby Johnson v. Warden (2013)

AMENDED MEMORANDUM OF DECISION

The court files the present memorandum of decision to amend the memorandum originally issued on October 4, 2013.   The sole purpose of this amendment is to include the reference now contained in endnote “a.” There have been no other modifications in substance or form.

I. Procedural History

The petitioner was the defendant in a matter pending in the New Haven Judicial District under Docket No. NNH–CR06–059578.   He was arrested on about September 15, 2006, on the force of a warrant charging him with murder, in violation of General Statutes § 53a–54a,¹ and possession of a pistol without a permit, in violation of General Statutes § 29–35,² in connection with the robbery and shooting death of one Herbert Fields on August 1, 2006.   Included in the warrant information was a confession from the petitioner as well as inculpatory statements from his two co-defendants, Kwame Wells–Jordan and Michael Holmes.   Relevant to the petitioner's claims is that he was only sixteen, and his two co-defendants fifteen, at the time of their arrests and interrogation by the New Haven Police Department.   The petitioner was represented at the trial level by Attorney Lawrence Hopkins, assigned counsel from the Division of Public Defender Services.   After entering an unconditional plea of guilty to the charge of murder on the advice of counsel on July 19, 2007, the petitioner was sentenced to an agreed upon sentence of thirty-eight years incarceration on October 26, 2007.

The petitioner commenced the present action by filing a petition for writ of habeas corpus on November 26, 2010.   Following the appointment of counsel, a final three-count amended petition was filed on May 15, 2012;  count one asserting a claim of actual innocence, count two due process violations, and count three ineffective assistance of counsel.   The respondent filed a return on November 5, 2012, generally denying the claims in the petition and asserting the special defenses of waiver and failure to present newly discovered evidence ³ as to count one and waiver and procedural default as to count two.   Simultaneous with the return, the respondent also filed a motion to dismiss counts one and two along with a supporting memorandum of law, the substance of which will be addressed in detail in the first part of this decision.   The petitioner filed a reply to the special defenses on November 27, 2012, and an objection to the motion to dismiss on November 29, 2012.   The court heard arguments from the parties on the motion to dismiss on November 30, 2012, and the matter was tried before the court on various dates beginning that same day and concluding with oral argument on May 29, 2013.⁴  Additional procedural history will be presented as necessary throughout the body of this decision.

RESPONDENT'S MOTION TO DISMISS (# 121.00)

II. Law and Discussion

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the [non-moving party] cannot as a matter of law and fact state a cause of action that should be heard by the court ․” (Internal quotation marks omitted.)  Naier v. Beckenstein, 131 Conn.App. 638, 643, 27 A.3d 104, cert. denied, 303 Conn. 910, 32 A.3d 963 (2011).   When adjudicating a motion to dismiss, “a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”   (Internal quotation marks omitted.)  Lawrence Brunoli, Inc. v. Branford, 247 Conn. 407, 410–11, 722 A.2d 271 (1999).  “The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․ Where, however ․ the motion is accompanied by supporting affidavits containing undisputed facts ․ the court may look to their content for determination of the jurisdictional issue and need not conclusively presume the validity of the allegations of the complaint.”  (Citation omitted;  footnote omitted;  internal quotation marks omitted.)  Barde v. Board of Trustees, 207 Conn. 59, 62, 539 A.2d 1000 (1988).  “Because subject matter jurisdiction implicates the authority of the court, the issue, once raised, must be resolved before proceeding to the merits of the case.”  State v. Fowler, 102 Conn.App. 154, 158, 926 A.2d 672, cert. denied, 284 Conn. 922, 933 A.2d 725 (2007).   The court will address each of the respondent's claims individually.

A. Motion to Dismiss Count One

The respondent moves to dismiss count one, which claims actual innocence, on grounds of waiver and failure to state a claim upon which relief can be granted.   The respondent's position is twofold.   First, the respondent argues that the petitioner's guilty plea operated as a waiver of any claims seeking to attack his plea, except those involving defects in the plea canvass itself or challenging the court's exercise of jurisdiction, and that the petitioner has failed to allege either.   Even if the petitioner has not waived this claim, the respondent argues alternatively that he has failed to state a claim upon which relief can be granted because he has failed to allege anything in count one that could fairly be considered “newly discovered evidence” required to support a claim of actual innocence.   The petitioner, relying primarily on Summerville v. Warden, 229 Conn. 397, 641 A.2d 1356 (1994), argues that Connecticut does recognize a freestanding claim of actual innocence in the habeas context to protect against the injustice of the continued imprisonment of one who may be actually innocent and that “newly discovered” evidence is not necessarily required to pursue an actual innocence claim, but, even if so, that his evidence qualifies as “newly discovered.”

In order to properly address the parties' claims, the court must first construe the specific claim being made by the petitioner.  “The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically ․ [T]he [petition] must be read in its entirety in such a way as to give effect to the pleadings with reference to the general theory upon which it proceeded, and to do substantial justice between the parties ․ Our reading of pleadings in a manner that advances substantial justice means that a pleading must be construed reasonably, to contain all that it fairly means, but carries with it the related proposition that it must not be contorted in such a way so as to strain the bounds of rational comprehension.”  (Internal quotation marks omitted.)   Lebron v. Commissioner of Correction, 274 Conn. 507, 519–20, 876 A.2d 1178 (2005).

In the present case, the substance of the petitioner's claims in count one is that he was coerced by police into confessing to a murder he did not commit, which, in turn, resulted in his plea of guilty to that crime at a later date.   Count one could also be fairly read to incorporate allegations that the State withheld certain exculpatory evidence from the petitioner prior to his guilty plea.⁵  Therefore, the substance of count one is that, notwithstanding his unconditional plea of guilty, the petitioner is actually innocent of the crime, which he claims is supported at least by the fact of his false confession, resulting from police intimidation, and the State's withholding of exculpatory evidence.   It is important to note, however, at least with respect this first claim, that there is no reasonable reading of count one that would allow it to be construed as the petitioner alleging that his guilty plea was rendered unintelligent or involuntary because of the ineffective assistance of counsel, the alleged coerced confession or the claimed Brady violations.   Instead, the petitioner simply asserts these alleged constitutional violations as the “newly discovered evidence” that he believes will support his proof of actual innocence.   No matter what title the petitioner attempts to give to his claim, what count one amounts to is an attempt to challenge an unconditional guilty plea on some basis other than the court's lack of subject matter jurisdiction or a defect in the plea canvass, which is a claim that the petitioner has waived and which may not be reviewed in a habeas corpus action.  D'Onofrio v. Commissioner of Correction, 36 Conn.App. 691, 693–94, 652 A.2d 1058 (1995) (holding that petitioner's habeas claim that escape statute was inapplicable to a person only temporarily transferred to Connecticut under the Interstate Act on Detainers was barred because claim essentially amounted to a challenge to the sufficiency of evidence, which was a claim the petitioner had waived upon entering his valid guilty plea);  Sosa v. Warden, Superior Court, judicial district of Tolland, Docket No. CV–02–0817531 (July 26, 2004, Fuger, J.), appeal dismissed, 94 Conn.App. 521, 893 A.2d 457 (2006) (in rejecting petitioner's actual innocence claim, holding that a defendant who pleads guilty on the advice of counsel must demonstrate that counsel's advice was not within the range of competence demanded of attorneys in criminal cases in order to challenge a guilty plea, also questioning whether a petitioner who enters a guilty plea may thereafter claim actual innocence in a subsequent habeas proceeding).⁶

“[O]ur expectations [are] that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel and that there is nothing to question the accuracy and reliability of the defendants' admission that they committed the crimes with which they are charged.”  Tollett v. Henderson, 411 U.S. 258, 263–64, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), citing Brady v. United States, supra, 377 U.S. 750.  “It is well established that an unconditional plea of guilty, made intelligently and voluntarily, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings ․ [A] guilty plea represents a break in the chain of events which has preceded it in the criminal process.   When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea ․ In general, the only allowable challenges after a plea are those relating either to the voluntary and intelligent nature of the plea or the exercise of the trial court's jurisdiction.”  (Citations omitted, emphasis added, internal quotation marks omitted.)  State v. Hanson, 117 Conn.App. 436, 456, 979 A.2d 576 (2009), cert. denied, 131 S.Ct. 425, 178 L.Ed.2d 331 (2010).  “Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong ․ A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.”  (Internal quotation marks omitted.)  D'Onofrio v. Commissioner of Correction, supra, 36 Conn.App. 694.

In the present case, the petitioner does not challenge, nor is there any question about, the New Haven Judicial District court's jurisdiction to hear his criminal case.   See State v. Carey, 222 Conn. 299, 307, 610 A.2d 1147 (1992).   There is also no claim in count one, nor is there any question upon reviewing the transcript of the plea canvass,⁷ that the petitioner entered a constitutionally valid guilty plea.  State v. Siminausky, 112 Conn.App. 33, 36–37, 961 A.2d 1005 (2009).⁸  Absent any claim that the court lacked the authority to adjudicate the case, that the plea canvass was constitutionally deficient, or that the petitioner received ineffective advice from his counsel in entering the plea, the claim, especially when framed as one of “actual innocence,” stands as nothing more than an after-the-fact challenge to the sufficiency of the evidence, a claim which this court finds the petitioner has waived.  D'Onofrio v. Commissioner of Correction, supra, 36 Conn.App. 693–94.

This court is also persuaded by the decision of the Supreme Court of Indiana in the matter of Norris v. State, 896 N.E.2d 1149 (Ind.2008).   In that case, the petitioner sought to challenge his guilty plea based at least partially on an affidavit from the victim recanting the allegations made against him.   In finding that a petitioner who had entered a guilty plea was barred from collaterally attacking that plea in a habeas corpus proceeding on a claim that he is actually innocent, the court stated:

It is inconsistent to allow defendants who pleaded guilty to use post-conviction proceedings to later revisit the integrity of their plea in light of alleged new evidence seeking to show that they were in fact not guilty.   Both his confession and new claims cannot be true.   A defendant knows at the time of his plea whether he is guilty or not to the charged crime.   With a trial court's acceptance of a defendant's guilty plea, the defendant waives the right to present evidence regarding guilt or innocence ․

A defendant may have recourse to post-conviction proceedings to seek a withdrawal of his guilty plea whenever the plea was not knowingly and voluntarily made.

Id., 1153.  “[A] defendant's post-conviction claim of actual innocence cannot be deemed to deprive him of his due process rights in the face of the fact that the defendant previously confessed to the commission of the crime in his plea ․ If a defendant claims that his guilty plea was coerced, then that coercion provides the necessary constitutional deprivation for which post-conviction relief would be appropriate, but not where he claims actual innocence in the face of a prior, constitutionally valid confession of guilt.”  People v. Barnslater, 373 Ill.App.3d 512, 527, 869 N.E.2d 293, appeal denied, 225 Ill.2d 641, 875 N.E.2d 1115 (2007);  but see Ex parte Tuley, 109 S.W.3d 388, 394 (Tex.Crim.App.2003) (stating “[a]nd though an applicant concedes his guilt by pleading guilty, when new evidence unquestionably established innocence, a conclusion that the applicant was guilty of the offense is anything but plain” in holding that a freestanding claim of actual innocence by a person who entered a guilty plea is a cognizable habeas claim).⁹

The petitioner relies primarily on the case of Summerville v. Warden, supra, 229 Conn. 397, and argues in his brief that “the continued imprisonment of one that is who is actually innocent ․ constitutes a miscarriage of justice.” ¹⁰  Summerville, however, is distinguishable from the present case.   First, the Summerville case, unlike the present one, involved a petitioner who had maintained his innocence and was convicted only after a trial.   The petitioner's argument also ignores the language immediately preceding the language he relies upon in his brief, which states:  “Even the strong interest in the finality of judgments, and the state's interest in retrying defendants with reasonably fresh evidence, does not require the continued imprisonment of one who is actually innocent.   This holding is not inconsistent with our prior statements that habeas corpus is designed to remedy fundamental miscarriages of justice.”  (Emphasis added.)  Id., 1369.   A petitioner who willingly confesses his guilt, absent some defect in the canvass or the constitutionally deficient advice of counsel, however, cannot be said to have entered upon his incarceration by any “miscarriage of justice.”  Id.

Other cases relied upon by the petitioner are also distinguishable from the present case.   In one case relied on by the petitioner, the habeas claim was based on a decision by the state supreme court subsequent to that petitioner's guilty plea significantly narrowing the scope of criminal conduct that fell within the relevant statute;  State v. Nash, 142 N.M. 754, 759, 170 P.3d 533 (2007) (the petitioner, a multiple DUI offender, was allowed to collaterally attack a prior DUI guilty plea to avoid a sentencing enhancement based on a “fundamental error,” because a decision by the state supreme court shortly after the guilty plea significantly narrowed the scope of conduct criminalized by the statute, potentially making the conduct to which the petitioner plead non-criminal);  others relied on broadly worded statutes or rules of practice authorizing the post-conviction relief claims;  Chancy v. State, 938 So.2d 251 (Miss.2006) (the petitioner's challenge to guilty plea brought under the Mississippi Post–Conviction Collateral Relief Act, Miss.Code.Ann. § 99–39–5, which provides, in pertinent part, that “any person” may file a motion to vacate or set aside any conviction “(1) if the person claims ․ (e) [t]hat there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice”);  Moore v. State, 734 N.W.2d 336, 338 (N.D.2007) (evidentiary hearing challenging guilty plea claiming “newly discovered” evidence granted under North Dakota post-conviction relief act, N.D.C.C. § 29–32.2–01(1)(e), allowing post-conviction relief when “[e]vidence, not previously presented and heard, exists requiring vacation of the conviction or sentence in the interest of justice”);  State v. Fontaine, 559 A.2d 622, 625 (RI.1989) (holding that petitioner was entitled to an evidentiary hearing in post-conviction proceeding based on fact that petitioner had entered a “nolo” plea, instead of a plea of guilty, and holding “we are specifically instructed by the Legislature under our post-conviction statute to consider on such an application whether ‘there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interests of justice’ ”);  People v. Schneider, 25 P.3d 755, 760 (Colo.2001) (reversing denial of evidentiary hearing for a petitioner seeking to challenge guilty plea and creating new rule to examine such a challenge based on Colorado Rule of Criminal Procedure 35(c)(2)(V), which provided “every person convicted of a crime” the opportunity to apply for post-conviction remedies if the application alleges “[t]hat there exists evidence of material facts, not theretofore presented and heard ․ and which requires vacation of the conviction or sentence in the interests of justice”);  and in the last case relied upon by the petitioner, the relief was granted on the basis that, as a matter of law, the trial court accepted the defendant's guilty plea when there was an insufficient factual basis upon which to do so, which constituted a due process violation.  State ex rel Verwiere v. Moore, 211 S.W.3d 89, 93 (Mo.2006) (“Given that the evidence presented at the plea hearing and at the hearing before the special master was insufficient to establish the mental element of assault in the first degree ․ and given the fact that the state concedes that there is no other evidence of guilt, this Court holds that Verweire is actually innocent of the offense, that there was no factual basis for the guilty plea, and that his plea was not knowingly and voluntarily entered”).   None of the above cases relied on by the petitioner are similar to the factual circumstances of the present case.   There has been no narrowing or reconstruction of the crime of murder that could claim to have decriminalized the petitioner's conduct, and although Connecticut does have post-conviction relief statutes and practice rules, none of the direction given to Connecticut courts by our legislature or rules of practice are as specifically or as broadly worded as those referenced in the cases relied on by the petitioner.   Whereas the statutes and practice rules cited in the cases above seem to allow “every” aggrieved person to prosecute any claim in the “interests of justice,” no matter what the cause of the petitioner's incarceration, the relatively narrow wording of the language in Connecticut's relevant rules of practice and statutes would seem to be concerned with mistakes, violations of rights, and errors that are beyond the petitioner's control.¹¹

In summary, “there is an inherent paradox in the notion that someone who has stood in open court and declared, ‘I am guilty,’ may turn around years later and claim that he deserves to pass through the actual innocence gateway.   Because a guilty plea waives the defendant's right to prove his actual innocence at trial ․ a strong argument can be made that a guilty plea should absolutely foreclose a post-conviction claim of actual innocence ․” (Citation omitted.)  Weeks v. Bowersox, 119 F.3d 1342, 1355 (8th Cir.1997) (Loken, J., concurring).   Where a petitioner has entered a guilty plea of his own free will and later seeks to challenge that plea absent any allegation of overreaching of the court's jurisdictional powers, infirmity in the plea canvass, or ineffective advice of counsel, he has not alleged any “miscarriage of justice,” but only a regret with his own decision not to withhold his guilty plea and insist that “justice,” whatever meaning that term may have, be carried out.   See id.  “A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case.”  People v. Schneider, supra, 25 P.3d 761, citing, Brady v. United States, supra, 397 U.S. 756.   The opportunity to simply change his mind and to exercise his rights to challenge the sufficiency of the State's evidence is a claim the petitioner waived upon entering his plea before the trial court admitting his guilt and for which habeas relief is not available.  D'Onofrio v. Commissioner of Correction, supra, 36 Conn.App. 693–94.   Based on the foregoing, the respondent's motion to dismiss count one is granted.¹²

Alternatively, even if a habeas claim of actual innocence was cognizable under Connecticut habeas law, the court would also find for the respondent on the alternative ground asserted in the motion to dismiss that the petition fails to state a claim upon which relief could be granted.   First, and despite the petitioner's arguments to the contrary, “newly discovered evidence” is required to support a habeas claim of actual innocence under Connecticut law.   Our Appellate Court “has held that a claim of actual innocence must be based on newly discovered evidence ․ [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered ․ This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence.”  (Citations omitted;  internal quotation marks omitted.)  Johnson v. Commissioner of Correction, 101 Conn.App. 465, 470–71, 922 A.2d 221 (2007).

In the present case, the petitioner asserts in support of his claim of actual innocence that he was coerced into confessing falsely to the crime.   That information cannot be considered “newly discovered,” however, because he would clearly have been aware of that fact before he entered his guilty plea.  Id. The alleged falsity of the confessions offered by the petitioner's codefendants, Mr. Wells–Jordan and Mr. Holmes, also could not be considered “newly discovered,” because the petitioner, at least, to the extent that those statements implicated him in the criminal acts in question, surely would have known whether those statements were false long before he entered his plea and he could have sought to obtain recantations of those statements through due diligence.  Id. Likewise, the petitioner's claim that the State “withheld” evidence that a third party, Mr. Larry Maybery, was known to have been in possession of the murder weapon before the crime and found dead in possession of the murder weapon about ten days afterwards also was not “newly discovered,” nor withheld, for that matter.   The petitioner gave a taped statement to the New Haven Police on September 15, 2006, explaining how he borrowed the gun from Maybery shortly before the shooting and gave it back to him two days after.¹³  Therefore, the petitioner's own statement some ten months prior to his plea indicates that he had personal knowledge of information that could put Maybery in possession of the murder weapon before and after the crime.   Thus, that information also could not be considered “newly discovered.”   Further, the arrest warrant issued for the petitioner also contains a paragraph not only indicating where and when the gun was found on Maybery, but also that the weapon matched up with a shell casing and a projectile recovered from the scene of the crime for which the petitioner was being charged.¹⁴  Therefore, not only did the petitioner have personal knowledge regarding the truth of falsity of Maybery being in possession of the murder weapon, he would also have been aware that there was forensic evidence that could have been used, if decided, to implicate Maybery as the person who committed the crime for which he was being prosecuted.

Finally, the petitioner's claims relating to his co-defendant Kwame Wells–Jordan's subsequent acquittal after trial is also not “new evidence,” nor particularly relevant to the petitioner's claim of actual innocence.   The mere fact that one co-defendant has been acquitted in a separate proceeding is of no particular relevance to the guilt or innocence of other co-defendants.   See State v. Colon, 257 Conn. 587, 603–04, 778 A.2d 875 (2001) (acquittal of co-defendant in separate proceeding by separate factfinder does not constitute inconsistent verdicts).   Secondly, even if relevant, since Wells–Jordan did not go to trial until April 2008, nearly a year after the petitioner entered his guilty plea, it cannot be considered information that could have been discovered through the exercise of due diligence prior to the petitioner's plea.   See Johnson v. Commissioner of Correction, supra, 101 Conn.App. 470–71.   Furthermore, as discussed above, although the petitioner may not have had specific knowledge that Wells–Jordan and Holmes would later claim their confessions were coerced by police, he surely would have possessed the personal knowledge that the claims they made about him being involved in the crime were false.   Therefore, Wells–Jordan's and Holmes' claims of coerced confessions could not be considered “newly discovered” and, even if they could, since the petitioner at least would have known their statements against him to be false, it cannot be said that this information could not have been discovered by the petitioner through the exercise of reasonable diligence and investigation prior to his plea.  Id. Finally, the petitioner's claim that the prosecution of Detective Willoughby for allegedly submitting false payment vouchers for confidential informants, absent any allegation that such conduct directly undermined any of the evidence against the petitioner in the present case, also fails to state a claim for “actual innocence.”  Id.¹⁵

In sum, even reading the complaint in a manner most favorable of the petitioner, as the court must, he has failed to allege any evidence that could reasonably and credibly be considered “newly discovered,” in that it could not have been discovered before he entered his plea in the exercise of due diligence and the remainder amounts to no more than challenges to the accuracy of evidence or statements.   In fact, the irrefutable evidence is that most of the “newly discovered” evidence claimed by the petitioner was something he could have, or should have, had personal knowledge of.   As such, the court finds that the petitioner, having failed to allege anything that could be considered “newly discovered evidence,” as that term has been defined, has failed to allege a claim of “actual innocence” for which habeas relief could be granted.  Johnson v. Commissioner of Correction, supra, 101 Conn.App. 470–71.

B. Respondent's Motion to Dismiss Count Two

The petitioner alleges a due process violation in count two, in that he claims his guilty plea rests upon an involuntary confession obtained through use of improper threats and violence by the New Haven police.   The respondent moves to dismiss count two on the ground that it fails to state a claim upon which relief can be granted because a petitioner may not claim constitutional violations that occurred prior to his guilty plea as a basis for attacking an otherwise valid plea.   The court agrees with the respondent.

“[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process.   When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea ․ In general, the only allowable challenges after a plea are those relating either to the voluntary and intelligent nature of the plea or the exercise of the trial court's jurisdiction.”  (Citation omitted;  internal quotation marks omitted.)  State v. Hanson, supra, 117 Conn.App. 456.  “[A] defendant who alleges that he pleaded guilty because of a prior coerced confession is not, without more, entitled to a habeas corpus hearing on the voluntariness of his plea ... We have said that a guilty plea cannot stand if it was rendered involuntary by a coerced confession but that [t]he mere occurrence of a constitutional violation is not, however, sufficient to render a plea of guilty involuntary and thus susceptible to nullification in habeas corpus proceedings ․ A plea of guilty is not subject to collateral attack on the ground that it was motivated by a coerced confession unless the defendant was incompetently advised by his attorney, and the defendant must show gross error on the part of counsel when he recommended that the defendant plead guilty instead of going to trial and challenging the admissibility of a confession.”   (Citations omitted;  emphasis added;  internal quotation marks omitted.)   Consiglio v. Warden, 160 Conn. 151, 159–60, 276 A.2d 773 (1970).  “Thus, while claims of prior constitutional deprivation may play a part in evaluating the advice rendered by counsel, they are not themselves independent grounds for federal [habeas] relief.”  Tollett v. Henderson, supra, 411 U.S. 267.

In the present case, the petitioner entered his guilty plea upon the advice of counsel.   Reviewing the complaint in a manner most favorable to the petitioner, as the court must, however, nothing in count two can fairly be read to allege that his plea was involuntary as a result of the ineffective advice of counsel or a defect in the plea canvass, nor to attack the court's exercise of jurisdiction.  State v. Hanson, supra, 117 Conn.App. 456.   The petitioner “is not, without more, entitled to a habeas corpus hearing on the voluntariness of his plea.”  Consiglio v. Warden, supra, 160 Conn. 159.   Therefore, count two is dismissed for failure to state a claim upon which relief can be granted.  Id.

Even if it were assumed for purposes of argument that count two encompassed allegations that the petitioner's plea was based on the faulty advice of counsel, the evidence he produced during the trial was insufficient to meet his burden of proof.  Consiglio v. Warden, supra, 160 Conn. 159.

A guilty plea, when entered knowingly, voluntarily and on the advice of counsel, constitutes a waiver of all nonjurisdictional defenses ․ A guilty plea is not, however, a waiver of constitutional claims if it was involuntarily given as a result of a violation of an accused's fundamental constitutional rights ․ A plea of guilty cannot stand if it was rendered involuntary by a coerced confession ․ The mere occurrence of a constitutional violation is not, however, sufficient to render a plea of guilty involuntary and thus susceptible to nullification in a habeas corpus proceeding ․ So long as the guilty plea was voluntarily made, it will withstand a collateral attack despite the fact that the some of the accused's constitutional rights were infringed ․ All of the circumstances surrounding the entry of the guilty plea in court should be considered in determining the voluntariness of the plea ․ the presence of counsel at the time when the plea of guilty was entered militates strongly against a conclusion that the plea was involuntary ․ The plea of guilty will ordinarily not be invalidated if, at the time of the plea, the prosecuting authorities had admissible evidence which was highly damaging to the accused.

(Citations omitted.)  Williams v. Reinke, 157 Conn. 143, 147–49, 249 A.2d 252 (1968).

First, the petitioner has failed to present any evidence that his defense counsel's advice to accept the plea agreement was at all deficient.  “The longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’  “ Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), citing North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

[T]he decision to plead guilty before the evidence is in frequently involves the making of difficult judgments.   All the pertinent facts normally cannot be known unless witnesses are examined and cross examined in court.   Even then the truth will often be in dispute.   In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State's case.   Counsel must predict how the facts, as he understands them, would be viewed by a court.   If proved, would those facts convince a judge or jury of the defendant's guilt?   On those facts would evidence seized without a warrant be admissible?   Would the trier of fact on those facts find a confession voluntary and admissible?   Questions like these cannot be answered with certitude;  yet a decision to plead guilty must necessarily rest upon counsel's answers, uncertain as they may be.   Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court's judgment might be on given facts.

That a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a post-conviction hearing.

McMann v. Richardson, 397 U.S. 759, 769–70, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).  “[The United States Supreme Court] has recognized that the [s]ixth [a]mendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial.”  Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  “The right to counsel plays a crucial role in the adversarial system embodied in the [s]ixth [a]mendment, since access to counsel's skill and knowledge is necessary to accord defendants the ample opportunity to meet the case of the prosecution to which they are entitled.”  Id., 685.

“Where ․ a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases ․ [A] defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [, supra, 379 U.S. 759].”  (Citations omitted;  internal quotation marks omitted.)  Hill v. Lockhart, supra, 474 U.S. 56–57.  “[T]he defendant must show that counsel's representation fell below an objective standard of reasonableness.”  Id., 57.  “[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.”  Strickland v. Washington, supra, 466 U.S. 688.   Even if the petitioner is able to show that counsel's performance was constitutionally deficient, they must also meet the second prong of the test, which “focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.   In other words, in order to satisfy the second prong of the test, the petitioner must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.”   Hill v. Lockhart, supra, 474 U.S. 59;  see also Johnson v. Commissioner of Correction, 285 Conn. 556, 576, 941 A.2d 248 (2008).  “In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner's failure to prove either is fatal to a habeas petition.”  (Internal quotation marks omitted.)  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).

In the present case, defense counsel was presented with a case where the petitioner and his two co-defendants had all given confessions to the crime, and where each of them also implicated the others.   Within that evidence, defense counsel was also confronted with the fact that his client's final statement explained away how another individual, Mr. Larry Maybery, the individual the petitioner now claims actually committed the crime, was found with the murder weapon less than two weeks after the crime for which the petitioner was being prosecuted.¹⁶  The court also finds that the petitioner never claimed to defense counsel that he had falsely confessed under pressure of threats or violence by police, nor did he tell defense counsel anything else that would have reasonably led him to suspect that the petitioner's constitutional rights may have been violated during any of the interrogation sessions.   Although there is no dispute that the petitioner did claim to defense counsel that he did not commit the crime, the court credits the testimony of defense counsel that the petitioner offered no response or reasonable explanation and simply “shrugged his shoulders” when counsel asked him why he confessed.

“[A]lthough it is incumbent upon a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction ․ counsel need not track down each and every lead or personally investigate every evidentiary possibility ․ In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done [by counsel's failure to investigate] is not met by speculation ․ but by demonstrable realities ․ One cannot successfully attack, with the advantage of hindsight, a trial counsel's trial choices and strategies that otherwise constitutionally comport with the standards of competence.”  (Internal quotation marks omitted.)  Johnson v. Commissioner of Correction, supra, 285 Conn. 583–84.

As defense counsel testified at the habeas trial, and the court agrees, it is not so uncommon to have clients facing criminal charges, even those who have confessed or who are faced with overwhelming evidence of guilt, deny committing the offenses for which they are charged that “red flags” should have gone off in counsel's mind presuming that the petitioner had been coerced into confessing.   Without any explanation or insight from his client, it would be unfair and unreasonable to impose as a meter of competent representation that defense counsel should have surmised from the petitioner's unsupported and unarticulated claim of innocence, even where, as here, there are conflicting witness statements, that a direction his investigation should have included was the possibility that police coerced or intimidated the petitioner into fabricating a confession.   That was information wholly personal to the petitioner and, in a case like the present one where there are no glaring and obvious impossibilities in the statements or evidence, without which no reasonable defense attorney would have thought to explore.¹⁷  Strickland v. Washington, supra, 466 U.S. 691 (“[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary ․ [A] decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments”).   Under the circumstances, therefore, defense counsel's failure, if that term is even appropriate, to recognize and investigate the possibility of a claim of coerced confession in the present case was not deficient.  Id. As such, it is not necessary for the court to address the matter of prejudice.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.¹⁸

Based on the foregoing, the respondent's motion to dismiss counts one and two of the petition is GRANTED.   The petitioner's objections are overruled.

PETITION FOR WRIT OF HABEAS CORPUS

II. Law and Discussion

The remaining count of the petition alleges that defense counsel provided ineffective assistance in connection with his advice to the petitioner to enter a plea in this case and with respect to his investigation.   As set forth above, a claim of ineffective assistance in connection with a guilty plea requires the petitioner to prove conjunctively that the representation provided by counsel fell below that of a reasonably educated defense attorney under similar circumstances and that, but for defense counsel's deficient representation, the petitioner would not have plead guilty and would have elected to proceed to trial.  Hill v. Lockhart, supra, 474 U.S. 59.   If the petitioner fails to prove either prong, his claim fails.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

Many of the petitioner's allegations have been dealt with, at least indirectly, in the rulings and finding made by the court above.   For purposes of clarity, however, the court will address each of the petitioner's allegations on the merits here.   First, the court finds there to be a complete lack of proof that defense counsel “pressured” the petitioner to enter a guilty plea in this case.   Under the circumstances of the present case, where the petitioner had given a confession to the crime and then failed or refused to provide defense counsel with any reasonable basis upon which to challenge or “explain away” the confession, counsel's advice to enter a plea in exchange for an agreed upon sentence of thirty-eight years, twenty-two years less than the maximum exposure, was appropriate and reasonable advice under the circumstances.  Hill v. Lockhart, supra, 474 U.S. at 56–57.   Although there are, as in most criminal case, inconsistencies in the evidence and witness statements in the present case, counsel's hands were significantly tied without a way to challenge the potential devastating effect of the petitioner's own words upon a jury.   The court credits counsel's testimony that the petitioner never claimed to him that the police had professed to be in possession of evidence linking him to the crime scene, and the petitioner's own testimony at the Kwame Wells–Jordan trial supports this finding.¹⁹  In the end, with the lack of information provided to him by his client regarding his claims of police coercion and misinformation, counsel provided the petitioner with the most reasonable advice under the circumstances.  Strickland v. Washington, supra, 466 U.S. 688.

Although addressed somewhat above, so that it is perfectly clear, this court specifically finds that there was no evidence that the petitioner ever claimed or even insinuated anything to defense counsel that would have lead a reasonable defense attorney to consider the possibility of a coerced confession.²⁰  Therefore, defense counsel also cannot be said to have been deficient for having failed to investigate this possibility.  Strickland v. Washington, supra, 466 U.S. 691.  “Nowhere in the [petitioner's] lengthy conversation with the court which proceeded the entry of his guilty pleas or in the remarks of [defense counsel or the petitioner] at the sentencing which occurred [ninety-nine days later] ․ was any mention made of the confession.   The only mention of a confession or admission was by the state's attorney ․” Consiglio v. Warden, supra, 160 Conn. 159.²¹  Also unique to this case, and as part of the plea agreement, the court specifically notified the petitioner during his plea canvass on July 9, 2007, that he would ask him again at his sentencing whether he still wished to keep his guilty plea in,²² and on October 26, 2007, after having had the opportunity to consider the significance of his decision for some ninety-nine days, the petitioner affirmed that he wished the court to accept his guilty plea in exchange for a thirty-eight-year sentence.²³  “A habeas court, as well as a trial court, may properly rely on ․ the responses of the [defendant] at the time he responded to the trial court's plea canvass, in determining that he was adequately informed of the elements of the offense charged.”  Bowers v. Warden, 19 Conn.App. 440, 443, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989).   All of the credible evidence presented in the present case supports a finding that the petitioner was fully and adequately advised of all of the necessary elements of his plea, that he fully understood the constitutional, legal and personal consequences of that decision, that counsel's advice under the circumstances was reasonable and competent, which leads to a conclusion that the petitioner entered a knowing, intelligent and voluntary guilty plea.   Hill v. Lockhart, supra, 474 U.S. 56–57.

The court found the evidence the petitioner attempted to offer regarding the claim that Detective Willoughby, one of the primary investigating detectives, had supposedly obtained a number of false confessions in unrelated New Haven homicide cases mostly irrelevant and inadmissible in these proceedings,²⁴ and also unsupported by what evidence this court did allow in.   However, even if true, this court finds that such a claim would not have been something that a reasonable defense counsel could have been expected to have been aware of or to have sought to investigate in the abstract without having received some specific credible information in advance.  Strickland v. Washington, supra, 466 U.S. 688.   The court also found the petitioner's claim that Detective Willoughby had allegedly falsified documents in other unrelated cases mostly irrelevant to these proceedings.²⁵  What evidence the court did allow in, again, failed to undermine any of the evidence supporting the petitioner's arrest or conviction in the present case.   In fact, the internal affairs investigation into Detective Willoughby's alleged falsification of informant payment voucher forms did not even begin until December 20, 2007, which was two months after the petitioner was sentenced.   If an investigation had not commenced into alleged wrongdoing by Detective Willoughby until after the petitioner was sentenced, then it cannot be considered something that a reasonable defense counsel could have been expected to know or to have sought prior to advising the petitioner to accept the plea agreement.  Strickland v. Washington, supra, 466 U.S. 688.

The petitioner's claim that Detective Willoughby falsified documents related to this particular case was clearly relevant;  however, the fact that any particular evidence or statement in this case was actually fabricated was unsupported by any credible evidence.   For instance, other than the testimony of the petitioner's grandfather denying certain negative statements about the petitioner's possible involvement in the crime attributed to him in the arrest warrant prepared by Detective Willoughby, the petitioner has presented no evidence to establish that those statements were, in fact, false.   Additionally, even if the statements attributed to the grandfather were presumed false, the information was inadmissible hearsay ²⁶ and not likely to have contributed at all to the court's finding of probable cause to execute the warrant, especially when viewed in light of the petitioner's confession.   Additionally, the petitioner's claim that Detective Willoughby falsified an Informant Payment Request Form ²⁷ related to this case also had no particular relevance to the finding of probable cause to arrest the petitioner, nor was there anything of significant evidentiary value in the form.   Again, the New Haven Police Department did not begin their investigation into any alleged falsification of payment vouchers by Detective Willoughby until December 20, 2007, some two months after the petitioner's sentencing, and did not conclude the investigation until sometime in the middle of 2008.   As such, defense counsel cannot be said to have been ineffective for failing to have obtained or to have investigated information that did not exist at the time of his representation.  Strickland v. Washington, supra, 466 U.S. 688.   Finally, although defense counsel may have been able to find some way within the confines of the Code of Evidence to use the information that Detective Willoughby had falsely attributed statements to the petitioner's grandfather to attack Willoughby's credibility if the matter had gone to trial, it was hearsay evidence of insignificant evidentiary value, in light of the petitioner and his co-defendants' confessions.   Therefore, the court can find no deficiency in defense counsel's failure to have interviewed the grandfather about hearsay information the grandfather supposedly heard on the streets.  Id. Additionally, the court finds that the information attributed to the grandfather in the warrant, being nothing more than “street gossip,” was unlikely to have had any appreciable effect on counsel's advice or the petitioner's decision to enter a plea or to proceed to trial.   Therefore, even if counsel could be said to have been ineffective for failing to interview the grandfather about the statements attributed to him, the petitioner's claim would still fail, because he suffered no prejudice as a result.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

The court also finds that defense counsel was not deficient for failing to investigate the possibility that the confessions given by the petitioner's co-defendants were false and coerced because, as discussed in some detail above, the court finds that the petitioner failed to provide defense counsel with any information that would have lead a reasonable defense attorney under similar circumstances to believe that the petitioner's own confession was the result of coercion or threats by the police.   That being the case, there would be even less reason for counsel to have suspected or to have investigated that possibility with respect to the co-defendants.  Strickland v. Washington, supra, 466 U.S. 688.

Finally, the petitioner insists that defense counsel should have investigated the possible relationship between Maybery and Richard Benson, because Benson's palm print was located on the passenger side of the victim's vehicle and, according to the petitioner's theory, since Maybery and Benson were “like brothers” and Maybery was found with the murder weapon shortly after the crime, this would have provided a basis upon which defense counsel could have supported a claim of third-party culpability against Maybery and Benson.   First, defense counsel did consider the issue of Benson's palm print being on the victim's vehicle, however, since there was no report of him being seen at the scene of the crime, he conceded that the print evidence could not conclusively establish when Benson had come into contact with the victim's vehicle.   Additionally, as defense counsel testified, although this information may have been particularly exculpatory for the petitioner's co-defendant, who was alleged to have been gone into the vehicle on the passenger side, it was not particularly exculpatory without the petitioner's assistance in explaining away his confession to the police that he shot the victim and had given the murder weapon back to Maybery shortly afterwards.   In other words, even if accepted as conclusive evidence that Benson was present at the time of the crime, all the palm print evidence would prove is that there was either a fourth, unnamed, person on the other side of the vehicle from where the petitioner placed himself or that the petitioner had misidentified one of the other participants who assisted him with the crime, but it would not undermine any of the evidence, namely his own confession, that existed against the petitioner.   Under these circumstances, without assistance and direction from the petitioner in explaining away his own confession, it was not unreasonable for defense counsel to have deciphered and investigated the abstract possibility that a defense of third-party culpability may have existed against Larry Maybery for the murder of Herbert Fields.  Strickland v. Washington, supra, 466 U.S. 688.

III. Conclusiona

In summary, the respondent's motion to dismiss Counts One and Two of the petition is GRANTED.   After being heard the sole remaining claim, Count Three, on the merits, the petition for writ of habeas corpus is DENIED.   Judgment on all claims is rendered in favor of the respondent.

If either party 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–54a.   Murder, provides, in pertinent part:(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception;  except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime ․.  FN1. General Statutes § 53a–54a.   Murder, provides, in pertinent part:(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception;  except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime ․

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. From the arguments presented by the parties, the court understands this to be a claim that the allegations contained in the petition fail to state a claim upon which relief can be granted..  FN3. From the arguments presented by the parties, the court understands this to be a claim that the allegations contained in the petition fail to state a claim upon which relief can be granted.

FN4. Because of the timing of the motion to dismiss, the parties stipulated that the court's ruling would be issued contemporaneously with its decision on the merits of the case after the close of evidence..  FN4. Because of the timing of the motion to dismiss, the parties stipulated that the court's ruling would be issued contemporaneously with its decision on the merits of the case after the close of evidence.

FN5. Although no case was cited by the petitioner, it was clear that he was claiming a Brady violation.  “The United States Supreme Court has held [in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ] that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith of bad faith of the [government] ․ This type of violation of the defendant's due process rights is commonly referred to as a Brady violation.”   (Internal quotation marks omitted.)  Davis v. Commissioner of Correction, 140 Conn.App. 598, 605–06, 59 A.3d 403 (2013).  “In order to prove a Brady violation, the defendant must show:  (1) that the prosecution suppressed evidence after a request by the defense;  (2) that the evidence was favorable to the defense;  and (3) that the evidence was material ․ General Statutes § 54–86c has amplified the first prong of the Brady test in Connecticut by imposing a continuing duty on the state to disclose both all exculpatory information in its possession and exculpatory information of which it subsequently becomes aware, regardless of a request by the defendant.”  (Citation omitted;  internal quotation marks omitted.)  State v. Caracoglia, 134 Conn.App. 175, 185, 38 A.3d 226 (2012)..  FN5. Although no case was cited by the petitioner, it was clear that he was claiming a Brady violation.  “The United States Supreme Court has held [in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ] that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith of bad faith of the [government] ․ This type of violation of the defendant's due process rights is commonly referred to as a Brady violation.”   (Internal quotation marks omitted.)  Davis v. Commissioner of Correction, 140 Conn.App. 598, 605–06, 59 A.3d 403 (2013).  “In order to prove a Brady violation, the defendant must show:  (1) that the prosecution suppressed evidence after a request by the defense;  (2) that the evidence was favorable to the defense;  and (3) that the evidence was material ․ General Statutes § 54–86c has amplified the first prong of the Brady test in Connecticut by imposing a continuing duty on the state to disclose both all exculpatory information in its possession and exculpatory information of which it subsequently becomes aware, regardless of a request by the defendant.”  (Citation omitted;  internal quotation marks omitted.)  State v. Caracoglia, 134 Conn.App. 175, 185, 38 A.3d 226 (2012).

FN6. Although other Connecticut courts also have addressed the issue of whether a petitioner who has been convicted by a guilty plea may pursue a free-standing claim of actual innocence in a habeas petition in a variety of procedural stances, there do not appear to be any other cases where the ability to pursue such a claim was directly challenged by a motion to dismiss asserting waiver.   See Sosa v. Warden, supra, Docket No. CV–02–0817531, (declining to address claim on its merits and questioning whether the right to bring an actual innocence claim after a guilty plea actually exists in Connecticut);  Fulcher v. Warden, Superior Court, judicial district of New Haven at New Haven, Docket No. CV–02–463468 (April 12, 2006, Corradino, J.) (addressing the petition on its merits, but holding “[f]rom the foregoing it would seem that where a plea of guilty or nolo contender (sic) has been entered a petitioner cannot rely on a so-called free standing claim of actual innocence”);  Ricks v. Warden, Superior Court, judicial district of Tolland, Docket No. CV–00–0003327 (June 28, 2004, Fuger, J.) (questioning whether petitioner who pleads guilty may bring actual innocence claim in habeas proceeding, but noting that respondent had failed to file a motion to dismiss);  but see, Varchetta v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV04–000435 1 (April 3, 2006, Santos, J.) (petition denied, but addressing the merits of a free-standing claim of actual innocence by a petitioner who was convicted by a voluntary guilty plea);  Waller v. Warden, Superior Court, judicial district of New London, Docket No. 560763 (July 1, 2003, Purtill, J.) (addressing claim of actual innocence on merits of petitioner who entered guilty plea, but where record does not appear to reveal any challenge to the viability of the claim);  Compare Danzy v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV05–4000543 (Oct. 15, 2008, Nazzaro, J.) (denying motion to dismiss claim of actual innocence brought by petitioner who had entered an unconditional nolo plea to charges, but where respondent's basis for dismissal was that allegations failed to allege sufficient facts of “newly discovered evidence,” not waiver)..  FN6. Although other Connecticut courts also have addressed the issue of whether a petitioner who has been convicted by a guilty plea may pursue a free-standing claim of actual innocence in a habeas petition in a variety of procedural stances, there do not appear to be any other cases where the ability to pursue such a claim was directly challenged by a motion to dismiss asserting waiver.   See Sosa v. Warden, supra, Docket No. CV–02–0817531, (declining to address claim on its merits and questioning whether the right to bring an actual innocence claim after a guilty plea actually exists in Connecticut);  Fulcher v. Warden, Superior Court, judicial district of New Haven at New Haven, Docket No. CV–02–463468 (April 12, 2006, Corradino, J.) (addressing the petition on its merits, but holding “[f]rom the foregoing it would seem that where a plea of guilty or nolo contender (sic) has been entered a petitioner cannot rely on a so-called free standing claim of actual innocence”);  Ricks v. Warden, Superior Court, judicial district of Tolland, Docket No. CV–00–0003327 (June 28, 2004, Fuger, J.) (questioning whether petitioner who pleads guilty may bring actual innocence claim in habeas proceeding, but noting that respondent had failed to file a motion to dismiss);  but see, Varchetta v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV04–000435 1 (April 3, 2006, Santos, J.) (petition denied, but addressing the merits of a free-standing claim of actual innocence by a petitioner who was convicted by a voluntary guilty plea);  Waller v. Warden, Superior Court, judicial district of New London, Docket No. 560763 (July 1, 2003, Purtill, J.) (addressing claim of actual innocence on merits of petitioner who entered guilty plea, but where record does not appear to reveal any challenge to the viability of the claim);  Compare Danzy v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV05–4000543 (Oct. 15, 2008, Nazzaro, J.) (denying motion to dismiss claim of actual innocence brought by petitioner who had entered an unconditional nolo plea to charges, but where respondent's basis for dismissal was that allegations failed to allege sufficient facts of “newly discovered evidence,” not waiver).

FN7. Exhibit F, Transcript of State v. Johnson, July 19, 2007..  FN7. Exhibit F, Transcript of State v. Johnson, July 19, 2007.

FN8. “[The] constitutional essentials for the acceptance of a plea of guilty are included in our rules and are reflected in Practice Book §§ [39–19 and 39–20] ․ In order for a plea to be valid, the record must affirmatively disclose that the defendant understands the nature of the charge upon which the plea is entered ․ the mandatory minimum sentence, if any ․ the fact that a statute does not permit the sentence to be suspended ․ the maximum possible sentence ․ and that the defendant has the right to plead not guilty or to persist in that plea if already made, the right to a trial by a jury or judge, the right to assistance of counsel, the right to confront the defendant's accusers and the right against compelled self-incrimination ․ The record must further disclose that the plea is voluntary and not the result of threats or promises.”   (Citation omitted;  internal quotation marks omitted.)  State v. Siminausky, supra, 112 Conn.App. 36–37..  FN8. “[The] constitutional essentials for the acceptance of a plea of guilty are included in our rules and are reflected in Practice Book §§ [39–19 and 39–20] ․ In order for a plea to be valid, the record must affirmatively disclose that the defendant understands the nature of the charge upon which the plea is entered ․ the mandatory minimum sentence, if any ․ the fact that a statute does not permit the sentence to be suspended ․ the maximum possible sentence ․ and that the defendant has the right to plead not guilty or to persist in that plea if already made, the right to a trial by a jury or judge, the right to assistance of counsel, the right to confront the defendant's accusers and the right against compelled self-incrimination ․ The record must further disclose that the plea is voluntary and not the result of threats or promises.”   (Citation omitted;  internal quotation marks omitted.)  State v. Siminausky, supra, 112 Conn.App. 36–37.

FN9. Although Tuley would seem to directly contradict the reasoning of this court, the uniqueness of the facts of Tuley cannot be overlooked.   Tuley was charged with sexual assault based on allegations from the daughter of his then girlfriend.   He maintained his innocence through a first trial with privately retained counsel, which ended in a mistrial when the jury could not reach a verdict.   The state indicated its intention to retry the matter and the petitioner, who had been incarcerated on bond for ten months prior to his first trial, had run out of funds and was required to release the privately retained counsel of his choice for a court appointed counsel.   Subsequent to his plea, he was also able to obtain affidavits from the alleged victim and two corroborating witnesses confirming that, beginning only days after her original allegations, the victim had confessed numerous times to third parties to fabricating the claims against the petitioner.   Finally, the habeas court judge in Tuley was in the unique position that she was the same judge that had presided over the petitioner's trial and taken his guilty plea and noted her surprise at the petitioner's guilty plea based on the evidence that had come out at trial.   Most notably:  “The convicting court recalled the trial, due to ‘the exceptional nature of the testimony adduced before it during the trial ․ Rife with material contradictions, this Court observed instance upon instance of testimony that either conflicted with testimony given by other State's witnesses or with was simply implausible.’  “ Ex parte Tuley, supra, 109 S.W.3d 396.   Therefore, when examined on its facts, Tuley, as argued by the respondent, is significantly different from the present case in that the reviewing habeas court had a full trial record with which it could compare the evidence presented in support of the claim of actual innocence..  FN9. Although Tuley would seem to directly contradict the reasoning of this court, the uniqueness of the facts of Tuley cannot be overlooked.   Tuley was charged with sexual assault based on allegations from the daughter of his then girlfriend.   He maintained his innocence through a first trial with privately retained counsel, which ended in a mistrial when the jury could not reach a verdict.   The state indicated its intention to retry the matter and the petitioner, who had been incarcerated on bond for ten months prior to his first trial, had run out of funds and was required to release the privately retained counsel of his choice for a court appointed counsel.   Subsequent to his plea, he was also able to obtain affidavits from the alleged victim and two corroborating witnesses confirming that, beginning only days after her original allegations, the victim had confessed numerous times to third parties to fabricating the claims against the petitioner.   Finally, the habeas court judge in Tuley was in the unique position that she was the same judge that had presided over the petitioner's trial and taken his guilty plea and noted her surprise at the petitioner's guilty plea based on the evidence that had come out at trial.   Most notably:  “The convicting court recalled the trial, due to ‘the exceptional nature of the testimony adduced before it during the trial ․ Rife with material contradictions, this Court observed instance upon instance of testimony that either conflicted with testimony given by other State's witnesses or with was simply implausible.’  “ Ex parte Tuley, supra, 109 S.W.3d 396.   Therefore, when examined on its facts, Tuley, as argued by the respondent, is significantly different from the present case in that the reviewing habeas court had a full trial record with which it could compare the evidence presented in support of the claim of actual innocence.

FN10. Petitioner's Memorandum in Opposition to the State's November 2, 2012 Motion to Dismiss, p. 11..  FN10. Petitioner's Memorandum in Opposition to the State's November 2, 2012 Motion to Dismiss, p. 11.

FN11. Practice Book § 42–53.   Motion for New Trial;  In General:  (a) Upon motion of the defendant, the judicial authority may grant a new trial if it is required in the interests of justice.   Unless the defendant's noncompliance with these rules or with other requirements of law bars his or her asserting the error, the judicial authority shall grant the motion:(1) For an error by reason of which the defendant is constitutionally entitled to a new trial;  or(2) For any other error which the defendant can establish was materially injurious to him or her.(b) If the trial was by the court and without a jury, the judicial authority, with the defendant's consent and instead of granting a new trial, may vacate any judgment entered, receive additional evidence, and direct the entry of a new judgment.Practice Book § 42–55.   Time for Filing Motion for New Trial Based on Newly Discovered Evidence:  A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with General Statutes § 52–270.   The judicial authority may grant the petition even though an appeal is pending.General Statutes § 52–270.   Causes for which new trials may be granted. (a) The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases.   The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.(b) An affidavit signed by any party or his or her attorney shall be presumptive evidence of want of actual notice..  FN11. Practice Book § 42–53.   Motion for New Trial;  In General:  (a) Upon motion of the defendant, the judicial authority may grant a new trial if it is required in the interests of justice.   Unless the defendant's noncompliance with these rules or with other requirements of law bars his or her asserting the error, the judicial authority shall grant the motion:(1) For an error by reason of which the defendant is constitutionally entitled to a new trial;  or(2) For any other error which the defendant can establish was materially injurious to him or her.(b) If the trial was by the court and without a jury, the judicial authority, with the defendant's consent and instead of granting a new trial, may vacate any judgment entered, receive additional evidence, and direct the entry of a new judgment.Practice Book § 42–55.   Time for Filing Motion for New Trial Based on Newly Discovered Evidence:  A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with General Statutes § 52–270.   The judicial authority may grant the petition even though an appeal is pending.General Statutes § 52–270.   Causes for which new trials may be granted. (a) The Superior Court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases.   The judges of the Superior Court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of an action.(b) An affidavit signed by any party or his or her attorney shall be presumptive evidence of want of actual notice.

FN12. The court's ruling in the present case is not inconsistent with its recent decision in the matter of Barile v. Warden, Superior Court, judicial district of Tolland, Docket No. CV–10–4003798 (Aug. 13, 2013, Newson, J.).   In Barile, this Court held that the applicable standard to review a claim of actual innocence by a petitioner who had pled guilty to a kidnapping charge was the “actual innocence” standard set forth in U.S. v. Scruggs, 916 F.Sup.2d 670 (N.D. Mississippi 2012).   First, this Court specifically refused to decide the issue of whether a petitioner may, in fact, challenge a guilty plea by a claim of actual innocence in Connecticut in Barile.   Instead, this court held:  “[a]fter considering the matter, however, it is the conclusion of this court that the specific question of whether the petitioner's guilty plea constituted a waiver of a habeas claim based on the Salamon decision need not be addressed, because the petitioner's claim would fail even if the court assumed for purpose of argument that waiver was inapplicable.”  Barile, supra, Judicial District of Tolland.   Another reason why the Barile decision is distinguishable from the present case is that although Barile and Scruggs both involved guilty pleas, the habeas challenge in each of those cases was based on a subsequent appellate court decision holding that the scope of conduct criminalized by the statutes in question were being interpreted too broadly by courts and holdings that substantially narrowed the scope of conduct that that statutes should have applied to at the time of each petitioner's plea.   The claim in Scruggs was based on the decision in Skilling v. United States, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), which substantively narrowed the scope of the honest services mail fraud statute, 18 U.S.C. § 1346, under which he had been convicted.   The claim in Barile was based on the decision in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), which narrowed and modified the definition of what the state must prove to convict a person of kidnapping when committed in conjunction with another crime, stating that the jury must be instructed that “to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim's liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime.”  Id., 542.   In other words, although the claim in Barile was actual innocence, it was based on the fact that the conduct, even if committed as alleged by the State, may not have constituted a crime.   In the present case, there has been no such subsequent change in the definition of murder upon which the petitioner relies..  FN12. The court's ruling in the present case is not inconsistent with its recent decision in the matter of Barile v. Warden, Superior Court, judicial district of Tolland, Docket No. CV–10–4003798 (Aug. 13, 2013, Newson, J.).   In Barile, this Court held that the applicable standard to review a claim of actual innocence by a petitioner who had pled guilty to a kidnapping charge was the “actual innocence” standard set forth in U.S. v. Scruggs, 916 F.Sup.2d 670 (N.D. Mississippi 2012).   First, this Court specifically refused to decide the issue of whether a petitioner may, in fact, challenge a guilty plea by a claim of actual innocence in Connecticut in Barile.   Instead, this court held:  “[a]fter considering the matter, however, it is the conclusion of this court that the specific question of whether the petitioner's guilty plea constituted a waiver of a habeas claim based on the Salamon decision need not be addressed, because the petitioner's claim would fail even if the court assumed for purpose of argument that waiver was inapplicable.”  Barile, supra, Judicial District of Tolland.   Another reason why the Barile decision is distinguishable from the present case is that although Barile and Scruggs both involved guilty pleas, the habeas challenge in each of those cases was based on a subsequent appellate court decision holding that the scope of conduct criminalized by the statutes in question were being interpreted too broadly by courts and holdings that substantially narrowed the scope of conduct that that statutes should have applied to at the time of each petitioner's plea.   The claim in Scruggs was based on the decision in Skilling v. United States, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010), which substantively narrowed the scope of the honest services mail fraud statute, 18 U.S.C. § 1346, under which he had been convicted.   The claim in Barile was based on the decision in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), which narrowed and modified the definition of what the state must prove to convict a person of kidnapping when committed in conjunction with another crime, stating that the jury must be instructed that “to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim's liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime.”  Id., 542.   In other words, although the claim in Barile was actual innocence, it was based on the fact that the conduct, even if committed as alleged by the State, may not have constituted a crime.   In the present case, there has been no such subsequent change in the definition of murder upon which the petitioner relies.

FN13. Exhibit I, Transcript of Interview of Bobby Johnson 9–15–06, pp. 7 and 21..  FN13. Exhibit I, Transcript of Interview of Bobby Johnson 9–15–06, pp. 7 and 21.

FN14. “18.   On 9/15/06, the New Haven Police Department was notified by the Connecticut Forensic Laboratory's Firearms Unit that a .45 caliber pistol was recovered from the person of Lawrence Maybery, B/M (dob 02/14/89) who was shot and killed on 8/30/06, matched the shell casings recovered from the street outside Field's vehicle, and the projectile recovered from within Field's vehicle at the scene 241 West Ivy Street.   That during the interview with Bobby Johnson he identified Lawrence Maybery as his cousin.”   Exhibit O, Arrest Warrant for Bobby Johnson, p. 7, pp. 18..  FN14. “18.   On 9/15/06, the New Haven Police Department was notified by the Connecticut Forensic Laboratory's Firearms Unit that a .45 caliber pistol was recovered from the person of Lawrence Maybery, B/M (dob 02/14/89) who was shot and killed on 8/30/06, matched the shell casings recovered from the street outside Field's vehicle, and the projectile recovered from within Field's vehicle at the scene 241 West Ivy Street.   That during the interview with Bobby Johnson he identified Lawrence Maybery as his cousin.”   Exhibit O, Arrest Warrant for Bobby Johnson, p. 7, pp. 18.

FN15. The evidence offered in support of this claim was that Detective Willoughby had falsely included in a voucher payment request for an informant related to this murder investigation that he obtained information from the informant who “heard” from others on the street that the petitioner may have been involved in the crime.   The essence of the petitioner's claim was that the informant was fictional and that Detective Willoughby had fabricated the payment request voucher.   The alleged information from the informant, however, was not included in the final arrest warrant for the petitioner and, in light of the confessions given by him and his two co-defendants, was irrelevant and immaterial to the finding of probable cause for his arrest.   It should also be noted that the petitioner conceded during evidence that Detective Willoughby was ultimately tried and acquitted of all charges relating to a criminal case that arose out of an internal affairs investigation claiming he was submitting and profiting from the submission of false informant voucher request forms..  FN15. The evidence offered in support of this claim was that Detective Willoughby had falsely included in a voucher payment request for an informant related to this murder investigation that he obtained information from the informant who “heard” from others on the street that the petitioner may have been involved in the crime.   The essence of the petitioner's claim was that the informant was fictional and that Detective Willoughby had fabricated the payment request voucher.   The alleged information from the informant, however, was not included in the final arrest warrant for the petitioner and, in light of the confessions given by him and his two co-defendants, was irrelevant and immaterial to the finding of probable cause for his arrest.   It should also be noted that the petitioner conceded during evidence that Detective Willoughby was ultimately tried and acquitted of all charges relating to a criminal case that arose out of an internal affairs investigation claiming he was submitting and profiting from the submission of false informant voucher request forms.

FN16. Exhibit I, Transcript of Statement of Bobby Johnson 9–15–06, p. 21..  FN16. Exhibit I, Transcript of Statement of Bobby Johnson 9–15–06, p. 21.

FN17. The detailed proof of the circumstances of an interrogation required to prove that the petitioner's confession was involuntary would make it an impossible task to complete without a detailed recitation of facts from the petitioner himself.  “In order to be voluntary a confession must be the product of an essentially free and unconstrained choice by the maker ․ If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of the confession offends due process ․ The determination of whether a confession is voluntary must be based on a consideration of the totality of circumstances surrounding it ․ including both the characteristics of the accused and the details of the interrogation ․ Factors that may be taken into account, upon a proper factual showing, include:  the youth of the accused;  his lack of education;  his intelligence;  the lack of any advice as to his constitutional rights;  the length of detention;  the repeated and prolonged nature of the questioning;  and the use of physical punishment, such as the deprivation of food and sleep ․ Under the federal constitution, however, coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ ․” (Citations omitted;  internal quotation marks omitted.)  State v. James, 237 Conn. 390, 410–11, 678 A.2d 1338 (1996)..  FN17. The detailed proof of the circumstances of an interrogation required to prove that the petitioner's confession was involuntary would make it an impossible task to complete without a detailed recitation of facts from the petitioner himself.  “In order to be voluntary a confession must be the product of an essentially free and unconstrained choice by the maker ․ If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of the confession offends due process ․ The determination of whether a confession is voluntary must be based on a consideration of the totality of circumstances surrounding it ․ including both the characteristics of the accused and the details of the interrogation ․ Factors that may be taken into account, upon a proper factual showing, include:  the youth of the accused;  his lack of education;  his intelligence;  the lack of any advice as to his constitutional rights;  the length of detention;  the repeated and prolonged nature of the questioning;  and the use of physical punishment, such as the deprivation of food and sleep ․ Under the federal constitution, however, coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ ․” (Citations omitted;  internal quotation marks omitted.)  State v. James, 237 Conn. 390, 410–11, 678 A.2d 1338 (1996).

FN18. Even if the court were to reach the merits of this claim, the petitioner's evidence of his alleged coerced confession, other than his own testimony, which the court found lacked credibility, was unsupported by the evidence.   The testimony of their expert witness, Dr. Alan Goldstein, was based primarily on the fact that he simply believed the petitioner's claims, and his opinions were largely discredited by the evidence.   He either did not review or wholly ignored evidence contrary to his opinions about the petitioner's personality traits.   For example, in rendering his opinion that the petitioner was suspect to being coerced into giving a false confession because he was quiet, non-disruptive and submissive to authority, he relied only on information provided by the petitioner and his relatives while ignoring educational records in his possession indicating that by the age of eleven, some five years before this crime, the petitioner had already accumulated sixteen suspensions for disruptive behavior, foul language, a threat to stab another student, and at least one threat of assault towards a teacher, that he was disrespectful towards teachers, blamed others and refused to accept responsibility for his actions.   Dr. Goldstein was also forced to admit that the independent educational or testing records he did review in forming his opinion of the petitioner were from when the petitioner was eleven years old or younger, some five years or more before the time of the alleged crime.   Dr. Goldstein also was either unaware of, or ignored, contradictions in the petitioner's own statements during their interviews, such as where Dr. Goldstein testified before this court that, in his opinion, one of the contributing factors that allowed the police to obtain a false confession from the petitioner was the petitioner's reports to him that police had convinced him they were in possession of evidence directly connecting the petitioner to the crime scene, whereas the petitioner testified during the Kwame Wells–Jordan trial that he was never told any such thing by the police.   Exhibit W, Transcript of State v. Wells–Jordan, 4/24/08, p. 11.   Most glaringly, however, is not once—not during any of his conversations with defense counsel, not during his plea canvass, not during the ninety-nine days that lapsed between his plea and sentencing, not during his sentencing hearing, and not, from the evidence received during the habeas trial, to a single other individual—did the petitioner ever claim that he had been intimidated, threatened, or coerced into confessing to this crime until he testified at the Kwame Wells–Jordan trial in April 2008, nearly two years after he gave his first incriminating confession..  FN18. Even if the court were to reach the merits of this claim, the petitioner's evidence of his alleged coerced confession, other than his own testimony, which the court found lacked credibility, was unsupported by the evidence.   The testimony of their expert witness, Dr. Alan Goldstein, was based primarily on the fact that he simply believed the petitioner's claims, and his opinions were largely discredited by the evidence.   He either did not review or wholly ignored evidence contrary to his opinions about the petitioner's personality traits.   For example, in rendering his opinion that the petitioner was suspect to being coerced into giving a false confession because he was quiet, non-disruptive and submissive to authority, he relied only on information provided by the petitioner and his relatives while ignoring educational records in his possession indicating that by the age of eleven, some five years before this crime, the petitioner had already accumulated sixteen suspensions for disruptive behavior, foul language, a threat to stab another student, and at least one threat of assault towards a teacher, that he was disrespectful towards teachers, blamed others and refused to accept responsibility for his actions.   Dr. Goldstein was also forced to admit that the independent educational or testing records he did review in forming his opinion of the petitioner were from when the petitioner was eleven years old or younger, some five years or more before the time of the alleged crime.   Dr. Goldstein also was either unaware of, or ignored, contradictions in the petitioner's own statements during their interviews, such as where Dr. Goldstein testified before this court that, in his opinion, one of the contributing factors that allowed the police to obtain a false confession from the petitioner was the petitioner's reports to him that police had convinced him they were in possession of evidence directly connecting the petitioner to the crime scene, whereas the petitioner testified during the Kwame Wells–Jordan trial that he was never told any such thing by the police.   Exhibit W, Transcript of State v. Wells–Jordan, 4/24/08, p. 11.   Most glaringly, however, is not once—not during any of his conversations with defense counsel, not during his plea canvass, not during the ninety-nine days that lapsed between his plea and sentencing, not during his sentencing hearing, and not, from the evidence received during the habeas trial, to a single other individual—did the petitioner ever claim that he had been intimidated, threatened, or coerced into confessing to this crime until he testified at the Kwame Wells–Jordan trial in April 2008, nearly two years after he gave his first incriminating confession.

FN19. Exhibit W, Transcript of State v. Wells–Jordan, 4/24/08, p. 11..  FN19. Exhibit W, Transcript of State v. Wells–Jordan, 4/24/08, p. 11.

FN20. Even if true, the fact that police may have falsely insinuated to the petitioner that they had evidence connecting him to the crime is not improper, nor would it have provided a basis for finding the petitioner's confession involuntary.  “It is well established, however that although some types of police trickery can entail coercion ․ trickery is not automatically coercion ․ As we observed in State v. Lapointe, 237 Conn. 694, 732, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S.Ct. 484, 136 L.Ed.2d 378 (1996), ‘statements by the police designed to lead a suspect to believe that the case against him is strong are common investigative techniques and would rarely, if ever, be sufficient to overbear the defendant's will and to bring about a confession to a serious crime that is not freely self-determined ․’ (police officer's ‘fabrication regarding the fingerprints on the knife handle did not in any way compel the defendant to confess against his will to the sexual assault and murder of his wife's grandmother and the arson of her apartment.’)”   (Citation omitted;  internal quotation marks omitted.)  State v. Lawrence, 282 Conn. 141, 176–77, 920 A.2d 236 (2007)..  FN20. Even if true, the fact that police may have falsely insinuated to the petitioner that they had evidence connecting him to the crime is not improper, nor would it have provided a basis for finding the petitioner's confession involuntary.  “It is well established, however that although some types of police trickery can entail coercion ․ trickery is not automatically coercion ․ As we observed in State v. Lapointe, 237 Conn. 694, 732, 678 A.2d 942, cert. denied, 519 U.S. 994, 117 S.Ct. 484, 136 L.Ed.2d 378 (1996), ‘statements by the police designed to lead a suspect to believe that the case against him is strong are common investigative techniques and would rarely, if ever, be sufficient to overbear the defendant's will and to bring about a confession to a serious crime that is not freely self-determined ․’ (police officer's ‘fabrication regarding the fingerprints on the knife handle did not in any way compel the defendant to confess against his will to the sexual assault and murder of his wife's grandmother and the arson of her apartment.’)”   (Citation omitted;  internal quotation marks omitted.)  State v. Lawrence, 282 Conn. 141, 176–77, 920 A.2d 236 (2007).

FN21. Exhibit F, Transcript of State v. Johnson, July 9, 2007..  FN21. Exhibit F, Transcript of State v. Johnson, July 9, 2007.

FN22. “THE COURT:  Once I accept your plea today, if in fact you do plead, we are going to continue this matter for a pre-sentence investigation for October 26th.   That would be the point and time when you would be 18 years of age.   Do you understand that, sir?THE DEFENDANT:  Yes.THE COURT:  And on that date I will ask you if you still want to keep your plea in.   Do you understand that?   Yes?THE DEFENDANT:  Yes.”Exhibit F, pp. 1–2..  FN22. “THE COURT:  Once I accept your plea today, if in fact you do plead, we are going to continue this matter for a pre-sentence investigation for October 26th.   That would be the point and time when you would be 18 years of age.   Do you understand that, sir?THE DEFENDANT:  Yes.THE COURT:  And on that date I will ask you if you still want to keep your plea in.   Do you understand that?   Yes?THE DEFENDANT:  Yes.”Exhibit F, pp. 1–2.

FN23. “THE COURT:  Do you wish your plea of guilty to the charge of murder to stand for the 38 years?MR. JOHNSON:  No.THE COURT:  You want to withdraw your plea?MR. JOHNSON:  No.THE COURT:  You want to keep the plea in.MR. JOHNSON:  Oh, yeah.THE COURT:  So you want to keep your guilty plea in and you want to be sentenced today;  am I right?MR. JOHNSON:  Yes.THE COURT:  And that's your free act and deed?MR. JOHNSON:  Yes.”Exhibit G, Transcript of State v. Johnson, October 26, 2007, pp. 1–2..  FN23. “THE COURT:  Do you wish your plea of guilty to the charge of murder to stand for the 38 years?MR. JOHNSON:  No.THE COURT:  You want to withdraw your plea?MR. JOHNSON:  No.THE COURT:  You want to keep the plea in.MR. JOHNSON:  Oh, yeah.THE COURT:  So you want to keep your guilty plea in and you want to be sentenced today;  am I right?MR. JOHNSON:  Yes.THE COURT:  And that's your free act and deed?MR. JOHNSON:  Yes.”Exhibit G, Transcript of State v. Johnson, October 26, 2007, pp. 1–2.

FN24. See e.g., Connecticut Code of Evidence § 6–6(b)..  FN24. See e.g., Connecticut Code of Evidence § 6–6(b).

FN25. It should be noted again that Detective Willoughby was acquitted after trial of all charges related to these claims.  (See footnote 15)..  FN25. It should be noted again that Detective Willoughby was acquitted after trial of all charges related to these claims.  (See footnote 15).

FN26. “Upon speaking with the grandfather, who was identified as Howard Johnson ․ he stated that he had no firsthand knowledge of the crime and that he had heard that information on the ‘street.’  “ Exhibit O, Arrest Warrant Application, p. 3, paragraph 6..  FN26. “Upon speaking with the grandfather, who was identified as Howard Johnson ․ he stated that he had no firsthand knowledge of the crime and that he had heard that information on the ‘street.’  “ Exhibit O, Arrest Warrant Application, p. 3, paragraph 6.

FN27. The claim was that Detective Willoughby submitted an Informant Payment Request Form (Exhibits 23A and 23B) saying a confidential informant had provided information leading to the arrest of the petitioner and seeking a $1,000 payment for the informant.   There is nothing in the form indicating that the information had any direct knowledge of the crime, nor is there any indication in the arrest warrant.   It was not clear from the evidence whether this particular form was part of the basis of the prosecution brought against Detective Willoughby, but, again, it must be stressed that he was ultimately tried and acquitted of the allegations that he had falsely submitted requisitions for payment.aRegarding the court's ruling dismissing the claim of actual innocence in the first part of this decision, and the references to Connecticut's post-conviction remedies in footnote 11, the court also considered General Statutes § 54–102kk DNA testing of biological evidence, but failed to include it with the other references included in the footnote.   Although this statute does state “Notwithstanding any other provision of law governing post-conviction relief, any person who was convicted of a crime and sentenced to a term of incarceration may, at any time during the term of such incarceration, file a petition with the sentencing court,” this statute also would be of no help to the petitioner in the present case.   (Emphasis added.) § 54–102kk(a).   Although this language is arguably much broader than the others referenced in footnote 11, the relief is specifically limited to circumstances involving a claim that DNA evidence exists that has not previously been tested and which can exonerate the petitioner, a claim that does not exist in the present case.   See § 54–102kk(b)(3)..  FN27. The claim was that Detective Willoughby submitted an Informant Payment Request Form (Exhibits 23A and 23B) saying a confidential informant had provided information leading to the arrest of the petitioner and seeking a $1,000 payment for the informant.   There is nothing in the form indicating that the information had any direct knowledge of the crime, nor is there any indication in the arrest warrant.   It was not clear from the evidence whether this particular form was part of the basis of the prosecution brought against Detective Willoughby, but, again, it must be stressed that he was ultimately tried and acquitted of the allegations that he had falsely submitted requisitions for payment.aRegarding the court's ruling dismissing the claim of actual innocence in the first part of this decision, and the references to Connecticut's post-conviction remedies in footnote 11, the court also considered General Statutes § 54–102kk DNA testing of biological evidence, but failed to include it with the other references included in the footnote.   Although this statute does state “Notwithstanding any other provision of law governing post-conviction relief, any person who was convicted of a crime and sentenced to a term of incarceration may, at any time during the term of such incarceration, file a petition with the sentencing court,” this statute also would be of no help to the petitioner in the present case.   (Emphasis added.) § 54–102kk(a).   Although this language is arguably much broader than the others referenced in footnote 11, the relief is specifically limited to circumstances involving a claim that DNA evidence exists that has not previously been tested and which can exonerate the petitioner, a claim that does not exist in the present case.   See § 54–102kk(b)(3).

Newson, John M., J.