Ernesto Pagan v. The Warden (2013)

MEMORANDUM OF DECISION

THE COURT:  Good afternoon, everybody.   All right, we're back on the record in the Ernesto Pagan matter and during the recess or during the break the Court—lunch and recess and actually this most recent recess, the Court has had the opportunity to consider my notes, the evidence, case law, relevant portions of exhibits—although I can tell you that the major foundation of the Court's ruling will not be based on that—and based on all of that, I am prepared to issue a ruling.

We'll start off with initially—and the record should reflect that although there is a new interpreter, that the—Mr.   Pagan continues to have the assistance of the Spanish interpreter.   Sir, would you just state your name for the record?

THE INTERPRETER:  Alex Morales.

THE COURT:  Thank you.

We'll start the record with respect to all claims except for 21–A, G and H. The petitioner, prior to the close of oral argument—or during oral argument I should say, has conceded all of the remainder of those claims and that would include count two, which is a claim of ineffective assistance against appellate counsel.   The Court would note, however, even if the petitioner had not so conceded those claims, that with regards to the claims—and I won't read them—but 21–A, that's a claim that there was a failure to challenge cross-examination of the complainant;  B, C, D–B, C and D also deal with the failure to properly cross-examine certain witnesses.   With regards to habeas law, when a petitioner claims that there has been a failure by counsel to present certain witnesses or to obtain certain information from witnesses, it is the petitioner's obligation to present those witnesses or that evidence before the Habeas Court so that the Habeas Court can make a determination as to what additional information that particular individual may have been able to provide and what, if any, effect that additional information may have had on the trial;  and failure to do so is fatal to such a claim.   In all of those claims, A, B, C—I mean—yes, A, B, C and D, the petitioner has failed to present the named witnesses, failed to present to this Court what additional information or evidence, through the use of cross-examination against those particular witnesses, could've been obtained and therefore has failed to prove that there was any prejudice as to those claims and has failed to prove there was any deficient performance.

So, again, claim A was not conceded by the petitioner but the Court finds that based on what I just ruled, that the petitioner has failed to prove either deficient performance or prejudice as to claim A. There was very little evidence at all and the major issue of contention was that the complainant could've been cross-examined about this hot water issue and whether or not the petitioner had hot water or not;  there was very little evidence on that issue.   What evidence there was really was of no substance.   The fact that there was not hot water is not a per se prohibition that an individual could or could not have taken a shower at the location.   And even if there was not hot water, there was no indication that the supposed showers could not have been taken at some different time when there was hot water.   But, again, it—there was little evidence and what evidence there was, was of little to no substance and that deals with A, B, C and D.

With regards to paragraph E, issues with authenticity of photographs, even if the petitioner had not conceded, there was no evidence presented whatsoever and so those claims would fail.

Claim F, again, the petitioner's conceded claim F. There was a lengthy argument about the admissibility of the DCF records and, again, there was insufficient evidence.   Frankly, based on the evidence presented, there was a doubt or there wasn't evidence—there was no evidence that there was even a DCF report made regarding any incident related to the petitioner, let alone whether or not that would've had any appreciable effect on the outcome and there's also no evidence to substantiate that counsel was in any way deficient for not obtaining or using these records.

Subparagraph G, again, it's the hot water issue;  a claim that counsel failed to present evidence to substantiate that the petitioner didn't have hot water and, as we discussed during closing argument, all the evidence presented here before this Court establishes that for a period of approximately three years, there was not a hot water account or there was no gas account with Connecticut Natural Gas at the particular apartment that the petitioner lived in, in his name.   The evidence presented here does not in fact establish, without resort to speculation, guesswork or presumption, that there was in fact no hot water in the apartment;  that there was no account for gas through CNG or otherwise that could've provided hot water to the account.   There was simply evidence that the petitioner did not have an account himself with Connecticut Natural Gas. That, in and of itself, is insufficient to prove that counsel was either deficient or that the petitioner suffered any kind of prejudice because, again, there was little evidence whatsoever as to even if I—the Court assumed that was true, how that could have or would have affected the ultimate outcome of the trial.

Counsel did testify that the petitioner gave him a lead to an individual who he said, quote, had all of the information he needed with regard to the issue of whether or not he had hot water or not.   Counsel followed up on that and testified that the person told him, I don't know anything about what you're talking about.   I don't necessarily think that it was then, after that, unreasonable for counsel to not continue to investigate it since the person—his client directed him to—didn't just say, I'm not sure if it's like that.   The person says, I don't know anything about what you're talking about, and that would seem to indicate to reasonable counsel that the client has sent him on a wild a goose chase and the evidence simply did not exist.   I didn't hear any evidence testified—never mind.   Again, I misspoke.

With regards to subparagraph H—and, again, it's the issue with—and this is a claim that counsel failed to present evidence to corroborate the fact that the daughter of the respondent did not take showers during the time period in question here.   And, again, this is the same issue.   It goes back to this hot water issue which the Court just kind of ruled on in detail and, again, there's little to no evidence to support the fact that even if the Court believed it true that there was not a hot water account going to that apartment, that that, in and of itself, means that people could not have taken showers.

I think the state raised an interesting argument that the petitioner lived there himself for those three years and would imagine—and I heard no testimony otherwise—that he managed to cleanse his body and/or take showers.   That would seem to allow a reasonable presumption that other people who lived in that apartment would be able also cleanse themself and/or take showers.   But, on the other side, it's the petitioner's burden to present evidence of some reasonable competent evidence that would support this allegation and, again, the mere—even if the Court believed that there was nothing but cold water running to that apartment, that, in and of itself, is not sufficient to substantiate that counsel was unreasonable for presenting this.   I think he said his words were, based on what I had and the information I had from my client;  I looked at this as a red herring;  not of much substance to the defense.   I haven't heard anything that leads me to believe that that determination was unreasonable, especially based on the evidence that many of the other chases his client had sent him on and based on the evidence here, things that he—his client had told him would substantiate his defenses, simply did not exist.   And I also have heard no evidence that leads me to believe that that issue in and of itself would have resulted in a more favorable or different outcome from the—for the petitioner.

As to I, J, K—and K of paragraph 21, there was no evidence whatsoever presented as to any of those claims and therefore those claims are dismissed and being—have been abandoned by the petitioner.   And, again, even if they weren't abandoned, the Court—based on the evidence presented here, the petitioner has failed to prove any either deficient performance or that he was prejudiced as to any of those claims.

Finally, as to count two, there was no evidence as to the performance, considerations or any other issues related to appellate counsel and so, again, the petitioner has failed to meet his burden to present affirmative evidence to support his claim and so count two, alleging ineffective assistance of appellate counsel, is also dismissed for insufficient evidence;  there being no proof of prejudice or any proof of deficient performance.

I will order that the clerk provide the petitioner with notice of his rights to appeal and, again, so the record's clear, the Court is denying all claims in the petition for writ of habeas corpus.

John M. Newson, Superior Court Judge

Newson, John M., J.