Anthony Allen v. Warden (2013)

MEMORANDUM OF DECISION

The petitioner, Anthony Allen, brings this petition for a writ of habeas corpus claiming that his trial attorney was ineffective, and that he is actually innocent.   The court rejects the petitioner's claims and finds the issues for the respondent.

The petitioner was convicted, after a jury trial of capital felony in violation of General Statutes §§ 53a–54b(8) and 53a–8(a), murder in violation of General Statutes §§ 53a–54a and 53a–8(a), conspiracy to commit murder in violation of General Statutes §§ 53a–48(a) and 53a–54a, attempt to commit assault in the first degree in violation of General Statutes §§ 53a–49(a)(2) and 53a–59(a)(5), and conspiracy to commit assault in the first degree in violation of §§ 53a–48(a) and 53a–59(a).   The trial court imposed a total effective sentence of life imprisonment without the possibility of release.

The petitioner appealed his conviction to the Supreme Court, which affirmed it.  State v. Allen, 289 Conn. 550, 958 A.2d 1214 (2008).   The Supreme Court found that the jury could reasonably have found the following facts:

On the evening of February 22, 2005, fifteen-year-old Lorenzo Morgan Rowe was fatally shot while he was walking home from a high school basketball game with several of his friends, including brother Stanley Weaver and Jonathan Weaver.   Thereafter, the state brought charges against the defendant and Kevin Amos related to that shooting.   Pursuant to a request by the state, the cases were consolidated for trial.   The state's theory of the case was that the victim had been shot by the defendant or Amos as a result of hostilities that previously had developed between them and the Weaver brothers.   The state offered witnesses who placed the defendant at the scene and who testified that they had seen the defendant shooting in the direction of a group that included the Weaver brothers.   The defendant presented alibi witnesses who testified that, although the defendant was at the basketball game, he was with a group of friends at another location at the time of the shooting.

State v. Allen, supra, 289 Conn. 554.

The petitioner brought this habeas petition on May 12, 2009.   In Count I of his third amended petition, the petitioner claims that his trial counsel, Walter Hussey, was ineffective in (1) failing to timely request that the jury be polled after it rendered its verdict;  (2) failing to properly cross examine the state's witnesses;  (3) failing to challenge the authenticity of an inculpatory letter written by the petitioner to his girlfriend;  and (4) failing to ask for a limiting instruction concerning the use of the letter.   In Count II, the petitioner claims that he is actually innocent.

The standard for proving a claim of ineffective assistance of trial counsel is well established.   The petitioner has the burden to establish that “(1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance.”  (Internal quotation marks omitted;  emphasis in original.)  Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

“Judicial scrutiny of counsel's performance must be highly deferential.   It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable ․ A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.”  Bryant v. Commissioner of Correction, 290 Conn. 502, 512–13, 964 A.2d 1186 (2009).

The court heard evidence in this case on October 18, 2012 and January 24, 2013.   The petitioner introduced the testimony of himself and his trial counsel, Walter Hussey and the parties stipulated as to certain testimony of Gregory Clark.   The petitioner introduced no exhibits.   The respondent introduced a number of exhibits, mostly trial transcripts, but did not introduce any witnesses.   The petitioner filed a post-trial brief and the respondent declined to do so.

At the conclusion of the evidence, the court orally denied Count II of the petition, the actual innocence claim, for lack of any proof.¹  The court also denied Count I(a) of the petition, asserting that trial counsel was ineffective for failing to poll the jury, due to the petitioner's failure to introduce any evidence of prejudice.  Bryant v. Commissioner of Correction, supra, 290 Conn. 522 (“The second prong is thus satisfied if the petitioner can demonstrate that there is a reasonable probability that, but for that ineffectiveness, the outcome would have been different.”   In fact, during closing argument, counsel for the petitioner admitted that he did not prove prejudice.

The court also orally denied Count I(c), regarding the authenticity of the petitioner's letter to his girlfriend letter after the petitioner's counsel conceded that he could not prove that claim because the petitioner admitted that he had written the letter.   The court also denied Count I(d), alleging that Attorney Hussey failed to seek a limiting instruction regarding the letter for lack of any proof, and habeas counsel's concession that he did not prove that claim.  “[I]n a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation ․ but by demonstrable realities.”  (Emphasis in original;  internal quotation marks omitted.)  Morris v. Commissioner of Correction, 131 Conn.App. 839, 844–45, 29 A.3d 914, cert. denied, 303 Conn. 915, 33 A.3d 739 (2011).

Thus, at the conclusion of the argument, the only remaining issue was the petitioner's claim that trial counsel failed to properly cross examine certain of the trial state's witnesses.   None of these witnesses testified at the habeas trial and the petitioner did not introduce any expert attorney testimony as to Attorney Hussey's alleged failures during his cross examinations.   During the closing argument in this case, the court asked habeas counsel a number of questions regarding this claim which he could not answer without the habeas transcript.   Accordingly, the court allowed the petitioner to brief this one remaining claim.   However, in his post-trial brief, the petitioner briefed the claims the court already denied and failed to address the only live claim regarding trial counsel's failure to properly cross examine certain state witnesses.

“An attorney's line of questioning of a witness is a tactical decision.  [As such, this] court will not, in hindsight, second-guess counsel's trial strategy ․ The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance.”  (Citation omitted;  internal quotation marks omitted.)  Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).  “[C]ross examination is a sharp two-edged sword and more criminal cases are won by not cross examining adverse witnesses, or by a very selective and limited cross examination of such witnesses, than are ever won by demolishing a witness on cross examination ․ The decision whether to cross examine a witness is peculiarly one for defense counsel and his judgment should be entitled to great respect by the court.”  (Internal quotation marks omitted.)  State v. Clark, 170 Conn. 273, 287–88, 365 A.2d 1167 (1976).

“In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness has been done is not met by speculation ․ but by demonstrated 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.)  Crawford v. Commissioner, 285 Conn. 585, 599, 940 A.2d 789 (2008).  “Moreover, the habeas court does not sit as some sort of “peer review examiner to grade the performance of trial defense counsel.   To submit a transcript and essentially ask the court to engage in a plenary critique of counsel's efforts and to then attempt to find something wrong is a misunderstanding of the role of the habeas court and the burden that rests with the petitioner.   It is not appropriate for a habeas court to examine the performance of a trial defense counsel and put it under microscopic scrutiny.”   Nunez v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 04 0004519 (August 30, 2006, Santos, J.).

The court finds that the petitioner has failed to prove that his trial counsel as ineffective in failing to properly cross examine the state's witnesses.   See Solek v. Commissioner of Correction, 107 Conn.App. 473, 480, 946 A.3d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008) (“[t]he responsibility of a habeas court, in confronting an often voluminous trial court record, is to respond to those claims fairly advanced by the petitioner.   The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration”).

For the reasons stated herein and on the record, the petition is therefore denied.   Judgment shall enter in favor of the respondent.

Cobb, J.

FOOTNOTES

FN1. During argument, the petitioner's counsel admitted that the actual innocence claim was premised wholly on the testimony of a witness, Jonathon Weaver, who the petitioner could not locate and, therefore, did not produce at trial..  FN1. During argument, the petitioner's counsel admitted that the actual innocence claim was premised wholly on the testimony of a witness, Jonathon Weaver, who the petitioner could not locate and, therefore, did not produce at trial.

Cobb, Susan Quinn, J.