Shemar Berry v. Warden, State Prison (2013)

HABEAS TRIAL EXCERPT, Memorandum of Decision

THE COURT:  Okay. With regards to the motion, which I'll take is a 15–8 motion, as to the petitioner's claim, count 1, paragraph 5a which claims a failure to adequately investigate facts and circumstances, I grant the respondent's motion.   There's been no evidence whatsoever presented as to counsel's investigation.

As to 5b, I'll grant it.   It claims that counsel failed to provide the petitioner with copies of arrest warrants.   Petitioner testified that he did receive copies of the paperwork on both cases.

As to count c, there's at least some evidence in the record so I will deny it as to count c. And that's whether counsel met with the petitioner adequately or not.

As to claim d, again I will grant that.   There's no evidence at all about what, if any, strategy counsel put together or did not put together.   So the motion's granted as to 5d.

As to count 5e, I'll also grant that.   There was little to no evidence presented as to whether or not counsel discussed the possibility of winning at trial, what would happen if they went to trial, or the prospects of proceeding to trial.

As to f, I'm gonna grant it to that as well.   Petitioner has failed to present any evidence that there was any discussion—whether there was any discussion one way or the other with counsel about the strengths and weaknesses of the state's case or any of the evidences that were likely to be called.   There was no testimony presented on those issues whatsoever.

And as to claim g, it's a nearly identical claim that counsel failed to adequately explain the evidence and the facts to the petitioner so that he could formulate his own intelligent opinion about the likelihood he might prevail if his case went to trial by jury.   I'm gonna grant that motion also as to that count.   There's no evidence presented as to what, if any discussions they had about what might happen if they went to a jury as opposed to the likelihood or benefit of taking a plea agreement other than the petitioner's testimony, frankly, which lacks any real significant credibility that he wasn't aware of what was going on.

So as to all claims except for count c, the court grants the 15–8 motion for failure to state a prima facie case.

With regards to the remaining claim, which is count c, which claims that defense counsel failed to meet with the petitioner to review the materials and plan the petitioner's defense on the charges, closing argument?   Or actually I would say, any witnesses from the respondent?

ATTY. MACIULEWSKI:  No, Your Honor.

THE COURT:  Okay. I just—so the petitioner—I mean, the respondent rests?   I'm sorry.

ATTY. MACIULEWSKI:  Yes.

The Court:  Closing arguments?

ATTY. FOX:  Well, the—I mean, we're saying that that claim is accurate based upon Mr. Berry's testimony.   And that related to his having to make a decision about whether he was going to plead, which is the main claim in count one.   So our argument is that on September 27th when he entered his plea, he had not had adequate discussion with his attorney.   And even today in his testimony he said he doesn't recall what happened on that date—that Attorney Chetwin had him focused on the federal charges—on what might happen with the federal charges and not on the state case.   So the evidence goes to the claim that his plea was not intelligent and knowing and voluntary when he entered that plea.   And then that is supported by Mr. Berry's testimony, so ․

THE COURT:  Okay. Anything from the respondent?

ATTY. MACIULEWSKI:  Your Honor, Respondent's Exhibit D, which is the transcript of the plea, belies that claim—if the court clearly advised the petitioner about what the facts were against him—what the evidence would be against him.   And with respect to prejudice, there was simply no evidence whatsoever for this court to find that had Attorney Chetwin done anything differently, he would have rejected the plea, gone to trial, and have either been acquitted or received a lesser sentence than he's now serving.   I think that that's a failure of proof upon which this petition can be denied.   Thank you.

THE COURT:  Anything else, Attorney Fox?

ATTY. FOX:  No, nothing, Your Honor.

THE COURT:  Okay. All right.   Again, having heard all the evidence, the court agrees with the respondent.   I'm gonna deny the petition for a writ of habeas corpus on the one remaining claim.   Counsel is clear that the claim here is that counsel failed to properly advise him in connection with the plea agreement requires, at least at a minimum, some proof or some evidence that the petitioner would have taken the case to trial rather than plead out.   I don't believe he was even ever asked that question.   So there's clearly a lack of proof of prejudice.   I think the law is in flux on whether or not there has to be any finding as to the result, but clearly there's got to be a finding that the petitioner would have, in fact, taken the case to trial.   There was no evidence presented on that and what evidence there was presented from the petitioner, frankly, this court finds, lacks any real credibility.   Claims he doesn't remember his guilty plea but he remembers saying they were trying to offer him too much time and he wasn't taking it.   Claims he doesn't remember how he got arrested, yet he remembers his defense attorney was making efforts to make sure that his federal sentence and his state sentence ran concurrently to each other, which seems to be completely opposite to the fact that if they were talking about trying to get sentences to run together, then they had to have had some conversation about the charges and whether or not there would be a plea and working them out.   But in general, the petitioner, for what minimal information he did testify to about his interactions with counsel lacked any credibility.   His testimony having been the only testimony on this subject, therefore, there is no evidence to prove, again, that he would have taken the case to trial and, frankly, there's no evidence to support a finding that counsel's advice to him was lacking or deficient in any manner.

So for those reasons, the petition for writ of habeas corpus is denied.   Judgment shall enter for the respondent on the remaining—on all claims.

The court will order a transcript of my ruling on the motion to dismiss and on this portion of the hearing, which will stand in lieu of the written memorandum of decision, which the court will sign.

The clerk will please provide Mr. Berry with a notice of his rights to appeal.   You doing that, Madam Clerk?

THE CLERK:  Yes.

THE COURT:  All right. the record will reflect that Mr. Berry is being provided notice of his rights to appeal by the clerk.

Petitioner's counsel shall file a judgment file within thirty days.   Any other appellate paperwork with notices, if they are to be filed, notwithstanding that order, shall be filed within the required time frame set forth in the Practice Book and/or applicable statutes.

Anything additional before we adjourn?

ATTY. MACIULEWSKI:  No.

ATTY. FOX:  Nothing, Your Honor.

THE COURT:  Stand adjourned in this courtroom until 10 a.m. tomorrow morning.

Newson, J.

Newson, John M., J.