Lawrence Smith v. Warden (2014)

MEMORANDUM OF DECISION

The petitioner, Lawrence Smith brings this application for a writ of habeas corpus claiming that his appellate counsel, trial counsel and standby trial counsel were ineffective and that standby counsel interfered with his ability to conduct the trial.   This court held a two-day evidentiary trial at which the parties presented witnesses and exhibits.   The parties filed post-trial briefs.   Having considered the evidence and the arguments of the parties, the court finds the issues for the respondent warden, and denies the petition.

As to the petitioner's claim that appellate counsel was ineffective in failing to present certain issues on appeal, the court finds that the petitioner has not met his burden to prove that he was prejudiced.   For claims of ineffective assistance of appellate counsel, the habeas court must determine “whether there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial ․ [T]o determine whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily analyzes the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm.”  Small v. Commissioner of Correction, 286 Conn. 707, 712–13, 946 A.2d 1203 (2008), cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008);  Moody v. Commissioner of Correction, 127 Conn.App. 293, 301, 14 A.3d 408 (2011).   The court finds that the petitioner has failed to present evidence or meritorious legal arguments to establish that there is a reasonable probability that had the claims been presented on appeal, they would have been successful.   Accordingly, count one of the amended petition is denied.

The petitioner has also failed to prove that his standby counsel, Lawrence Bates, was ineffective.   Bates was petitioner's trial counsel for only two weeks from May 25, 1995 to June 6, 1995, after his first trial counsel sought, and was allowed to, withdraw.   On June 6, 1995, after the petitioner was permitted to represent himself at trial and after a full canvas on that issue, Bates was appointed as standby counsel.

It is established that a defendant does not have a state or federal constitutional right to standby counsel, and that “once a defendant has properly embarked on the path of self-representation, his constitutional right to counsel ceases.”  State v. Oliphant, 47 Conn.App. 271, 281, 702 A.2d 1206, (1997), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998).   Thus, having decided to proceed pro se, the petitioner had no constitutional right to the effective assistance of counsel in any capacity.

To the extent that the petitioner claims that Attorney Bates was ineffective in the short two-week period that he represented the petitioner, the court rejects this claim as well.   There was simply insufficient time or opportunity for Bates, when acting as counsel and not standby counsel, to conduct a full investigation, and that lack of time was of the petitioner's own making.   In addition, as found infra, petitioner's first counsel, Attorney Harper, did conduct an adequate investigation and turned over his investigative materials to the petitioner or Bates.   Thus count two of the amended petition is denied.

As to the petitioner's claims against his first trial counsel, Arthur Harper, the court finds that the petitioner has failed to establish these claims.   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 ․ 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 testimony at trial by the petitioner and Attorney Harper established that Attorney Harper conducted a thorough and complete investigation, which he turned over to the petitioner and explained to the petitioner the crimes charged and possible sentences.   These claim therefore fail.

Finally, in count four, the petitioner claims that his standby counsel interfered with his ability to represent himself by grabbing the petitioner's arm when the petitioner was having a “heated” discussion with the trial court.   The court finds that the petitioner has failed to prove that standby counsel was overly zealous and thereby improperly interfered with the petitioner's right to conduct the trial.  State v. Oliphant, supra, 47 Conn.App. 281.

For all of the foregoing reasons, the petition is denied.

Cobb, J.

Cobb, Susan Quinn, J.