Donald Couture v. Warden (2014)

MEMORANDUM OF DECISION

I. Procedural History

The petitioner, Donald Couture, was the defendant in a matter pending in the Judicial District of Waterbury.   The case has a lengthy procedural history dating back to his original indictment by grand jury ¹ for the famous Purolator Security Company robbery in April 1979, which left three guards dead.   During all trials, retrials and appeals relevant to the claims in this action, the petitioner was represented by Attorney John Williams.   The petitioner was originally convicted by a jury on several counts of murder and felony murder in 1981 (Couture I ).   Those convictions were later overturned on appeal and remanded for new trial which ended in a mistrial (Couture II ).   A third trial in 1989 (Couture III ) resulted in three convictions for felony murder in violation of General Statutes § 53a–54c and the total effective sentence of seventy-five (75) years to life the petitioner now challenges.   The procedural history also includes direct appeals from Couture I and Couture III and a federal habeas petition related to Couture I. Specific details of this complex procedural history relevant to the court's decision in this matter will be related throughout this decision as necessary.

The petitioner commenced the instant action by filing a petition for writ of habeas corpus on January 2, 2009.   Following the appointment of counsel, an amended petition was filed on March 16, 2012.   The respondent filed a motion to dismiss with supporting memorandum of law on April 19, 2012, and the petitioner filed an objection with supporting memorandum on June 8, 2012.   Following a hearing on September 4, 2012, the court granted the respondent's motion to dismiss as to count one, but denied it as to all others.   Couture v. Warden, judicial district of Tolland at Rockville, Docket No. CV09–4002847 (March 16, 2012, Newson, J.).   The remaining claims were tried before the court on October 1, 2013, at which time the petitioner withdrew several additional claims prior to the commencement of evidence.²  After the conclusion of evidence,³ the court ordered the parties to submit simultaneous post-trial briefs by December 5, 2013, on claims made by the petitioner relating to his right to speedy trial and to be protected from double jeopardy, which both parties timely submitted.

II. Law and Discussion

The petitioner's first claim is that Attorney Williams was ineffective for failing to adequately raise and prosecute a claim that the delay between the Couture II and Couture III trials violated his right to speedy trial.   The petitioner's specific claim is that Attorney Williams was ineffective for failing to properly raise and prosecute a motion that the petitioner's right to speedy trial was violated by the twenty-nine-month delay between the conclusion of the trial in Couture II and the commencement of the trial in Couture III and for failing to raise the issue on appeal from Couture III. The petitioner also brings a freestanding claim that the two and one-half-year delay between Couture II and Couture III violated his right to speedy trial under the constitution of Connecticut and the United States constitution.   By way of background, a mistrial was granted in Couture II on November 10, 1986.⁴  Defense counsel did file a motion to dismiss citing violation of the petitioner's right to speedy trial on April 19, 1989, the first day of jury selection (Exhibit 26);  a motion which the court denied.   It is the petitioner's contention, however, that counsel was available to try his case as early as September 1988, that he requested that counsel file a motion for speedy trial, and that the seven-month delay in filing the motion was unreasonable and prejudiced the petitioner.

“The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”   Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  “A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction ․ has two components.   First, the defendant must show that counsel's performance was deficient.   This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.   Second, the defendant must show that the deficient performance prejudiced the defense.   This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.   Unless a defendant makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable.”  Id., 687.  “[T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.”  Id., 688.  “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.”   Id., 689.  “Thus, a court ․ must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.  [The defendant] must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.   The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.   In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case.   At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.”  Id., 690.

Under the second prong of the test, “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding, if the error had no effect on the judgment.”  Id., 691.  “[A]ctual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.”  Id., 693.  “Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another.”  Id. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.”   Id. “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Id., 694.  “An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like.”  Id., 695.   The court “must consider the totality of the evidence before the judge or jury.”  Id. “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).

“[A] habeas corpus petitioner seeking to establish [that his trial or appellate counsel's] ineffectiveness must prove both deficient performance and ineffectiveness.”  Pelletier v. Warden, 32 Conn.App. 38, 45–46, 627 A.2d 1363, cert. denied, 227 Conn. 920, 632 A.2d 694 (1993).  “The sixth amendment guarantee of a speedy trial is a fundamental right applicable to the states through the fourteenth amendment to the United States constitution ․ This right also is guaranteed by the constitution of Connecticut, article first, § 8. Although the right to a speedy trial is fundamental, it is necessarily relative, since a requirement of unreasonable speed would have an adverse impact on both the accused and on society ․ The Supreme Court of the United States and the Connecticut Supreme Court have identified four factors that form the matrix of the defendant's constitutional right to speedy adjudication:  (1) length of delay, (2) the reasons for the delay, (3) the defendant's assertion of his right, (4) and prejudice to the defendant ․ A balancing test is to be applied on a case by case basis.   None of the factors standing alone demands a set disposition;  rather it is the total mix which determines whether the defendant's right was violated.”  (Citations omitted;  internal quotation marks omitted.)  State v. Rosario, 118 Conn.App. 389, 397, 984 A.2d 98 (2009), cert. denied, 295 Conn. 903, 988 A.2d 879 (2010).   These factors are usually referred to as the Barker factors.  Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

“The length of the delay is to some extent a triggering mechanism.   Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.”  Pelletier v. Warden, supra, 32 Conn.App. 47 (citing, Barker v. Wingo, supra ).  “The Connecticut rules of practice set out specific time limitations within which a criminal trial must commence ․ Our courts have not held that any particular length of delay is presumptively prejudicial, but have stated that an extensive delay warrants an inquiry into the other factors ․” State v. Rosario, supra, 118 Conn.App. 398.   In examining the second factor, “the reasons for the delay, we focus on whether the state was making a deliberate attempt to delay the trial in order to hamper the defense or whether there existed a valid reason ․ [that] should serve to justify appropriate delay.”  Id. As to the third factor, “[t]he failure to assert the right, while not constituting a waiver, does make it difficult for the defendant to prove that he was denied a speedy trial.”  Id., 400.   And, as to the final factor, “[u]nlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused's ability to defend himself ․ The right to speedy trial is designed (i) to prevent oppressive pretrial incarceration;  (ii) to minimize anxiety and concern of the accused;  and (iii) to limit the possibility that the defense will be impaired ․ [O]f the three interests served by the right to speedy trial, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.”   Id. “Prejudice may be actual or presumed;  a showing of actual prejudice may not be required at all where other factors weigh heavily against the state.”   State v. Pelletier, supra, 32 Conn.App. 51.   Since the court can resolve all of the petitioner's speedy trial claims in the present case by deciding the issue of prejudice, the matter of counsel's performance will not be addressed.  Id., 46.

The petitioner focuses on the delay between the mistrial in Couture II, which was granted on November 10, 1986, and the commencement of trial in Couture III, which began jury selection on April 18, 1989.⁵  “[This] delay, while not sufficient [by itself] to establish a speedy trial violation, [is] sufficient to warrant further inquiry into the other Barker factors.”   Pelletier v. Warden, supra, 32 Conn.App. 48.   The delay of twenty-nine months between trials in the present case, since there had already been two prior trials on the same charges involving the same witnesses and evidence, and since all investigation and pretrial motion litigation had been completed, should weigh heavily in the petitioner's favor.  Id.

In considering the second Barker factor, the reasons for the delay, Attorney Williams testified that he was “always on trial somewhere.”   Following the mistrial in Couture II, Attorney Williams, who tended to be involved in rather serious and high profile criminal cases, became deeply involved in representing one of the individuals being prosecuted in federal court in Puerto Rico for the world famous $7.9 million robbery of the Wells Fargo armored car depot in West Hartford, Connecticut in September 1983, which he said went on “incessantly.”   Subsequent to that, he was ordered to trial in several other matters, including State v. Weinberg, another high profile murder case pending in the same courthouse as the petitioner's case.   Although the defendant in Weinberg was out on bond, which meant that the petitioner's speedy trial rights should have taken precedence, Attorney Williams testified at the habeas trial that there was significant concern about the safety of all parties involved in that matter while the defendant remained at large, so it was called forward.   In fact, Attorney Williams was involved in so many serious and high profile cases pending in Waterbury Judicial District, that a judge was specially assigned to the courthouse and the scheduling of his trials was elevated all the way to the desk of the Chief Court Administrator.⁶  As a result of the above, jury selection in Couture III did not begin until April 18, 1989.   Although Attorney Williams testified that he was technically available and could have been ordered to commence Couture III at any time after September 1988, seven months before the trial actually started, he also testified specifically during that period of time that he “could not remember specifically where, but [he] was always on trial.” ⁷  It should also be noted that Attorney Williams testified that he believed that the trial court did an appropriate job bringing the Couture III case to trial, that he did not believe that anyone ever neglected the case, and, most importantly, that he did not believe that the delay between Couture II and Couture III had any detrimental impact on the petitioner's case.

The fact that defense counsel is not available because he or she is engaged in trying other criminal cases is an appropriate basis for “good cause” to delay the commencement of trial when a defendant has asserted his rights to speedy trial.   E.g., State v. Newton, 59 Conn.App. 507, 522, 757 A.2d 1140, cert. denied, 254 Conn. 936, 761 A.2d 764 (2000).   In the present case, defense counsel's unavailability, when coupled with the testimony from Attorney Williams that it appears that the State, Waterbury court officials and Judicial Branch staff all made reasonable efforts to see that the petitioner's case was brought to trial without any deliberate delay, would seem to warrant weighing the second Barker factor against the petitioner.  Pelletier v. Warden, supra, 32 Conn.App. 48–49.

The third Barker factor is whether the petitioner vigorously asserted his right to speedy trial.  Id., 50.   For purposes of argument here, and based on the fact that the petitioner has brought a claim of ineffectiveness based on counsel's alleged failure to pursue his speedy trial rights, the court will assume that the petitioner “requested legitimately and expected that [Attorney Williams] was pursuing enforcement of his constitutional rights to a speedy trial.”  Id., 50.   Therefore, this Barker factor weighs in favor of the petitioner.

The final Barker factor the court must consider, however, is prejudice—” the linchpin of the speedy trial claim is a showing of prejudice.”  Id. The three interests the court must consider in attempting to determine prejudice are whether the petitioner suffered extensive pretrial incarceration, the anxiety and concern of the petitioner occasioned by any extensive pretrial delay and incarceration, and the impairment any delay caused on the defense.   Id., 51.   It is clear in the present case that the twenty-nine months the petitioner was incarcerated between his second and third trials constitutes an extensive period of time, and the court will accept as true his claims that this delay caused him concern and anxiety because of the continued separation from his family and the long wait to what the future held for him.  Id. Notwithstanding, defense counsel testified that the delay had no adverse effect on the case or his ability to prepare a defense for the petitioner.   In other words, the delay did not prejudice his case.

The court's words in resolving a habeas claim brought by the petitioner's co-defendant, Lawrence Pelletier, alleging ineffectiveness against his trial and appellate attorneys on the same grounds, and on a nearly identical factual basis, are appropriate to resolution of the present claim:

[Mr. Pelletier] claims that the conditions of his pretrial incarceration and the accompanying limit on his ability to communicate with family and friends who may have been able to render assistance and offer comfort, as well as the uncertainty of when and how the charges against him would be resolved, all establish sufficient prejudice to tilt this factor heavily in his favor.   His claim of prejudice, however, is not sufficiently grave to rise to the level of a constitutional violation when considered with the other Barker factors.   While prejudice in the nature of that asserted here is unfortunately present in every case of pretrial delay, general claims of anxiety are thought insufficient to invoke what has been termed ‘the unsatisfactorily severe remedy of dismissal’ ․

The application of the principles of Barker v. Wingo, supra, to the facts and circumstances surrounding the petitioner's first trial, therefore, leads us to the conclusion that, even if trial and appellate counsel had pursued the petitioner's speedy trial rights, the charges against him would not have been dismissed.   Accordingly, his claim of ineffective assistance of trial and appellate counsel with respect to that proceeding must fail.

Id., 51–52.   In the present case, the petitioner has also failed to prove that the Barker factors weigh heavily enough in his favor that the severe remedy of dismissal of his charges would have been warranted.  Id. As such, he has failed to establish prejudice with respect to his claims of ineffectiveness, because he has failed to prove that there is a reasonable likelihood that he would have obtained a more favorable outcome but for Attorney Williams's failure to properly assert his speedy trial rights at trial or on appeal.  Id. As such, his claim of ineffectiveness against Attorney Williams in his roles as trial and appellate counsel both fail.  Id., 52.   The petitioner's failure to establish prejudice makes it unnecessary for the court to address the matter of counsel's performance in either role.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.   Further, the court's finding that the petitioner would not have been entitled to a dismissal of his charges under the Barker test also necessarily resolves his freestanding speedy trial claim.  Pelletier v. Warden, supra, 32 Conn.App. 51–52.

Additionally, as to the petitioner's claim that Attorney Williams was ineffective in his role as appellate counsel during the appeal from Couture III for failing to raise a speedy trial claim, Attorney Williams testified unequivocally at the habeas trial that, as a matter of strategy, he raised what he believed to be the strongest issues in that appeal and intentionally left weaker arguments out.  “The determination of which issues to present, and which issues not to present, on an appeal is by its nature a determination committed to the expertise of appellate counsel, and not to his client ․ By that determination, appellate counsel seeks to focus the concern of the appellate court on those issues which he deems to be most persuasive, and thus does appellate counsel most effectively present his client's appeal.”  (Citation omitted.)  Valeriano v. Bronson, 12 Conn.App. 385, 390, 530 A.2d 1100 (1987), aff'd, 209 Conn. 75, 546 A.2d 1380 (1988).  “[A] habeas court will not, with the benefit of hind-sight, second guess the tactical decisions of appellate counsel.   Legal contentions, like the currency, depreciate through over-issue ․ [M]ultiplying assignments will dilute and weaken a good case and will not save a bad one ․ The effect of adding weak arguments will be to dilute the force of the stronger ones.”  (Internal quotation marks omitted.)   Farnum v. Commissioner of Correction, 118 Conn.App. 670, 679, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).   In the present case, the petitioner has failed to present any credible evidence that would establish that Attorney Williams's decision to leave the speedy trial claim out of the appeal in favor of what he believed to be stronger issues was an unreasonable strategic decision under the circumstances of the case.   Therefore, another reason that the claim of ineffectiveness against Attorney Williams in his role as appellate counsel would fail is because of the petitioner has failed to present any evidence to establish that his performance was deficient.  Hall v. Commissioner of Correction, supra, 124 Conn.App. 783.

The petitioner next brings a freestanding claim that the retrial in Couture II, after the convictions in Couture I were reversed on grounds of prosecutorial misconduct, was a violation of his double jeopardy rights.   See, State v. Couture, 194 Conn. 530, 482 A.2d 300 (1984) (Couture I ).   The petitioner's specific claim is that the State's Attorney's closing remarks in Couture I were designed to goad the defense into seeking a mistrial, and since that misconduct was ultimately the basis upon which the convictions were reversed, the state should have been barred from bringing him to trial again.   This petitioner's claim, however, fails for several reasons.

The first reason this claim fails is because the petitioner waived his double jeopardy protection as to these charges when he took an appeal from his convictions in Couture I. State v. Boyd, 221 Conn. 685, 691, 607 A.2d 376, certiorari denied, 506 U.S. 923, 113 S.Ct. 344, 121 L.Ed.2d 295 (1992).  “The guarantees of the double jeopardy clause are threefold:  [1] It protects against a second prosecution for the same offense after acquittal;  [2] It protects against a second prosecution for the same offense after conviction;  [3] And it protects against multiple punishments for the same offense.”  (Internal quotation marks omitted.)  Id., 690.  “Not every successive prosecution for the same offense will, however, constitute double jeopardy.   As a general matter, double jeopardy usually does not bar a retrial when a defendant is convicted of an offense, but the conviction is set aside upon the defendant's own appeal ․ The defendant cannot himself request that his conviction be set aside and then rely on that overturned conviction to bar a new trial ․ Two overlapping theories advanced in support of this rule are, first, that the defendant, by successfully appealing his conviction, waives any double jeopardy objection to a retrial ․ and, second, that jeopardy continues through the appeal and into the subsequent retrial.”  Id.

Notwithstanding the fact that the petitioner's appeal of Couture I acted as a waiver of his right to assert a double jeopardy claim against retrial in Couture II, Attorney Williams still filed a motion to dismiss on double jeopardy grounds in Couture II.⁸ He then went further and took an interlocutory appeal after the motion was denied by the trial court, an appeal that was ultimately dismissed by the Connecticut Supreme Court on the State's motion.⁹

Alternatively, even if the petitioner did not waive his double jeopardy claim by taking an appeal, this claim would be barred by the doctrine of res judicata.  “The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made ․ The doctrine ․ applies to criminal as well as civil proceedings and to state habeas proceedings ․ However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner ․ Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights ․ the application of the doctrine of res judicata ․ [is limited] to claims that actually have been raised and litigated in an earlier proceeding.”  (Alteration in original;  citations omitted.)  Diaz v. Commissioner of Correction, 125 Conn.App. 57, 63–64, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011).   In other words, the court must be able to determine that the present claims and those previously litigated are “identical in substance, form and law.”  Id., 66.

In Couture II, the sole basis asserted in support of the motion to dismiss on grounds of double jeopardy was that the closing remarks made by the State's Attorney in Couture I were intended to goad the defense into seeking a mistrial and that such misconduct, which was ultimately the basis upon which the Supreme Court reversed the convictions, should prohibit the State from again placing the petitioner in jeopardy on the same charges.¹⁰  In denying the motion, the trial court found that the prosecutor's intent in making the offensive comments was not to goad the petitioner into moving for a mistrial, but to obtain a conviction.¹¹  In the present case, the petitioner makes the exact same legal claim, an alleged violation of his double jeopardy rights, asserts the exact same factual basis for that alleged violation, the prosecutor's closing statements, and seeks the same legal remedy, dismissal of the charges.   The petitioner's double jeopardy claim, therefore, is also barred by res judicata.  Diaz v. Commissioner of Correction, supra, 125 Conn.App. 63–64.

Additionally, as discussed above, the Couture II trial court made numerous factual findings in deciding the double jeopardy issue in a thoughtful and detailed written memorandum of decision rendered after a contested hearing, including a finding that intent of the State's Attorney during closing argument was not to cause a mistrial in Couture I. (See, footnote 11.)   In order for this court to review the petitioner's double jeopardy claim, it would effectively have to pass upon the factual findings already made by the Couture I court and, in order for the petitioner to succeed, come to a contrary conclusion that the intent of the State's Attorney was to cause a mistrial.   E.g., Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) (“Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion”).   Although those factual findings may have been subject to review on appeal, which petitioner's counsel attempted to take advantage of, a habeas court does not have the authority to sit in review of a trial court's findings of fact, which would be an additional reason the petitioner could not prevail on this claim.  Wojculewicz v. Cummings, 143 Conn. 624, 628–29, 124 A.2d 886 (1956).¹²

Finally, even if this court were to reach the merits of the petitioner's claim that Attorney Williams was ineffective for failing to adequately prosecute his double jeopardy claim, he has failed to meet his burden of proof as to this issue.   First, despite the prevailing law being that the petitioner had waived his right to assert double jeopardy by successfully appealing his convictions in Couture I, Attorney Williams still filed and argued a motion to dismiss asserting a double jeopardy violation and took an interlocutory appeal challenging the trial court's denial of the motion.   The petitioner has failed to present any evidence or legal authority to show that his case was an exception to the general rule of law that he had waived the right to assert a double jeopardy violation when he successfully appealed his convictions from Couture I. See, State v. Boyd, supra, 221 Conn. 691.   In short, it would be difficult to find counsel that counsel had acted deficiently for zealously advocating an argument on behalf of his client despite prevailing law to the contrary, or to find that the petitioner had been prejudiced when, as expected under that prevailing law, the claim was not successful.  Strickland v. Washington, supra, 466 U.S. 687 (“First, the defendant must show that ․ counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.   Second, the defendant must show that ․ counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable”).

The petitioner also brings a claim that his appellate counsel was ineffective for failing to raise a claim on appeal from Couture III that allowing him to be put to after a mistrial had been declared during jury deliberations in Couture II was in violation of his double jeopardy rights.   By way of background, while the jury was deliberating in Couture II, the court granted an oral motion for mistrial as a result of juror misconduct and the absence of one juror due to the death of an immediate family member.¹³  This claim does not require significant discussion.

The case of State v. Roy, 182 Conn. 382, 385–86, 438 A.2d 128 (1980), is almost directly on point with the facts of the present case.   In that decision, the court held:  “The fact that jeopardy has attached does not mean, however, that a subsequent termination of the trial necessarily mandates a dismissal of the charge on the basis of the double jeopardy clause.   There are occasions where, due to manifest necessity, a criminal case may be retried before another jury ․ The inability of the jury to agree ․ is the classic example of such necessity ․ Discovery by the trial judge during a trial that a member or members of the jury were biased for one side or another has also been held to warrant discharge of the jury and direction of a new trial ․ The reason for holding that jeopardy attaches when the jury is empaneled and sworn lies in the need to protect the interest of an accused in retaining a chosen jury ․ Where, for reasons amounting to manifest necessity, the chosen panel is no longer available, the defendant's interest in that jury can no longer be protected and therefore the double jeopardy clause does not bar a retrial.   It should be observed that this is not a case of either prosecutorial or judicial overreaching ․ nor does the record support a claim that in dismissing the jurors for cause the judge failed to exercise judicial discretion scrupulously to serve the ends of public justice.”  (Citations omitted;  internal quotation marks omitted.)  Id., 385–86.

In the present case, the mistrial in Couture II was declared because of both juror misconduct and an unavailable juror, and the petitioner has presented no credible evidence or legal authority that could lead to a determination that there was any reasonable likelihood that an appeal on double jeopardy grounds was even meritorious, let alone whether it would have been successful.  “[The] task is to decide whether the decision not to appeal the [particular issue being complained of] fell below reasonabl[e] competen[ce] or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.”  Valeriano v. Bronson, 209 Conn. 75, 88, 546 A.2d 1380 (1988).   The strategic decision to abandon weaker arguments in favor of stronger ones “was given great weight by the United States Supreme Court in Jones v. Barnes [463 U.S. 745, 751–52, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) ], where it said:  Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues ․ [T]here can hardly be a question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review ․ A brief that raises every colorable issue runs the risk of burying good arguments ․ in a verbal mound made up of strong and weak contentions.”  (Citations omitted;  quotation marks omitted.)  Valeriano v. Bronson, supra, 209 Conn. 89.   In the present case, the petitioner has failed establish that counsel was deficient in his performance for failing to raise this issue on appeal or that there was some reasonable likelihood that, had it been raised, he would have prevailed, so his claim fails.  Id.

The final claim brought by the petitioner was that Attorney Williams was ineffective for failing to properly advise the petitioner about, and for failing to properly preserve, his right to sentence review.   After the jury verdict in Couture III, the petitioner received a total effective sentence of seventy-five years to life, without the possibility of parole.   The uncontroverted evidence presented during the habeas trial was the petitioner's testimony that he never discussed sentence review with Attorney Williams following the imposition of sentence and that Attorney Williams did not provide him with the sentence review forms.   Attorney Williams testified that he has no memory of ever discussing sentence review with the petitioner or of giving him the necessary forms to file on his own.   There is also nothing in the trial court record placed before this court showing that the petitioner was ever advised of his right to sentence review nor is there any court record that a request for sentence review has ever been filed on behalf of the petitioner.   Despite this overwhelming and uncontroverted evidence, the respondent insists that the petitioner is not entitled to relief on this claim, a position that lacks any merit or support under our law.

“No application for sentence review was filed by or on behalf of petitioner within the thirty-day time limit.   The thirty-day statutory time limit does not act as a jurisdictional bar to the sentence review division in situations where an application for sentence review was delayed by reason of ineffective assistance of counsel.  James v. Commissioner of Corrections, 245 Conn. 132, 147–48 (1998).  Connecticut Practice Book § 43–23 states that it is the responsibility of the counsel of record at the time of sentencing to represent a defendant at the hearing before the sentence review division unless excused for exceptional reasons.   Petitioner had the right to effective assistance of counsel at the time when the invocation of sentence review was at issue.   Id., 144.   Failure to engage in a meaningful discussion concerning whether to apply for sentence review or not would constitute ineffective assistance of counsel.  [Defense counsel] failed to adequately advise petitioner concerning sentence review resulting in a failure to file within the time allowed.   This constituted ineffective assistance of counsel.   Prejudice is established by the fact that petitioner was denied a hearing by the division.”   Hall v. Warden, State Prison, Superior Court, judicial district of Tolland, Docket No. CV104003611 (May 30, 2012, Purtill, J.T.R.) (citing, Bunkley v. Commissioner, 222 Conn. 444, 459 n.16, 610 A.2d 598 (1992)).   On his sentence review claim, therefore, the petitioner is entitled to relief.

III. Conclusion

Based on the foregoing, the petition for writ of habeas corpus is GRANTED with respect to the petitioner's claim regarding sentence review and judgment as to that claim is rendered in favor of the PETITIONER.   Therefore, it is the order of this court that the petitioner's right to apply for sentence review be reinstated and he shall have thirty (30) days from the date of this decision within which to submit the appropriate filings with the Sentence Review Division.   The petition is DENIED with respect to all other claims and judgment thereon shall enter for the RESPONDENT.

Counsel for the petitioner shall prepare and submit a judgment file to the clerk within thirty (30) days.   Notwithstanding, if either party wishes to appeal this judgment, or any part hereof, all necessary appellate forms and notices shall be filed within the time-frames set forth in applicable Practice Book and statutory sections.

Hon. John M. Newson

FOOTNOTES

FN1. General Statutes § 54–46 Prosecution on Complaint or Information.   For all crimes charged by the state on or after May 26, 1983, the prosecution may be by complaint or information.   For all crimes punishable by death or imprisonment for life charged by the state before May 26, 1983, the prosecution shall be by indictment.  (Emphasis added.).  FN1. General Statutes § 54–46 Prosecution on Complaint or Information.   For all crimes charged by the state on or after May 26, 1983, the prosecution may be by complaint or information.   For all crimes punishable by death or imprisonment for life charged by the state before May 26, 1983, the prosecution shall be by indictment.  (Emphasis added.)

FN2. The petitioner withdrew the claims in paragraphs 37C, 43C and 53–55 of the petition..  FN2. The petitioner withdrew the claims in paragraphs 37C, 43C and 53–55 of the petition.

FN3. At the conclusion of evidence, the petitioner also conceded the claim in paragraph 37A that defense counsel had been ineffective for failing to adequately raise and prosecute a claim that the third trial and conviction was obtained in violation of the petitioner's double jeopardy rights..  FN3. At the conclusion of evidence, the petitioner also conceded the claim in paragraph 37A that defense counsel had been ineffective for failing to adequately raise and prosecute a claim that the third trial and conviction was obtained in violation of the petitioner's double jeopardy rights.

FN4. The clerk notes indicate “Oral motion for mistrial due to absence of juror due to death of immediate family member and juror misconduct.”   What the notes do not indicate, however, is who made the motion.  (Exhibit 28, Clerk File Notes, 11/10/86.).  FN4. The clerk notes indicate “Oral motion for mistrial due to absence of juror due to death of immediate family member and juror misconduct.”   What the notes do not indicate, however, is who made the motion.  (Exhibit 28, Clerk File Notes, 11/10/86.)

FN5. Exbibit 28, State v. Couture, Clerk File Notes..  FN5. Exbibit 28, State v. Couture, Clerk File Notes.

FN6. Exhibit D, Letter of July 25, 1986..  FN6. Exhibit D, Letter of July 25, 1986.

FN7. Notwithstanding counsel's claims that he was “available,” to begin trial in the petitioner's matter any time after September 1988, the record reflects that the Weinberg matter commenced with jury selection on September 6, 1988, and did not conclude with a jury verdict until November 22, 1988..  FN7. Notwithstanding counsel's claims that he was “available,” to begin trial in the petitioner's matter any time after September 1988, the record reflects that the Weinberg matter commenced with jury selection on September 6, 1988, and did not conclude with a jury verdict until November 22, 1988.

FN8. Exhibit 24, Motion to Dismiss on Grounds of Double Jeopardy, April 30, 1985..  FN8. Exhibit 24, Motion to Dismiss on Grounds of Double Jeopardy, April 30, 1985.

FN9. Exhibit C, Order of the Supreme Court, October 1, 1985..  FN9. Exhibit C, Order of the Supreme Court, October 1, 1985.

FN10. “Significantly, counsel for the defendant Couture asserts that ‘․ it was [the State Attorney's] intent to goad the defendant into moving for mistrial.’  “ Exhibit 25, Memorandum of Decision, May 30, 1985, p. 4..  FN10. “Significantly, counsel for the defendant Couture asserts that ‘․ it was [the State Attorney's] intent to goad the defendant into moving for mistrial.’  “ Exhibit 25, Memorandum of Decision, May 30, 1985, p. 4.

FN11. “The intent of the prosecutor is decisive of this matter.   After reviewing the transcript of the prosecutor's summation, the court is persuaded that his intent in making the ‘deliberate, facially improper, persistent and pronounced’ remarks was to persuade the jury to return guilty verdicts and not to provoke a mistrial ․” (Italics added.)   Exhibit 25, p. 6..  FN11. “The intent of the prosecutor is decisive of this matter.   After reviewing the transcript of the prosecutor's summation, the court is persuaded that his intent in making the ‘deliberate, facially improper, persistent and pronounced’ remarks was to persuade the jury to return guilty verdicts and not to provoke a mistrial ․” (Italics added.)   Exhibit 25, p. 6.

FN12. “Because of the limitations to which it is subjected, habeas corpus cannot be utilized as a substitute for an appeal of the original action, or for a writ of error, or for a petition for a new trial.   It may not be employed to review irregularities or errors of procedure or questions as to the sufficiency of evidence.   Nor may defenses, such as insanity, the Statute of Limitations, alibi, and the like, available to but not pressed by the accused at the trial, be raised by habeas corpus.”  Wojculewicz v. Cummings, supra, 143 Conn. 628–29..  FN12. “Because of the limitations to which it is subjected, habeas corpus cannot be utilized as a substitute for an appeal of the original action, or for a writ of error, or for a petition for a new trial.   It may not be employed to review irregularities or errors of procedure or questions as to the sufficiency of evidence.   Nor may defenses, such as insanity, the Statute of Limitations, alibi, and the like, available to but not pressed by the accused at the trial, be raised by habeas corpus.”  Wojculewicz v. Cummings, supra, 143 Conn. 628–29.

FN13. On the record submitted before this court, it is not possible to determine who made the oral motion.   Exhibit 28, Clerk File Notes, 11/10/86..  FN13. On the record submitted before this court, it is not possible to determine who made the oral motion.   Exhibit 28, Clerk File Notes, 11/10/86.

Newson, John M., J.