201942 v. Warden (2014)

MEMORANDUM OF DECISION

On October 24, 2011, the petitioner, Nathaniel Boykin, filed a petition for a writ of habeas corpus, which was amended by assigned counsel on March 14, 2013.   The amended petition raises claims in two counts and challenges the petitioner's convictions in docket number CR 99–0148692–T, judicial district of Fairfield at Bridgeport, following his jury trial.   The petitioner was convicted of attempt to commit murder in violation of General Statutes §§ 53a–49 and 53a–54a, and sexual assault in the first degree in violation of General Statutes § 53a–70(a)(1).   On July 7, 2000, the petitioner was sentenced to a total effective sentence of thirty years to serve and remains in custody on that sentence.

The petitioner alleges in his amended petition, albeit in separate counts, that Attorneys William R. Schipul and Jason Gladstone provided ineffective assistance of counsel.   More specifically, and as enumerated in following subparagraphs of paragraphs thirteen and seventeen of the amended petition, the petitioner alleges that Attorneys Schipul and Gladstone failed to:  (d) adequately explain to the petitioner the evidence and weight of evidence relative to the charges levied against the petitioner;  (e) fully and properly explain to the petitioner the seriousness of charges the state levied against the petitioner and the strength of the state's evidence and weakness of the defense evidence;  (f) fully and properly explain to the petitioner the likely outcome of the case if it went to trial and the range of sentences the petitioner could receive if he were convicted after trial;  and (g) fully and properly explain to the petitioner the state's plea offer, risk of going to trial and the strength of the state's case, and this failure resulted in the petitioner rejecting the state's plea offer.¹  The petitioner also asserts a claim solely against Attorney Gladstone in subparagraph (h) of paragraph seventeen, namely that he erred in advising the petitioner to elect a jury trial and reject the state's plea deal offer.   The respondent's return denies these claims and that the petitioner is entitled to habeas corpus relief.

The parties appeared before the court on October 30, 2013, for a trial on the merits.   The petitioner testified and presented testimony from Attorneys Schipul and Gladstone, as well as Senior Assistant State's Attorney Cornelius Kelly, who prosecuted the petitioner.   The parties also entered documents, consisting of transcripts, into evidence.

For the reasons articulated more fully below, judgment shall enter denying the petition for a writ of habeas corpus.

DISCUSSION

I. Standard for Claims of Ineffective Assistance Counsel

“ ‘A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings ․ This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution ․ As enunciated in Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], this court has stated:  It is axiomatic that the right to counsel is the right to the effective assistance of counsel ․ A claim of ineffective assistance of counsel consists of two components:  a performance prong and a prejudice prong.   To satisfy the performance prong ․ the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ․ To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different ․ The claim will succeed only if both prongs are satisfied ․ Our Supreme Court has recognized that pretrial negotiations implicating the decision of whether to plead guilty is a critical stage, and, therefore, a defendant is entitled to adequate and effective assistance of counsel at this juncture of the criminal proceedings.’   (Citations omitted;  internal quotation marks omitted.)  Ebron v. Commissioner of Correction, 120 Conn.App. 560, 566–67, 992 A.2d 1200, [rev'd on other grounds, 307 Conn. 342, 53 A.3d 983 (2012), cert. denied sub nom.   Arnone v. Ebron, 133 S.Ct. 1726, 185 L.Ed.2d 802 (2013) ].

“ ‘In Strickland, the United States Supreme Court began its discussion regarding the prejudice prong by observing:  An 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 ․ The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding.   Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution ․ The court then reasoned that a criminal defendant must affirmatively prove prejudice and show that the attorney's errors actually had an adverse effect on the defense ․ Last, it noted that it was not enough to show that the errors had some conceivable effect on the outcome ․ but instead 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.’  (Citations omitted;  internal quotation marks omitted.)  Id., 574.”  H.P.T. v. Commissioner of Correction, 127 Conn.App. 480, 485–86, 14 A.3d 1047 (2011), rev'd on other grounds, H.P.T. v. Commissioner of Correction, 310 Conn. 606, (2013).

A petitioner's inability or failure to prove prejudice inherently means that the petitioner has failed to prove ineffective assistance, as both prongs must be proven.   Because a petitioner must prove both prongs, it is well established that a habeas court may deny ineffective assistance claims if a petitioner fails to prove either prong.   See, e.g., Thompson v. Commissioner of Correction, 131 Conn.App. 671, 691, 27 A.3d 86, cert. denied, 303 Conn. 902, 31 A.3d 1177 (2011) (“Because both prongs ․ must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong”);  King v. Commissioner of Correction, 73 Conn.App. 600, 603, 808 A.2d 1166 (2002), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003);  Denby v. Commissioner of Correction, 66 Conn.App. 809, 813, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002).

II. Underlying Facts

“On the basis of the evidence adduced at trial, the jury reasonably could have found the following facts.   On the evening of April 9, 1999, the female victim spent time socializing in a bar in Bridgeport.   At around 2 a.m. on April 10, 1999, the victim left the bar and walked to a nearby McDonald's restaurant to purchase food.   Upon arriving, the victim encountered the [petitioner], an acquaintance.   McDonald's was not open for business at that hour, and the victim accepted the [petitioner's] invitation to walk with her to a diner in Fairfield.

“Upon their arrival at the diner, the victim and the [petitioner] learned that it also was not open for business.   At that point, the victim told the [petitioner] that she intended to go to an empty parking area behind the diner to urinate.   Shortly thereafter, while the victim was behind the diner partially undressed, the [petitioner] pushed her to the ground and began to choke her.   Despite the victim's efforts, both verbal and physical, to fend off the assault, the [petitioner] forcibly positioned himself on top of the victim and forced her to perform oral sex and to engage in vaginal intercourse.

“After he completed his sexual assault, the [petitioner] told the victim that he could not trust her and began to choke her again.   The victim freed herself from the [petitioner's] hold on her neck and ran to a nearby motor inn where she summoned police assistance.   When police arrived, they found the victim to be hysterical.   The victim had scratch marks on her neck that were consistent with her allegation that the [petitioner] had choked her.   She told police that she had been raped, and the police found items of her personal property behind the diner.   The results of rape kit tests performed on the victim after the assault were consistent with a finding that the [petitioner] had engaged in sexual intercourse with the victim.   After further investigation, police arrested the [petitioner] and charged him with the crimes of which he was convicted.”  State v. Boykin, 74 Conn.App. 679, 680–81, 813 A.2d 143, cert. denied, 263 Conn. 901, 819 A.2d 837 (2003).

“On appeal, the [petitioner] claim[ed] that the trial court improperly) 1) denied his motion for a mistrial after the state, during its case-in-chief, introduced evidence of his prior arrest record and (2) refused to permit him to testify as a surrebuttal witness.”  Id., 680.   The Appellate Court affirmed the judgment of the trial court.  Id.

III. Counts One & Two, (d), (e), (f) and (g);  Failures to Adequately Explain to the Petitioner the Evidence and Weight of Evidence Relative to the Charges, the Seriousness of the Charges and the Strengths/Weaknesses of the Evidence, the Likely Outcome if the Case Went to Trial, and the Plea Offer

The petitioner alleges that both Attorneys Schipul and Gladstone failed to adequately explain to him the evidence, especially the weight of the evidence relative to the charged offenses, the seriousness of the charges and the strengths/weaknesses of the evidence, the likely outcome if the case went to trial, and the state's plea offer.   The petitioner was first represented by Attorney Schipul, who was replaced by Attorney Gladstone shortly prior to trial.   Thus, both attorneys represented the petitioner prior to trial and these allegations are raised against both attorneys.

According to Attorney Schipul, he and the petitioner met a number of times, though he could not recall precisely how many times, during court appearances and pretrials.   He was well informed about all aspects of the petitioner's case and was familiar, through police reports and the warrant, with what was significant to the case.   The warrant was very thorough and laid out the information and evidence that the state had against the petitioner.   Attorney Schipul discussed the state's case, which he felt was strong because of the DNA evidence that tied the petitioner to the victim, and any possible defenses with the petitioner.   There were problems with the petitioner's case, such as contradictions between what witnesses and the police report indicated and the petitioner's version.   Particularly troubling were the petechial hemorrhages on the victim's neck and her appearing very hysterical to the motel clerk and responding police officers, which contrasted with petitioner's version of events, which he only specified after the DNA testing linked him to the victim, that any sexual contact between the petitioner and the victim was consensual and that he paid the victim for sex.   The petitioner, according to Attorney Schipul, was adamant about proceeding to trial after the state and the judge were not receptive to the petitioner's counteroffers to plead guilty in exchange for a sentence of ten years suspended after the service of five years.   Attorney Schipul testified that he thought the state's offer was too high, but that he advised the petitioner to accept the court indicated offer.

Attorney Gladstone testified that he had Attorney Schipul's file, reviewed the state's case and the evidence, and met several times with the petitioner to discuss the charges.   According to Attorney Gladstone, he reviewed with the petitioner all the evidence, anticipated testimonies, maximum penalties, and the risks of going to trial and testifying with the petitioner.   Furthermore, the state kept the plea offer open part way through jury selection, but the petitioner was not interested in resolving the matter via plea agreement.   While the petitioner may not have wanted a trial, he had the option of a plea agreement or going to trial.   Attorney Gladstone discussed the state's offer with the petitioner, who chose to not accept the offer, even as late as during the voir dire of potential jurors.   Although he did not specifically recall discussing the likely outcome of the trial with the petitioner, Attorney Gladstone's practice was to explain the likelihood of success at trial in terms of greater than or less than.

The petitioner testified during the criminal trial that he never received copies of documents such as police reports and witness statements from Attorney Schipul.   Attorney Gladstone eventually provided him copies of these documents.   Respondent's Exhibit A (Transcript, May 1, 2000), pp. 40, 65–66.   The petitioner also testified in the habeas trial that Attorney Schipul never gave him copies of documents such as the police report, witness's statements and the DNA report.   The petitioner testified that Attorney Schipul explained the seriousness of the charges, and that he wanted to accept the deal, but that Attorney Schipul told him he would do better at trial.   According to the petitioner, although Attorney Gladstone provided him with copies of relevant documents, he did not discuss the strength of the state's case with him and did not inform him of the maximum penalty he was facing.   The petitioner testified that he would have taken the state's offer had Attorneys Schipul and Gladstone told him it was a good offer.²

The court credits the testimony by Attorneys Schipul and Gladstone over that of the petitioner.   In particular, the court does not credit the petitioner's testimony that he would have accepted the state's offer, or even the court indicated sentence, instead of proceeding to trial.   The petitioner's insistence of presenting his defense that the sexual intercourse was consensual and paid for by him is completely consistent with his rejection of all plea offers.   Accordingly, even if the court were to assume that the petitioner has proven deficient performance by counsel, which he has not, he also has not proven that he was prejudiced.

IV. Count Two, (h);  Error in Advising the Petitioner to Elect a Jury Trial and Reject the State's Offer

The petitioner alleges that Attorney Gladstone erred in advising the petitioner to elect a jury trial and reject the state's plea offer.   This claim is not asserted against Attorney Schipul.

Attorney Gladstone testified that the state's offer was available to the petitioner even as late as during the voir dire of potential jurors.   He discussed the offer with the petitioner and it was his customary practice to explain the likelihood of success at trial in terms of greater than or less than.   The petitioner was not interested in resolving the matter via plea agreement, proceeded to trial and testified in support of his defense that the sexual intercourse was consensual and that he paid the victim for sex.

For the reasons already articulated above, the petitioner has also failed to prove this claim against Attorney Gladstone.   In addition to not affirmatively showing the required prejudice, the petitioner has also failed to prove deficient performance.   Particularly fatal to the petitioner's claim is that there was no evidence, not even the petitioner's own testimony, that indicates Attorney Gladstone advised the petitioner to reject the state's offer and proceed to trial.

CONCLUSION

Based upon the foregoing, the court denies the petition for a writ of habeas corpus.   Judgment shall enter for the respondent.   Counsel for the petitioner shall file a judgment file with the clerk within thirty days of the date of this decision.

It is so ordered.

Kwak, J.

FOOTNOTES

FN1. The petitioner at trial withdrew additional allegations in subparagraphs (a)-(c) of paragraphs thirteen and seventeen, as well as subparagraph (i) of paragraph seventeen..  FN1. The petitioner at trial withdrew additional allegations in subparagraphs (a)-(c) of paragraphs thirteen and seventeen, as well as subparagraph (i) of paragraph seventeen.

FN2. Senior Assistant State's Attorney Kelly testified in the habeas trial that the state's offer was twenty years to serve.   The court indicated offer by Judge Thim was sixteen years, execution suspended after the service of ten years.   Attorney Schipul, according to Kelly, attempted to get the offer down to five years to serve..  FN2. Senior Assistant State's Attorney Kelly testified in the habeas trial that the state's offer was twenty years to serve.   The court indicated offer by Judge Thim was sixteen years, execution suspended after the service of ten years.   Attorney Schipul, according to Kelly, attempted to get the offer down to five years to serve.

Kwak, Hunchu, J.