224797 v. Warden (2014)

MEMORANDUM OF DECISION

The petitioner initiated the present matter by way of a pro se petition for a writ of habeas corpus filed on April 27, 2011, and amended by assigned counsel on April 9, 2013.   The respondent's return denies the petitioner's claims and that he is entitled to habeas corpus relief.   Thereafter the parties appeared before the court on July 24 and 25, 2013, for a trial on the merits, at which time the court heard the parties' arguments on the respondent's motion for summary judgment and the objection thereto before proceeding with the trial on the merits.   On September 11, 2013, this court granted respondent's motion for summary judgment and dismissed counts one, three and four.   The parties thereafter filed post-trial briefs on the sole remaining claim in count two, ineffective assistance by prior habeas counsel.

For the reasons articulated more fully below, the claim of ineffective assistance of prior habeas counsel is denied.

DISCUSSION

I. Ineffective Assistance of Prior Habeas Counsel Standard

“In Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction ․ That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense ․ Unless a [petitioner] makes both showings, it cannot be said that the conviction ․ resulted from a breakdown in the adversary process that renders the result unreliable ․ 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.”  (Internal quotation marks omitted.)   Vazquez v. Commissioner of Correction, 128 Conn.App. 425, 430, 17 A.3d 1089, cert. denied, 301 Conn. 926, 22 A.3d 1277 (2011).

“ ‘To satisfy the performance prong [of the Strickland test] 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.’  (Internal quotation marks omitted.)   Boyd v. Commissioner of Correction, 130 Conn.App. 291, 294–95, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011).  ‘[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’  “ (Internal quotation marks omitted.)   Orellana v. Commissioner of Correction, 135 Conn.App. 90, 98, 41 A.3d 1088, cert. denied, 305 Conn. 913, 45 A.3d 97 (2012).

“ ‘As applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding.   Thus ․ the petitioner will have to prove that ․ prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial ․’ (Internal quotation marks omitted.)  Williams v. Commissioner of Correction, 133 Conn.App. 96, 101–02, 33 A.3d 883, cert. denied, 303 Conn. 941, 37 A.3d 153 (2012).”  Harris v. Commissioner of Correction, 146 Conn.App. 877, 882–83 (2013).

“[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 ․ To satisfy the second prong of Strickland, that his counsel's deficient performance prejudiced his defense, the petitioner must establish that, as a result of his trial counsel's deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal ․ 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.”  (Citations omitted;  internal quotation marks omitted.)  Bryant v. Commissioner of Correction, 290 Conn. 502, 522, 964 A.2d 1186, cert. denied sub nom.  Murphy v. Bryant, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009).

“Moreover, ‘[a] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the [petitioner] as a result of the alleged deficiencies.   The object of an ineffectiveness claim is not to grade counsel's performance.   If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice ․ that course should be followed.’  (Internal quotation marks omitted.)  Holley v. Commissioner of Correction, 62 Conn.App. 170, 174, 774 A.2d 148 (2001).”   Britton v. Commissioner of Correction, 141 Conn.App. 641, 649, 61 A.3d 1188, cert. denied, 308 Conn. 946, 67 A.3d 290 (2013).

II. Count Two—Ineffective Assistance of Prior Habeas Counsel

The petitioner alleges in count two that prior habeas counsel, Attorneys Cynthia Barlow and George Cameron, were ineffective.   More specifically, as identified in the following numbered paragraphs, the petitioner alleges that prior habeas counsel were deficient for:  48) failing to adequately present the petitioner's claims made in the previous writ of habeas corpus;  49) failing to adequately present available issues;  and 50) not adequately investigating the factual and legal bases of the petitioner's case.   The petitioner asserts that prior habeas counsels' representation was not reasonably competent, nor within the range of competence displayed by lawyers with ordinary training and skill in the criminal and habeas law.

Count two incorporates by way of reference paragraphs 1–47 of count one,¹ which allege ineffective assistance by former trial counsel, Attorney John Williams.   The following paragraphs in count one allege failures and deficient performance by Attorney Williams: ²  24) effectively review transcripts of a co-defendant's trial;  26) consult with experts and present expert testimony;  27) present available witnesses and evidence in support of the defense;  28) adequately investigate the factual bases for impeaching prosecution witnesses;  29) present available witnesses and evidence to impeach prosecution witnesses;  30) adequately investigate the factual basis concerning the defense version of the underlying incident;  31) take adequate precautions to avoid the introduction of evidence prejudicial to the petitioner;  32) adequately investigate the law as it related to the petitioner's case;  33) negotiate an adequate offer and convey and advise the petitioner thereof;  34) file certain motions during the proceedings;  35) adequately present the petitioner's defense;  36) adequately advise the petitioner concerning his defense;  and 37) object to numerous improper comments made by the prosecutor during closing arguments.

The evidence presented to this court consists of transcripts of the probable cause hearing and trial transcripts, the record and/or briefs from the direct appeal and the petitioner's prior habeas corpus, as well as several newspaper clippings.   The sole witness to present testimony was the petitioner himself.   The court need only summarize the petitioner's testimony.

The petitioner testified about the circumstances surrounding Diane Donofrio being seen on two occasions near the petitioner and/or Lisa Sheldon, as well as that he advised Attorney Williams of these incidents.   The petitioner also testified about some of the prosecutor's closing arguments and their inappropriateness.   Additionally, the petitioner testified about Attorney Williams seeking an acquittal on the conspiracy charge, the trial court's comments on November 28, 1994, as well as a newspaper article published the following morning and the continuation of the court proceedings on November 29, 1994.   The petitioner further testified about Diane Donofrio's sentencing by the very same judge who presided over his trial and sentenced him.   The petitioner believes his due process rights were violated because he was convicted of conspiring with Diane Donofrio, and that the same evidence that was used to convict him essentially was used in an inconsistent manner to not convict Diane Donofrio of conspiracy.

A habeas corpus petitioner's evidentiary burden in a “habeas on a habeas” has been described as being Herculean.   See, e.g., Alterisi v. Commissioner of Correction, 145 Conn.App. 218, 227, 77 A.3d 748, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013);  Davis v. Commissioner of Correction, 140 Conn.App. 597, 604, 59 A.3d 403, cert. denied, 308 Conn. 920, 62 A.3d 1133 (2013);  Lapointe v. Commissioner of Correction, 138 Conn.App. 454, 475, 53 A.3d 257 (2012).   The task is Herculean because receiving a new criminal trial as a result of a habeas on a habeas “․ would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel.   The second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement.”   Lozada v. Warden, 223 Conn. 834, 843, 613 A.2d 818 (1992).

“ ‘[W]ith regard to the performance prong of Strickland, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy ․ The law presumes that counsel is competent until evidence has been introduced to the contrary ․ It is elementary jurisprudence that the determination of whether counsel's conduct was ineffective is a peculiarly fact bound inquiry ․ Moreover, [i]t is well established that a petitioner in a habeas proceeding cannot rely on mere conjecture or speculation to satisfy either the performance or prejudice prong [of Strickland ] but must instead offer demonstrable evidence in support of his claim.’  (Citations omitted;  internal quotation marks omitted.)   Martinez v. Commissioner of Correction, 147 Conn.App. 307, 315–16 (2013).”   Smith v. Commissioner of Correction, 148 Conn.App. 517, 528 (2014).

The evidence in this case falls woefully short of satisfying the petitioner's burden of proof.   The petitioner's testimony neither affirmatively proves that trial and habeas counsel performed deficiently, nor that the petitioner has been prejudiced by any purported deficiencies.   The petitioner's testimony, even if credited, proves neither of the Strickland prongs.   Stated somewhat differently, the petitioner's testimony does not move his claims beyond being conjecture and speculation.  Miller v. Commissioner of Correction, 116 Conn.App. 357, 365, 976 A.2d 6 (“[t]o prevail on a petition for a writ of habeas corpus, mere conjecture does not suffice”), cert. denied, 293 Conn. 930, 980 A.2d 915 (2009);  Ostolaza v. Warden, 26 Conn.App. 758, 765, 603 A.2d 768 (petitioner's burden not met by speculation but by demonstrable realities), cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).   Stated yet another way, the petitioner has presented no evidence that affirmatively rebuts the strong presumption that counsel were competent, nor has he shown that their performance fell outside the wide range of reasonable professional assistance.   This court's confidence in the outcome of any of the prior proceedings has in no way been undermined.

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 (30) days of the date of this decision.

It is so ordered.

Kwak, J.

Superior Court Judge

FOOTNOTES

FN1. Paragraph 11 of count one was withdrawn by the petitioner on July 24, 2013..  FN1. Paragraph 11 of count one was withdrawn by the petitioner on July 24, 2013.

FN2. Paragraphs 10, 12, 15, 19 and 20 also contain allegations, but they are subsumed within paragraphs 24–37..  FN2. Paragraphs 10, 12, 15, 19 and 20 also contain allegations, but they are subsumed within paragraphs 24–37.

Kwak, Hunchu, J.