231298 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 1, 2010, and amended by assigned counsel on June 5, 2013.   The respondent's return denies the petitioner's claims and that he is entitled to habeas corpus relief, and raises affirmative defenses to each of the four counts asserted in the amended petition.   The petitioner did not file a reply in accordance with Practice Book § 23–31 until September 9, 2013, the day of trial.   The parties addressed the claims and affirmative defenses at the onset of trial and the court, for the reasons articulated on the record and in its partial judgment, dismissed counts one, three and four.   Thus, only count two of the amended petition remains.

The parties entered into evidence numerous documents consisting of portions of transcripts from the criminal trial, copies of correspondences, statements given to police by several individuals, and copies of certain pleadings from the petitioner's first habeas corpus matter.   Additionally, the petitioner presented the testimony of Attorney Louis Avitabile, who represented Gregory Hunter, Attorney John Cizik, who was the petitioner's defense counsel, Attorney Neil Cone, who was the petitioner's appellate counsel on his direct appeal, as well as his own testimony.¹

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

DISCUSSION

I. Ineffective Assistance of Appellate Counsel Standard

“It is axiomatic that, in order to establish a claim of ineffective assistance of appellate counsel, a habeas petitioner must establish both deficient performance and the resulting prejudice.   See Mozell v. Commissioner of Correction, 87 Conn.App. 560, 562, 867 A.2d 51, cert. denied, 273 Conn. 934, 875 A.2d 543 (2005).   The performance prong requires proof that appellate counsel's performance fell below an objective standard of reasonableness.   Id., 563.   There is a strong presumption that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.  Id. Just as the decision of trial counsel not to object to certain evidence is a matter of trial tactics, not evidence of incompetency;  Levine v. Manson, 195 Conn. 636, 648, 490 A.2d 82 (1985);  the tactical decision of appellate counsel not to raise a particular claim is ordinarily a matter of appellate tactics, and not evidence of incompetency, in light of the presumption of reasonable professional judgment.  Orellana v. Commissioner of Correction, 135 Conn.App. 90, 99, 41 A.3d 1088, cert. denied, 305 Conn. 913, 45 A.3d 97 (2012).   This is particularly apt because our courts have frequently chided appellate counsel for not exercising more discriminating judgment in selecting which claims to present on appeal, so as not to dilute the strength of strong arguments by forcing the court to consider weak ones.   See, e.g., id., 98;  Johnson v. Commissioner of Correction, 131 Conn.App. 805, 809, 29 A.3d 166 (2011);  DaEria v. Commissioner of Correction, 107 Conn.App. 539, 542, 946 A.2d 249, cert. denied, 289 Conn. 911, 957 A.2d 877 (2008).

“The prejudice prong requires proof that, had the prior performance been reasonable rather than inadequate, there is a reasonable probability that the petitioner would have prevailed on the appeal.  Johnson v. Commissioner of Correction, supra, 131 Conn.App. 808.   A failure to establish either prong will be fatal to a claim of ineffectiveness of counsel.  Crawley v. Commissioner of Correction, 141 Conn.App. 660, 665, 62 A.3d 1138, cert. denied, 308 Conn. 946 (2013).”  Alterisi v. Commissioner of Correction, 145 Conn.App. 218, 222–23, 77 A.3d 748, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013).

“[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 ․ The right to counsel is not the right to perfect representation ․ [Although] an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue.   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 ․ Indeed, [e]xperienced 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 ․ Most cases present only one, two, or three significant questions ․ The effect of adding weak arguments will be to dilute the force of the stronger ones ․ Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation.”  (Internal quotation marks omitted.)  Bailey v. Commissioner of Correction, 107 Conn.App. 362, 366–67, 947 A.2d 2, cert. denied, 287 Conn. 922, 951 A.2d 568 (2008).   See also Johnson v. Commissioner of Correction, supra, 131 Conn.App. 808–09.

II. Count Two—Ineffective Assistance of Appellate Counsel

The petitioner alleges in count two, paragraph 20, that appellate counsel, Attorney Cone, rendered deficient performance by “fail[ing] to file a motion for rectification and enlargement of the trial record, in order to develop for the petitioner's appeal, asking that the trial court include transcripts from Gregory Hunter's plea and sentencing proceedings and that the trial court conduct an evidentiary Floyd hearing pursuant to State v. Floyd, 253 Conn. 700, [756 A.2d 799] (2000), to determine whether the state had knowingly presented misleading testimony, or suppressed impeachment evidence, regarding an agreement or understanding with Gregory Hunter, a cooperating witness.”   The petitioner further avers that had appellate counsel sought and obtained such a Floyd hearing, that “[t]here is a reasonable probability ․ [he] would have prevailed at the Floyd hearing and the outcome of the proceedings would have been different as the petitioner suffered actual prejudice to his defense.”

The respondent's return denies that the petitioner is entitled to relief and leaves him to his burden of proof.   The return also asserts as an affirmative defense that the petitioner's claim in count two fails to state a claim upon which habeas corpus relief may be granted.   According to the respondent, “the petitioner cannot obtain habeas corpus review of the claim as the existence of any alleged agreement between the state and Gregory Hunter was disavowed by the parties at the trial level.   State v. Gregory Hunter, Docket No. [CR]01–0306884, [CR]01–0308955, Superior Court, Judicial District of Waterbury (December 20, 2004).  (Transcript of February 25, 2004 at 6–7, October 18, 2004 at 209–11, 219, 222–23).”

a) Underlying Facts

The petitioner was charged in an amended information with murder, criminal possession of a firearm and intimidating a witness.   The matter was tried to a jury, which returned guilty verdicts on the charges of murder in violation of General Statutes § 53a–54a, and criminal possession of a firearm in violation of General Statutes § 53a–217(a)(1).   The jury was unable to reach a verdict on the charge of tampering with a witness and the court dismissed that count.   The trial court, O'Keefe, J., sentenced the petitioner to a total effective sentence of sixty years.   The petitioner, represented by Attorney Cone, appealed from the judgment of conviction.

The Supreme Court's decision summarizes the facts reasonably found by the jury.  “In the early morning hours of December 29, 2001, the victim, Damian Ellis, was with his friends, Damian Wade and Arthur Hall, at the Athenian Diner in Waterbury (diner).   The [petitioner] also was present at the diner with a group of friends, which included Jason Greene, his brother, Michael Greene, and Gregory Hunter.   The victim's group had a verbal altercation with the [petitioner] and Hunter that prompted the restaurant manager to eject both groups of men from the diner.   The two groups engaged in some additional verbal sparring and then separated once outside the diner.

“The [petitioner's] group entered a black Lexus sport utility vehicle, driven by Hunter, and was exiting the diner parking lot when Hunter stopped the car in front of the victim, who was standing outside the entrance to the diner.   Either Hunter or the victim reinitiated the dispute, and Hunter subsequently exited the vehicle and approached the victim's group with a knife in his hand.   The victim backed away from Hunter, down a ramp on the side of the diner, as the [petitioner] exited the vehicle and moved to the corner of the building near the ramp.   The [petitioner] walked up to the victim and shot him twice with a nine millimeter Cobray M–11 semiautomatic pistol.   One shot entered the victim's brain and likely killed him within five seconds.

“Following the shooting, the [petitioner] got back into the Lexus, which was now driven by Jason Greene, and the two men left the scene.   The [petitioner] threw the gun out of the car's window and shortly thereafter exited the vehicle.   Jason Greene later directed the police to the area in which the [petitioner] had discarded the murder weapon.”  State v. Brewer, 283 Conn. 352, 353–54, 927 A.2d 825 (2007).

The petitioner's sole claim on appeal was that the trial court had given a jury instruction that violated his constitutional rights.   The Supreme Court affirmed the judgment of conviction.  Id., 355.   The petitioner previously sought habeas corpus relief in Brewer v. Warden, Superior Court, judicial district of Tolland, Docket No. CV06–4001358 (March 10, 2010), in which he alleged ineffective assistance by trial counsel, Attorney Cizik.   The habeas court, Fuger, J., denied the claims and the petitioner appealed.   The Appellate Court dismissed the appeal.  Brewer v. Commissioner of Correction, 133 Conn.App. 904, cert. denied, 304 Conn. 910 (2012).

b) State v. Floyd and Its Progeny

The petitioner's claim against Attorney Cone centers on his purported failure to seek and obtain a Floyd hearing.²  The Supreme Court in Floyd addressed a claim that the failure to disclose impeachment evidence pertaining to one of the state's witnesses violated his constitutional right to due process.  State v. Floyd, supra, 253 Conn. 724.  “After the defendant was convicted, the defendant's appellate counsel obtained information concerning the disposition of [charges] against the [state's witness], which, the defendant [claimed], showed that [witness] had, in fact, received favorable treatment from the state in the criminal proceedings against him as of the date of his testimony in [Floyd's] case.”  Id., 730.

Appellate counsel in Floyd, coincidentally also appellate counsel for the petitioner in the present matter, “filed a motion for rectification or augmentation of the trial court record pursuant to Practice Book §§ 66–5, 61–10 and 60–2(1) and (9).”  Id., 731.   The motion was forwarded to the trial court, which denied the motion, after which appellate counsel “[requested the Supreme Court] to exercise its supervisory powers pursuant to what is now Practice Book § 60–2, and for review of the trial court's denial of the defendant's motion for rectification or augmentation of the record, pursuant to what is now Practice Book § 66–7.  [The Supreme Court] granted the defendant's motion for review and ordered the trial court to hold an evidentiary hearing to determine whether [the state's witness] and the state had a plea agreement when [the witness] testified at trial.”  Id., 732.   The trial court then conducted the evidentiary hearing, now also called a Floyd hearing,³ and ultimately “concluded that there was no implied plea agreement between the state and [the witness].”  Id., 736.   This conclusion was upheld by the Supreme Court.  Id., 741.

In 2005, the Appellate Court addressed a defendant's request for a Floyd hearing in State v. Hamlin, 90 Conn.App. 445, 878 A.2d 374, cert. denied, 276 Conn. 914, 888 A.2d 86 (2005).   The Appellate Court declined to remand the matter to the trial court for a Floyd hearing.  Id., 452.  “The circumstances underlying [defendant's appeal in Hamlin were] readily distinguishable from those in Floyd.   In Floyd, it was only after the defendant was convicted that his counsel obtained additional evidence concerning favorable treatment of a state's witness.   After the trial court in Floyd denied the motion for rectification or augmentation of the record, the defendant then filed a consolidated motion, requesting our Supreme Court to exercise its supervisory powers pursuant to Practice Book § 60–2 and for review of the trial court's denial of the defendant's motion for rectification or augmentation of the record pursuant to Practice Book § 66–7.   The court granted the defendant's motion for review and ordered the trial court to hold an evidentiary hearing to determine whether the witness and the state had a plea agreement when the witness testified at trial.  State v. Floyd, supra, 732.

“By contrast, prior to trial, defense counsel in [Hamlin] was aware of the holding cell conversation between the defendant and Moore[, the witness].   As the trial court stated in its memorandum of decision on the defendant's motion for rectification or enlargement of the record:  ‘The defendant knew about the circumstances regarding Moore being placed in the same cell with the defendant on the day that it occurred and was given the opportunity to address the witness regarding that circumstance during counsel's cross-examination of the witness.   Defense counsel had multiple opportunities to explore this situation when Moore was on the [witness] stand.   Not only did the defense not explore the situation while the witness was on the stand, but counsel objected when the state's attorney sought to examine the witness regarding the witness and the defendant being placed in the same cell.’   The court therefore denied the motion, concluding that the defendant had ample opportunity to raise his sixth amendment claim and to develop the record concerning that claim during the trial ․ We agree with the trial court.   The defendant chose not to take advantage of the opportunities to explore the circumstances surrounding the holding cell conversation or to file a motion to suppress the alleged consciousness of guilt statement made therein.  ‘Our rules of procedure do not allow a defendant to pursue one course of action at trial and later, on appeal, argue that a path he rejected should now be open to him ․ To rule otherwise would permit trial by ambuscader.’  (Internal quotation marks omitted.)   State v. Colon, 272 Conn. 106, 246, 864 A.2d 666 (2004).

“Floyd presented the unusual situation in which a defendant was precluded from perfecting the record due to new information obtained after judgment.   State v. Floyd, supra, 253 Conn. 730.   The present case is inapposite.   The defendant was aware, prior to both the suppression hearing and trial, that the holding cell conversation had occurred.   Accordingly, we refuse to remand the matter for the requested Floyd hearing.”  (Emphasis in original;  footnote omitted.)  State v. Hamlin, supra, 90 Conn.App. 452–53.

In State v. Ortiz, 280 Conn. 686, 711–12, 911 A.2d 1055 (2006), the Supreme Court upheld the trial court's decision to hold a Floyd hearing after appellate counsel's motion for augmentation and rectification.   The trial court in Ortiz concluded that although there was an agreement that had not been disclosed, the defendant received a fair trial and the trial court's confidence in the outcome of the criminal jury had not been undermined.  Id., 716.   The Supreme Court, after clarifying the standard of review it needed to apply, “concluded that a trial court's determination as to materiality under Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),] presents a mixed question of law and fact subject to plenary review, with the underlying historical facts subject to review for clear error ․” Id., 720.   After “independently review[ing] the record, [the Supreme Court] concluded that the trial court properly determined that there is no reasonable probability that disclosure of the agreement would have changed the outcome of the proceedings ․ [T]he trial court properly concluded that the nondisclosure in this case was not material.”  Id., 722–23.

Not having done so in Floyd itself, the Supreme Court took the opportunity in Ortiz to explain the basis for the procedure it described in Floyd.   “Floyd hearings to explore claims of potential Brady violations are ordered pursuant to the appellate courts' supervisory authority under Practice Book § 60–2, which provides in relevant part:  ‘The supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed, or earlier, if appropriate, and, except as otherwise provided in these rules, any motion the purpose of which is to complete or perfect the trial court record for presentation on appeal shall be made to the court in which the appeal is pending.   The court ․ may also, for example, on its own motion or upon motion of any party, (1) order a judge to take any action necessary to complete the trial court record for the proper presentation of the appeal ․ (9) remand any pending matter to the trial court for the resolution of factual issues where necessary ․’ We will order a Floyd hearing to develop a potential Brady violation only in ‘the unusual situation in which a defendant was precluded from perfecting the record due to new information obtained after judgment.’   State v. Hamlin, [supra, 90 Conn.App. 453] (declining defendant's request to remand for Floyd hearing when record demonstrated that ‘defendant was aware, prior to both the suppression hearing and trial, that the holding cell conversation had occurred’) ․ A Floyd hearing is not a license to engage in a posttrial fishing expedition, as the court will not hold a hearing in the absence of sufficient prima facie evidence, direct or circumstantial, of a Brady violation unascertainable at trial.   See State v. Sanchez, 84 Conn.App. 583, 586 n.4, 854 A.2d 778, cert. denied, 271 Conn. 929, 859 A.2d 585 (2004).   The trial court's decision with respect to whether to hold a Floyd hearing is reviewable by motion for review pursuant to Practice Book § 66–7, which provides in relevant part:  ‘Any party aggrieved by the action of the trial judge as regards rectification of the appeal or articulation under Section 66–5 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper ․’ See State v. Floyd, supra, 253 Conn. 732.

“The state has contended in its opposition to the defendant's motion that defendants are free to make Brady claims that could not be developed at trial in collateral attacks via habeas corpus proceedings.   This approach, however, fosters delay as the proceedings on direct appeal are exhausted prior to the commencement of habeas proceedings, and deprives a trial court already familiar with the matter of the opportunity to address Brady claims in a timely fashion.   In contrast, Floyd hearings permit the rapid resolution of these fact sensitive constitutional issues and mitigate the effects of the passage of time that would accompany requiring defendants to wait to address these matters until after the conclusion of direct appellate review.   Indeed, the potential memory fade attendant to this delay conceivably might even reward the state for violating Brady.”  State v. Ortiz, supra, 280 Conn. 712 n.17.

c. Evidence In The Present Habeas Corpus

The first witness to testify was Attorney Louis Avitabile, who formerly represented Gregory Hunter.   Attorney Avitabile testified that he informed Mr. Hunter that there would be no specific agreement on the sentence he was to receive, only that his cooperation as a state's witness would be taken into consideration.   The state, according to Attorney Avitabile, wanted Mr. Hunter to testify truthfully at the petitioner's criminal trial and then would make that fact known to Mr. Hunter's sentencing court.   Attorney Avitabile emphatically stressed that there was no agreement between Mr. Hunter and the state.

The petitioner's second witness was his former trial counsel, Attorney Cizik, a public defender assigned to the judicial district of Waterbury.   According to Attorney Cizik, he was aware of and reviewed pending criminal cases of individuals such as Gregory Hunter and Jason Green, who were both expected to testify in the petitioner's criminal trial.   Attorney Cizik would periodically check the status of their criminal cases to stay informed of their progress, including whether there were any bond reductions.   Attorney Cizik utilized information that he obtained, such as bond reduction in those witness's pending criminal cases, during cross examination, but he did not have transcripts of the proceedings where their bonds were reduced.   Attorney Cizik found out from the petitioner how Gregory Hunter's case was resolved after the petitioner's criminal trial had completed.⁴  The trial file maintained by Attorney Cizik was closed after the petitioner was sentenced, and then forwarded to the appellate unit of the Office of the Chief Public Defender, so that the closed file would most likely not contain anything about Gregory Hunter's sentencing.

Attorney Cone, who had been appellate counsel in Floyd, was well aware from the onset of representing the petitioner on appeal to look for a Brady claim premised on an undisclosed agreement.   Attorney Cone reviewed the petitioner's criminal trial transcripts several times to develop the appeal claims.   The first step in his process of ascertaining whether a Brady violation may have occurred was determining what was made known to defense counsel.   The second step was determining what effect any non-disclosed materials had on the criminal proceedings.   That is, did the non-disclosure have a material effect on the proceedings in that there is a reasonable probability that the verdict would have been different.   Attorney Cone then additionally assessed the likelihood of success on appeal if such a Brady claim were raised.

According to Attorney Cone, a Floyd hearing would not have been of any benefit to the petitioner's appeal because it would not have developed any additional information not already known by trial counsel.   Attorney Cizik was aware of the petitioner's pending charges, his cooperation with the state and that it might benefit him at sentencing, and effectively used this information during his cross examination of Gregory Hunter.⁵  Attorney Cone concluded that a Floyd hearing would not develop any additional information that went beyond what the jury had already been made aware of during the criminal trial.

Attorney Cone explained his reasoning for not requesting a Floyd hearing.   In addition to concluding that he was not going to develop anything material, a trial court's decision after a Floyd hearing and a higher court's review of that decision could completely foreclose subsequent post-conviction claims raised in a habeas corpus petition.   Thus, Attorney Cone concluded, based on his determination that a Floyd hearing would not develop any helpful new information, as well as his assessment that the claim would not prevail on appeal and foreclose habeas corpus claims, that there was no valid basis for requesting a Floyd hearing.

Applying the ineffective assistance of appellate counsel standard to the evidence presented, this court is unable to conclude that the petitioner proved either deficient performance or any resultant prejudice.   Attorney Cone, a highly experienced appellate advocate who is responsible for developing the Floyd hearing procedure, valuated the record on appeal and concluded that there was no basis to request a Floyd hearing in the petitioner's direct appeal.   In this case, as in Hamlin, trial counsel was aware of the information, presented it to the jury and sufficiently developed the record.   Attorney Cone's strategic decision to not request a Floyd hearing was well-founded, as the evidence presented to this court has failed to show the very thing the petitioner says a Floyd hearing would have shown:  an undisclosed agreement that materially affected the outcome of the criminal jury trial.   Attorney Cone clearly exercised reasonable professional judgment.

The court concludes, based upon the foregoing, that the petitioner has failed to show how Attorney Cone's performance was deficient.   Even if this court were to assume that his performance was deficient, the petitioner has also failed to show that he would have prevailed on appeal.   The petitioner has not demonstrated that a court on appeal would order a Floyd hearing and, had such a hearing been ordered, that the outcome of the appeal, let alone the criminal trial itself, would have been any different.   This court's confidence in the outcomes of both the direct appeal and the underlying criminal trial have 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. The petitioner's testimony was of no assistance to the court..  FN1. The petitioner's testimony was of no assistance to the court.

FN2. Coincidentally, Attorney Cone was appellate counsel for the defendant in State v. Floyd.   The manner of obtaining such a hearing and its purpose on appeal are a direct result of Attorney Cone's efforts in Floyd and he, therefore, was very well acquainted with Floyd hearings..  FN2. Coincidentally, Attorney Cone was appellate counsel for the defendant in State v. Floyd.   The manner of obtaining such a hearing and its purpose on appeal are a direct result of Attorney Cone's efforts in Floyd and he, therefore, was very well acquainted with Floyd hearings.

FN3. The evidence presented at the hearing is summarized in Supreme Court's decision at pages 732–36..  FN3. The evidence presented at the hearing is summarized in Supreme Court's decision at pages 732–36.

FN4. Gregory Hunter was sentenced several days after the petitioner..  FN4. Gregory Hunter was sentenced several days after the petitioner.

FN5. See Petitioner's Exhibit 10, pp. 209–11, 216–18, 222..  FN5. See Petitioner's Exhibit 10, pp. 209–11, 216–18, 222.

Kwak, Hunchu, J.