Opinion
No. TSR CV04 4000112-S
April 7, 2008
MEMORANDUM OF DECISION
On September 30, 2004, the petitioner initiated this matter by way of a pro se petition for a writ of habeas corpus. Appointed counsel filed an amended petition raising a single claim, ineffective assistance of habeas counsel, although premised on a good many alleged deficiencies. Respondent's return denies the petitioner's material allegations and that he is entitled to habeas corpus relief.
The court notes at this early juncture that the petitioner's pro se petition and accompanying application for waiver of fees identify the petitioner as "David A. Abrams." Thus, this present matter was docketed under that name. It became clear at the habeas trial through the petitioner's testimony and documents submitted into evidence that while the petitioner presently asserts his proper name is "David Abrams," he has also been known as "David Abrahams." Because there is no dispute that "David Abrams" and "David Abrahams" are the same individual, at least for purposes of the present habeas corpus petition, the court will use the name under which this matter was docketed. Any use of the name "David Abrahams" in the memorandum of decision, of course, also refers to the petitioner.
The matter came before the court in January 2008 for a trial on the merits. Witnesses included the petitioner and the petitioner's habeas trial counsel, Bruce McIntyre. The court finds the testimony of McIntyre to be highly credible and the testimony of the petitioner to be credible in part and not credible in part. The court has reviewed and considered the testimony, the exhibits and the parties' closing arguments. After applying the law to the facts, judgment enters denying the petition for a writ of habeas corpus.
FINDINGS OF FACT
The petitioner was the defendant in a criminal case pending in the judicial district of Danbury, Docket Number CR00-0110691, in which he was charged with attempt to commit murder in violation of Gen. Stat. §§ 53a-49 and 53a-54b; assault in the first degree in violation of Gen. Stat. § 53a-59; and criminal possession of a firearm in violation of Gen. Stat. § 53a-217. Petitioner was additionally charged with commission of a class A, B or C felony with a firearm in violation of Gen. Stat. § 53-202k. After a trial to the jury in October 2001, the petitioner was convicted. Thereafter the court, White, J., found the petitioner in violation of probation.
The Appellate Court opinion sets out the facts which the jury could have found:
CT Page 5600
The [petitioner] and the victim, Jacqueline Peton, were involved in a sometimes volatile, live-in relationship from December 1994 until August 2000, during which time they had a child. Prior to the relationship ending, the victim called the Danbury police in August 2000, claiming that the [petitioner] had violated the restraining order that she had obtained against him living with her. At that time, to give the victim "a taste of her own medicine," the [petitioner] called her employer and reported that she was stealing cleaning products at work and selling them.
On November 1, 2000, the [petitioner] went to the victim's apartment to see his son. When the victim did not allow him into her apartment, the [petitioner] threatened to kill her and stated that he was going to report her to the department of children and families for child abuse. During the early evening hours of November 3, 2000, the [petitioner] and the victim had an argument during a telephone conversation. After the victim hung up, the [petitioner] repeatedly called her telephone number. Despite the [petitioner]'s objections, she went out that night with Ricky Cordiero. At approximately 5 a.m. on November 4, 2000, the victim returned to her apartment complex and observed the [petitioner] sitting in his vehicle, a black Chrysler sedan with custom wheel rims. As the victim walked toward her building, the [petitioner] ran to her with a gun in his hand and grabbed her. When she escaped, the [petitioner] circled her and fired a series of shots at her, wounding her in the leg, elbow and buttocks. After the [petitioner]'s gun jammed, as he left the scene, he told the victim, "I'm going to get you. I'm going to have somebody f*cking kill you."
State v. Abrahams, 79 Conn.App. 767, 769-71 (2003).
On direct appeal, the petitioner claimed that ". . . his constitutional rights to due process and to a fair trial were violated as a result of prosecutorial misconduct." Id., at 769. In fact, all claims raised on appeal were premised on some prosecutorial impropriety or misconduct. The Appellate Court concluded that the claims, both individually and when viewed in their totality, did not deprive the petitioner of a fair trial. Id., at 780. To arrive at this conclusion the Appellate Court had to review the criminal trial, as a whole, before concluding that the trial was not fundamentally unfair.
The Appellate Court noted as part of this review of the entire that there was overwhelming evidence of the petitioner's guilt. State v. Abrahams, 79 Conn.App. 767, 782 (2003).
The petitioner previously litigated a habeas corpus petition, docket number CV02-0461618, in the Judicial District of New Haven (the first habeas case). In his amended petition filed in, by and through counsel, the petitioner raised a single claim, ineffective assistance by trial defense counsel, though premised on twenty-three alleged deficiencies. The court, DeMayo, J.T.R., denied the petition, concluding its lengthy memorandum of decision as follows: "The court concludes that trial counsel performed well above the level of competence of criminal defense lawyers. The plea bargained disposition of a total effective sentence of 20 years speaks to this evaluation. At trial, counsel was faced with a near impossible task, immensely burdened by a client with an allegiance to his preferred counsel and a distorted notion that his contrived episodic inventions would overcome the state's ironclad case. The investigation appears to have been thorough in all relevant areas. The petitioner's claims are based on speculation and in some instances sheer fantasy. Accepting all of the factual premises advanced, he has not demonstrated how the outcome of the trial would be changed in his favor." Abrahams v. Commissioner of Correction, Superior Court, judicial district of New Haven, Docket No. CV02-0461618 (Feb. 28, 2005, DeMayo, J.T.R.), at 24.
At the habeas trial before this court (the second habeas case), the petitioner testified that he had been represented in the criminal trial by Attorney Joseph Romanello, in his direct appeal by Attorney Lisa Steele and in his first habeas case by Attorney Bruce McIntyre. The petitioner also testified that McIntyre's performance at the habeas trial was deficient in that McIntyre should have presented evidence Romanello and Steele were ineffective when they failed to argue (1) the prosecutor's excessive sarcasm during closing argument constituted prosecutorial misconduct; (2) under the circumstances of the criminal case in which there was only one victim, assault in the first degree was a lesser included offense of attempt to commit murder; (3) the criminal trial court instructed the jury on an inapplicable element of attempted murder; (4) the trial court instructed the jury on an inapplicable portion of the intent charge; and (5) the court's imposition of consecutive sentences for the crimes of attempted murder and assault in the first degree constituted double jeopardy. Additionally the petitioner testified McIntyre was ineffective for failing to file a motion for articulation when, in its memorandum of decision, the habeas court failed to address the petitioner's claim that the prosecutor improperly vouched for certain witnesses. Finally the petitioner testified that McIntyre was ineffective because he failed to argue that Steele's performance was deficient (1) when she failed to adequately brief the issue of the prosecutor's reference to the petitioner's pretrial incarceration and (2) when she cited incorrect case law in support of her argument on the issue of the prosecutor's reference to a missing alibi witness.
During the habeas trial, petitioner's counsel withdrew the claim in paragraph 6 of the amended petition. Additionally petitioner testified that the claims presented in paragraphs 13, 14 and 15 were not "viable" issues. Also no evidence was adduced as to paragraph 7. Accordingly, the court deems the claims raised in paragraphs 7, 13, 14 and 15 abandoned.
The petitioner additionally testified that during the preparation of his first habeas case, he did not discuss any of these issues with McIntyre. Although the petitioner believes that McIntyre should have presented these additional instances of trial and appellate counsel's ineffective assistance, with the exception of his failure to move for articulation, the petitioner believes McIntyre properly represented him on all of the issues actually raised at the first habeas trial.
On cross examination the petitioner conceded that the prosecution had a strong case against him and that trial defense counsel had informed him that he would likely be convicted of either attempted murder or assault in the first degree at trial. The petitioner claims, however, trial defense counsel also told him that he would not be convicted of both charges. Accordingly the petitioner believed that his maximum exposure was thirty years. The petitioner also admitted that at sentencing he intentionally called the prosecutor, the "persecutor," he threatened the victim and he criticized the prosecutor, the victim and the trial judge.
The petitioner made an identical claim at the first habeas trial but the court found the petitioner's testimony "unworthy of belief." Abrahams v. Commissioner of Correction, Superior Court, judicial district of New Haven, CV02-0461618 (February 28, 2005, DeMayo, J.T.R.) at 5.
Attorney Bruce McIntyre testified at the second habeas trial that he was admitted to the bar in 1985. McIntyre further testified that from 1985 until the time of the petitioner's first habeas trial, eighty percent of his practice consisted of criminal law and that he has conducted 15-20 habeas trials. In preparation for the petitioner's habeas case, McIntyre read the entire transcript of the petitioner's criminal trial, reviewed all of the exhibits introduced into evidence, met with trial defense counsel, reviewed trial counsel's entire file, obtained approximately one hundred police photographs, met on numerous occasions with the petitioner and hired an investigator to pursue certain evidence and witnesses to support the petitioner's alibi defense. McIntyre additionally testified that his habeas trial strategy consisted primarily of a claim of ineffective assistance of counsel for (1) failure to properly investigate and present witnesses to corroborate the alibi defense and (2) failure to interrupt the petitioner's allocution at sentencing.
McIntyre recalls discussing with the petitioner the issue of the structure of the petitioner's sentence. McIntyre informed the petitioner that the court was within its rights to make the attempted murder and assault in the first degree sentences consecutive and that there was no double jeopardy problem. McIntyre, moreover, reviewed the closing arguments and concluded that although the prosecutor's argument was "exceedingly zealous," he did not believe it rose to the level of prosecutorial impropriety. McIntyre also did not believe that defense counsel's failure to request a lesser included offense was an issue. McIntyre reasoned that the petitioner's goal at the criminal trial was a complete "vindication." Thus unless the petitioner had specifically asked his attorney to request a lesser included offense charge, counsel would not have sought such a charge. McIntyre also reviewed the trial court's charge on attempted murder and found no issue appropriate for habeas relief. McIntyre was unable to recall all of his conversations with the petitioner except to say that they had numerous discussions involving a wide range of issues.
Additional facts will be discussed as necessary.
DISCUSSION
The petitioner's sole claim is that he received ineffective assistance of habeas counsel.
Our Supreme Court set the standard of review to be afforded an appeal from the dismissal of a habeas corpus petition alleging ineffective assistance of habeas counsel in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992). To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. A convicted [petitioner's] claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the [petitioner] must show that counsel's performance was deficient . . . Second, the [petitioner] must show 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. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984); Aillon v. Meachum, [ 211 Conn. 352, 357, 559 A.2d 206 (1989),] . . . Williams v. Warden, 217 Conn. 419, 422, 586 A.2d 582 (1991). Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial . . . Lozada v. Warden, supra, 842-43.
(Internal quotation marks omitted.) Denby v. Commissioner of Correction, 66 Conn.App. 809, 812-13, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002).
The first part of the test, known as the performance prong, requires proof that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, supra, 466 U.S. 687-88.
Competent representation is not to be equated with perfection. The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . .
(Citations omitted; internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 818, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).
The second prong of the test, known as the prejudice prong, requires "showing that counsel's errors were so serious as to deprive the [petitioner] of a fair trial." Strickland v. Washington, supra, 466 U.S. 687. "It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings . . . Rather, [t]he [petitioner] 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 . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt . . ." (Citation omitted.) Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 799. "It is well established that [a court] need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim . . ." (Citation omitted.) Floyd v. Commissioner of Correction, 99 Conn.App. 526, 530-31, 914 A.2d 1049, cert. denied, 282 Conn. 905, 920 A.2d 308 (2007).
Given the foregoing standards, this court has the duty of adjudicating the petitioner's claims by applying the law to the facts. The factual findings in this case encompass the petitioner's own testimony as to what he believes McIntyre should have done, McIntyre's testimony about his representation in the petitioner's first habeas matter, as well as documentary evidence almost exclusively consisting of transcripts and Judge DeMayo's memorandum of decision from the first habeas. From this the court must determine whether McIntyre, Romanello and Steele rendered ineffective assistance of counsel. Ultimately, this court must answer the question whether this court's confidence in the outcome of the criminal trial is somehow undermined.
"In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation but by demonstrable realities." (Internal quotation marks omitted.) Hopkins v. Commissioner of Correction, 95 Conn.App. 670, 677, 899 A.2d 632, cert. denied, 279 Conn. 911, 902 A.2d 1071 (2006). It should be self-evident that this task is all but impossible given the lack of credible substantive evidence proffered by the petitioner. The petitioner makes numerous claims regarding trial defense counsel's alleged deficient performance at various stages of the criminal trial, yet he has neglected to introduce the transcripts of the testimony, the closing arguments or the court's final instruction at that trial. The petitioner also makes claims of deficient performance against trial appellate counsel, yet he has neglected to introduce the appellate brief. As a result, the petitioner's testimony constitutes the sole evidence that the performance of trial defense counsel and trial appellate counsel fell below an objective standard of reasonableness. This testimony, standing alone, is in no way sufficient to overcome the strong presumption that counsels' conduct was within the wide range of professional assistance. Nor does it in any way undermine this court's confidence in the outcome of either the criminal trial or the criminal appeal. Accordingly the petitioner's claim that McIntyre rendered deficient performance in the first habeas by failure to raise certain issues against Romanello and Steele must fail.
The petitioner next claims that McIntyre's performance was deficient by his failure to file a motion for articulation when the first habeas court failed to address the issue of the prosecutor's improper vouching during closing argument. In support of this claim, the petitioner introduced the amended petition, the transcripts and the memorandum of decision from the first habeas trial. None of this documentary evidence, however, supports the petitioner's claim that the issue of improper vouching was presented to the first habeas court. In paragraphs 8k and 8l of the amended petition, the petitioner averred that "improper remarks were made by the state's attorney during summation." This generic and conclusory claim, without more, is insufficient to have alerted the first habeas court to the specific claim of improper vouching. Additionally a review of the transcript of the first habeas trial shows that no closing argument was made to the court. Moreover, McIntyre's post-trial brief was never introduced at the second habeas trial. As with the prior claim, the petitioner's testimony, which the court finds not credible, constitutes the sole evidence before this court that the issue of improper vouching was ever raised in the first habeas trial. The petitioner has failed to prove that McIntyre's performance fell below an objective standard of reasonableness. Even if McIntyre's failure to file a motion for articulation could be considered deficient performance, the petitioner has also failed to prove the prejudice prong.
This conclusion is buttressed by the fact that on appeal, the petitioner argued that the prosecutor committed four acts of impropriety during closing argument: "by improperly referring to an absent witness, beyond the scope of what could be stated about in closing argument to the jury about that witness, by making unnecessary reference to the defendant's post-arrest incarceration, by giving unsworn testimony about matters not in the record and by asking the defendant to comment on the veracity of a witness." State v. Abrahams, supra, 79 Conn.App. 770.
At the second habeas trial, McIntyre testified only that he had reviewed the transcripts of the criminal trial and did not believe the prosecutor's closing argument amounted to prosecutorial impropriety.
The totality of the evidence in the present case amounts to nothing more than speculation in the form of opinion without demonstrable reality. As Judge DeMayo aptly summarized the first habeas corpus matter, the petitioner's claims are "based on speculation and in some instances sheer fantasy." This ignominious conclusion applies to the present matter as much as it did to the prior habeas corpus petition.
CONCLUSION
Based upon all of the foregoing, the petition for a writ of habeas corpus is denied. The petitioner's counsel shall prepare and file a judgment file within thirty days.