Opinion
No. CV 06 4001359
May 5, 2010
MEMORANDUM OF DECISION
The petitioner, Fred Anderson, filed a petition for a writ of habeas corpus on October 5, 2006, challenging the legality of his detention. On July 24, 2000, after a trial by jury, he was found guilty in the judicial district of New London, under Docket No. CR99-248277, of assault in the first degree with intent to disfigure another person seriously and permanently in violation of General Statutes § 53a-59(a)(2), interfering with a police officer in violation of General Statutes § 53a-167a and unlawful restraint in the first degree in violation of General Statutes § 53a-95. The jury acquitted the petitioner on charges of kidnapping in the first degree in violation of General Statutes § 53a-92a and attempt to commit assault on a police officer in violation of General Statutes §§ 53a-49(a)(2) and 53a-167c(a)(1). On September 15, 2000, the court, Schimelman, J., sentenced the petitioner to a term of imprisonment of ten years on the conviction of assault in the first degree, five years on the conviction of unlawful restraint and one year on the conviction of interfering with a police officer. These sentences were made consecutive to each other, resulting in a total effective sentence of sixteen years of imprisonment. Attorney Edward Moukwasher represented the petitioner at trial.
The petitioner appealed his convictions, which were upheld by the Appellate Court. See State v. Anderson, 74 Conn.App. 633, 813 A.2d 1039, cert denied, 263 Conn. 901, 819 A.2d 837 (2003). Attorney Kent Drager represented the petitioner on appeal.
On appeal, the petitioner claimed (1) that there was insufficient evidence that the complainant was seriously disfigured and that he had the criminal intent to cause such injury, (2) that the trial court erred by admitting a prior inconsistent statement of the complainant pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L. Ed.2d 598 (1986), and (3) that the trial court erred by admitting the complainant's hospital records absent consent from the complainant. State v. Anderson, supra, 74 Conn.App. 633.
The petitioner previously filed a petition for a writ of habeas corpus. See Anderson v. Warden, Superior Court, judicial district of New Haven, Docket No. CV 01 0447387 (March 17, 2005, DeMayo, J.T.R.). Following a trial on the merits, the court, DeMayo, J.T.R., denied the petition. Id. The petitioner unsuccessfully appealed the denial. See Anderson v. Commissioner of Correction, 95 Conn.App. 901, 895 A.2d 872, cert. denied, 278 Conn. 921, 901 A.2d 43 (2006) (per curiam). Attorney Owen Chace represented the petitioner in this earlier habeas corpus matter.
In his petition, the petitioner alleged prosecutorial misconduct and ineffective assistance of both trial and appellate counsel. With respect to appellate counsel, the petitioner alleged that he should have raised the prosecutorial misconduct claims on appeal. Anderson v. Warden, supra, Superior Court, Docket No. CV 01 0447387.
In October 2006, the petitioner initiated the present habeas corpus matter. The matter was tried to the court on February 10, 2010. The only testimony presented was that of the petitioner. In addition, transcripts from the underlying criminal trial and the previous habeas trial were admitted into evidence. The following were also admitted into evidence: statistical information regarding juries, portions of the record from the petitioner's direct appeal of his convictions, the Appellate Court's decision in State v. Anderson, supra, 74 Conn.App. 633, portions of the record from the petitioner's appeal of the denial of his prior habeas corpus petition and the Appellate Court's decision in Anderson v. Commissioner of Correction, supra, 95 Conn.App. 901.
FINDINGS OF FACTS
On direct appeal, the Appellate Court described the circumstances giving rise to the original charges against the petitioner as follows. "The charges against the defendant arose out of a physical altercation between the defendant and the victim, who had a romantic relationship. The altercation occurred during the early morning hours of January 9, 1999. The defendant, an admitted alcoholic, had been drinking and became physically abusive toward the victim. Officer James Kiako of the Groton police department responded to a 911 telephone call from the defendant's apartment. When he arrived, Kiako could see through a window a disheveled woman with blood around her mouth and nose. Kiako and another officer gained entry into the apartment after the defendant unlocked the interior deadbolt lock. After talking to the victim and the defendant separately, the officers arrested the defendant. The victim was hospitalized for several days for treatment of her injuries." State v. Anderson, supra, 74 Conn.App. 635.
In State v. Anderson, Superior Court, judicial district of New London, Docket No. CR99-248277 (September 27, 2005, Holden, Miano, Iannotti, Js.), the sentence review panel summarized the facts underlying the petitioner's convictions as follows. "The victim gave a statement saying that on the evening of January 8, 1999, she went over to visit the petitioner. The petitioner drank a six-pack of beer. They went to several bars where [the petitioner] was drinking heavily. At one bar, the bartender shut off the petitioner. The petitioner was angry, began yelling at the bartender, poured his beer on the floor and left. They returned to his apartment. While in the apartment, the victim was upset and tired of his drinking. She told him she wanted to end the relationship. The petitioner did not want her to leave so he locked the door from the inside and put the key in his mouth. The victim attempted to open the door. [The petitioner] head butted her in the face breaking her nose. She was bleeding profusely, crying hysterically. [The petitioner] told her to stay at the apartment. The victim continued to tell him she wanted to leave. The petitioner was enraged and was throwing the victim to the floor. He was banging her head against the floor. She was yelling for him to stop, which he did not. He bit the victim on her left cheek and on the top of her lower lip. He left lacerations to her skin. The petitioner eventually let the victim off the floor. She entered the bathroom and the petitioner followed. He ripped the mirror off the medicine cabinet, grabbed a hair dryer and smashed the dryer over the victim's head, causing a laceration to her scalp. She fled the bathroom and he caught her in the kitchen area. The offender threw her to the floor punched and then kicked her in the chest. He got on top of her and began choking her with both hands. The victim could not breathe and started pulling his hair. The petitioner started crying because she was pulling his hair.
"The petitioner told the victim that he was sorry for what he had done and wanted to kill himself. He took a key and began to scratch his face and arms, saying that he would tell the police she scratched him. The victim managed to go to the bathroom where she dialed 911. She did not speak on the phone for fear that he would hear her. The phone rang but no one answered it. After the phone rang several times and went unanswered the police arrived, gained entry and rendered aid." Id., citing State v. Anderson, supra, 74 Conn.App. 633. Other facts will be referenced where necessary.
DISCUSSION
It is important at the outset to understand a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that [a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Herrera v. Collins, [ 506 U.S. 390] 113, S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial . . . [T]hus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law . . ." (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 422-23, 641 A.2d 1356 (1994).
Count One
In count one of his amended petition dated September 28, 2009, the petitioner makes a number of claims regarding the allegedly ineffective assistance of his trial, appellate and habeas counsel.
"A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the [s]ixth [a]mendment . . . 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 . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; emphasis in original; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
To prove deficient performance, the petitioner must show that defense counsel's representation "fell below an objective standard of reasonableness . . ." Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005). To prove prejudice, the petitioner must establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006). "[W]hen a petitioner is claiming ineffective assistance of appellate counsel, he must establish that there is a reasonable probability that but for appellate counsel's error, the petitioner would have prevailed in his direct appeal." (Internal quotation marks omitted.) Turner v. Commissioner of Correction, 118 Conn.App. 565, CT Page 9945 568, 984 A.2d 793 (2009).
"[When] 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 . . . [T]he petitioner will have to prove that . . . the 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 . . . Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice: he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective." (Citations omitted; emphasis in original; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 394, 966 A.2d 780 (2009).
In paragraph 15 of count one of his amended petition, the petitioner claims that his trial attorney was ineffective for failing to adequately advise him of his right to remain silent, his right not to testify and of the "hazards of testifying in his own defense" and for failing to adequately prepare him to testify at trial. Additionally, he asserts that his habeas counsel was ineffective for failing to pursue these specific claims.
On these claims, as well as the others, the petitioner presented as a less than credible witness. Aside from his own bias and interest, the petitioner presents as an individual discontented with many, if not all, of the tactical decisions made by his attorneys. In doing so, he continues in his denial of responsibility and his utter lack of insight as to the wrongfulness of his conduct. He seeks to blame his trial attorney, appellate attorney, habeas attorney, alcohol, a predominantly suburban white jury, his own attention deficit disorder (ADD) or attention deficit hyperactivity disorder (ADHD); in short, he offers enumerable reasons other than his own conduct for his predicament.
The court has read the entirety of the transcripts and other documents in evidence, and there is nothing therein to persuade this court to conclude that the petitioner's trial attorney performed deficiently or that had the petitioner's trial attorney prepared the petitioner differently or with greater depth, there is a reasonable probability that the result of the proceedings would have been different. This court finds that the petitioner, along with his trial attorney, elected a trial strategy which involved putting the petitioner on the stand to tell his version of the events in question. "[I]t is well established that a habeas court cannot in hindsight second-guess an attorney's trial strategy." Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 804, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004). Moreover, "there is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment." Id., 801. The petitioner, himself, testified at the habeas trial, that it was "his choice" whether to testify. He also testified that his attorney told him to "tell the truth." Both statements illustrate a tactical approach to preparing the petitioner. The complainant, the complainant's contradictory prior inculpatory statement and the petitioner were before the jury. It was the jury's province to decide whom and what to believe. Inasmuch as the allegations of criminal conduct can be described as bizarre, it was not unsound trial strategy for the attorney and the petitioner to decide that the petitioner should testify in his own defense. Likewise, it was not unsound trial strategy to ask the petitioner to explain the physical injuries sustained by the complainant on direct examination. This testimony would be bolstered, in theory, by the in-court testimony of the complainant who attempted to minimize both the conduct of the petitioner and the extent of her injuries in contradiction to her earlier statement to the police. The fact that the jury did not credit the petitioner's testimony is of no moment with respect to the issues here. There is also insufficient evidence to conclude that the petitioner did not understand the nature of his right to remain silent or the hazards of testifying. The court credits the petitioner for obtaining an associate's degree in liberal arts at North Shore Community College in Massachusetts. Thus, the attorney was not hampered with a client intellectually limited or unable to vigorously assist in the presentation of his defense. The claims in paragraph 15 of the amended petition fail.
At trial, the complainant was described as a "reluctant witness." State v. Anderson, supra, 74 Conn.App. 642. In reviewing the sufficiency of the evidence, the Appellate Court noted there were eight photos of serious injury submitted to the jury, photos of the apartment shortly after the attack, testimony from a doctor regarding the nature of the injuries and a detailed written statement given to the police by the complainant regarding what occurred in the early morning hours of January 9, 1999.
The statement provides in part:
The drinking problem was getting very bad, and [the defendant] got drunk almost every time we were together. I had told [the defendant] that I was tired of his drinking and I wanted him to stop. I told him if he didn't stop, I was going to leave him. On the evening of January 8, 1999, [the defendant] and I were together . . . I drove him back to his apartment at [approximately] 2:30 a.m. I went inside the apartment to get my belongings. I told him inside the car, prior to entering the apartment, I was tired of his drinking and I had enough. I told him I didn't care any more, and I wanted to get my things from the apartment and I wanted to go home. Once we got inside the apartment, I gathered my things and I went to leave. [The defendant] locked the only exit from the inside, and he put the key in his mouth. I told him I wanted to leave, but he would not open the door. I continued to tell [the defendant] I had enough and I wanted out of the relationship. I think now he had a difficult time with my rejection. "[The defendant] was standing in the kitchen against the washing machine. I walked over near him to go toward the door. When I was about two feet away, he grabbed me and butted me in the head and face with his forehead. He said nothing when he did this. I immediately felt extreme pain, started bleeding and could feel that my nose was pushed to the side of my face. I started crying and yelling at him to look [at] what he had done. I knew my nose was broken, and I just wanted to get out of the apartment to get help. [The defendant] started taunting me, telling me I was fine and there was nothing wrong with me. He was saying Connecticut people are so weak. He told me to stay at the apartment and in the morning he would let me go. He said in the morning everything would be fine, and I should stop crying and making such a fuss over nothing. I continued asking [the defendant] to let me go. He refused. He became more angry and grabbed me again. He threw me to the floor and started banging my head against the floor. I was yelling and crying for him to stop. [The defendant] began to bite me on the face. He tried to bite me on the left side of the face near my ear, but he couldn't get any skin. He then bit me on the cheek and the bottom lip. He bit me so hard I started bleeding from these cuts as well. I started telling him everything was OK and I still cared for him. This is when he let me up. I went to the bathroom and looked in the mirror at my face. I couldn't believe what he had done to my face. I was bleeding all over. While I was looking in the mirror crying, he came into the bathroom and grabbed the mirror. He pulled the mirror off the front of the medicine cabinet, and the glass shattered out of the frame. I was standing in the bathroom among the glass when [the defendant] grabbed a hair dryer which was hanging on a hook. He grabbed the dryer and smashed the dryer on the left side of my head. I grabbed my head and ran from the bathroom. I ran into the kitchen and sat down at the table, holding my head and face. I ran from the bathroom not only to get away from him, but because I thought he was going to use the cord from the hair dryer to strangle me. [The defendant] followed me into the kitchen. He grabbed me from the chair and threw me to the floor again. He punched me in the left side of my chest while I was on the floor. I felt so much pain I couldn't do anything but lay on the floor. While on the floor, he also kicked me in the chest. I was feeling so much pain, I didn't want to live any more. [The defendant] got on top of me and grabbed my throat with both his hands. He started choking me with his hands. I couldn't breathe, and I started to black out. I grabbed his hair with both my hands and began pulling his hair. He stopped choking me and started complaining because I grabbed his hair. I was still laying on the ground when he took his fingers and grabbed the sides of my eyes. [He] started pulling the skin of my eyes and was saying, "you look Chinese." State v. Anderson, supra, 639-41.
In paragraph 16 of the amended petition, the petitioner claims that his trial counsel rendered ineffective assistance because he "failed to take advantage of the state's so-called `open door policy' and failed to unearth exculpatory information contained therein" that would have led to the discovery of "a potential eyewitness whose testimony would have been beneficial to the defense." He also claims that his habeas counsel was ineffective for failing to plead and prove these claims.
A copious review of the record does not establish that had counsel availed himself of an "open door policy" with respect to discovery, any evidence likely to alter the outcome would have been further produced at trial. The claim amounts to nothing more than a hollow claim without any credible evidence to support an inference of deficient conduct or prejudice with respect to the mode and manner of discovery used by petitioner's counsel. In short, the claims in paragraph 16 are unproven and thus, fail.
The petitioner asserts, in paragraph 16a of the amended petition, that the complainant "testified that the prosecuting attorney had told her that he had a `personal vendetta against people like [the petitioner] who hurt women.'" The petitioner claims that his trial, appellate and habeas counsel were all ineffective for failing to raise a claim of "vindictive prosecution."
Although the complainant did testify as represented by the petitioner; (Petitioner's Exhibit 10, p. 94); nothing in the transcripts in evidence or testimony at this habeas trial suggests that the prosecuting attorney was motivated by some sinister or improper purpose such that the state's conduct tainted in any way the underlying trial. This court chooses not to credit the testimony of the complainant that the prosecutor uttered such a statement. The court is mindful that the complainant's in-court testimony and veracity were much in question before the jury. That the complainant's prior inconsistent statement was admitted for substantive purposes pursuant to State v. Whalen, 200 Coun. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 598 (1986) persuades this court to seriously question this allegation of impropriety. Even assuming arguendo that the petitioner could establish that such a statement was uttered by the prosecutor, there is no evidence upon which this court can conclude that such a statement so polluted the waters of the underlying trial that the decision of guilt was undermined and that a deprivation of fairness of constitutional dimension exists. Simply put, there is no evidence to conclude that the prosecutor's conduct in any way tangibly harmed the petitioner either before the jury or during the deliberation process. Accordingly, the petitioner has not met his burden in establishing either deficient performance or prejudice; the allegations in paragraph 16a fail.
In paragraph 17, the petitioner claims that his trial attorney should have made a challenge to the entire jury array pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, he asserts that "[t]rial counsel did not object to the prosecution's discriminatory use of its peremptory challenges." He also claims that his habeas attorney rendered ineffective assistance by failing to present this claim regarding his trial attorney.
At the habeas trial, the petitioner testified that his trial attorney never challenged the racial composition of the jury, that most of the jurors in the jury pool were individuals whom he described as "white female jurors from the suburbs." He testified that his trial attorney did not challenge the state's use of peremptory challenges. No persons of a "minority background," he claims, were seated on his jury. The petitioner, it is undisputed, is Caucasian. Also in evidence is a five-page document which purports to represent populations in towns throughout Connecticut with purported numbers of various ethnic groups that presumably are represented in the towns. (Petitioner's Exhibit 16.) The exhibit references years 1990 to 2000. There was no testimony to explain the substance of the document and how its contents bear upon any issue here. Also in evidence is a seventeen-page document which purports to list numbers (of people) "summoned" and "remaining" (to court) with diverse dates from August 31, 1995 through June 12, 2009. (Petitioner's Exhibit 17.) The document also references various towns throughout Connecticut. Again, there was no testimony or even argument as to the significance, if any, of this exhibit with respect to the claim of deficient performance arising from trial counsel's failure to make a Batson claim.
As noted supra, "[c]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotations omitted.) Ziel v. Commissioner of Correction, supra, 89 Conn.App. 376. The petitioner has not shown that the prosecutor's reasons for exercising any peremptory challenges were pretextual. There is simply no proof, no testimony, no evidence, and no record, other than surmise, that any juror challenges were motivated by race or gender. See State v. Mukhtaar, 253 Conn. 280, 284, 750 A.2d 1059 (2000) ("[t]he [party asserting the Batson claim] carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination" [internal quotation marks omitted]). Nor has the petitioner shown any prejudice by the seating of any particular juror. See, e.g., Young v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 05 4000457 (May 15, 2008, Schuman, J.) (claim of ineffective assistance of counsel premised on failure to renew Batson claim failed in part because petitioner did not demonstrate any prejudice from the seating of the juror allegedly picked for discriminatory purposes). There is no merit to the claim that trial counsel was deficient for failing to make a Batson claim. Further, there was no prejudice, which is proof of a "reasonable probability that, but for counsel's [error], the result of the proceeding would have been different." Small v. Commissioner of Correction, supra, 286 Conn. 713. Accordingly, the petitioner has failed to prove ineffective assistance of his trial and habeas counsel in this regard.
There is no transcript of any of the voire dire before this court and no evidence of the racial and gender make up of the actual jury in this case. The petitioner has failed to present an adequate record for determining this issue in his favor.
In paragraph 18, the petitioner claims that trial counsel was deficient for not asking potential jurors questions regarding "feelings on alcohol, alcohol abuse and intoxication." Additionally, the petitioner complains that habeas counsel was deficient for failing to present this issue.
There is no showing that any failure on trial counsel's part to specifically inquire about alcohol, alcohol abuse and intoxication was in any way deficient or prejudicial. There is no record of voire dire. The claim is the essence of speculation. The petitioner avers that the subject should have been explored by his trial attorney inasmuch as the petitioner asserted a defense of intoxication with respect to the element of intent required for kidnapping in the first degree and assault in the first degree. "Competent representation is not to be equated with perfection . . . 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 . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Citation omitted; internal quotation marks omitted.) Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 798-99. Other than the petitioner's self serving testimony, there is no credible evidence upon which this court can conclude that the failure of counsel to inquire on these subjects during voire was deficient or in any way caused the petitioner prejudice. Consequently, the claims in paragraph 18 fail.
In paragraph 19 of his amended petition, the petitioner alleges that "[t]rial counsel, appellate counsel and habeas counsel did not adequately investigate the law as it related to the petitioner's case."
The petitioner has failed to present any evidence related to this claim. Most notably, he has not identified any legal claim or theory that his attorneys should have discovered in their investigation of the law as it related to his case. Nor has he demonstrated that there is a reasonable probability that had his trial counsel, appellate counsel or habeas counsel investigated the law differently there would have been a different, let alone, more favorable outcome for the petitioner. "The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001). In brief, the petitioner has not met his burden in proving either deficient performance or prejudice, and thus, his claim in paragraph 19 fails.
Lastly, in paragraph 20, the petitioner alleges that trial counsel did not adequately present the petitioner's defense. The record is bereft of any credible evidence that had the petitioner's defense been presented differently, the petitioner would have had a different result. Paragraph 20 consists of a conclusory allegation and nothing more. There is insufficient evidence to conclude either deficient performance or prejudice; accordingly, the claim fails.
Count Two
In count two of his amended petition, the petitioner claims a deprivation of his constitutional rights on the following grounds: "The trial court inappropriately assigned an inappropriate percentage of female venire persons, almost all of whom resided in towns away from the inner city. Furthermore, the venire panel had a disproportionately low percentage of minorities. The Petitioner was not tried before a jury of his peers."
As noted supra, there is nothing in the testimony, the record, or the exhibits which demonstrates that the gender or racial makeup of the jury or the system by which the jurors were selected or seated in some way deprived the petitioner of his right to a fair trial or due process of law. This claim is without merit.
As discussed supra, no testimony was presented to explain the substance and import of Petitioner's Exhibits 16 and 17 which arguably relate to the petitioner's claims regarding the composition of the jury.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is denied. Judgment may enter in favor of the respondent. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.