Bellino v. Warden

Full title: CHARLES BELLINO v. WARDEN

Court: Connecticut Superior Court Judicial District of Tolland at Rockville

Date published: Nov 7, 2007

2007 Ct. Sup. 18910 (Conn. Super. Ct. 2007)

Opinion

No. CV 05-4000396

November 7, 2007

Memorandum of Decision

CARL J. SCHUMAN, JUDGE.

In his third and latest petition for a writ of habeas corpus, the petitioner now claims that his second habeas trial attorney rendered ineffective assistance in advancing the claim that his first habeas trial attorney rendered ineffective assistance in advancing the claim that his criminal trial attorney rendered ineffective assistance. Lest this hall of mirrors style of litigation continue indefinitely, it is time to label this petition what it really is: an abuse of the writ.

I

The court finds the following facts based on the testimony and exhibits at the trial of this habeas petition. The petitioner was represented at his 1991 criminal trial by attorney William Tiernan. A jury convicted the petitioner of manslaughter in the first degree as a lesser included offense of murder, as well as attempted assault in the first degree and carrying a pistol without a permit. The charges arose from a shooting incident that occurred in 1989. The petitioner received a sentence of thirty-five years in prison.

On appeal with the petitioner now represented by attorney Lauren Weisfeld, the Appellate Court affirmed and the Supreme Court dismissed certification. State v. Bellino, 31 Conn.App. 385, 625 A.2d 1381 (1993), appeal dismissed, 228 Conn. 851, 635 A.2d 812 (1994). The Appellate Court decision focused on the wording of the jury instructions on self-defense, while noting that the petitioner had testified at trial that he did not shoot anyone or use any force during the encounter in question. Id., 388, 393.

The petitioner's first habeas trial took place in 1995. The petitioner's new attorney was Thomas Conroy. The court, W. Sullivan, J., concluded that the petitioner did not prove his claim that Tiernan had counseled him to lie and deny the shooting, thereby jeopardizing a defense of self-defense and rendering ineffective assistance of counsel. Judge Sullivan noted that Tiernan had testified at the habeas trial that the petitioner in fact wanted to testify at his criminal trial that he did not do the shooting. Judge Sullivan found Tiernan to be a credible and truthful witness and concluded that there was no ineffective assistance. The Supreme Court denied certification of the habeas court's decision.

The petitioner's second habeas trial took place in 2001. The petitioner's new attorney was Raymond Rigat. The court, Jones, J., concluded that the petitioner's claim that Tiernan provided ineffective assistance by encouraging him to testify falsely was barred because it had been previously litigated. Judge Jones then addressed the petitioner's additional claim that Tiernan had failed to prepare an adequate defense.¹ The court concluded that Tiernan had reviewed the state's file, met with the petitioner on several occasions, interposed a defense of self-defense and, in doing so, provided competent representation. Judge Jones also concluded that attorneys Conroy and Weisfeld rendered effective assistance.

1 The third amended habeas petition filed by Rigat alleged only that Tiernan had "failed to properly investigate the case and present an adequate theory of defense . . ." Exhibit I, page 2. Rigat testified in the latest trial that his practice is to file a vague, open-ended petition. He achieved that goal.

Now represented by Attorney Sarah F. Summons, the petitioner appealed from the denial of the habeas court's certification. The Appellate Court dismissed the appeal and the Supreme Court denied certification. Bellino v. Commissioner of Correction, 75 Conn.App. 743, 817 A.2d 704, cert. denied, 264 Conn. 915, 826 A.2d 1159 (2003). The Appellate Court noted "the steady accretion of ineffective assistance of counsel claims as each of the petitioner's legal stratagems has failed . . ." Id., 746 n. 5.

II

That steady accretion has continued. Represented by new counsel, the petitioner now claims that Rigat was ineffective. Specifically, the petitioner argues that Rigat failed to challenge Conroy's failure to challenge Tiernan's use of an alternative theory of self-defense in his closing argument. The petitioner cites the following excerpt of Tiernan's closing argument: "I guess I've been around long enough to know that there are two sides to every story . . . If you believe the other side, if you believe that Mr. Bellino fired the pistol in this case, one of, with all the facts you have to consider, is did he act in self-defense . . . Assuming you believe that he had a pistol that night, the issue is not whether he had a right to carry the pistol when you talk about self-defense . . . You can't just say it can't be self-defense because he was carrying it." Exhibit D, pp. 585-86. The petitioner now suggests that Tiernan made this argument without consulting him and thus, essentially, without his consent.

This argument flies in the face of much of what has happened over the last sixteen years. The petitioner has consistently attempted to advance his theory of self-defense and complained that he was unable fully to do so. At trial, the petitioner requested an instruction on self-defense, a decision that he has never renounced. State v. Bellino, supra, 31 Conn.App. 389-90 n. 4. On appeal of the conviction, the petitioner claimed that the self-defense instructions were incomplete and incorrectly worded. Id., 389.²

2 Given the petitioner's decision to testify at trial that he did not do the shooting, the Appellate Court labeled his appeal ground an "alternative claim of self-defense" and nonetheless provided it full review. Id., 389-90, 393.

The petitioner next alleged, in his first habeas petition, that Tiernan had counseled him to deny the shooting, thus jeopardizing his defense of self-defense. The petitioner raised this same claim in his second habeas petition. Finally, the petitioner alleged in his second claim that Tiernan had inadequately prepared his defense.

For the petitioner now to complain that he did not consent to the use of self-defense as an alternative defense at his trial is essentially to perpetrate a fraud on the judiciary. The petitioner has utilized the court system for sixteen years trying to convince judges that he was denied the opportunity to present this defense. Apparently dissatisfied with the results, the petitioner has switched theories and now suggests that he would not have given permission to Tiernan to make an alternative self-defense argument. Under these circumstances, it follows that either the petitioner has abused the habeas writ in his latest incantation, or that he has abused it, and the appellate process, for the previous sixteen years.³

3 The court does not resolve this case on the basis that Practice Book § 23-29(3) bars successive petitions because it is possible to view the claim that Rigat was ineffective as a different ground from those raised previously. See Lozada v. Warden, 223 Conn. 834, 844-45, 613 A.2d 812 (1992).

III

To succeed in proving ineffective assistance of habeas counsel in a case of this nature, a petitioner must prove both that his habeas counsel was ineffective and that his trial counsel was ineffective. See Lozada v. Warden, 223 Conn. 834, 842, 613 A.2d 812 (1992). Our Supreme Court has agreed with the description of this burden as a "herculean task." Id., 843. This burden surely becomes extra herculean when, as here, a petitioner alleges that both of his previous habeas counsel were ineffective.

For each of these attorneys, the petitioner must prove both deficient performance and actual prejudice. See Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). The court sees no basis to conclude that both of the petitioner's two prior habeas counsel were ineffective by failing to challenge Tiernan's closing argument on self-defense. If habeas counsel can safely by analogized to criminal appellate counsel, then there is no duty imposed on habeas counsel to raise every non-frivolous issue. Habeas counsel must instead exercise judgment as to which claims to raise. See Valeriano v. Bronson, 209 Conn. 75, 88-90, 546 A.2d 1380 (1988) (citing Jones v. Barnes, 463 U.S. 745, 750-53 (1983)); Ostalaza v. Warden, 26 Conn.App. 758, 774-74, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). Given the petitioner's long history of complaints that he was denied a defense of self-defense, it would have been somewhat improvident, to say the least, for habeas counsel to have claimed that Tiernan lacked his client's permission to argue self-defense to the jury.

Nor did Tiernan render ineffective assistance in this regard. It should be sufficient to observe that Judge Sullivan credited Tiernan's testimony that he had discussed a self-defense strategy with the petitioner. In any event, putting aside fundamental decisions such as whether to plead guilty, waive a jury, testify at trial, or file an appeal, a criminal trial attorney does not have to obtain his client's consent for every tactical decision made at trial. See Taylor v. Illinois, 484 U.S. 400, 417-18 (1988); Johnson v. Commissioner of Correction, 222 Conn. 87, 94-96, 608 A.2d 667 (1992). Further, a criminal defendant though his counsel has full authority to present alternative or even inconsistent defenses at trial. See State v. Brocuglio, 56 Conn.App. 514, 517 n. 4, 744 A.2d 448, cert. denied, 252 Conn. 950, 748 A.2d 874 (2000). Here Tiernan's carefully-worded reference to self-defense, coupled with his request to charge on that defense, gave the jury an alternative basis either to acquit the petitioner or at least to give him the benefit of a mitigating factor.

Florida v. Nixon, 543 U.S. 173 (2004), relied on by the petitioner, is not to the contrary. That case did not hold that a criminal defendant has a constitutional right to advance notice of every aspect of counsel's closing argument. Rather, it held that, as long as counsel informs the client in a capital case that he intends to concede guilt in hopes of leniency in the sentencing phase, the client need not give explicit consent to proceed with such a strategy. Id., 192. The case at bar is very different. In the present case, counsel, instead of admitting guilt, added another defense to the case, thus enhancing the petitioner's chances of acquittal or leniency. There would seem to be little purpose in creating an inflexible rule, which would then be subject to scrutiny by the courts, requiring counsel to inform the client of something of such obvious benefit to him.

In any event, there was no palpable prejudice to the petitioner. The issue of self-defense was fully presented to the jury by way of the petitioner's request to charge, something he has never challenged, as well as the court's subsequent self-defense instruction. Thus Tiernan's reference to self-defense in his closing only served to reinforce the defense that the petitioner requested. The petitioner, in fact, appealed his conviction on the ground that the court's instructions on self-defense did not go far enough in advancing this defense. It is obvious from the trial, the appeal, and the petitioner's stance in the next two habeas petitions, that the petitioner felt that he would benefit from advancing the theory of self-defense. The jury may well have agreed, as it exercised some leniency in convicting him of the lesser included offense of manslaughter instead of the greater offense of murder. For the petitioner now to complain about Tiernan's reference to self-defense at closing, when the petitioner obviously wanted this defense, is simply the height of ingratitude.

IV

The petitioner has failed to prove his claims of ineffective assistance of counsel. The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.

It is so ordered.