Opinion
No. CV05-4000290 S
February 28, 2006
MEMORANDUM OF DECISION
On December 2, 2004, the petitioner filed by and through counsel a petition for a writ of habeas corpus, which was not amended. The petition raises the following claims, as identified by count: Count One Judicial Conflict of Interest; Count Two Insufficiency of Urinalysis Procedures; and Count Three Ineffective Assistance of Counsel. The petitioner alleges that his convictions were obtained in violation of various constitutional and statutory safeguards, which will be specifically addressed later in this memorandum. The respondent's return denies the claims and raises procedural default as an affirmative defense only as to Count One. The petitioner's reply to the return rebuts the defense of procedural default by claiming that the failure to raise the claim of judicial conflict of interest was reasonable because trial counsel did not have the benefit of appellate cases issued shortly after the completion of the underlying proceedings.
As relief the petitioner is seeking that the conviction and sentence be vacated and the matter returned to the criminal docket for further proceedings. In the alternative, the petitioner seeks such other relief as deemed equitable and just.
The matter came before this court for trial on July 26, 2005 and August 11, 2005. The Court heard testimony from Attorney Robert Photos, the petitioner's former defense counsel; Dean Reid, a Case Manager for Bridgeport Alternative Incarceration Center (A.I.C.); Jeff Penkacik, Supervisor of the Department of Toxicology, Graham-Massey Toxicology Laboratory; and Veleda Allen, a former girlfriend of the petitioner. Documentary evidence encompassed the underlying transcripts, what remains of Attorney Photos's file, and a urinalysis requisition form.
The Court has reviewed all of the testimony and evidence and, based on the foregoing and the factual allegations admitted to by the respondent's return, makes the following findings of fact.
FINDINGS OF FACT
1. The petitioner was the defendant in State v. Black, CR 03-0186961, CR 03-0190689, MV 03-0586828, CR 97-0134165, CR 97-0134166 and CR 97-0134167 in the Judicial District of Fairfield at Bridgeport.
2. The petitioner was charged in CR 03-0186961 with possession of narcotics, in MV 03-0586828 with operating an unregistered motor vehicle, stolen expiration sticker, and operating without a seat belt, in CR 03-0190689 with interfering with a police officer and breach of peace, and in CR 97-0134165, CR 97-0134166 and CR 97-0134167, the petitioner was charged with violation of probation.
3. On April 30, 2003, the State of Connecticut made an offer to the petitioner for four and one-half years incarceration.
4. The court (Damiani, J.) gave the petitioner an alternative to the State of Connecticut's offer.
5. The court would give the petitioner a promise to appear, conditioned on appearing at the Alternative Incarceration Center (A.I.C.), and require him to enter into a drug evaluation and treatment program for a four-month period.
6. The court would monitor the petitioner for the four-month period in which the court would require the petitioner to follow all of the A.I.C.'s rules, not be arrested, and not test positive for illegal narcotics.
7. If the petitioner was successful after four months, the court would continue the petitioner on probation, but if he was unsuccessful, the court would give him nine years to serve with no right to argue for less.
8. On April 30, 2003, the petitioner entered a plea of guilty to one count of Possession of Narcotics, in violation of C.G.S. § 21a-279a, and admitted three separate violations of probation in CR 97-0134165, CR 97-0134166 and CR 97-0134167.
9. Following a canvass the court (Damiani, J.) accepted the plea and admissions and entered a finding of guilty, and continued the petitioner on the court-designated promise to appear with the agreed-upon conditions. If the petitioner successfully satisfied the conditions of the agreement, the court would sentence the petitioner by continuing him on probation with the condition that he complete the program.
10. At no time during any of the underlying proceedings did the petitioner seek to withdraw his guilty plea or admissions.
11. The petitioner reported to A.I.C. in Waterbury without incident.
12. On June 26, 2003, the promise to appear conditions were modified in that the petitioner was to have a drug evaluation as deemed necessary by A.I.C. in Bridgeport, participate in case management, attend AA (Alcoholics Anonymous) and NA (Narcotics Anonymous) meetings, and also stay drug-free.
13. On June 26, 2003, the petitioner reported to A.I.C. counselor Dean Reid in Bridgeport at the times prescribed by Mr. Reid without incident until July 17, 2003.
14. On July 30, 2003, the court (Damiani, J.) received a report that the petitioner tested positive for cocaine in his system.
15. On July 30, 2003, the court reported that the second urine test administered on July 23, 2003, came back negative.
16. On July 30, 2003, defense counsel, Attorney Robert Photos, indicated that the petitioner had not taken or handled narcotics.
17. On July 30, 2003, the court (Damiani, J.) ordered a hearing before itself to determine whether or not the urine was a false positive.
18. On July 30, 2003, the court (Damiani, J.) raised the total petitioner's bond to $250,000.00 and took the petitioner into custody.
19. On August 18, 2003, the court (Damiani, J.) conducted a hearing to determine if the defendant had violated the conditions of the agreement the court (Damiani, J.) entered into with the petitioner at the time he admitted the violation of probation on April 30, 2003.
20. On August 18, 2003, the court (Damiani, J.) indicated that the prosecution needed to enter into evidence the procedures in taking the urine, show the chain of custody of the urine, and rule out the possibility that the medication the petitioner was taking contaminated any samples whereby it would give a false reading of positive.
21. Documentation from A.I.C. shows that the petitioner gave a urine sample on July 14, 2003, which tested positive for cocaine. On July 23, 2003, A.I.C. collected another sample, which tested negative for cocaine. The July 14, 2003 sample was rechecked on August 4, 2003, by a gas spectrometer test, which confirmed the presence of cocaine. The court received evidence regarding these three tests and their respective results during the August 18, 2003 hearing.
22. On August 18, 2003, after hearing all the evidence, the court (Damiani, J.) found the defendant had violated the conditions of the agreement the court (Damiani, J.) entered into with the petitioner at the time he admitted the violations of probation on April 30, 2003.
23. On August 18, 2003, the court (Damiani, J.) sentenced the petitioner to nine (9) years in prison.
24. The petitioner did not appeal from the judgment of conviction.
25. The petitioner remains in the custody of the Commissioner of Correction pursuant to that judgment.
26. Additional facts shall be discussed as necessary.
I
The petitioner first claims in count one that his confinement is illegal due to a judicial conflict of interest. Amongst the allegations made by the petitioner is that the court's agreement with the petitioner was unconscionable, that the court violated canon 3(c)(1) of the Code of Judicial Conduct in several ways, that the court failed to comply with both constitutional and Practice Book requirements before accepting the petitioner's plea, that Judge Damiani should have recused himself from both the hearing that determined whether the petitioner violated the agreement as well as the sentencing, and several other related and tangential claims. The petitioner alleges that the trial court deprived him of his constitutional rights to a fair trial in violation of the fifth and fourteenth amendments to the United States Constitution and Article I, § 8 of the Connecticut Constitution, as well as his rights to due process under those constitutions.
As previously indicated, the respondent has raised the affirmative defense of procedural default. The burden then shifts to the petitioner to allege and show the cause and prejudice for the procedural default. See, e.g., Milner v. Commissioner of Correction, 63 Conn.App. 726, 734, 779 A.2d 156 (2001). Here, the petitioner has replied to the procedural default defense by claiming "that . . . [it] is inapplicable because the petitioner's failure to raise the constitutional claim on appeal in the first count was reasonabl[y] unknown to trial counsel at the time of the hearing. The leading cases of State v. D'Antonio, 79 Conn.App. 683 (2003) and State v. D'Antonio, 79 Conn.App. 696 (2003) that [are] the basis for the claim [were] not issued until after hearing in August of 2003." Reply, at 1.
"In habeas proceedings, it has become axiomatic that a petitioner may not raise collaterally through a habeas proceeding issues that could have been raised on direct appeal. See Bowers v. Commissioner of Correction, 33 Conn.App. 449, 450-51, 636 A.2d 388, cert. denied, 228 Conn. 929, 640 A.2d 115 (1994)." Gray v. Commissioner of Correction, 84 Conn.App. 515, 518, 854 A.2d 45, cert. denied, 271 Conn. 930, 859 A.2d 584 (2004).
"The appropriate standard for reviewability of habeas claims that were not properly raised at trial . . . or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition . . . [T]he cause and prejudice test is designed to prevent full review at issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . Therefore, attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of [trial and) appellate procedure . . . Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001); accord Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, CT Page 3939 53 L.Ed.2d 594 (1977); Jackson v. Commissioner of Correction, [ 227 Conn. 124, 135-36, 629 A.2d 413 (1993)]; Johnson v. Commissioner of Correction, [ 218 Conn. 403, 409, 589 A.2d 1214 (1991)].
"Under the federal cause and prejudice rubric of Wainwright v. Sykes, supra, 433 U.S. 87, the United States Supreme Court has held that 'where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable . . . procedures.' Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). In so holding, the court noted that 'the cause requirement may be satisfied under certain circumstances when a procedural failure is not attributable to an intentional decision by counsel made in pursuit of his client's interests. And the failure of counsel to raise a constitutional issue reasonably unknown to him is one situation in which the requirement is met.' ". . . (Emphasis added.) Correia v. Rowland, 263 Conn. 453, 462-64, 820 A.2d 1009 (2003).
In Reed, the United States Supreme Court was addressing whether a constitutional principle it had articulated several years after the defendant's direct appeal, and that had not been previously recognized but which it held to have retroactive application, could be considered cause for purposes of making the cause and prejudice assessment. The Supreme Court held that in those particular circumstances the cause requirement bad been met.
This court first notes that the petitioner's alleged cause for the procedural default squarely falls within the ambit of what the cause and prejudice test is designed to prevent: that counsel failed to raise the claim of judicial conflict of interest either through inadvertence or ignorance. Prescience is not a quality or skill expected of counsel. Lomen v. Commissioner of Motor Vehicles, 61 Conn.App. 213, 216 n. 5, 763 A.2d 676 (2000). Attorney Photos could not possibly have known of the outcomes in the Appellate Court's decisions in D'Antonio. Furthermore, the Supreme Court in State v. D'Antonio, 274 Conn. 658, 877 A.2d 696 (2005) (en banc), reversed the Appellate Court's decisions. Nor can this court conclude that the petitioner's claim of judicial conflict of interest is novel, unique or of a similar nature as that in Reed v. Ross. Quite the contrary: this case is clearly distinguishable.
In D'Antonio, the Supreme Court ". . . conclude[d] that a trial court presiding over a trial after having first participated in unsuccessful plea bargaining efforts is not, by itself, plain error requiring reversal. Violation of this prophylactic rule does not require reversal when the record demonstrates that the defendant otherwise has received a fair trial and sentencing before an impartial court, and that the core danger of judicial vindictiveness has not been realized." (Emphasis added.) Id., at 690-92. The emphasized language from CT Page 3940 D'Antonio underscores the critical distinction between the facts presented by the instant petition and the cases governing recusals and judicial vindictiveness. In this case, the petitioner successfully negotiated a plea that achieved his primary goal: no jail time if he could comply with the terms of the agreement. As such, this court fails to discern how the potential for judicial vindictiveness or retaliation, where a defendant refuses to agree to a plea bargain crafted by the court, can be implicated here. The petitioner not only accepted the court's proposal, eagerly embracing the opportunity to avoid incarceration, he accepted the risk of what was an essentially pre-determined sentence of nine years if he failed to comply with the terms of the agreement.
The D'Antonio court noted that in State v. Niblack, 220 Conn. 270, 596 A.2d 407 (1991), it had
". . . 'approve[d]' in dicta of the method followed by the trial court and the parties with respect to judicial court participation in the plea bargaining process, stating that,' [t]he plea negotiations involved an assistant state's attorney, defense counsel and eventually a judge who assisted the adversaries in reaching an agreement . . . The judge was responsible for conducting plea negotiations and, if an agreement was reached, for holding a plea and sentencing hearing. If negotiations were not successful, however, a judge who was not involved in the plea negotiations would have presided at trial and pronounced sentence if the defendant were found guilty.'" (Emphasis added.) State v. D'Antonio, supra, 274 Conn. 675-76.
The Supreme Court ". . . reiterated [its] approval of the Niblack rule in Safford v. Warden, [ 223 Conn. 180, 194 and n. 16, 612 A.2d 1161 (1992)]. In Safford, [it] affirmed the denial of a habeas corpus petition, rejecting, inter alia, the petitioner's claim that the judge who had sentenced him was barred from doing so by the Code of Judicial Conduct because he had participated in the plea bargaining that led to the petitioner's guilty plea to sexual assault charges . . . [The Supreme Court in Safford] concluded that the claims were not appropriate for a habeas petition because '[a] claim that a judge should not have participated in plea negotiations, based solely upon the appearance of partiality, does not rise to the level of a constitutional violation . . . Nor does it constitute a miscarriage of justice, or other prejudice justifying the issuance of a writ of habeas corpus.' . . . [The Supreme Court] also rejected the petitioner's claim that his trial counsel was ineffective for failing to move for the trial court's disqualification . . . and . . . again recited [its] approval of the Niblack rule governing plea negotiations . . . [The Supreme Court] also stated that this 'procedure must be distinguished from the situation where the judge who participates in plea negotiations is also responsible for conducting the trial and, therefore, for sentencing the defendant in the event of a conviction,' because, that situation gives rise to the 'dangers we identified in State v. Gradzik, [ 193 Conn. 35, 47, 475 A.2d 269 (1984)]. . . .' Safford v. Warden, supra, 223 Conn. 194 n. 16. We noted that adherence to the Niblack rule eliminates these risks because '[a]s long as the defendant is free to reject the plea offer and go to trial before a judge who was not involved in or aware of those negotiations, he is not subject to any undue pressure to agree to the plea agreement, and the impartiality of the judge who will sentence him in the event of conviction after trial is not compromised.' . . ." (Internal citations omitted.) State v. D'Antonio, supra, 274 Conn. 677-78.
Gradzik also involved a defendant who rejected a plea agreement, proceeded to trial and then raised the claim that the trial judge should not be the sentencing judge. The Supreme Court noted that there ". . . [wa]s nothing in the record . . . to support a conclusion that the trial judge participated in the plea negotiations." State v. Gradzik, supra, 193 Conn. 47.
The petitioner's claim, however, is that the trial court's participation in the pre-trial negotiations should have resulted in the court's recusal in presiding over the hearing in which the only issue was whether or not the petitioner tested positive for drugs. Aside from failing to cite any authority requiring recusal for this type of hearing, the petitioner has also failed to demonstrate how he has suffered any actual or apparent prejudice or harm as a result. State v. D'Antonio, supra, 274 Conn. 681-89. The evidence before this court, including the record of the hearing before the trial court, indicates that the hearing was fairly tried and the petitioner was sentenced pursuant to the terms originally agreed to by the petitioner. Indeed, one of the factors noted in D'Antonio to demonstrate or show prejudice by the trial court, is whether or not the trial court initiated plea discussions with the petitioner. Id., at 682. In fact, trial counsel discussed with the petitioner the possibility of getting this type of plea agreement from Judge Damiani prior to the judicial pre-trial; in response, the petitioner was adamant: "if you can get me that, I want that, I cannot go to jail . . ." Tr. (July 25, 2005), at 36-37. In sum, and based on the foregoing, this court concludes that the petitioner has failed to allege and show the required cause and prejudice and is procedurally defaulted from raising the claim of judicial conflict of interest. Additionally, the claim in count one is indistinguishable from the claim the Safford court specifically indicated was not of constitutional magnitude and, thus, not appropriately the subject of habeas corpus relief.
II
The petitioner's second count alleges that "[u]nder General Statute § 54-64a(a)(1), the court was without the authority to consider the results of the urinalysis drug test because the results of the drug test shall not be admissible in any criminal proceeding concerning such person." Amended Petition, at 6. The petitioner further alleges that "[i]n defining the terms of the agreement in conditions of probation, the court used language that placed the defendant into the pilot zero-tolerance drug supervision program under General Statute' 53-39d." Id. "The petitioner, as a participant in pilot zero-tolerance program, was deprived of an opportunity to [a] second urinalysis drug test under General Statute § 53a-39d(d) by not being informed of the results of the test until well after the two day period prescribed by that statute." Id.
C.G.S. § 54-64a(a)(1) states that: "Except as provided in subsection (b) of this section, when any arrested person is presented before the Superior Court, said court shall, in bailable offenses, promptly order the release of such person upon the first of the following conditions of release found sufficient to reasonably assure the appearance of the arrested person in court: (A) Upon his execution of a written promise to appear without special conditions, (B) upon his execution of a written promise to appear with nonfinancial conditions, (C) upon his execution of a bond without surety in no greater amount than necessary, (D) upon his execution of a bond with surety in no greater amount than necessary. In addition to or in conjunction with any of the conditions enumerated in subparagraphs (A) to (D), inclusive, of this subdivision the court may, when it has reason to believe that the person is drug-dependent and where necessary, reasonable and appropriate, order the person to submit to a urinalysis drug test and to participate in a program of periodic drug testing and treatment. The results of any such drug test shall not be admissible in any criminal proceeding concerning such person."
It is well established ". . . that the writ of habeas corpus, as a vehicle to challenge a criminal conviction, is reserved for 'convictions that violate fundamental fairness . . . Bunkley v. Commissioner of Correction, 222 Conn. 444, 460-61, 610 A.2d 598 (1992). In order to be successful, a habeas corpus petitioner 'must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal.' . . . Thus, ordinarily a habeas corpus petitioner must establish some fundamental constitutional violation entitling him to relief." Safford v. Warden, supra, 223 Conn. 190. The petitioner's claim in count two clearly does not allege any cognizable constitutional violation.
Furthermore, the amended petition mischaracterizes the petitioner's status while he was in the A.I.C. program. The petitioner was not on court-ordered probation while in such program, nor was he in a pilot zero-tolerance program; instead, the petitioner had entered a guilty plea and admissions to violating his probation and the matter had been continued for sentencing. If the petitioner had successfully fulfilled his obligations under the plea agreement, the court would have sentenced the petitioner to probation and not imposed a term of incarceration. Consequently, this court finds the petitioner's reliance on § 54-64a to be misplaced.
This court finds that the applicable statutes in this case instead are §§ 54-63f and 54-64e. On April 30, 2003, the petitioner entered a guilty plea to a charge of possession of narcotics and admissions to two violations of probation. Upon entering the plea and admissions, the petitioner was convicted of those offenses, and the court had the statutory authority to continue the matter for sentencing and release the petitioner upon his promise to appear. Furthermore, the court had the statutory authority to place conditions on the petitioner contemporaneous with the promise to appear.
§ 54-63f in relevant part states: "A person who has been convicted of any offense, except a violation of section 53a-54a, 53a-54b, 53a-54c or 53a-54d or any offense involving the use, attempted use or threatened use of physical force against another person, and is . . . awaiting sentencing . . . may be released pending final disposition of the case, . . . upon the first of the following conditions of release found sufficient by the court to provide such assurance: (1) Upon such person's execution of a written promise to appear[.]"
§ 54-64e states that: "(a) When any person is released pursuant to the provisions of sections 54-63a to 54-63g, inclusive, or sections 54-64a to 54-64c, inclusive, it shall be a condition of such release that the person released not commit a federal, state or local crime during the period of release. (b) When any person is released pursuant to the provisions of sections 54-63a to 54-63g, inclusive, or sections 54-64a to 54-64c, inclusive, such person shall be notified in writing at the time of release: (1) Of the condition specified in subsection (a) of this section and any additional conditions of release; (2) that violation of any condition of release may result in the imposition of different or additional conditions of release; (3) that if he is released with respect to an offense for which a term of imprisonment of ten or more years may be imposed and the court finds that he has violated any condition of release and the safety of any other person is endangered while he is on release, his release may be revoked; and (4) that any crime committed while on release may subject him to enhanced penalties pursuant to section 53a-40b." (Emphasis added.)
Lastly, the salient facts of the instant matter are virtually indistinguishable from those in State v. Trotman, 68 Conn.App. 437, 791 A.2d 700 (2002). In Trotman, ". . . the defendant entered a plea of guilty under the Alford doctrine to the possession of narcotics charge. The defendant also admitted to violating her probation imposed by the [prior] sentence. The state, as part of the plea agreement, nolled a number of additional charges filed against the defendant and allowed the matter to be continued for four months to allow the defendant to enroll in a drug treatment program.
"While she was in the program, the defendant was required to submit to random urine samples for drug testing. Monthly reports were to be submitted to the court through the program. If the defendant successfully completed the program, she would have received a suspended sentence of four years with three years of probation. The defendant's failure to remain in the program, a new arrest or a urine test indicating drug use would result in a sentence of four years without the right to argue for a lesser sentence.
"Three months into her rehabilitation, the defendant's urine sample tested positive for an opiate. The defendant was brought before the court for a hearing in which the court found that the defendant had in fact violated her plea agreement and reinstated, according to that agreement, her four year prison sentence. At that hearing, the court denied the defendant's previously filed motion objecting to the court's 'revocation of the plea agreement.' ". . . Id., at 439-40.
In Trotman, "[t]he defendant first claimed] that the court improperly found that, on the basis of the evidence, her urine sample tested positive for the presence of an opiate. The defendant claim[ed] that the court's finding was improper because there was evidence that the 'drug test may have yielded a false positive . . .' Specifically, the defendant claim[ed] that the record does not contain sufficient evidence to support a finding that the urine sample tested positive for the presence of an opiate . . . "(Internal citations omitted.) Id., at 440-41.
After restating the applicable standard of review, the Appellate Court held that "[a]s the sole arbiter of the testimony, the court did not believe the defendant's assertions that she had not used drugs during the rehabilitation period. Further, the court was not persuaded that the viability, reliability, or accuracy of the test results should be called into question. [The Appellate Court] conclude[d], therefore, that the court's finding that the urine sample tested positive for the presence of an opiate was not clearly erroneous in light of the evidence and the pleadings in the record as a whole. Additionally, [the Appellate Court could not] say that [it was] 'left with the definite and firm conviction that a mistake ha[d] been committed.' The court's conclusion had sufficient evidentiary support because it was drawn from a finding of fact that cannot, after a review of the record, be found to be clearly erroneous." (Internal citation omitted.) Id., at 442.
Based on the foregoing, this court finds that the claim in count two fails to state a claim upon which habeas corpus relief may be granted. A review of the record also demonstrates that the court was acting within its statutory authority. Lastly, the facts of this case are not distinguishable from those in Trotman which implicitly approved of procedures identical to those employed by the underlying court in the instant matter.
III
The petitioner's final claim is that his convictions are in violation of the constitutional protections ensuring effective assistance of counsel. The third count specifies a virtual laundry list of thirty-four (34) ways in which counsel's performance allegedly was deficient. For ease of discussion, this court will group this multitude of claims into the following groupings of allegations, namely that counsel failed to: properly advise the petitioner; maintain a file and did not bring his file to the underlying proceedings; prepare adequately for court hearings; move to suppress the evidence based illegal search and seizure; conduct a sufficient investigation; ensure the petitioner's pleas were knowing, intelligent and voluntary; move for Judge Damiani's disqualification; have a hair sample taken and tested for the existence of narcotics; object to the admission of the drug test results; obtain and present favorable and available information; raise appropriate evidentiary objections or impeach witnesses; and failed to properly preserve and perfect the petitioner's right to appeal.
"For ineffectiveness claims resulting from guilty pleas, [courts] apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), which modified Strickland [v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),]'s prejudice prong . . . "To satisfy the performance prong, the petitioner must show that counsel's representation fell below an objective standard of reasonableness . . . A petitioner who accepts counsel's advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases . . . The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . . Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist . . . A reviewing court must view counsel's conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time, . . . "To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial . . . Reasonable probability does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome . . . A reviewing court can find against a petitioner on either ground, whichever is easier." Bowden v. Commissioner of Correction, 93 Conn.App. 333, 339 (2006).
With the exception of one of the bases for relief sought in count three, which this court will subsequently address, the petitioner's claims of ineffective assistance of counsel falter on the prejudice prong. The petitioner here was exposed to a potential sentence of sixteen years in jail and/or a fine of fifty thousand dollars. Pet'r Ex. 1 (Tr. April 30, 2003), at 4. The state offered the petitioner a sentence of four and one-half years in exchange for his guilty pleas. The petitioner's exposure on the violations of probation charges alone were already nine years. Appropriately, petitioner's counsel advised the petitioner of the risk of being found in violation, given that the standard of proof was only a preponderance of the evidence. The petitioner, however, was adamantly opposed to agreeing to any incarceration. As such, the petitioner, through his counsel, specifically sought from the trial court the opportunity to participate in a plea agreement which would not require him to serve time in prison, at least so long as he complied with the terms of the agreement. As noted earlier in Part One of this decision, supra, at 12-13, the petitioner, through his attorney, initiated discussions with the court and the state's attorney to craft an agreement that would involve no jail time.
What the petitioner here has completely failed to show is that, assuming errors by counsel, he would not have pleaded guilty and insisted on going to trial. Instead, the record at trial and in the habeas proceeding makes abundantly clear that the petitioner knowingly and voluntarily entered into an agreement in which the potential term of incarceration, if imposed, would have been high, but in fact, was still less than the maximum exposure he faced. Moreover, if he were able to maintain his part of the bargain, the petitioner would have faced no incarceration. There can be little doubt that the petitioner was aware that had he gone to trial on the criminal case and/or on the violation of probation charges, the risk that he would have been incarcerated for some period of time was high. That was clearly a risk that the petitioner was unwilling to take under any circumstances and this court is convinced that the petitioner was highly motivated to accept the terms of this agreement.
In hindsight, the petitioner brands the agreement into which he voluntarily entered as unconscionable. But this court's mandate is to consider whether his pleas were voluntarily and knowingly entered at the time they were considered by the trial court. It is apparent that when this matter was being negotiated and when the pleas were accepted, the agreement was an opportunity the petitioner clearly understood he was fortunate to have. When canvassed by the court, the petitioner made clear that he understood the implications of agreeing to this deal, acknowledging that it was up to him to "sink or swim." Pet'r Ex. 1 (Tr. April 30, 2003), at 4.
It is also significant to this court that neither at the hearings before the criminal court nor before this habeas court was there any credible evidence that the petitioner's pleas were involuntary. Indeed, the focus of the evidence in both hearings was whether the urinalysis results indicating a positive screen were reliable. In the hearing before Judge Damiani, the petitioner's claim was that he had been hospitalized and that his medication during that time was responsible for the positive reading. Notably, the trial court placed on the state the burden of not only showing that the screen was positive, but also that it rule out the possibility that the screen was positive due to any prescription medication the petitioner had taken. Trial defense counsel also attempted to raise a chain of custody issue as well, but in that proceeding, as well as before this habeas court, the evidence does not support a viable ineffective assistance of counsel claim here. That a forensic laboratory may adhere to stricter standards in its chain of custody procedures than a clinical laboratory, where this urinalysis result was produced, does not, per se, render the results here unreliable. More importantly, however, trial counsel's failure to pursue this theory is neither deficient performance nor prejudicial to the petitioner. The petitioner has not affirmatively shown to this court that there is a reasonable probability sufficient to undermine confidence in the outcome of the case.
As to the one alleged deficiency by counsel that merits a more comprehensive discussion, namely that Attorney Photos failed to preserve and perfect the petitioner's right to appeal, the court makes the following additional findings of fact. Attorney Photos gave conflicting testimony regarding any discussions he may have had with the petitioner regarding an appeal. On direct examination, Attorney Photos initially testified that the petitioner was irate after the sentencing, wanted nothing to do with him, and that he thought the petitioner was securing representation immediately to assist him with an appeal. Tr. (July 25, 2005), at 96. Attorney Photos then went on to testify that he never talked to the petitioner about taking or not taking an appeal. Id., at 97. Later on cross examination, Attorney Photos testified that he mentioned an appeal to the petitioner, but that he did not go into details. Id., at 124. Attorney Photos at some point had subsequent additional discussions with the petitioner's mother and former girlfriend pertaining to an appeal. Id., at 91-95 and 124. Attorney Photos also testified at the habeas corpus trial that he does not handle appeals and that he advised the petitioner's mother and former girlfriend that he could refer them to an attorney who handled appeals. Id.
To determine whether trial defense counsel was ineffective for failing to pursue an appeal, this court must apply the standard enunciated in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), as adopted by the Connecticut Supreme Court in Ghant v. Commissioner of Correction, 255 Conn. 1, 761 A.2d 740 (2000). "The [United States] Supreme Court in Roe . . . articulated that the . . . [Strickland]test applies to claims, like [the defendant's in Roe] that counsel was constitutionally ineffective for failing to file a notice of appeal. [N]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel . . . Rather, courts must judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct . . . and [j] judicial scrutiny of counsel's performance must be highly deferential . . . "The court in Roe began its analysis with the first part of the Strickland test and enunciated the rule to be applied to ineffective assistance claims concerning the failure to take an appeal. In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking . . . whether counsel in fact consulted with the defendant about an appeal. We employ the term 'consult' to [mean] . . . advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes. If counsel has consulted with the defendant . . . [c]ounsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal . . . And, while States are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented . . . the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices.
"Rejecting a bright line test that would require counsel always to consult with a defendant regarding an appeal, the court in Roe, stated: We . . . hold that counsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known . . . Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights. Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal.
"The second part of the Strickland test, as enunciated in Roe requires the defendant to show prejudice from counsel's deficient performance. [T]o show prejudice [when counsel fails to apprise a defendant of his or her appellate rights], a defendant must demonstrate that there is a reasonable probability that but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed. The court further articulated that whether a given defendant has made the requisite showing will turn on the facts of a particular case . . . [E]vidence that there were nonfrivolous grounds for appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant in making this determination." (Internal citations and quotation marks omitted.) Ghant v. Commissioner of Correction, supra, 255 Conn. 8-10.
The problematic point in the instant matter is that while there is some evidence, albeit conflicting, that the petitioner and Attorney Photos discussed an appeal, the record before this court is devoid of evidence that the petitioner specifically instructed his attorney to file an appeal. This court must evaluate and judge the reasonableness of Attorney Photos' performance viewed at the time of his conduct. Here, Attorney Photos did consult with the petitioner regarding an appeal. Because the petitioner has not shown that he expressly instructed his attorney to pursue an appeal, this court cannot find that Attorney Photos performed in a professionally unreasonable manner.
CONCLUSION
Based on all the foregoing, the court concludes that the petitioner has failed to allege and show the required cause and prejudice and is procedurally defaulted from raising the claim of judicial conflict of interest. Additionally, the claim in count one is indistinguishable from the claim the Safford court specifically indicated was not of constitutional magnitude and, thus, not appropriately the subject of habeas corpus relief.
As to count two, the court concludes that it fails to state a claim upon which habeas corpus relief may be granted. A review of the record also demonstrates that the trial court was acting within its statutory authority. Lastly, the facts of this case are not distinguishable from those in Trotman, which implicitly approved of procedures identical to those employed by the underlying court in the instant matter.
Lastly, as to count three, the court concludes that the petitioner has not shown that, assuming errors by counsel, he would not have pleaded guilty and insisted on going to trial. And because the record before this court is devoid of evidence that the petitioner specifically instructed his attorney to file an appeal, this court cannot find that Attorney Photos performed in a professionally unreasonable manner.
The petition for a Writ of Habeas is, therefore, denied.