Opinion
No. CV02-0003607
August 15, 2003
Memorandum of Decision
The petitioner, Mervin Brandy, alleges in his petition for a Writ of Habeas Corpus initially filed on April 17, 2000 and amended on September 19, 2002, that: (1) he was denied the effective assistance of counsel at the trial level in violation of the Sixth and Fourteenth Amendments to the United States Constitution; and (2) that he is actually innocent of some of the offenses to which he pled guilty. Consequently the petitioner asserts that he should be released from prison and that all of his cases should be restored to the docket for further proceedings. For the reasons set forth more fully below the petition shall be denied.
The claim of ineffective assistance of counsel essentially complains that his trial defense counsel failed to adequately investigate the charges and improperly advised his client to accept a plea bargain that required the petitioner to plead guilty to all pending charges and admit a violation of probation in return for which there would be no cap upon the court's discretion in sentencing and the petitioner could argue for a low sentence. Consequently, the petitioner asserts that his guilty plea was not knowing, intelligent and voluntary, because his attorney failed to properly advise the petitioner that he could have been acquitted at trial. In light of this the petitioner asks that he be allowed to withdraw his guilty plea. Finally, the petitioner has alleged that he is actually innocent of some of the charges to which he has pled guilty.
This matter came on for trial before the Court on July 16, 2003 and again on August 12, 2003. The petitioner, his trial defense counsel, Attorney Richard Silverstein, and the state's attorney who prosecuted the case, Michael Pepper were the only witnesses who testified at the habeas trial. In addition, the Court received transcripts of the petitioner's plea and sentencing, as well as the Pre-Sentence Investigation into evidence. The Court has reviewed all of the testimony and documentary evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in three criminal cases in the Judicial District of New Haven under Docket Numbers CR98-462896, CR99-476625, and CR99-476626 in which he was collectively charged with assault in the 2nd degree in violation of CGS § 53a-60, breach of the peace in violation of CGS § 53a-181, reckless endangerment in the 1st degree in violation of CGS § 53a-63, possession of narcotics in violation of CGS § 21a-279a, and a violation of probation for which a term of five years confinement had been previously suspended.
2. Attorney Frank Volarde initially represented the petitioner in all of these cases. Attorney Silverstein filed his appearance in lieu of Attorney Volarde on September 23, 1999.
The Court notes that there is no allegation of ineffective assistance by Attorney Volarde in this habeas petition. This petition would have been the vehicle to raise such a claim. Consequently, it is clear to this Court that the petitioner has waived his opportunity to file a habeas petition alleging ineffective representation by Attorney Volarde.
3. The initial offer by the state's attorney to resolve these matters without trial required guilty pleas and an admission of probation in return for which the petitioner would be sentenced to three years to serve to be followed by three years of special parole. This plea bargain was extended by the state while Attorney Volarde represented the petitioner.
4. The offer was still outstanding at the time that Attorney Silverstein entered his appearance, however, the petitioner rejected this offer almost immediately thereafter.
5. The petitioner was scheduled for an immediate hearing on his violation of probation hereafter "VOP"). This VOP hearing was due to commence at 2:00 pm on October 8, 1999.
6. On the morning of the VOP hearing, Attorney Silverstein engaged Judge Gary White in conversation in the hallway of the courthouse and attempted to have the previous offer of three years confinement to be followed by three years special parole reinstated.
7. Assistant State's Attorney Pepper happened to come across this impromptu meeting and joined in the discussions. Since the state was ready to proceed with the VOP hearing, all of the witnesses were lined up and the case prepared, he was unwilling to extend any further offers to the petitioner at that point.
8. Ultimately, Judge White indicated that he would be willing to accept a plea of guilty to all of the pending criminal cases and an admission of violation of probation. In return for which, the state would not make any recommendation for the sentence to be imposed, the petitioner could argue for any lesser sentence, but there would be no cap upon the sentence that the Court could impose.
The cap upon a sentence was, of course, the maximum that would be allowable under the crimes charged. This would have allowed confinement for a maximum term of eighteen and one half years, broken down as follows:
Possession of Narcotics 7 years
Assault 2nd Degree 5 years
Violation of Probation 5 years
Reckless Endangerment 1 year
Breach of Peace 6 months
9. Attorney Silverstein had investigated the charges against the petitioner and had full access to both the prosecutor's files and the files of Attorney Volarde. In connection with the assault incident (Docket No. CR99-476625) he had interviewed witnesses, concluded that they would be effective witnesses, and felt that there was a reasonable chance of prevailing at trial. In regard to the VOP and the narcotics charge, Attorney Silverstein believed that there was very little likelihood of an acquittal since the standard of proof was lower at a VOP hearing and the petitioner had admitted to possessing the narcotics.
10. Ultimately, the petitioner elected to accept the pretrial settlement offer and on October 8, 1999, entered pleas of guilty to the criminal cases and an admission as to the VOP.
11. On October 8, 1999 the petitioner entered pleas of guilty under the Alford doctrine, in all of his cases, and entered an admission of violation of his probation in docket number CR98-462896.
North Carolina v. Alford, 400 U.S. 25 (1970).
On July 14, 1998, the petitioner was convicted of possession of narcotics with the intent to sell and was sentenced by the Court, White J., to a term of incarceration of five years, suspended and probation of three years.
12. At the plea canvass, the Court, White, J., determined that the petitioner understood the nature of the charges against him, including the maximum and minimum penalties and the evidence that the state said it had against him. The Court delineated that maximum sentence and made it clear that the petitioner had the right to plead not guilty and take the cases to trial before the Court or a jury with the assistance of counsel at which time he would have the right to confront and cross examine witnesses. The Court further explained that the petitioner had the right against self-incrimination that he would be waiving with his plea of guilty.
13. In addition, the Court determined that the petitioner was not under the influence of any alcohol, drugs or medication that would prevent him from understanding the proceedings as well as explaining that these convictions could have an adverse effect upon his immigration status, if applicable. The Court determined that the petitioner had had enough time to discuss the cases with his lawyer.
14. Consequently, the Court, White, J., found his pleas to be knowingly and voluntarily made with the assistance of competent counsel. The Court thereafter accepted the pleas and entered findings of guilty and a violation of probation.
15. The Court expressly went over the agreement in regard to these pleas with the petitioner and the petitioner indicated that he fully understood.
"The Court: Mr. Brandy, the State intends to put you to plea on all those charges and I had a discussion with your lawyer and the State's Attorney and I indicated to your lawyer that if you wanted to be put to plea, I would canvass your pleas and accept them after a canvass, but I made no promises whatsoever. If I think it's appropriate, I can give you the whole eighteen — pardon, eighteen and a half years, is that it? Eighteen and a half years. I can give you the whole eighteen and a half years to serve and you can't take your plea back, if I think it's appropriate. I'm not saying I'm going to do that, but I could.
Mr. Brandy: I just hope that you be fair.
The Court: I'm going to continue it for sentencing. I'll listen to your lawyer's arguments, the State's arguments. I'll review any materials that are submitted to me and then I'm going to do what I think is appropriate. If you want to enter your plea on that basis, you may. If not you can just go across the street and have your VOP hearing. What do you want to do, sir?
Mr. Brandy: I'm going to enter my plea.
The Court: You want to enter your plea. You talked to your lawyer about this and you understand what you're doing; is that correct?
Mr. Brandy: Yeah, I just hope that you be fair, sir" Petitioner's Exhibit 2, pp. 2-3.
16. Sentencing took place on January 12, 2000 before the Court, White J., At that time, Attorney Silverstein presented the Pre-Sentence Investigation, numerous other documents and letters dealing with the progress that the petitioner was making on his drug abuse problem, and information regarding the extent of the victim's injuries. The petitioner made a statement to the Court in which he expressed his devotion to his family and young teen-aged children. Attorney Silverstein made an impassioned argument to the Court that leniency in sentencing was in order.
17. The Court, White, J., sentenced the petitioner to a total effective sentence of eight years to serve.
18. The Court will discuss additional facts, as necessary.
Discussion
The petitioner now comes before this Court seeking to withdraw his voluntary pleas of guilty. He also seeks to challenge his voluntary admission to the violation of probation. Moreover, he asserts a claim of actual innocence.
There is 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." Summerville v. Warden, 229 Conn. 397 at 422-423 (1994). Consequently, even though "a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial," Summerville v. Warden, 229 Conn. 397 at 422 (1994), the burden of proving this rests with the petitioner. "Thus, 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." Summerville v. Warden, infra. at 422.
Not only has the petitioner been convicted of these offenses, he has been convicted pursuant to his pleas of guilty. A guilty plea is the highest form of proof of guilt known to the law. "A valid guilty plea generally operates as a waiver of all defects in the prosecution `except those involving the canvass of the plea and the court's subject matter jurisdiction.' State v. Reddick, 224 Conn. 445, 451, 619 A.2d 453 (1993); see also State v. Niblack, 220 Conn. 270, 276-77, 596 A.2d 407 (1991); State v. Gilnite, 202 Conn. 369, 374 n. 4, 521 A.2d 547 (1987); State v. Satti, 2 Conn. App. 219, 221-22, 477 A.2d 144 (1984)." D'Onofrio v. Commissioner, 36 Conn. App. 691 at 693 (1995). Moreover, the guilty plea is a waiver of constitutional rights — a waiver of non-jurisdictional defenses — and where . . . the record discloses that such an act was voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences, . . . the plaintiff's plea of guilty was valid." Consiglio v. Warden, 160 Conn. 151 (1970). In the instant case, it is clear that the petitioner's pleas of guilty and admission of the violation of probation are voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences. The Court engaged in a full canvass of the petitioner to determine the providence of his guilty plea and admission, the petitioner was represented by counsel and fully understood the import of what he was doing. Consequently, his guilty pleas were valid. A valid plea of guilty will operate to estop the petitioner from seeking to withdraw that plea at a subsequent habeas corpus proceeding.
Here, the petitioner entered his pleas under tile Alford doctrine. "[G]uilt, or the degree of guilt, is at times uncertain and elusive, an accused, though believing in or entertaining doubts respecting his innocence, might reasonably conclude a jury would be convinced of his guilt and that he would fare better in the sentence by pleading guilty. McCoy v. United States, 124 U.S.App.D.C. 177, 179, 363 F.2d 306, 308 (1966)." See North Carolina v. Aflord, 400 U.S. 25 at 33 (1970). The petitioner was charged with numerous serious charges. Had he gone to trial on all of these matters and been convicted, he would have faced a potentially long period of incarceration. In addition, he had five years of incarceration from the violation of probation that could have been adjudged. His total "exposure" was, therefore, high.
The heart of this habeas petition is a dissatisfaction with the sentence that was adjudged by the trial judge. In essence, the petitioner, and his trial defense counsel are not pleased with the result of the plea bargain into which the parties freely entered. The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers. Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt. There is, however no state or federal constitutional guarantee to enter into a pretrial agreement.
"The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The `demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula `beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.'" In re Winship, 397 U.S. 358 at 361 (1970).
The ultimate decision as to whether a criminal defendant pleads guilty or pleads not guilty rests with the individual charged with the crime. A criminal defendant has an absolute Constitutional right to persist in a plea of not guilty, even in the face of seemingly insurmountable obstacles and overwhelming evidence. He or she has an absolute right to hold the government to its extraordinarily high burden of proof and take the matter to a jury of his or her peers. It is not, and never has been, for the trial defense counsel to decide the plea that his client should enter. However, "[b]ecause a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the `right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.' Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1995)." See Baillargeon v. Commissioner of Correction, 67 Conn. App. 716 at 721 (2002). Consequently, an attorney who fails to conduct an adequate investigation, such that he or she is prevented from offering his client proper counsel, may well be providing ineffective representation. It is not the quantum of the investigation by counsel that is important; it is the quality of the legal advice offered to the client that is paramount.
Here, it is clear that Attorney Silverstein was well prepared to take the matter to trial. Nevertheless, it was clear that while there may have been a fair possibility of an acquittal on the assault and related charges, in regard to the violation of probation and the possession of cocaine, the chances of prevailing at an adversary proceeding was highly problematic, if not nigh unto impossible. No matter how well prepared Attorney Silverstein may have been, he was unlikely to have achieved exoneration for his client. In light of this, the decision to seek a pretrial agreement and limit exposure was a good one.
It is unfortunate that a matter as important as deciding how to resolve criminal charges at times takes on a bazaar-like appearance with both the state and defendants making "offers," and "bargaining," to arrive at a "deal." Plea-bargaining is a necessary component of the smooth operation of the criminal justice system. The courts would grind to a halt in very short order if all criminal cases had to be tried to a jury. No person should be forced to accept a plea bargain against his or her will. Nevertheless, there are times that compromises must be made in order to achieve an acceptable result. Here, it may well have been prudent for the petitioner to agree to a settlement and enter a plea of guilty in order to have some relief on the sentence. "Reasons other than the fact that he is guilty may induce a defendant to so plead . . . [and he] must be permitted to judge for himself in this respect. State v. Kaufman, 51 Iowa 578, 580, 2 N.W. 275, 276 (1879)." See North Carolina v. Alford, 400 U.S. 25 at 33 (1970). By making the pragmatic decision to plead guilty, even though he may have believed himself innocent, the petitioner voluntarily chose to forego his constitutional right to a trial in exchange for a the possibility of receiving a favorable sentence.
For an outstanding discussion of the importance that the plea bargaining process plays in the administration of justice, see Copas v. Commissioner of Corrections, 234 Conn. 139 at 153-154 (1995).
"The focus of a habeas inquiry where there has been a guilty plea is the nature of the advice of counsel and the voluntariness of the plea, not the existence of a purported antecedent constitutional infirmity. Tollet v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). If a prisoner pleads guilty on advice of counsel, he must demonstrate that the advice was not within the range of competence demanded of attorneys in criminal cases. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Moreover, `a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.'" Buckley v. Warden, 177 Conn. 538 at 542-543 (1979).
It is clear that the eight-year sentence was in excess of that which the petitioner had hoped to obtain. At the habeas trial, the petitioner indicated that he felt he should have been placed on probation. Even the petitioner's trial defense counsel recognized that a sentence of three years or less would have been acceptable. However, both petitioner and his trial defense counsel were unhappy with the eight-year sentence that was actually adjudged. In essence, the petitioner argues that he should have received the benefit of the plea bargain that he had previously rejected.
At the habeas trial, Attorney Silverstein testified as follows:
Q: Okay. Now, if Judge White had sentenced your client to eight years total effective sentence, execution suspended and a period of probation—
A: Right.
Q: — let's say, for point of argument eight years, execution suspended, three years probation.
A: Right.
Q: If that had been the sentence that was imposed, would you have recommended that your client file a habeas against you?
A: No.
Q: If your client had received eight years, suspended after one year.
A: No.
Q: If he had received eight years, suspended after two years.
A: No.
Q: Eight years, suspended after three years.
A: No.
Q: Eight years, suspended after four years.
A: Probably.
Transcript of Proceedings for July 16, 2003, parties 44-45.
It is indisputable that the eight-year sentence is not an illegal sentence. There is no disagreement that the Court was free to sentence the petitioner to a term of confinement of eighteen and a half years. It is equally clear that there was no prohibition on the Court's imposing a sentence that did not involve any confinement at all. There are both aggravating and mitigating factors present in this sentence. In aggravation, the petitioner had had two previous criminal charges resolved with the imposition of probation and was on probation at the time of his new offenses. This alone argued against any further period of probation. However, in mitigation, the petitioner was showing indications that he was finally attempting to make strides to resolve his drug abuse problem, had a family, was employed and actively involved with raising his children. The sentence actually imposed by the Court was less than half of the maximum, although significantly higher than the three years originally sought by the state. While different judges may have imposed different sentences, there is no impropriety in the sentence that was imposed.
There are some judges on the bench who may well have imposed the full eighteen and a half years. Likewise, others may have imposed a significantly lower sentence. Unlike the federal system with its Sentencing Guidelines, Connecticut does not apply any sort of mathematical formulae to the imposition of sentence, leaving sentencing decisions up to the individual judge.
Any claim of ineffective assistance of counsel must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d (1984), before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if; the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
"Although Strickland applies generally to the evaluation of whether ineffective assistance of counsel during criminal proceedings has infringed on a petitioner's constitutional rights, the United States Supreme Court has articulated a modified prejudice standard for cases in, which the conviction has resulted from a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Hill requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial." Copas v. Commissioner 234 Conn. 139, at 151 (1995). Given this, the petitioner must first prove that the performance by his trial defense counsel was deficient in the manner in which he conducted his pretrial activities and negotiated a plea agreement for the petitioner. Then, the petitioner must prove that, but for his attorney's inadequacies, he would have pled not guilty, gone to trial and been acquitted.
It is not necessary to consider whether a trial counsel's performance was deficient if the Habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) ('[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')." Valeriano v. Bronson, 209 Conn. 75 at 86 (1988). Given this, it is incumbent upon the petitioner, in order to obtain relief, to demonstrate where he was prejudiced by the deficient performance of his trial defense counsel.
In order to accomplish this, even assuming that the trial defense counsel was performing in a deficient manner by not investigating more thoroughly and recommending that his client accept this plea bargain, the petitioner must prove to the habeas court that there were in fact matters that should have and could have been investigated by the trial defense counsel, were not investigated, and had they been investigated, would have made a difference in the case. In addition, the petitioner would have to show that he would have been acquitted or if convicted would have received a sentence lower than eight-years.
The evidence was clear that while there may have been some possibility of achieving an acquittal on the assault count, it was highly unlikely that the VOP would have been successful or that the petitioner would have been acquitted on the narcotics charge. That would have left the petitioner with a total exposure of at least twelve years after a trial. Consequently, even if it was deficient performance by Attorney Silverstein to recommend that the petitioner accept the "open cap" plea bargain, it is only the first prong of the Strickland standard that is violated. Since there has been no demonstrated or proven prejudice to the petitioner, the second prong of Strickland is not satisfied and the petition will necessarily have to be denied.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. A habeas court "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn. App. 253 at 264 (1979), cert. den. 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to 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." Henry v. Commissioner of Correction, 60 Conn. App. 313 at 317 (2000).
The petitioner did not suffer any prejudice as a result of any of the challenged actions or omissions of the trial counsel. When a defendant pleads guilty he or she relieves the state of an enormous burden in having to go forward with proof of guilt. A guilty plea is often thought of as the first step on the long road to rehabilitation and a beginning of a return of the offender to being a productive member of society. In return, the state will generally recommend that a penitent defendant receive a lower sentence. A plea bargain is in the nature of a contract, albeit one that deals with matters of the utmost importance. Consequently, even assuming deficient performance by his trial defense counsel, the petitioner must still 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." Stickland, infra at 694. Here, the petitioner voluntarily entered into this plea bargain; was ably represented by counsel who did conduct an adequate pretrial investigation; and, he freely made the choice to give up his constitutional right to a trial in order to obtain favorable consideration upon sentencing. "To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962). D'Amico v. Matson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); see also Bowers v. Warden, 19 Conn. App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." (Internal quotation marks omitted.) Buckley v. Commissioner of Correction, 222 Conn. 460-61." Summerville v. Warden, 229 Conn. 397 at 419 (1994). This, he cannot do.
It is well settled in Connecticut that a claim of actual innocence may be raised in a petition for habeas corpus even where that claim does not allege a claim that the petitioner's state or federal constitutional rights have been violated. See Summerville v. Warden, 229 Conn. 397 (1994), and Clarke v. Commissioner, 43 Conn. App. 374 (1996). However, in order to prevail in such a claim, a petitioner must overcome two very large obstacles. "First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, . . . that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty." Miller v. Commissioner, 242 Conn. 745, 791-792 (1997). Unlike the original criminal trial in which the petitioner (then the defendant) enjoyed the presumption of innocence with the burden of proving his guilt beyond all reasonable doubt resting upon the prosecutor, in the habeas proceeding, the burden of proof rests upon the petitioner. This is so because of the "fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence." Summerville v. Warden, supra. Furthermore, there is a strong societal interest "in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility." Id.
The burden of proof in a habeas proceeding in which the claim is actual innocence requires that "the habeas court first must be convinced by clear and convincing evidence that the petitioner is actually innocent. The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt." Miller v. Commissioner, supra at 794. Clear and convincing evidence must "induce in the mind of a trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." State v. Bonello, 210 Conn. 51 at 66, cert. den. 490 U.S. 1082, 109 S.Ct. 2103, 104 LEd.2d 664 (1989).
There is a threshold question regarding the issue of whether the question of actual innocence should even be considered by this Coat. "The respondent asserts that a claim of actual innocence, when raised in a habeas corpus proceeding, must be based on newly discovered evidence. To be considered `newly discovered,' `the evidence must be such that it is not cumulative, was not available to the petitioner at his criminal trial and could not have been discovered prior to the criminal trial through the exercise of due diligence.' In Clarke v. Commissioner of Correction, 249 Conn. 350, 357-58 (1999), our Supreme Court has left the absolute requirement of `newly discovered evidence' an open question in our habeas jurisprudence `until the actual outcome of the case is likely to depend on the answer to the legal question.' Id at 351." LaPointe v. Warden, No. CV 97-0571161 (Sep. 6, 2000, Freed, J.). Although having been presented with several opportunities to do so, our Supreme Court has declined to make the definitive statement. Consequently, while the final rule in this state may be to the contrary, as it stands at this time, the operative appellate decision on this issue is Clarke v. Commissioner, 43 Conn. App. 374 (1996).
Most notably, in Clarke v. Commissioner, 249 Conn. 350 (1999), the Supreme Court specifically directed that this exact issue be briefed. Notwithstanding, upon decision, the Court declined to reach this issue because Petitioner Clarke did not present a case in which he had established actual innocence.
In Clarke, the Appellate Court "concluded that although no governing standard of proof exists under which a claim of actual innocence should be evaluated, such a claim must nonetheless, be based on newly discovered evidence. Williams v. Commissioner of Correction, supra, 41 Conn. App. 527. [The Appellate Court] concluded that `a writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered.' (Emphasis added.) Id., 530. Moreover, `[it] incorporate[d] the due diligence component of the standard used in determining whether a new trial should be granted because of newly discovered evidence in the determination of whether a writ of habeas corpus should issue as a result of a petitioner's claim of actual innocence.' Id., 528. Thus, [it] held that `a petitioner must demonstrate, by a preponderance of the evidence, that the proffered evidence is such that it could not have been discovered earlier by the exercise of due diligence.'" Clarke, supra at 379.
Subsequent to the Appellate Court's decision in Clarke, the Supreme Court decided Miller v. Commissioner of Corrections, 242 Conn. 745 (1997), in which the standard of proof was discussed. This will be reached later in this decision.
Here, the petitioner has been found guilty though his own plea. He has been afforded the representation of competent counsel and the Court has found that his plea of guilty is knowing, intelligent and voluntary. In a habeas claim involving the claim of actual innocence, the petitioner asks this Court to set aside that plea and order a new trial. The "clear and convincing" standard that this Court must apply "should operate as a weighty caution upon the minds of all judges and it forbids relief whenever the evidence is loose, equivocal or contradictory." Lopinto v. Haines, 185 Conn. 527 at 539 (1981). Here, there is no basis upon which to set aside the guilty plea.
In light of all of this, the petitioner has failed to meet his burden of proving actual innocence with clear and convincing evidence. Moreover, not only must the petitioner prove with clear and convincing evidence that he is actually innocent (something that he failed to do) he must also prove that no reasonable finder of fact would find the petitioner guilty. Miller v. Commissioner, 242 Conn. 745 at 802 (1997).
The Petition for a Writ of Habeas Corpus is denied.
S. T. Fuger, Jr., Judge