Opinion
No. CV 07 4001494
April 5, 2010
MEMORANDUM OF DECISION
On January 17, 2007, the petitioner, Terrance Corbett, filed a petition for a writ of habeas corpus challenging his convictions which resulted from guilty pleas entered on September 5, 2006. On that date, the petitioner pleaded guilty to possession of narcotics with intent to sell in violation of General Statutes § 21a-278(b), two counts of criminal possession of a firearm in violation of General Statutes § 53a-217(a), two counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63 and threatening in the second degree in violation of General Statutes § 53a-62(a)(1). On April 28, 2009, the petitioner filed the operative amended petition, his third amended petition, in which he alleges that he is innocent of some of the charges to which he pleaded guilty and that he was denied the effective assistance of counsel by Attorneys Robert Berke and Joseph Bruckmann. He is seeking to have his guilty pleas vacated.
The matter came to trial on March 16, 2009 and again on May 14, 2009 and August 25, 2009. The court heard testimony from Travon Jones, Tarnica Porter, Nantezza Jones and Phillip Scott, all of whom allegedly saw the petitioner on the morning of one of the incidents underlying the charges to which he pleaded guilty. The petitioner, Attorney Berke, Attorney Bruckmann and James Byrd, who spent time incarcerated with the petitioner and Scott, also testified. The petitioner entered into evidence transcripts of the underlying criminal proceedings, three police reports, Scott's statement to the police and four letters that he sent to Attorney Berke. The petitioner and the respondent filed posttrial briefs on December 18, 2009 and January 4, 2010, respectively. Having reviewed all of the testimony and evidence, the court makes the following findings of fact.
FINDINGS OF FACT
1. The petitioner was a defendant in the following criminal cases in the judicial district of Fairfield: CR 04 200587, CR04 200588 and CR04 200589. In CR04 200587, he was charged with possession of narcotics with intent to sell. In CR 04 200588, he was charged with, inter alia, criminal possession of a firearm, reckless endangerment in the first degree and threatening in the second degree. In CR 04 200589, he was charged with, inter alia, criminal possession of a firearm and reckless endangerment in the first degree.
2. On September 5, 2006, following the denial of his motion to suppress in CR 04 200587, the petitioner pleaded guilty under the Alford doctrine to the charges described supra. The court, Comerford, J., thoroughly canvassed the petitioner and found his pleas to be knowingly and voluntarily made with the assistance of competent counsel.
See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). "A defendant who pleads guilty under the Alford doctrine does not admit guilt but acknowledges that the state's evidence against him is so strong that he is prepared to accept the entry of a guilty plea." (Internal quotation marks omitted.) Kearney v. Commissioner of Correction, 113 Conn.App. 223, 225 n. 1, 965 A.2d 608 (2009).
Petitioner's Exhibit [Exh.] 1, pp. 1-4.
3. The factual allegations underlying the charge in CR 04 200587 are as follows: On June 28, 2004, a police officer observed the petitioner and a woman with money in their hands talking in the lobby of an apartment building, where drugs were known to be sold. Upon patting down the petitioner, the police officer discovered a glove in his rear pocket containing narcotics.
Petitioner's Exh. 1, pp. 4-5.
4. The factual allegations underlying the charges in CR 04 200588 are as follows:
On May 16, 2004, the petitioner pulled out a firearm and threatened Debra Johnson, the mother of his daughter.
Petitioner's Exh. 1, p. 7.
5. The factual allegations underlying the charges in CR 04 200589 are as follows:
Early in the morning on June 20, 2004, gunshots were fired into Johnson's apartment, which is located in building twelve in the P.T. Barnum apartment complex in Bridgeport, Connecticut. She told the police that she saw the petitioner and Phillip Scott outside her apartment building around 11 p.m. on June 19, 2004. Later in the day on June 20, 2004, the police arrested Scott, who was in possession of a gun. The police linked the gun to the shooting incident at Johnson's apartment. Scott told the police that he saw the petitioner around 4:30 a.m. on June 20, 2004 and that the petitioner gave him the gun and told him to get rid of it, after stating that he had just shot at Johnson.
Petitioner's Exh. 7.
Petitioner's Exh. 1, pp. 8-9.
Petitioner's Exh. 8, p. 3.
6. Attorney Robert Berke represented the petitioner at the plea hearing. He has practiced criminal law since graduating from law school in 1992. For eight and a half years he was a public defender. Since then he has been in private practice where he handles mostly criminal matters. He has tried between fifty and sixty cases throughout his career.
7. Shortly after pleading guilty, the petitioner filed several pro se motions to withdraw his guilty pleas on the ground that they were involuntary and the result of the ineffective assistance of counsel.
Petitioner's Exh. 3, p. 3.
8. On October 23, 2006, after a hearing on the merits, at which the petitioner and Attorney Berke testified, the court, Comerford, J., denied the petitioner's motions to withdraw his guilty pleas.
Exh. 3, p. 62.
9. On that same date, the court, Comerford, J., sentenced the petitioner, in accordance with his plea agreement, to a total effective sentence of sixteen years in prison, suspended after seven years, followed by three years of probation.
Petitioner's Exh. 3, p. 71.
10. Attorney Joseph Bruckmann represented the petitioner at the hearing on his motions to withdraw his guilty pleas. He has worked in the public defender's office for approximately twenty-five years. He has tried about sixty to sixty-five cases to verdict.
11. Additional facts will be discussed as needed.
DISCUSSION I. Actual Innocence
In count one of his third amended petition, the petitioner claims that he is actually innocent of the charges to which he pleaded guilty in CR 04 200589.
The petitioner also claims that he is actually innocent of the charges in CR 04 200588. He did not, however, present any credible evidence pertaining to the factual allegations underlying these charges. The only evidence presented was his own self-serving testimony that he did not threaten Johnson. Accordingly, this claim fails.
"[T]he proper standard for evaluating a freestanding claim of actual innocence . . . is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty of the crime." (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 80-81, 967 A.2d 41 (2009). "Our Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence . . . [Our Appellate Court], however, has held that a claim of actual innocence must be based on newly discovered evidence . . . [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 . . . This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence." (Internal quotation marks omitted.) Weinberg v. Commissioner of Correction, 112 Conn.App. 100, 119, 962 A.2d 155, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009).
The first question is whether the petitioner has presented any newly discovered evidence in support of his actual innocence claim. The court heard testimony from Travon Jones, Tarnica Porter, Nantezza Jones, Phillip Scott and the petitioner regarding the factual allegations underlying the charges in CR 04 200589. The testimony of the petitioner clearly does not constitute "newly discovered" evidence. As for the testimony of the others, the petitioner asserts that it is newly discovered because his attorneys had difficulty contacting them prior to his plea hearing. At the habeas trial, Attorney Bruckmann testified that his investigator tried to no avail to contact Travon Jones and that efforts were made to contact Porter. No attempt seems to have been made to contact Nantezza Jones. As for Scott, Attorney Bruckmann testified that he read the statement that Scott gave to the police but that he did not speak to him. He opined, and this court concurs, that it is not reasonable to expect someone who has given a sworn statement to the police to recant, and admit not only that he lied to the police but that he is also guilty of the crime in question, as Scott did at the habeas trial. Accordingly, although Scott could have been contacted prior to the petitioner's plea hearing, it cannot be said that he would have recanted and admitted to the shooting at that time. Based on the above, the court finds that the petitioner has demonstrated by a preponderance of the evidence that the testimony of Travon Jones, Porter, and Scott could not have been discovered prior to his plea hearing by the exercise of due diligence and hence, that it is "newly discovered."
James Byrd also testified but the majority of his testimony was stricken as hearsay. See May 14, 2009 Habeas Trial Transcript, pp. 18-23.
Since her testimony is not helpful to the petitioner's claim, it is of no consequence whether it constitutes newly discovered evidence.
At the habeas trial, Travon Jones testified that he knows the petitioner through his aunt who has children with the petitioner's brother. As for the shooting incident that occurred on June 20, 2004, he testified that he met up with the petitioner and Porter between 11 and 12 p.m. on June 19, 2004 at his apartment in building four in the P.T. Barnum apartment complex in Bridgeport. He stated that he was not drinking and that they just sat around his apartment talking about getting a job until around 6 a.m. on June 20, 2004, at which time the petitioner left. At some point that morning they heard gunshots, went onto the porch and saw the police drive by. Travon Jones further testified that he told Johnson's mother and the public defender's investigator that the petitioner could not have fired gunshots into Johnson's apartment because the petitioner was with him at the time of the shooting. On cross examination, he admitted that he sold drugs at that time and that he has convictions for selling drugs.
Porter testified that she was sitting around drinking with Travon Jones and some other people between buildings four and five in the P.T. Barnum apartment complex around 10:30 p.m. on June 19, 2004 when the petitioner came by and joined them. At around 1:30 a.m., they went to Travon Jones' apartment. She testified that they were there for a couple of hours until around 3:30 a.m. While they were in the apartment they heard gunshots and saw the police between some of the other buildings. On cross examination, she initially testified that Travon Jones was drinking and then shortly thereafter, she testified that she could not remember if he was drinking. She further testified that there were four of them hanging out in Travon Jones' apartment, that no one was talking about jobs and that they left the apartment between 6:30 and 7 a.m., at which time the petitioner drove her home. She found out months later from the petitioner's niece that the petitioner had been arrested for the shooting. Porter testified that she told his niece that he could not have done it because he was with her. She also told a couple members of her family and the public defender's investigator.
Nantezza Jones testified at the habeas trial that she is married to Travon Jones and that in June 2004 they lived together in an apartment in building four of the P.T. Barnum apartment complex in Bridgeport. She stated that when she returned to her apartment in the early hours of the morning on June 20, 2004 she found her husband, Travon Jones, the petitioner, and Porter there. On cross examination, she admitted that she does not know who was in the apartment when the shooting incident took place because the incident occurred before she returned home.
Scott testified at the habeas trial that around 1 a.m. on June 20, 2004 he became intoxicated and a couple of hours later he started shooting a gun, which he got from the petitioner, into the air. One of the bullets accidentally went through Johnson's apartment window. He stated that he told the police that the petitioner did it because "that's what they wanted [him] to say" and because the police promised him that he would not serve any federal time for criminal possession of a firearm. He also stated that the petitioner did not have anything to do with the incident because he was not there. Specifically, he stated: "There was only like three people out there at the time and he wasn't one of them." On cross examination, he testified that he saw the petitioner around 11 p.m. on June 19, 2004 standing by himself near building twelve at the P.T. Barnum apartment complex and that he asked him for a ride to his girlfriend's house. The petitioner gave him a ride. They got to his girlfriend's house around 12 a.m. At some point thereafter, Scott testified that he took a cab back to the P.T. Barnum apartment complex. He further testified that he served three years in prison for criminal possession of a firearm and that he has several convictions for selling narcotics.
March 16, 2009 Habeas Trial Transcript, p. 52.
March 16, 2009 Habeas Trial Transcript, p. 56.
The petitioner testified at the habeas trial that "unfortunately" he did plead guilty to shooting into Johnson's apartment. He admitted to being at the P.T. Barnum apartment complex on June 19 and 20, 2004. He stated that he brought his daughter a book and toy earlier in the evening on June 19, 2004. Around 10:30 p.m. he saw Scott and gave him a ride home. He returned to the apartment complex where he later saw Scott around 12 a.m. by building six and eight. He denied ever giving Scott a gun. The petitioner further testified that after he returned he met up with Porter and then they met up with Travon Jones and went to his apartment around 1 a.m.
March 16, 2009 Habeas Trial Transcript, p. 77.
Having reviewed all of the testimony and documentary evidence, the court finds that the petitioner has not established by clear and convincing evidence that he is actually innocent of the charges to which he pleaded guilty in CR 04 200589 and that no reasonable fact finder would find him guilty of the charges. The court does not find the testimony of Travon Jones, Porter, Scott or the petitioner credible. There were a number of inconsistencies in their accounts of the events of June 19 and 20, 2004. Although the petitioner's testimony attempted to reconcile these inconsistencies, he had the benefit of testifying after having heard the testimony of Travon Jones, Porter and Scott. Moreover, both Travon Jones and Porter testified that they told several people, including the public defender's investigator, that the petitioner could not have fired a gun into Johnson's apartment that morning. Attorney Bruckmann testified to the contrary that his investigator could not contact Travon Jones and that his file does not contain any helpful information obtained from Porter. Notably, none of the people whom Travon Jones and Porter allegedly told about the events of June 19 and 20, 2004 testified at the habeas trial to corroborate their accounts.
Attorney Bruckmann testified that he does not know whether his investigator was ever successful in contacting Porter but that his file does not contain any helpful information obtained from her.
As for the testimony of Scott, his testimony that he accidentally fired a gun into Johnson's apartment on June 20, 2004 is not credible. Apart from professing his guilt and recanting his statement to the police that the petitioner had told him that he had fired a gun at Johnson, Scott's testimony more or less followed the statement that he gave to the police on June 20, 2004. In that statement, he indicated that he saw the petitioner near building twelve at the P.T. Barnum apartment complex, that he asked him for a ride to his girlfriend's apartment and that the next time he saw the petitioner the petitioner gave him the gun and told him that he had just shot at Johnson. Moreover, it strains credulity that Scott would ask for a ride to his girlfriend's apartment and then almost immediately return to the P.T. Barnum apartment complex. Similarly, Scott's testimony that he named the petitioner as the shooter because a detective promised him that he would not have to serve any federal time on the gun charge is less than believable. Despite this testimony, he testified on cross examination that his statement to the police that no one had promised or threatened him was true. Furthermore, Scott testified that there were three other people in the area when he allegedly fired the gun into the air. None of these individuals were produced to corroborate his testimony. Lastly, in light of Scott's testimony that the petitioner and he are "good friends" and the petitioner's testimony that they "were close associates," the court finds that Scott's recantation and "confession" at the habeas trial were most likely motivated by this friendship.
Petitioner's Exh. 8.
March 16, 2009 Habeas Trial Transcript, p. 64; May 14, 2009 Habeas Trial Transcript, p. 6.
Based on the above, the court concludes that the petitioner has failed to prove his claim of actual innocence.
II. Ineffective Assistance of Counsel: Attorney Berke
In count two of his third amended petition, the petitioner alleges that Attorney Berke rendered ineffective assistance by failing (1) to investigate the petitioner's cases, (2) to adequately cross examine the state's witness at the suppression hearing and (3) to properly communicate with the petitioner. In his return, the respondent alleged that the doctrine of res judicata applies to count two of the petition on the ground that the petitioner has already litigated a claim of ineffective assistance of counsel against Attorney Berke by means of his motions to withdraw his guilty pleas. The petitioner contends that a motion to withdraw a guilty plea predicated on a claim of ineffective assistance of counsel is not res judicata for purposes of a habeas corpus petition.
The respondent also raised the defense of procedural default, alleging that the petitioner is barred from raising this claim because he did not appeal from the court's judgment on his motions to withdraw his guilty pleas. Since the doctrine of res judicata is dispositive of this claim, it is not necessary for the court to address the defense of procedural default.
"The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made . . . The doctrine . . . applies to criminal as well as civil proceedings and to state habeas corpus proceedings. However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner . . . Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights . . . the application of the doctrine of res judicata . . . [is limited] to claims that actually have been raised and litigated in an earlier proceeding." (Internal quotation marks omitted.) Kearney v. Commissioner of Correction, 113 Conn.App. 223, 234, 965 A.2d 608 (2009).
A plea of guilty may be withdrawn on the ground that it "resulted from the denial of effective assistance of counsel." Practice Book § 39-27(4). In Bridges v. Commissioner of Correction, 97 Conn.App. 119, 905 A.2d 103, cert. denied, 280 Conn. 921, 908 A.2d 543 (2006), the Appellate Court affirmed the dismissal of a habeas corpus petition on the ground of res judicata because the petitioner had already raised a claim of ineffective assistance of counsel in his motion to withdraw his guilty plea, which was denied by the trial court. In dismissing the petitioner's appeal, the Appellate court explained: "[The] factual issues concerning his plea, as well as the nature of the representation afforded him by his trial counsel, already have been resolved, adversely to him, in a prior proceeding. The judgment rendered by the court with regard to the petitioner's motion for permission to withdraw his pleas constituted a judgment on the merits of the petitioner's ineffective assistance of counsel claim." Id., 121.
In the present case, prior to being sentenced, the petitioner filed several motions to withdraw his guilty pleas on the ground, inter alia, they were the result of the ineffective assistance of Attorney Berke. At the hearing on his motions, the petitioner testified as to Attorney Berke's alleged failure to properly communicate with him regarding all the charges and as to his failure to locate and call certain witnesses at the suppression hearing. Attorney Berke also testified at the hearing; his testimony was limited on account of the petitioner's refusal to waive the attorney-client privilege. At the conclusion of the hearing, the court, Comerford, J., denied the petitioner's motions to withdraw his guilty pleas. It explained: "I heard nothing today at all that would lead me to believe [the defendant] was denied effective assistance of counsel in these cases. I don't know how counsel could have proceeded with anymore diligence than he did. He investigated the witnesses that were provided to him and that were available to the investigator from the public defender office."
Petitioner's Exh. 3, pp. 3-14.
Petitioner's Exh. 3, pp. 62-63.
As in Bridges, the petitioner's claims of ineffective assistance of counsel against Attorney Berke have been resolved in the context of his motions to withdraw his guilty pleas. He had a full and fair opportunity to litigate these claims. Accordingly, pursuant to the doctrine of res judicata, the petitioner is barred from raising those same claims or those that could have been raised in the prior proceeding in the present habeas matter.
III. Ineffective Assistance of Counsel: Attorney Bruckmann
In count three of his third amended petition, the petitioner alleges the Attorney Bruckmann rendered ineffective assistance by failing to conduct a proper investigation or pursue motions for discovery, which would have produced exculpatory evidence and evidence in support of his motion to suppress. He also alleges that Attorney Bruckmann failed to present any evidence at the hearing held on the petitioner's motions to withdraw his guilty pleas other than the testimony of the petitioner and Attorney Berke.
"A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the [s]ixth [a]mendment . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; emphasis in original; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
At the habeas trial, Attorney Bruckmann testified that he was initially appointed as the petitioner's attorney in August 2004. He stopped representing the petitioner in September 2005 upon discovering that he had a conflict of interest, as he had previously represented one of the state's witnesses. During his representation of the petitioner, he took photographs of the scene where the petitioner was apprehended on suspicion of selling drugs and interviewed Antoine Crawford, the woman with whom the petitioner was talking in the lobby prior to being pat down by the police, Johnson and other people identified by the petitioner as potential witnesses. None of these people provided any helpful information. Crawford told him that the petitioner was not selling drugs on the date in question but admitted that he did flee that day and that he sold drugs at that location in the past. Johnson indicated that she was in fear of the petitioner. As discussed supra, Attorney Bruckmann tried to no avail to locate Travon Jones and did not obtain anything helpful from Porter.
Attorney Bruckmann resumed representation of the petitioner on the petitioner's motions to withdraw his guilty pleas. He testified that he reviewed the plea canvass transcript and that he met with the petitioner and went over his claims against Attorney Berke prior to the hearing on the petitioner's motions to withdraw his guilty pleas. The petitioner's main complaint against Attorney Berke related to his failure to adequately communicate with the petitioner and discuss strategy. Attorney Bruckmann testified that he did not recall believing that anyone other than the petitioner and Attorney Berke would provide relevant testimony at the hearing.
"The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense." (Internal quotation marks omitted.) Morant v. Commissioner of Correction, 117 Conn.App. 279, 303, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009). Moreover, "[t]he burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001). The petitioner has failed to make these showings.
The only allegedly exculpatory evidence that the petitioner presented at the habeas trial was the testimony of Travon Jones, Porter, Nantezza Jones and Scott. As discussed supra, the court does not find their testimony credible. Accordingly, even if Attorney Bruckmann had located and/or interviewed these witnesses it is not likely that their testimony would have changed the outcome of the petitioner's motions to withdraw his guilty pleas. That is, it is not likely that Attorney Bruckmann would have succeeded in proving that Attorney Berke rendered ineffective assistance by failing to locate these witnesses. Furthermore, the petitioner did not introduce any evidence at the habeas trial demonstrating what benefit additional investigation would have had on his motion to suppress. At the hearing on his motions to withdraw his guilty pleas, the petitioner claimed that Attorney Berke should have called Crawford and Juan Aponte, who witnessed the incident, at the suppression hearing. Neither Crawford nor Aponte testified at the habeas trial; however, Attorney Bruckmann testified that Crawford did not have any helpful information. The court cannot speculate as to the substance or the import of Aponte's testimony. "Mere conjecture and speculation are not enough to support a showing of prejudice." (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009). In short, the petitioner has failed to meet his burden in proving either deficient performance or assuming deficient performance, prejudice resulting therefrom with regards to Attorney Bruckmann's representation of him.
Petitioner's Exh. 3, pp. 12-13.
CONCLUSION
For all the foregoing reasons, judgment shall enter denying the petition for a writ of habeas corpus. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.