Opinion
CV134005181
06-20-2018
Darel EDWARDS (Inmate #247067) v. WARDEN
UNPUBLISHED OPINION
OPINION
Kwak, J.
The petitioner, Darel Edwards, initiated this petition for a writ of habeas corpus, claiming that his habeas counsel provided him ineffective legal representation. The petitioner seeks an order from the court vacating his convictions and ordering a new trial. The court heard evidence on February 22, 2018. Having considered the credible evidence and the arguments of the parties, the court denies the petition.
I
PROCEDURAL HISTORY
On September 27, 2003, the petitioner was arrested and charged with assault in the first degree with a firearm in violation of General Statutes § 53a-59(a)(5), carrying a pistol without a permit in violation of General Statutes § 29-35(a) and criminal possession of a firearm in violation of § 53a-59(a)(5). The petitioner was also charged with two sentencing enhancements: persistent felony offender in violation of General Statutes § 53a-40(f) and committing a felony while armed with a firearm in violation of General Statutes § 53a-202k. On July 2, 2004, following a jury trial, the petitioner was found guilty on the first degree assault and carrying a pistol without a permit charges. On that same date, the petitioner pleaded guilty to the criminal possession of a firearm charge and the two sentencing enhancements. The petitioner was represented at his criminal trial by Attorney Joseph Lopez.
On December 17, 2004, the trial court, Licari, J., sentenced the petitioner to a total effective sentence of twenty years of imprisonment. The petitioner’s convictions were affirmed on direct appeal. State v. Edwards, 99 Conn.App. 407, 913 A.2d 1103, cert. denied, 281 Conn. 928, 918 A.2d 278 (2007). The petitioner was represented at his direct appeal by Attorney Daniel Krisch. The following findings of the Appellate Court are relevant to a disposition of the instant petition:
At approximately 9 p.m. on July 27, 2003, the defendant and three other men drove to an apartment building at 316 Blatchley Avenue in New Haven. A group of people were standing outside that building, including the defendant’s girlfriend, Janine Bordeaux, and DeJuano Wells. Bordeaux and Wells appeared to be arguing with each other. The defendant then confronted Wells. After arguing with Wells briefly, the defendant retrieved a gun from the car in which he had arrived. He shot Wells several times, wounding him in the buttocks and legs, and then fled the scene. Approximately two months later, the defendant was arrested.State v. Edwards, supra, 99 Conn.App. 409.
The petitioner brought his first habeas petition, last amended on September 18, 2009, alleging claims of ineffective assistance of counsel as to his trial counsel, Attorney Lopez, and his appellate counsel, Attorney Krisch. The petitioner was represented by Attorney Cheryl Juniewic. The habeas court, Nazzaro, J., denied the petition from the bench on July 27, 2010. The petitioner did not appeal the habeas court’s decision.
The petitioner initiated the present habeas petition on January 31, 2013. In his one count amended petition, filed on May 1, 2015, the petitioner claims that his habeas counsel, Attorney Juniewic, was ineffective in failing to raise the claim that his trial counsel, Attorney Lopez, was ineffective in failing to ensure that the judge sentenced the petitioner properly under the sentencing enhancement for a persistent felony offender. The respondent filed a return on June 9, 2015, leaving the petitioner to his proof and asserting the special defenses of procedural default, res judicata and abuse of the writ.
A trial was held on February 22, 2018. Prior to the commencement of trial, the respondent made an oral motion to dismiss the petitioner’s petition, which the court denied. The petitioner called Attorney Juniewic, Attorney Lopez and himself as witnesses. Both parties presented exhibits to the court.
II
DISCUSSION
"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)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
The petitioner has the burden to establish that "(1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, at 466 U.S. 694.
"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.’ " Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, at 466 U.S. 687. "It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel’s acts or omissions were so serious that counsel was not functioning as the ‘counsel’ guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial." Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008). When assessing trial counsel’s performance, the habeas court is required to "indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ..." Strickland v. Washington, supra, at 466 U.S. 689.
Under the second prong of the test, the prejudice prong, the petitioner must show that "counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012). Ultimately, "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, at 466 U.S. 686.
"The use of a habeas petition to raise an ineffective assistance of habeas counsel claim, commonly referred to as a ‘habeas on a habeas,’ was approved by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992). In Lozada, the court determined that the statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51-296(a) includes an implied requirement that such counsel be effective, and it held that the appropriate vehicle to challenge the effectiveness of habeas counsel is through a habeas petition." (Footnote omitted.) Sinchak v. Commissioner of Correction, 126 Conn.App. 684, 686-87, 14 A.3d 343 (2011).
The Appellate Court explained that when the Strickland standard is " ‘applied to a claim of ineffective assistance of prior habeas counsel, [it] requires the petitioner to demonstrate that his prior habeas counsel’s performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceedings ... [T]he petitioner will have to prove that one or both of the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial ...’ Harris v. Commissioner of Correction, 108 Conn.App. 201, 209-10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). ‘Therefore, as explained by our Supreme Court in Lozada v. Warden [supra, 223 Conn. 834], a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of [trial] counsel must essentially satisfy Strickland twice: he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his [trial] counsel was ineffective.’ ... Ham v. Commissioner of Correction, 152 Conn.App. 212, 230, 98 A.3d 81, cert. denied, 314 Conn. 932, 102 A.3d 83 (2014). ‘We have characterized this burden as presenting a herculean task ..., Alterisi v. Commissioner of Correction, 145 Conn.App. 218, 227, 77 A.3d 748, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013)." Mukhtaar v. Commissioner of Correction, 158 Conn.App. 431, 438-39, 119 A.3d 607 (2015). Therefore, pursuant to the foregoing case law, in order to set forth a prima facie case of ineffective assistance of habeas counsel on the ground of ineffective assistance of underlying counsel, the petitioner must set forth a prima facie case of ineffective assistance of underlying counsel.
The petitioner alleges that Attorney Juniewic was ineffective for failing to raise the claim that Attorney Lopez was ineffective for failing to ensure that the judge sentenced the petitioner properly under the sentencing enhancement for a persistent felony offender. Specifically, the petitioner alleges that Attorney Lopez should have ensured that the trial court make a determination that the enhancement of the petitioner’s sentence as a persistent felony offender was made in the public interest as was required by General Statutes § 53a-40(f) (now General Statutes § 53a-40(g) ) at the time of the sentencing, and that the petitioner knowingly waived a jury determination as to this issue.
The General Assembly subsequently amended § 53a-40, effective January 25, 2008, to eliminate the public interest finding altogether. See Public Acts, Spec. Sess., January 2008, No. 08-1, § 7.
Our Supreme Court has recognized that "the persistent felony offender statute is a sentence enhancement provision, and not an independent criminal offense," and therefore a defendant’s plea waives "his right to a jury trial, not only with respect to the factual predicate of whether he was a persistent felony offender, but also with respect to the issue of whether his extended incarceration was in the public interest." (Internal quotation marks omitted.) State v. Michael A., 297 Conn. 808, 821, 1 A.3d 46 (2010); see also State v. Reynolds, 126 Conn.App. 291, 308, 11 A.3d 198 (2011) (concluding "defendant’s guilty plea necessarily encompassed a waiver of the right to a jury trial on the public interest factor.") A review of the transcripts discloses that the trial court’s canvass of the petitioner during the proceedings was sufficient pursuant to the controlling case law. Moreover, Attorney Lopez credibly testified at the habeas trial that he reviewed the public interest element with the petitioner before the petitioner pleaded guilty. Furthermore, the sentencing transcript reveals that the trial court, Licari, J., expressly considered the public interest factor in sentencing the petitioner as a persistent felony offender.
Pursuant to the foregoing, the court finds that the petitioner has failed to sustain his burden of demonstrating that Attorney Lopez’s performance was deficient. Because the court finds that Attorney Lopez’s performance was not deficient, it need not address whether the petitioner was prejudiced thereby. See King v. Commissioner of Correction, 73 Conn.App. 600, 602-03, 808 A.2d 1166 (2002) ("[b]ecause both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner’s claim if he fails to meet either prong"), cert. denied, 262 Conn. 931, 815 A.2d 133 (2003). As the petitioner has failed to sustain his burden of establishing that Attorney Lopez’s performance relating to the persistent felony offender sentencing enhancement constituted deficient performance, his claim of ineffective assistance against Attorney Juniewic as to this issue must be denied.
III
CONCLUSION
Accordingly, the petitioner’s habeas petition is denied.