Opinion
No. CV94-0001817
April 25, 2003
Memorandum of Decision
This petition for a Writ of Habeas Corpus (#102) was originally filed on February 15, 1994 and thereafter amended five times with the final amendment being June 13, 2002 (#121). The petitioner has been represented by five separate attorneys during the pendency of this action. His latest attorney, Mr. Sebastian DeSantis, is the counsel of record and the attorney who tried the matter before the Court. The Certificate of Closed Pleadings (#128) was flied with the Court and the case finally claimed for the trial list on January 15, 2003. The matter thereafter immediately came on for trial on January 15, 2003, January 31, 2003, February 21, 2003, and finally on April 1, 2003. The parties were permitted to file post-trial briefs no later than April 22, 2003. The Court received testimony from the Honorable Michael Sheldon; the petitioner Robert Grant; Attorney Donald Freeman; Inmate Robert Gordon; Inmate Ronald Daniel and, retired Assistant State's Attorney Warren Maxwell. As explained in further detail, the petition for a Writ of Habeas Corpus is denied.
Attorney DeSantis, a named partner with the law firm of Sabilia DeSantis in New London, CT accepted appointment as a special public defender for the petitioner and entered his appearance on April 9, 2001. There has obviously been a long delay in getting this matter to trial, however, the Court notes that Attorney DeSantis was conscientious in meeting the established dates for the filing of pleadings and showed due diligence in prosecuting the matter on his client's behalf.
Judge Sheldon is now a Judge of the Superior Court, State of Connecticut, however, in 1990 was a Professor of Law at the University of Connecticut School of Law and represented the petitioner in his appeal.
Factual and Procedural Background
The petitioner was originally committed to the custody of the Commissioner of Corrections on March 21, 1988 as a result of his arrest and charges of Conspiracy to Commit Murder in violation of CGS §§ 53a-48 and 53a-54a and Accessory to Murder in violation of CGS §§ 53a-8 and 53a-54a. The petitioner has since remained in the continuous custody of the respondent. On November 13, 1990, following a trial before a twelve-member jury, the petitioner was acquitted of the count of Conspiracy to Commit Murder but found guilty of being an Accessory to Murder. On January 11, 1990 the Court, Corrigan, J, sentenced him to a term of twenty-five (25) years of incarceration. The petitioner was represented throughout the criminal trial by Attorney Donald Freeman.
The Connecticut Supreme Court decided the petitioner's direct appeal of his conviction on July 23, 1991. Attorney Michael Sheldon of the University of Connecticut School of Law represented the petitioner on this appeal. Ultimately, the petitioner's conviction was affirmed. See State v. Grant, 219 Conn. 596 (1991). As noted by the Connecticut Supreme Court in its decision, a jury could reasonably have found the following facts regarding the underlying crimes to be true.
"On the evening of March 19, 1988, the victim, Marcel Malcolm, was found `slumped over' the seat of his white Nissan automobile at the intersection of Harold and Lyme Streets in Hartford. He was transported to the hospital where he was pronounced dead. The cause of death was certified as shotgun wounds to the head and neck. The manner of death was ruled a homicide.
Two witnesses for the state, Robert Gordon and Marc Osborne, testified about the events that occurred immediately prior and subsequent to the shooting. Gordon testified that the victim was involved in the selling of cocaine and that an association existed between the victim and Ronald Daniels, whereby Daniels would sell drugs for the victim. Disagreements had arisen over $400 that Daniels owed to the victim. Between 5 and 6 p.m. on March 19, 1988, Daniels called Gordon, who, at the time, was living in Daniels' house with Daniels' family, and asked him to take the victim to a certain location at Lyme Street. When the victim appeared at Daniels' house, he and Gordon drove to Lyme Street in the victim's white Nissan automobile.
Osborne testified that at approximately 5:45 p.m. on March 19, 1988, he received a telephone call at his home from Daniels, requesting the use of Osborne's shotgun. When Osborne asked Daniels why he wanted the shotgun, Daniels responded that he "wanted to scare someone." Between approximately 6:45 and 7 p.m., Daniels arrived at Osborne's house and took the shotgun and three shells. Daniels put the shotgun down his sweatpants and zipped up his jacket and then he and Osborne left the house and proceeded on foot west on Tower Avenue toward its intersection with Palm Street. Before they reached Palm Street, a man, later identified as the [petitioner], drove up in a dark colored Mazda automobile and Daniels "flagged it down." Osborne got in the back seat and Daniels got in the passenger seat.
Although the Supreme Court did not include this in its opinion, from the evidence produced at the habeas trial, this Court is able to conclude that the petitioner was driving a burgundy colored Mazda RX-7 with Massachusetts marker plates. In all likelihood, this was a stolen vehicle, although it is unclear whether the petitioner was the person who had stolen the vehicle or was simply driving it. At any rate, the petitioner's trial defense counsel was successful in having a motion in limine granted that forbade the state from making reference to the Mazda as a stolen vehicle.
Once in the car, there was some whispered conversation between the [petitioner] and Daniels, but nothing that Osborne could hear.
Without any instructions from Daniels, the [petitioner] proceeded west down Tower Avenue, took a right onto Palm Street going north and another left onto Harold Street. About halfway between Palm and Lyme Streets, Daniels told the [petitioner] to pull over, and Daniels and Osborne got out of the [petitioner]'s automobile. The [petitioner] then proceeded west down Harold Street and made a right onto Lyme Street. Daniels and Osborne continued to walk down Harold Street until they reached the intersection of Lyme Street, where they waited until the white Nissan driven by the victim pulled up and parked.
After the victim arrived and parked his car, Gordon, who was in the passenger seat, got out and walked over to Daniels, who had proceeded to the driver's side of the vehicle. An argument developed between the victim and Daniels, after which Daniels pulled the shotgun out of his sweat pants, told the victim he had five seconds and proceeded to count backwards from five. After the countdown, Daniels fired three shots into the victim.
Within seconds of the shooting, the [petitioner]'s dark colored Mazda automobile reappeared and pulled up next to the victim's car. After the [petitioner] gave certain instructions to Daniels, all three men, Daniels, Gordon and Osborne, got into the [petitioner]'s automobile and drove away from the scene." See State v. Grant, 219 Conn. 596, 597-99 (1991).
The petitioner now seeks a writ of habeas corpus from this Court on three grounds: (1) his trial defense counsel did not provide effective representation in violation of the 6th Amendment to the United States Constitution and Article 1, § 8 of the Connecticut Constitution; (2) the state attorney prosecuting the case engaged in prosecutorial misconduct; and (3) his appellate defense counsel, Attorney Michael Sheldon, did not provide the effective assistance of counsel in preparing and arguing the appeal.
Attorney Donald Freeman represented the petitioner at his criminal trial. He is a member of the bar of the state of Connecticut having been admitted to practice in 1976. Mr. Freeman did interview the other three men who were alleged to have been involved with this crime, Robert Gordon, Marc Osborne, and Ronald Daniel. In addition, the Hartford state's attorney office maintains what is called an "open file" policy in that defense counsel have access to those documents (in general, warrants, police reports, witness statements, etc.) in the prosecutor's file. Mr. Maxwell, the assistant state's attorney assigned to prosecute the petitioner, was particularly open with discovery. Consequently, Attorney Freeman did not have any difficulties in seeing the evidence that had been arrayed against his client. After conducting his pre-trial investigation, Attorney Freeman concluded that the state had a very weak case and that there was a good chance that the petitioner would be acquitted at trial.
Given the weakness of the state case, Attorney Freeman devised a trial strategy that the petitioner had no foreknowledge of the shooting that was to take place. In furtherance of that strategy, Attorney Freeman advised the petitioner that he should not take the stand and testify in his own behalf. This advice was based upon the weakness of the government case and the potential for cross-examination by the state. The petitioner had several felony convictions, including larceny that would, in all likelihood, have been used to undermine the petitioner's credibility. The petitioner agreed that this was the proper course to take and made the decision that he would not testify. Attorney Freeman also decided against calling the actual shooter, Ronald Daniels, as a witness on behalf of the petitioner. He reached this decision after interviewing Mr. Daniels and concluding that his testimony would not be helpful to the petitioner's cause. Consequently, although Attorney Freeman did conduct vigorous cross-examination of the state witnesses, including Osbourne and Gordon, both of whom were testifying under grants of immunity, the defense did not present any evidence in its case in chief.
Transctipt of habeas trial, 1/31/03, p. 13:
"[Atty. Freeman] . . . I think the strategy at trial was to simply show that Mr. Grant had no prior knowledge that the shooting was going to go down. That was the defense, that he picked up the shooter, wasn't aware of the weapon, drove to a place. Mr. Grant left, there was a shooting. Mr. Grant then returned, but picked up the shooter only out of panic and had no knowledge that the shooting was going to go down. That was primarily the defense, that he had no knowledge, no knowledge that the shooting was going to go down."
State's Attorney Warren Maxwell served as a prosecutor in the Judicial District of Hartford for twenty-five years and was assigned to prosecute the petitioner's case. In the course of his preparations for trial, Attorney Maxwell met with Robert Gordon in his office at the courthouse. Mr. Maxwell was accompanied by the inspector for the state's attorney office as well. Attorney Maxwell informed Mr. Gordon that he had been granted immunity from prosecution for whatever role he might have played in this incident and then gave him a copy of his statement that he had given to the police. After Mr. Gordon had had the opportunity to review his statement, Attorney Maxwell went over the questions he intended to ask him at trial. At no time did Attorney Maxwell tell Mr. Gordon to lie or suggest what the proper response to a question should be. He did not threaten Mr. Gordon in any way.
Professor Michael Sheldon ran the Appellate Law Clinic at the University of Connecticut Law School. The purpose of this clinic was to provide representation to indigent defendants before the State Appellate and Supreme Court and to provide valuable legal training and experience to the University of Connecticut law students involved with the clinic. Professor Sheldon was in charge of the team that prepared and argued the petitioner's appeal and was the primary drafter of the appellate brief. The major issue presented to the Supreme Court was an argument that there was an insufficiency of evidence to support the finding of guilty for being an Accessory to Murder. The Supreme Court rejected this claim and the petitioner's 1990 conviction was upheld.
Discussion
It is important at the outset to understand 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 . . . 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, 229 Conn. 397 at 422-23 (1994).
I. Denial of Effective Trial Defense Counsel
In considering the alleged deficient performance of the petitioner's trial defense counsel, his 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.
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. It is indisputable fact that many times if one had foreknowledge of the outcome; different courses might well have been taken. Likewise, a habeas court knowing the outcome of the trial "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. Commisioner of Corrections, 47 Conn. App. 253 at 264 (1979), cert. den. 243 Conn. 967 (1998). "A fair assessment of an attorneys 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).
This admonition to avoid playing the "Monday morning quarterback" is particularly a propos in the instant case. It is important to remember that the petitioner was acquitted of the most serious charge, Conspiracy to Commit Murder, although he was convicted of the lesser, albeit still quite serious, charge of being an Accessory to Murder. This Court has benefited from having read the transcript of the petitioner's original trial in 1990 and from having heard the testimony of Ronald Daniel and the petitioner himself. It is clear from the transcript that Attorney Freeman did conduct a vigorous cross-examination of both Mr. Gordon and Mr. Osbourne. Even so, the petitioner now criticizes him for not doing more. However, the great risk was that by conducting more cross-examination, the petitioner may have found himself convicted of Conspiracy as well. Attorney Freeman made a well-reasoned tactical decision to limit the cross-examination as he did because it was in his client's best interests to do so. It is hard to say, nearly fourteen years later, that his tactical decision was wrong, particularly given the fact that the petitioner was partially acquitted.
The following excerpt from the Record of Trial in the habeas case is particularly persuasive:
"[Atty. Freeman] . . . My recollection is Mr. Gordon and Mr. Osbourne said nothing during their testimony to inculpate Mr. Grant in a conspiracy and my — when a witness has testified and hasn't hurt my client, then I don't go and ask a lot of questions to give them an opportunity to hurt my client, and my recollection is, vague as it might be after fourteen years, but my recollection is Mr. Osbourne and Mr. Gordon did not hurt my client and, therefore, my questions were limited to them." Transcript of habeas trial, 1/31/03 p. 22
This Court is convinced that Attorney Freeman also made a wise and sound tactical decision in not calling Ronald Daniel to testify on the petitioner's behalf. Assuming that Mr. Daniel would have testified at the petitioner's trial as he testified at the habeas trial, the Court concludes that there is a substantial likelihood that Mr. Daniels' testimony would not have had the effect of exculpating the petitioner from the Accessory charge of which he was convicted and would have greatly increased the probability of conviction on the Conspiracy charge. It is true that Mr. Daniel testified that nobody (including himself) knew that the shooting was going to occur and that he just happened to encounter the petitioner on the way to the fatal rendezvous. This, of course, is exculpatory in regard to Mr. Grant. However, there are other significant matters that call Mr. Daniels' credibility into question.
As a witness, Mr. Daniels was sorely lacking in credibility. First, even before the murder of Mr. Marcel, Mr. Daniels was a convicted felon two times over. This fact, in and of itself, would undoubtedly have been used by the prosecution to impeach his credibility. Second, Mr. Daniels admitted that he had already been convicted of the murder and had received a lengthy prison term. He further testified that the petitioner was a friend of his and that he did not want to see him spend his life behind bars. To cap this off, Mr. Daniels conceded that he had been approached by the petitioner while he was still awaiting trial and asked to provide an exculpatory statement. The prosecution would have been able to have undermined his credibility by showing his lack of trustworthiness and the possibility of collusion between the petitioner and Mr. Daniels.
See Connecticut Code of Evidence § 6-7a. The Court recognizes that this Code was not effective until January 1, 2000, however, unlike the Federal Rules of Evidence, the Connecticut Code is essentially a restatement of the common law of evidence here in Connecticut. As such, this section clearly reflects the state of the common law as it existed at the time of the petitioner's trial.
Even the facts to which Mr. Daniels would have testified might well have been harmful to the petitioner's case. Mr. Daniels testified at the habeas trial that he had no idea that he was going to shoot the victim when he left Mark Osbourne's house on the evening of March 19, 1988. He said that there was a debt of $400.00 owed to the victim and that he was going to meet with the victim to discuss this debt. Apparently being unable to come up with the $400.00 in cash, while he was at the Osbourne residence, Mr. Daniels came up with the idea to use a Mossberg shotgun owned by Mark Osbourne as "collateral" to secure the debt. Before leaving the house, Mr. Osbourne demonstrated the use of the weapon to Mr. Daniels and they loaded three rounds into it. When they left, Daniels hid the weapon in his jacket. The Mossberg shotgun was described as being at least two feet in length with a pistol grip instead of a stock. The weapon was not "sawed off" and had a full length barrel. The petitioner was driving a Mazda RX-7, a two-seat sports car, when Mr. Daniels and Mr. Osbourne asked him for a ride to the crime scene. Mr. Osbourne got into the back seat and Mr. Daniels sat in the front passenger seat. It is most unlikely that Mr. Daniels would have been able to sit in the car with a two-foot shotgun shoved into his waistband so it is quite likely that he would have had to remove the shotgun and expose it to the petitioner's view.
It is unclear as to who actually owed the $400.00 to Mr. Marcel. Mr. Daniels stated that it was actually Mr. Osbourne's debt, but that Mr. Marcel felt the debt to be that of Mr. Daniels. However, from all of the other evidence that was adduced at the original trial and the habeas trial, it is reasonable to believe that Mr. Marcel had given $400.00 worth of cocaine to Mr. Daniels who passed it onto Mr. Osbourne. It would appear as if Mr. Marcel never received his $400.00 and was holding Mr. Daniels responsible.
The believability of the plan to use the shotgun as collateral is seriously undermined by the operating lessons that were given to Daniels and in particular the decision to load the weapon ostensibly after the decision to use it as collateral was made. Even Mr. Daniels recognized the incredibility of this in this exchange that took place at the habeas trial
Q. Why, if you were going to use the weapon only as collateral did you have it loaded?
A. That's a good idea, your Honor. That's a good question. I can't even answer that question. I mean, I don't know. I mean, at that time, you know, I wasn't even thinking about that. That's just something that happened, your Honor.
Transcript of habeas trial, 4/1/03, p. 40.
The presentation of this testimony may well have had the effect of convincing the jury that the petitioner was well aware that there was to be a murder and that he was a coconspirator. By no stretch of the imagination can this potential testimony by Mr. Daniels be described as exculpatory so it could not possibly have assisted the petitioner had it been presented to the jury. In fact, the opposite is most likely true; this evidence would have been quite damaging. So, it is clear that Attorney Freeman's decision not to call Ronald Daniels was sound and in keeping with his trial strategy. It is not even 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).
Attorney Freeman also gave good advice to the petitioner in arguing against his taking the stand himself. First of all, the decision as to whether a defendant testifies is a decision that is always up to the individual defendant, although the advice of counsel should weigh heavily in that decision. There were significant facts arguing against having the petitioner testify. First, he, like Mr. Daniels, was also a convicted felon. Second, he was driving a stolen automobile with out-of-state marker plates. Finally, from his testimony at the habeas trial, it is clear that Mr. Grant did not present himself as a highly credible witness. It is, of course, possible that the petitioner could have confronted these weaknesses in his credibility head on by admitting them on direct testimony and trying to convince the jury that while he may have done bad things in the past, he was not guilty of this crime. This is a risky tactic, however, because had he failed to do so, he would likely have been convicted on the conspiracy charge as well. Given that Attorney Freeman had a sound basis for the tactical decision he made to advise against the petitioner testifying, coupled with the petitioner's deciding not to testify himself, this Court will not attempt to second guess that decision.
Attorney Freeman dearly recognized this when he testified at the habeas trial, January 31, 2003, ROT, p 15. "[the petitioner] was in agreement that he should not testify. Of course, he's relying on counsel's advice and it was my advice that he should not testify. But certainly it is always the client's decision in the end. The client decides that. The lawyer recommends, the client decides."
There is no merit to any other of the alleged deficiencies by trial defense counsel. Hindering prosecution is not a lesser-included offense to being an Accessory to Murder. Even if it were, Attorney Freeman again made a tactical decision not to seek any instructions on lesser-included offenses because of the weakness of the state's case.
II. Prosecutorial Misconduct
The burden of proof in a habeas petition rests with the petitioner. `There simply is no credible evidence of any prosecutorial misconduct on the part of Attorney Maxwell. The only piece of evidence that even remotely raises it is the testimony of Inmate Robert Gordon. Mr. Gordon was a particularly incredible witness whose believability was extremely poor. The petitioner has fallen woefully short of meeting his burden of proof on this second count.
III. Ineffective Assistance of Appellate Counsel
The petitioner has alleged that his appellate defense counsel was ineffective in not raising the issue of the trial court's instructions on appeal. This complaint can, and indeed must be raised, if at all, through the filing of a habeas petition. "When a petitioner raises a claim of ineffective assistance of appellate counsel because his attorney did not raise an issue on direct appeal, the deliberate bypass standard should be utilized . . . [However] any claim invoking ineffective assistance of appellate counsel automatically satisfies the deliberate bypass requirement." Valeriano v. Bronson, 209 Conn. 75 at 85 (1988).
This Court recognizes that the "deliberate bypass" standard has been supplanted by the "cause and prejudice" standard. See Johnson v. Commissioner of Correction, 218 Conn. 403 (1991)
The standards for effectiveness of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984) apply with equal force to appellate counsel. In order to prevail in the instant habeas petition, then, the petitioner must prove first that he was denied the effective assistance of appellate counsel in that not only could his appellate counsel have raised the prosecutorial misconduct issue on direct appeal, they should have done so. This will necessarily require a showing that his appellate counsel's performance "was so deficient that it fell below the standard of reasonably effective assistance; and, . . . that these errors deprived the defendant of a fair appeal and caused an unreliable conviction to stand." Valeriano v. Bronson, 209 Conn. 75, at 82 (1988). Then, the petitioner must prove that if the instruction issue had been raised on direct appeal, there was a reasonable likelihood that he would have prevailed upon that issue on direct appeal.
A petitioner must prevail upon both prongs of the Strickland test in order to have a petition granted. "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).
The petition for a writ of habeas corpus is not a substitute for a direct appeal. "We have repeatedly and emphatically stated that habeas corpus cannot be used as an alternative to a direct appeal. Blue v. Robinson, 173 Conn. 360 (1977); Vena v. Warden, 154 Conn. 363 (1966); Wojculewicz v. Cummings, 143 Conn. 624 (1956)." What this means is that the petitioner cannot, as a sole basis for the granting of the habeas petition, allege that he was convicted as a result of an issue that he could have raised on direct appeal. However, he may collaterally raise federal constitutional claims in a habeas corpus proceeding even though he has failed to appeal his federal constitutional claims directly . . . if he alleges and proves, by a fair preponderance of the evidence, facts which will establish that he did not deliberately bypass the orderly procedure of a direct appeal." Vena v. Warden, 154 Conn. 363 at 366 (1996).
This Court recognizes that the "deliberate bypass" standard has been supplanted by the "cause and prejudice" standard. See Johnson v. Commissioner of Correction, 218 Conn. 403 (1991)
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 attorneys 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).
This is particularly true when one is attacking the decision of appellate counsel to not go forward on an issue on appeal. "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745 at 751-52 (1983). Simply because there is an appellate issue that could be raised does not necessarily mean that it should be raised. "There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review . . . A brief that raises every colorable issue runs the risk of burying good arguments in a verbal mound of strong and weak contentions." Jones v. Barnes, supra at 752-53. Moreover, it is inappropriate "for judges to second guess reasonable professional judgments and impose on appointed counsel a duty to raise every `colorable' claim suggested by a client." Jones v. Barnes, supra.
Even were this Court to disregard the admonition in Jones and enter the dangerous minefield of substituting its judgment for the judgment of the appellate counsel; there was a good reason for the appellate counsel to not raise the issue of improper instructions. The most fertile area in which to appeal was to argue the insufficiency of the evidence. Indeed, much of the habeas trial was centered around that proposition. There is no way that Professor Sheldon can be criticized for focusing on what is clearly the central issue in this entire case. His representation was well within the bounds of effective representation.
Appellate Counsel must carefully pick the ground upon which he or she elects to stand and fight. "One of the first tests of a discriminating advocate is to select the question, or questions, that he will present orally. Legal contentions like the currency depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one . . . [E]xperience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one." Justice Jackson, "Advocacy before the United States Supreme Court," 25 Temple L.Q. 115 at 119 (1951).
Accordingly, this petition for a Writ of Habeas Corpus is denied.
S.T. Fuger, Jr., Judge