Opinion
No. CV 09 4003222
September 28, 2010
Memorandum of Decision
In this habeas corpus case, the pro se petitioner claims that he did not receive effective assistance of counsel on appeal from the denial of his prior habeas corpus petition.
On September 10, 1998, the petitioner pleaded nolo contendere to manslaughter in the first degree with a firearm and received a sentence of twenty years in prison. In 2004, the court, Rittenband, J.T.R., denied a habeas petition in which the petitioner claimed, among other things, that his trial counsel, attorney Burton Weinstein, rendered ineffective assistance by fraudulently inducing the petitioner to enter the nolo plea. The petitioner, then represented by attorney Donald O'Brien, appealed to the Appellate Court. The Appellate Court affirmed the habeas court's decision and the Supreme Court then denied review. Gray v. Commissioner, 99 Conn.App. 444, A.2d, 914 A.2d 1046, cert. denied, 282 Conn. 925, 926 A.2d 666 (2007). See also Gray v. Weinstein, 110 Conn.App. 763, 955 A.2d 1246 (2008) (habeas decision has collateral estoppel effect on petitioner's legal malpractice suit against trial attorney).
The petitioner now alleges that O'Brien failed to raise on appeal the claim that the habeas court applied an incorrect standard of the prejudice that a petitioner must show upon proving that his counsel was ineffective. Specifically, the petitioner argues that the habeas court applied the standard set out in Copas v. Commissioner, 234 Conn. 139, 662 A.2d 718 (1995), which requires proof that the petitioner in a guilty or nolo plea case must show a "reasonable likelihood of a different outcome at trial;" id., 166-67; and that O'Brien should have argued that the proper standard of prejudice derives from Hill v. Lockhart, 474 U.S. 52 (1985), and requires proof only that the petitioner "would have insisted on going to trial." (Internal quotations omitted.) See Gudino v. Commissioner of Correction, 123 Conn.App. 719, 723 (2010).
The respondent does not challenge the theory that the petitioner is entitled to the effective assistance of appellate habeas counsel. See Evitts v. Lucey, 469 U.S. 387 (1985) (recognizing right to effective assistance of counsel on defendant's first, direct appeal); Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992) (recognizing claim of ineffective assistance of habeas trial counsel). The respondent also does not suggest that the case can be resolved on the basis that trial counsel rendered effective assistance.
At the outset, O'Brien did raise this issue, at least briefly. In his appellate brief, O'Brien cited Hill for the proposition that the prejudice standard focused on whether the petitioner "would not have pleaded guilty and would have insisted on going to trial;" (Pet. Ex. 6 (petitioner's appellate brief) p. 19 (quoting Hill v. Lockhart, supra, 474 U.S. 58-59)); and then argued that "[t]here is no question that the plaintiff . . . would have gone to trial as he wanted to prior to the improper plea inducement of the defendant." (Pet. Ex. 6, p. 20.) Then, after quoting the Copas standard, O'Brien argued in his brief that " Copas is distinguishable in that through neglect his counsel recommended a plea. In the case at bar, Weinstein intentionally misled Petitioner to enter the plea with an expectation of a 6 year concurrent sentence." (Pet. Ex. 6, pp. 21-22.)
For purposes of this case, it is immaterial whether the petitioner pleaded guilty or nolo contendere.
Whether or not the Appellate Court seized on this relatively short section of O'Brien's thirty-six page appellate brief, it nonetheless stated, after citing both Hill and Copas, that "[t]he habeas court recognized and applied the correct standard for adjudicating the petitioner's habeas claim. It asked whether there was a `reasonable probability that if it were not for the ineffectiveness of counsel for the [petitioner], there is a reasonable probability that the outcome would have been different?'" Gray v. Commissioner, supra, 99 Conn.App. 448. Thus, the Appellate Court considered the "reasonable probability that the outcome would have been different" standard to be the "correct standard for adjudicating the petitioner's habeas claim . . ." and in effect rejected any argument that O'Brien made to the contrary. Therefore, the Appellate Court has apparently ruled on the precise issue that the petitioner sought to present on appeal and found that the petitioner cannot prevail. Under these circumstances, the petitioner cannot establish ineffective assistance of appellate counsel. See Small v. Commissioner of Correction, 286 Conn. 707, 720, 946 A.2d 1203, cert. denied, 129 S.Ct. 481 (2008).
Further, even if O'Brien had developed the argument with more focus and detail, it would not have been successful. Although the Appellate Court has not always quoted the "different outcome" component of the prejudice test in guilty plea cases; see Gudino v. Commissioner of Correction, supra, CT Page 19090 123 Conn.App. 723; Faraday v. Commissioner of Correction, 107 Conn. App. 769, 773, 946 A.2d 891 (2008); it remains an integral part of Hill and not merely a separate prong added by Copas. See Copas, supra, 234 Conn. 151. Hill itself held that, at least where the alleged error of counsel is a failure to investigate, discover potentially exculpatory evidence, or advise the client of defenses, the determination of prejudice will ultimately turn "in large part on a prediction whether the evidence likely would have changed the outcome of a trial." Hill, supra, 474 U.S. 59.
The petitioner suggests that, because this case does not involve a failure to discover evidence or defenses, the "different outcome" test does not apply. But the authority the petitioner presents does not support his proposition. It is true that, in Crawford v. Commissioner of Correction, 285 Conn. 585, 593-600, 940 A.2d 789 (2008), cited by the petitioner, our Supreme Court omitted to quote the "different outcome" component in summarizing the prejudice test. The Court nonetheless decided that counsel had rendered effective assistance and thus ultimately did not reach the issue of what prejudice standard applies. In cases cited by the petitioner such as Shelton v. Commissioner of Correction, 116 Conn.App. 867, 873-800, 977 A.2d 714, cert. denied, 293 Conn. 936, 981 A.2d. 1080 (2009); Mock v. Commissioner of Correction, 115 Conn.App. 99, 105, 971 A.2d 802, cert. denied, 293 Conn. 918, 979 A.2d 490 (2009); and Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 722-23, 789 A.2d 1046 (2002), the Appellate Court's statement of the prejudice test focused only on the point that the petitioner must show a "reasonable probability" that counsel's deficient performance altered the outcome of the case rather than the higher standard that counsel's deficiency "more likely than not" altered the outcome. They did not dispense with the "different outcome" component. Finally, in Williams v. Taylor, 529 U.S. 362, 391-92 (2000), which the petitioner also cites, the United States Supreme Court did state that there are certain situations in which a court should presume prejudice. However, those situations are limited to structural defects in the trial such as "actual or constructive denial of the assistance of counsel altogether." Strickland v. Washington, 466 U.S. 668, 692 (1984). Here the petitioner at least had counsel in the original trial court and cannot claim a structural defect.
The Crawford court stated the following in its dictum: "Under the test in Hill, in which the United States Supreme Court modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, supra, 474 U.S. 59." (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, supra, 285 Conn. 598.
In Shelton, which is representative, the Court stated: "To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial . . . Reasonable probability does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome . . ." (Emphasis added; internal quotation marks omitted.) Shelton v. Commissioner of Correction, supra, 116 Conn.App. 874-75. The reference to "outcome" can only refer to the "trial" mentioned in the previous sentence, thus in effect requiring proof of lack of confidence in a guilty verdict at trial.
Further, Judge Rittenband ultimately rejected claims that Weinstein had a cognizable conflict of interest and that the petitioner's nolo plea was involuntary, thus defeating any other possible claim of structural error. The petitioner does not claim that appellate counsel was ineffective in failing to challenge these rulings on appeal.
Logically, it makes no sense to delete the Copas "different outcome" test merely because the petitioner here claimed in his prior habeas petition that his trial attorney improperly persuaded him to plead guilty, as opposed to the reported cases in which a prisoner claims that his trial counsel failed to discover evidence or defenses. The precise reason why counsel was ineffective in inducing the petitioner to plead guilty — whether it is bad advice or failure to investigate — is immaterial if the petitioner is actually guilty. In either scenario, the petitioner is not truly prejudiced unless there is a reasonable probability that he would achieve some measure of success at trial. Thus, there was no ineffective assistance in, or any prejudice resulting from, any failure of O'Brien to argue at greater length that the Copas "different outcome" test did not apply in this case.
One exception might arise if counsel recommended that the client reject a more favorable plea offer; see Ebron v. Commissioner Correction, 120 Conn.App. 560, 992 A.2d 1200, cert. granted, 297 Conn. 912, 995 A.2d 954 (2010); or failed to communicate a more favorable offer to the client; see Saunders v. Commissioner of Correction, 83 Conn.App. 543, 851 A.2d 543, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004); and in either case the client would have accepted the offer. In those cases, the client would have achieved a "different outcome" by pleading guilty and accepting the more favorable offer.
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.