Opinion
CV134005155S
05-04-2016
Michael Hazel (#312521) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Hon. Vernon D. Oliver, J.
The petitioner, Michael Hazel, initiated this petition for a writ of habeas corpus, claiming that his underlying counsel provided him ineffective legal representation related to his criminal matter and direct appeal. He further claims due process violations. He seeks an order of this court vacating his convictions and returning his matters to the criminal court for further proceedings. The court finds the issues for the RESPONDENT and DENIES the petition.
I
Procedural History
On July 14, 2005, in the Waterbury Judicial District, the petitioner after jury trial in the matter of State v. Michael Hazel, docket number CR03-0322522, was found guilty of: attempt to commit murder in violation of Connecticut General Statutes § 53a-49(a)(2) and 53a-54a; assault in the first degree in violation of General Statutes § 53a-59(a)(1); conspiracy to commit assault in the first degree in violation of General Statutes § 53a-59(a)(1) and 53a-48(a); criminal possession of a firearm in violation of General Statutes § 53a-217(a)(1); and carrying a pistol without a permit in violation of General Statutes § 29-35(a). On October 21, 2005, the trial court (Cremins, J.) sentenced the petitioner to a total effective sentence of twenty years to serve, followed by five years special parole. Attorney Michael Gannon represented the petitioner.
The petitioner appealed the conviction and the appellate court affirmed the judgment of the trial court. In so doing, that court reached the following relevant conclusions.
The jury reasonably could have found the following facts. At approximately 2 a.m. on July 6, 2003, the victim, David Rogers, and his brother, Delton Rogers, went to Horace's Market in Waterbury to purchase beer. The victim had a stick in his hand as he entered the store. Walter Williams asked if the victim planned to hit him with the stick, which the victim denied. Williams, agitated with the victim, exited the store in a hostile mood. After obtaining the beer, the victim left the store and saw his brother, Williams and a third person, later identified as the defendant, conversing. The victim explained that he had not threatened Williams with the stick. The victim and his brother shook hands with the defendant, while Williams remained unreceptive to the conciliatory efforts. The defendant and Williams then departed.
After a period of time had elapsed, the victim and his brother were walking to the victim's automobile. A motor vehicle driven at a high rate of speed approached them. After it came to a stop, the victim observed Williams and the defendant exit from the vehicle. The victim warned his brother that " they might have guns" as Williams walked toward him. The defendant then pulled a pistol from his waistband and shot the victim several times in the stomach, legs, buttocks and arm. The victim heard Williams instruct the defendant also to shoot Delton Rogers, but the defendant focused his attack solely on the victim. The defendant and Williams then drove off. Delton Rogers transported the victim to a hospital.
The defendant subsequently was arrested, tried and convicted, the court sentenced him to a total effective term of twenty years incarceration and five years special parole.
The defendant first claims that he was denied his constitutional right to be present at a critical stage of his prosecution. Specifically, he argues that it was structural error for the court to conduct a hearing in chambers regarding a possible conflict of interest involving defense counsel without his presence. The state counters that the record is inadequate to review this claim. We agree with the state.
The following additional facts are necessary for our discussion. Prior to the empanelment of the jury and the evidentiary phase of the trial, the court, referring to a discussion that had taken place earlier in chambers, stated: " Okay. Counsel, just the matter that we spoke about earlier . . . [t]here is one other matter on the record related to one of the witnesses that you need to comment on; is that correct?"
Counsel for the defendant, attorney Michael P. Gannon, then stated: " Yes, Your Honor. For record, the victim in this case . . . I don't know the exact date, but it was a while ago, came into my law office and asked to receive a power of attorney. He asked for the form that we have [for a] power of attorney. I gave him or my office gave him--it might have been me--gave him a form of power of attorney. We do not represent him, we just gave him a power of attorney form to fill out on his own. I told that to my client, and my client has no problem with me representing him. I don't think there is a conflict of interest in this case. Okay, Mr. Hazel, sir, do you understand the question here?" The defendant responded in the affirmative. The court then inquired if the defendant had " any problem with attorney Gannon continuing his representation?" The defendant answered in the negative. The court asked if the defendant believed that there was any type of conflict, and the defendant stated, " [n]o sir."
The court inquired if the prosecutor had any comment regarding this matter. The prosecutor responded: " No, Your Honor. When I found this out from the victim, I brought it to the attention of Mr. Gannon; that's when I brought it to the attention of Your Honor. [But in] the interest of caution, [the victim] did not say he actually obtained or hired Mr. Gannon, and it was the same situation. He went there for a power of attorney. The conversation, I believe afterward, when he picked up the form, was, is, you are representing the defendant in this case, the person who shot me; that was the end of the conversation. But in the interest of caution, we brought it before Your Honor." The court then asked if there was anything else that needed to be placed on the record, and defense counsel responded in the negative.
We now set forth the legal principles germane to the defendant's claim. " The sixth amendment to the United States constitution, as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution both guarantee a defendant the right to effective assistance of counsel in a criminal proceeding . . . Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest . . . This right applies not only to the trial itself, but to any critical stage of a criminal proceeding." (Citations omitted; internal quotation marks omitted.) State v. Cruz, 41 Conn.App. 809, 811, 678 A.2d 506, cert. denied, 239 Conn. 908, 682 A.2d 1008 (1996); see also State v. Rodriguez, 93 Conn.App. 739, 745, 890 A.2d 591, appeal dismissed, 281 Conn. 817, 917 A.2d 959 (2007). Simply put, " [a] defendant's right to be present . . . is scarcely less important to the accused than the right of trial itself." (Internal quotation marks omitted.) State v. Jones, 281 Conn. 613, 636, 916 A.2d 17, cert. denied, 552 U.S. 868, 128 S.Ct. 164, 169 L.Ed.2d 112 (2007).
The defendant argues that the conversation that occurred in chambers constituted a critical stage of the proceedings. In State v. Sam, 98 Conn.App. 13, 23, 907 A.2d 99, cert. denied, 280 Conn. 944, 912 A.2d 478 (2006), we noted that " an in camera inquiry regarding a potential conflict of interest may constitute a critical stage of a prosecution at which time a defendant has a constitutional right to be present." (Emphasis added.) Nevertheless, it does not follow that all in chambers discussions constitute a critical stage of the prosecution. In State v. Lopez, 271 Conn. 724, 859 A.2d 898 (2004), our Supreme Court stated that " [i]n judging whether a particular segment of a criminal proceeding constitutes a critical stage of a defendant's prosecution, courts have evaluated the extent to which a fair and just hearing would be thwarted by [the defendant's] absence or whether his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge." (Internal quotation marks omitted.) Id., at 732, 859 A.2d 898; see also State v. Holbrook, 97 Conn.App. 490, 494-95, 906 A.2d 4, cert. denied, 280 Conn. 935, 909 A.2d 962 (2006); State v. McNellis, 15 Conn.App. 416, 431-32, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). It further noted that a defendant may be afforded the right either to object or to waive an objection to his absence from a conference held in chambers if the existence of such a conference subsequently is placed on the record. State v. Lopez, supra, at 737 n.13, 859 A.2d 898. In other words, in order to determine whether the in chambers discussion constituted a critical stage of the proceedings, it is imperative that the record reveal the scope of discussion that transpired.
In the present case, the record is unclear as to the extent of the discussions that occurred in chambers, outside of the presence of the defendant. Neither the parties nor the court described or recounted on the record, with any detail, what had occurred in chambers. We therefore cannot determine the scope of this discussion. Instead, we are left to speculate as to whether the conversation consisted of the court and counsel conducting an extensive discussion as to Gannon's potential conflict of interest at one end of the spectrum or, at the opposite end, a brief comment to the court that there was a matter that needed to be placed on the record, or a dialogue that fell somewhere in-between. As a result, we cannot determine the extent to which a fair and just hearing would have been thwarted by the defendant's absence or whether his presence has a reasonably substantial relation to the fullness of his opportunity to defend against the criminal charges.
The defendant failed to move for an articulation or rectification of the record. See State v. Saucier, 283 Conn. 207, 222 n.11, 926 A.2d 633 (2007). " When our rules of practice are not followed, and the record is not rectified, we are left to guess or speculate as to the existence of a factual predicate." (Internal quotation marks omitted.) State v. Bermudez, 95 Conn.App. 577, 585, 897 A.2d 661 (2006). Our Supreme Court recently reiterated the fundamental point that " [i]t is incumbent upon the [defendant] to take the necessary steps to sustain [his] burden of providing an adequate record for appellate review . . . Our role is not to guess at possibilities . . . but to review claims based on a complete factual record developed by a trial court . . . Without the necessary factual and legal conclusions furnished by the trial court . . . any decision made by [any appellate court] respecting [the defendant's claims] would be entirely speculative." (Internal quotation marks omitted.) State v. Canales, 281 Conn. 572, 583-84, 916 A.2d 767 (2007); see also State v. Dalzell, 282 Conn. 709, 720, 924 A.2d 809 (2007) (for any Golding claim, incumbent on defendant to take necessary steps to sustain burden of providing adequate record for appellate review); State v. Brunetti, 279 Conn. 39, 63, 901 A.2d 1 (2006), cert. denied, 549 U.S. 1212, 127 S.Ct. 1328, 167 L.Ed.2d 85 (2007). " We conclude, therefore, that the record is inadequate for our review of this claim, and, accordingly, the defendant has failed to satisfy the first prong of Golding ." State v. Hazel, 106 Conn.App. 213, 941 A.2d 378, cert. denied, 287 Conn. 903, 947 A.2d 343 (2008).
In a footnote, the Court added the following:
" In considering the nature of a claimed constitutional violation, although typically such violations are reviewed for harmless error, there is a limited class of violations that we review for structural error. Structural [error] cases defy analysis by harmless error standards because the entire conduct of the trial, from beginning to end, is obviously affected . . . These cases contain a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself . . . Such errors infect the entire trial process . . . and necessarily render a trial fundamentally unfair . . . Put another way, these errors deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence . . . and no criminal punishment may be regarded as fundamentally fair." (Internal quotation marks omitted.) State v. Dalton, 100 Conn.App. 227, 230 n.3, 917 A.2d 613, cert. denied, 282 Conn. 913, 924 A.2d 139 (2007). " Because the defendant failed to satisfy the first prong of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), review for structural error is not necessary. See State v. Dalton, supra, at 230 n.3, 917 A.2d 613." Id., n.4.
On or about April 19, 2008, the petitioner filed a pro se petition for a writ of habeas corpus, assigned docket number CV08-4002313. On October 8, 2011, the habeas court, Newson, J., entered judgment for the petitioner pursuant to a stipulated disposition agreed to by the parties reducing the executed portion of the petitioner's sentence to nineteen years to serve.
On December 27, 2012, the petitioner filed the pro se petition giving rise to the instant matter.
In his amended petition dated April 6, 2015, the petitioner makes the following claims:
1. The petitioner's absence from the in-chambers conference between underlying counsel, the prosecuting authority and the trial court related to a potential conflict of interest was a constitutional violation resulting in structural error depriving the petitioner of his right to be present at all critical stages of the proceedings;
2. Underlying counsel's prior " representation" of the victim violated the petitioner's constitutional right to conflict-free counsel;
3. Underlying counsel was constitutionally deficient at trial in that counsel:
a. Failed to conduct an adequate factual investigation;
b. Failed to adequately prepare and present a defense;
c. Failed to adequately cross examine, impeach or otherwise challenge the testimony of David Rogers, Delton Rogers, Andrea Davis, Tammy Washington, and Julie Carraway;
d. Failed to present the testimony of Walter Williams;
e. Failed to present the testimony of Oscar Santiago;
f. Failed to make an effective closing argument; and
4. Direct appeal counsel was constitutionally deficient in that she:
a. Failed to raise the first two claims in the instant petition; and
b. Failed to perfect the appellate record, by moving for either rectification or articulation, to allow her to properly litigate claims one and two of the instant petition.
The petitioner withdrew claims five and six of the petition before the start of evidence. In the Return, The respondent asserts the following defenses: procedural default and deliberate bypass as to count one; procedural default, waiver, res judicata and abuse of the writ as to count two; res judicata and abuse of the writ as to count three; res judicata and abuse of the writ as to count four.
II
Law/Discussion
" The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness . . . 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 . . . 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." (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 419, 641 A.2d 1356 (1994).
" The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous . . . Historical facts constitute a recital of external events and the credibility of their narrators . . . Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given their testimony . . ." Mahon v. Commissioner of Correction, 157 Conn.App. 246, 116 A.3d 331, cert. denied, 317 Conn. 917, 117 A.3d 855 (2015). " It is well established that a reviewing court is not in the position to make credibility determinations . . . This court does not retry the case or evaluate the credibility of witnesses . . . Rather, we must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude." (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 117 Conn.App. 120, 126, 977 A.2d 772. 117 Conn.App. 120, 126, 977 A.2d 772, cert. denied, 294 Conn. 904, 982 A.2d 647 (2009).
A. Presence at the In-Chambers Conference
The petitioner asserts that the in-chambers discussion regarding underlying counsel's contact with David Rogers constituted a critical stage of the proceedings from which he was improperly excluded. He further states that the substance of the discussion, underlying counsel's potential conflict of interest, was so crucial to his constitutional rights, that his absence constitutes structural error. For the following reasons, this claim fails.
As previously noted in this decision and set forth, in relevant part in the direct appeal of this matter:
The defendant argues that the conversation that occurred in chambers constituted a critical stage of the proceedings . . . In State v. Lopez, 271 Conn. 724, 859 A.2d 898 (2004), our Supreme Court stated that " [i]n judging whether a particular segment of a criminal proceeding constitutes a critical stage of a defendant's prosecution, courts have evaluated the extent to which a fair and just hearing would be thwarted by [the defendant's] absence or whether his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge."State v. Lopez, supra, at 737 n.13.
In the instant matter, the court had the benefit of reviewing the underlying trial transcript, including a description of the in-chambers discussion as provided on the record both by underlying counsel and the prosecuting authority. Also, this court took habeas trial testimony from underlying counsel that the substance of the in-chambers discussion was substantially similar to what counsel put on the record before the trial court. Further, the habeas trial record contains testimony from underlying counsel regarding the relationship, or lack thereof, between himself and David Rogers. Additionally, this court took testimony from David Rogers himself, who provided credible testimony as to the complete lack of a personal, fiduciary or attorney-client relationship between himself and underlying counsel. The record is entirely devoid of any evidence of an actual conflict of interest between the petitioner and his underlying counsel related to David Rogers. Finally, this Court finds that there is no credible evidence, pursuant to Lopez, of any way in which the petitioner's right to a fair and just hearing was thwarted by his absence from the discussion or that his presence in-chambers would have borne a reasonably substantial relationship to the fullness of his opportunity to defend against the criminal charges.
B. Conflict-Free Counsel
The petitioner claims that trial counsel was burdened by an actual conflict of interest that adversely affected his performance due to his prior contact with David Rogers.
" 'The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to effective assistance of counsel.' . . . Santiago v. Commissioner of Correction, 87 Conn.App. 568, 582, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005). 'As an adjunct to this right, a criminal defendant is entitled to be represented by an attorney free from conflicts of interest.' . . . Adorno v. Commissioner of Correction, 66 Conn.App. 179, 194, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001). Thus, '[t]he underlying right to conflict free representation is effective assistance of counsel.' State v. Rodriguez, [61 Conn.App. 700, 706, 767 A.2d 756 (2001)] . . .
" 'In a case of a claimed conflict of interest . . . in order to establish a violation of [his constitutional rights] the [petitioner] has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance.' . . . Phillips v. Warden, [220 Conn. 112, 132-33, 595 A.2d 1356 (1991)]; Anderson v. Commissioner of Correction, 127 Conn.App. 538, 549, 15 A.3d 658 (2011), [aff'd, 308 Conn. 456, 64 A.3d 325 (2013)]. 'Unlike other claims of ineffective assistance of counsel, where a petitioner claims that his counsel's performance was deficient because of an actual conflict of interest, prejudice does not need to be established.' Zollo v. Commissioner of Correction, 93 Conn.App. 755, 757, 890 A.2d 120, cert. denied, 278 Conn. 904, 896 A.2d 108 (2006); see also Phillips v. Warden, supra, 133-34. Instead, '[w]here there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties.' . . . Phillips v. Warden, supra, 133; Anderson v. Commissioner of Correction, supra, 549; see Strickland v. Washington, [466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] ('[p]rejudice is presumed . . . if the [petitioner] demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance' . . . State v. Vega, 259 Conn. 374, 387, 788 A.2d 1221 (same), cert. denied, 537 U.S. 836, 123 S.Ct. 152, 154 L.Ed.2d 56 (2002)." Hedge v. Commissioner of Correction, 152 Conn.App. 44, 50-51, 97 A.3d 45 (2014). " When only a potential conflict is established, however, the general test applies and resultant prejudice must be proven." (Emphasis in original.) Santiago v. Commissioner of Correction, 87 Conn.App. 568, 583 n.14, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005).
" We have had occasion to point out the caution from the United States Supreme Court that the possibility of conflict is insufficient to impugn a criminal conviction . . . To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest impairment or compromise of his interests for the benefit of another party . . . A mere theoretical division of loyalties is not enough." (Citations omitted, internal quotation marks omitted.) Santiago v. Commissioner of Correction, supra, 87 Conn.App. 584-85.
In the instant matter, the petitioner has failed to establish an actual conflict of interest. First, the record fails to demonstrate that underlying counsel " actively represent[ed] competing interests, " e.g., creating reasonable doubt in his representation of the petitioner while attempting to avoid divulging some potentially damaging information about Mr. Rogers that might negatively impact his credibility in the eyes of the fact-finder. Second, underlying counsel's conduct surrounding and during the trial, including his cross examination of David Rogers, show no indication that his extremely brief contact in any way adversely affected his representation of the petitioner. Additionally, arguments that underlying counsel had an inappropriate financial interest in continuing to represent the petitioner never rose above mere assertion, without factual foundation. Accordingly, the petitioner has failed to establish an actual conflict of interest or any prejudice related to the potential conflict of interest.
C. Ineffective Assistance of Counsel
The petitioner first asserts that underlying counsel failed to perform an adequate investigation pre-trial. This claim fails.
" 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 articulate 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, 466 U.S. at 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, 466 U.S. at 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).
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).
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, 466 U.S. at 689. The United States Supreme Court explained:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 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; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.(Citation omitted; internal quotation marks omitted.) Id., 689.
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, 466 U.S. at 686.
A thorough review of the trial record, including the cross examination of the state's witnesses by underlying counsel, reveals questions derived from what the Court finds to be a constitutionally adequate factual and legal investigation, as testified to by underlying counsel at the habeas trial.
As far as the presentation of the persons listed in the amended petition, the petitioner failed to present evidence of the potential underlying trial testimony, as to all but two of these witnesses: Oscar Santiago and Walter Williams. As to the other persons listed, this Court, not having the benefit of their testimony at the habeas trial, deems those claims abandoned. " It is not the responsibility of the trial judge, without some specific request from a petitioner, to search a record, often, in a habeas case involving hundreds of pages of transcript, in order to find some basis for relief for a petitioner . . . The responsibility of a habeas court, in confronting an often voluminous trial court record, is to respond to those claims fairly advanced by the petitioner. The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration." (Citation omitted.) Solek v. Commissioner of Correction, 107 Conn.App. 473, 480-81, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008).
As to Oscar Santiago, this Court disagrees that the evidence in the record would lead a reasonable finder of fact to the same conclusions reached by the petitioner. The petitioner testified in this matter. This Court found him to be a witness lacking in credibility. The extent to which he claims he was left out of trial preparation and pre-trial investigation was directly controverted by underlying counsel. His claims as to the importance of Oscar Santiago are not borne out by the other, more credible, evidence adduced.
As to Walter Williams, this Court found his credibility to be lacking when compared to the other, more credible, evidence in this matter. Additionally, the cross examination of Mr. Williams reveals his additional credibility problems as a potential defense witness. Mr. Williams entered a " straight" guilty plea to crimes with a factual basis directly implicating the petitioner as the shooter of Mr. Rogers. Now, a number of years later, Mr. Williams testifies to a factual scenario completely different from that which served as the basis for his conviction. The court does not find that Mr. Williams' testimony would have been particularly helpful to the petitioner at trial.
" 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. Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it . . . [T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment . . ." Burgos-Torres v. Commissioner of Correction, 142 Conn.App. 627, 639, 64 A.3d 1259, cert. denied, 309 Conn. 909, 68 A.3d 663 (2013). The court cannot use hindsight in evaluating a trial attorney's decision not to call a witness at trial. Dunkley v. Commissioner of Correction, 73 Conn.App. 819, 823, 810 A.2d 281 (2002), cert. denied, 262 Conn. 953, 818 A.2d 780 (2003).
There is no foundation in the case law to support the proposition asserted by the petitioner that a defense of general denial, i.e., forcing the prosecuting authority to meet its legal burdens, and thorough cross examination of the state's witnesses, is per se inadequate, and that an affirmative defense, e.g., alibi, is constitutionally required.
In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense, after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . .Martin v. Commissioner of Correction, 155 Conn.App. 223, 227, 108 A.3d 1174, cert. denied, 316 Conn. 910, 111 A.3d 885 (2015).
The petitioner argues that underlying counsel failed to adequately cross examine several witnesses.
" [C]ross examination is a sharp two-edged sword and more criminal cases are won by not cross examining adverse witnesses, or by a very selective and limited cross examination of such witnesses, than are ever won by demolishing a witness on cross examination." (Internal quotation marks omitted.) State v. Clark, 170 Conn. 273, 287-88, 365 A.2d 1167 (1976). " The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance." (Citation omitted; internal quotation marks omitted.) Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).
" [A]n attorney's line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel's trial strategy." (Internal quotation marks omitted.) Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).
In this matter, as to the several listed witnesses, including Julie Carraway, the petitioner has failed to demonstrate what additional questions might have been asked and how the answers to those questions would have benefited the petitioner. See Solek v. Commissioner of Correction, 107 Conn.App. 473, 480-81, 946 A.2d 239 (" The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration"), cert. denied, 289 Conn. 902, 957 A.2d 873 (2008). Accordingly, he has failed to demonstrate prejudice.
D. Direct Appeal Counsel's Representation
" [A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006); see also Elsey v. Commissioner of Correction, 126 Conn.App. 144, 10 A.3d 578, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011) (" [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" [internal quotation marks omitted]). Based on the foregoing, the petitioner has failed to establish prejudice as to these claims.
In the instant matter, as this Court has found that there was no structural error regarding the petitioner's absence from an in-chambers discussion, no actual conflict of interest and no established prejudice from a potential conflict of interest related to underlying counsel, this Court finds that the petitioner has failed to establish prejudice related to claims asserted against direct appeal counsel. Accordingly, this claim fails.
III
Conclusion
For the foregoing reasons, the petition is denied. Judgment shall enter for the respondent.