Opinion
CV174009161S
09-04-2018
Richard HOUGHTALING (Inmate #425870) v. WARDEN
UNPUBLISHED OPINION
OPINION
Mullarkey, J.T.R.
The petitioner, Richard Houghtaling, initiated the present matter by way of a petition for a writ of habeas corpus filed by and through counsel on October 24, 2017, and which has not been amended. The petition raises a single claim, namely ineffective assistance of trial counsel, albeit premised on various deficiencies. The respondent’s return denies the petitioner’s material allegations.
The parties appeared before the court on February 26, April 27, and May 8, 2018, for a trial on the merits. The petitioner testified and presented the testimony of: his former trial counsel, Attorney Alan Sobol; Attorney Brian Woolf; Attorney Matthew Crockett; Attorney Christian Sarantopoulos; his former appellate counsel, Attorney Richard Emanuel; Holley Eichen; and expert witness, Attorney William Paetzold. Both the petitioner and the respondent entered into evidence documents.
For the reasons articulated more fully below, the petitioner’s claims are denied.
UNDERLYING FACTS
The Supreme Court’s decision on direct appeal summarized the underlying facts relevant to the claims on appeal. "On August 9, 2010, the Statewide Narcotics Task Force (task force) comprised of federal, state, and local law enforcement officers was conducting a marijuana eradication operation in the northeast corner of the state. The operation was comprised of two spotters who were patrolling the area in a helicopter and a ground team consisting of several members. The task force had performed marijuana eradication missions earlier in the day, and, shortly after noon, the helicopter team notified the ground team of a suspected large crop of marijuana at 41 Raymond Schoolhouse Road in the town of Canterbury (property). From the air, the spotters were able to see dozens of marijuana plants within a fenced-in pool area behind the house, as well as several plants along the outside of the fence. The ground team arrived at the property approximately thirty minutes later in separate, undercover and unmarked vehicles, which bore no resemblance to police vehicles.
"The property consisted of 5.6 acres and was largely surrounded by dense forest. The only means of ingress and egress was a narrow dirt driveway more than 100 feet long and lined with trees on both sides. There were signs marked ‘No Trespassing’ posted on trees along the driveway, and, about halfway down the driveway, there was a metal gate that could block the driveway but that was not closed. The ground team parked their vehicles in front of the gate, donned protective vests, which identified them as police officers, and proceeded to the front door of the house on foot. As the members of the ground team approached the home, they saw no occupant vehicles or persons, smelled nothing, and heard nothing. The officers knocked on the front door but received no answer.
"The ground team then left the front door and proceeded toward the back door. The air team had told the ground team that, if they continued around the side of the house, they would see ‘a whole lot of marijuana right out in the open.’ Before reaching the back door, the officers saw a pool area with dozens of marijuana plants inside and additional plants surrounding the area. The officers then continued to search the property, including a greenhouse located behind the pool, near the rear of the property. As the police approached the greenhouse, they noticed it was still under construction. The ends of the structure had no side walls, and there were piles of lumber on the ground nearby. Inside the greenhouse, the police were able to see numerous marijuana plants and two men, one of whom was later identified as Phravixay.
"Both of the men were given Miranda warnings and agreed to answer questions. Phravixay told the officers he was renting the home and later gave the officers written consent to search the property. The search ultimately revealed more than 1000 marijuana plants.
"Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)."
"While two members of the ground crew were returning to their vehicles to obtain an evidence kit, they noticed a white van pull into the driveway of the property, where the unmarked police vehicles were parked, and then reverse back into the street and depart ‘[v]ery quickly.’ The helicopter team also spotted the van enter the driveway and radioed the ground team to alert all of the officers concerning the van’s presence. The officers were suspicious of the van, believing that its occupants might be involved in the marijuana grow operation, and decided to pursue the van. By the time the police got into a car, headed up the driveway after the van, and arrived out on the road, the van was already parked at the side of the road, approximately one-tenth of one mile away, facing back toward the driveway.
"The officers drove to the location where the van was parked, exited their vehicle, and approached the van. The officers had drawn their weapons for their safety because, as the trial court noted, those involved in drug dealing often possess firearms. The van was occupied by two males the [petitioner] was in the driver’s seat and another person sat in the passenger seat. Upon determining that the occupants of the van posed no threat, the officers holstered their weapons and asked the [petitioner] for identification. When the officers asked the [petitioner] why he had pulled into the driveway and then left abruptly, he stated that he was going to visit a friend but left when he saw that the driveway was full of cars he did not recognize. As the trial court found, the [petitioner’s] answers to the officers’ questions were evasive, and, although he claimed to be visiting a friend, he would not name the friend. While the police were questioning the [petitioner], they were able to observe from outside the van that it contained lumber and irrigation piping similar to that which was used to construct the greenhouse. The officers then handcuffed the [petitioner] and the passenger, and brought them back to the property.
"Upon arriving back at the property, the police advised the [petitioner] of his Miranda rights. The [petitioner] at first refused to speak with the police but then agreed to once the officers told him that Phravixay had consented to their search of the property, that they had found mail with the [petitioner’s] name on it in the house and in the mailbox, and that Phravixay had identified the [petitioner] as the homeowner and the person who leased the property to him. The [petitioner] told the officers he had purchased the home in the prior year but could not afford the mortgage payments, so, to help cover his expenses, he leased the property to Phravixay, whom he had known for several years. The [petitioner] said Phravixay had paid rent only periodically, and the [petitioner] had been helping Phravixay cultivate marijuana for the previous four or five months to ‘recoup some of [his] money.’ Although the [petitioner] said he was helping with the cultivation, he stated that, ‘up until [that day, he] didn’t realize the extent of the grow operation. I own my own business and didn’t really think much of what was going on at the house ...’
"The [petitioner] initially was charged with numerous drug-related offenses, and he moved to suppress ‘(1) all evidence seized by law enforcement officers in connection with the warrantless search and seizure conducted at [the] property on August 9, 2010; (2) all statements made by [the petitioner] and others, including ... Phravixay, as a result of the illegal search and seizure; and (3) the fruits of any and all other evidence obtained, derived or developed as a result of the illegal search and seizure and illegally obtained statements ...’ The [petitioner] claimed that the court must suppress this evidence because the police had violated his fourth amendment rights when they failed to obtain a warrant before searching the property and when they detained him in his van, which he claims was done without reasonable suspicion that he had engaged in criminal activity.
"The [petitioner] initially was charged with the production and preparation of a controlled substance without a license, possession of more than four ounces of marijuana, the sale of illegal drugs, and the operation of a drug factory."
"At the hearing on the motion to suppress, the state called three police officers to testify about their actions and observations during the search and seizure. The [petitioner] called one witness, another police officer. After the witnesses testified, the state argued that the [petitioner] had failed to establish his subjective expectation of privacy because all of his personal property was in the city of Danbury, where he lived with his wife and family, and the [petitioner] had failed by any other conduct to demonstrate a subjective expectation of privacy in the property where the search occurred. Defense counsel responded by arguing that the [petitioner’s] ownership of the property alone was sufficient to establish standing. He argued that the state was trying to get around this fact by making a ‘hyper-technical argument on standing ...’
"The trial court agreed with the state and denied the [petitioner’s] motion to suppress the evidence seized from the search of the property and the [petitioner’s] statements to the police. The trial court concluded that the [petitioner] had failed to establish that he had a subjective expectation of privacy in the property. The court also found that the police possessed a reasonable and articulable suspicion sufficient to justify stopping the [petitioner’s] van after he entered and quickly exited the driveway. Lastly, the trial court concluded that the officers had probable cause to arrest the [petitioner]. The [petitioner] then entered a conditional plea of nolo contendere.
"The [petitioner] pleaded guilty to possession of marijuana with the intent to sell, and possession of more than four ounces of marijuana."
"The [petitioner] appealed to the Appellate Court from the judgment of conviction, claiming that the trial court’s denial of his motion to suppress was improper because ‘(1) he had a reasonable expectation of privacy in the area searched, including the home and the area surrounding it, (2) his fourth amendment rights were violated by the warrantless search conducted by the ... task force, [and] (3) the police lacked a reasonable and articulable suspicion to conduct a motor vehicle stop of the van operated by the [petitioner], and his resulting arrest was unsupported by probable cause ...’ (Footnote omitted.) State v. Houghtaling, supra, 155 Conn.App. at 797, 111 A.3d 931. The Appellate Court rejected all of these claims. Id., at 800, 808, 818, 823, 111 A.3d 931.
Specifically, the Appellate Court concluded that the [petitioner’s] first two claims failed because he lacked a reasonable expectation of privacy. Id., at 808, 111 A.3d 931. The Appellate Court determined that the [petitioner] failed to establish his subjective expectation of privacy because he did not sufficiently develop his personal relationship with the property at the suppression hearing. See id., at 803, 111 A.3d 931. The defendant argued that he was a co-occupant of the property and cited three facts to support this contention: (1) he leased the property to Phravixay for less than his monthly mortgage payment; (2) he received and stored items on the premises; and (3) he received some mail at the property. Id.
"The Appellate Court relied on the three-part test set forth in
"The Appellate Court determined that the fact that Phravixay’s rent was less than the defendant’s mortgage established nothing about the manner in which he retained rights to use the property, or if he retained them at all. Id. Moreover, although the defendant claimed that he received and stored property on the premises, he identified only a single item of his at the property- an aeration system addressed to him at his Danbury residence. Id., at 804, 111 A.3d 931. The court did not find that the presence of a single piece of property established that the defendant was a cotenant. See id. Finally, the Appellate Court concluded that the presence of "some mail"; id. ; did not establish that the defendant lived at the property or otherwise was there frequently. See id.
"The Appellate Court also concluded that the police possessed a reasonable and articulable suspicion that the defendant had engaged in criminal conduct. Id., at 818, 111 A.3d 931. The Appellate Court determined that, on the basis of the totality of the circumstances, including the spatial and temporal link between the Terry stop and the investigation of the felony in progress (the marijuana grow operation), as well as the defendant’s act of entering and quickly leaving the property, the police were justified in stopping the defendant. Id., at 813-16, 818, 111 A.3d 931. The Appellate Court also determined that the police had probable cause to arrest the defendant after they observed lumber and irrigation piping in the van similar to the materials being used to construct the greenhouse, demonstrating a probable connection between the defendant and the marijuana operation at the property. Id., at 821-23, 111 A.3d 931." State v. Houghtaling, 326 Conn. 330, 163 A.3d 563 (2017), cert. denied, 138 S.Ct. 1593, L.Ed.2d (2018).
Additional facts will be discussed below as necessary to address the petitioner’s specific claims.
DISCUSSION
By petition dated October 19, 2017, the petitioner makes numerous claims about trial counsel’s effectiveness in preparing and presenting a motion to suppress the petitioner’s arrest and the search of property he owned. However, at trial these claims revolved around the issues of witnesses called and the quality of counsel’s memorandum. The underlying facts of the criminal case are laid out in various documents including the hearing transcript on the motion to suppress, Petitioner’s Exhibit 1, and the trial court’s decision, Petitioner’s Exhibit 11b. Additional reviews of the facts are contained in State v. Houghtaling, 155 Conn.App. 794, 798-99, 111 A.3d 931 (2015), and State v. Houghtaling, 326 Conn. 330, 333-37, 163 A.3d 563 (2017), cert. denied, 138 S.Ct. 1593, L.Ed.2d (2018). The habeas trial was held over three days with numerous witnesses called and three significant witnesses listed by the petitioner who were not called.
"A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings ... This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution ... As enunciated in Strickland v. Washington, [ 466 U.S. 668, 686, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], [our Supreme Court] has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong ... The claim will succeed only if both prongs are satisfied ...
"To prove his or her entitlement to relief pursuant to Strickland, a petitioner must first satisfy what the courts refer to as the performance prong; this requires that the petitioner demonstrate that his or her counsel’s assistance was, in fact, ineffective in that counsel’s performance was deficient. To establish that there was deficient performance by the petitioner’s counsel, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance ... The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ...
" ‘[J]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant 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 ... 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 [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.’ (Internal quotation marks omitted.) Mukhtaar v. Commissioner of Correction, 158 Conn.App. 431, 449, 119 A.3d 607 (2015). In reconstructing the circumstances, ‘a reviewing court is required not simply to give [the trial attorney] the benefit of the doubt ... but to affirmatively entertain the range of possible reasons ... counsel may have had for proceeding as [he] did ...’ (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 319 Conn. 623, 632, 126 A.3d 558 (2015), quoting Cullen v. Pinholster, 563 U.S. 170, 196, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011)." Spearman v. Commissioner of Correction, 164 Conn.App. 530, 538-39, 138 A.3d 378, cert. denied, 321 Conn. 923, 138 A.3d 284 (2016).
"In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or the jury ... Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support ... [T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged ... The 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." (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 688-89, 51 A.3d 948 (2012).
Attorney Sobol represented the petitioner at trial. In the habeas proceeding he was questioned for more than a full day. He was never asked if he told the petitioner not to testify at the suppression hearing. He was also never asked why he did not withdraw from the case after the petitioner laid down too many ground rules about how to proceed. Attorney William Paetzold testified as the petitioner’s expert. He remarked that a client cannot be allowed to control the tactics on a motion to suppress. The attorney should tell a client that he calls the shots or the client can get another lawyer. Paetzold is correct but that does not alone answer the question whether or not Sobol’s representation fell below an objective standard of reasonableness, considering the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Spearman v. Commissioner of Correction, supra, 164 Conn.App. 538; Llera v. Commissioner of Correction, 156 Conn.App. 421, 426-27, 114 A.3d 178, cert. denied, 317 Conn. 907, 114 A.3d 1222 (2015).
Sobol testified that he met with the petitioner on April 5, 2011. The petitioner told him that he was only occasionally at the marijuana farm and he wanted nothing done which would "trigger" his co-conspirator’s involvement. The petitioner claimed that Thomas Phravixay was connected to a Chinese gang related to the mafia and that he was afraid of retribution for himself and his family. He told Sobol that his wife was terrified. Additionally the petitioner wanted no action taken which might implicate his brother-in-law, William Eichen, who had been arrested with the petitioner just outside of the largest marijuana farm in the history of the State of Connecticut. Habeas Trial Transcript (February 26, 2018), pp. 15-18. Sobol was not asked if he believed his client’s apocryphal dime-store novel view of the underworld. He also did not tell Sobol that on the day after their arrest while being in the transport van to arraignment he had asked Mr. Phravixay "if he was willing to take those charges." This was a follow-up to their discussion at the scene that "it would be silly for two people to take the fall for one crime ... so I was giving Tommy some time to consider that." Id., p. 29. This does not appear to be the way one addresses a vengeful mafia figure, Chinese or not. The petitioner had given a similar account of his fear of Thomas Phravixay to his first attorney, Christian Sarantopoulos. Habeas Trial Transcript (May 8, 2018), p. 79.
Sobol also testified about his internal notes made of his initial interview with the petitioner on April 7, 2011. See Respondent’s Exhibit B. These confirm the story the petitioner told about not being at the farm frequently and his co-conspirator’s connections to "mafia types." The petitioner told attorney Sobol that his brother-in-law was arrested at the scene but did not have anything to do with the property. In or after May 2009, the petitioner said he bought a greenhouse and would visit the farm more frequently, about once per week. He wanted out of the business but Thomas Phravixay wanted to finish the growing season. The petitioner agreed. The petitioner claimed that the police gave him his own Percocet for neck and back pain- after he gave a written statement to the police.
These notes comport with the two letters the petitioner sent to his first counsel, attorney Christian Sarantopoulos. In respondent’s exhibit E, the petitioner asks attorney Sarantopoulos to explain a purported new assessment of the importance of the petitioner’s statement to the police. In respondent’s exhibit F, the petitioner writes to "clarify" his statement to the police. Both exhibits are dated October 28, 2010, approximately five and one-half months before his interview with attorney Sobol. The petitioner claims to have intended the farm as a place to move his business and as a refuge from a stepson. He denies cultivating marijuana "in any sense of its definition." He turned a blind eye to Thomas Phravixay’s operation thinking "it was just a few plants." As to his statement to the police, the petitioner writes that he was handcuffed, under a great deal of stress, and felt disoriented. He further claims that "under police control he was given a dose of his medication, Percocet. He had also been smoking marijuana and drinking to help with neck pain. And to cap off his impaired judgment he cites a diagnosis of dyslexia from youth and occasional trouble with comprehension of spoken and written words especially when stressed. And he claims that the police might let his brother-in-law go. Apparently Sarantopoulos’ concern about the petitioner’s statement triggered this avalanche of excuses which were for the most part not reprised in the petitioner’s interview with Sobol. Here the petitioner did not claim a concern about Sarantopoulos’ alleged communication of a threat of retribution from Assistant State’s Attorney Matthew Crockett. Both attorneys testified at the habeas trial and denied such a threat was ever made much less communicated to the petitioner.
Attorney Richard Emanuel testified at the habeas trial on April 27, 2018. He is a highly regarded scholar in the field of constitutional jurisprudence. He was apparently called to testify that he had been contacted by the petitioner’s attorney for the Appellate Court proceeding. He testified that when he discussed the importance of standing with the petitioner and that he could have testified without the suppression testimony being used against him, the petitioner "showed surprise if not shock." This reaction was after the Appellate Court had ruled, more than a year after the trial court had ruled, and more than two and one-half years after the petitioner had not only received respondent’s exhibit D, but had it reviewed for him by Sobol. Habeas Trial Transcript (February 26, 2018), pp. 41-42. Pages eight through seventeen cover the issue of standing and starting at page twelve how consent might affect the motion even if standing is found. Sobol had him sign the memo. The petitioner testified that Sobol told him during a telephone conversation that standing was the Achilles heel in the case. Habeas Trial Transcript (May 8, 2018), pp. 38-39. Sobol also explained that the petitioner "needed a reasonable expectation of privacy on the property in order to establish standing." That Emanuel saw surprise if not shock when he mentioned the importance of standing to the petitioner he revealed himself as the third attorney the petitioner tried to manipulate.
Sobol also testified that he explained to the petitioner that his testimony at the hearing could not be used against him. This testimony was given on April 27, 2018. The petitioner told anyone he thought could help him anything that would motivate them. When Sarantopoulos posed problems with his statement to police, the petitioner responded with Respondent’s Exhibit E. The petitioner testified that Respondent’s Exhibit E was designed to get his attorney to "argue a little bit more in court." And he testified that he told Sarantopoulos that Thomas Phravixay paid $3,500.00 rent in December 2009. The petitioner admitted lying to his first attorney "out of embarrassment." The petitioner also told Sarantopoulos he was not cultivating marijuana and told both attorneys that he was afraid of Thomas Phravixay. Habeas Trial Transcript (May 8, 2018), pp. 77-79. Maintaining that his trial attorney had not properly explained the standing issue to him he would not have had a "problem" with it: "Because I could have beat the charges, and, you know, they would have been you know, I would have- could beat the charges. It just gave me a way out, and that was what happened." Id., pp. 92-93.
The petitioner testified that after his release the police returned his mail and he threw it out except for tax records. He did not testify if he was represented at that time. Habeas Trial Transcript (May 8, 2018), pp. 30-31. He did testify that after Sobol started representing him, Sobol emphasized the importance of the mail and he would not have thrown it away if he had previously had that knowledge. The petitioner was apparently in his "least contact with the farm, the better mode." His habeas counsel did not succeed in getting a letter (Petitioner’s Exhibit 7, ID only) in as a full exhibit or explain how Sobol could have done it at the suppression hearing without the voluntary cooperation of the Internal Revenue Service.
During the petitioner’s testimony at the habeas trial the petitioner admitted lying to his attorneys at least nine times if one calculates the same lie to two different persons at different locations and times as two lies. Id. To wit:
1) Telling Sobol that Thomas Phravixay was "connected" and he was fearful for his own and family’s safety- "which was not true." Id., p. 55.
2) Telling Sarantopoulos he was arrested at the scene when he went to collect rent. Id., p. 73.
3) Telling Sobol that Thomas Phravixay gave the petitioner a few hundred dollars in rent in August 2009. "I continued to lie." Id.
4) Telling his attorney that Thomas Phravixay paid $3,500.00 in rent in December 2009, "out of embarrassment." Id.
5) Telling Sobol at their initial meeting that he was not at the property that much. The petitioner admitted that he lied to give attorney Sobol something to take to the prosecutor. Id., p. 84.
6) Telling the police, Sarantopoulos, and Sobol that the petitioner was renting the property to Thomas Phravixay; one lie times three recipients. Id., p. 92.
7) Telling both attorneys that his wife was terrified of Thomas Phravixay: "No, that was not true." This lie counts as one to Sarantopoulos since the petitioner already admitted to the same lie to Sobol. Id., pp. 55 and 92.
The above catalogues only those lies the petitioner admitted under oath and do not approach the many other lies he told to this court at the habeas trial. This court finds that the petitioner has no credibility.
Holly Eichen testified on May 8, 2018. She is the petitioner’s sister and wife of William Eichen, who was arrested at the scene. She stated that she has a business making handcrafted jewelry since 2001. She testified that she attended a meeting between Sobol and the petitioner shortly before the suppression hearing and that the petitioner left to do an errand. Next she stated that Sobol told her that he never puts clients on the stand. This echoes her brother’s testimony. Habeas Trial Transcript (May 8, 2018), p. 53. That was it for her testimony about the facts. She added that she would not lie under oath. She was asked no questions about her brother or husband’s whereabouts after the purchase of the farm. Sobol was not asked anything about the extraordinary claim that he allowed a third party to be present during a client interview, thereby breaking privilege. She was not asked about the petitioner’s initial interview with Sobol in which she was described by her brother as a real estate agent who helped him find the farm to purchase. Respondent’s Exhibit B. The petitioner and Sobol were not asked if she had been present at such a meeting. This court finds that Holly Eichen is not credible.
William Eichen was also listed on the petitioner’s witness list. He was not called at this trial or the suppression hearing. At the time of the hearing more than thirteen months had passed since his charges arising from his arrest at the scene had been nolled. However, the five years necessary to escape the federal statute of limitations had not passed. See, e.g., United States v. Butler, 792 F.2d 1528, 1531-33 (11th Cir.) (citing § 18 U.S.C. 3282, five-year statute of limitation for non-capital offenses unless otherwise expressly provided by law), cert. denied, 479 U.S. 933, 107 S.Ct. 407, 93 L.Ed.2d 359 (1986), citing United States v. Guerro, 694 F.2d 898 (2d Cir. 1982) (five-year statute of limitations begins to run when conspiracy ends); U.S. v. Heldon, 479 F.Supp. 316, 319-20 (E.D.Pa. 1979) ("An indictment charging a non-capital offense must be returned with five years of the date of the offense"), citing 18 U.S.C. § 3282. He could not have been forced to testify and would have been wise not to in a case involving the largest seizure in Connecticut history. Federal interest in such a case cannot be discounted. However, by the habeas trial all statutes of limitations had passed and his absence is of note as is that of another witness listed by the petitioner: Nancy Houghtaling. She was and is the petitioner’s wife and could certainly have given direct testimony concerning his alleged dual residences during the relevant time periods. The petitioner complains that Sobol did not interview these three witnesses but provides no evidence as to what they would have said.
And Thomas Phravixay presents an even more curious circumstance. The first day of the habeas trial this court inquired of the petitioner’s attorneys about trial time requirements, especially given their witness list of twenty-six witnesses. One of the petitioner’s attorneys told this court that Thomas Phravixay was "unavailable now." Just before a recess on February 26, 2018, this court got a note from the clerk’s staff stating that a person named Thomas Phravixay had called the clerk’s office to inquire if anyone was looking for him. The court inquired if someone had called him. Habeas Trial Transcript (February 26, 2018), p. 80. Counsel for the respondent indicated that she was not going to "call" him, meaning calling him as a witness. When this court explained that it was referring to a phone call to the clerk’s office, the petitioner’s counsel responded by asking: "Today?" At page thirty-four of the habeas transcript of February 26, 2018, Senior Assistant State’s Attorney Sulik informs the court that Thomas Phravixay had been released from his sentence. Attorney Kirschbaum informs the court: "He’s in Connecticut, Your Honor." However, at page 156, Attorney Kirschbaum responded to the court’s inquiry about Mr. Phravixay’s location that he had been in contact with Mr. Phravixay and doubts his claim to be in Florida with "reason to think that he is not."
Thomas Phravixay’s plea was entered under the Alford doctrine. See Petitioner’s Exhibit 17. He gave no statement to the police. He retained his Fifth Amendment right as the federal statute of limitations had not run at the time of the motion to suppress. Attorney Brian Woolf testified on April 27, 2018, that he had represented Mr. Phravixay in the drug case. He prepared a proffer for the purposes of negotiations with the State’s Attorney. Petitioner’s Exhibit 13. The proffer was unsigned and unsworn. It was not in Mr. Phravixay’s own words and the contents were not verified by Woolf. This proffer, pre-marked by both parties, was only allowed to remain in this trial as an exhibit to show its effect upon Sobol, not for the truth of its contents. If Mr. Phravixay had waived his Fifth Amendment rights and if he had testified according to the proffer’s contents, then it would have been helpful to the petitioner’s claim of standing. Those are two big "ifs." Sobol testified that in the proffer Phravixay did not claim that the petitioner had exclusive control of the property. Although his federal Fifth Amendment rights had expired, Phravixay was not produced at the habeas trial and the petitioner has failed completely to prove what he would have said at the motion to suppress. Here, if anything, Petitioner’s Exhibit 13 may explain why the petitioner was so anxious to keep Mr. Phravixay off the stand at the motion to suppress hearing since the proffer describes an extensive marijuana cultivation business ongoing since 2003 involving the petitioner’s legitimate business location, his sister’s house, and even his mother’s property in New Milford. And one never knows what an incarcerated co-conspirator will choose to say about his free co-conspirator after that person had asked him to take "the weight."
Sobol testified at the habeas trial on February 26, 2018, at pages 120-21, that he did not call Thomas Phravixay for two reasons. The first was his client’s wishes. The second reason was that if unsuccessful on the suppression motion, Phravixay’s testimony could have hurt his client by making the plea offer disappear and lessen the chance of being allowed a nolo contendere plea. Sobol also testified at page 135 that if Phravixay had testified in a manner consistent with Petitioner’s Exhibit 13 it might impact on the petitioner’s sentencing. The petitioner has not established that Sobol’s performance fell below an objective standard of reasonableness or created a reasonable probability the result of the motion to suppress would have been different. Britton v. Commissioner of Correction, 141 Conn.App. 641, 656-57, 61 A.3d 1188, cert. denied, 308 Conn. 946, 67 A.3d 290 (2013) (habeas "petitioner’s testimony did not establish any credible new or additional factual basis for court"; habeas court properly concluded no prejudice shown where petitioner failed to show motion to suppress hearing would have been affected by his testimony); Velasco v. Commissioner of Correction, 119 Conn.App. 164, 171, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010) (ineffective assistance of counsel claim for failure to effectively argue motion to suppress eyewitness identification failed because no showing counsel’s errors led to court’s ruling); Correa v. Commissioner of Correction, 101 Conn.App. 554, 556, 922 A.2d 289, cert. denied, 283 Conn. 911, 928 A.2d 536 (2007) (habeas petition alleging ineffective assistance of counsel for failure to file a timely motion to suppress must prove reasonable probability that the motion would have been granted to show required prejudice).
The petitioner has also failed to produce any evidence of what Mr. Phravixay’s testimony might have been if he had waived his Fifth Amendment rights. Nor has he shown a reasonable probability that the result of the suppression motion would have been different. Britton v. Commissioner of Correction, supra, 141 Conn.App. 656-57; Velasco v. Commissioner of Correction, supra, 119 Conn.App. 171; Correa v. Commissioner of Correction, supra, 101 Conn.App. 556.
As to the rest of the witnesses complained about in paragraph # 29 of the petition, the petitioner has made no showing of what their testimony would have been except for Master Sergeant Patrick Torneo, who did testify at the suppression hearing on January 31, 2013, and who was called by Sobol. Petitioner’s Exhibit 1, pp. 119-28. The petitioner has also not produced the testimony of his brother-in-law, wife, or invitee Sisouk Phravixay. And Holly Eichen did not testify about anything relevant to the petitioner’s contacts with the farm which would have given him a reasonable expectation of privacy.
Paragraph 29.7 of the petition claims that the petitioner was advised not to testify at the suppression hearing. The petitioner and his sister are the only witnesses to this claim. Neither is credible. Sobol testified to the contrary on April 27, 2018. This court finds him credible.
Nowhere in the petition does the petitioner allege that trial counsel’s performance fell below the standard for effectiveness in his memorandum or argument on the motion to suppress. Only paragraphs 29.2 and 29.5 mention about legal issues as opposed to evidentiary issue. Paragraph 29.5 is really an evidentiary objecting claim, inadequate preparation and presentation of testimony to show a lack of "reasonable suspicion" for the Terry stop. Paragraph 29.2 alleges failure to "adequately research the legal issues involved in the case." "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." (Internal quotation marks omitted.) Morquecho v. Commissioner of Correction, 164 Conn.App. 676, 684, 138 A.3d 424 (2016). "The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." Norton v. Commissioner of Correction, 132 Conn.App. 850, 858-59, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).
Attorney William Paetzold testified on the same day as an expert on trial practice and constitutional law. He testified that Sobol spent too much time on Wong Sung v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1963), and not enough time on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Paetzold also opined that Sobol could have made a proper record from the petitioner’s testimony and Phravixay’s proffer. He also ignored the federal statute of limitations still applicable to Thomas Phravixay and William Eichen at the time of the hearing.
Attorney Paetzold testified as an expert on both the effectiveness of Sobol as a trial practitioner and a constitutional lawyer. He opined that Sobol’s performance fell below the effectiveness standard both in his memorandum on the motion to suppress and at the argument. Unremarkably, Paetzold was able to identify the area of standing as deficient after reading the trial, Appellate and Supreme Court opinions. He placed great emphasis on mail which the petitioner received at the farm including a communication from the Internal Revenue Service which the petitioner still could not get in as a full exhibit, even after he chose to testify. See Petitioner’s Exhibit 7 (ID only). Exhibit 28 was so important that it was still sealed at the habeas trial. The petitioner essentially contradicts his own testimony at the habeas trial concerning Sobol’s advice about the importance of the mail. Habeas Trial Transcript (May 8, 2018), pp. 37, 56. Sobol by contrast testified that the mail found in the mailbox and the house added little since utility companies and mortgage holder’s routinely communicate in such a manner with the owner of the property served. In the farm house one rifle was found which was apparently missing from a neighbor’s possession. Petitioner’s Exhibit, p. 53. None of the petitioner’s clothes, toiletries, or other personal items were found. An aeration system found on the property was addressed to the petitioner’s Danbury home. Paetzold testified that he had not read State v. Charron, 2002 WL 317269 (Conn.Super. 2002) , a case cited in Sobol’s preliminary assessment of the legal issues which he reviewed with the petitioner. Petitioner’s Exhibit 1D. Paetzold testified that he would have subpoenaed Thomas Phravixay to the hearing since he no longer had Fifth Amendment rights. He did retain them as discussed above. Later Paetzold made the same inaccurate claim about William Eichen’s Fifth Amendment rights. Subsequently Paetzold testified that attorney Sobol could have used Thomas Phravixay’s proffer (Petitioner’s Exhibit 13) to impeach him with an unsigned, unsworn, and unacknowledged document. Paetzold testified that he had no fear that Thomas Phravixay’s testimony would contradict that of the petitioner if the petitioner could have been convinced to testify.
Paetzold further opined that attorney Sobol was wrong in designating the Terry stop as his best area of attack because the stop occurred after the police entry onto the farm. He did not explain his conclusion. Paetzold testified that Sobol should not have emphasized Baker v. Carr, 369 U.S. 186 (1962), since it was not a criminal case and should have instead have emphasized Katz v. United States, supra, 389 U.S. 347 (1967). Yet Baker v. Carr appears to hold the purest, most personal interest or standing claim against unconstitutional government action: "A federal court cannot ‘pronounce any statute, either of a state or of the United States, void, because irreconcilable with the constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.’ Liverpool, N.Y.&P. Steamship Co. v. Commissioner of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899. Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing. It is, of course, a question of federal law." Baker v. Carr, supra, 369 U.S. 204.
A memorandum dated May 3, 2012, prepared for Sobol, relies on Baker v. Carr and does not cite to Katz v. U.S. Respondent’s Exhibit D. The memorandum summarizes search and seizure issues in contemplation of a motion to suppress. The memorandum analyzes relevant case law in the context of the information provided by the petitioner to Sobol. See Respondent’s Exhibit B (summary April 7, 2011 interview with petitioner conducted by Sobol). The April 7, 2011 interview notes memorialized that the petitioner rented the house to Thomas Phravixay, that the two of them had an oral agreement for Phravixay to begin the marijuana growing operation and make sufficient money to pay the monthly mortgage for the property, that Phravixay made modifications to the house for marijuana growing purposes, and that the petitioner went to the property once a week. At the time of the police operation, Phravixay was paying the petitioner $1,200 per month in rent.
The petitioner had also informed predecessor counsel, Sarantopoulos, that he rented the house to Thomas Phravixay. See Petitioner’s Exhibit E (letter dated October 28, 2010). Second later dated the same date also indicates that the petitioner rented the house to Phravixay, and expected rent from him. Respondent’s Exhibit F (letter dated October 28, 2010). ---------
The legal arguments in Sobol’s motion to suppress essentially track the May 3, 2012 memorandum. The fact that there is reliance in both on Baker v. Carr instead of Katz v. U.S. is not, in this court’s assessment, much of a basis for deficient performance by Sobol, whose strategy is formed by the facts of the case and the information given to him by his own client. Sobol advocated for the petitioner and subjected the search and seizure to a contested hearing- -this is not a situation where counsel was not performing as counsel. To the contrary: Sobol presented cogent legal arguments in support of his motion to suppress and effectively cross examined the witnesses at the hearing. Sobol strove to prevail on the standing issue in spite of the information he obtained from the petitioner that he rented the house to Phravixay. There was no persuasive evidence to show that the petitioner resided at 41 Raymond Schoolhouse Road in Canterbury; instead, he resided elsewhere and was only visiting the property for reasons related to the marijuana growing operation. Baker v. Carr sufficiently supported Sobol’s arguments and the petitioner has failed to show how reliance on Katz v. U.S. would have resulted in the trial court concluding he had standing.
The central idea that Paetzold was not willing to acknowledge is that when a client refuses to testify he may not be able to be persuaded otherwise. And when a client gives a story to both his first two attorneys it would be difficult to ethically present contradictory testimony to a judge. And when his confession is contrary to his new story, it would be foolish to presume that a judge would credit such a late conversion.
During the argument at the motion to suppress Sobol pursued several avenues of attack in addition to the petitioner’s unchallenged claim of ownership of the property. Petitioner’s Exhibit 1. He vigorously attacked the validity of the Terry stop and all the fruits which flowed from it. He emphasized that it followed the sweep beyond the front of the house which the trial court found "constitutionally suspect." Petitioner’s Exhibit 11b. This argument was rigorously pursued after he had examined the four officers involved in the seizure. The Terry stop preceded the petitioner’s statement to police and his signature on the consent to search form. Petitioner’s Exhibit 8. It even preceded Thomas Phravixay’s signature of a consent form. Petitioner’s Exhibit 6. Three of the four officers were led by the gate in the driveway, the no trespassing sign and the lack of exigent circumstances by Sobol’s examinations. Each officer involved in giving information about and actually conducting the Terry stop was thoroughly examined. In the argument phase Sobol was conversant with all cases in both memoranda and argued about them and distinguished them with alacrity.
During his testimony on April 27, 2018, Paetzold opined that there is not much Connecticut law on standing relative to landlord tenant situations. He did distinguish State v. Charron supra, from the present case. However, he also testified that Thomas Phravixay could consent if he was the lease holder. Respondent’s Exhibit D was reviewed with the petitioner more than six months before the hearing and has a section discussing the tenant’s consent.
Sobol’s memorandum of July 2, 2012, seems to emphasize the "constitutionally suspect" intrusion, particularly of the curtilage identified at page 19 of Judge Riley’s decision. Detailing at length the four factors set out in U.S. v. Dunn, 480 U.S. 294 (1987), Sobol argues that the taint of this search condemns the Terry stop and the seizure of the marijuana and growing equipment. He argues well the Wong-Sun doctrine of the fruit of the poisonous tree. He even found persuasive Ohio precedent in State v. Vondenhuevel, 2004 WL 2260102 (Ohio, 3d District, October 4, 2004). Sobol expanded his argument to include attacking the constitutional validity of Thomas Phravixay’s consent to search. Based upon all the foregoing, the court concludes that the petitioner has failed to prove that trial counsel rendered deficient performance as alleged. The petitioner has not proven that he was prejudiced by any deficient performance if this court were to presume such deficient performance. The petitioner has failed to show by a preponderance of the credible evidence that the trial court would have concluded that he had standing, nor has the petitioner proven that he would prevail on the motion to suppress itself.
CONCLUSION
Based upon the foregoing, the court denies the petition for a writ of habeas corpus. Judgment shall enter for the respondent.
State v. Boyd, 57 Conn.App. 176, 185, 749 A.2d 637."
"Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)."
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, L.Ed.2d 162 (1970). "Under North Carolina v. Alford ... a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial ... A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless ..." State v. Wheatland, 93 Conn.App. 232, 234 n.1, 888 A.2d 1098, cert. denied, 277 Conn . 919, 895 A.2d 793 (2006).