Opinion
CV084002123S.
11-09-2012
Anthony JOHNSON, v. WARDEN.
UNPUBLISHED OPINION
MULLARKEY, J.
The petitioner initiated this matter by way of a pro se petition for a writ of habeas corpus. After the assignment of counsel, the petition was twice amended. The first amended petition raised claims of ineffective assistance of counsel and actual innocence. The respondent's return denied the petitioner's material allegations and raised the affirmative defenses of procedural default and res judicata, as well as that the petitioner's guilty plea operated as a waiver of all non-jurisdictional defects and bars claims of alleged constitutional violations. The petitioner's reply to the return denies that he has procedurally defaulted, that he is attempting to relitigate claims in contravention of res judicata, and that he has waived the right to raise the claims asserted in this matter.
The parties appeared before the court over the course of five days of trial, first on September 8, 10, 13, and October 19, 2010. The court granted the petitioner's request, made on the fourth day of trial, to amend the petition and thereby conform his allegations to the testimonial evidence presented. On October 25, 2010, the petitioner filed a second amended petition. The respondent thereafter filed a motion to strike the second amended petition in its entirety. After a hearing, the court in part granted the motion to strike as articulated in an order dated December 22, 2010.
The parties appeared before the court for the fifth and final day of trial on March 24, 2011. The respondent made an oral motion to dismiss all claims based on the petitioner's failure to present a prima facie case. See Practice Book § 15-8; Grant v. Commissioner of Correction, 121 Conn.App. 295, 299 n. 2, 995 A.2d 641, cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010). The court granted respondent's motion to dismiss except as to claims of ineffective assistance by Attorney Conroy. The parties were permitted, per their requests, to file post-trial briefs subsequent to the receipt of all habeas trial transcripts. The petitioner's brief was filed June 26, 2012; the respondent's brief was filed on July 20, 2012.
The narrowing of the claims to ineffective assistance by Attorney Conroy renders the defenses of procedural default and res judicata inapplicable, as this is the petitioner's first habeas petition raising such claims and having a court adjudicate them on their merits.
Accordingly, the court will address the petitioner's claims as narrowed by its orders of December 22, 2010, March 24, 2011, and July 10, 2012.
For the reasons stated more fully below, judgment shall enter denying the petition for a writ of habeas corpus.
DISCUSSION
The petitioner was the defendant in several criminal matters, docket numbers CR 00-491603, CR 00-488875 and CR 01-497515, in the judicial district of New Haven. The most significant of these was the docket number ending 515, in which the petitioner was charged with murder in violation of General Statutes § 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-48(a) and 53a-54a, assault in the first degree in violation of General Statutes § 53a-59(a)(1), and conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-59(a)(1). The petitioner was represented by Attorney Thomas Conroy in the convictions at issue in the instant habeas corpus petition.
On September 12, 2002, when he was eighteen years old, the petitioner entered guilty pleas to charges in all three aforementioned criminal dockets. In the docket number ending 515, the petitioner entered guilty pleas to all charges except the charge of murder, which was nolled by the prosecuting attorney. The prosecutor provided the following factual basis for the charges in docket number ending 515 at the time the petitioner entered his guilty pleas:
The petitioner was sixteen years old at the time the underlying offenses were committed.
[O]n January 7th of the year 2001 at approximately 12:15 in the afternoon the policemen from the New Haven Police Department went to the area of 260 Munson Street upon receiving a complaint of a shooting at that location. When they arrived there the policemen found two young New Haven men suffering from gunshot wounds. The first was Daniel Moorer the Third and the second was James Ford. Mr. Moorer was transported to the hospital and it's unfortunate that he was pronounced dead a short while later by a doctor at that hospital. Mr. Ford suffered a grazing bullet wound to the side of his head. He was later released from the hospital. The police began their investigation at that time and retained— securing the area of persons who had been there. They spoke to a Steven Godfrey. Mr. Godfrey gave a statement to the Police Department implicating this gentleman, the defendant Mr. Johnson, and William McCleese who was a co-defendant, having identified Mr. McCleese as the person responsible for shooting and killing Mr. Moorer and for this defendant having shot and wounded Mr. Ford. At that time Godfrey identified Johnson and McCleese as the shooters through photo board pictures presented to them by detective from the New Haven Police Department. The police officers then went to the grandfather of McCleese and Johnson. They located there a red two door Honda Prelude which had been described as being the vehicle driven to the area by the persons responsible for the shootings at 260 Munson. That was, according to the grandfather, the vehicle used by Mr. Johnson and Mr. McCleese and that was located at the grandfather's house. McCleese was given an opportunity to speak to the policemen. He did. However, he denied having any involvement in the shooting at the location described earlier. At some point later Mr. McCleese said that he was at another location with another group of persons at the time that the shooting had occurred on Munson Street. He also denied owning or operating that Honda Prelude but had admitted to being in it on several occasions. Mr. Ford, the second victim of the shooting, on the next day gave a statement. He was fully cooperative with the police officers and he said that he was shoveling snow in the area of 260 Munson Street and he was speaking to a friend who he identified as Mr. Moorer, said that the two black males then came out of the area alongside the building at 260 and began shooting at them. Ford reported seeing that red Honda with the tinted windows and he stated that he recognized one of the individuals as the person who shot Mr. Moorer and that was Mr. McCleese and then also said that he knew that the person who shot him in the face was Mr. Johnson, the defendant here. He said that the shot to his face occurred within a very close distance, probably within less than three or four feet, and that the bullet grazed the side of his face and head causing him to suffer a serious physical injury and he identified Mr. Johnson here as being the person who did that. The two half brothers, Johnson and McCleese, were acting in concert with one another in furtherance of the crime to commit the murder of Mr. Moorer and the assault of Mr. Ford.
Petitioner's Exhibit 14 (Transcript, September 12, 2002, pgs.4-5).
After providing the factual bases for the guilty pleas in the other two cases, the prosecutor indicated that the petitioner, Attorney Conroy and the prosecutor had entered into a written proffer agreement shortly before the change of plea.
The prosecutor then summarized the written proffer agreement as follows:
Essentially it requires the defendant by his agreement to cooperate truthfully and completely ... with the State of Connecticut in the prosecution of anyone involved with the murder of Daniel Moorer the Third as well as the shooting of Mr. Ford on that day we've just described. The State has reason to believe that in addition to Mr. McCleese there was another individual involved. The defendant has agreed to give truthful statements to the police and to the State concerning those events as well as truthful testimony at the trial which I expect will begin fairly soon of one William McCleese and that the State, in exchange for the cooperation that the defendant is offering, and that cooperation was initiated by the defendant through his attorney and that inquiry was made of me some time ago. At that point, if he does, in fact, cooperate and testify truthfully and completely at any trial or trials that may be on the horizon, the State then agrees that it will inform the sentencing Judge on these three cases and I anticipate that will be your Honor, that the extent to which Mr. Johnson has cooperated fully and truthfully with the State and the effect and usefulness of that cooperation and then we would leave the decision up— the proper and correct sentence and a fair sentence to be imposed upon the defendant by your Honor to your Honor.
Petitioner's Exhibit 14 (Transcript, September 12, 2002, pgs.7-8).
The court, Fasano, J., then questioned both the petitioner and Attorney Conroy if that was their understanding of the written proffer agreement. Both indicated to Judge Fasano that the prosecutor's summarization of the agreement reflected their understanding as well. Judge Fasano then canvassed the petitioner about his guilty pleas and in detail reviewed the charges and the maximum sentence that could be imposed for each charged offense. Judge Fasano indicated to the petitioner that the maximum total effective sentence the petitioner faced for all charges in the three docket numbers was seventy-two years and fifty-nine thousand dollars in fines. The petitioner acknowledged that he understood what his sentence exposure was. The petitioner also answered in the affirmative when Judge Fasano asked him if the facts as recited by the prosecutor were substantially accurate. Judge Fasano again specifically asked the petitioner about his understanding of the proffer agreement: " Do you understand the agreement here calls for your cooperation in matters involving the co-defendant and ultimately you'll be sentenced by this Court and the State will indicate the extent to which you cooperated fully and truthfully and the extent and usefulness of that cooperation." The petitioner answered in the affirmative, as did Attorney Conroy and the prosecutor. The petitioner indicated that no other promises had been made to him in exchange for his guilty plea. The court then found the guilty pleas to have been made voluntarily and understandingly, with the assistance of competent counsel, and that there were factual bases for each of the pleas. The guilty pleas were accepted, findings of guilty were entered, and the matter was continued.
A copy of the written proffer agreement was entered into evidence as petitioner's exhibit 16.
Petitioner's Exhibit 14 (Transcript, September 12, 2002, pg.10).
The petitioner, now nineteen years old, did testify as a witness for the state when it prosecuted Mr. McCleese for murder. Respondent's Exhibit B. Attorney Conroy was present with the petitioner when he testified as a state's witness. The prosecutor at the onset questioned the petitioner about the conditions and terms of the proffer agreement:
The prosecutor at the McCleese trial was the same prosecutor who entered into the proffer agreement and stated the facts supporting the petitioner's guilty pleas, namely Attorney Dobris.
Q Is that your signature?
A Yes, it is.
Q And the signature underneath is the signature of your Attorney Conroy?
A Yes.
Q Witnessed by Inspector Cosco of my office?
A Yes.
Q Did I sign it as well?
A Yes.
Q When you signed this were you under pressure or duress? Had any threats or promises been made to you to sign this?
A Yes.
Q What pressure had you been under?
A I've been under a lot of pressure.
Q I don't mean the normal everyday pressure that people feel. Did anybody threaten you to sign this?
A No.
Q You did it of you own free will?
A Yes.
Q To boil it down to its bare essence, this document is an agreement between you and your attorney and the State's Attorney's Office of the State of Connecticut, New Haven Judicial District. Is that correct?
A Yes.
Q You have not been sentenced on those charges, is that correct?
A No, I have not.
Q And this agreement details what you pled guilty to, or what the understanding is upon your plea of guilty, is that also true?
A Yes.
Q Have any promises been made to you by the State of Connecticut, the State's Attorney's Office, if you give testimony here, what will happen?
A I could face forty.
Q Without mentioning a specific number of years, do you know what you could be facing?
A Yes.
Q Has any promise specifically been made to what sort of sentence you would be serving?
A No.
Q Is the only promise that you are aware of that I, the State's Attorney, Senior State's Attorney in the Judicial District of New Haven, will tell Judge Fasano, the presiding Judge, criminal side of this courthouse, who will be sentencing you, whether or not you have testified truthfully?
A Yes.
Q Did I make any promises— did anybody from my office or any other law enforcement agency make any other promises to you that are not contained here [in the proffer agreement]?
A No.
Q One of those charges is Conspiracy to Commit Murder for the murder of Daniel Moorer the third, is that correct?
A Yes.
Q You have also pleaded guilty to Assault in the First Degree and Conspiracy to Commit Assault in the First Degree for the assault, the gunshot that you inflicted on James Adam Ford, is that also true?
A Yes.
Q This is the only agreement between you, your attorney and the State of Connecticut, is that true?
A Yes.
Q No other promises have been made to you?
A No.
Q Except that we will notify the sentencing Judge that you have cooperated, is that true?
A Yes.
...
Q So to summarize what your understanding is of the agreement contained in that document you just saw, ... is it your understanding that if you testify truthfully, accurately and completely in this courtroom during your testimony today or however many days it may take, your understanding is that I will inform the sentencing Judge at your sentencing that you did so. Is that correct?
A Yes.
Q And that if you testified falsely or if you lie or, don't testify completely I will also inform Judge Fasano of that fact as well, is that also your understanding?
A Yes.
The proffer agreement was then published to the jury.
Respondent's Exhibit B, pgs. 276-80.
The petitioner then testified consistent, and in greater detail, with the facts stated for the record by the prosecutor at the time the guilty pleas were entered.
For example, the petitioner testified in detail about the events preceding the shooting outside 260 Munson Street. According to the petitioner's testimony, he spent the night prior to the shooting at his uncle's apartment at 206 Munson Street. McCleese met the petitioner at that apartment, arriving by car, a red Honda Prelude, and accompanied by another individual, Jermaine Mitchell, a cousin of the petitioner's. The petitioner described the three of them driving in the red Honda Prelude from 206 Munson Street to where the shootings occurred. The petitioner also testified that he took possession of the .45 caliber semiautomatic pistol from McCleese, with McCleese keeping a .38 caliber revolver that he would later use during the shooting. As the three occupants of the car were travelling along Munson Street heading toward Dixwell Avenue, the petitioner saw Daniel Moorer, James Ford and Steven Godfrey in front of a building. The petitioner and McCleese, who were wearing dark clothing and including dark hoodies, got out of the car and went to where Moorer, Ford and Godfrey were located. According to the petitioner, he and McCleese started shooting, with the petitioner shooting at Ford's face and McCleese shooting at Moorer. The two shooters then fled the scene on foot, with the petitioner returning to 206 Munson Street. The trial then recessed for lunch.
When McCleese's trial and the petitioner's direct examination resumed, the petitioner continued testifying about the two weapons used during the shooting, as well as that Jermaine Mitchell was not involved in the shooting. The petitioner further testified about the circumstances surrounding the statement he gave on January 7, 2001, to the investigating police detectives. The petitioner confirmed that he identified McCleese as Moorer's shooter to the detectives and signed a statement in which he also described the shooting. At the conclusion of the direct examination, the petitioner again testified that McCleese shot Moorer and that he shot Ford. Attorney Chapman, who represented McCleese at trial, then began his cross examination of the petitioner.
Attorney Chapman began his cross examination by questioning the petitioner in detail about the proffer agreement and his expectations of what he was to receive for his cooperation with the state. The petitioner acknowledged that his eventual sentence would depend on his truthful testimony, that the prosecutor was going to report the extent of his cooperation to the sentencing judge, and that he potentially faced the maximum sentence for failing to truthfully testify. Attorney Chapman also questioned the petitioner about, inter alia, the circumstances surrounding his statement given to the police, the use of the weapons by him and McCleese, the three occupants of the vehicle, and the respective shootings of both victims by him and McCleese. The trial adjourned at the end of the day and cross examination continued on the next day of trial.
Shortly after cross examination continued, the petitioner requested permission to address the court. The jury was excused, the matter was recessed, and the petitioner consulted with Attorney Conroy during the recess. When the matter resumed, Attorney Conroy indicated to the court that the petitioner wanted him removed from representation and was requesting the appointment of substitute counsel. The court informed the petitioner that it would not remove Attorney Conroy, but that the petitioner could renew his request in the context of his own case when he next appeared before the pretrial judge. The petitioner then directly addressed the court and informed the judge presiding over McCleese trial that Attorney Conroy had not properly investigated his case. Attorney Conroy indicated that he would be filing a motion for permission to withdraw and that he anticipated the petitioner filing a motion to withdraw his plea. After further discussions between the court, the petitioner and Attorney Conroy, the cross examination continued in the jury's presence.
The petitioner continued testifying on cross-examination, albeit briefly, until a radical departure from his already presented testimony occurred. The petitioner testified that everything he had testified to during the McCleese trial, and therefore also in his statement to the police and the facts put on the record at the time of his guilty plea, were untruthful. This recantation and disavowal prompted the trial judge to advise the petitioner that his actions had exposed him to charges of perjury and filing a false statement. The petitioner indicated that he understood the potential consequences of his recantation. The court excused the jury and asked Attorney Conroy if he had an ample opportunity to discuss with the petitioner the specter of additional charges of perjury and making a false statement. Attorney Conroy answered in the affirmative. The jury returned and cross examination continued that day and into the next with the petitioner reversing himself on all key aspects of his statement to the police, the facts in support of the guilty pleas and the testimony presented during the McCleese trial. The state questioned the petitioner, now as a hostile witness, on redirect examination and played back the taped police interview for the jury. The jury ultimately convicted McCleese of murder, conspiracy to commit murder and assault in the first degree.
See State v. McCleese, 94 Conn.App. 510, cert. denied, 278 Conn. 908 (2006). The Appellate Court noted that the state's case against McCleese was " compelling" and that " [n]umerous eyewitnesses identified [McCleese] as one of the assailants." Id ., at 521 and n. 3. These very same eyewitnesses also identified the petitioner as an assailant. Judge Fasano indicated at the petitioner's sentencing that McCleese was sentenced to a term of eighty-five years. Petitioner's Exhibit 15 (Transcript, June 16, 2003), pg. 14.
The petitioner then appeared again before Judge Fasano on June 16, 2003, for sentencing, although now represented by Attorney Peter Kelly. The prosecutor indicated the following as part of his argument in support of asking the court to impose a lengthy period of incarceration:
The defendant gave a statement to— this defendant gave a statement to the Police Department very early in the investigation. It was an oral statement. Probably a day or two after the shooting that day. Approximately a week or two weeks later this defendant gave a full tape recorded and written sworn statement to police detectives from the New Haven Police Department who were investigating the crime. This was done prior to any arrangement being made with the State of Connecticut and the State's Attorney's Office whatsoever. At some point the defendant, I think, represented by Attorney Conroy, believing his situation if he were to go to trial would be hopeless, signed what we have referred to as a proffer agreement in which agreement, your Honor, he agreed to testify truthfully at any trial of Mr. McCleese or any other persons involved in this crime and in exchange the State would let this Court, the sentencing Court, know the level of the defendant's cooperation. I'd like to report to the Court that all we wanted was for Mr. Johnson to testify truthfully. Several months ago the trial of Mr. McCleese began before his Honor Judge Harper. Mr. Johnson testified initially. His testimony was almost like pulling teeth out of him. His family was in the courtroom and I'm sure it was difficult for the young man to testify against his brother while his family was present but he did testify and he testified consistently with the information that he gave to the New Haven Police Department many months earlier in his sworn statement. At some point there was a lunch break and we were in Courtroom B which necessitated Mr. Johnson to be transported from the B Court to this Court through the public hallway. During that time several members of his family were out in the hallway, one of whom and I don't know who it was, yelled an epithet at him suggesting that he was an informant and should not be doing that against a member of his family or anyone else for that matter. So, I'm certain that he— after the lunch break he got back on the stand and felt enormous pressure. It was at that point that he recanted his entire testimony which had been given earlier in the day which testimony initially was consistent with his statement. When he recanted he said that his testimony was not— his earlier testimony was not truthful, it was all a lie and that he had felt pressured from the police who had threatened to take away his yet unborn child if he didn't cooperate. He felt pressure from the State's Attorney's Office if he didn't cooperate and he felt pressure from his own attorney if he didn't cooperate. He did testify in Court while his attorney was, in fact, present in Court. In his statement initially, the sworn statement he gave to police, he inculpated himself with respect to shooting Mr. Ford in the face but he denied vociferously shooting the deceased, Mr. Moorer. That flew in the face, however, of forensic, medical and ballistic evidence suggesting that there was, in fact, a different caliber bullet lodged in the body of the deceased which is consistent— which bullet was consistent with a forty-five caliber weapon that this defendant wielded during the assassination. Eye witness testimony also suggested that this defendant was not totally forthcoming in his initial statement because other eye witnesses at the scene saw this defendant shoot Mr. Moorer while he was down on the ground.
Petitioner's Exhibit 15 (Transcript, June 16, 2003), pgs. 4-5.
The prosecutor emphasized that the petitioner's initial testimony in the McCleese trial was borne out by the jury's verdicts. Stated somewhat differently, the jury's verdicts were consistent with the petitioner's testimony prior to the recantation.
Attorney Kelly, who replaced Attorney Conroy after he was permitted to withdraw, addressed the sentencing court on the petitioner's behalf. Attorney Kelly indicated that the petitioner had made the difficult decision to proceed to sentencing. According to Attorney Kelly, the petitioner was at the sentencing proceeding " ... after the basis of a definitive discussion as to what options are available to him and what his, in my view, his— in his best interest as a result of those various options, he has determined to proceed today as scheduled at sentencing." Petitioner's Exhibit (Transcript, June 16, 2003), pg. 11. After acknowledging that the petitioner regretted his involvement in the crimes, Attorney Kelly stated that: " ... I appreciate Attorney Dobris' what I would say dispassionate recitation of the events concerning Anthony Johnson's testimony in the [McCleese] trial. Although I wasn't there I am familiar with what happened and certainly it would be easy for Mr. Dobris to be much more antagonistic but I think he does appreciate, although no one can condone the fact of someone violating a proffer agreement and essentially putting, as Attorney Dobris said, the State in a difficult position but at least on a human basis it's understandable and although none of us know what was really in Anthony Johnson's mind at that time, I think we can, at least with some informed speculation, understand what happened without condoning it." Id., pgs. at 12-13. Judge Fasano ultimately sentenced the petitioner to a total effective sentence of forty years to serve.
An alternative would have been for the petitioner to seek, prior to sentencing, permission to withdraw his guilty pleas premised on, inter alia, ineffective assistance of counsel. Practice Book § 39-27(4). This is precisely what Attorney Conroy indicated to Judge Harper, the judge who presided over the McCleese trial, namely that he anticipated the petitioner filing a motion to withdraw his plea. Furthermore, the petitioner articulated a potential ground (failure to investigate) for ineffective assistance by Attorney Conroy at the time he sought to have him dismissed by Judge Harper immediately before the wholesale recantation.
Against this backdrop and history, the petitioner now asserts a vast array of allegations that Attorney Conroy rendered deficient performance that inured to the petitioner's prejudice. In fact, the amended petition identifies no less than twenty-one specific failures committed by Attorney Conroy during his pre-trial representation. From the allegations alone it is difficult to envision that counsel correctly did a single thing while representing the petitioner. Thus, Attorney Conroy allegedly: failed to effectively represent the petitioner during plea negotiations and the plea; failed to ensure that the petitioner's pleas was knowing, intelligent and voluntary; induced the petitioner to plea by indicating that he would receive a maximum sentence of only twenty years in jail; failed to adequately advise the petitioner concerning his options of whether to enter a guilty plea or proceed to trial; failed to adequately advise the petitioner concerning the consequences of his pleas; failed to properly explain the plea agreement ramifications and potential sentence; failed to ensure that the contemplated incarceration time was accurately reflected on the record; failed to provide a copy of the plea agreement to the petitioner; failed to ensure that the petitioner understood the plea agreement; failed to investigate the petitioner's ability to read; hastily instructed the petitioner to sign the plea agreement the same day as the plea, not allowing the petitioner sufficient time to understand and process the plea agreement; did not ensure the agreed upon plea was enforced by both the prosecutor and the court; failed to file a motion to withdraw plea, despite the petitioner's repeated request to do so; failed to adequately advise the petitioner concerning jail exposure at sentencing; failed to conduct a sufficient investigation into the legal and factual issues in the petitioner's case; failed to conduct sufficient investigation into the witnesses available to support potential defenses; failed to adequately investigate the circumstances surrounding the petitioner's statement; failed to file a motion to suppress the petitioner's statement; failed to request a cognitive and/or mental evaluation of the petitioner; failed to consult with any experts with respect to the petitioner's statement to law enforcement; failed to consult with any experts with respect to the petitioner's cognitive abilities and functioning; and failed to conduct sufficient investigation into 3rd party culpability defenses.
The standard this court must apply to the petitioner's claims is well established. " ‘ In Strickland v. Washington, [466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction ... That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense [by establishing a reasonable probability that, but for the counsel's mistakes, the result of the proceeding would have been different] ... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.’ (Citation omitted; internal quotation marks omitted.) Farnum v. Commissioner of Correction, 118 Conn.App. 670, 674-75, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).
" ‘ For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), which modified Strickland 's prejudice prong.’ (Internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 124 Conn.App. 740, 743-44, 6 A.3d 152 (2009). ‘ Under ... Hill ... the evidence must demonstrate that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial. ... In its analysis, a reviewing court may look to the performance prong or to the prejudice prong, and the petitioner's failure to prove either is fatal to a habeas petition.’ (Internal quotation marks omitted.) Gudino v. Commissioner of Correction, 123 Conn.App. 719, 723-24, 3 A.3d 134, cert. denied, 299 Conn. 905, 10 A.3d 522 (2010). Finally, we note that ‘ [i]n a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation ... but by demonstrable realities.’ (Emphasis in original; internal quotation marks omitted.) Farnum v. Commissioner of Correction, supra, 118 Conn.App. 675." Gonzalez v. Commissioner of Correction, 127 Conn.App. 454, 457-58, 14 A.3d 1053, cert. denied, 302 Conn. 933, 28 A.3d 991 (2011).
The Connecticut Supreme Court, relying on Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), noted that " Hill requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial, and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial." Copas v. Commissioner of Correction, 234 Conn. 139, 151, 662 A.2d 718 (1995). See also Gray v. Commissioner of Correction, 138 Conn.App. 171, 177-79 and n. 2 (2012).
" ‘ [C]onstitutionally adequate assistance of counsel includes competent pretrial investigation.’ (Internal quotation marks omitted.) Crocker v. Commissioner of Correction, 101 Conn.App. 133, 143, 921 A.2d 128, cert. denied, 283 Conn. 905, 927 A.2d 916 (2007). ‘ [W]here the alleged error of counsel is a failure to investigate ... the determination whether the error prejudiced the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.’ (Internal quotation marks omitted.) Toles v. Commissioner of Correction, 113 Conn.App. 717, 723, 967 A.2d 576, cert. denied, 293 Conn. 906, 978 A.2d 1114 (2009) ... ‘ The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner. United States v. Green, 882 F.2d 999, 1003 (5th Cir.1989) ...’ (Citation omitted.) Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001); see also Johnson v. Commissioner of Correction, 285 Conn. 556, 584, 941 A.2d 248 (2008) (petitioner failed to present evidence to take claim from realm of speculation to demonstrable reality) ..." Gonzalez v. Commissioner of Correction, supra, 127 Conn.App. 458-59.
The petitioner presented testimony from numerous witnesses, namely Mark Benton, Michelle Gallman, Latasha Benton, Tiffany Taylor, Dr. Solomon Fulero, Dr. Galani Filippopoulos, Dr. Frank Stoll, Chrishawn Green, Jermaine Mitchell, Erica Green, William McCleese, as well as the petitioner himself. Aside from the petitioner, these witnesses can be grouped into family members or acquaintances who presented testimony in support of a potential alibi defense (M. Benton, M. Gallman, L. Benton, T. Taylor, C. Green, J. Mitchell, E. Green and W. McCleese), and experts (Drs. Fulero, Filippopoulos and Stoll). The respondent called Attorney Conroy as a witness.
McCleese is the petitioner's half-brother and Mitchell is a cousin to both. M. Benton is an uncle to both McCleese and the petitioner. Gallman identified herself as M. Benton's girlfriend. L. Benton is a cousin to both McCleese and the petitioner, and is a niece of M. Benton's. Taylor was in a relationship with M. Benton at the time of the underlying offenses. C. Green was a long-time acquaintance of McCleese, knew the petitioner for several years before the shootings, and also knew Moorer, one of the two victims. E. Green is also related to McCleese, Mitchell, the petitioner, and is a cousin to Ford, one of the shooting victims.
Although the petitioner has the burden of proof as to all claims and was the first to present evidence, the court will first address Attorney Conroy's testimony because it is the petitioner who must overcome the presumption that counsel's performance was reasonable, adequate and made while exercising reasonable professional judgment. " ‘ [A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct ... At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.’ (Citations omitted; internal quotation marks omitted.) Id., at 689-90." Gaines v. Commissioner of Correction, 306 Conn. 664, 679-80 (2012), citing and quoting Strickland v. Washington, supra.
Attorney Conroy testified about his experience while in private practice from 1982 until 2004, when he became a public defender. Before fully engaged in criminal matters, about half of Attorney Conroy's private practice involved criminal representation and included several jury trials each year, including numerous serious felony cases. He further testified that he had been involved in over a hundred serious felony cases that resulted in guilty pleas, possibly a great deal many more.
Attorney Conroy received copies of police reports, statements, the written transcript of the petitioner's interview with the police, as well as a copy of the cassette tape from which the transcript was produced. Attorney Conroy could not specifically recall if he utilized an investigator, although the petitioner himself recalled meeting at least once with an investigator. The state's case, according to Attorney Conroy, was strong. There were no issues or concerns that arose for Attorney Conroy regarding the petitioner's ability to understand, communicate and assist counsel.
Attorney Conroy testified about the proffer agreement, which required the petitioner to testify against his half-brother McCleese. That decision was difficult for the petitioner and involved several serious discussions between the petitioner and Attorney Conroy. Although the agreement did not indicate a specific number of years that the petitioner would be sentenced to in exchange for his cooperation and testimony, Attorney Conroy informed the petitioner that, based on his experience, a sentence of twenty years or even less was possible given all the circumstances of this case. Those circumstances included the petitioner's proffer agreement, cooperation with the state and truthful testimony against at least McCleese. Attorney Conroy testified that he did not tell the petitioner he would receive a sentence of twenty years, and that the petitioner was aware that the judge had the authority to impose a sentence that correlated with the extent of the petitioner's cooperation.
Attorney Conroy recalled the petitioner at the onset of his representation discussing the statement given to the police and its validity or truthfulness. His efforts to obtain a copy of the taped statement were spurred by wanting to hear the taped interview and make his own assessment. Attorney Conroy testified that he listened to the tape and found it reflected a voluntary statement by the petitioner. Nevertheless, he filed motions suppress identifications, statements, evidence, etc., but they were not heard as the petitioner's guilty plea preempted the normal practice of hearing such motions immediately before trial. Attorney Conroy did not think he had a strong suppression issue to present. Additionally, he was questioned and testified about the petitioner's alibi defense, which revolved around spending the night before the shooting at his uncle's house and going to lunch at an establishment called " Jimmy's" the next day around the time of the shooting, and the notice of alibi he filed that listed Mark Benton, Natasha Benton and Michelle Gallman as witnesses in support of the petitioner's alibi that he was at Jimmy's Seafood Restaurant at the time of the shooting. See Respondent's Exhibit D.
The petitioner testified that he informed Attorney Conroy of the three alibi witnesses identified in the notice of alibi. According to the petitioner, Attorney Conroy indicated to him that presenting only family members was problematic. The petitioner testified that the police officers who interviewed him coerced and threatened him and that his statement resulted therefrom. He also testified that he informed Attorney Conroy about the untruthfulness of his statement, but Attorney Conroy just advised him to stick to that story and resolve the matter by way of plea instead of trial. This last aspect of the petitioner's testimony is particularly troubling for this court's assessment of his credibility. Essentially, the petitioner paints a picture of an attorney who is actively perpetrating a fraud upon the court and who knowingly assisted him in presenting untruthful testimony under the guise of being truthful testimony. Attorney Conroy testified that the petitioner surprised all those involved, including his own attorney, by recanting during the McCleese trial. The court finds Attorney Conroy to be credible and the petitioner's testimony to be not credible.
The witnesses in support of the petitioner's potential alibi testified in the habeas matter that the petitioner was in their presence both prior to and at the time of the shootings, first at M. Benton's residence and then at Jimmy's. These alibi witnesses uniformly indicated that the petitioner was continuously with them all morning until about the time the shooting occurred, or shortly thereafter, and then accompanied them from M. Benton's residence to Jimmy's for lunch. An example is M. Benton's testimony during the habeas trial. Mr. Benton testified that the petitioner spent the prior night sleeping at his residence and was there in the morning together with Gallman, T. Benton and Mark Benton, Jr. According to Mr. Benton, he left between 9-9:30 a.m. and had intended to take the petitioner with him, but the petitioner was still asleep and left without him. Mr. Benton returned at approximately 12:15 p.m., almost precisely the time of the shooting, and then left nearly a half hour later for Jimmy's accompanied by everyone in the house at that time. They all stayed at Jimmy's for about an hour to an hour and a half. Again, with some minor variations, the alibi witnesses presented uniform testimony about the petitioner's presence and going to Jimmy's. Mr. Benton's testimony was consistent with his testimony during the McCleese trial. See Petitioner's Exhibit 17. Other alibi witnesses such as E. Green, M. Gallman and C. Green testified in this case as well as in the McCleese trial as defense witnesses, though to no avail. See footnote 10 of this memorandum of decision.
The petitioner himself testified, after recanting his prior testimony in the McCleese trial, that he was at Jimmy's. Respondent's Exhibit B, pgs. 454 and 467. A police case/incident report indicates that a detective spoke with wait staff at Jimmy's on January 15, 2001, eight days after the shooting, about the petitioner. According to the case/incident report, the detective showed photographs of the petitioner and Mark Benton to three wait staff members. Two of the wait staff positively identified the petitioner as having been there with other adults and a small child. The computer generated receipt bill indicated it was started at 1:37 p.m. and was cashed out at 2:07 p.m. Respondent's Exhibit K.
Assuming that the petitioner's alibi is valid, then he gave a false statement to the police, albeit it as a result of alleged coercion and threats. The petitioner then negotiated a proffer agreement in which he agreed to truthfully testify against McCleese and others in exchange for a beneficial sentence. The petitioner pleaded guilty to serious offenses, did not indicate that the facts put on the record in support of the guilty pleas were incorrect, and acknowledged to Judge Fasano that the facts were substantially correct. At the McCleese trial the petitioner initially implicated himself in the Ford shooting and testified that McCleese shot Moorer. The petitioner recanted that testimony and eventually proceeded to sentencing without seeking permission to withdraw his guilty pleas. All of the petitioner's statements and acknowledgments are consistent, except for the recantation and the claims in this habeas corpus petition.
This court, given the entire history of this matter, finds the petitioner's testimony in this matter, as well as the recantation during the McCleese trial, suspect and not credible. An additional obstacle for the petitioner to overcome is that he was identified by Steven Godfrey and James Ford as one of the two shooters. The petitioner here must show with demonstrable realities that he would have persisted in his not guilty pleas, proceeded to trial and that his alibi defense would have been successful at trial. This the petitioner has not done. The witnesses in support of his alibi were not credible and other witnesses such as McCleese presented brief testimony that is neither trustworthy nor helpful to the petitioner's claims. Additionally, the court finds that the petitioner has not presented any credible evidence that shows his age, learning disabilities, etc., were meritorious issues to be considered by Attorney Conroy during his representation of the petitioner. The expert testimony presented by the petitioner on all issues was, in fact, of no assistance to the court.
The petitioner also did not present any credible evidence supporting his third-party culpability claims, for the testimony about Mitchell hiding one or more firearms in an attic subsequent to the shooting and McCleese or other testimony by E. Green, even if credited, does not prove someone other than the petitioner shot Ford. See, e.g., State v. West, 274 Conn. 605, 625, 877 A.2d 787, cert. denied, 546 U.S. 1049, 126 S.Ct. 775, 163 L.Ed.2d 601 (2005) (third-party culpability defense requires " present[ing] evidence that directly connects a third party to the crime ..."). Ultimately, although the petitioner alleged a plethora of deficiencies, he has presented a paucity of credible evidence or proof.
Judgment shall enter denying the petition for a writ of habeas corpus. Counsel for the petitioner shall prepare and file with the clerk a judgment file within thirty days of the date of this memorandum of decision.
So ordered.