Opinion
CV134005709
06-02-2016
Josue Rodriguez (#212902) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Susan Quinn Cobb, J.
The petitioner, Josue Rodriguez, brings this his second petition for a writ of habeas corpus claiming that his trial counsel and first habeas counsel were ineffective. The petitioner seeks an order from the court directing the sentencing courts to resentence the petitioner or release him from confinement. Having considered the credible evidence and the arguments of the parties, the court finds the issues for the respondent and denies the petition.
On September 13, 2005, in Docket No. CR-03-0568256, the petitioner pleaded guilty to the sale of a hallucinogenic or narcotic substance, in violation of General Statutes § 21a-277(a), and received a sentence of twelve years of incarceration, execution suspended, followed by five years of probation. On October 22, 2007, in Docket No. CR-06-0230743, the petitioner pleaded guilty to burglary in the third degree, in violation of General Statutes § 53a-103, and risk of an injury to a minor, in violation of General Statutes § 53-21(a)(1), and received a total effective sentence of ten years of incarceration, execution suspended, followed by five years of probation. On December 18, 2007, the petitioner admitted to being in violation of his probation in Docket No. CR-03-0568256, and his probation on that docket was continued.
On December 3, 2008, the petitioner was arrested and charged with, inter alia, attempted arson in the second degree, in violation of General Statutes § § 53a-49 and 53a-112. The case was docketed as Docket No. CR-08-0244350. On that same day, the petitioner was charged with violating his probations in Docket Nos. CR-03-0568256 and CR-06-0230743. Attorney William Gerace represented the petitioner in both the underlying criminal case and the alleged violations of probation. The arson, risk of injury and burglary charges against the petitioner involved the petitioner's former spouse, Dameris Sanchez, as one of the victims.
On April 13, 2009, after a hearing, the trial court, Espinosa, J., found the petitioner to be in violation of his probations in Docket Nos. CR-03-0568256 and CR-06-0230743, and sentenced the petitioner to a total effective sentence of twelve years of incarceration. On that same day, the petitioner pleaded guilty, pursuant to the Alford doctrine, to attempted arson in the second degree, and the trial court, Alexander, J., sentenced him to eight years of incarceration, to run concurrent with the twelve-year term of incarceration imposed earlier that day for the petitioner's violations of probation.
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
The petitioner appealed the trial court's judgment finding the petitioner in violation of his probations to the Appellate Court, which affirmed it. State v. Rodriguez, 130 Conn.App. 645, 23 A.3d 826 (2011). The Supreme Court also affirmed the trial court's judgment. State v. Rodriguez, 320 Conn. 694, 132 A.3d 731 (2016).
On July 30, 2009, the petitioner filed his first habeas petition. Attorney Jason Goddard represented him in that matter. Rodriguez v. Commissioner of Correction, Superior Court, judicial district of Tolland, Docket No. CV 09-4003132. In his first habeas petition, the petitioner asserted that Attorney Gerace rendered ineffective assistance pursuant to an actual conflict of interest stemming from his representation of Sanchez in a prior criminal case in which the petitioner was an alleged victim. The petitioner also claimed in his first habeas petition that Attorney Gerace rendered ineffective assistance by improperly investigating the petitioner's cases, failing to object to certain sentencing comments by Judge Espinosa, failing to advise the petitioner that his guilty plea to the arson charge would moot any appeal of Judge Espinosa's adverse adjudication of his violation of probation hearing and failing to advise him generally about his Alford plea.
The first habeas court, Sferrazza, J., denied the first habeas petition, and that decision is currently pending on appeal at the Appellate Court. Rodriguez v. Commissioner of Correction, A.C. 35929.
On September 12, 2013, the petitioner initiated this, his second habeas petition. In counts one and two of his second amended petition, dated December 18, 2015, the petitioner claims that his trial counsel, Attorney Gerace, was ineffective in failing to adequately investigate and present mitigating evidence, including the petitioner's mental health and drug dependency struggles, during both the sentencing phase of the petitioner's violation of probation proceedings and the plea bargain negotiations, respectively. In count three of the petition, the petitioner claims that his habeas counsel, Attorney Goddard, was ineffective in failing to adequately plead, prove and argue counts one and two of this petition.
On June 10, 2015, the respondent filed a motion to dismiss counts one and two of the petitioner's second amended petition on the ground that the allegations contained in the petition constituted a successive petition. On December 14, 2015, the court, Bright, J., denied the respondent's motion from the bench but noted that the only relief the petitioner may seek as to counts one and two relate to the penalty phase and not to the guilt phase.
A trial was held on the petitioner's claims in this case on February 9, 2016. At the trial, the petitioner presented exhibits and testimony from the following witnesses: himself, Attorney Gerace, Attorney Goddard, Attorney Kenneth Simon, an attorney expert, and Dr. Tobias Wasser, an expert on forensic psychiatry.
Additional facts will be set forth as needed below.
DISCUSSION
" A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
The petitioner has the burden to establish that " (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. 694.
" To satisfy the performance prong, a claimant must demonstrate that 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed . . . by the [s]ixth [a]mendment.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687. " It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the 'counsel' guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial." Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).
When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, 466 U.S. 689. However, this presumption is rebuttable. Sanders v. Commissioner, 83 Conn.App. 543, 551, 851 A.2d 313, cert. denied, 271 Conn. 914, 859 A.2d 569 (2004). " In determining whether the presumption should apply . . . acts of ineffective assistance in the same matter may be considered in making that determination." Id. Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).
Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. 686.
The Appellate Court recently explained that when this standard is " 'applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding . . . [T]he petitioner will have to prove that one or both of the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . .' Harris v. Commissioner of Correction, 108 Conn.App. 201, 209-10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). 'Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of [trial] counsel must essentially satisfy Strickland twice: he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his [trial] counsel was ineffective.' . . . Ham v. Commissioner of Correction, 152 Conn.App. 212, 230, 98 A.3d 81, cert. denied, 314 Conn. 932, 102 A.3d 83 (2014). 'We have characterized this burden as presenting a herculean task . . .' Alterisi v. Commissioner of Correction, 145 Conn.App. 218, 227, 77 A.3d 748, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013)." Mukhtaar v. Commissioner of Correction, 158 Conn.App. 431, 438-39, 119 A.3d 607 (2015).
The petitioner first claims that Attorney Gerace was ineffective for failing to present allegedly mitigating evidence relating to the petitioner's mental health and drug dependencies during the violations of probation sentencing proceedings. The court notes that in support of his claim, the petitioner presented the transcripts of the underlying proceedings and the petitioner's criminal record to this court as exhibits. The petitioner did not, however, present any of the petitioner's medical records or any additional evidence that was before Judge Espinosa during the sentencing proceedings.
At the habeas trial, Attorney Gerace testified regarding his decision to not present evidence regarding the petitioner's mental health was twofold. First, Attorney Gerace credibly testified that the petitioner was not cooperative and refused to sign the release that he needed to obtain the petitioner's medical records because the petitioner insisted that his defense was that he was not present at the time of the crime. Dr. Wasser, the petitioner's psychiatry expert, also testified that the mitigating evidence could not be developed without the petitioner's cooperation. Second, Attorney Gerace testified that the introduction of that evidence was a " double edged sword" because there was information contained within the records that would not be beneficial for the petitioner's case, such as information that the petitioner was psychotic, dangerous, violent and malingering. Attorney Gerace explained that during sentencing such information could instead persuade the judge to sentence the petitioner to an even longer period of time.
" [W]ith regard to the performance prong of Strickland, 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 . . . The law presumes that counsel is competent until evidence has been introduced to the contrary . . . It is elementary jurisprudence that the determination of whether counsel's conduct was ineffective is a peculiarly fact bound inquiry . . . Moreover, [i]t is well established that a petitioner in a habeas proceeding cannot rely on mere conjecture or speculation to satisfy either the performance or prejudice prong [of Strickland] but must instead offer demonstrable evidence in support of his claim." (Citations omitted; internal quotation marks omitted.) Martinez v. Commissioner of Correction, 147 Conn.App. 307, 315-16, 82 A.3d 666 (2013), cert. denied, 311 Conn. 917, 85 A.3d 652 (2014). In light of the foregoing, the court finds that the petitioner has not proven that Attorney Gerace's failure to present evidence regarding the petitioner's mental health during the violations of probation sentencing constituted ineffective performance.
As to the prejudice prong, the petitioner has also not demonstrated that, had his trial counsel presented the aforementioned evidence to the trial court, he would have received a lesser sentence.
" Criminal defendants have a constitutional right to effective assistance of counsel during the sentencing stage . . . To establish prejudice, [i]t is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings . . . A claimant must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Citations omitted; internal quotation marks omitted.) Davis v. Commissioner of Correction, 147 Conn.App. 343, 360, 81 A.3d 1226 (2013), cert. granted on other grounds, 311 Conn. 921, 86 A.3d 467 (2014); see also Vega v. Commissioner of Correction, 103 Conn.App. 732, 930 A.2d 75 (finding petitioner failed to establish reasonable probability imposed sentence would have been lesser if presented evidence of petitioner's psychiatric record because it likely would have reinforced severity of court's sentence).
At the petitioner's violations of probation sentencing, the trial court addressed the petitioner, stating: " So it is obvious . . . given the defendant's criminal history and his history and performance while on probation, the various violations of probations, that the beneficial aspects of probation are no longer being served. The defendant has not changed or made a reasonable attempt to alter his lifestyle as to be in compliance with the conditions of probation. Therefore, he is no longer a good risk to be successful on probation." The court continued: " He has, as I said, a history of assaultive behavior. His actions on the night in question were very violent and dangerous . . . So the defendant has been given numerous attempts to change his life on probation. His attempts to resolve the domestic issues in his life through violence is a concern not only to the court but also to society and something the court cannot tolerate."
In light of the foregoing, the court concludes that the petitioner has failed to establish a reasonable probability that the sentence imposed would have been different if his trial counsel had presented the allegedly mitigating evidence. Thus, count one must fail.
The petitioner also claims that trial counsel was ineffective in failing to present evidence regarding the petitioner's mental health during the petitioner's plea negotiations. At the habeas trial, Attorney Kenneth Simon, the petitioner's attorney expert, testified that an attorney might not need to obtain any sort of mitigating evidence during plea negotiations when the parties are heading towards an agreement to the satisfaction of both parties. Moreover, the petitioner has presented no evidence that had this evidence been presented, then it would be reasonable that the petitioner would have received less than the eight years he received. As a result, the court finds that Attorney Gerace's performance during plea negotiations was not ineffective and the petitioner was not prejudiced thereby. Therefore, this claim must also fail.
Finally, the petitioner claims that Attorney Goddard was ineffective for failing to raise the ineffectiveness claims against Attorney Gerace in the petitioner's first habeas. To prevail on this claim, the petitioner must show that Attorney Gerace was ineffective in failing to present mitigating evidence for plea negotiations and sentencing, and that Attorney Goddard was ineffective for failing to raise the claims in the first habeas. See Mukhtaar v. Commissioner of Correction, supra, 158 Conn.App. 438-39. Because the court already determined that Attorney Gerace's performance was not ineffective, the petitioner's claim against Attorney Goddard must also fail.
CONCLUSION
For all of the foregoing reasons, the petition is denied.