Opinion
No. CV 06 4001185
April 17, 2010
MEMORANDUM OF DECISION
The petitioner, Jason Mann, alleges in his petition for a writ of habeas corpus, filed on July 19, 2006 and amended on September 11, 2009, that he was denied the effective assistance of trial and appellate counsel in violation of the sixth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. On May 25, 2001, after a trial to the court (Hudock, J.) in the judicial district of New Haven, he was convicted, under Docket No. CR00-0494779, of possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b), possession of a narcotic substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a(b) and possession of a controlled substance in violation of General Statutes § 21a-279(c). Attorney Glenn Falk represented the petitioner at trial. He filed a motion to suppress the narcotics evidence, which was denied by the court (Hudock, J.) on May 25, 2001.
On August 7, 2001, the trial court (Hudock, J.) sentenced the petitioner to a total effective sentence of seventeen years imprisonment, suspended after twelve years, followed by five years of probation. The petitioner appealed from the judgment of conviction, claiming that "the court improperly denied his motion to suppress the crack cocaine and marijuana seized from a search of his person during a warrantless police entry into his apartment in violation of his fourth amendment rights." State v. Mann, 76 Conn.App. 48, 50, 818 A.2d 122 (2003), overruled by 271 Conn. 300, 857 A.3d 329 (2004). The Appellate Court found in the petitioner's favor and reversed the judgment of conviction. Id. The Supreme Court, however, granted the state's petition for certification to appeal from the judgment of the Appellate Court and reversed the judgment. State v. Mann, 271 Conn. 300, 857 A.2d 329 (2004), cert. denied, 544 U.S. 949, 125 S.Ct. 1711, 161 L.Ed.2d 527 (2005). Attorney Falk also represented the petitioner on appeal.
The petitioner's petition for a writ of habeas corpus came before this court for a trial on the merits on December 22, 2009. Testifying were the petitioner, Attorney Falk and Dr. Barry Roth, the petitioner's substance abuse expert. Both parties submitted exhibits including transcripts of the criminal proceedings, the Supreme Court decision and Dr. Roth's evaluations of the petitioner. Post-trial briefs were filed on March 8, 2010.
FACTS
As stated by the Appellate Court, the following facts regarding the underlying offenses were not disputed: "At approximately 4:25 a.m. on October 3, 2000, three uniformed New Haven police officers, Christopher Rubino, Julie Esposito and Victor Fuentes, responded to a call that a dispute was taking place on Stevens Street near Sylvan Avenue in New Haven. When the officers arrived in the area, they spoke to a woman who identified herself as Tina Jones. Jones admitted having been part of the dispute on Stevens Street and volunteered information about drug activity in the area. She told the officers that an apartment at 130 Sylvan Avenue had just received a shipment of drugs, that the recipient of the drugs was a black male, that `they dealt everything out of that apartment' and that she was unsure as to whether there were weapons in the apartment. Jones described the apartment as being on the first floor, last door on the left, when the building is entered from the rear.
"After receiving the information from Jones, the officers proceeded to the apartment at 130 Sylvan Avenue. They entered 130 Sylvan Avenue from the unlocked rear door. At approximately 5 a.m., Rubino knocked on the door of the apartment described by Jones. Although in uniform, the officers did not at anytime announce themselves as police. The defendant responded by opening the door one-and-one-half to two feet, which was wide enough for the defendant's entire body to be visible. Upon opening the door and seeing the police, the defendant attempted to close the door using his left hand and the left side of his body. Simultaneously, the defendant placed his right hand into his right pocket. When Rubino saw the defendant place his right hand in his pocket, he drew his gun, entered the apartment, placed the defendant against a wall and conducted what he described as `a Terry patdown' for weapons. No weapons were found, but Rubino did, in conducting the patdown, determine that the defendant's right pants pocket `had a quantity of plastic baggies with little rocklike things in them,' which Rubino identified as possible narcotics. After completing the patdown and assuring himself that the defendant had no weapons, Rubino reached into the defendant's right pocket and withdrew its contents, which included fifty small bags containing crack cocaine and four small bags containing marijuana. Thereafter, the defendant was arrested and charged with various offenses relating to his possession of the crack cocaine and the marijuana." State v. Mann, supra, 76 Conn.App. 50-51.
DISCUSSION
In his amended petition, the petitioner alleges that Attorney Falk rendered ineffective assistance by, inter alia, (1) failing to properly investigate and present a defense of drug dependency, including presenting expert testimony, (2) failing to adequately prepare the petitioner to testify, (3) advising the petitioner to waive his right to a jury trial and (4) failing to adequately raise a state constitutional claim on appeal.
The petitioner alleges other "errors" by counsel in his amended petition; however, they are deemed abandoned, as he has failed to brief them. The petitioner also raises other claims in his amended petition, such as that his detention is illegal because his conviction rests upon the deprivation of his constitutional right to confront witnesses under the fifth amendment to the United States constitution. These claims are likewise deemed abandoned for failure to present any evidence related to them and/or to brief them.
"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). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. 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 . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier. (Citations omitted; emphasis in original; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
"Judicial 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 defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." (Citations omitted; internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 689.
Similarly, "[a] habeas court will not, with the benefit of hindsight, second guess the tactical decisions of appellate counsel. Legal contentions, like the currency, depreciate through over-issue . . . [M]ultiplying assignments will dilute and weaken a good case and will not save a bad one . . . The effect of adding weak arguments will be to dilute the force of the stronger ones." (Internal quotation marks omitted.) Farnum v. Commissioner of Correction, 118 Conn.App. 670, 679, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010). "[W]hen a petitioner is claiming ineffective assistance of appellate counsel, he must establish that there is a reasonable probability that but for appellate counsel's error, the petitioner would have prevailed in his direct appeal." (Internal quotation marks omitted.) Turner v. Commissioner of Correction, 118 Conn.App. 565, 568, 984 A.2d 793 (2009).
I. Failure to Adequately Present a Defense of Drug Dependency
The petitioner claims that Attorney Falk rendered ineffective assistance by failing to adequately present a defense of drug dependency. Specifically, he contends that Attorney Falk should have more thoroughly investigated his drug dependency and should have presented expert testimony in support thereof at the criminal trial.
General Statutes § 21a-278(b) provides in relevant part: "Any person who . . . possesses with the intent to sell or dispense . . . any narcotic substance . . . and who is not, at the time of such action, a drug-dependent person, for a first offense shall be imprisoned not less than five years or more than twenty years . . ." "To obtain a conviction under § 21a-278(b), the state must prove that the defendant possessed narcotics with the intent to sell them. [T]he absence of drug dependency is not an element of the offense . . . Rather, [proof of drug dependency provides] an exemption from liability that must be proved by the defendant . . . [A] person charged with sale of narcotics pursuant to § 21a-278(b) is presumed not to have been drug-dependent, but may avoid liability under § 21a-278(b) by proving by a preponderance of the evidence that he was drug-dependent at the time of the offense." (Internal quotation marks omitted.) State v. Fernandez, 76 Conn.App. 183, 191, 818 A.2d 877, cert. denied, 264 Conn. 901, 823 A.2d 1220 (2003).
"`Drug-dependent person' means a person who has a psychoactive substance dependence on drugs as that condition is defined in the most recent edition of the `Diagnostic and Statistical Manual of Mental Disorders' of the American Psychiatric Association . . ." General Statutes § 21a-240(19). "Under the factors established by the American Psychiatric Association in the mental disorders manual, an individual must exhibit three or more of the seven designated criteria to be classified as `drug-dependent.'" State v. Stewart, 77 Conn. 393, 401, 822 A.2d 392, cert. denied, 265 Conn. 906, 831 A.2d 253 (2003). "Testimony of a medical expert . . . is not required . . . Rather, all that is necessary is substantial evidence of drug dependency." (Citations omitted.) State v. Little, 32 Conn.App. 842, 846, 632 A.2d 43 (1993).
Attorney Falk testified at the habeas trial that he has worked for the New Haven Legal Assistance Association since 1985 and that his focus has been on criminal law since 1995. He attended undergraduate school at Harvard College and received his law degree from Harvard Law School in 1985. By the time he represented the petitioner, he had tried several drug cases and handled hundreds that did not proceed to trial. Attorney Falk testified that he believed the only way to win the petitioner's case was to have the drugs seized by the police suppressed. His focus accordingly was on the motion to suppress. Upon denial of that motion, he attempted to establish the petitioner's drug dependency by having the petitioner testify.
Attorney Falk characterized the petitioner's claim of drug dependency as questionable because he felt that he had to push the petitioner to make the claim. In fact, Attorney Falk described the petitioner as a fairly uncommunicative client. Moreover, in his experience a drug-dependent client typically had withdrawal symptoms, asked for a rehabilitation program and had a criminal record consisting of petty possession, criminal trespass and burglary charges. The petitioner did not have any withdrawal symptoms and seemingly believed he could conquer his alleged drug addiction on his own. Additionally, his criminal record primarily consisted of prior convictions for drug sales.
The petitioner had two prior drug sale convictions; one in 1989 and one in 1994. (Exhibit B, p. 8.)
As for his failure to present expert testimony related to the drug dependency claim, Attorney Falk explained that he decided not to present expert testimony because based on his past experience extensive evidence of drug use can adversely affect a client's credibility and be used to justify a harsher sentence. Specifically in the petitioner's case, he also feared that information reported to the expert could jeopardize the petitioner's standing in the motion to suppress. He explained that evidence that the apartment was a crack house or otherwise the site of criminal activity could have come out, which would have undermined the petitioner's claim to an expectation of privacy therein. Attorney Falk also stated that he did not want the drug dependency issue to detract from the main thrust of the defense, the motion to suppress.
Dr. Roth, a psychiatrist certified in addiction psychiatry, testified at the habeas trial that the petitioner was drug-dependent at the time of the underlying offenses, meeting six out of the seven criteria of the Diagnostic and Statistical Manual (DSM IV). The only criteria that the petitioner did not meet was that of withdrawal. Dr. Roth indicated, however, that a person can be drug-dependent without exhibiting symptoms of withdrawal. His opinion was based on his review of the criminal trial transcript and a forty-five minute interview that he had with the petitioner on February 23, 2009. Despite Dr. Roth's testimony, this court finds that the petitioner has not met his burden in demonstrating that Attorney Falk performed deficiently regarding the defense of drug dependency. As noted supra, "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." Strickland v. Washington, supra, 466 U.S. 689. Accordingly, it is necessary to evaluate counsel's conduct from his perspective at the time. Id. Moreover, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005). Given this strong presumption and in light of Attorney Falk's testimony, this court concludes that Attorney Falk's decision not to call an expert witness to support the defense of drug dependency was a reasonable tactical decision. He believed he could prevail on the motion to suppress and made decisions to keep the focus on that issue and to prevent anything from jeopardizing it. Under the circumstances presented by the petitioner's case, this court cannot conclude that Attorney Falk's actions were unreasonable. Notably, the petitioner initially prevailed on the suppression issue in the Appellate Court. See State v. Mann, supra, 76 Conn.App. 48.
The seven criteria are as follows: "(1) tolerance; (2) withdrawal; (3) the substance is often taken in larger amounts or over a longer period than was intended; (4) there is a persistent desire or unsuccessful efforts to cut down or control substance abuse; (5) a great deal of time is spent in activities necessary to obtain [or use] the substance or recover from its effects; (6) important social, occupational or recreational activities are given up or reduced because of substance abuse; and (7) the substance use is continued despite knowledge of having a persistent or recurrent physical or physiologic problem that is likely to have been caused or exacerbated by the substance." (Exhibit 2, p. 13.)
In any event, even if this court were to find Attorney Falk's performance to be deficient, the petitioner's claim of ineffective assistance of counsel would still fail because the petitioner has not met his burden in establishing that he was prejudiced by the deficient performance. If Attorney Falk had an expert opine, as Dr. Roth did, that the petitioner was drug-dependent at the time of the underlying offense, it does not necessarily follow that the trial court would have found the petitioner to have been drug-dependent. "It is well settled that the trier of fact can disbelieve any or all of the evidence proffered . . . including expert testimony, and can construe such evidence in a manner different from the parties' assertions." (Internal quotation marks omitted.) State v. Fernandez, supra, 76 Conn.App. 193. Nonetheless, the petitioner argues that if an expert testified that the petitioner met six of the seven DSM IV criteria, the trial court would have to find the petitioner drug-dependent as matter of law.
In support of this argument, the petitioner relies on the case of State v. Ray, 290 Conn. 602, 967 A.2d 148 (2009). That case, however, is distinguishable from the petitioner's case. While it is true that the defendant in Ray only met four of the seven DSM IV criteria and that the Supreme Court held that he had, as a matter of law, met his burden in proving that he was drug-dependent, the defendant also had established "a lengthy, unbroken history of drug dependency" and had "presented overwhelming evidence that he was drug-dependent at the time of the offenses." (Emphasis added.) State v. Ray, supra, 290 Conn. 632. "[T]he defendant had been in and out of drug treatment since the 1980s and repeatedly had been diagnosed as drug-dependent, most recently in April 2001." Id. The underlying offenses occurred around November 2001. Id., 606. In contrast, in the petitioner's case, an expert's diagnosis of drug dependency at the time of trial seemingly would have been the first time that the petitioner would have been diagnosed as drug-dependent, and the only drug treatment that the petitioner ever received was in 1989, eleven years prior to the offenses underlying his petition.
Furthermore, the trial court sentenced the petitioner to more than the mandatory minimum required under § 21a-278(a). On that charge alone, he was sentenced to fourteen years imprisonment, suspended after nine years, followed by five years of probation. (Exhibit B, p. 27.) At the sentencing hearing the trial court heard from the petitioner's mother who detailed some of the struggles in the petitioner's life and who stressed that the petitioner was drug-dependent and in need of drug rehabilitation. (Exhibit B, pp. 14-18.) Although the petitioner could have spoken on his own behalf concerning his drug use at sentencing, he chose not to speak. (Exhibit B, p. 18.) Based on the petitioner's criminal record, which consisted of prior convictions for sale of narcotics and for carrying a pistol without a permit, the presentence report and other considerations, such as the reality that drug crimes are not necessarily victimless crimes, the trial court sentenced the petitioner beyond the mandatory minimum. (Exhibit B, pp. 19-25.) There is no indication that the trial court's finding that the petitioner was not drug-dependent significantly influenced his sentencing. Accordingly, there is no reasonable probability that but for Attorney Falk's failure to adequately present a defense of drug dependency the result of the criminal proceedings would have been different.
It is also worth noting that "[a] defendant who . . . puts forth unrebutted evidence of his own drug dependency, still may be subject to conviction under [General Statutes] § 21a-277, a lesser offense included within § 21a-278." Goodrum v. Commissioner of Correction, 63 Conn.App. 297, 315, 776 A.2d 461, cert. denied, 258 Conn. 902, 782 A.2d 136 (2001). Under General Statutes § 21a-277(a), "[a]ny person who . . . possesses with the intent to sell or dispense . . . a narcotic substance . . . shall be imprisoned not more than fifteen years . . . and for a second offense shall be imprisoned not more than thirty years . . ." Thus, even if the petitioner had been successful in proving his drug dependency, he could have faced conviction under § 21a-277(a) and as at least a second-time offender, he would have been exposed to thirty years imprisonment as opposed to twenty years under § 21a-278(a). In short, the petitioner has failed to prove that Attorney Falk was ineffective in his presentation of a defense of drug dependency.
II. Failure to Adequately Prepare the Petitioner to Testify
In his amended petition, the petitioner also alleges that Attorney Falk rendered ineffective assistance by suggesting that he testify and then failing to adequately prepare him to testify regarding his claim of drug dependency. Specifically, he contends that Attorney Falk should not have advised him to testify and should have at least reviewed the DSM IV criteria with him before he testified. The petitioner also points to the fact that Attorney Falk never came to see him in prison as evidence that he could not have adequately prepared him to testify.
The petitioner has failed to establish that Attorney's Falk advice that he testify constituted anything but sound trial strategy. "[T]he if and when of whether the accused will testify is primarily a matter of trial strategy to be decided between the defendant and his attorney." (Internal quotation marks omitted.) State v. Easton, 111 Conn.App. 538, 542, 959 A.2d 1085 (2008), cert. denied, 290 Conn. 916, 965 A.2d 555 (2009). Having decided not to present expert testimony regarding the petitioner's claim of drug dependency it was within the wide range of reasonable assistance for Attorney Falk to recommend that the petitioner testify on his own behalf regarding his drug dependency. The Supreme Court has recognized that "[a] defendant's drug dependency at the specific point of time in the past at which the offense occurred is certainly a matter . . . within his own knowledge." State v. Hart, 221 Conn. 595, 610, 605 A.2d 1366 (1992).
The petitioner has likewise failed to establish that Attorney Falk did not adequately prepare him to testify in support of his claim of drug dependency. At the habeas trial, the petitioner testified that he did not tell Attorney Falk about his drug dependency until during the criminal trial. He also testified at first that Attorney Falk did not spend any time preparing him to testify and then a little later on he stated that he spent about two minutes preparing him to testify. Attorney Falk testified that after the trial court denied the motion to suppress he asked the petitioner if he wanted to proceed or seek a continuance, to which the petitioner replied: "Let's get it over with." (December 22, 2009 Habeas Trial Transcript, p. 104.) He also credibly testified that he went over the questions that he intended to ask the petitioner, which he had gotten from the DSM IV and used in previous cases, and discussed how to handle the petitioner's Department of Correction medical records, which he believed were unfavorable to the claim of drug dependency, with the petitioner. In light of Attorney Falk's testimony and the circumstances surrounding the decision that the petitioner testify, this court finds that Attorney Falk's preparation of the petitioner to testify also falls within the wide range of reasonable assistance.
In any event, the petitioner has also failed to demonstrate any resulting prejudice. That is, there is insufficient evidence that had Attorney Falk better prepared the petitioner to testify his testimony would have somehow been more beneficial and changed the result of the trial. "Mere conjecture and speculation are not enough to support a showing of prejudice." (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009). The petitioner's claim that Attorney Falk rendered ineffective assistance by advising him to testify and failing to adequately prepare him to testify has no merit.
III. Advising the Petitioner to Waive His Right to a Jury Trial
The petitioner also claims that Attorney Falk was ineffective in advising him to waive his right to a jury trial and to proceed to a court trial before a judge, Judge Hudock, who had only months earlier found the petitioner in violation of probation based on the underlying charges. He argues that Attorney Falk had no reason to believe that Judge Hudock would show any leniency and would contradict his earlier findings.
Attorney Falk testified that he advised the petitioner to waive his right to a jury trial and to proceed to trial before a judge because he thought that he would most likely get a lesser sentence from a judge after electing a court trial than he would get from a judge after going through a full jury trial, as the main issue in his case was the motion to suppress. There apparently was no dispute that the petitioner possessed the drugs and that he intended to sell them. Although Judge Hudock did preside over the petitioner's violation of probation hearing, Attorney Falk testified that he did not participate in any of the pretrial proceedings in the petitioner's criminal case. He also testified that Judge Hudock was a prosecutor prior to becoming a judge and that based on his experience as a criminal defense attorney prosecutors make better judges, that is, for the defense, presumably. Additionally, even though he had never tried any cases before Judge Hudock prior to the petitioner's case, Falk had experience with Judge Hudock as a pretrial judge and had inquired of his reputation in the courthouse. Falk testified that Judge Hudock had favorably sentenced some of his other clients following pretrials. In fact, the petitioner's case, Falk testified, was Judge Hudock's first trial.
Moreover, the trial court thoroughly canvassed the petitioner regarding his waiver of his right to a jury trial and his election of a court trial. (Exhibit A1.) The trial court asked the petitioner if he had an opportunity to discuss his election with his attorney and if he was satisfied with the advice that he received from his attorney; he replied, "yes," to both questions. (Exhibit A1, p. 5.) After explaining the differences between a jury trial and a court trial, the trial court also asked the petitioner whether he wished to talk to his attorney about anything that had just been discussed, to which the petitioner replied in the negative. (Exhibit A1, pp. 6-7.) Throughout the canvass, the trial court also repeatedly asked the petitioner if he had any questions; the petitioner stated that he did not have any. (Exhibit A1, pp. 4-7.)
Based on the foregoing, this court finds that Attorney Falk's advice falls within the wide range of reasonable professional assistance. He made a tactical decision in recommending that the petitioner elect a court trial. The petitioner elected a court trial. Regardless, the petitioner has not demonstrated by any means that he would have fared better before a jury.
IV. Failure to Adequately Present State Constitutional Claim on Appeal
In addition to alleging that Attorney Falk rendered ineffective assistance as trial counsel, the petitioner also alleges that he rendered ineffective assistance as appellate counsel. Specifically, the petitioner contends that Attorney Falk failed to adequately raise a state constitutional claim challenging the search and seizure that occurred inside the petitioner's apartment. He stresses that the Appellate Court, and consequently the Supreme Court, did not address the state constitutional claim because the petitioner had failed to provide an independent analysis of it.
In its decision, the Supreme Court noted as follows: "The defendant also claimed that his rights under article first, § 7, of the Connecticut constitution were violated. Because the defendant had failed to provide an independent analysis of his state constitutional claim, however, the Appellate Court did not address it. State v. Mann, 76 Conn.App. 48, 50 n. 2, 818 A.2d 122 (2003)." State v. Mann, supra, 271 Conn. 303 n. 2.
Regardless of whether Attorney Falk was deficient with respect to raising a state constitutional claim on appeal, the petitioner has not met his burden in establishing that but for Attorney Falk's deficient performance he would have prevailed on appeal. Besides stating in general that the constitution of Connecticut provides greater protection from unreasonable searches and seizures than the fourth amendment of the United States constitution, the petitioner has not demonstrated that it is unlawful under the state constitution for a police officer to cross the threshold of a person's home to conduct a patdown based on a reasonable and articulable suspicion that the person is armed. Attorney Falk testified that he did not find any state legal authority on point and that the issue of officer safety is the same under the state and federal constitutions. Moreover, even though the Supreme Court did not address the state constitutional claim, it noted "the state's weighty interest in promoting the safety of its police officers and the diminished expectation of privacy that the occupant of a dwelling has in what the police can observe through a door that that occupant voluntarily has opened." State v. Mann, supra, 271 Conn. 317. Given these comments and absent any authority to the contrary, there is no reasonable probability that the petitioner would have prevailed on the state constitutional claim if it had been properly before the Appellate and Supreme Court. Consequently, the petitioner's claim of ineffective assistance of counsel fails.
CONCLUSION
The petitioner has failed to establish deficient performance and prejudice with respect to the conduct of attorney Falk as both trial and appellate counsel. Based on the foregoing, the petition for a writ of habeas corpus is denied. Judgment may enter in favor of the respondent. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.