Opinion
CV124004920S
03-09-2016
Martyn Bruno (#173522) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Hon. Vernon D. Oliver, J.
The petitioner, Martyn Bruno, initiated this petition for a writ of habeas corpus, claiming that his prior habeas counsel, underlying criminal trial counsel and direct appeal counsel provided him ineffective legal representation related to his underlying trial. He further asserts that he was not competent to stand trial and that he did not personally waive his right to trial by jury. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The court finds the issues for the RESPONDENT and DENIES the petitions.
I
Procedural History
In the criminal matter State v. Martyn Bruno, CR91-00073668, the petitioner, after a trial before a three-judge panel (Pickett, J., Susco, J., and Fineberg, J.), was convicted of murder, in violation of Connecticut General Statutes § § 53a-54a and 53a-8(a) and three counts of tampering with physical evidence, in violation of General Statutes § § 53a-155(a)(1) and 53a-8. On August 6, 1993, the court sentenced the petitioner to a total effective sentence of sixty years to serve. The petitioner was represented at trial by attorneys Joseph Keefe and Lawrence Peck. The petitioner appealed the conviction, and the Connecticut Supreme Court affirmed the judgment. State v. Bruno, 236 Conn. 514, 673 A.2d 1117 (1996). On appeal, the petitioner was represented by attorney Daniel Fabricant. In affirming the underlying judgment, the court made the following findings of fact.
" The court reasonably could have found the following facts. During the evening of July 17, 1991, David Rusinko was killed while " partying" at an isolated cabin in New Hartford with the defendant, Brian Bingham and Cara Ignacak. At that time, Rusinko and the defendant were both in their mid-thirties and had been friends for many years. Bingham, then sixteen years old, had been a frequent drinking companion of the defendant for several months. Bingham and the defendant often visited the property of an abandoned summer camp that abutted the defendant's home, which consisted of 175 acres of wooded property and a number of structures, including a garage-like structure known as the " lower camp, " and a three-room cabin with a porch known as the " upper camp." Bingham was also acquainted with Rusinko, who was a neighbor, and they occasionally socialized together. Ignacak, then eighteen or nineteen years old, had been Bingham's girlfriend of three and one-half weeks. She had known Bingham from high school for approximately two years before they started dating, had met the defendant several times during the few weeks she and Bingham had been dating, and had met Rusinko for the first time on the day that he was killed.
" During the afternoon of July 17, 1991, Bingham sought out Rusinko in New Hartford to ask him to buy liquor and to meet him later that evening, which Rusinko agreed to do. At approximately 6 p.m., Bingham and Ignacak went to the defendant's home and the three went to the lower camp. While there, the defendant told them that he was angry at Rusinko for his role both in the defendant's most recent conviction for drunk driving and in a problem with a drug deal, and that he wanted to kill Rusinko.
" The defendant and Bingham left the lower camp at 7:30 p.m. on Bingham's motorcycle to buy liquor and to meet Rusinko and invite him to spend the evening with them. They met Rusinko on the road and he agreed to join them and continued on to the lower camp on his bicycle. The defendant and Bingham returned a few minutes later with beer and vodka, and the four remained there for a short time drinking and talking. According to Bingham, the defendant, while at the lower camp, asked him to step in and help if Rusinko started to get the best of him in a fight, and Bingham agreed to do so.
" At approximately 8 p.m., the group moved to the cabin at the upper camp. Shortly after their arrival, while Rusinko was inside the cabin, the defendant joined Bingham and Ignacak on the porch and again told them that he intended to harm Rusinko. Shortly thereafter, the defendant began yelling at and shoving Rusinko, but stopped when Ignacak suffered a seizure of some sort. After Ignacak had recovered, the altercation between the defendant and Rusinko resumed, and Bingham stepped in and knocked Rusinko to the floor. The defendant and Bingham then proceeded to beat Rusinko into unconsciousness, first by punching and kicking him, and then by hitting him with pieces of metal pipe that had been lying about the cabin. The defendant next attempted to break Rusinko's neck and, when that failed, slashed his throat. When it appeared that Rusinko was dead, the defendant and Bingham rolled his body into the fire in the cabin's fireplace, along with the steel pipes used to beat him, glass beer bottles and the defendant's sneakers. At approximately 11:30 p.m., when Rusinko's body was " starting to bubble, " Bingham and Ignacak left the cabin to bring Ignacak home. The defendant spent the night at the cabin.
" The defendant and Bingham returned to the cabin one or two days later to dispose of Rusinko's remains and to conceal other evidence of the murder. They smashed Rusinko's bones in the fireplace, collected them into a plastic bag, and disposed of them in an outhouse at the camp. Police investigating the murder recovered a small amount of human skeletal remains from the outhouse, which were identified as Rusinko's. The defendant and Bingham also threw off the porch the steel pipes that had been burned in the fireplace, attempted to cover blood stains around the cabin with fresh paint, burned the porch railings and the plastic bag and, sometime later, disassembled and buried Rusinko's bicycle.
At trial, the defendant testified in his own defense. He claimed that during the day and evening of the murder he had consumed a great deal of alcohol and Valium and, as a result, had experienced a blackout that evening at the upper camp, which left him unable to remember Rusinko's murder. He admitted to concealing the evidence of the murder with Bingham. His theories of defense were: (1) that Bingham and Ignacak had killed Rusinko without his participation; and (2) that, due to his consumption of alcohol and Valium preceding the murder, he had been unable to form the requisite specific intent to murder Rusinko. The trial court convicted the defendant on all counts except for conspiracy to commit murder, and denied his motions for acquittal and for a new trial.State v. Bruno, 236 Conn. 514, 517-21, 673 A.2d 1117 (1996).
The Court recounted the following additional facts.
" The state presented substantial evidence to contradict the defendant's claim that he had experienced a blackout during Rusinko's murder and, therefore, that he had been incapable of forming the requisite intent to kill. First, the testimony of Bingham and Ignacak provided both direct and circumstantial evidence of the defendant's intent to kill Rusinko. According to Bingham and Ignacak, whose testimony the trial court found credible, before the murder the defendant said that he was angry with Rusinko for his role in the loss of the defendant's driver's license, and for his role in the defendant's problems with a " drug deal connection." He said several times that Rusinko " had to pay, " and talked of killing him. In response to Ignacak's suggestion that he shoot Rusinko instead of killing him, the defendant said that that would be too good for Rusinko, that " he wanted to fuck [Rusinko] up, " and, specifically, that he " want[ed] to beat David Rusinko to death."
" With regard to the murder, Bingham and Ignacak testified that as the defendant had delivered blows to Rusinko with his hands and feet, he had assigned reasons for them, such as " [t]his is for the DWI, this is for the cocaine, this is for the loss of my license." Bingham then retrieved an aluminum pipe and struck Rusinko with it. After the aluminum pipe bent, Bingham, at the defendant's request, retrieved a steel pipe with which he, and then the defendant, " [f]orcefully, " holding the pipe " sometimes . . . like a baseball bat, sometimes . . . with both hands up and over the head and coming down, " struck Rusinko.
" At some point during the beating, Bingham asked the defendant whether he had done enough damage. The defendant replied " [n]o, that's not enough. I'm going to fuckin' kill him" and stated that if he were to stop at that point, Rusinko might go to the police. He then resumed striking Rusinko in the head with a steel pipe " with what appeared to be all his might." A short time later, the defendant paused to have Bingham break Rusinko's neck. Dissatisfied with Bingham's efforts, he attempted to do so himself by jumping on Rusinko's neck as his head lay propped on the porch railings. Finally, because Rusinko appeared still to be breathing, the defendant asked Bingham for his knife, and when Bingham refused, the defendant used his own knife and then a piece of glass to cut Rusinko's throat, saying " [d]ie . . . why don't you just die." Ignacak indicated however, that Rusinko was still alive, so the defendant again struck Rusinko's head with a piece of pipe, at which point it was " all blood." Finally, the defendant rolled the victim's body into the fireplace and, using boards pulled off the interior cabin walls, proceeded to incinerate him.
With regard to the defendant's state of sobriety on the night of the murder, Bingham and Ignacak testified that when they had arrived at the defendant's home on the evening of the murder, they had noticed that he had been drinking, but that, according to Ignacak, he had " seemed fine." Ignacak stated that although she had not paid attention to what the defendant drank that evening, he had appeared intoxicated when the attack on Rusinko began, but had seemed to " sober up" shortly thereafter. She testified further that the defendant had seemed to have been in control of his actions and had had no difficulty in his coordination, either in walking up the hill to the upper campsite or wielding a pipe to beat Rusinko. Bingham also testified that during the extended assault on Rusinko, the defendant had not appeared intoxicated; he spoke normally and had administered blows to Rusinko in a coordinated way, not missing Rusinko once with the pipe.State v. Bruno, supra, 236 Conn. 530.
On or about July 10, 1996, the petitioner, as a self-represented litigant, filed a petition for a writ of habeas corpus, Bruno v. Tarascio, assigned docket number CV97-0395397. In denying the petition, the trial court (Arnold, J.) found the following, in relevant part.
" On July 10, 1996, the petitioner initiated the present habeas corpus proceeding by filing a pro se petition alleging ineffective assistance of counsel. The petitioner subsequently filed amendments to his petition, adding allegations that his rights to a jury trial and a public trial had been violated. The pro se petition and subsequent amended petitions one and two were subsequently supplanted by a third amended petition, which alleges ineffective assistance of trial counsel in that trial counsel waived the petitioner's right to a jury trial without the petitioner's consent. The third amended petition also alleges the ineffective assistance of the petitioner's appellate counsel, in that the appellate counsel failed to present the issue of no jury waiver; and lastly, that the trial court violated the petitioner's right to due process by failing to canvass the petitioner as to his waiver of the right to a jury trial."
" On direct examination during the trial of his habeas corpus petition, the petitioner testified that he had multiple meetings with his two trial attorneys, during which the petitioner and his trial counsel discussed a court trial before a three-judge panel. During these discussions, both trial counsel explained the benefits of a court trial as it pertained to the gruesome nature of the crime. The petitioner now claims that he subsequently informed his counsel that he had changed his mind and now wanted a jury trial, but was informed by his counsel that it was " too late" to make that election. The petitioner admits that he never raised his objection to a court trial before any judge or before the three-judge panel during any proceedings or during the course of his trial. The petitioner also testified that he never raised the issue of his request for a jury trial with his appellate counsel during the entire appeal process. It is noted that the petitioner was arrested in August 1991 for crimes for which he was subsequently convicted. He entered pleas of not guilty and appeared in court with counsel on many occasions prior to his trial. He was convicted by a three-judge panel on June 23, 1993 and was sentenced by said panel on August 6, 1993. The petitioner, thereafter, appealed his conviction to the Connecticut Supreme Court, and in 1996 his conviction was affirmed. State v. Bruno, 236 Conn. 514, 673 A.2d 1117 (1996). None of the claims raised by the petitioner in that appeal involved his present claim that he never waived his right to a trial by jury.
" During the trial of this habeas corpus petition both attorneys who represented the petitioner during his court trial before a three-judge panel, testified that they had discussed a court trial with the petitioner on numerous occasions prior to trial. Their representation of the petitioner began at the time of his arraignment in 1991. Due to the gruesome nature of the crime, as described in State v. Bruno, 236 Conn. 514, 673 A.2d 1117 (1996), they advised the petitioner of the benefits of having this type of evidence presented to a three-judge panel rather than a jury. Both counsel testified that the petitioner fully understood their reasoning for this strategy and that he consented to trial before a three-judge panel. This occurred on a minimum of five occasions. At no time did counsel ever inform the petitioner that it was " too late" to elect a trial by jury, and at no time did the petitioner request a change of election from a court trial to a jury trial. A private investigator retained by the petitioner's attorneys was also present at several conferences held with the petitioner, and he also confirmed that the petitioner understood the reasons for electing a court trial, and that the petitioner was in agreement with that decision.
" A review of the exhibits, including court transcripts, reveals the petitioner was presented in court on August 12, 1991. He was informed by the court of his right to a trial by the court or by a jury. When questioned by the court if he understood this right, the petitioner responded " yes." On September 18, 1991 after a hearing in probable cause was held, the court determined that probable cause for murder did exist. The petitioner, through his trial counsel, requested that the petitioner's plea election be deferred to his next court date which was to be October 2, 1991. It appears from the record and exhibits provided to this habeas court that the petitioner next appeared in court on October 7, 1991. At that time the clerk's handwritten notations indicate that pleas of not guilty were entered and a jury trial was elected. A transcript of the court proceedings on October 7, 1991 is not available for review by this court.
" A further review of the transcripts and clerk's records reveals that at a January 29, 1993 court appearance for the petitioner's case, the court acknowledged on the record that the petitioner's case was scheduled for a " homicide court trial" before a three-judge panel. The clerk's written record of proceedings also indicates that on March 31, 1993, the court was in receipt of a letter regarding a " three-judge panel." However, that letter is not available for this court to review. The record also indicates that the petitioner's court trial before the three-judge panel commenced on April 13, 1993 and lasted for eleven days during various dates in April 1993 and June 1993. The defendant, as aforementioned, was convicted on June 23, 1993 and sentenced on August 6, 1993. The court has reviewed the available transcripts of the hearing in probable cause, the trial and the sentencing, and cannot find a plea canvass by the court on these occasions. Trial counsel testified that a member of the three-judge panel did canvass the petitioner regarding his election for a court trial during one of the petitioner's court appearances for a pretrial conference, but those transcripts are not available for review by this habeas court. Trial counsel also testified that the petitioner was canvassed regarding his election for a court trial by the court on an additional occasion, but counsel could not remember the date or the specific judge who conducted the canvass. The petitioner at the time his trial was to commence never addressed the three-judge panel regarding his desire to be tried by a jury, and he never raised the issue to the panel during the course of his trial and sentencing. The petitioner, during the habeas trial, admitted that he had been in court and had been convicted of other crimes prior to his arrest for the present matters. He admitted that he was familiar with court proceedings, a plea canvass and his right to a jury trial.
" The court finds that the petitioner has failed to demonstrate that he was denied the effective assistance of counsel because of his allegation that his attorneys waived his right to a jury trial without his consent. His counsel's performance was not deficient. The petitioner's credibility is lacking. The court finds that the petitioner was fully apprised of his right to a jury trial and the option of a court trial before a three-judge panel. The assertion that he told his counsel that he wanted a jury trial is not credible, in light of the testimony at the habeas trial and in light of a review of the transcripts of the hearing in probable cause and the petitioner's court trial.
" The petitioner must also establish that had he been tried to a jury, there is a reasonable probability that the results of the proceeding would have been different. Only by doing this, can he demonstrate prejudice. A review of the transcripts of the petitioner's trial reveals the strength of the state's case and leads this court to determine that there is no reasonable probability that the outcome would have been different had the petitioner received a trial by a jury. The petitioner again has not demonstrated prejudice from his counsel's alleged failure to appropriately advise him of the consequences of waiving a jury trial. Green v. Lynaugh, 868 F.2d 176 (5th Cir.) (per curiam), cert. denied, 493 U.S. 831, 110 S.Ct. 102, 107 L.Ed.2d 66 (1989); Correll v. Thompson, 63 F.3d 1279 (4th Cir.1995), cert. denied sub nom; Correll v. Jabe, 516 U.S. 1035, 116 S.Ct. 688, 133 L.Ed.2d 593 (1996).
" The petitioner also claims that his appellate counsel was ineffective in failing " to present for review the issue of a lack of proper waiver by the petitioner of his right to jury trial." The petitioner " must prove both deficient performance and prejudice resulting therefrom, " once again. Bunkley v. Commissioner of Correction, 222 Conn. 444, 445, 610 A.2d 598 (1992). Although an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable claim. McIver v. Warden, State Prison, 28 Conn.App. 195, 202, 612 A.2d 103 cert. denied, 224 Conn. 906, 615 A.2d 1048 (1992).
" The petitioner admits that he never raised the issue of his waiver of his right to a jury trial with his appellate counsel. The record and exhibits submitted at the habeas trial do not support the petitioner's claim that he was requesting a trial by jury or that he in any way, protested his court trial before a three-judge panel. The petitioner has failed to demonstrate that his appellate counsel's performance was deficient or that any alleged deficiency resulted in prejudice. He has failed to establish " that because of the failure of his appellate counsel to raise a [certain] claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt." Bunkley, supra, 222 Conn. at 454, 610 A.2d 598.
" The petitioner lastly claims that the trial court erred in failing to canvass him " as to any voluntary or informed waiver of his right to a jury trial." In its amended return dated July 6, 2001 the respondent alleged that the petitioner was not entitled to review of, or relief upon, this claim because it had been procedurally defaulted at trial and on appeal. The respondent further claims that the petitioner could not demonstrate both good cause for the procedural default and actual prejudice arising therefrom. Therefore he was not entitled to a review of his claim.
" A procedural default occurs during a trial when a defendant fails to raise an issue or does not object to a ruling. State v. Evans, 165 Conn. 61, 66, 327 A.2d 576 (1973); State v. Tuller, 34 Conn. 280 (1867). A defendant must use his opportunities to object or he has deemed to have waived his objection.
" Habeas courts are under a duty to make a determination regarding the existence of cause and prejudice. Baez v. Commissioner of Correction, 34 Conn.App. 236, 241, 641 A.2d 147 (1994). Connecticut has adopted the federal cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). This standard is the appropriate standard for reviewability in a habeas court proceeding of constitutional claims not adequately preserved at trial because of a procedural default. Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991). A defaulted constitutional claim will merit habeas corpus review only if the petitioner can demonstrate good cause for his failure to preserve the claim at trial and actual prejudice resulting from the alleged constitutional violation. Bowers v. Commissioner of Correction, 33 Conn.App. 449, 451, 636 A.2d 388 (1994).
" [T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor, external to the defense, impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); Jackson v. Commissioner of Correction, 227 Conn. 124, 137, 629 A.2d 413 (1993). " [T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." Johnson 218 Conn. at 422, 589 A.2d 1214, quoting Murray v. Carrier, 477 U.S. at 486-87.
" A petitioner also must establish that actual prejudice resulted from the error, " infecting his entire trial with error of constitutional dimensions" and denying him " fundamental fairness" at trial. Murray v. Carrier, 477 U.S. at 494. " The showing of prejudice required under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), is significantly greater than that necessary under the more vague inquiry suggested by the words 'plain error.' . . . The habeas petitioner must show not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimension . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) Murray v. Carrier, 477 U.S. at 493-94.
" The petitioner never moved to withdraw the election for a court trial before the three-judge panel or any court prior to his trial before the three-judge panel. He did not appeal the voluntary or knowing nature of his election for a court trial, and by his own admission never informed his appellate counsel of his desire to appeal this issue. He has defaulted his claim both at the trial level and on direct appeal. Absent evidence that his failure to withdraw his election for a court trial was caused by some objective factor external to the defense, good cause for his procedural default does not exist.
" The petitioner has failed to meet his burden of establishing cause and prejudice sufficient to excuse his failure to challenge the validity of his jury waiver at trial or on appeal. He is not entitled to review of, or relief upon, his freestanding challenge to the validity of his waiver.
" The court also agrees with the respondent's position that even if the court were to review the validity of the petitioner's waiver claim, the petitioner has failed to demonstrate that it was not knowingly, voluntarily and intelligently entered . The burden of establishing grounds for relief in a habeas corpus proceeding rests with the petitioner. Biggs v. Warden, State Prison, 26 Conn.App. 52, 55, 597 A.2d 839 (1991). " The petitioner must demonstrate a miscarriage of justice or other prejudice, not merely an error which might entitle him to relief on appeal. Safford v. Warden, 223 Conn. 180, 190, 612 A.2d 1161 (1992). He must show that he is burdened by an unreliable conviction. Bunkley v. Commissioner of Correction, 222 Conn. 444, 461, 610 A.2d 598 (1992).
" A habeas corpus proceeding is a collateral attack on a final judgment of conviction. When collaterally attacked, the judgment of the court carries with it a " presumption of regularity." Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461 (1938). " On collateral attack, a silent record supports the judgment: the state receives the benefit of a presumption of regularity and all reasonable inferences . . ." (Citations omitted.) Higgason v. Clark, 984 F.2d 203, 208 (7th Cir.1993). Therefore, when the petitioner claims he was denied a constitutional right, the burden of proof rests with him to demonstrate that he did not validly waive that right. He cannot rely upon the principles and presumptions applicable to direct appeals. On direct appeals, courts are precluded " from presuming a waiver of the right to a trial by jury from a silent record." State v. Groomes, 232 Conn. 455, 475, 656 A.2d 646 (1995) quoting State v. Williams, 205 Conn. 456, 460-61, 534 A.2d 230 (1987). Based upon the testimony, exhibits and transcripts of prior proceedings the petitioner has failed by the totality of the circumstances to demonstrate that his jury waiver was not knowingly and voluntarily entered .
Accordingly, the court denies the plaintiff's claims and orders that his petition for writ of habeas corpus be dismissed.Martyn Bruno v. Warden John Tarascio, Superior Court, Judicial District of New Haven, Docket No. CV98-416581-S, 2002 WL 450591 (Arnold, J., Mar. 1, 2002), aff'd sub nom; Bruno v. Commissioner of Correction, 74 Conn.App. 910, 815 A.2d 297, cert. denied, 271 Conn. 920, 859 A.2d 577 (2004) (emphasis added).
The petitioner next filed a writ for a petition of habeas corpus in the federal courts wherein he reasserted the claims presented to the state habeas court concerning the jury waiver as well as the claims presented to the Connecticut Supreme Court regarding the sufficiency of the evidence and the trial court's handling of the request for the psychiatric and school records of Bingham and Ignacak. That Court reached the following relevant findings and conclusions.
" A federal court may grant habeas relief to a state prisoner on a claim adjudicated on the merits in state court only when the state court's adjudication of the claim " resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Federal law is " clearly established" if it is found in holdings of the Supreme Court at the time of the state court decision. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision is " contrary to" clearly established federal law " if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or " confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [that precedent]." Id. at 405. The court need not identify or be aware of the governing precedent so long as the court's reasoning and result do not contradict it. See Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). A state court decision is an unreasonable application of clearly established federal law " if the state court correctly identifies the governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the particular case." Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). This inquiry focuses " on whether the state court's application of clearly established federal law [was] objectively unreasonable." Id. The state court's factual findings are entitled to a presumption of correctness, which can be rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see Majid v. Portuondo, 428 F.3d 112, 125 (2d Cir. 2005).
" Claims that have not been adjudicated on the merits in state court due to a procedural default by the petitioner generally do not provide a basis for federal habeas relief. To obtain relief on such a claim, the petitioner typically must show both cause to excuse the default and actual prejudice arising from the alleged violation of federal law on which the claim is based. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). As discussed in detail below, petitioner has not made the showings required by these standards.
" Petitioner claims that his trial counsel rendered ineffective assistance " in that [they] waived [his] right to a jury trial without [his] consent, violating his 6th and 14th Amendment rights . . ." Pet.'s Motion for Judgment, ¶ 1. Courts indulge a presumption that a criminal defendant has not waived fundamental rights guaranteed by the Sixth Amendment, including the right to jury trial and the right to counsel. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). However, a defendant may waive these fundamental rights. Waiver requires " an intentional relinquishment or abandonment of a known right or privilege." Id. Whether a defendant has intelligently waived a fundamental right " must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Id.
" Petitioner's claim that his trial counsel rendered ineffective assistance by waiving a jury trial without his consent is based solely on his own testimony, which has been contradicted by the testimony of his lawyers. As noted earlier, he claims that he initially agreed to a court trial on the assumption that a jury would be impaneled and, when he learned he was mistaken, he promptly told his lawyers he wanted a jury trial but they told him it was too late. The state habeas court rejected petitioner's testimony as " not credible." The state court's adverse credibility finding is amply supported by the testimony at the habeas hearing provided by petitioner's counsel, which the state court was clearly entitled to credit. Given the state court's adverse credibility finding, petitioner's claim that his trial lawyers waived a jury trial without his consent must be rejected as unfounded.
" Petitioner's claim that his appellate counsel was ineffective appears to be based on two distinct grounds: the appellate lawyer's failure to challenge the waiver of a jury trial by petitioner's trial counsel without petitioner's consent (which petitioner appears to refer to as " the illegal waiver"); and the lawyer's failure to challenge the lack of an on-the-record waiver of a jury trial by petitioner himself (which petitioner refers to as " the lack of a proper waiver"). The first of these grounds is clearly unavailing in light of the state habeas court's finding that petitioner did not tell his trial counsel he wanted a jury trial. The second ground is unavailing for the reasons explained below.
" The Supreme Court has never held that a criminal defendant has a constitutional right to an on-the-record colloquy with the court, or some other procedure, before a waiver of the right to a jury trial can be accepted. Nor has the Court held that the Constitution requires such a waiver to be in writing. Moreover, the Second Circuit has stated that courts are not required to conduct a colloquy with a defendant waiving his right to a jury trial, although the Court recommended a colloquy to prevent challenges such as the one presently under discussion. See Marone v. United States, 10 F.3d 65, 67-68 (2d Cir.1993) (stating that " the trial court must satisfy itself that the defendant has intelligently consented, " but explaining that a colloquy is not constitutionally required). Other Circuits are in agreement with this view. See United States v. Sammons, 918 F.2d 592, 597 (6th Cir. 1990) (colloquy not constitutionally required; defendant may attempt to show on habeas review that the waiver was not voluntary, knowing, or intelligent); United States v. Chrans, 869 F.2d 1084, 1087-88 (7th Cir.1989) (determination of whether there has been a valid waiver depends on the circumstances of each case, and the Constitution does not mandate " how long the judge's explanation must be" or that the waiver be in writing).
" In addition, careful review of the record discloses affirmative evidence that petitioner did waive his right to a jury trial. On habeas review, the court may determine whether the defendant waived this right by examining not only the record generated in the course of the underlying criminal proceeding but other evidence as well. See Chrans, 869 F.2d at 1087-88 (in collateral proceeding, record or independent evidence must indicate a valid jury waiver). The transcript of petitioner's trial shows that he was asked at the outset of the trial whether he objected to the inclusion in the three-judge panel of the judge who had presided at his probable cause hearing and he said he did not. If, as he now claims, he did not want to waive his right to a jury trial (and had not intended to do so), the court's question gave him an opportunity to make that clear before the trial went forward. His failure to object makes sense in light of the testimony given by his trial counsel at the habeas hearing that he knowingly and intentionally waived his right to a jury trial and was canvassed by a judge in open court before his waiver was accepted. The written decision of the trial court denying the motion for judgment of acquittal is consistent with the lawyer's testimony; it states that petitioner " waived his right to a jury trial and elected to be tried by a three-judge panel." See State v. Bruno, 1993 WL 280243, *1, No. 18-73668 (Conn.Super. July 14, 1993). Finally, as noted earlier, petitioner's pro se habeas petition filed in state court made no claim concerning the waiver of his right to a jury trial, although it raised numerous other challenges concerning the conduct of his trial counsel. Taking all this evidence into account, I have little doubt that petitioner waived his right to a jury trial.
" As suggested by Adams, so long as there is affirmative evidence of a waiver, " the burden is on the [petitioner] to prove that the waiver was not knowing and voluntary." Strozier v. Newsome, 871 F.2d 995, 998 n.6 (11th Cir.1989) (discussing the right to counsel); see also United States v. DeRobertis, 715 F.2d 1174, 1178 (7th Cir. 1983). Petitioner has not met this burden.
" Petitioner does not dispute the state habeas court's determination that his due process claim based on the trial court's alleged failure to canvass him concerning his jury waiver was procedurally defaulted in the trial court and on direct appeal. Accordingly, the claim cannot be considered on the merits unless petitioner demonstrates that the cause and prejudice test is satisfied. Under this test, " 'cause' . . . must be something external to the petitioner, something that cannot be fairly attributed to him." Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). " Attorney ignorance or inadvertence is not 'cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must 'bear the risk of attorney error.'" Id. (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)).
Petitioner has failed to demonstrate " cause" as thus defined. His memorandum of law seems to suggest that he should be permitted to litigate his claim on the merits because his trial lawyers wrongly told him he could not have a jury trial and his appellate lawyer never met with him to talk about potential issues for appeal. See Pet.'s Mem. at 11-12. As discussed above, however, petitioner's allegation that he told his lawyers he wanted a jury trial must be regarded as false (the state habeas court having so found with ample support in the record). Moreover, it is undisputed that petitioner never raised the issue of the validity of the jury waiver with his appellate lawyer, although he did correspond with him concerning the appeal and thus had an adequate opportunity to do so. Because petitioner has failed to demonstrate cause as required by the cause and prejudice test, this due process claim cannot be considered on the merits.Bruno v. Connecticut Commissioner of Correction, 3:04CV101 RNC, 2006 WL 2839232, at *4-6 (D.Conn. Sept. 29, 2006). The petitioner's petition for a writ of certiorari to the United States Court of Appeals for the second circuit was denied. Bruno v. Lantz et al., 552 U.S. 822, 128 S.Ct. 155, 169 L.Ed.2d 31 (2007).
On August 14, 2009, the petitioner filed a motion for a new trial in the underlying matter. On September 9, 2010, the Court, Ginocchio, J., in denying the motion, made the following relevant findings.
" In June 1993, after a trial to a three-judge panel, the court found the defendant, Martyn D. Bruno, guilty of murder in violation of General Statutes § § 53a-8 and 53a-54a and guilty of three counts of tampering with physical evidence in violation of § 53a-8 and General Statutes § 53a-155(a)(1). On August 6, 1993, the court sentenced the defendant to sixty years incarceration. Thereafter, the defendant appealed his conviction, and on March 26, 1996, the Connecticut Supreme Court affirmed the judgment of conviction. State v. Bruno, 236 Conn. 514, 673 A.2d 1117 (1996).
" Then, on July 10, 1996, the defendant filed a pro se petition for a writ of habeas corpus alleging ineffective assistance of counsel. On December 1, 1997, the defendant filed an amendment to that petition, adding that his right to a jury trial and a public trial had been violated. On June 11, 2001, the defendant filed a third amended petition, which alleged, inter alia, that his trial counsel waived his right to a jury trial without his consent, his appellate counsel failed to present the issue of no jury waiver and the trial court violated his right to due process by failing to canvass the defendant as to the alleged waiver of his right to a jury trial. Bruno v. Tarascio, Superior Court, judicial district of New Haven, Docket No. CV 98 416581, (March 1, 2002, Arnold, J.). The court held a trial on the merits of the defendant's claims on December 6, 2001 and December 10, 2001. Id.
" In its memorandum of decision, the court examined and analyzed all of the defendant's claims and ultimately dismissed the defendant's habeas petition. The court found, among other things, that the defendant's credibility was " lacking" and that he was " fully apprised of his right to a jury trial and the option of the court trial before a three-judge panel" Id. Although the court was unable to fully review the defendant's waiver claim because the defendant could not demonstrate both good cause for the procedural default and actual prejudice arising therefrom, the court noted that " even if [it] . . . were to review the validity of the [defendant's] waiver claim, the defendant has failed to demonstrate that it was not knowingly, voluntarily and intelligently entered." Id. Although the defendant appealed, the Connecticut Appellate Court affirmed the trial court's decision. Bruno v. Commissioner of Correction, 74 Conn.App. 910, 815 A.2d 297 (2003), cert. denied, 271 Conn. 920, 859 A.2d 577 (2004).
" On January 21, 2004, the defendant filed an application for federal habeas corpus relief pursuant to 28 U.S.C. 2254. In that proceeding, the defendant claimed that his conviction was unlawful because: (1) the trial court failed to ascertain whether his jury waiver was knowing and voluntary; (2) his attorneys waived his right to a jury trial without his consent; (3) his appellate counsel failed to raise this issue on appeal; (4) the trial court refused to review the psychiatric records of two witnesses; and (5) insufficient evidence was presented to establish the intent element of murder. On September 29, 2006, the district court denied the petition, and on March 13, 2007, the Second Circuit Court of Appeals denied the defendant's motion for a certificate of appealability and dismissed his appeal. The defendant sought further review from the United States Supreme Court, but his petition for certiorari was denied on October 1, 2007.
" On August 14, 2009, the defendant, through his counsel, filed what he labeled as a " motion for new trial" pursuant to General Statutes § 52-270 and Practice Book § § 42-53 and 42-54. On September 18, 2009, the state filed an objection, to which the defendant filed a response on October 15, 2009. The defendant filed an additional memorandum on July 14, 2010. This matter was heard before the court on July 15, 2010. At that time, the defendant's counsel withdrew his " motion" for a new trial pursuant to § 52-270 . Despite that withdrawal, the defendant continues to pursue his motion for a new trial under the provisions of Practice Book § § 42-53 and 42-54. As a result, the court now addresses the merits of the defendant's motion.
" Approximately sixteen years after his sentencing, the defendant argues that this court should waive the five day requirement under Practice Book § 42-54 and permit a new trial in the interests of justice, particularly in light of the Connecticut Supreme Court's recent decision in State v. Gore, 288 Conn. 770, 955 A.2d 1 (2008). Gore addressed the requirement of a knowing, intelligent and voluntary waiver of the right to a jury trial. Specifically, the defendant argues that Gore supports his motion for a new trial because, in that case, the court held that the record must affirmatively indicate that the defendant knowingly, voluntarily and intelligently waived his right to a jury trial. Absent this finding, the defendant argues, he was deprived a fundamental, substantial constitutional right and should be granted a new trial in the interests of justice. Although the defendant concedes that rule articulated in Gore is prospective, he argues that the Gore holding applies retroactively. Moreover, the defendant argues that the court has jurisdiction to consider a motion for a new trial because Practice Book § 42-53 expressly confers jurisdiction on this court to grant a new trial in the interests of justice. Finally, the defendant argues that, because his motion is founded on Gore a recent decision, the doctrine of res judicata does not apply.
" In its objection, the state raises two main arguments. First, the state argues that the court is without jurisdiction to consider a motion for a new trial because the, court lacks jurisdiction over post-judgment motions. The state also argues that the defendant's motion is untimely because it was filed sixteen years late. The state argues in the alternative that even if the defendant was not barred by procedure or time limits, he would not be entitled to relief sought because he has already litigated his claim and that claim has been resolved against him. Thus, the state asserts that the defendant is barred from re-litigating the same issues. Finally, as to the applicability of Gore, upon which the defendant primarily relies, the state argues that Gore articulates a prospective rule, not a retroactive one, and that, regardless, the Superior Court has already determined that there is sufficient evidence on the record that the defendant knowingly and voluntarily waived his right to a jury trial.
" As a threshold matter, the court must first address the jurisdictional argument raised by the state. " In a criminal case the imposition of sentence is the judgment of the court . . . When the sentence is put into effect and the prisoner is taken in execution, custody is transferred from the court to the custodian of the penal institution. At this point jurisdiction of the court over the prisoner terminates . . . For example, this court has held that a trial court lacked jurisdiction to grant a defendant's motion for judgment of acquittal, alleging insufficient evidence, filed six weeks after he had begun serving his sentence because the court loses jurisdiction over the case when the defendant is committed to the custody of the commissioner of correction and begins serving the sentence." (Citations omitted; internal quotation marks omitted.) State v. Reid, 277 Conn. 764, 775, 894 A.2d 963 (2006). The court agrees with the state that this court has limited jurisdiction, which ends when a prisoner begins serving his or her sentence. See also State v. Das, 291 Conn. 356, 361-70, 968 A.2d 367 (2009); State v. Luzietti, 230 Conn. 427, 431-32, 646 A.2d 85 (1994). Moreover, there is nothing in Practice Book § § 42-53 and 42-54 that grants jurisdiction to this court after a defendant has begun serving his or her sentence.
" Furthermore, even if the court had jurisdiction in the present matter and the defendant's motion was timely, the court concludes that it is not in " the interests of justice" to grant the defendant's motion. In Gore which the defendant cites in support of his motion, the issue before the Connecticut Supreme Court was whether " defense counsel validly waived a jury trial on behalf of the defendant . . . when there [was] no evidence that the defendant also personally waived the right on the record." State v. Gore, supra, 288 Conn. at 770, 772, 955 A.2d 1. During Gore's trial, " [n]either the trial court nor defense counsel asked the defendant whether he consented to the waiver, nor did the defendant personally acknowledge the waiver on the record" Id. at 774-75, 955 A.2d 1. In analyzing whether Gore had knowingly, intelligently and voluntarily waived his right to a jury trial, the court's task was " to determine whether the totality of the record furnishes sufficient assurance of a constitutionally valid waiver of the right to a jury trial, " which was " not to be presumed from a silent record" Id. at 776-77, 955 A.2d 1.
" After concluding that defense counsel alone may not waive a jury trial on the defendant's behalf as a matter of trial strategy, the court analyzed what is constitutionally required to demonstrate that the " defendant, himself, knowingly, intelligently and voluntarily waived a jury trial" and whether " the record must contain some affirmative indication from the defendant personally that he or she is waiving the right to a jury trial, or alternatively, whether counsel's expression of the waiver on the defendant's behalf, combined with the defendant's silence while counsel waives the right to a jury trial, may constitute a knowing, intelligent and voluntary waiver" Id. at 777, 955 A.2d 1. Ultimately, the court concluded that there " must be some affirmative indication from the accused personally, on the record, that he or she has decided to waive the fundamental right to a jury trial because the defendant's silence is too ambiguous to permit the inference that he or she has waived such a fundamental right." Id. at 781-82, 955 A.2d 1.
" Despite this conclusion, the court also noted that " [a]lthough the constitution requires an affirmative indication of a jury trial waiver on the record from the defendant personally, the constitution does not mandate the particular form that this personal waiver must take." Id. at 786, 955 A.2d 1. As a result, the court exercised its " supervisory authority to require prospectively that, in the absence of a written waiver, the trial court must canvass the defendant briefly to ensure that his or her personal waiver of a jury trial is made knowingly, intelligently and voluntarily." Id. at 786-87, 955 A.2d 1. The court decided to exercise this supervisory authority because " prescribing a canvass is appropriate for future cases involving the validity of a jury trial waiver because many of the questions raised about the validity of the waiver would be circumvented by a canvass on the record, particularly given the peculiarly personal nature of the defendant's right to a jury trial" Id. at 787, 955 A.2d 1.
" The court concluded: " Accordingly, in the future, when a defendant, personally or through counsel, indicates that he wishes to waive a jury trial in favor of a court trial in the absence of a signed written waiver by the defendant, the trial court should engage in a brief canvass of the defendant in order to ascertain that his or her personal waiver of the fundamental right to a jury trial is made knowingly, intelligently and voluntarily." (Emphasis added.) Id., at 787-88, 955 A.2d 1. In the recent case of State v. Tocco, 120 Conn.App. 768, 993 A.2d 989, cert. denied, 297 Conn. 917, 996 A.2d 279 (2010), which the Appellate Court decided after Gore the court specifically noted that the Gore court " ruled that its holding applied prospectively" and that the " procedural safeguards afforded by the court in Gore, " did not apply to Tocco because Gore was officially released on September 23, 2008, and the court had already imposed its sentence on the defendant, Tocco, on August 15, 2008. Id. at 778-79 n.4, 955 A.2d 1.
" In the present matter, despite the defendant's arguments to the contrary, the Gore holding does not apply retroactively. The Gore court stated clearly that the canvass requirement was to apply in future cases. Moreover, as illustrated in Tocco, the Gore holding does not apply in the present matter because Gore was officially released on September 23, 2008, and the defendant in the present matter was sentenced on August 6, 1993.
" Additionally, even if the Gore holding applied retroactively, the record furnishes sufficient assurance that the defendant validly waived his right to a jury trial. In the court's memorandum of decision from the defendant's habeas trial, the court noted that the defendant stated " yes" when he appeared in court on August 12, 1991, and was asked by the court if he understood his right to a trial by the court or by the jury. Bruno v. Tarascio, supra, Superior Court, at Docket No. CV 98 416581. Moreover, although the court noted that several transcripts were unavailable for review, the court stated that " [t]rial counsel testified that a member of the three-judge panel did canvass the [defendant] regarding his election for a court trial during one of the [defendant's] court appearances for a pretrial conference" and " [t]rial counsel also testified that the [defendant] was canvassed regarding his election for a court trial by the court on an additional occasion." Id. Furthermore, during his habeas trial, the defendant " admitted that he had been in court and had been convicted of other crimes prior to his arrest for the present matters, " and " that he was familiar with court proceedings, a plea canvass and his right to a jury trial." Id.
" Finally, based on the habeas trial, the court also concludes that the defendant has fully litigated the issues with respect to his claim that he did not knowingly and voluntarily waive his right to a jury trial. " The related doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter that it already has had a fair and full opportunity to litigate . . . Collateral estoppel, or issue preclusion, means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit . . . [Thus] [i]ssue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment . . . The doctrine of collateral estoppel express[es] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest." (Citations omitted; internal quotation marks omitted.) In re Application for Writ of Habeas Corpus by Dan Ross, 272 Conn. 653, 661, 866 A.2d 542 (2005). " [W]e limit the application of the doctrine of res judicata . . . to claims that actually have been raised and litigated in an earlier proceeding." (Internal quotation marks omitted.) Id. at 662, 866 A.2d 542.
The defendant argues that, because his motion is premised on Gore he has not already litigated his claims. As previously noted, Gore does not apply to the present matter because the defendant was sentenced in 1993, well before Gore was released in 2008. Moreover, simply because a motion is based on a recent opinion does not mean that certain claims or issues have not already been litigated. Thus, the court concludes that the issue of whether the defendant knowingly, intelligently and voluntarily waived his right to a jury trial has already been litigated and is now barred on the present motion. For all of the foregoing reasons, the defendant's motion for a new trial is denied. So ordered.State v. Bruno, Superior Court, Judicial District of Litchfield, Docket No. CR91-73668, 2010 WL 4073522, at *1-6 (Ginocchio, J., Sept. 13, 2010).
On appeal from the motion for a new trial, the decision of the trial court was affirmed. In so doing, that reviewing court made the following findings of fact.
" The facts underlying the defendant's criminal conviction are set forth at length in State v. Bruno, 236 Conn. 514, 673 A.2d 1117 (1996). As the sentence review division stated in a subsequent proceeding, " [t]he crime was clearly one of the most vicious, cruel and senseless crimes that one could imagine. The victim was the [defendant's] friend. The victim begged the [defendant] for his life before the [defendant] brutally bludgeoned the victim to death. If that was not enough disrespect for human life, the [defendant] then burned the victim's remains to conceal the crime." State v. Bruno, Superior Court, judicial district of Litchfield, Docket No. CR-91-73668, 2004 WL 1559012 (June 22, 2004) (Iannotti, Clifford and Holden, Js.).
" The defendant's next legal challenge forms the basis for the present appeal. Sixteen years after the trial court sentenced the defendant, the defendant on August 14, 2009, filed a motion for a new trial pursuant to Practice Book § § 42-53 and 42-54 predicated on his claim that " nothing in the record affirmatively indicates that [he] knowingly, voluntarily and intelligently waived his right to a jury trial." The court heard argument on the matter on July 15, 2010, and thereafter denied the motion for a new trial, concluding that it lacked jurisdiction to entertain the merits thereof. From that judgment, the defendant appeals.
" Read in light of that precedent, we agree with the state's position that, mindful of the court's jurisdictional limitations, Practice Book § 42-54 authorizes the trial court in a criminal case to entertain a motion for a new trial filed pursuant to Practice Book § 42-53 only prior to the termination of its jurisdiction upon sentencing. As our Supreme Court reasoned in resolving a related claim concerning motions to withdraw guilty pleas, " Practice Book § 39-26 merely recognizes the general or common-law grant of jurisdiction, regulates the procedure by which that jurisdiction may be invoked, and acknowledges that, absent a legislative grant, jurisdiction does not continue indefinitely, once invoked, but, rather, terminates with the conclusion of the proceeding at which the sentence is imposed." State v. Reid, 277 Conn. 764, 776 n. 14, 894 A.2d 963 (2006); see also State v. Luzietti, 230 Conn. 427, 432, 646 A.2d 85 (1994) . . . We therefore conclude that the court properly determined that it lacked jurisdiction to entertain the defendant's motion for a new trial filed pursuant to Practice Book § § 42-53 and 42-54 and brought sixteen years after the imposition of his sentence. State v. Bruno, 132 Conn.App. 172, 30 A.3d 34, cert. denied, 303 Conn. 919, 34 A.3d 393 (2012).
Finally, the petitioner initiated the instant matter by filing his second writ in 2012. In the operative amended petition, dated December 8, 2014, the petitioner asserts a multiplicity of claims in five separate counts related to:
a. The petitioner's competence to stand trial;
b. An asserted due process violation related to his " personal" and knowing waiver of a jury trial and election of a court trial;
c. Ineffective assistance of underlying trial counsel during essentially all phases of the criminal litigation, including the competency and jury trial waiver issues;
d. Ineffective assistance of direct appeal counsel concerning the aforementioned due process jury waiver claim; and
e. Ineffective assistance of prior habeas counsel for failure to raise the first claim and failure to " adequately plead, prove and argue" the second, third and fourth claims.
The respondent denies the petitioner's claims and asserts the following defenses:
a. As to the first claim: procedural default;
b. As to the second claim: procedural default, res judicata/collateral estoppel and non-retroactivity;
c. As to the third claim: failure to state a claim upon which relief may be granted, successive petition and res judicata/collateral estoppel; and
d. As to the fourth claim: successive petition and res judicata/collateral estoppel.
Prior to the start of evidence, the petitioner withdrew all claims challenging his competency during the underlying proceedings. The court heard the trial of this matter on April 28, June 3 and July 1, 2015. The petitioner presented eight witnesses and several exhibits. The respondent presented no witnesses and no exhibits. The court accepted two court exhibits. In his post-trial brief, the petitioner briefs only the claims related to the asserted lack of a personal on-the-record jury trial waiver. As there was no analysis of the remaining claims, this court deems them abandoned and will not address them. " It is not the responsibility of the trial judge, without some specific request from a petitioner, to search a record, often, in a habeas case, involving hundreds of pages of transcript, in order to find some basis for relief for a petitioner . . . The responsibility of a habeas court, in confronting an often voluminous trial court record, is to respond to those claims fairly advanced by the petitioner. The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration." (Citation omitted.) Solek v. Commissioner of Correction, 107 Conn.App. 473, 480-81, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008).
II
Law/Discussion
" The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness . . . To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal . . . In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 419, 641 A.2d 1356 (1994).
" 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).
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. This Court cannot say that any actions of underlying counsel undermined the fairness of the verdict.
" In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense, after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . ." Martin v. Commissioner of Correction, 155 Conn.App. 223, 227, 108 A.3d 1174, cert. denied, 316 Conn. 910, 111 A.3d 885 (2015).
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. The United States Supreme Court explained:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.(Citation omitted; internal quotation marks omitted.) Id. 689.
Collateral Estoppel
In general, res judicata and collateral estoppel, which is an aspect of res judicata, see State v. Charlotte Hungerford Hospital, 308 Conn. 140, 145, 60 A.3d 946 (2013), must be specifically pleaded as special defenses. See Wilcox v. Webster Ins., Inc., 294 Conn. 206, 222, 982 A.2d 1053 (2009). There, the Supreme Court stated that, " although most defenses cannot be considered on a motion to dismiss, a trial court can properly entertain . . . a motion to dismiss that raises collateral estoppel grounds" Id. 223. Similarly, in Carnese v. Middleton, 27 Conn.App. 530, 537, 608 A.2d 700 (1992), the court stated that an exception to the general rule applied and " [t]he defendants' failure to file a special defense may be treated as waived where the plaintiff fails to make appropriate objection to the evidence and argument offered in support of that defense." " Collateral estoppel, or issue preclusion, means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit . . . [Thus] [i]ssue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment . . . The doctrine of collateral estoppel expresses] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest." (Citation omitted; internal quotation marks omitted.) In re Application for Writ of Habeas Corpus by Dan Ross, 272 Conn. 653, 661, 866 A.2d 542 (2005).
" Before collateral estoppel applies . . . there must be an identity of issues between the prior and subsequent proceedings. To invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding." (Emphasis in original; internal quotation marks omitted.) Corcoran v. Dept. of Social Services, 271 Conn. 679, 689, 859 A.2d 533 (2004); see Dontigney v. Commissioner of Correction, 87 Conn.App. 681, 686, 867 A.2d 93 (2005) (barring petitioner's ineffective assistance of counsel claim on ground that collateral estoppel bars re-litigation of same issue).
In the instant matter, our appellate court, a prior habeas court, a court of criminal jurisdiction and the federal court have already ruled on the issue before the court, including the " new" Gore -based claim. This court took great pains in laying out the lengthy, tortured procedural history of this matter in our courts. The issue of an on-the-record jury trial waiver was fully and fairly litigated by the petitioner and the State on several different occasions. Accordingly, the petitioner is estopped from raising this claim again.
Procedural Default
Connecticut has adopted the federal cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). " [T]he appropriate standard for reviewability of [a procedurally defaulted claim] . . . is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance." (Internal quotation marks omitted.) Chaparro v. Commissioner of Correction, 120 Conn.App. 41, 48, 990 A.2d 1261, cert. denied, 297 Conn. 903, 994 A.2d 1287 (2010).
In Johnson v. Commissioner, 218 Conn. 403, 589 A.2d 1214 (1991), our Supreme Court adopted the " cause and prejudice" standard espoused by the U.S. Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), which standard limits the reviewability of claims first raised in a habeas corpus action. In Johnson, supra, the cause and prejudice test was made applicable to procedural defaults which occurred at the trial level. This standard was extended to apply to the failure to raise claims on appeal in Jackson v. Commissioner, 227 Conn. 124, 132, 629 A.2d 413 (1993). The burden of proving good cause and prejudice for procedural default rests with the habeas petitioner, Johnson v. Commissioner, supra, 409. Good cause must be external to the defense and be some factor besides attorney error. Jackson v. Commissioner, supra, 227 Conn. at 137. The mere failure of counsel to recognize the factual or legal ground does not constitute good cause to excuse default. Parker v. Commissioner, 27 Conn.App. 675, 682, 610 A.2d 1305 (1992), cert. denied, 223 Conn. 909, 612 A.2d 57 (1992).
In the instant matter, the petitioner has failed to sufficiently establish good cause to excuse the failure to raise this claim " adequately" in prior proceedings. As will be noted later in this decision, the court finds no deficient performance by prior habeas counsel Patrice Cohan. Accordingly, this claim fails.
III
Prior Habeas Counsel
For assessing claims of ineffective assistance based on the performance of prior habeas counsel, the Strickland standard is as follows. " [When] 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 . . . 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 . . . 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 [appellate] 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." (Citations omitted; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 394, 966 A.2d 780 (2009).
Therefore, in order to set forth a prima facie case of ineffective assistance of habeas counsel on the ground of ineffective assistance of trial counsel, the petitioner must set forth a prima facie case of ineffective assistance of trial counsel. In the instant matter, because the petitioner failed to set forth a prima facie case regarding the ineffective assistance of his trial counsel and any due process violations, he has not set forth a prima facie case of ineffective assistance of his habeas counsel. Additionally, a full review of the several exhibits and review of the procedural history reveal no deficiencies in attorney Cohan's representation at the trial on the previous habeas corpus petition in the preparation, investigation and prosecution of the petition.
IV
Conclusion
For the foregoing reasons, the petition is denied. Judgment shall enter for the respondent.