Opinion
No. CV02-0003591 S
June 2, 2003
Memorandum of Decision
The petitioner, Francisco Mercado, alleges in his petition for a Writ of Habeas Corpus initially filed on March 28, 2000 and amended on January 2, 2003, that: (1) he was denied the effective assistance of counsel at the trial level in violation of the Sixth and Fourteenth Amendments to the United States Constitution; (2) his trial defense counsel coerced him into an involuntary and improvident guilty plea; (3) the trial court failed to conduct an adequate and appropriate canvass into that guilty plea; and (4) he is actually innocent of the offenses to which he pled guilty. Consequently the petitioner asserts that he should be released from prison and that all of his cases should be restored to the docket for further proceedings. For the reasons set forth more fully below the petition shall be denied.
The claim of ineffective assistance of counsel essentially complains that his trial defense counsel failed to communicate with him, failed to investigate the cases and failed to provide him with a defense. The petitioner further alleges that his trial defense counsel coerced him into pleading guilty by advising him that he had little chance of prevailing in the cases and probably faced a sentence of thirty years or more if he went to trial. Consequently, the petitioner asserts that his guilty plea was not knowing, intelligent and voluntary, because his attorney failed to properly advise the petitioner that he could have been acquitted at trial. In light of this, and an allegation that the Court's plea canvass was deficient, the petitioner asks that he be allowed to withdraw his guilty plea. Finally, the petitioner has alleged that he is actually innocent of the charges to which he pled guilty.
This matter came on for trial before the Court on May 8, 2003 and again on May 27, 2003. The petitioner, and his trial defense counsel, Attorney Allan McWhirter, were the only witnesses who testified at the habeas trial. In addition, the Court received three transcripts of the petitioner's rejection of the initial plea bargain, the start of a Violation of Probation heating, and the petitioner's plea and sentencing, as well as seven court clerk files into evidence. One other exhibit, a letter written by the petitioner on May 10, 2002 was received into evidence for the limited purpose of showing that the petitioner had filed a grievance against Attorney McWhirter. The Court has reviewed all of the testimony and documentary evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in seven criminal cases in the Judicial District of Waterbury under Docket Numbers CR4-91-193715, CR-4-00-295101, CR4-00-295107, CR4-295110, CR4-295301, CR4-00-294303 and CR4-00-300412 in which he was charged with several counts of Robbery, Carjacking, and Larceny on divers dates as well as a violation of probation in violation of CGS § 53a-32.
2. The petitioner was represented by Attorney Allan McWhirter, the Chief Public Defender for the Judicial District of Waterbury in all of these cases. Attorney McWhirter was filed his appearance on January 4, 2001.
3. The petitioner was brought to the Superior Court in the Judicial District of Waterbury no less than fourteen (14) times during the period of Attorney McWhirter's representation.
4. The petitioner and Attorney McWhirter met on each occasion that the petitioner was brought to Court.
5. The petitioner wrote numerous letters to Attorney McWhirter. Mr. McWhirter did not respond in writing to any of these letters, although he did address the concerns raised by the petitioner in each letter during their numerous face-to-face meetings at the courthouse.
6. At no tine did Attorney McWhirter visit with the petitioner at a location outside of the Waterbury Courthouse, nor did he make any telephone calls to the petitioner when he was being held in the custody of the Department of Corrections.
7. There were numerous pretrial discussions between the prosecutor and the petitioner's trial defense counsel and judicial pretrial conferences designed to resolve the matter without a trial. None of these discussions bore any fruit and the stare elected to proceed with a Violation of Probation hearing in front of Judge D'Addabbo on August 15, 2001.
8. The petitioner expressed displeasure with the representation he was receiving from Attorney McWhirter and asked the Court to appoint a special public defender to represent him.
9. The Court concluded that there was no conflict of interest or breakdown in the Attorney/client relationship sufficient to warrant relieving Attorney McWhirter and replacing him with another public defender. The petitioner was advised that he could release Attorney McWhirter and thereafter waive his right to the assistance of the Public Defender. The petitioner was advised that if he elected to do so, that he would then either have to represent himself or hire a private attorney to represent him. Although the petitioner did not expressly indicate he would continue with Attorney McWhirter, he did indicate that he could not represent himself, thereby implicitly, albeit reluctantly, not discharging Attorney McWhirter who continued on as his counsel.
10. The Violation of Probation hearing commenced on August 15, 2001 and since there were additional witnesses needed to complete the hearing was continued to August 21, 2001 for further proceedings.
11. When the petitioner returned to Court on that day, he advised Attorney McWhirter that he now wanted to accept the offer of a pretrial agreement that Judge Damiani had proposed.
The offer of settlement originally proposed by Judge Damiani, called for 13 years of confinement to be followed by 6 years of special parole. This offer was expressly rejected by the petitioner and withdrawn by the Court on March 26, 2001. When Attorney McWhirter approached Judge Damiani at the behest of the petitioner on August 21, 2001, the offer was increased to 14 years of confinement to be followed by 6 years of special parole.
12. On August 21, 2001 the petitioner entered pleas of guilty under the Alford doctrine, in all of his cases, and entered an admission of violation of his probation in docket number CR4-91-193715.
North Carolina v. Alford, 400 U.S. 25 (1970).
On April 16, 1992, the petitioner was convicted of Burglary in the first degree and was sentenced by the Court, Kulawiz, J. to a term of incarceration of fifteen years, suspended after the service of ten years and probation of five years.
13. At the plea canvass, the Court, Damiani, J. explained to the petitioner the nature of the charges, the minimum mandatory sentence that had to be imposed the fact that some of the sentence could not be suspended or reduced. The Court delineated that maximum sentence and made it clear that the petitioner had the right to plead not guilty and take the cases to trial before the Court or a jury with the assistance of counsel at which time he would have the right to confront and cross examine witnesses. The Court further explained that the petitioner had the right against self-incrimination.
14. In addition, the Court determined that the petitioner was not under the influence of any alcohol, drugs or medication that would prevent him from understanding the proceedings as well as explaining that these convictions could have an adverse effect upon his immigration status, if applicable.
15. Consequently the Court, Damiani, J., found his pleas to be knowingly and voluntarily made with the assistance of competent counsel. The Court thereafter accepted the pleas and entered findings of guilty and a violation of probation.
16. As provided for in the plea agreement, the Court, Damiani, J., sentenced the petitioner to a total effective sentence of fourteen years confinement to be followed by six years of special parole.
17. The Court will discuss additional facts, as necessary.
Discussion
The petitioner now comes before this Court seeking to withdraw his voluntary pleas of guilty. He also seeks to challenge his admission to the violation of probation. He challenges the Court's guilty plea canvass, alleges ineffectiveness of his trial defense counsel and alleges he was coerced into pleading guilty. Moreover, he asserts a claim of actual innocence.
The petitioner in this case is an individual with a lengthy involvement with the criminal justice system. He has admitted to having a criminal record that includes pleading guilty on fourteen prior occasions, including eight misdemeanors and six felonies.
There is a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that '[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994). Consequently, even though "a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial," Summerville v. Warden, 229 Conn. 397 at 422 (1994), the burden of proving this rests with the petitioner. "Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is 'innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, infra at 422.
Not only has the petitioner been convicted of these offenses, he has been convicted pursuant to his pleas of guilty. A guilty plea is the highest form of proof of guilt known to the law. "A valid guilty plea generally operates as a waiver of all defects in the prosecution 'except those involving the canvass of the plea and the court's subject matter jurisdiction.' State v. Reddick, 224 Conn. 445, 451, 619 A.2d 453 (1993); see also State v. Niblack, 220 Conn. 270, 276-77, 596 A.2d 407 (1991); State v. Gilnite, 202 Conn. 369, 374 n. 4, 521 A.2d 547 (1987); State v. Satti, 2 Conn. App. 219, 221-22, 477 A.2d 144 (1984)." D'Onofrio v. Commissioner, 36 Conn. App. 691 at 693 (1995). Moreover, "the guilty plea is a waiver of constitutional rights — a waiver of non-jurisdictional defenses — and where . . . the record discloses that such an act was voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences, . . . the plaintiff's plea of guilty was valid." Consiglio v. Warden, 160 Conn. 151 (1970). In the instant case, it is clear that the petitioner's pleas of guilty and admission of the violation of probation are voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences. The Court engaged in a full canvass of the petitioner to determine the providence of his guilty plea and admission, the petitioner was represented by counsel and fully understood the import of what he was doing. Consequently, his guilty pleas were valid. A valid plea of guilty will operate to estop the petitioner from seeking to withdraw that plea at a subsequent habeas corpus proceeding.
Here, the petitioner entered his pleas under the Alford doctrine. "[G]uilt, or the degree of guilt, is at times uncertain and elusive, an accused, though believing in or entertaining doubts respecting his innocence, might reasonably conclude a jury would be convinced of his guilt and that he would fare better in the sentence by pleading guilty. McCoy v. United States, 124 U.S.App.D.C. 177, 179, 363 F.2d 306, 308 (1966)." See North Carolina v. Alford, 400 U.S. 25 at 33 (1970). The petitioner was charged with numerous serious charges. Had he gone to trial on all of these matters and been convicted, he would have faced a potentially long period of incarceration. In addition, he had five years of incarceration from the violation of probation that could have been adjudged. His total "exposure" was, therefore, high.
The petitioner's public defender did a good job in negotiating a favorable plea agreement for the petitioner and, it was prudent for the petitioner to agree to the settlement and enter a plea of guilty in order to have some relief on the sentence. "Reasons other than the fact that he is guilty may induce a defendant to so plead . . . [and he] must be permitted to judge for himself in this respect. State v. Kaufman, CT Page 7410 51 Iowa 578, 580, 2 N.W. 275, 276 (1879)." See North Carolina v. Alford, 400 U.S. 25 at 33 (1970). By making the pragmatic decision to plead guilty, even though he may have believed himself innocent, the petitioner voluntarily chose to forego his constitutional right to a trial in exchange for a limitation upon sentence that allowed him to receive a favorable sentence.
The ultimate decision as to whether a criminal defendant pleads guilty or pleads not guilty rests with the individual charged with the crime. A criminal defendant has an absolute Constitutional right to persist in a plea of not guilty, even in the face of seemingly insurmountable obstacles and overwhelming evidence. He or she has an absolute right to hold the government to its high burden of proof and take the matter to a jury of his or her peers. It is not, and never has been, for the trial defense counsel to decide the plea that his client should enter. However, "[b]ecause a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the 'right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.' Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1995)." See Baillargeon v. Commissioner of Correction, 67 Conn. App. 716 at 721 (2002). Consequently, an attorney who fails to conduct an adequate investigation, such that he or she is prevented from offering his client proper counsel, may well be providing ineffective representation. It is not the quantum of the investigation by counsel that is important, it is the quality of the legal advice offered to the client that is paramount.
"The focus of a habeas inquiry where there has been a guilty plea is the nature of the advice of counsel and the voluntariness of the plea, not the existence of a purported antecedent constitutional infirmity. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). If a prisoner pleads guilty on advice of counsel, he must demonstrate that the advice was not within the range of competence demanded of attorneys in criminal cases. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Moreover, 'a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.'" Buckley v. Warden, 177 Conn. 538 at 542-43 (1979).
Attorney McWhirter was an experienced trial attorney who had handled numerous felony cases, including capital cases, in his career. Based upon his interviews and conversations with the petitioner, his review of the evidence contained within the police reports and prosecutor's files, the testimony of witnesses at the Violation of Probation hearing, Attorney McWhirter concluded that it was most unlikely that the petitioner would win acquittal at trial. The evidence against the petitioner was strong. With six previous felony convictions, the petitioner would, most likely, have been looking at a significant period of incarceration, if he was convicted. Undoubtedly, the petitioner was not pleased when Attorney McWhirter conveyed his honest, but gloomy, opinion of the likely result of the cases.
In fact, given that there were nine separate criminal files in which the petitioner was facing prosecution, the petitioner would have had to prevail in front of nine separate juries in order to win an acquittal. Achieving nine seriatim acquittals, in and of itself, would have been a Herculean task for any trial attorney to accomplish.
The prior felony convictions could have been used by the prosecution to undermine the credibility of the petitioner had he elected to testify. The prior felony convictions would be a strong argument against having the petitioner testify at trial.
It is axiomatic that an attorney owes a duty of loyalty to a client and unfortunately there are times when in order to best fulfill that duty, an attorney must tell his or her client something that the client is not going to like. An attorney who conveys anything less than his or her honest appraisal of a client's situation, even when that appraisal is going to be unpleasant for the client to hear, is not doing a proper job in representing the client. Attorney McWhirter was being honest with his client when he became the bearer of bad news. It is quite clear from the evidence in this case that the petitioner was not pleased with the news he was hearing from his trial defense counsel. Consequently, the petitioner began to lose faith in his lawyer and accuse him of ineffective representation rather than face the reality that his prospects of success at trial were dim and his situation dire.
In the lengthy exchange with Judge D'Addabbo regarding his desire to have Mr. McWhirter removed from the case, the petitioner stated: "He [Attorney McWhirter] told me that the state was going to find me guilty and he had no defense on my behalf. I don't want a lawyer like that, that they — that I'm going to be found guilty and that there's no defense on my behalf to represent me here or anywhere else." It is apparent that the petitioner was figuratively trying to "shoot the messenger," rather than accept the reality of the message.
Of course, it is the petitioner's contention that this pessimistic view of his cases by his trial defense counsel was the result of the failure of that counsel to properly investigate the matter. Moreover, it is the petitioner's contention that he had no choice but to plead guilty because he could not go to trial with an ineffective trial defense counsel.
Any claim of ineffective assistance of counsel must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d (1984), before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
"Although Strickland applies generally to the evaluation of whether ineffective assistance of counsel during criminal proceedings has infringed on a petitioner's constitutional rights, the United States Supreme Court has articulated a modified prejudice standard for cases in which the conviction has resulted from a guilty plea. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Hill requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial." Copas v. Commissioner, 234 Conn. 139, at 151 (1995). Given this, the petitioner must first prove that the performance by his trial defense counsel was deficient in the manner in which he conducted his pretrial activities and negotiated a plea agreement for the petitioner. Then, the petitioner must prove that, but for his attorneys inadequacies, he would have pled not guilty, gone to trial and been acquitted.
It is not necessary to consider whether a trial counsel's performance was deficient if the Habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) ('[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')." Valeriano v. Bronson, 209 Conn. 75 at 86 (1988). Given this, it is incumbent upon the petitioner, in order to obtain relief, to demonstrate where he was prejudiced by the deficient performance of his trial defense counsel.
In order to accomplish this, even assuming that the trial defense counsel was performing in a deficient manner by not investigating more thoroughly, the petitioner must prove to the habeas court that there were in fact matters that should have and could have been investigated by the trial defense counsel, were not investigated, and had they been investigated, would have made a difference in the case. The only thing that the petitioner raises that could fit this requirement would be his complaints that his statement given to the Naugatuck police department was involuntary and coerced.
The evidence presented before the habeas court certainly raises the strong possibility that the statement given to the Detective was involuntary. Of course, the issue was not fully litigated before this Court. This leaves the Court in the position of attempting to make a determination in the basis of what could be one-sided evidence. Nevertheless, the evidence is what the evidence is. Had the respondent wished to contest the petitioner's version of events, he could have done so. This means that for the purposes of this habeas petition, the Court is going to find that the statement given to the Naugatuck police is involuntary and could have been suppressed.
Notwithstanding the involuntariness of the statement and the failure of the petitioner's trial defense counsel to pursue suppression of this statement, this Court is going to find that the failure to do so did not prejudice the petitioner. The evidence adduced at the habeas trial is clear that even without consideration of the Naugatuck statement, there was more than enough evidence to merit a conviction. Consequently, while it may have been deficient performance by Attorney McWhirter not to pursue suppression of the statement, it is only the first prong of the Strickland standard that is violated. Since there was no prejudice to the petitioner, the second prong is not satisfied and the petition will necessarily have to be denied.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. A habeas court "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn. App. 253 at 264 (1979), cert. den., 243 Conn. 967 (1998). "A fair assessment of an attorneys performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to 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." Henry v. Commissioner of Correction, 60 Conn. App. 313 at 317 (2000).
The petitioner did not suffer any prejudice as a result of any of the challenged actions or omissions of the trial counsel. When a defendant pleads guilty he or she relieves the state of an enormous burden in having to go forward with proof of guilt. A guilty plea is often thought of as the first step on the long road to rehabilitation and a beginning of a return of the offender to being a productive member of society. In return, the state will generally recommend that a penitent defendant receive a lower sentence. A plea bargain is in the nature of a contract, albeit one that deals with matters of the utmost importance. Consequently, even assuming deficient performance by his trial defense counsel, the petitioner must still show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, infra at 694. Here, the petitioner voluntarily entered into this plea bargain; was ably represented by counsel who did conduct an adequate pretrial investigation; and, he freely made the choice to give up his constitutional right to a trial in order to obtain favorable consideration upon sentencing. "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. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962); D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); see also Bowers v. Warden, 19 Conn. App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). 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." (Internal quotation marks omitted.) Buckley v. Commissioner of Correction, 222 Conn. 460-61. Summerville v. Warden, 229 Conn. 397 at 419 (1994). This, he cannot do.
It is well settled in Connecticut that a claim of actual innocence may be raised in a petition for habeas corpus even where that claim does not allege a claim that the petitioner's state or federal constitutional rights have been violated. See Summerville v. Warden, 229 Conn. 397 (1994), and Clarke v. Commissioner, 43 Conn. App. 374 (1996). However, in order to prevail in such a claim, a petitioner must overcome two very large obstacles. "First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, . . . that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty." Miller v. Commissioner, 242 Conn. 745, 791-92 (1997). Unlike the original criminal trial in which the petitioner (then the defendant) enjoyed the presumption of innocence with the burden of proving his guilt beyond all reasonable doubt resting upon the prosecutor, in the habeas proceeding, the burden of proof rests upon the petitioner. This is so because of the "fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence." Summerville v. Warden, supra. Furthermore, there is a strong societal interest "in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility." Id.
This is a particularly salient issue in this case given that the victims of the petitioner were elderly citizens who may not be available to testify should a re-trial be necessary.
The burden of proof in a habeas proceeding in which the claim is actual innocence requires that "the habeas court first must be convinced by clear and convincing evidence that the petitioner is actually innocent. The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt." Miller v. Commissioner, supra at 794. Clear and convincing evidence must "induce in the mind of a trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." State v. Bonello, 210 Conn. 51 at 66, cert. den., 490 U.S. 1082, 109 S.Ct. 2103, 104 L.Ed.2d 664 (1989).
There is a threshold question regarding the issue of whether the question of actual innocence should even be considered by this Court. "The respondent asserts that a claim of actual innocence, when raised in a habeas corpus proceeding, must be based on newly discovered evidence. To be considered 'newly discovered,' 'the evidence must be such that it is not cumulative, was not available to the petitioner at his criminal trial and could not have been discovered prior to the criminal trial through the exercise of due diligence.' In Clarke v. Commissioner of Correction, 249 Conn. 350, 355-58 (1999), our Supreme Court has left the absolute requirement of 'newly discovered evidence' an open question in our habeas jurisprudence 'until the actual outcome of the case is likely to depend on the answer to the legal question.' Id. at 351." LaPointe v. Warden, No. CV 97-0571161 (Sep. 6, 2000) (Freed, J.). Although having been presented with several opportunities to do so, our Supreme Court has declined to make the definitive statement. Consequently, while the final rule in this state may be to the contrary, as it stands at this time, the operative appellate decision on this issue is Clarke v. Commissioner, 43 Conn. App. 374 (1996).
Most notably, in Clarke v. Commissioner, 249 Conn. 350 (1999), the Supreme Court specifically directed that this exact issue be briefed. Notwithstanding, upon decision, the Court declined to reach this issue because Petitioner Clarke did not present a case in which he had established actual innocence.
In Clarke, the Appellate Court "concluded that although no governing standard of proof exists under which a claim of actual innocence should be evaluated, such a claim must, nonetheless, be based on newly discovered evidence. Williams v. Commissioner of Correction, supra, 41 Conn. App. 527. [The Appellate Court] concluded that 'a writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered.' (Emphasis added.) Id., 530. Moreover, '[it] incorporate[d] the due diligence component of the standard used in determining whether a new trial should be granted because of newly discovered evidence in the determination of whether a writ of habeas corpus should issue as a result of a petitioner's claim of actual innocence.' Id., 528. Thus, [it] held that 'a petitioner must demonstrate, by a preponderance of the evidence, that the proffered evidence is such that it could not have been discovered earlier by the exercise of due diligence.'" Clarke, supra at 379.
Subsequent to the Appellate Court's decision in Clarke, the Supreme Court decided Miller v. Commissioner of Corrections, 242 Conn. 745 (1997), in which the standard of proof was discussed. This will be reached later in this decision.
Here, the petitioner has been found guilty through his own plea. He has been afforded the representation of competent counsel and the Court has found that his plea of guilty is knowing, intelligent and voluntary. In a habeas claim involving the claim of actual innocence, the petitioner asks this Court to set aside that plea and order a new trial. The "clear and convincing" standard that this Court must apply "should operate as a weighty caution upon the minds of all judges and it forbids relief whenever the evidence is loose, equivocal or contradictory." Lopinto v. Haines, 185 Conn. 527 at 539 (1981). Here, there is no basis upon which to set aside the guilty plea, and even had there been a basis to do so, the available evidence pointing to the petitioner's guilt is strong.
In light of all of this, the petitioner has failed to meet his burden of proving actual innocence with clear and convincing evidence. Moreover, not only must the petitioner prove with clear and convincing evidence that he is actually innocent (something that he failed to do) he must also prove that no reasonable finder of fact would find the petitioner guilty. Miller v. Commissioner, 242 Conn. 745 at 802 (1997).
The petitioner's allegations of ineffective representation are based upon a failure of his trial defense counsel to communicate with him and investigate. It is clear that there was more than adequate communication between attorney and client in this case. "The right of a defendant to effective assistance is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chance v. Bronson, 19 Conn. App. 674, 678, 564 A.2d 303 (1989). He must also show 'that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial.' Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986). The reviewing court must employ a strong presumption of the reasonableness of that counsel's assistance. Levine v. Manson, supra, 640; Chance v. Bronson, supra, 678. The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight. Levine v. Manson, supra. Even if that assistance is found to have been lacking in competency, the petitioner bears the further burden of showing that there is a reasonable probability that, were it not for the deficiency of counsel, the result of the trial would have been different. Aillon v. Meachum, 211 Conn. 352, 357, 59 A.2d 206 (1989)." Williams v. Bronson, 21 Conn. App. 260, 263 (1990). Further, strategic or tactical choices of counsel are not subject to challenge. ( Strickland, supra.) The petitioner's claims must be evaluated in light of these standards.
He also complains that his lawyer failed to provide him with a defense. The evidence is clear that there was adequate and appropriate communication between the trial defense counsel and the petitioner. The evidence is clear that there was adequate pretrial investigation by the trial defense counsel. It is true, that the trial defense counsel did not provide the petitioner with a defense, however, an attorney is not permitted to engage in acts of fiction to come up with a defense. It is the facts, reasonably believable in the light of common sense, that suggest the existence of a defense, not the mind of a creative attorney or client who is allowed to make up the facts as he or she goes along. It is clear that Attorney McWhirter did the best he could for his client, given the state of the facts that implicated his client in wrongdoing.
A lawyer has a duty to zealously represent his client's interests. Nevertheless, a lawyer is also an officer of the Court and as such, has certain responsibilities under the Rules of Professional Conduct that cannot be compromised despite the wishes of the client. For example, Rule 3.1 mandates that an attorney bring only meritorious claims and contentions. Rule 3.3 requires an attorney to forebear from introducing evidence he or she knows to be false. Indeed, under the same rule, an attorney may refuse to offer evidence if he reasonably believes it to be false. The client is not the final decision maker as to what evidence is presented in the trial. This Court is reasonably satisfied that there was no credible evidence that Attorney McWhirter could have brought in on the petitioner's behalf.
The Petition for a Writ of Habeas Corpus is denied.
S.T. Fuger, Jr., Judge