Opinion
No. CV00-0003154
April 11, 2003
Memorandum of Decision
The petitioner, Lloyd George Morgan, alleges in his petition for a Writ of Habeas Corpus originally filed with the Court on April 25, 2000, and amended for the final time on February 10, 2003, that: (a) he was denied the effective assistance of trial defense counsel in connection with a case in the judicial District of New Haven at Meriden to which he entered a plea of nolo contendre; (b) he is actually innocent of the charges of sale of narcotics of which he was convicted following a jury trial in the Judicial District of New Britain; and, (c) he was denied the effective assistance of trial defense counsel in connection with an admission of the violation of his probation. All of these claims are alleged to be violations of the Sixth and Fourteenth Amendments to the United States Constitution as well as Article I, Section 8 of the Constitution of the state of Connecticut. For the reasons set forth more fully below, the petition shall be denied.
The claim of ineffective assistance of counsel alleges a multitude of ways in which both of the petitioner's trial defense counsel were deficient. In general, the petitioner alleges that all of his trial counsel failed to ensure that the petitioner's pleas and admissions were knowing, intelligent, and voluntary.
All of the petitioner's claims revolve around a single case, State v. Morgan, Docket No. CR93-0152157, Judicial District of New Haven at Meriden (GA-7). In Count I, the petitioner alleges that his initial trial defense counsel was ineffective in not preparing for trial and pressuring him to accept a plea bargain, thereby making his plea involuntary. In Count II, the petitioner alleges that he was actually innocent of the charges that formed the basis for the state's seeking a violation of his probation that he was on as a result of the plea agreement. In Count III, the petitioner alleges that his trial defense counsel at the violation of probation proceeding was ineffective in not ensuring that the admission was knowing, intelligent and voluntary. The petitioner was represented by different counsel at all three proceedings.
This matter came on for trial before the Court on March 20, 2003 and again on April 10, 2003. The petitioner, his initial trial defense counsel, Hon. Arthur C. Hadden, and his subsequent counsel for the probation violation, Attorney Thomas Conroy were the only witnesses who testified at the trial. In addition, the Court received a transcript of the petitioner's May 20, 1998 and January 2, 2001 pleas and sentencing before Judges Sequino and Gallagher, respectively, into evidence. The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Hadden was appointed a Superior Court Judge in May 2002, subsequent to his representation of the petitioner.
Findings of Fact
1. The petitioner had been convicted of Manslaughter in the first degree in violation of CGS § 53a-55 (a) (1) in the Judicial District of Hartford under Docket No. CR90-0380420. He received a sentence of twenty years, suspended after the service of nine years to be followed by five years probation.
2. On February 23, 1993, the petitioner was confined at the Cheshire Correctional Institution, 900 Highland Avenue, Cheshire, Connecticut.
3. As a result of an altercation between the petitioner and two Correctional Officers, the petitioner was charged with a single count of Assault upon a Correctional Officer in violation of CGS § 53a-167 (c).
There were two Corrections Officers present and involved in the altercation. They are Officers William Flynn, Jr. and Darn Lytle. The petitioner was alleged to have struck Officer Lytle in the face and to have bitten Officer Flynn.
4. This charge was initially resolved with a plea of guilty in exchange for which the petitioner received a one-year sentence to be served consecutive to the manslaughter sentence.
5. On September 19, 1997, the Court, Corrigan J. granted a habeas petition vacating the guilty plea due to a defective canvass and remanded the case back to the trial court.
6. By the time the matter was returned to court for a re-trial, the petitioner had completed the to-serve portion of his sentence for the manslaughter and had been released on probation. He was released on bond on Docket No. CR93-0152157 as well.
7. Attorney Arthur C. Hadden was appointed a special public defender to represent the petitioner.
8. After substantial and arduous negotiations with the state's attorney, Attorney Hadden managed to obtain a plea agreement that allowed the petitioner to enter a written plea of nolo contendre to the charge of Assault upon a Corrections Officer in exchange for which the petitioner would receive a sentence of five years, suspended with three years probation. The sentence of five years was to run consecutive to the manslaughter sentence.
9. On May 20, 1998, the plea bargain was consummated.
10. The trial court, Sequino, J., conducted a thorough inquiry into the voluntariness and providence of the petitioner's plea.
11. Prior to accepting the petitioner's plea and entering a finding of guilty, the Court inquired if the petitioner had had sufficient time in which to consult with his attorney, whether he was satisfied with his lawyer's representation, and whether he wished to waive his rights to a jury trial, to confront and cross-examine his accusers and present defenses. The petitioner answered in the affirmative.
12. The petitioner denied committing the assault, however, he was more than eager to have the case resolved in this manner because he wanted to avoid a trial.
At his plea and sentencing, the petitioner made the following statements to the Judge during the plea canvass. "Your honorable Judge Karen Sequino, what I want to state is, let the record so clearly reflect, that in good faith I make this plea because I do not trust my life in the hands of jurors that do not know me and will most likely hear things of the past. And most likely the officers will come in with them beautiful uniforms and I don't think they would really believe too much of what I have to say . . . I don't want to take my life, my life in the hands of jurors, so I made this plea." Petitioner's Exhibit 1, pages 5-6.
13. At no time during this plea negotiation did Attorney Hadden attempt to overbear the petitioner's desire to plead not guilty and go to trial or otherwise force the petitioner to enter the plea of nolo contendre.
When asked by Judge Sequino whether he thought his attorney had done a good job, the petitioner stated: "I think he did because he's an attorney and the prosecutor has more of the advance of the heavy hammer, so he did the best he could, you know. He would have loved to go to trial, he loves a trial. So he's not scared of a trial." When asked by the Judge if anybody had threatened or forced him to enter into the pretrial agreement, the petitioner stated "No, I begged him [Attorney Hadden] not to even let me go to trial."
14. Thereafter, the petitioner was convicted of the charged offenses in accordance with his plea and sentenced to the agreed upon sentence.
15. On February 1999, the petitioner was arrested and charged with several drug offenses in the city of New Britain. These charges ultimately came to trial in the Judicial District of New Britain under Docket nos. H15nCR99-182380 and CR99-182381. Following a trial by jury, the petitioner was convicted and sentenced to a total effective sentence of ten years to serve.
16. These convictions were the basis for the state seeking a violation of the petitioner's probation. Attorney Thomas Conroy represented the petitioner in connection with the violation of probation in Docket No. CR93 132157.
17. On January 2, 2001, the petitioner entered a plea of nolo contendre to the Violation of probation before the Hon. Ellizabeth Gallagher in the Judicial District of Meriden, GA-7.
18. The Court conducted a full canvass of the petitioner concerning the plea and determined that the plea was entered into voluntarily, with full understanding of the charge and the adequate and effective assistance of counsel.
The petitioner acknowledged this in the following statement: "Yes, I understood your questions to me, yes. And the best thing is I want this case to go bye-bye. It is stressing me out." Petitioner's Exhibit 2, page 10.
19. Pursuant to an agreement between the state and the petitioner, the petitioner was sentenced to four years to run concurrent with his ten-year sentence from the New Britain drug convictions.
Discussion of Law
The Claim of Ineffective Assistance of Counsel by Attorney Hadden
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 modified standard to be applied to plea cases, the petitioner must first prove that the performance by his trial defense counsel was deficient and, that absent this deficient performance, the petitioner would have pled not guilty, would have gone to trial, and been acquitted.
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. It is indisputable fact that many times if one had foreknowledge of certain events; different courses might well have been taken. Likewise, a habeas court knowing the outcome of the trial "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. Comnmisioner of Corrections, 47 Conn. App. 253 at 264 (1979), cert. den., 243 Conn. 967 (1998). "A fair assessment of an attorney's 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).
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).
It is upon this second shoal, the total lack of prejudice resulting from either trial defense counsel's alleged deficient performances, that the petitioner's vessel ultimately runs aground. As regards Attorney Hadden, it is clear that he did not make all of the preparations that should have been taken, if the case were going to trial. The key words in that sentence are emphasized. A criminal defendant has an absolute right to plead not guilty and demand that the state be held to its enormous burden of proof beyond all reasonable doubt. A criminal defendant may do so, even in the face of overwhelming evidence that points inexorably towards conviction. On the other hand, in the interest of obtaining certainty and a favorable resolution of a dispute, a criminal defendant may voluntarily waive all of his or her precious constitutional rights and accept the pretrial settlement offer of the state. "[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 issue is not whether Attorney Hadden did all of the things that he should have done if the case were to be tried, the issue is whether he provided effective representation in negotiating this plea agreement.
In the instant case, the petitioner was charged with an assault upon a corrections officer that could have, had he been convicted, exposed him to a lengthy sentence. In addition given the way in which the case developed with the previous habeas petition, by the time the case reached Attorney Hadden, the petitioner had been released from his initial period of confinement on the manslaughter case and was on probation. By all accounts, the petitioner was doing well on probation. It is clearly understandable then why the petitioner, even if he were firmly convinced of his innocence on the assault charge would have made the voluntary decision to plead nolo contendre in order to minimize his potential exposure and prevent a return to confinement. "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, 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 genuinely believed himself to be innocent, the petitioner obtained a sentence that completely avoided a prison sentence that would have sent him back into incarceration for up to ten years.
The ultimate decision as to whether a criminal defendant pleads guilty or pleads not guilty rests with the individual charged with the crime. 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 may well be providing ineffective representation.
In the instant case, it is clear that Attorney Hadden did all that he could have done to represent his client's interests. Of course, it is important to keep in mind that the matter never left the pretrial negotiation stage. The Court is convinced that had there been a failure to arrive at a suitable pretrial plea agreement, Attorney Hadden would have pursued the claims of the petitioner with vigor. Moreover, the most important fact is that Attorney Hadden did negotiate a favorable plea bargain for his client. "To satisfy the prejudice prong, the petitioner must show a `reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Baillageon v. Commissioner of Correction, 67 Conn. App. 716 at 722 (2002). Here, despite the possibility of his being innocent of the charge of assault upon a corrections officer, the petitioner made the conscious decision to elect to take the pragmatic approach of pleading nolo contendre in order to minimize his potential exposure and sentence. The petitioner made the voluntary decision to take that course rather than to insist upon a not guilty plea and a trial on the merits. "In determining the validity of a plea, `[t]he standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' North Carolina v. Alford, 400 U.S. 25, 31 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)." State v. Parker, 67 Conn. App. 351 at 354 (2001). Rather than prove that, but for his trial defense counsel's inadequate performance the petitioner would have elected to plead not guilty and taken the case to trial, his own words at the plea canvass before Judge Sequino clearly demonstrate that the petitioner did make a voluntary and intelligent choice to plead nolo contendre and avoid a heavy sentence.
The agreement called for the petitioner to enter a plea of nolo contendre in exchange for which the petitioner would receive a suspended sentence of five years. This was an extraordinarily unusual agreement as it is rare that the state will not insist upon some incarceration for a person accused of assault upon a corrections officer. In fact, the initial offer from the state required that the petitioner serve a year before going on probation. Attorney Hadden went to great lengths to negotiate this extremely favorable plea bargain. The petitioner was wise to have taken advantage of a "deal" such as this.
It is indeed unfortunate that this petitioner found himself in the position whereby he was forced to make this Hobson's Choice, but it was his own actions in amassing a prior record of felony convictions, multiple files and problematic cases to defend that put him in this position. This Court will not find that his trial defense counsel's preparation was in any way deficient. Even had there been deficient performance, 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. Nothing in this record undermines the Court's confidence in the outcome of these proceedings.
This has come to mean an apparently free choice that offers no real alternatives. It is named after the practice of Thomas Hobson (1544-1630), an English keeper of a livery stable whose practice was that customers could either take the horse nearest the stable door or none at all.
The Claim of Actual Innocence in the New Britain Narcotics Case
The Court will now address the claim of actual innocence in the New Britain narcotics cases. At the outset, it is noted that the petitioner has an active habeas corpus petition pending in the Judicial District of New Haven under Docket No. CV01-446946 that attacks the New Britain convictions. This matter is scheduled for trial on July 17, 2003, so as of the date of this trial and decision has not yet been adjudicated. In Count II of his petition before this Court, the petitioner has alleged that he is actually innocent of these New Britain charges and that therefore, his violation of probation for having committed additional crimes is illegal.
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). 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 latter reason is particularly compelling when the original verdict was the result of a trial by jury.
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).
The petitioner has been tried before a jury of his peers and found to be guilty beyond all reasonable doubt. The right to a trial by jury is one of our most sacred rights in the Anglo-American system of jurisprudence with its roots running back to that field at Runnymeade in 1215 AD where King John was forced by his nobles to sign that document we still call the Magna Carta. Courts have, and continue to, afford extraordinary deference to a decision made by the jury. In a habeas claim involving the claim of actual innocence, the petitioner asks this Court to set aside that jury verdict and order a new trial and that is one of the reasons that there is such a high standard for the petitioner to overcome in order to achieve relief. 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).
It is interesting to note that King John was such a weak, ineffectual and disliked monarch that, by tradition, no English monarch has ever been named John since that day.
There is a threshold question regarding the issue of whether the claim 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, 375-78 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.
The only matter that was presented to this Court that could possibly be called "newly discovered evidence" was the testimony of the petitioner. It is clear that the testimony offered by the petitioner cannot be considered newly discovered evidence. In the absence of some sort of persuasive evidence that the petitioner suffered from a transitory amnesia at the time of his original trial that prevented him from remembering the events of February 10, 1999, his testimony cannot ever be considered newly discovered. While the petitioner has an absolute right to use the protections of the Fifth Amendment as a shield and remain silent, he cannot use it as a sword to seek a new trial at a significantly later time by deciding to testify years later.
At best, this would consist of the simple denial of guilt by the petitioner, unsupported by any other corroborating testimony.
The state has an interest "in maintaining the fairly obtained conviction of one whom it sincerely believes is guilty, and in not being required to maintain that status by way of a second trial years later, when its evidence of guilt may be less reliable than when it was fresh." Miller v. Commissioner, 242 Conn. 745 at 792 (1997).
The petitioner's evidence in Count II, the claim of actual innocence in the New Britain case, has fallen woefully short of being considered newly discovered evidence or meeting the standard of proof by clear and convincing evidence. Count II is, therefore, dismissed. It is an open question to be decided by the habeas Court in the pending New Haven case as to what res judicata effect, if any, the dismissal by this Court of Count II will have on that petition. See Thorpe v. Commissioner of Corrections, 73 Conn. App. 773 (2002).
The Claim of Ineffective Assistance of Counsel by Attorney Conroy
Finally, Count III alleges that Attorney Thomas Conroy was ineffective in his representation of the petitioner in the violation of probation proceedings that were initiated following the petitioner's convictions in the New Britain narcotics cases. The principles of law that delineate the right to effective assistance by counsel are the same in regard to a violation of probation as it is in the underlying criminal case. The petitioner must show both deficient performance and prejudice in order to prevail on the habeas petition. Here, the petitioner was in an exceedingly difficult position insofar as being able to prevail on the Violation of Probation proceeding. He had already been convicted by a jury of having committed several criminal offenses during the pendency of his probation. This clearly constituted a violation of the terms of probation and would have been a simple matter for the state to prove at the hearing. The only place in which the counsel had any sort of reasonable hope of making a difference for his client lay in the sentence that would be adjudged by the Court after the violation was found. Attorney Conroy, quite appropriately, focused the bulk of his efforts on the petitioner's behalf in this arena.
As a result of his conviction in the New Britain narcotics cases, the petitioner was sentenced to a total effective sentence of ten years to serve. Attorney Conroy engineered a plea bargain with the state in which the petitioner would enter a plea of nolo contendre in exchange for which the state would recommend a four-year sentence to be served CT Page 4774 concurrent with the existing ten-year sentence. In effect, the petitioner would not serve a single additional day in confinement as a result of his resolving the violation of probation matter. As with the original disposition of the charge, while the petitioner steadfastly maintains his innocence, this allows him to resolve the matter in a manner that does not impose any additional loss of liberty. Far from suffering any prejudice from an alleged deficiency of performance by Attorney Conroy, the petitioner has benefited from Attorney Conroy's efforts. As a result, the petitioner is not entitled to any relief on Count III.
The ability to enter a nolo contendre plea, in and of itself is something of a benefit to the petitioner. The petitioner has a pending federal lawsuit, Morgan v. Meachum, et. al. Docket nos. 3:93CV2069 (AVC) and 3:94CV2101 (AVC) in which he alleges to have been deprived of his civil rights in violation of 42 U.S.C. § 1983 as a result of an assault committed by Corrections Officer Lytle. A guilty plea to the offense of assault upon a corrections officer would have had an adverse effect upon this federal civil lawsuit.
The petitioner has had some other legal difficulties in cases unrelated to this petition. He received a sentence of four years, consecutive to his New Britain sentence, for a violation of his manslaughter probation. He was also convicted of several other offenses on July 23, 2002 and sentenced to a total effective sentence of ten years consecutive to his other sentences. Collectively the petitioner has been sentenced in various courts to a period of confinement that will equal 24 years. The matter that is addressed in this petition has been included in, but not additional to, these other sentences.
Accordingly, the Petition for a Writ of Habeas Corpus is denied.
S.T. Fuger, Jr., Judge