Opinion
CV144006754S
01-26-2018
Hector RIOS, Inmate #248734 v. WARDEN
UNPUBLISHED OPINION
OPINION
Prats, J.
The petitioner filed a pro se petition for a writ of habeas corpus on October 28, 2014. The pro se petition was amended twice, with the second amended petition raising a single claim of ineffective assistance of prior habeas counsel. The respondent’s return simply leaves the petitioner to his burden of proof.
The parties appeared before the court on September 18, 2017, for a trial on the merits. Both parties entered documents, mostly consisting of transcripts, appellate materials and copies of court records, into evidence. Additionally, the court received testimony from the petitioner and his former habeas counsel, Attorney Michael Day. Both parties filed post-trial briefs on October 13, 2017.
Based on its review of the documentary evidence and testimony presented, and for the reasons articulated more fully below, the petition for a writ of habeas corpus is denied.
FACTUAL FINDINGS
The petitioner was the defendant in a criminal case in the judicial district of New Haven. In docket number CR6-0471763, the petitioner was convicted by a jury of one count of conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48(a) and 53a-134(a)(2), one count of attempt to commit robbery in the first degree in violation of General Statutes § 53a-49 and 53a-134(a)(2), and three counts of assault in the first degree in violation of General Statutes § § 53a-8 and 53a-59(a)(5).
The petitioner appealed unsuccessfully from the judgment of conviction. State v. Rios, 74 Conn.App. 110, 810 A.2d 812 (2002), cert. denied, 262 Conn. 945, 815 A.2d 677 (2003). " On appeal, the [petitioner] claim[ed] that, the trial court improperly (1) restricted the scope of questioning during the voir dire of the potential jurors, and (2) denied defense counsel’s request to refer to a photograph that was not admitted into evidence during closing arguments." Id., 112.
The Appellate Court’s decision summarized the underlying facts as reasonably found by the jury. " On January 3, 1997, Diare Jones was on the front porch of his grandmother’s residence at 160 West Street in New Haven. His uncles, James Boyd and Harold Boyd also were present on the porch. Two Hispanic males emerged from a nearby alleyway and approached the porch. One of the men, the [petitioner], came closer and asked if the men on the porch had an illegal drug known as ‘illy’ available for purchase. James Boyd responded that he did not have any ‘illy’ but he did have some marijuana that he was willing to sell. The [petitioner] gave James Boyd twenty dollars in exchange for a bag containing marijuana. When James Boyd turned around to enter the house to get change, the [petitioner] pulled out a gun and ordered him to hand over all of his money. The [petitioner] then fired the gun at James Boyd, hitting him three times. The [petitioner] then proceeded to shoot at Jones, hitting him twice in the back and once in the right leg. Finally, the [petitioner] shot Harold Boyd in the leg and left the scene. Thereafter, medical personnel transported all three victims to a hospital for treatment.
" Jones testified that he understood ‘illy’ to be a combination of marijuana and embalming fluid. It also has been described as mint leaves soaked in embalming fluid; State v. Spyke, 68 Conn.App. 97, 102 n.4, 792 A.2d 93, cert. denied, 261 Conn. 909, 804 A.2d 214 (2002); or a mixture of phencyclidine (PCP), wood alcohol, methanol and formaldehyde. State v. Billie, 47 Conn.App. 678, 680 n.2, 707 A.2d 324 (1998), aff’d, 250 Conn. 172, 738 A.2d 586 (1999)."
" Shortly after arriving at the hospital, a police detective asked the victims to look at some photographs to see if they could identify the shooter. All three victims were unable to make an identification. On January 10, 1997, while still in the hospital, Jones identified the [petitioner] as the shooter after he was shown an array of photographs. James Boyd, after being released from the hospital, was able to identify the [petitioner] as the shooter after being shown an array of photogaphs. On January 20, 1997, a police detective went to Harold Boyd’s residence to take a statement and show him a series of photographs. Harold Boyd, however, could not make a positive identification.
" During the trial, Jones and James Boyd identified the [petitioner] as the individual who had shot them."
" The police subsequently arrested the [petitioner]. After a trial, the jury found the [petitioner] guilty of all counts, and the court[, Freedman, J.,] sentenced him to an effective prison term of thirty six years." (Footnotes renumbered.) Id., 112-13.
The petitioner previously sought habeas corpus relief on three occasions; however, the first two habeas corpus petitions were withdrawn and only the third petition proceeded to a trial on the merits (prior habeas). The petitioner was represented in the prior habeas by attorney Michael Day who, in a second amended petition, alleged ineffective assistance of trial counsel, attorney Michael Moscowitz, as well as ineffective assistance of appellate counsel, attorneys Moscowitz and Patricia A. King. The habeas court, Schuman, J., denied the claims for the reasons articulated in a bench ruling. Rios v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-07-4001842-S (October 17, 2011) (2011 WL 5531322), appeal dismissed, Rios v. Commissioner of Correction, 139 Conn.App. 907, 55 A.3d 627 (2012) (per curiam), cert. denied, 307 Conn. 949, 60 A.3d 740 (2013).
The petitioner also unsuccessfully sought federal habeas corpus relief. Rios v. Dzurenda, United States District Court, Docket No. 3:03CV1956 (AWT) (D.Conn. November 25, 2008).
Additional facts will be discussed below as necessary to address the petitioner’s specific claims.
DISCUSSION
The second amended petition asserts a single claim in one count, namely ineffective assistance by prior habeas counsel, attorney Michael Day. The petitioner alleges that attorney Day was ineffective in his representation because he failed to present the following at the prior habeas trial: the testimony of an eyewitness identification expert to prove the petitioner’s claim that trial counsel failed to present the same during the criminal trial; evidence to prove the petitioner’s claim of ineffective assistance of trial counsel for failure to adequately cross examine or impeach certain witnesses and police officers; evidence to prove the petitioner’s claim of ineffective assistance of trial counsel for failure to call certain defense witnesses at trial; evidence to prove the petitioner’s claim of ineffective assistance of trial counsel for failure to seek the production of witness statements; evidence to prove the petitioner’s claim of ineffective assistance of trial counsel for failure to use photo arrays during the investigation of the case; evidence to prove the petitioner’s claim of ineffective assistance of trial counsel for failure to discover and use medical reports and records of the victims to challenge their identification of the petitioner; evidence to prove the petitioner’s claim of ineffective assistance of trial counsel for failure to raise an alibi defense; evidence to prove the petitioner’s claim of ineffective assistance of trial counsel for failure to challenge the court’s jury charge; evidence to prove the petitioner’s claim of ineffective assistance of trial counsel for failure to properly object to the court’s comments to the jury prior to the jury charge; evidence to prove the petitioner’s claim of ineffective assistance of appellate counsel for failure to adequately challenge on appeal the conviction of conspiracy to commit robbery in the first degree; evidence to prove the petitioner’s claim of ineffective assistance of appellate counsel for failure to adequately challenge on appeal the court’s rulings regarding inquiry into the conditions of the victims, the levels of stress of the victims, and of issues related to racial and cross-racial profiling; and evidence to prove the petitioner’s claim of ineffective assistance of appellate counsel for failure to raise on appeal a challenge to the admission of individual and array photos at trial.
The respondent’s return simply leaves the petitioner to his burden of proof as to all of these alleged deficiencies.
" ‘[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland [v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] standard requires the petitioner to demonstrate that his prior habeas counsel’s performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceeding ... [T]he petitioner will have to prove that one or both of the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial ...’Harris v. Commissioner of Correction, 108 Conn.App. 201, 209-10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice: he must ‘prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective.’ (Emphasis added.) Id. 842; see also Denby v. Commissioner of Correction, 66 Conn.App. 809, 812-13, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002)." Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 388, 966 A.2d 780 (2009).
At the habeas trial, the petitioner testified that attorney Day visited him in prison to discuss the claims and issues he wanted to pursue. According to the petitioner, the focus of the prior habeas was the victims’ medical records to attack the reliability of their identifications and the photo identifications themselves. The petitioner again wants these same issues pursued in the present matter. On cross examination, the petitioner could not recall if attorney Moscowitz filed, and at trial argued, any motions to suppress identifications.
Attorney Day testified that he reviewed the underlying record and criminal trial transcripts to determine which claims to raise in an amended habeas corpus petition. Although he could not recall if he used an investigator in this case, it was attorney Day’s practice to use an investigator and, if the investigation resulted in usable information or evidence, to use it at the eventual habeas trial. Attorney Day had a copy of attorney Moscowitz’s file from the criminal case, which included a copy of the victims’ medical records, which he described as voluminous. Attorney Day did not have an expert review the criminal trial transcript to identify what claims could have been, but were not, raised on the direct appeal from the criminal conviction.
Attorney Day retained an expert, one Dr. Charles Morgan, to review the victims’ medical records and assess whether they supported the petitioner’s habeas claims. Dr. Morgan could not make any connection between the victims’ injuries and/or medications administered to them and how those factors may have influenced the photo identifications. Dr. Morgan concluded that he would not be able to testify favorably for the petitioner at the prior habeas trial and apprised attorney Day of this conclusion on the eve of trial.
Attorney Day had subpoenaed two of the three victims, one having deceased before the prior habeas trial, but they did not appear at court for the prior habeas trial. Because there was no utility to presenting their testimony in light of Dr. Morgan’s conclusion the medical records were not helpful, attorney Day did not request that the prior habeas court issue a capias to compel the victims’ appearance on another trial date.
The second amended petition, according to attorney Day, included all claims that his review and investigation identified as potential viable claims. The evidence that could be presented at the habeas trial might be in flux, however, which would typically result in attorney Day withdrawing unsupported claims at the time of trial or simply abandoning claims. Attorney Day acknowledged that a claim raised by him in the operative petition perhaps was made in error or in anticipation of evidence developing prior to the prior habeas trial.
Although the petitioner raises a litany of claims in this " habeas on a habeas," he has failed to present any credible evidence that attorney Day was deficient or that any deficient performance prejudiced the petitioner. Though the petitioner asserts that attorney Day in numerous ways failed to present evidence in the prior habeas that would prove his claims, the petitioner did not present to this court any evidence that affirmatively proves the failure to present such evidence was deficient. See, e.g., Davey B. v. Commissioner of Correction, 114 Conn.App. 871, 878, 971 A.2d 735 (2009) (affirming habeas court’s denial of ineffective assistance claim where no testimony presented by counsel and no other evidence aside from petitioner’s self-serving testimony and the existing record from criminal case); Gipson v. Commissioner of Correction, 67 Conn.App. 428, 434, 787 A.2d 560 (2001) (affirming habeas court’s denial of ineffective assistance claim for failing to meet burden of proof by not presenting testimony by counsel and/or expert witness).
Most lacking is any evidence that provides tangible proof of the petitioner’s varied and persistent claims regarding the victims’ medical records. Attorney Moscowitz challenged the photo identifications via motions to suppress, albeit unsuccessfully, and there is no evidence that enables this court to address the propriety of the photo identification procedures. See, e.g., State v. Ledbetter, 275 Conn. 534, 547-48, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S.Ct. 1798, 164 L.Ed.2d 537 (2006) (" ... it must [first] be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances ... To prevail on [such a] claim, [a] defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect" ). Furthermore, attorney Moscowitz testified in the prior habeas about his trial strategy, as well as his concerns about using the victims’ medical records and how they would do little more than emphasize to the jury the extent of the injuries. The first habeas court found this trial strategy to be reasonable, and the petitioner has not presented any evidence in the present matter to show the contrary.
The petitioner has made many claims of deficient performance by prior habeas counsel, but which are unproven by the evidence considered by this court, and which are further undercut because there is no evidence that shows attorney Moscowitz rendered deficient performance. The petitioner has not undermined this court’s confidence in the outcome of the criminal jury trial.
CONCLUSION
Based upon the foregoing, the court concludes that the petitioner has failed to prove both that attorney Day was ineffective at the prior habeas trial and that attorney Moscowitz was ineffective at the criminal trial. Judgment shall enter for the respondent and the petition for a writ of habeas corpus is denied.
It is so ordered.