Opinion
No. CV03-0004073
June 24, 2005
MEMORANDUM OF DECISION
The petitioner, Jose Rivera alleges in his petition for a Writ of Habeas Corpus initially filed on July 8, 1998 and amended for the final time on July 10, 2002, that his 1989 conviction for one count of murder in violation of CGS § 53a-54a was obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Constitution of the state of Connecticut. In count one of his petition, he specifically claims to have been deprived of the effective assistance of trial defense counsel. In Count 2, the petitioner alleges that he is actually innocent of the charges of which he stands convicted.
After a trial to the jury, the petitioner was acquitted of one count of conspiracy to commit murder in violation of CGS §§ 53a-48 and 53a-54a.
This matter came on for trial before this Court on May 26, 2005 at which time testimony was received from the petitioner; his trial defense counsel, Attorney Wesley Spears; Mr. Luis Santiago; Mr. Angel Santiago; and, Mr. Carlos DeLeon. The transcript of the petitioner's trial, as well as several other documents was received into evidence. As is explained in detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a case in the Judicial District of Hartford, under Docket Number CR14-35082 entitled State v. Rivera. The petitioner was charged with one count of murder in violation of CGS § 53a-54a and one count of conspiracy to commit murder in violation of CGS §§ 53a-48 and 53a-54a Attorney Wesley Spears represented the petitioner throughout the criminal proceedings.
2. The jury reasonably could have found the following facts to be true regarding the underlying offenses. "In the early evening of August 9, 1988, the victim, Luis Villafane, and a male companion approached the defendant, Jose Rivera, and his brothers, Heriberto Santiago (Heriberto), Luis Santiago (Luis), and Ernesto Santiago (Ernesto), who were all sitting on the steps outside of their home at 1064 Broad Street in Hartford. Villafane, who was holding a metal pipe, accused Ernesto of cheating him in a drug deal earlier that day by selling him bags of sugar instead of drugs. As tensions mounted, Luis went into the house and came back with a sawed-off rifle that he gave to the defendant. The defendant and his brothers then chased the victim and his friend across the street to an alley. When the victim attempted to strike the defendant with the metal pipe, the defendant shot and killed him. The defendant and the witnesses who had viewed the incident testified that the defendant, and no one else, had fired the rifle four or five times and had shot the victim. The autopsy report indicated that the victim had been shot only once. On October 19, 1989, the jury rendered a verdict of guilty of murder and not guilty of conspiracy to commit murder." State v. Rivera, 221 Conn. 58, at 60 (1991).
3. Attorney Wesley Spears was appointed to represent the petitioner in the criminal trial.
4. The petitioner rejected all pretrial offers and elected to take the case to trial before a jury.
5. Following a trial of the case to a jury, the petitioner was convicted of one count of murder in violation of CGS § 53a-54a on October 19, 1989. On January 18, 1990, the petitioner was sentenced by the Court, Miano, J. to an effective term of confinement of fifty years incarceration.
6. Additional facts shall be discussed as necessary.
Discussion of Law
It is important at the outset to understand a critical difference between the legal status of a person who has been accused of a crime as opposed to the legal status of 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, having already been convicted, 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 . . . 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, 229 Conn. 397 at 422-23 (1994).
Deprivation of Effective Assistance of Counsel
In order to prevail on the issue of whether there has been ineffective representation by the petitioner's trial defense counsel, the petitioner 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 necessarily result in denial of the petition.
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. Commissioner 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).
In the instant case, while there are many allegations involving the performance of Attorney Spears, however, there is a paucity of proof supporting these allegations adduced at the habeas trial. To be sure, the petitioner did introduce the transcript of his criminal trial thereby allowing the habeas court to ascertain what was said on the record at the criminal trial. Pointedly, while virtually all of the items in the petition allege failures on the part of the petitioner's counsel to do something, there was no proof at the habeas trial as to whether any of these alleged failures to act were indeed viable strategies that should have been pursued and, more importantly, what would have happened had they done these things. Consequently, there is no way that this court can conclude that the petitioner has met his burden of proof that he was the "victim" of ineffective assistance of counsel.
It is clear that the main thrust of the petitioner's proof at trial was an attempt to relitigate his 1989 conviction by bringing in testimony that may in some way conflict with the original trial. As already noted, that is clearly not the function of a habeas corpus petition.
Moreover, the habeas court does not sit as some sort of "peer review" examiner to grade the performance of trial defense counsel. To submit a transcript and essentially ask the court to engage in a plenary critique of counsel's efforts and to then attempt to find something wrong is a misunderstanding of the role of the habeas court and the burden that rests with the petitioner. "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client." Strickland v. Washington, 466 U.S. 668 at 688 (1984). Justifiably, then the burden of persuasion in a habeas case rests with the petitioner 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, 229 Conn. 397 at 419 (1994). There is, therefore, 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.
It is not even necessary to consider whether a trial counsel's performance may or may not have been deficient if the habeas Court is satisfied that there was no prejudice to the defendant by the actions, or inactions, 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).
In the instant case, the petitioner has presented evidence that essentially alleges that he was not the person who shot the victim. This, of course, contrasts with the version of events that he told at his trial and to his counsel back in 1989. Then, he admitted to being the shooter, but stated that the gun went off only because the victim hit him with a pipe. The argument, then, was that any shooting was accidental. The jury clearly did not believe this version and convicted the petitioner of intentionally murdering the victim. This Court is not persuaded that any of the allegations made at this habeas trial, some sixteen years later, has been proven so as to merit relief.
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 justifiably high burden of proof and take the matter to a jury of his or her peers. The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers. Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt. Moreover, all criminal defendants are entitled to the representation of counsel. The sixth amendment to the United States constitution provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . and to have the assistance of counsel for his defense." The sixth amendment right of confrontation and right to counsel is made applicable to the states through the due process clause of the fourteenth amendment. See Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), respectively. The Sixth amendment right to counsel is the right to an effective counsel.
"The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The `demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula `beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.'" In re Winship, 397 U.S. 358 at 361 (1970).
It is not, and never has been, for the trial defense counsel to make the decisions that a client must make. The defendant decides how to plead, whether to testify, whether to waive the right to trial by jury, etc. Nevertheless, effective representation is crucial. "Because 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 offer his or her client proper counsel at critical junctures in the trial may well be providing ineffective representation.
As already noted, a criminal defendant is entitled to the representation of trained and competent legal counsel. Notwithstanding, "[t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight. See Bell v. Cone, 535 U.S. 685 at 702 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Strickland v. Washington, 466 U.S. 668, 689; United States v. Cronic, 466 U.S. 648, 656 (1984)." Yarborough v. Gentry, 540 U.S. (October 20, 2003). This court sincerely doubts that any defense attorney has ever conducted the perfect criminal trial. The petitioner in the instant case has gone to great lengths to set out a litany of failures on the part of his trial defense counsel. Notwithstanding, the petitioner has failed to present the sufficient evidence to the habeas court to establish those allegations.
Insofar as the claim of ineffective assistance of trial defense counsel, the petitioner has failed to introduce sufficient evidence to convince this court that the performance by Attorney Spears was, in any way, deficient. Neither has there been any proof that any of the alleged deficiencies prejudiced the petitioner. The petition fails on both of the Strickland prongs.
Actual Innocence
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.
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 also a threshold question regarding the issue of whether the allegation 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, 375-58 (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.
Despite the allegation contained in the amended petition, the petitioner has not submitted anything evenly remotely resembling "newly discovered evidence." Consequently, on that basis alone, this court would be justified in rejecting the claim of actual innocence.
Here, the petitioner has been found guilty following a contested trial to a jury. As already determined, he enjoyed the representation of competent counsel who, upon review of the trial transcript, presented a cogent defense of his client. The jury simply was not persuaded. In a habeas claim involving the claim of actual innocence, the petitioner asks this Court to set aside that jury's verdict 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 verdict, 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 has also failed to sustain his burden in this regard as well.
Accordingly, the Petition for a Writ of Habeas Corpus is denied.
S.T. Fuger, Jr., Judge