Opinion
TSRCV154006928S
07-23-2018
Joseph SHEHAN (Inmate #170107) v. WARDEN
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Seeley, J.
The petitioner, JOSEPH SHEHAN, brings this second petition for a writ of habeas corpus claiming that his first habeas counsel and his trial counsel in the criminal proceedings provided him ineffective assistance in violation of the state and federal constitutions. The petitioner is seeking to have his convictions vacated and to be released from confinement.
Based on the credible evidence presented and for the reasons stated below, the petition is denied.
I
PROCEDURAL HISTORY
The petitioner was a criminal defendant in the matter of State v. Shehan, M09M-CR01-0156023-S in the judicial district of Middlesex at Middletown. He was charged with felony murder in violation of General Statutes § 53a-54c, murder in violation of General Statutes § 53a-54a(a), burglary in the first degree in violation of General Statutes § 53a-101(a)(2), robbery in the first degree in violation of General Statutes § 53a-134(a)(1), larceny in the first degree in violation of General Statutes § 53a-122(a)(3), credit card theft in violation of General Statutes § 53a-128c(a), and illegal use of credit card in violation of General Statutes § 53a-128d(2). The state alleged that the petitioner killed the stepfather of his girlfriend, Carie Gouldsbrough, and that the petitioner and Gouldsbrough then stole items from the victim and fled to another state. Attorney William Grady represented the petitioner in the criminal proceedings.
On August 16, 2004, the petitioner pleaded guilty to the charge of murder in violation of General Statutes § 53a-54a(a), and he pleaded guilty to the following charges under the Alford doctrine: burglary in the first degree in violation of General Statutes § 53a-101(a)(2), robbery in the first degree in violation of General Statutes § 53a-134(a)(1), and, larceny in the first degree in violation of General Statutes § 53a-122(a)(3). The state summarized the underlying facts at the change of plea hearing and indicated that Gouldsbrough had told the petitioner that the victim, her stepfather, had made sexual advances towards her, including making her sleep in the same bed with him while he masturbated next to her. This information enraged the petitioner and caused him to get into a physical altercation with the victim at the victim’s home between November 27, 2000 and November 28, 2000. During the fight, the petitioner repeatedly hit the victim with a broken bottle. The victim received numerous wounds. Ultimately, the victim died from blunt force head trauma and he bled to death.
North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
Even though the transcript indicates the petitioner entered a straight guilty plea to murder and Alford pleas to the other three charges, the trial court treated all four guilty pleas as having been entered as Alford pleas during its canvass.
Gouldsbrough was present in the apartment, but she remained in a bathroom during the assault. When she emerged from the bathroom, she saw the victim was injured. At the petitioner’s request, she handed him an extension cord and the petitioner hogtied the victim’s hands and feet with the cord. They took the victim’s wallet and other items, and left the victim in his apartment. Gouldsbrough believed that the victim was still alive because he was twitching as they left. They then stole the victim’s truck and purchased items with the victim’s credit cards. The petitioner and Gouldsbrough fled to Atlanta, Georgia, where eventually they were located and arrested.
On December 6, 2004, the court, Holzberg, J., sentenced the petitioner to a total effective sentence of thirty-two and a half years to serve. Thereafter, on or about September 7, 2007, the petitioner filed a petition for a writ of habeas corpus, which was amended on August 14, 2009. The petitioner claimed he was denied the effective assistance of trial counsel in violation of his state and federal constitutional rights. Specifically, he alleged that counsel failed to ensure that his plea to the murder charge was entered under the Alford doctrine pursuant to the petitioner’s instruction; that counsel failed to properly pursue the defense of extreme emotional disturbance relating to the murder charge; and, that counsel led petitioner to believe that he would be eligible for parole if he accepted the court-indicated sentence. The petitioner was represented by Attorney Bruce McIntyre at the first habeas proceeding. Following a trial, the court, Santos, T., issued a written decision and denied the petition. See Shehan v. Warden, Superior Court, judicial district of Tolland, Docket No. CV07-4001965 (May 24, 2011), 2011 WL 2478176.
On or about January 6, 2015, the petitioner filed the instant petition, his second petition for a writ of habeas corpus. After counsel was appointed, the petition was amended twice. The operative pleading is the second amended petition dated June 16, 2017, which alleges the following: (1) that the petitioner’s guilty pleas were not made knowingly, intelligently and voluntarily due to his trial attorney’s ineffective counsel; (2) that his habeas counsel was ineffective in failing to effectively raise a claim that his trial counsel was ineffective for failing to communicate the elements of the offenses, the evidence against the petitioner and any potential defenses so that the petitioner could make an informed decision of whether to plead guilty or proceed to trial; and, (3) that his habeas counsel was ineffective in failing to effectively raise a claim that his trial counsel was ineffective for failing to investigate potential defenses to the charges.
The court heard the trial on this matter on November 8, 2017 and March 23, 2018. The petitioner called three witnesses: himself, Attorney William Grady (trial counsel in the criminal case) and Attorney Bruce McIntyre (first habeas counsel). The petitioner also introduced numerous exhibits, including psychiatric and psychological evaluations of the petitioner, transcripts of the change of plea hearing and sentencing hearing, various police reports, laboratory reports and warrants in connection with the petitioner’s criminal case. The petitioner also introduced several exhibits relating to his first habeas proceeding, including the petitioner’s initial and amended petitions, the habeas trial transcript and the court’s memorandum of decision. The respondent called one witness, Mr. Grady, and introduced one exhibit, a certified copy of the court file in criminal case.
II
FINDINGS OF FACT
The court has reviewed all of the testimony and evidence and makes the following findings of fact.
Petitioner’s trial counsel in the criminal case was William Grady, an experienced criminal defense attorney who began practicing law in 1984. During his career, Grady has handled hundreds of criminal cases and had at least twenty jury trials, including two murder cases. Grady also represented a defendant in a capital murder case. In this case, Grady represented the petitioner for almost four years. During that time period, Grady reviewed the discovery provided by the state, including the crime scene photographs, the autopsy report, the police reports, witness statements, and the petitioner’s statements. He conducted investigation and legal research, monitored the co-defendant’s case (Carie Gouldsbrough), interviewed and counseled the petitioner, discussed the strengths and weaknesses of the state’s case with the petitioner, pursued a psychiatric defense by hiring both a psychologist and psychiatrist to conduct forensic examinations, and engaged in extensive pretrial negotiations with the prosecutor, and judicial pretrial discussions with the prosecutor and the court.
Grady began representing the petitioner in January 2001 and continued to represent him through the sentencing hearing held on December 6, 2004.
Both the petitioner and Gouldsbrough spoke with law enforcement and admitted to taking valuables belonging to the victim, which the petitioner confirmed in his conversations with Grady. While the defense expert witnesses would have supported a claim of extreme emotional disturbance, the state’s expert witness disagreed and would have testified that the petitioner’s actions relating to the victim’s death were consistent with a diagnosis of anti-social personality disorder. Thus, Grady counseled the petitioner that a jury may not accept an extreme emotional disturbance defense since there were conflicting psychological and psychiatric reports.
The petitioner made it clear to Grady that the petitioner wanted Gouldsbrough, his girlfriend, to be treated leniently. At the time the petitioner entered his guilty pleas, Gouldsbrough’s case had been resolved and she was released from jail. During his discussions with the petitioner, Grady expressed his concerns that Gouldsbrough would be a witness against him at a trial and based on her prior statements, she would negate any defenses that the petitioner would put forth such as self-defense, implied consent to take the victim’s truck, and, permission to be on the victim’s premises. Furthermore, the petitioner told Grady he did not want her to have to testify.
Grady also counseled him that the crime scene photographs were gruesome and would be difficult for a jury to view dispassionately. In particular, Grady informed the petitioner that he was concerned that a jury would have difficulty with the manner in which the victim died, namely, that because the victim had been "hog-tied" by the petitioner when he was still alive, he was not able to assist himself or call for assistance and it then took a substantial time for the victim to bleed out through his wounds. Additionally, Grady discussed with the petitioner the fact that he had fourteen prior felonies and a history of violent conduct that could be presented to the jury as well.
Grady advised the petitioner of the charges, including the elements of each offense and the evidence the state would need to present to prove him guilty, as well as the maximum penalties he faced on each charge. During Grady’s discussions with the petitioner, the petitioner appeared alert and appeared to understand the issues that were being discussed. Originally, the petitioner was exposed to 120 years of incarceration. During plea negotiations with the prosecutor, the original offer was for a total effective sentence of forty-five years. After a pretrial conference with a judge (Gordon, J.), the court indicated it would impose a total effective sentence of forty years. Grady then obtained forensic evaluations from a psychiatrist and a psychologist, and the state obtained its own forensic evaluation. After the forensic reports were exchanged, the state reduced its offer to thirty-five years. As a result of an additional pretrial conference with another judge (Holzberg, J.), the court indicated it would impose thirty-two and a half years.
On August 16, 2004, the petitioner pleaded guilty to the charge of murder, and he pleaded guilty under the Alford doctrine to burglary in the first degree, robbery in the first degree, and larceny in the first degree. The court fully questioned the petitioner about his decision to plead guilty to the charges. The petitioner stated that he had not taken any alcohol or drugs that day, that he had an adequate opportunity to discuss the case and the agreement with Grady, and that he was satisfied with Grady’s advice and assistance. The petitioner stated that he understood he was giving up his constitutional rights, including his right to have a trial and to present any evidence in his own defense, and that he was doing so voluntarily and freely. The petitioner also indicated that he was pleading guilty because he wanted to take advantage of the plea bargain offer which he believed was less than what he would receive if he had been convicted after trial.
The petitioner acknowledged that Grady had reviewed the elements of the offense of murder. The court then reviewed the elements and penalties for each offense, which the petitioner indicated he understood. The petitioner asked the court if he could waive the presentence investigation report and proceed directly to sentencing, which the court declined to do. The court made a finding that the petitioner’s pleas were entered knowingly, intelligently, and voluntarily with the adequate and effective assistance of counsel.
During the sentencing hearing held on December 6, 2004, Grady stated the following regarding the viability of the extreme emotional disturbance defense: "We knew that when we got the report that it laid out the legal possibility of that defense and we had hired a very competent and experienced forensic psychologist to do the report and one who I’ve had confidence in before and who has been involved in other murder cases that I’ve been involved in. And when he said that there was a possibility that it might be a viable defense, we gave that some thought. But at the same time, we also realized that in the end it might not be accepted exposing Mr. Shehan to substantially a longer period of time than that which the Court has indicated today. And Mr. Shehan certainly understands that even if the extreme emotional disturbance defense had prevailed, that he could still be given cumulatively the period of time in which the Court indicated that it intends to impose today or even longer. So realizing that that, the entire defense may be unavailing even if successful, unavailing that is in terms of benefit to him in terms of the time, certainly that was part of his calculus in deciding to change his plea when he did." The court gave the petitioner an opportunity to address the court, but the petitioner declined. The court then sentenced the petitioner to the court-indicated disposition of a total effective sentence of thirty-two years to serve.
The petitioner acknowledged his understanding of the limitations of the extreme emotional disturbance defense several years later during his testimony in his first habeas trial. In response to a question of whether he discussed with Grady the feasibility of proceeding to trial based on the forensic psychiatric reports, the petitioner responded: "... I kind of knew what the ... how the court system worked at the time when we discussed that and what the end result would be ... [E]ven if I get it dropped down to a manslaughter and I get EED, ... they’re still going to come in with the other charges and hang me out to dry with the other charges. So the number would be superficial at the end because I’d still end up with forty or fifty years anyway." He also testified that, "[Y]ou know, what’s the difference between manslaughter and murder? You know, he got me a good number, the 32 and a half years is a good number for that particular charge."
On or about September 7, 2007, the petitioner filed his first petition for a writ of habeas corpus. Attorney Bruce McIntyre was appointed to represent the petitioner. McIntyre is an experienced criminal defense attorney and has represented several hundred petitioners in habeas matters during a fifteen- to twenty-year period. McIntyre spoke with the petitioner and reviewed the documents in the underlying criminal proceedings. He specifically considered whether to bring a claim that trial counsel was ineffective for not challenging the murder charge based on insufficient proof of intent. However, McIntyre rejected this claim because the petitioner also was charged with felony murder, which does not require the state to prove intent to commit murder. He also came to the same conclusion regarding raising a claim that trial counsel was ineffective for failing to pursue any potential defenses to the non-homicide charges. In other words, if the case had gone to trial, McIntyre believed the state would pursue the charge of felony murder, which would have exposed the petitioner to sixty years. Therefore, McIntyre concluded that it made no sense for trial counsel to pursue those defenses.
McIntyre did not raise a claim of ineffective assistance of counsel based on an allegation that Grady failed to advise the petitioner on the elements of the offenses because the petitioner told McIntyre that he and Grady had discussed the elements several times. Based on his discussions with the petitioner, McIntyre concluded that the petitioner was aware of the elements of the offenses at the time he entered his guilty pleas.
Following his review of the criminal file and after consulting with the petitioner, McIntyre filed an amended petition on or about August 14, 2009 and raised three claims. The petitioner claimed Grady rendered ineffective assistance of counsel by (1) not ensuring his plea to the murder charge was entered under the Alford doctrine; (2) not pursuing the defense of extreme emotional disturbance relating to the murder charge; and, (3) improperly informing petitioner that he would be eligible for parole if he accepted the court-indicated sentence. Following a trial, the court, Santos, T., J., rejected these claims and denied the petition. See Shehan v. Warden, Superior Court, judicial district of Tolland, Docket No. CV07-4001965 (May 24, 2011), 2011 WL 2478176.
III
DISCUSSION
A
Claim That Plea Was Not Knowing, Intelligent, or Voluntary Due to Ineffective Assistance of Counsel in Criminal Trial Proceedings
The petitioner alleges that his due process rights were violated because he did not knowingly, intelligently and voluntarily enter his guilty pleas. Specifically, the petitioner claims that trial counsel rendered ineffective assistance of counsel by failing to properly advise him of the elements of the offenses, the evidence against him, and the potential defenses. The petitioner further claims that he relied upon the advice of counsel to plead guilty.
As recognized by the United States Supreme Court, "the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial." Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court also recognized that, "... if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and ... judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts." McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Therefore, "... all defendants facing felony trials are entitled to the effective assistance of competent counsel," id., and that includes in the context of counsel advising a defendant whether to plead guilty. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
The legal principles in cases involving claims of ineffective assistance of counsel in connection with guilty pleas are governed by Strickland v. Washington, supra, 466 U.S. 668, and Hill v. Lockhart, supra, 474 U.S. 52. Under Strickland, an ineffective assistance of counsel claim "must be supported by evidence establishing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance ..." Humble v. Commissioner of Correction, 180 Conn.App. 697, 704 (2018); see also Skakel v. Commissioner of Correction, 329 Conn. 1, 11 (2018). Furthermore, "[t]he longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." (Citations omitted; internal quotation marks omitted.) Hill v. Lockhart, supra, 474 U.S. 56.
Our courts have recognized that, "[t]o satisfy the performance prong under Strickland-Hill, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness ... A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases ... The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ... Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance ..." (Citations omitted; internal quotation marks omitted.) Humble v. Commissioner of Correction, supra, 180 Conn.App. 704-05.
As noted in Strickland, "[t]he object of an ineffectiveness claim is not to grade counsel’s performance ..." Strickland v. Washington, supra, 466 U.S. 697. The sixth amendment "does not guarantee perfect representation, only a reasonably competent attorney ... Representation is constitutionally ineffective only if it so undermined the proper functioning of the adversarial process that the defendant was denied a fair trial." (Citations omitted; internal quotation marks omitted.) Harrington v. Richter, 562 U.S. 86, 110, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); see also Skakel v. Commissioner of Correction, supra, 329 Conn. 11.
A trial of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. The Strickland Court cautioned that, "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ..." (Citation omitted; internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 689; Skakel v. Commissioner of Correction, supra, 329 Conn. 11.
In the context of guilty pleas, "[t]o satisfy the prejudice prong [under Strickland-Hill ], 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 ..." (Citations omitted; internal quotation marks omitted.) Humble v. Commissioner of Correction, supra, 180 Conn.App. 705. As recently recognized by the Appellate Court, "an allegation of the ineffective assistance of counsel is a factor to be taken into consideration in determining whether a guilty plea was voluntary and intelligent, but for the plea and the judgment of conviction based thereon to be overturned on this ground, it must be demonstrated that there was such an interrelationship between the ineffective assistance of counsel and the plea that it can be said the plea was not voluntary and intelligent because of the ineffective assistance." (Citations omitted.) Henderson v. Commissioner of Correction, 181 Conn.App. 778, 797-98, cert. denied, 329 Conn. 911 (2018).
With respect to the prejudice prong, a petitioner "must make more than a bare allegation that he would have pleaded differently and gone to trial ..." (Citation omitted.) Colon v. Commissioner of Correction, 179 Conn.App. 30, 36, 177 A.3d 1162 (2017). "In evaluating whether the petitioner had met this burden and evaluating the credibility of the petitioner’s assertions that he would have gone to trial, it [is] appropriate for the court to consider whether a decision to reject the plea bargain would have been rational under the circumstances." (Internal quotation marks omitted.) Flomo v. Commissioner of Correction, 169 Conn.App. 266, 280, 149 A.3d 185 (2016), cert. denied, 324 Conn. 906, 152 A.3d 544 (2017).
As noted in Strickland, "[u]nless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable." Strickland v. Washington, supra, 466 U.S. 687. In this case, the petitioner failed to establish both prongs of the Strickland-Hill test. As to the performance prong, the petitioner did not establish that counsel’s representation fell below an objective standard of reasonableness such that the petitioner was unable to make an informed decision to plead guilty. First, the court finds credible the testimony of Attorney Grady that he reviewed the discovery provided by the state, including the crime scene photographs, the autopsy report, the police reports, witness statements, and the petitioner’s statements; that he conducted investigation and legal research and monitored the co-defendant’s case; that he interviewed and counseled the petitioner, discussed the strengths and weaknesses of the state’s case with the petitioner, and, pursued a psychiatric defense by hiring both a psychologist and psychiatrist to conduct forensic examinations; that Grady counseled the petitioner that a jury may not accept an extreme emotional disturbance defense since there were conflicting psychological and psychiatric reports; that Grady also counseled him that the crime scene photographs were gruesome and would be difficult for a jury to view dispassionately; that he informed the petitioner that a jury may reject the petitioner’s defense because the victim had been "hog-tied" by the petitioner when he was still alive, which meant the victim was unable to assist himself or call for assistance and the victim essentially bled to death; that during his discussions with the petitioner, Grady expressed his concerns that the petitioner’s codefendant, Gouldsbrough, would testify against the petitioner and based on her prior statements, she would negate any defenses that the petitioner would put forth such as self-defense, implied consent to take the victim’s truck, and, permission to be on the victim’s premises; and, that Grady engaged in extensive pretrial negotiations with the prosecutor, and judicial pretrial discussions with the prosecutor and the court.
The court further finds credible Grady’s testimony that he counseled and advised the petitioner as to all of the offenses charged, the elements of each offense, the evidence against him, and, the potential defenses he could have raised. The court’s determination is based on Grady’s testimony in the present habeas proceeding and the first habeas trial, as well as McIntyre’s testimony that the petitioner told him that he and Grady had discussed the elements several times. In addition, the court is relying on its review of the change of plea hearing before Judge Holzberg on August 16, 2004. During that hearing, the court fully questioned the petitioner about his decision to plead guilty to the charges. The petitioner stated that he had not taken any alcohol or drugs that day, that he had an adequate opportunity to discuss the case and the agreement with Grady, and that he was satisfied with Grady’s advice and assistance. The petitioner stated that he understood he was giving up his constitutional rights, including his right to have a trial and to present any evidence in his own defense, and that he was doing so voluntarily and freely. The petitioner also indicated that he was pleading guilty because he wanted to take advantage of the plea bargain offer which he believed was less than what he would receive if he had been convicted after trial.
The petitioner acknowledged that Grady had reviewed the elements of the offense of murder. The court then reviewed the elements and penalties for each offense, which the petitioner indicated he understood. The court made a finding that the petitioner’s pleas were entered knowingly, intelligently, and voluntarily with the adequate and effective assistance of counsel. See, e.g., White v. Commissioner, 182 Conn.App. 188, 196 (2018) (in habeas case, court may properly rely on the responses of a petitioner at the time he responded to the trial court’s plea canvass).
In the present proceeding, the petitioner admitted that the charges and elements of the offenses were explained to him, but the "viable options to those charges" were not explained to him. The court does not credit the petitioner’s testimony that Grady failed to discuss all options with him, including possible defenses and the strengths and weaknesses of the state’s case against him.
This court does not credit the petitioner’s self-serving testimony that Grady threatened to withdraw from the case if the petitioner did not plead guilty. At the time that Grady represented the petitioner, he was an experienced criminal defense attorney and had handled hundreds of criminal cases. Grady had tried at least twenty jury trials, including two murder cases. The court credits Grady’s testimony that he was prepared to proceed to trial in the petitioner’s case and he did not threaten the petitioner that he would withdraw from representing him if he did not plead guilty.
Similarly, the court did not find credible the petitioner’s testimony that the number of times he was required to be transported to court during the pretrial proceedings impacted his decision to plead guilty because he just wanted to get it over with. The petitioner never articulated that complaint to Grady or to the court during the change of plea hearing. Instead, the petitioner made it clear to Grady that he did not want Gouldsbrough, his co-defendant (and girlfriend), to have to testify and he wanted her to be treated leniently. Thus, the petitioner did not establish that his trial counsel’s representation fell below an objective standard of reasonableness such that the petitioner was unable to make an informed decision to plead guilty.
Regarding the prejudice prong under Strickland-Hill, the petitioner failed to establish that he would have opted for a trial but for trial counsel’s alleged errors. The petitioner testified knowing what he now knows about the charges and possible defenses, he would have rejected the plea offer and proceeded to trial. However, this bare allegation is not sufficient to establish that Grady’s representation prejudiced the petitioner, particularly when evaluated in light of the circumstances of the case. The record shows that the state had a strong case against the petitioner on all of the charges, particularly in light of statements made by the petitioner and the co-defendant, and, the evidence located in their possession when they were located in Georgia, including the victim’s watch and ring which had been taken from the victim after the incident and still had the victim’s blood on them. Additionally, the petitioner possessed several credit cards belonging to the victim and the victim’s truck also was located with the petitioner in Georgia.
The state also would have been able to present the defendant’s flight as "consciousness of guilt" evidence, and it is likely that many of the petitioner’s prior felony convictions would have been presented to the jury. Moreover, the jury may have rejected the petitioner’s extreme emotional disturbance claim in favor of the state’s expert witness that the petitioner’s actions relating to the victim’s death were consistent with a diagnosis of anti-social personality disorder.
As noted by the prosecutor during the change of plea hearing, the petitioner’s original exposure was 120 years of incarceration. In light of the evidence against the petitioner and the risks he would have faced had he insisted on going to trial, his decision to enter into a plea agreement in which he would be sentenced to thirty-two and a half years was prudent. There was a strong incentive for the petitioner to accept the court’s indicated-disposition of thirty-two and a half years rather than go to trial and risk a substantially higher sentence, especially since the extreme emotional distress claim would not have been available on the charge of felony murder.
Therefore, the petitioner’s claim that he would have pursued a jury trial but for Grady’s alleged ineffective assistance of counsel is speculative. He failed to establish that there is a reasonable probability that, but for counsel’s error, he would have insisted on going to trial. The petitioner was not able to demonstrate "that there was such an interrelationship between the ineffective assistance of counsel and the plea that it can be said the plea was not voluntary and intelligent because of the ineffective assistance." Henderson v. Commissioner of Correction, supra, 181 Conn.App. 798. Accordingly, the petitioner’s claim that his due process rights were violated because he did not knowingly, intelligently and voluntarily enter his guilty pleas is without merit.
B
Claims of Ineffective Assistance of Counsel in First Habeas Trial
In Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), our Supreme Court approved "[t]he use of a habeas petition to raise an ineffective assistance of habeas counsel claim ..." In order to assess claims of ineffective assistance based on the performance of prior habeas counsel, the Strickland standard is as follows: "[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel’s performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceeding ... [T]he petitioner will have to prove that ... prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial ... Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of 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." (Citations omitted; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 113 Conn.App. 394, 966 A.2d 780 (2009); see also Francis v. Commissioner of Correction, 182 Conn.App. 647 (2018). Our Supreme Court has characterized this burden as presenting a "herculean" task. Lozada v. Warden, supra, 223 Conn. 843; see also Martin v. Commissioner of Correction, 179 Conn.App. 647, 663, 180 A.3d 1003, cert. denied, 328 Conn. 926, 182 A.3d 84 (2018).
Furthermore, in regards to the prejudice prong of Strickland, it is not sufficient "to show that [counsel’s] ... errors had some conceivable effect on the outcome of the proceedings ... Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks omitted.) Martin v. Commissioner of Correction, supra, 179 Conn.App. 663. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Internal quotation marks omitted.) Id., 664.
The petitioner’s first claim regarding his habeas counsel at the initial habeas trial is that Attorney McIntyre was ineffective in failing to raise a claim that his trial counsel was ineffective for not communicating the elements of the offenses, the evidence against the petitioner and any potential defenses so that the petitioner could make an informed decision of whether to plead guilty or proceed to trial. In order to set forth a prima facie case of ineffective assistance of habeas counsel on the ground of ineffective assistance of trial counsel, the petitioner must set forth a prima facie case of ineffective assistance of trial counsel. In light of the court’s ruling in Part III A rejecting the argument that trial counsel was ineffective in this regard, the petitioner’s claim against habeas counsel also fails.
The petitioner’s second claim regarding the representation by his habeas counsel at the first habeas trial is that McIntyre was ineffective in failing to effectively raise a claim that the petitioner’s trial counsel was ineffective for not investigating potential defenses to the charges. Specifically, the petitioner has alleged that trial counsel was ineffective for failing to investigate the defenses of extreme emotional disturbance, self-defense, invitation or permission to be on the premises, and implied consent to use the vehicle in question.
First, the claim that habeas counsel failed to effectively raise a claim that trial counsel was ineffective for failing to investigate the defense of extreme emotional disturbance is without merit. The issue of whether trial counsel rendered ineffective assistance of counsel by not properly pursuing an extreme emotional disturbance defense was litigated in the first habeas proceeding and it was determined that trial counsel’s representation was within the wide range of reasonable professional assistance. Shehan v. Warden, Superior Court, judicial district of Tolland, Docket No. CV07-4001965 (May 24, 2011), 2011 WL 2478176, *4.
Furthermore, the petitioner’s claim that McIntyre was not effective in how he raised this particular issue in the petitioner’s first habeas matter is nothing more than a bare allegation. Petitioner failed to present any evidence or argument regarding this claim. Therefore, the court finds that the petitioner did not establish that McIntyre was ineffective.
Secondly, as to the claim that McIntyre failed to effectively raise a claim that Grady was ineffective for failing to investigate the defenses of self-defense, invitation or permission to be on the premises or implied consent to use the vehicle in question, the petitioner failed to show that Grady’s representation fell below an objective standard of reasonableness. The court finds Grady’s testimony credible that he considered these defenses, but determined they were not viable defenses in light of the evidence and based on statements made by the petitioner to Grady. "The reasonableness of counsel’s actions may be determined or substantially influenced by the [petitioner’s] own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the [petitioner] and on information supplied by the [petitioner]." Strickland v. Washington, supra, 466 U.S. 691.
Moreover, the petitioner has failed to provide this court with any credible evidence contradicting his trial counsel’s understanding that based on trial counsel’s review of the evidence and discussions with the petitioner, these defenses were not viable. The petitioner has provided this court with no reason to find a reasonable probability that proffering a self-defense theory, or invitation/permission to be on the premises theory or an implied consent to use the victim’s vehicle would have been favorable to him in the underlying criminal matter.
IV
CONCLUSION
For the foregoing reasons, the court denies the petition for writ of habeas corpus. Judgment shall enter for the respondent.