Opinion
CV064000980S.
11-28-2012
Vance SOLMAN v. WARDEN.
UNPUBLISHED OPINION
NAZZARO, J.
The petitioner initiated this matter by way of a pro se petition for a writ of habeas corpus. Assigned counsel twice amended the petition. The second amended petition raises claims in five counts: 1) actual innocence; 2) violation of due process and right to a fair trial because the prosecution failed to material favorable evidence; 3) ineffective assistance by trial defense counsel; 4) ineffective assistance by appellate counsel; and 5) ineffective assistance by prior habeas counsel. The respondent's return denies the material allegations and asserts procedural default as an affirmative defense, as well as deliberate bypass and res judicata. The petitioner's reply denies that he has procedurally defaulted, as well as that res judicata and deliberate bypass apply.
The affirmative defenses are inapplicable to the remaining claims of actual innocence and ineffective assistance of prior habeas counsel.
The parties appeared before the court on March 18, 2010, to begin a trial on the merits. At the onset of trial, the parties presented arguments on the respondent's motion to dismiss counts one, two, and three of the second amended petition. The court denied the motion to dismiss as to count one but granted it as to counts two and three for the reasons indicated on the record at that time. The petitioner then withdrew the claim in count four, leaving only the actual innocence claim in count one and the claim of ineffective assistance of prior habeas counsel in count five.
The parties began addressing the petitioner's petition for DNA testing, which the court deferred ruling on until the next day of trial, March 19, 2010, and continued by presenting testimony from former Detective Marc Caporale and Attorney William Westcott, who represented the petitioner both in his prior habeas corpus matter and on direct appeal from the criminal convictions. On March 19, 2010, the parties continued addressing the now amended petition for DNA testing. The court denied the petition for DNA testing without prejudice and permitted the petitioner opportunity to file a petition for DNA testing with the original criminal court. The matter was continued to permit this court to monitor the status of the petition for DNA testing.
On July 21, 2010, the parties appeared before this court, at which time the petitioner made an oral motion for a stay, and which the court granted after the parties' oral arguments. The stay was to remain in effect until such time as the underlying criminal court rendered judgment on the petitioner's petition for DNA testing in CR97-00455878, as well as through any subsequent appeal therefrom. The petitioner filed a petition for DNA testing in the underlying criminal court and, after it was denied by the court (Fasano, J.), the petitioner appealed to the Appellate Court. In State v. Solman, 131 Conn.App. 846, 847, 29 A.3d 183, cert.denied, 303 Conn. 915 (2011), the Appellate Court affirmed the dismissal of the petition for DNA testing because the petitioner had failed to satisfy the requirement of General Statutes § 54-102kk(a) of providing sufficient factual support that the evidence contains biological material.
The stay no longer being in effect, the parties appeared before this court again on July 10, 2012, to resume the matter. The petitioner indicated that he had no further evidence to present. After both the petitioner and the respondent rested, the respondent made an oral motion to dismiss counts one and five. Although the respondent made an oral motion to dismiss counts one and five, the parties were ordered file written motions, objections and briefs on or before September 10, 2012. Any briefs filed were to address all issues before court, whether the motion to dismiss, any objection thereto, as well as the merits of the remaining two counts. Accordingly, any such briefs also served as post-trial briefs. The matter was continued to September 24, 2012, to permit the parties to present any additional arguments.
On September 10, 2012, the petitioner filed a notice indicating that in lieu of filing a post-trial brief, the petitioner instead would present closing arguments. The respondent filed a post-trial brief on September 10, 2012. The parties appeared before the court on September 24, 2012, to make their final arguments. Based upon the evidence presented, judgment shall enter denying the petition for a writ of habeas corpus.
DISCUSSION
The Appellate Court's decision summarizes the following facts that the jury reasonably could have found. " In September 1997, the victim and his wife were employed at a McDonald's restaurant in Branford and became acquainted with the [petitioner], who was employed at a nearby Mobil gas station. The [petitioner's] nephew also was employed at the Mobil station and became friendly with the victim's wife. That friendship eventually progressed to the point where the victim felt that it was necessary to intervene and, accordingly, he told the [petitioner's] nephew to leave his wife alone. The victim's brother-in-law also confronted the nephew and recommended a curtailment of the relationship.
" Shortly after midnight, on September 24, 1997, as he lay in bed with his wife and child, the victim heard a loud banging at the back door of their apartment. The victim walked to the kitchen to investigate the disturbance when the [petitioner] burst through the door and shot the victim several times before fleeing. Ten .22 caliber shell casings were found at the scene along with a live round. The [petitioner] was apprehended thereafter, and the police discovered a live .22 caliber round at his residence during a search of the premises.
" While awaiting trial, the [petitioner] was incarcerated at the Cheshire Correctional Institution, where he became friendly with a fellow inmate, Robert Horrocks. He admitted to Horrocks that he had shot the victim and solicited Horrocks, if released on bond, to kill the victim and his spouse. He wrote out the names of the targets, their descriptions and the address of the victim's mother-in-law." State v. Solman, 67 Conn.App. 235, 236-37, 786 A.2d 1184 (2001), cert. denied, 259 Conn. 917, 791 A.2d 568 (2002).
The petitioner was represented on direct appeal by Attorney William Westcott. Attorney Westcott reviewed the record and, based on that review, raised two claims on direct appeal. The Appellate Court affirmed the judgment of conviction. Attorney Westcott's review of the record of the criminal proceedings also led to his conclusion that the petitioner had one or more claims worth pursuing via a petition for a writ of habeas corpus.
Attorney Westcott then represented the petitioner in a prior, his first, habeas corpus petition in which he raised a claim of ineffective assistance by trial defense counsel, as well as that his right to due process was violated by the state's failure to provide exculpatory evidence. The claims in the first habeas corpus petition were denied by the court, Fuger, Jr., J., and the petitioner appealed from the denial of the petition for certification to appeal. After concluding that the habeas court did not abuse its discretion in denying the petition for certification to appeal, the Appellate Court dismissed the appeal. Solman v. Commissioner of Correction, 99 Conn.App. 640, 645, 916 A.2d 824, cert. denied, 282 Conn. 902, 918 A.2d 888 (2007). The petitioner then initiated this matter, his second petition for a writ of habeas corpus, while the appeal from the first habeas was pending.
Actual Innocence
The petitioner's claim in the first count of the second amended petition is that he is actually innocent. The petitioner asserts in support of this claim that his DNA was not found either at or on items found at the scene of the shooting. The petitioner also avers that DNA and blood testing of the broken glass, blood drops and shell casings will reveal the identity of the shooter and exclude the petitioner as the shooter. According to the second amended petition, the evidence the petitioner intends to present in the habeas corpus proceeding will show that no reasonable fact finder would find him guilty of the underlying offenses at issue in this habeas corpus petition.
" ‘ [T]he proper standard for evaluating a freestanding claim of actual innocence ... is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence— both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial— he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime.’ Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997). As to the clear and convincing evidence component, ‘ [t]he 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. It is sustained if the evidence induces in the mind of the 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 ... We have stated that the clear and convincing standard should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory.’ (Internal quotation marks omitted.) In re Dylan C ., 126 Conn.App. 71, 87, 10 A.3d 100 (2011)." Harris v. Commissioner of Correction, 134 Conn.App. 44, 49-50, 37 A.3d 802, cert. denied, 304 Conn. 919, 41 A.3d 306 (2012).
The actual innocence standard was further clarified by the Supreme Court in Gould v. Commissioner of Correction, 301 Conn. 544, 22 A.3d 1196 (2011). The Supreme Court " ... held that the clear and convincing burden under Miller requires more than casting doubt on evidence presented at trial and the burden requires the petitioner to demonstrate actual innocence through affirmative evidence that the petitioner did not commit the crime." Harris v. Commissioner of Correction, supra, 134 Conn.App. at 50, citing Gould v. Commissioner of Correction, supra, 301 Conn. at 562.
Upon the criminal trial court denying the petition for DNA testing and the unsuccessful appeal therefrom, the stay in the instant matter was lifted and the parties appeared before this court. Counsel for the petitioner acknowledged on September 24, 2012, that there was no evidence to present in support of the claim of actual innocence in count one. Accordingly, the actual innocence claim is dismissed.
Ineffective assistance of prior habeas counsel
The petitioner alleges in count five that Attorney Westcott rendered ineffective assistance of counsel in his prior habeas corpus. More specifically, that Attorney Westcott was deficient for not raising the claims the petitioner asserted in counts two, three and four of the second amended petition, namely that: the petitioner's right to due process was violated by the prosecutor's failure to disclose material favorable evidence; his right to effective assistance of trial counsel was violated; and his right to effective assistance of appellate counsel was violated.
The first basis for ineffective assistance by Attorney Westcott in the first habeas is that he failed to adequately pursue a claim that the petitioner's right to due process and a fair trial was violated by the prosecuting authority's failure to disclose material favorable evidence. In particular, this claim centers on a picture of the back door at 32 Rowe Street in New Haven that, according to the petitioner, would have shown that the person who kicked open the door was not wearing white Nike sneakers.
" ‘ To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong ... The claim will succeed only if both prongs are satisfied ... As 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. Thus ... the 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 ...’ (Citation omitted; internal quotation marks omitted.) Williams v. Commissioner of Correction, 133 Conn.App. 96, 101-02, 33 A.3d 883 (2012)." Gibson v. Commissioner of Correction, 135 Conn.App. 139, 155-56, 41 A.3d 700, cert. denied, 305 Conn. 922, 47 A.3d 881 (2012).
Former Detective Caporale testified that he assisted in processing the crime scene and photographed the interior and exterior of the building, including the exterior of the rear door, where the shooting occurred. Caporale also photographed a footprint found outside 32 Rowe Street. According to Caporale, the photograph of the exterior of the door could not be located at the time of the petitioner's criminal trial and he had no knowledge of where the picture was at that time.
Attorney Westcott testified that he reviewed the entire record as appellate counsel. Although he considered raising a habeas claim premised on the missing photograph, no such claim was asserted in the first habeas because he concluded that there was no reasonable probability such a claim had support. If the scuff mark left on the door when it was kicked in was black and the petitioner was arrested wearing white-soled sneakers, then such a discrepancy possibly could, according to Attorney Westcott, support a third-party culpability claim.
Based upon the foregoing, the court concludes that the petitioner has failed to show that Attorney Westcott's decision to not raise a claim premised on the missing photograph was unreasonable. This court must apply a strong presumption that Attorney Westcott's conduct falls within the wide range of reasonable professional assistance. See, e.g., Strickland v. Washington, supra, 466 U.S. at 689; Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 722, 789 A.2d 1046 (2002). While such a presumption of course is rebuttable, affirmative evidence must be presented to rebut the presumption of reasonable professional assistance. The petitioner here has failed to present any such evidence.
The second basis for deficient performance by Attorney Westcott in the first habeas is that he failed to allege that trial defense counsel, Attorney Patricia Wolf, failed to: object to the admissibility of the foot print found outside of 32 Rowe Street; move for the production of the photograph of the back door; present the photograph of the back door; move for DNA testing and blood testing of the broken glass in the back door; move for DNA testing and blood testing of the blood drops found in close proximity to the shell casings in the third floor apartment; and adequately cross examine Detective Caporale.
Attorney Wolf did not testify during the habeas proceeding. Thus, this court is being asked to assess the merits of the alleged deficient performance in a vacuum, without knowing trial counsel's strategies and the tactics employed in support thereof, while having to apply a strong presumption that Attorney Wolf's conduct fell within the wide range of reasonable professional assistance. Strickland v. Washington, supra, 466 U.S. at 689; Baillargeon v. Commissioner of Correction, supra, 67 Conn.App. at 722. Even if this court were to presume that the petitioner has proven deficient performance, which he has not, the petitioner has in no way affirmatively proven the required prejudice.
The third and final basis for deficient performance by Attorney Westcott is that he failed to raise a claim in the first habeas that appellate counsel failed to raise issues related to the trial court's denial of trial counsel's motion for DNA testing and blood testing of the blood found in the third floor apartment of 32 Rowe Street. Of course, Attorney Westcott was appellate counsel on direct appeal and counsel in the first habeas. Without delving into the morass of a claim in which an attorney representing a habeas petitioner contemplates or asserts ineffective representation by the very same attorney on direct appeal, the court simply notes that the petitioner has failed to meet his evidentiary burden. The petitioner here has neither proven deficient performance nor any resultant prejudice. See, e.g., Small v. Commissioner of Correction, 286 Conn. 707, 721-24, 946 A.2d 1203, cert. denied sub nom, Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008) (petitioner must show deficient performance by appellate counsel for failure to raise a claim and a reasonable probability of prevailing on appeal).
Based upon all the foregoing, judgment shall enter denying the petition for a writ of habeas corpus. Counsel for petitioner is hereby ordered to prepare and file a judgment file with the clerk within thirty days of the date of this decision.