Opinion
No. CV02-0817531
July 26, 2004
MEMORANDUM OF DECISION
The petitioner, Andres R. Sosa, alleges in his petition for a Writ of Habeas Corpus initially filed on June 14, 2002 and amended for the final time on April 23, 2004, that: (a) he was denied the effective assistance of counsel at the trial level in violation of the Sixth and Fourteenth Amendments to the United States Constitution, (b) is actually innocent of the charges to which he pled guilty, (c) improvidently entered a guilty plea due to the effects of medication, and (d) due to mental disease or defect was unable to understand the meaning and effect of the plea of guilty. Consequently the petitioner asserts that he should be allowed to withdraw his plea of guilty. Trial in this matter, took place on July 15 and 16, 2004. For the reasons set forth more fully below, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The petitioner was represented by Attorney Charles Murray, an attorney admitted to practice before the courts of the state of Florida. He appeared in this case, pro hac vice with Connecticut Attorney John Andreini, Juris Number 422626, as supervisory counsel. Several delays in scheduling this case for trial were necessitated in order to accommodate Attorney Murray who had to travel from Naples, Florida to represent the petitioner.
The claim of ineffective assistance of counsel essentially complains that his trial defense counsel failed to properly conduct a pretrial investigation in regard to a potential alibi witness, and failed to properly advise the petitioner about the meaning and effect of his plea of guilty. The petitioner argues that as a result, the trial defense counsel did not perform his duties to his client in a professional manner such that this guilty plea was not knowing, intelligent and voluntary. In light of this, the petitioner asks that he be allowed to withdraw his guilty plea.
The Court notes that the petitioner initially alleged eight specific deficiencies in performance by the trial defense counsel. During trial of this case, it became clear that seven of the eight allegations were without merit, the petitioner, at the conclusion of the evidence, elected to withdraw sub paragraphs 7b-h of Count One of his petition.
Specifically, the petitioner alleges that he was misled by his lawyer into believing that he would receive a twenty-five year sentence rather than the forty-two years that was the agreed upon sentence.
This matter came on for trial before this Court on July 15, 2004 and again on July 16, 2004. The petitioner, both of his trial defense counsel, Attorneys Kenneth Simon and Barry Butler, Dr. Sergio Mejia, MD, Dr. Christina Ciocca, PsyD, and Dr. Bruce Fisher, MD all testified at the trial. In addition, the Court received a transcript of the petitioner's plea and sentencing, as well as portions of the petitioner's medical records into evidence. 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 criminal case in the Judicial District of New Britain, under Docket Numbers CR98-1734650 in which he was charged with two counts of murder in violation of CGS § 53a-54a(a) and one count of capital Murder in violation of CGS § 53a-54b(8). He was assigned Attorneys Kenneth Simon and Barry Butler to represent him.
The petitioner was found to be indigent and eligible for the services of the public defender. In Connecticut when there are capital charges, the defendant is represented by two attorneys, one is a regularly assigned public defender from the Judicial District in which the case is brought and the other is an attorney assigned to the special capital defense unit of the Public Defender's Office. Attorney Butler is and was a member of the Capital unit and was assigned to the petitioner due to the initial referral of the case as a capital matter.
2. The case was initially pursued as a capital case and eventually entered the jury selection phase. After eight weeks of jury selection, the state and the petitioner finally arrived at a plea agreement whereby the petitioner would plead guilty to a substitute information alleging two counts of murder in violation under CGS § 53a-54a in return for which he would receive a sentence of forty-two years. On April 6, 2001, pursuant to the plea agreement, the petitioner entered his pleas of guilty to two counts of Murder in Docket Number CR98-1734650. The Court, Wollenberg, J. thoroughly canvassed the petitioner and found his pleas to be knowingly and voluntarily made with the assistance of competent counsel. The Court thereafter accepted the pleas and entered findings of guilty as to two counts of murder.
Specifically as regards the claim that there was a misunderstanding insofar as the petitioner claiming that he believed he was to get a twenty-five year sentence, the Court notes the following portion of the plea canvass (Respondent Exhibit A, page 8):
The Court: In fact, you're pleading guilty in order to obtain the sentence that the State has agreed with you. That is 42 years to serve on each count to run concurrently, so that the total effective sentence will be 42 years to serve. That's what the agreement is and your pleading guilty in hopes of the State — that will be agreed — it is agreed upon, but that will be the sentence that's invoked. Is that right?
Mr. Sosa: Yes, Your Honor.
3. The Court, Wollenberg, J. then ordered the preparation of a Pre-Sentence Investigation and continued the matter until May 31, 2001 for the imposition of the agreed-upon sentence.
4. On May 31, 2001, the Court, Wollenberg, J. imposed the agreed-upon sentence. The petitioner was committed to the custody of the Commissioner of Corrections for a term of forty-two years on each count, both sentences to run concurrently for a total effective sentence of forty-two years to serve.
5. At no time during either the plea canvass or the sentencing proceeding did the petitioner ever express any disagreement with the agreed-upon sentence of forty-two years.
6. At no time during either the plea canvass or the sentencing was there ever any mention of the petitioner receiving anything less than a forty-two year sentence.
7. Neither Attorney Simon nor Attorney Butler ever told the petitioner that he would receive a sentence of twenty-five years, although they did advise him that twenty-five years was the minimum mandatory sentence.
8. At no time prior to the plea did the petitioner mention that Martin Molina could be an alibi witness. Moreover, the petitioner's counsel did interview Mr. Molina, albeit after the imposition of sentence, and discovered that Molina's testimony would place the petitioner at the scene of the murders. Additionally, the petitioner told his lawyers that he had been at the scene of the shootings but maintained that he was not the shooter. For all of these reasons, the Court finds that Mr. Molina could not have been an effective alibi witness.
9. The petitioner has been diagnosed with Attention Deficit Disorder, Borderline Intellectual Functioning, Depression, Post Traumatic Stress Disorder and a Generalized Anxiety Disorder. His full scale IQ has been measured at 75. At the time of his plea, the petitioner was being administered the psychotropic medication, Celexa.
10. The Court will discuss additional facts, as necessary.
Discussion
The petitioner now comes before this Court seeking to withdraw his voluntary pleas of guilty to the charge of murder in violation of CGS § 53a-54a. Moreover, he now asserts a claim of actual innocence to the charge.
This Court notes that the claim of actual innocence is frequently raised in a petition for a writ of habeas corpus. Nevertheless, in many cases such as in the case at bar, the petitioner and his counsel do not make anything other than a cursory attempt to prove the actual innocence claim. While petitioners may feel free to make such claims, even in the absence of some evidence to support the claim, it is incumbent upon an attorney-at-law to "not bring or defend a proceeding or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous." Rule 3.1, Rules of Professional Conduct. A claim of actual innocence, if raised, must be tried or withdrawn. If there is no evidence available to support such claim, counsel should utilize the procedures set fort in Anders v. California, 386 U.S. 738 (1967).
There is a critical difference between the legal status of a person who has been accused of a crime as opposed to 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 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." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994). Consequently, even though "a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial," Summerville v. Warden, 229 Conn. 397 at 422 (1994), the burden of proving this rests with the petitioner. "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, infra. at 422.
In this case, not only has the petitioner been convicted of the offense, he has been convicted pursuant to his pleas of guilty. "A valid guilty plea generally operates as a waiver of all defects in the prosecution `except those involving the canvass of the plea and the court's subject matter jurisdiction.' State v. Reddick, 224 Conn. 445, 451, 619 A.2d 453 (1993); see also State v. Niblack, 220 Conn. 270, 276-77, 596 A.2d 407 (1991); State v. Gilnite, 202 Conn. 369, 374 n. 4, 521 A.2d 547 (1987); State v. Satti, 2 Conn.App. 219, 221-22, 477 A.2d 144 (1984)." D'Onofrio v. Commissioner, 36 Conn.App. 691 at 693 (1995). Moreover, "the guilty plea is a waiver of constitutional rights — a waiver of non-jurisdictional defenses — and where . . . the record discloses that such an act was voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences, the plaintiff's plea of guilty was valid." Consiglio v. Warden, 160 Conn. 151. (1970). In the instant case, it is clear that the petitioner's plea of guilty is voluntary, knowing, intelligent and done with sufficient awareness of the relevant circumstances and likely consequences. The Court engaged in a full canvass of the petitioner to determine the providence of his guilty plea, the petitioner was represented by counsel and fully understood the import of what he was doing. Consequently his guilty plea is valid. A valid plea of guilty will operate to estop the petitioner from seeking to withdraw that plea at a subsequent habeas corpus proceeding.
Here, the petitioner entered his pleas under the Alford doctrine. "[G]uilt, or the degree of guilt, is at times uncertain and elusive, an accused, though believing in or entertaining doubts respecting his innocence, might reasonably conclude a jury would be convinced of his guilt and that he would fare better in the sentence by pleading guilty. McCoy v. United States, 124 U.S.App.D.C. 177, 179, 363 F.2d 306, 308 (1966)." See North Carolina v. Alford 400 U.S. 25 at 33 (1970). The petitioner was charged with several serious charges. Had he gone to trial on this matter and been convicted, he would have faced incarceration for one hundred twenty years. This would have been the remainder of his natural life. His total "exposure" was, therefore, high.
The Court notes that the case was originally a capital case. The petitioner was therefore facing the possibility of receiving a death penalty. However, even if the jury found a mitigating circumstance and thereby rendered the death penalty impossible, the mandatory sentence then would have been life without the possibility of parole. Under the original charges, a conviction would, at best, mean the petitioner would spend the remainder of his natural life in prison.
At the time he entered his guilty plea in April 2001, it was prudent for the petitioner to agree to the settlement and enter a plea of guilty. "Reasons other than the fact that he is guilty may induce a defendant to so plead . . . [and he] must be permitted to judge for himself in this respect. State v. Kaufman, 51 Iowa 578, 580, 2 N.W. 275, 276 (1879)." See North Carolina v. Alford, 400 U.S. 25 at 33 (1970). By making the pragmatic decision to plead guilty, even if he believed himself innocent, the petitioner voluntarily chose to forego his constitutional right to a trial in exchange for a limitation upon sentence that allowed him to receive a more favorable sentence. With the agreement, the petitioner will be released from prison no later than age 65, rather than facing a significantly likely possibility that he would die in prison.
The ultimate decision as to whether a criminal defendant pleads guilty or pleads not guilty rests with the individual charged with the crime. 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. It is not, and never has been, for the trial defense counsel to decide the plea that his client should enter. However, "[b]ecause a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the `right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.' Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1995)." See Baillargeon v. Commissioner of Correction, 67 Conn.App. 716 at 721 (2002). Consequently, an attorney who fails to conduct an adequate investigation such that he or she is prevented from offering his client proper counsel in connection with the decision to accept or reject a pretrial agreement may well be providing ineffective representation.
"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).
"The focus of a habeas inquiry where there has been a guilty plea is the nature of the advice of counsel and the voluntariness of the plea, not the existence of a purported antecedent constitutional infirmity. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). If a prisoner pleads guilty on advice of counsel, he must demonstrate that the advice was not within the range of competence demanded of attorneys in criminal cases. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Moreover, `a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.'" Buckley v. Warden, 177 Conn. 538 at 542-43 (1979).
Now, the petitioner comes to Court seeking to set aside his plea of guilty on the ground that his attorney did an inadequate job of pretrial preparation. The petitioner alleges that his counsel failed to investigate the existence of an alibi witness. However, the evidence presented to this court clearly shows that both of the trial defense counsel did do a more than adequate job of preparing for trial. The primary factor is the failure of the petitioner to identify Mr. Molina as a potential alibi witness until after the plea. Moreover, even after investigating that claim, the attorneys found that any evidence that Mr. Molina could offer would not have established an alibi. Finally, the fact that the petitioner himself admitted to being at the scene of the shooting absolutely negates the possibility of an alibi defense. There has been nothing presented to this court that would permit a finding that the plea of guilty was induced by the sub-standard performance of either trial defense counsel.
Any claim of ineffective assistance of counsel must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d (1984), before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that tenders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
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. A habeas court "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 attorneys 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).
"Although Strickland applies generally to the evaluation of whether ineffective assistance of counsel during criminal proceedings has infringed on a petitioner's constitutional rights, the United States Supreme Court has articulated a modified prejudice standard for cases in which the conviction has resulted from a guilty plea. See Hill v. Lockhart, 474 US. 52, 106 S.Ct 366, 88 L.Ed.2d 203 (1985). Hill requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial." Copas v. Commissioner, 234 Conn. 139, at 151 (1995). Given this, the petitioner must first prove that the performance by his trial defense counsel was deficient in the manner in which he conducted his pretrial activities and negotiated a plea agreement for the petitioner. Then, the petitioner must prove that, but for his attorneys inadequacies, he would have pled not guilty, gone to trial and been acquitted.
This Court cannot find any deficiencies in the performance of either Attorney Simon or Butler. They clearly conducted an adequate investigation, were fully aware of the facts of the case, and managed to negotiate a favorable pretrial settlement of the case.
It is not even necessary to consider whether a trial counsel's performance was deficient if the Habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) ('[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')." Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
It is clear that the petitioner did not suffer any prejudice as a result of any of the challenged actions or omissions of his trial defense counsel. When a defendant pleads guilty he or she relieves the state of an enormous burden in having to go forward with proof of guilt. A guilty plea is often thought of as the first step on the long road to rehabilitation and a beginning of a return of the offender to being a productive member of society. In return, the state will generally recommend that a penitent defendant receive a lower sentence. A plea bargain is in the nature of a contract, albeit one that deals with matters of the utmost importance. Consequently, even assuming deficient performance by his trial defense counsel, the petitioner must still show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." CT Page 11660 Strickland, infra at 694. Here, the petitioner voluntarily entered into this plea bargain; was ably represented by counsel who did conduct an adequate pretrial investigation; and, he freely made the choice to give up his constitutional right to a trial in order to obtain favorable consideration upon sentencing. "To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962); D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); see also Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert denied, 212 Conn. 817, 565 A.2d 534 (1989). In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." (Internal quotation marks omitted.) Buckley v. Commissioner of Correction, 222 Conn. 460-61." Summerville v. Warden, 229 Conn. 397 at 419 (1994). This, he cannot do.
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 a threshold question regarding the issue of whether the question 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 though the exercise of due diligence.' In Clarke v. Commissioner of Correction, 249 Conn. 350, 357-58 (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 Coat 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).
Indeed, it is not altogether clear whether one who has been convicted pursuant to a plea of guilty can even raise an actual innocence claim. It stands to reason that before any consideration of the actual innocence claim, a petitioner must first convince the habeas court that his or her guilty plea was defective and should be withdrawn. If successful, that then places the petitioner back in the position of being one who is accused of a crime as opposed to one who has been convicted. At the point, the petitioner would be innocent of the charge, consequently, it is illogical, if not illegal, to then require the petitioner to prove his innocence. If the guilty plea is vacated, then the state would then have the option of either releasing the petitioner and forgoing prosecution or seeking to try him for the crime charged. The petitioner's presumption of innocence would, therefore be revived and the burden of proving guilt would fall back on the state. This issue was not properly pled before the habeas court and would best be tested through the respondent's filing of a motion to dismiss a count alleging actual innocence where there is a guilty plea.
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 even 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 through his own plea. He enjoyed the representation of competent counsel and the Court has found that his plea of guilty is knowing, intelligent and voluntary. In a habeas claim involving the claim of actual innocence, the petitioner asks this Court to set aside that plea 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 plea, 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).
There was, of course, no trial in the first proceeding in which the evidence was tested before a jury. The court is left with the prosecutor's statement of facts at the guilty plea contained in Respondent's Exhibit A and will, therefore, assume its accuracy and credibility.
The petitioner's claims as to the deleterious effects of Celexa are likewise rejected. First the Court notes that the petition in Count Three does not even mention Celexa and instead lists three other medications, Prozac, Thorazine and Wellbutrin. It is clear that the Court heard no evidence to support a finding that the petitioner was using any of these medications at the time of his guilty plea, much less what side effects, if any, these medications might have had. Denial of Count three on this ground would be sufficient, however, the Court will decide the case as if the petition alleged that the petitioner was under the influence of Celexa. It is clear that while there may be some potential for Celexa to adversely affect the ability of a person to concentrate, it is an unusual and rarely encountered side effect. Moreover, from the testimony of the medical experts at the habeas trial, the clinical records of the petitioner, and the excerpt from the listing for Celexa, it is clear that this petitioner did not have any of these deleterious side effects. Consequently, it is clear that the use of Celexa in no way vitiates the knowing intelligent and voluntary nature of the petitioner's plea in this case.
Finally, as to the mental issues afflicting the petitioner, the Court finds that while these can be problematic in certain settings, these psychological issues did not operate to render the petitioner incapable of understanding the plea and sentencing proceedings. It is clear that the petitioner made appropriate responses to the judge and his counsel. He clearly understood that he was pleading guilty pursuant to a plea agreement that would mean he would be sentenced to forty-two years in prison. There simply is no merit to any of the petitioner's claims that have been presented to this habeas court.
The Petition for a Writ of Habeas Corpus is, therefore, denied.
S.T. Fuger, Jr., Judge