Opinion
CV164008132
06-19-2019
Luis SOTO #345939 v. WARDEN
UNPUBLISHED OPINION
Hon. John M. Newson, Judge
I. Procedural History
According to the allegations, the petitioner was the defendant in a matter pending in the Judicial District of Fairfield under docket F02B-CR14-0278796. The petitioner was represented by Attorney Thomas Paoletta of the Office of the Public Defender from his arraignment on June 12, 2014, but he was replaced when the petitioner hired Attorney Andre Cayo on or about November 14, 2014. The original charges were Criminal Possession of a Firearm, in violation of General Statutes § 53a-217, Risk of Injury to a Minor, in violation of General Statutes § 53-21(a)(1), Theft of a Firearm, in violation of General Statutes § 53a-212, Failure to Properly Store a Loaded Firearm, in violation of General Statutes § 29-371, Illegal Possession of an Assault Weapon, in violation of General Statutes § 53-202c, Possession of Narcotics, in violation of General Statutes § 21a-279(a), Possession of Narcotics within 1, 500 feet of a Housing Project or School, in violation of General Statutes § 21a-279(d), Possession of Narcotics with Intent to Sell within 1, 500 feet of a Housing Project or School, in violation of General Statutes § 21a-279a(b).
The charges stemmed from the service of a search and seizure warrant on June 11, 2014, which had been granted on the grounds that a "known, credible and reliable" confidential informant (hereinafter "CI") had indicated to police that he had physically observed a black pistol inside of the residence of 217 Hough Avenue, 2nd Floor, Bridgeport, Connecticut. The warrant further indicated that the person the informant had seen in possession of the firearm was Francisco Pineiro a.k.a. "Monkey," and that he lived in the residence with his wife and two children. Police were familiar with Pineiro and also discovered that he had a felony conviction, which prohibited him from possessing firearms. When police executed the search and seizure warrant on the residence, they found Pinero, Pinero’s wife, Christina Jimenez, the petitioner, who is also Pinero’s cousin, and Pinero’s two minor children. After waiving his rights, Francisco Pinero denied knowledge of any weapons in the residence. Police searching the residence testified to finding the petitioner’s identification, along with several other personal items, in a back bedroom. Inside the closet of that bedroom, police also testified to discovering a black book bag, and inside a .40 caliber Heckler & Koch semi-automatic pistol, loaded with a 12-round magazine, wrapped inside a white T-shirt. The handgun later turned out to be stolen. Also inside the book bag was one clear knotted sandwich bag containing a white powdery substance later determined to be cocaine. After hearing that police had recovered a firearm, an Officer Periera testified to hearing the petitioner say "Who is taking it?" to Francisco Pinero, and that Pinero immediately said, "Sorry" to his wife. When questioned directly by police, however, both denied any knowledge of the weapon.
The matter proceeded to trial, after which the jury convicted the petitioner of the crimes of the Risk of Injury to a Minor and Criminal Possession of Firearm charges. He was acquitted of all drug charges. On March 25, 2015, trial court imposed a sentence of ten years, two minimum mandatory, on the Criminal Possession charge and an additional two years consecutive on the Risk of Injury, for a total effective sentence of twelve years to serve. The petitioner’s convictions were affirmed on appeal, State v. Soto, 175 Conn.App. 739, 168 A.3d 605, cert. denied, 327 Conn. 970, 173 A.3d 953 (2017).
The petitioner commenced the present action on June 9, 2016. In the amended petition filed March 16, 2018, he makes a claim of ineffective assistance against Attorney Cayo for his representation throughout the trial, and also a claim of actual innocence. The respondent filed a Return generally denying the allegations in the petition on March 22, 2018, and the matter was tried before the Court on March 6 and March 11, 2019. Further procedural history and background will be provided as needed within this opinion.
II. Law and Discussion
The petitioner makes eleven separate claims of ineffectiveness against Attorney Cayo. "The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must 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. Second, the defendant must show 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. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. 688. "[T]he performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances." Id. "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." Id., 689. "Thus, a court ... must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. [The petitioner] must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance ... [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id., 690.
The petition originally alleged nineteen grounds for ineffectiveness, however, grounds in paragraphs 25a, b, c, d, h, l, n and o were all withdrawn prior to the start of evidence.
Under the second prong of the test, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id., 691. "[A]ctual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." Id., 693. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. "The defendant must 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." Id., 694. "An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification, ’ and the like." Id., 695. The court "must consider the totality of the evidence before the judge or jury." Id. "In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner’s failure to prove either is fatal to a habeas petition." (Internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).
The petitioner’s first claim is that Attorney Cayo failed to adequately investigate and compel the attendance of the state’s confidential informant. More specifically, the petitioner claims that Attorney Cayo should have called the confidential informant as a witness at the petitioner’s trial. This claim is not successful, because the petitioner has failed to establish that the absence of the confidential informant’s testimony prejudiced him in any way, or, said another way, he has failed to establish with any real probability that including it would have resulted in a different outcome. Hall v. Commissioner of Correction, supra, 124 Conn.App. at 783.
The confidential informant, Javier Figueroa, could only testify that Mr. Pineiro was the only person he had ever seen in possession of a black handgun, and that he had also previously seen Mr. Pinero possession of a black book bag with a black handgun inside of it on two occasions on the porch outside of the apartment. However, this evidence was only cumulative to the evidence elicited at trial, because it was uncontroverted at trial that the warrant was based on a claim that Pineiro had been seen in possession of a weapon. It was also uncontroverted in the evidence elicited at trial that the petitioner had never been seen in physical possession of the weapon or book bag in question. Additionally, and more importantly to this case, what the CI could not do was exclude the petitioner from knowledge and actual or constructive possession of the weapon inside of the apartment, which was allegedly wrapped in a T-shirt belonging to him, inside the black book bag, within a closet in the bedroom he slept in at Pineiro’s residence. Therefore, the petitioner has failed to establish he was prejudiced at all by the absence of the CI testimony at trial, and claim 25e fails. Id.
The Information filed at trial specifically charged the petitioner with "a loaded Heckler and Koch, model P30L .40 caliber pistol ... wrapped up in a white Tee shirt in a black book bag in a rear bedroom closet in the 2nd floor apartment at 217 Hough Avenue ..." (Exhibit 17, 20th page, Information dated January 30, 2015, Docket CR14-0278796).
In claim 25f, the petitioner claims that counsel generally failed to meaningfully convey one or more plea offers to the petitioner, failed to adequately explain the relative strengths and weaknesses of the State’s case and possible defenses, failed to explain the possible maximum and minimum exposure, the probability of success at trial, who the likely witnesses would be, and the significant potential for a greater sentence than the plea offers if convicted after trial. These claims will be addressed individually.
As to counsel’s alleged failure to meaningfully convey plea offers to the petitioner, a petitioner must show both deficient performance, as defined under Strickland, as well as prejudice. The prejudice prong, when considering plea offers, is as follows: "[t]o satisfy the prejudice prong of the Strickland test when the ineffective advice of counsel has led a defendant to reject a plea offer, the habeas petitioner must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed ... [I]t can be assumed that in most jurisdictions prosecutors and judges are familiar with the boundaries of acceptable plea bargains and sentences. So in most instances it should not be difficult to make an objective assessment as to whether or not a particular fact or intervening circumstance would suffice, in the normal course, to cause prosecutorial withdrawal or judicial nonapproval of a plea bargain. The determination that there is or is not a reasonable probability that the outcome of the proceeding would have been different absent counsel’s errors can be conducted within that framework." Ebron v. Commissioner of Correction, 307 Conn. 342, 352, 53 A.3d 983, 989-93 (2012) cert. denied, 569 U.S. 913, 133 S.Ct. 1726, 185 L.Ed.2d 802 (2013).
This claim fails for a couple of reasons. First, the evidence presented does not establish conclusively that Attorney Cayo was actually representing the petitioner when he rejected the plea offers in question. State’s Attorney Nicholas Bove testified that his file showed that a "last best" offer by the pretrial judge for a total effective sentence of 10 years, suspended after 2 years, with 5 years of probation, and a $5,000 fine was withdrawn on November 19, 2014, however, there also is a reference in the transcript from December 9, 2014, that the offer had actually be extended on November 19th. Also, although Attorney Cayo’s appearance is dated November 13, 2014, and the time-stamp indicates it was received by the clerk’s office the following day, the transcript in evidence for November 19, 2014, indicates that an Attorney Joanna Carloni of the Office of the Public Defender represented the petitioner on that appearance, and the only thing addressed was his eligibility for their services. To add to the confusion, and despite the fact that he considered that the last pretrial offer extended may have technically still existed, Attorney Cayo testified that he believed that all plea offers had been formally extended and rejected before he became officially involved in the file. In further support of a finding that plea offers had already been extended and rejected before Attorney Cayo became formally involved was his own testimony that he did not approach the State’s Attorney to discuss a possible plea offer, because he knew they would not offer anything less than the two years that had already been extended, and the petitioner was not willing to take two years, because he felt that he should not have to take two years while, according to his information, Pineiro was only getting three months. So, this claim fails in the first place because the evidence fails to establish that Attorney Cayo was actually the attorney who represented and advised the petitioner at the time he formally rejected the offers. Id.
Exhibit 21, Transcript of November 19, 2014, p. 1, ln. 9-13.
Exhibit 20, Transcript of November 19, 2014.
Assuming for purposes of argument, however, that the evidence sufficiently establishes that Attorney Cayo was representing the petitioner when the offer was formally extended, or that offer of 10/2/5 with a $5,000 fine was re-communicated to Attorney Cayo in a way that obligated him to discuss the matter with the petitioner, the claim still fails, this time because the petitioner has failed to establish prejudice. Id. Attorney Cayo was clear and unequivocal that the petitioner, despite his claims now, insisted he had no knowledge of the drugs or guns with which he was charged, that he firmly protested his innocence, and that he was wholly unwilling to accept a resolution that required him to serve two years in prison. The petitioner also admitted that he always denied knowledge of the gun or the book bag when speaking to counsel. As discussed above, the petitioner protested the unfairness of an offer that would require him to serve two years while his co-defendant was supposedly only being offered three months. Given all of the above, and despite the petitioner’s testimony now, the Court does not find any credible evidence that he was ever willing to accept the 10/2/5 pretrial offer, regardless of counsel’s advice. Therefore, even if Attorney Cayo did represent him at the time of the plea offer, there was no prejudice. Id. [5]
The petitioner next claims in paragraph 25i that trial counsel failed to properly investigate witnesses, specifically, co-defendant Francisco Pineiro and his wife, Christina Jimenez, and in 25j, that he failed to present their testimony at trial. These claims also fail for multiple reasons. First, Attorney Cayo did attempt to present the testimony of both Pineiro and Jimenez at the criminal trial in order to elicit exculpatory information from them, however, both invoked their privilege against self-incrimination. This Court knows of no theory by which defense counsel could be found to have performed unreasonably where a witness has invoked protections guaranteed by our Constitution, and the petitioner has presented no alternative theories by which either witnesses’ testimony could have been presented at the time of trial. E.g., Martin v. Flanagan, 259 Conn. 487, 495, 789 A.2d 979, 984 (2002) ("A court may not deny a witness’ invocation of the fifth amendment privilege against compelled self-incrimination unless it is "perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have [a] tendency to incriminate"). Another basis for denying this claim is that the petitioner failed to produce either Pineiro or Jimenez at the habeas trial to offer the testimony they could have offered if they had testified at the criminal trial. It is the petitioner’s burden to present those witnesses at a habeas trial he claims counsel failed to produce at an underlying trial, and to show that the offered testimony would have been material, relevant and admissible. Nieves v. Commissioner of Correction, 51 Conn.App. 615, 622-24, 724 A.2d 508, cert. denied, 248 Conn. 905, 731 A.2d 309 (1999). The petitioner’s failure to do so is fatal to these claims. Id.
The Court believes this discussion regarding whether Attorney Cayo actually represented the petitioner at the time when the plea offer was made, and its finding that the petitioner was never willing to consider a plea offer requiring him to serve two years incarceration also resolves claim, 25g, that counsel failed to provide the petitioner with affirmative advice of whether to accept the plea, that claim will not be addressed individually.
Exhibit 4, Transcript of February 9, 2015, p. 2-12; Exhibit 5, Transcript of February 10, 2015, p. 49-57.
The petitioner next claims in paragraph 25k that counsel failed to present witnesses to identify the gun in question as belonging to Pineiro, his co-defendant. This claim also fails. First, the petitioner failed to present any evidence, other than his own, from which any conclusion could be made that Pineiro was the "owner" of the gun. The only other witness who testified on this subject, Javier Figueroa, the confidential informant who provided the information supporting the search warrant, could not offer any information about possession or ownership of the weapon that was not already known, and actually uncontested by the State- that the only person he had ever seen in possession of the weapon and book bag was Francisco Pineiro. He did not, and could not, however, offer any testimony regarding the petitioner’s knowledge, dominion or control of the book bag and gun, or lack thereof, sufficient to undermine confidence in the verdict. Therefore, because the petitioner has failed to show any probability of a more favorable outcome, this claim fails. Hall v. Commissioner of Correction, supra, 124 Conn.App. at 783.
The petitioners next claims in paragraph 25m that trial counsel "failed to seek correction of the court’s statement that the petitioner had a room in the home" of the co-defendant. No specific evidence was presented on this issue from the petitioner, nor did he offer any argument about where the court’s comment supposedly fell, or how it is alleged to have impacted the outcome of the case. As such, this issue is considered to have been abandoned and is dismissed. See, Walker v. Commissioner of Correction, 176 Conn.App. 843, 856, 171 A.3d 525 (2017) ("Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims raised in the trial court").
The petitioner next alleges that Attorney Cayo was ineffective for failing to exclude evidence of the petitioner’s prior conviction for possession of narcotics. Some further background is necessary for resolution of this issue. The information filed against the petitioner for trial specifically charged him with Criminal Possession of a Weapon, in violation of General Statutes § 53a-217c(a)(1), which provided, in pertinent part:
A person is guilty of criminal possession of a firearm, ammunition or an electronic defense weapon when such person possesses a firearm, ammunition or an electronic defense weapon and (1) has been convicted of a felony committed prior to, on or after October 1, 2013, or of a violation of section 21a-279, 53a-58, 53a-61, 53a-61a, 53a-62, 53a-63, 53a-96, 53a-175, 53a-176, 53a-178 or 53a-181d committed on or after October 1, 2013.(Emphasis added.) At trial, the State entered a certified copy of the court record from FBT-CR09-0241256-T, through a court clerk, to establish the petitioner’s prior felony conviction.
Again, it is not exactly clear what the petitioner’s claim is as to this evidence. The State was required to prove that he had a prior qualifying felony conviction as an essential element of Criminal Possession of a Firearm. See, Connecticut Criminal Jury Instructions § 8.2-8. The common practice for proving such matters is by admitting a certified copy of the qualifying conviction into evidence through the testimony of a court clerk, which is what occurred in this case. "All relevant evidence is admissible, except as otherwise provided by the constitution ... the General Statutes or the common law." Connecticut Code of Evidence sec. 4-2. "Relevant evidence means evidence having any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence." (Emphasis added.) Connecticut Code of Evidence sec. 4-1. Evidence of the petitioner’s prior felony conviction was clearly relevant to proving an element of an offense charged, and the petitioner has presented no reasonable legal theory by which Attorney Cayo could have prohibited the State from entering this information into evidence. As such, the petitioner has failed to prove that trial counsel performed deficiently or that he was prejudiced in any way. Hall v. Commissioner of Correction, supra, 124 Conn.App. at 783.
For the same reasons, the failure to produce Christina Jimenez as a witness in the habeas trial is also fatal to the petitioner’s claim in paragraph 25p, that counsel "failed to adequately seek to compel the testimony of Christina Jimenez," so that claim will not be separately addressed.
The petitioner claims in paragraph 25r that Attorney Cayo was ineffective for failing to adequately advise him of the "undesirability of exercising his right to testify." Again, however, it is not exactly clear what the gravamen of this complaint is. That is, the petition has failed to specify what about the fact that exercised his right to testify was "undesirable." On direct examination at trial, he denied living at the residence in question, denied that personal items found in the bedroom in question belonged to him, and denied knowledge of the book bag, gun, and drugs. The State cross examined him on these issues, but he maintained his denials. Finally, although the State asked the petitioner questions about his prior felony conviction, this was information that had already been presented to the jury through another witnesses, so no additional harm was done there. There was nothing about the petitioner’s trial testimony that could reasonably be said to have had any material impact on the outcome of the trial, since all of the information elicited would have, if accepted by the jury, tended to assist his defense. In short, nothing elicited from the petitioner on direct or cross examination could be reasonably be said to have independently aided the State in securing a conviction, such that removing his testimony could reasonably be expected to result in a more favorable outcome. Therefore, the petitioner has failed to establish that he suffered any prejudice, so his claim fails. Hall v. Commissioner of Correction, supra, 124 Conn.App. at 783.
The petitioner’s final claim, Count 2, is that he is actually innocent of the charges. The standard for a claim for habeas relief based on actual innocence is as follows: "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, as that standard is properly understood and applied in the context of such a claim, 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." Westberry v. Commissioner of Correction, 169 Conn.App. 721, 738, 152 A.3d 87, 96 (2016), cert. denied, 324 Conn. 914, 153 A.3d 1289 (2017) (quoting, Miller v. Commissioner of Correction, 242 Conn. 745, 791-92, 700 A.2d 1108 (1997)). Significant analysis is not necessary to resolve this claim. The only new evidence, to the extent it could truly be characterized as "new" within the meaning of actual innocence juris prudence, was from Javier Figueroa, which is briefly discussed above, which wholly fails to establish "by affirmative proof that the petitioner did not commit the crime." Gould v. Commissioner of Correction, 301 Conn. 544, 561, 22 A.3d 1196 (2011) (describing the proof necessary to meet the "clear and convincing" evidence standard required to establish a claim of actual innocence). Therefore, this claim also fails. Id.
III. Conclusion
Based on the foregoing, the petition for writ of habeas corpus is DENIED.