Opinion
CV134005274S
01-10-2018
Eric STIGGLE #170767 v. WARDEN
UNPUBLISHED OPINION
OPINION
Kwak, J., Superior Court Judge
The petitioner initiated the present matter by way of a pro se petition filed on March 6, 2013, and amended for the second and final time on April 12, 2017. The amended petition raises claims in four counts and challenges the petitioner’s convictions, following his guilty pleas, in docket number CR-10-0252066, in the judicial district of Fairfield. On August 24, 2012, the petitioner was sentenced in accordance with the plea agreement to a total effective sentence of twenty-three years to serve, execution suspended after seventeen years, followed by five years of probation. The respondent’s return denies the petitioner’s claims and that he is entitled to habeas corpus relief. The return also raises the affirmative defenses of res judicata, collateral estoppel and procedural default as to the claims in counts one and two, and procedural default as to the claim in count four. The petitioner’s reply to the return denies the affirmative defenses and alleges cause and prejudice.
The respondent also filed a motion for summary judgment, which requested summary judgment on counts one, two and four. The petitioner objected to the motion for summary judgment.
The parties appeared before this court on September 13, 2017, for a trial on the merits. The court heard arguments on the motion for summary judgment and the objection thereto prior to the evidentiary portion of the trial. The respondent withdrew the motion for summary judgment as to the claim in count four. The motion for summary judgment as to the claims in counts one and two was denied for the reasons articulated by the court on the record.
Both parties entered exhibits into evidence, consisting of transcripts, copies of statements to the police and police reports, copies of appellate decisions, and copies of court record and pleadings filed by the petitioner in his criminal case. Additionally, the petitioner presented the testimony of attorneys William Schipul and Paul Carty, both of whom were defense counsel at different times, as well as his own testimony in support of the claims he has raised.
For the reasons articulated more fully below, the petitioner’s claims are either dismissed or denied.
DISCUSSION
I. Ineffective Assistance of Counsel Standard Re Guilty Pleas
" In Strickland [v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ], the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel’s performance was deficient ... Second, the [petitioner] must show that the deficient performance prejudiced the defense ... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversarial process that renders the result unreliable ...
" To satisfy the performance prong ... the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law." Taylor v. Commissioner of Correction, 324 Conn. 631, 637-38, 153 A.3d 1264 (2017). " It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel’s acts or omissions were so serious that counsel was not functioning as the ‘counsel’ guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial." Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008). When assessing trial counsel’s performance, the habeas court is required to " indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance ..." Strickland v. Washington, supra, 466 U.S. 689.
" ‘Moreover, [i]n Hill v. Lockhart, [474 U.S. 52, 57-58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ], the court determined that the same two-part standard applies to claims arising from the plea negotiation process and that the same justifications for imposing the prejudice requirement in Strickland were relevant in the context of guilty pleas. Although the first half of the Strickland test remains the same for determining ineffective assistance of counsel at the plea negotiation stage, the court modified the prejudice standard ... [I]n order to satisfy the prejudice requirement, the defendant must show that there is 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.) Niver v. Commissioner of Correction, 101 Conn.App. 1, 3-4, 919 A.2d 1073 (2007)." Alcena v. Commissioner of Correction, 146 Conn.App. 370, 372-73, 76 A.3d 742 (per curiam), cert. denied, 310 Conn. 94, 880 A.3d 905 (2013).
" Although a petitioner can succeed only if he satisfies both prongs, a reviewing court can find against a petitioner on either ground." (Citations omitted.) Breton v. Commissioner of Correction, See Strickland v. Washington, supra, at 697, 104 S.Ct. 2052 (court need not determine whether counsel’s performance was deficient before examining prejudice suffered by defendant). Ultimately, " [t]he 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, supra, 466 U.S. 686.
II. Count One- Due Process Violation
The petitioner alleges in count one, paragraphs (31) through (35), that his right to due process was violated because his guilty pleas were not knowing, intelligent and voluntary. The petitioner acknowledges that he previously raised this claim in a motion to vacate his guilty pleas, but then asserts that he did not have a full and fair opportunity to litigate the claim due to ineffective assistance of counsel. The respondent’s return denies the claims in count one and alleges that the petitioner is barred from raising them on the grounds of res judicata and collateral estoppel. The return also raises procedural default as an affirmative defense and asserts that the petitioner " neither moved for withdrawal of his pleas prior to sentencing nor appealed from the denial of same" and cannot establish the required cause and prejudice for the procedural default. The petitioner’s reply to the return rebuts the procedural default by alleging as cause and prejudice the ineffective assistance of counsel alleged in count three.
The amended petition in paragraph (33) references " paragraph three of this amended petition for a writ of habeas corpus" as to where the ineffective assistance is alleged. Paragraph three of the amended petition, however, does not articulate any grounds for ineffective assistance by any attorney. Apparently, a scrivener’s error occurred and the reference should be to count three, which alleges ineffective assistance by attorney Carty at the time of the motion to vacate the petitioner’s guilty plea. The petitioner’s reply to the return references count three. Nevertheless, in paragraph (35)(C) of count one, the amended petition also references count two as where the grounds for ineffective assistance are asserted. Count two, contrary to count three, alleges ineffective assistance by attorney Schipul at the time of the guilty plea.
The parties argued the motion for summary judgment and the objection thereto prior to the evidentiary portion of the habeas trial. The court denied the motion for summary judgment because the petitioner’s allegations put facts in dispute (e.g., lack of a full and fair opportunity to litigate the claims and deficient performance by counsel).
First, the court notes that the respondent’s defense of procedural default incorrectly asserts that the petitioner " neither moved for withdrawal of his pleas prior to sentencing nor appealed from the denial of same." The petitioner did file and litigate a motion to withdraw his guilty pleas and did appeal from the denial of that motion. See State v. Stiggle, 155 Conn.App. 117, 106 A.3d 972, cert. denied, 316 Conn. 904, 111 A.3d 472 (2015). The petitioner on direct appeal " claim[ed] that (1) the trial court abused its discretion by denying his motion [to vacate his guilty pleas] because he was not competent when he pleaded guilty, (2) the court conducted an inadequate canvass, and (3) his trial counsel rendered ineffective assistance ..." (Footnote omitted.) Id., 118. The court concludes, therefore, that procedural default is inapplicable to the due process claim in count one.
The fact that the petitioner previously directly challenged the validity of his guilty pleas in the criminal court and on direct appeal does, however, preclude him from again litigating the same claim in the present matter. See, e.g., Faraday v. Commissioner of Correction, 107 Conn.App. 769, 776-77, 946 A.2d 891 (2008) (res judicata bars habeas court from considering an issue raised and decided on direct appeal); Fernandez v. Commissioner of Correction, 86 Conn.App. 42, 43, 859 A.2d 948 (2004) (res judicata bars habeas court from again deciding a claim previously decided on direct appeal). However, as noted by the Appellate Court in Diaz v. Commissioner of Correction, 125 Conn.App. 57, 66, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011), a claim of ineffective assistance may be distinguishable from the barred or precluded claim, even though they are " strikingly similar."
The petitioner has alleged ineffective assistance of counsel, as outlined in count three, as cause and prejudice if he has procedurally defaulted, which he has not. Because the petitioner in count one essentially is making the same allegation as in count three (i.e., ineffective assistance of counsel by attorney Carty during the hearing on the motion to vacate the guilty plea), and because he is barred by res judicata from again directly litigating the due process claim in count one, the court dismisses count one pursuant to Practice Book § 23-29(5). The claims of ineffective assistance are addressed below in the discussion of count three.
III. Count Two- Ineffective Assistance of Counsel During the Guilty Plea
The second count of the amended petition alleges in paragraphs (39) through (42) that attorney Schipul rendered ineffective assistance of counsel when the petitioner pleaded guilty. As with the claim in count one, the petitioner concedes that he has previously raised this claim in the underlying criminal case, but that he did not have a full and fair opportunity to litigate the claim because of ineffective assistance of counsel. The amended petition in paragraph (39) avers that the ineffectiveness alleged in count two is why the petitioner did not have a full and fair opportunity to litigate the claim made in count two.
The respondent’s return asserts several defenses to count two, namely that: it fails to state a claim upon which habeas corpus relief can be granted; the claim therein is moot; and the claim is barred by the doctrines of res judicata and collateral estoppel. The return further asserts that the petitioner has procedurally defaulted as to the claim in count two. The petitioner’s reply to the return denies these defenses and alleges as cause and prejudice the ineffective assistance of counsel as alleged in count three of the amended petition (i.e., by attorney Carty). The petitioner also denies that he has procedurally defaulted because he sought to withdraw his guilty plea and appealed from the trial court’s denial thereof.
As with count one, the court concludes that count two must be dismissed based on res judicata and collateral estoppel. The petitioner has previously alleged and litigated a claim that attorney Schipul was ineffective at the time he entered his guilty plea. That claim was adjudicated, appealed and ultimately affirmed by the Appellate Court. The petitioner may not again litigate this claim directly as alleged in count two. Faraday v. Commissioner of Correction, supra, 107 Conn.App. 776-77; Fernandez v. Commissioner of Correction, supra, 86 Conn.App. 43. Count two, therefore, is dismissed pursuant to Practice Book § 23-29(5) and any claims of ineffective assistance by counsel are addressed in the court’s discussion of count three.
IV Count Three- Ineffective Assistance of Counsel During the Hearing to Vacate Guilty Plea
The petitioner in count three of the amended petition, paragraph (49), alleges that attorney Carty was ineffective during the hearing to vacate the guilty pleas. More specifically, the petitioner alleges that attorney Carty failed to adequately prove and argue the claims alleged in counts one and two of the amended petition. Thus, count three alleges that attorney Carty was ineffective because he failed to adequately prove and argue that the petitioner entered his pleas without a proper understanding of the consequences of the guilty pleas, and because the petitioner did not understand the nature and elements of the charges to which he pleaded. Attorney Carty also allegedly was ineffective because he failed to: claim that attorney Schipul failed to conduct an adequate investigation into the petitioner’s mental health history; negotiate an adequate plea offer in light of the mitigating information contained in the petitioner’s mental health history; conduct an adequate investigation into the facts and circumstances of the case (i.e., interview, or have an investigator interview, the complainant or any other witnesses to the alleged incident; investigate or obtain records of other legal proceedings involving the petitioner and the victim); and adequately advise the petitioner about the nature and elements of the charges against him. Count three also claims that attorney Carty was ineffective because he did not raise a claim that the petitioner’s plea was subject to being vacated because the court’s plea canvass did not substantially comply with Practice Book § § 39-19 and 39-20.
The Appellate Court’s decision summarized the underlying facts. " The [petitioner] was charged with numerous crimes related to the kidnapping of the victim, his then wife. On August 23, 2010, the court, Emons, J., set bond in the amount of $1,000,000. During the hearing, the [petitioner] made many threatening comments regarding the victim and was held in contempt of court. At this time, the [petitioner’s] counsel informed the court that the [petitioner] had a competency evaluation pending in another case and that his behavior in the court was due to some mental disabilities. Accordingly, the contempt finding was vacated, and the court continued the matter until the competency evaluation was completed.
" On September 21, 2010, after learning that the [petitioner] posted his bond by fraud, ... and before the completion of the competency evaluation, the court, Thim, J., modified the [petitioner’s] bond to $1,000,000 cash. The [petitioner] did not petition for a review of this modification pursuant to General Statutes § 54-63g ... Later, at the [petitioner’s] competency hearing on October 26, 2010, the court found that he understood the proceedings against him and was able to assist in his defense, and therefore was competent to stand trial.
" On December 22, 2011, the [petitioner] pleaded guilty to assault in the second degree in violation of General Statutes § 53a-60(a)(2), kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A), unlawful restraint in the first degree in violation of General Statutes § 53a-95, and larceny in the second degree in violation of General Statutes § § 53a-119 and 53a-123(a)(1). The [petitioner] was canvassed in open court in accordance with Practice Book § § 39-19, 39-20, and 39-21, ... following which his guilty pleas were accepted.
" On January 9, 2012, before the [petitioner] was sentenced, he filed a pro se motion to vacate his guilty pleas. In that motion, the [petitioner] argued that he is mentally ill, and that at the time of his guilty pleas, his medication was low and his trial counsel failed to inform him of how the state would use facts related to his charges. The motion also contained an additional separate claim that his trial counsel was ineffective.
" Prior to the court’s hearing evidence on this motion, the [petitioner’s] appointed counsel requested another competency hearing, which took place on April 23, 2012. The court again found the [petitioner] competent. After the second competency hearing, the court conducted an evidentiary hearing on a motion filed by the [petitioner] seeking to vacate his guilty pleas. At the evidentiary hearing, the defense called Rena Kapoor, a psychiatrist. Kapoor evaluated the [petitioner] on three occasions and gave three diagnoses of the [petitioner’s] condition: personality disorder with antisocial and narcissistic traits, bipolar disorder, and alcohol dependence. Kapoor did not opine as to the [petitioner’s] mental state at the time of his plea. The state called Sally Kostant, a nurse clinician who treated the [petitioner]. Kostant testified that she was familiar with his medications, and that his medical records reflected compliance with his medications during December 2011, the time period surrounding the [petitioner’s] guilty pleas. Kostant saw the [petitioner] twice during December 2011, and noted that when she saw the [petitioner] after his guilty pleas, he had stable presentation and appeared angry but rational.
" In a December 26, 2012 memorandum of decision, the court, Devlin, J., denied the [petitioner’s] motion to vacate his guilty pleas. The court sentenced the [petitioner] to a total effective term of twenty-three years of incarceration, execution suspended after seventeen years, followed by five years of probation." (Footnotes omitted.) State v. Stiggle, supra, 155 Conn.App. 119-21.
" On appeal, the [petitioner] claim[ed] that the court abused its discretion when it denied his motion to vacate his guilty pleas. Specifically, the [petitioner] contend[ed] that his guilty pleas should be vacated because (1) at the time of guilty pleas he was not mentally competent and his medication was low, (2) the court conducted an improper canvass, and (3) his trial counsel was ineffective." Id., 121-22. The Appellate Court concluded that " the [petitioner] was able to consult his lawyer with a reasonable degree of rational understanding, and answered affirmatively as to whether he had a factual understanding of the proceedings against him." Id., 124. Thus, the claim based on incompetency was denied. The Appellate Court reviewed and analyzed the plea canvass and concluded that " ... there was no procedural error, and no constitutional violation ... that deprived the [petitioner] of a fair trial." Id., 128.
As to the third and last claim on appeal, namely that attorney Schipul was ineffective during the plea, the petitioner first " ... argue[d] that he never had adequate discussions with his attorney about the nature of the charges, which rendered the [petitioner’s] appointed counsel ineffective. Contrary to this proposition, however, the [petitioner] stated on the record that he was satisfied with the legal advice he received from his attorney." Id., 130. The trial court did not abuse its discretion by relying on the petitioner’s self-proclaimed satisfaction with counsel’s advice. Id. The Appellate Court was also not persuaded by the petitioner’s claim that attorney Schipul " ... failed to advise the court of [the petitioner’s] highly aggressive and agitated state ..." because " [t]he court already was aware of the [petitioner’s] mental health issues because the court had conducted a competency hearing prior to the plea canvass. Moreover, the hearing on December 22, 2011, was not the first time the [petitioner] was before Judge Devlin." Id.
" The [petitioner] stated during the plea canvass that ‘[a]ll I got to say, Your Honor, is, I know, and I got to accept responsibility for my actions and I- I said on the record that I’m guilty, but I don’t feel that the punishment that the court’s about to impose on me warrants that. I don’t think the court took in consideration my mental health issues. But that’s neither here or there. I mean, I still love my ex-wife, I still care about her. And I’m wrong and I should be punished. I just want to go on with my life.’ This contention, that he knew he pleaded guilty and thought that his punishment did not fit the crime, does not amount to proof that he would have pleaded not guilty and insisted on going to trial but for his appointed counsel’s alleged ineffectiveness.
" The [petitioner’s] argument [on appeal was] further weakened by his affirmative answer during the canvass to the trial court’s question as to whether he understood that he could continue with a not guilty plea and elect a trial in front of either a judge or a jury, and that if he elected to go to trial, that state would need to prove its case beyond a reasonable doubt. This [was] further proof that the [petitioner had] not shown that there was a reasonable probability that, but for counsel’s alleged errors, he would have pleaded not guilty and insisted on going to trial. Although Practice Book § 39-27(4) provides grounds for allowing a defendant to withdraw his guilty plea after its acceptance, in this case, trial counsel was effective and, therefore, there was no abuse of discretion in denying the [petitioner’s] motion to vacate his guilty pleas." Id., 130-31.
According to attorney Schipul, he represented the petitioner up to the time of the guilty pleas. The petitioner thereafter wanted counsel to file a motion to withdraw the guilty pleas premised on the petitioner’s mental problems. Attorney Schipul saw no factual and legal bases for a motion to withdraw the guilty pleas on such grounds, in particular, in light of several competency evaluations that all concluded the petitioner was competent, as well as attorney Schipul’s own assessment of the petitioner. Furthermore, the petitioner had indicated to attorney Schipul that he would pursue legal action against him similar to the petitioner’s legal proceedings against various judges and prosecutors. Attorney Schipul concluded that he needed to withdraw from representation.
Attorney Schipul, with the assistance of an investigator, had investigated the charges and any potential, viable defenses such as a mental disease defense. The petitioner was evaluated but the evaluation did not support a mental disease defense. Attorney Schipul also spoke with the petitioner’s mother about the petitioner. With the petitioner’s permission, attorney Schipul spoke with the petitioner’s counsel for the separately pending criminal charges in the judicial district of New London to see if all pending charges could be resolved globally. Attorney Schipul did not consider any of the materials pertaining to the New London case as being helpful in defending against the Bridgeport charges. To the contrary: attorney Schipul was concerned that the New London matter, which was relatively minor compared to the Bridgeport charges, potentially could be harmful instead of helpful. As a result of all of his investigative efforts, attorney Schipul felt he had plenty of background information regarding the petitioner and the incidents he was charged with in Bridgeport.
Attorney Schipul discussed with the petitioner the facts of case, which the petitioner essentially did not contest, as well as what experts could provide to the defense case. Attorney Schipul explained to the petitioner the elements of the offenses and discussed with him the factual bases for the specific charges. The state’s case, in attorney Schipul’s assessment, was relatively strong and likely to prevail at trial. Accepting a plea agreement, according to attorney Schipul, was the petitioner’s best opportunity to resolve the pending charges. Notwithstanding counsel’s assessments of the case, the petitioner wanted to get the matter over with and attorney Schipul engaged in plea negotiations to resolve the matter short of trial. Attorney Schipul and his investigator met one final time with the petitioner the morning of the guilty pleas. Attorney Schipul’s pre-plea efforts resulted in the state reducing the to-serve portion by one additional year on the date of the guilty pleas.
Attorney Carty replaced attorney Schipul because the petitioner wanted to withdraw his guilty pleas, potentially premised on ineffective assistance of counsel. The other potential ground was that the petitioner was not mentally competent at the time he pleaded guilty. Attorney Carty obtained releases and authorizations from the petitioner to get his mental health records. After reviewing the prior proceedings and the petitioner’s mental health records, attorney Carty concluded that the claim of ineffective assistance of plea counsel was not viable and, therefore, focused on the petitioner’s mental health claims. Attorney Carty met numerous times with the petitioner, who emphasized to counsel the mental health aspect of the motion to withdraw the guilty pleas. Ultimately, the petitioner did not prevail on that motion.
The petitioner also testified at the habeas trial. According to the petitioner, attorney Schipul did not explain the guilty pleas to him. Furthermore, attorney Schipul did not give him advice regarding the guilty pleas, did not give him a recommendation, and did not explain the elements of the offenses to him. The petitioner never saw and had no idea what evidence the state had against him. Attorney Carty, according to the petitioner, never discussed with him the ineffective assistance of counsel basis for the motion to withdraw the guilty pleas.
First, the court finds that the petitioner’s testimony, contrary to both of his former attorneys’ testimonies, to be not credible. The petitioner contradicted himself numerous times from statements he made during the pretrial, plea and sentencing proceedings. For example, the petitioner responded affirmatively to court inquiries that: he was stable and thinking clearly; that he understood clearly what was going on during the plea canvass; that he had enough time to think about pleading guilty; that he discussed the charges and the elements of the offenses with attorney Schipul, as well as the evidence the state had to prove his guilt; that he was satisfied with attorney Schipul’s representation and advice; and that the pleas were voluntary and of his own free will. The petitioner during the plea canvass clearly indicated his desire and willingness to accept responsibility for the offenses while expressing his belief that his mental issues warranted lesser punishment. It is well established that the canvassing court as well as subsequent courts in post-conviction matters can rely on a defendant’s responses during a plea canvass. See, e.g., State v. Lage, 141 Conn.App. 510, 520, 61 A.3d 581 (2013), citing and quoting Bowers v. Warden, 19 Conn.App. 440, 443, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989) (" trial court ... may properly rely on ... the responses of the [defendant] at the time he responded to the trial court’s plea canvass, in determining that he was adequately informed of the elements of the offense charged"). The petitioner’s present assertions, therefore, are totally unworthy of belief and are entirely not credible.
The petitioner alleges several failures by counsel that pertain to the investigation conducted. " Inadequate pretrial investigation can amount to deficient performance, satisfying prong one of Strickland, as ‘[c]onstitutionally adequate assistance of counsel includes competent pretrial investigation.’ Siemon v. Stoughton, 184 Conn. 547, 554, 440 A.2d 210 (1981). Although [courts] acknowledge that ‘counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it’; (internal quotation marks omitted) Gaines v. Commissioner of Correction, [306 Conn. 664, 683, 51 A.3d 948 (2012) ]; ‘[e]ffective assistance of counsel imposes an obligation [on] the attorney to investigate all surrounding circumstances of the case and to explore all avenues that may potentially lead to facts relevant to the defense of the case.’ (Internal quotation marks omitted.) Id., at 680, 51 A.3d 948. ‘In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.’ " (Internal quotation marks omitted.) Id.
" The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001). The failure to present testimony from potential or necessary witnesses, therefore, is fatal to ineffective assistance of counsel claims premised on the failure to investigate such witnesses. See, e.g., Rodriguez v. Commissioner of Correction, 151 Conn.App. 232, 238-29, 94 A.3d 722, cert. denied, 314 Conn. 910, 100 A.3d 849 (2014) (failure to present evidence from alibi witnesses fatal to failure to investigate claim), citing Norton v. Commissioner of Correction, 132 Conn.App. 850, 859, 33 A.3d 819 (petitioner cannot prevail on claim that trial counsel was ineffective for failing to investigate witnesses when " the petitioner has not presented us with any beneficial testimony from these witnesses that would demonstrate how they would have assisted in his case had trial counsel interviewed them" and thus " failed to establish that further investigation of these witnesses would have been helpful to his defense"), cert. denied, 303 Conn. 936, 36 A.3d 695 (2012); Lambert v. Commissioner of Correction, 100 Conn.App. 325, 327-28, 918 A.2d 281 (prejudice not established where petitioner failed to call alibi witness at habeas trial or offer evidence as to what [witness] would have testified), cert. denied, 282 Conn. 915, 924 A.2d 138 (2007); Hooks v. Commissioner of Correction, 61 Conn.App. 555, 557, 764 A.2d 1291 (2001) (petitioner cannot establish ineffective assistance of counsel for failure " to investigate certain witnesses" when " [n]one of those witnesses testified at the habeas trial" and no evidence introduced as to " how that testimony may have supported his claims").
The court has reviewed the underlying record and the Appellate Court’s decision, which clearly indicate that the petitioner’s guilty pleas were knowing, intelligent, voluntary and with the competent advice of counsel. The trial court’s plea canvass substantially complied with the Practice Book requirements. The petitioner’s competence was evaluated on at least two, if not more, occasions and he was found to be competent and had the capacity to understand the proceedings and assist his attorney. Furthermore, the underlying record and the Appellate Court’s decision also demonstrate that the petitioner had a full and fair opportunity to litigate his claim that he should be permitted to withdraw his guilty pleas.
The petitioner has not presented any evidence that shows either attorney Schipul or attorney Carty somehow failed to properly investigate the petitioner’s case. The petitioner also has presented no credible evidence that any of his prior attorneys was ineffective, nor has he shown that he was prejudiced. While the petitioner testified that he would not have pleaded guilty to the Bridgeport offenses had he been shown the documents related to the New London charges, the court finds the petitioner’s testimony to be not credible.
Based upon all the foregoing, the court concludes that the petitioner has failed to prove the allegations in count three by a preponderance of the evidence. To the contrary: there is no credible evidence showing deficient performance by either attorney Schipul or attorney Carty. The petitioner has not proven deficient performance by attorney Carty during the hearing on the motion to withdraw the guilty pleas premised on deficient performance by attorney Schipul or because of the petitioner’s mental health. Consequently, there also cannot be any prejudice.
V Count Four- Due Process Violation/Prosecutor’s Failure to Disclose Exculpatory Evidence
The petitioner’s final claim in the amended petition, paragraphs (55) through (58), is that the prosecutor in Bridgeport violated his right to due process by not disclosing the police reports, witness statements, and other materials associated with the New London criminal charges. The petitioner asserts that these undisclosed materials are exculpatory and that there is a reasonable probability that, had they been disclosed, he would not have pleaded guilty in Bridgeport and proceeded to trial. The respondent’s return asserts the affirmative defense of procedural default as to the claim in count four and again incorrectly asserts that the petitioner did not seek to withdraw his guilty pleas and did not appeal therefrom. The petitioner’s reply to the return avers that any procedural default was the result of ineffective assistance of counsel as alleged in count two (i.e., by plea counsel, attorney Schipul), which this court has addressed in its discussion of count three.
The court has already addressed the New London materials in its discussion of count three and incorporates its conclusions into the discussion of count four, which essentially is a Brady claim.
" In Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ], the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused upon request violates due process [when] the evidence is material either [as] to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution ... In Strickler v. Greene, 527 U.S. 263, [281-82] 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the United States Supreme Court identified the three essential components of a Brady claim, all of which must be established to warrant a new trial: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the [s]tate, either [wilfully] or inadvertently; and prejudice must have ensued ... Under the last Brady prong, the prejudice that the defendant suffered as a result of the impropriety must have been material to the case ..." (Footnote added; internal quotation marks omitted.) State v. Ortiz, 280 Conn. 686, 717, 911 A.2d 1055 (2006). " [T]he evidence will be deemed material only if there would be a reasonable probability of a different result if the evidence had been disclosed." (Internal quotation marks omitted.) State v. Jordan, 314 Conn. 354, 370, 102 A.3d 1 (2014). This standard is met if " the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." (Internal quotation marks omitted.) State v. Ortiz, supra, at 717, 911 A.2d 1055.
Furthermore, with " respect to Brady’s third prong, a showing of materiality does not require demonstration by a preponderance [of the evidence] that disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal ... The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence ... The United States Supreme Court [has] emphasized that the [relevant test under United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ] is not a sufficiency of the evidence test ... A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict ... One does not show a Brady violation by demonstrating that some of the inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict ... Accordingly, the focus is not whether, based [on] a threshold standard, the result of the trial would have been different if the evidence had been admitted. [Courts] instead concentrate on the overall fairness of the trial and whether nondisclosure of the evidence was so unfair as to undermine our confidence in the jury’s verdict. (Internal quotation marks omitted.) State v. Ortiz, supra, 280 Conn. at 717-18, 911 A.2d 1055. Put differently, materiality is established if the withheld evidence is of sufficient import or significance in relation to the original trial evidence that it reasonably might give rise to a reasonable doubt about the petitioner’s guilt. See United States v. Agurs, [427 U.S. 97, 113, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).] supra, 427 U.S. at 112, 96 S.Ct. 2392 ... (Internal quotation marks omitted.) Kyles v. Whitley, 514 U.S. 419, 422, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)." Lapointe v. Commissioner of Correction, 316 Conn. 225, 349, 112 A.3d 1 (2015).
During the habeas trial, the court asked petitioner’s counsel to provide legal authority or support for the contention that the prosecutor in Bridgeport had a duty to disclose to defense counsel any documents from the entirely separate criminal matter pending in a different jurisdiction. The petitioner’s counsel cited to the United States Supreme Court decision in Kyles v. Whitley, supra . The court concludes that Kyles v. Whitley does not support the petitioner’s contention.
In Kyles v. Whitley, the prosecution failed to disclose numerous items that had potentially exculpatory value to the defense. Id., 428. The government had knowledge of these items, which consisted of various documents compiled by the police during its investigation (e.g., eyewitness statements, records of a call to the police, a tape recording of a call made by an informant to the police, other statements to the police, police computer printouts of vehicle license numbers, an internal police memorandum, and evidence linking the informant to other crimes and an unrelated murder), and had affirmatively represented to the defense " that there was ‘no exculpatory evidence of any nature.’ " Id., 428-29. The court then summarized the history of the state’s duty to disclose exculpatory evidence. Id., 432-40.
The Supreme Court noted that the informant’s statements could have been used to attack and undermine the police investigation. Id., 445. The statements could also have been used by the defense to highlight inconsistencies and thereby undermine the informant’s credibility. Id., 445-46. Additionally, the reliability of the police investigation could have been challenged by showing that the police tolerated the possibility that evidence was planted and that the informant gave self-incriminating statements. Id., 446-49. In other words, much, if not all, of the police investigation was subject to attack by the undisclosed documents because the police avoided investigating the possibility of the informant being the perpetrator. After assessing the effect of the non-disclosures, the Supreme Court concluded that its confidence in the outcome of the criminal trial was sufficiently undermined. Id., 454.
The present matter is distinguishable from Kyles v. Whitley in several ways. First, the Supreme Court’s decision does not hold that the prosecution has the duty to disclose materials from another jurisdiction’s prosecution and investigation. The police investigation at issue was for the very same case that resulted in the defendant’s prosecution. Second, the petitioner here has not shown that the evidence in the present matter allegedly not disclosed (i.e., statements and police reports from the New London case) is exculpatory. Attorney Schipul testified credibly that he was aware of the New London charges and was concerned that those charges could negatively impact the Bridgeport case. Third, this court has concluded that the petitioner’s testimony that he would not have pleaded guilty to the Bridgeport charges had he been shown the documents from the New London case is not credible.
The petitioner has not proven by a preponderance of the evidence any of the Brady prongs, and his case is factually distinguishable from Kyles v. Whitley. Consequently, the claim in count four is denied.
CONCLUSION
Based upon the foregoing, counts one and two are dismissed, and counts three and four are denied. Judgment shall enter for the respondent.
It is so ordered.