Opinion
No. CV98 041 98 60 S
June 5, 2007
MEMORANDUM OF DECISION
The Petitioner has filed this amended petition for a Writ of Habeas Corpus. The Petitioner alleges on September 28, 1993 he entered a plea of nolo contendere to charges of Risk of Injury to a Minor and Sexual Assault in the Fourth Degree. The total effectual sentence was 5 years suspended and 5 years probation and on the risk of injury, 1 year execution suspended. On November 4, 1996, Petitioner was sentenced to 5 years imprisonment for violation of the orders of probation because of his failure to comply with the conditions of probation. Petitioner alleges ineffective assistance of trial counsel, John Watson in 1993 and ineffectual assistance of trial counsel, Scott Jones in 1996. Petitioner requests that his conviction be vacated, and he be returned to court for further proceedings.
Count one of the Petition alleges that when he entered his plea of guilty to the crimes charged on September 28, 1993 he was actually innocent of the crimes charged.
Counts two and three alleges the claims of ineffective assistance of both public defenders who represented him on the crimes charged and the later hearing for violation of the orders of probation.
Petitioner testified John Watson, his public defender, explained the charges, and his right to a trial as well as the offers of the State regarding a plea. The investigator from the office of the public defender received no cooperation from Jackie Sims, the mother of the victim. From the date of his arrest until the jury trial culminated, Petitioner had many discussions with his public defender. Petitioner was told he was at risk to serve jail time if convicted, and that he could avoid serving jail time by accepting the offers of the State. During jury selection, Petitioner agreed to a plea of nolo contendere for the offenses charged and a total sentence of 5 years suspended and 5 years probation. Attorney Watson, prior to the plea by the Petitioner, had repeatedly discussed with him the charges for a couple of years, and he also related the efforts of his investigator to obtain cooperation from the child's mother were unsuccessful. His public defender questioned the Petitioner regarding psychological, medical, addiction and past criminal records and he determined he had no psychological or competency problems. The Petitioner was left to make the decision regarding his change of plea after his attorney advised him he could avoid serving time to resolve the matter with a suspended sentence and 5 years of probation.
The Petitioner presented attorney Howard Wicker as his expert witness who testified the canvas by Judge Thompson was inadequate. However, the testimony of Attorney Watson did establish Petitioner was advised of the basis of the charges and any possible defenses prior to his canvass by Judge Thompson. Petitioner was left to decide his change of plea which he did voluntarily knowing that his plea would bring finality to the charges by the imposition of the agreed sentence. Petitioner entered pleas of nolo contendere on September 28, 1993. The canvass by Judge Thompson complied with the requirements of Practice Book Sections 39 18-22, and it met the requirements as set forth in State v. Badgett, 220 Conn. 6 (1991). Petitioner entered the pleas knowingly and voluntarily with the effective assistance of competent counsel.
Scott Jones, in 1966, was appointed as the public defender of the Petitioner for the charge of Violation of Probation. On November 4, 1996, an extended hearing was conducted before Judge Joseph Clark regarding Petitioner's failure to comply with the conditions of probation. Attorney Jones replaced another public defender three weeks prior to the hearing, and at the commencement of the proceeding, he requested more time for preparation but the trial judge denied the request. Attorney Jones then represented Petitioner at the hearing and he did an investigation with the assistance of the Probation Officer and the Special Service Program. The evidence presented by the State at the hearing, established Petitioner kept denying the basis of his conviction and he missed many sessions required by the probation order. Attorney Jones found no basis to support a claim of competency or mental health. Petitioner had also obtained employment with exposure to minors in violation of the probation orders. The Public Defender could not claim any defenses to the claimed violations by the Petitioner, nor were there any appealable issues relating to the charges at the hearing. Since the court had broad discretionary powers regarding the violation of the order of probation, Atty. Jones still did a competent representation in examining the various witnesses presented by the State. He found no competency issues, and he concluded Petitioner's conduct was inculpatory and not exculpatory because of his involvement with children in his employment and conduct regarding his failed attendance at sexual orientation sessions.
The claim of Petitioner in count one, claiming actual innocence, required him to prove his claim by clear and convincing evidence with sufficient proof that no reasonable fact finder would find him guilty of the crime. Miller v. Commissioner of Corrections, 242 Conn. 745, 791 (1997). He has failed to establish that claim by a fair preponderance of the evidence.
The petitioner claims that he is "actually innocent". In Summerville v. Warden, 229 Conn. 397, 422 (1994), the Connecticut Supreme Court held that "a substantial claim of actual innocence is cognizable by way of a petition for 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." Although Summerville did not decide the standard of proof for such a claim, the decision was quite emphatic that the standard was much higher than the standard for a habeas claim based on ineffective assistance of counsel and much higher than the standard for a petition for a new trial. Summerville v. Warden, supra at 431, 433. In Miller v. Commissioner of Correction, 242 Conn. 745 (1997), the court determined the standard of proof such a claim. "We conclude that the proper standard for evaluating a freestanding claim of actual innocence is two-fold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime." Id. At 747.
The "clear and convincing" standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less that the highest legal standard of proof beyond a reasonable doubt. Miller, at 794. It is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist. Id. at 794. Its emphasis on the high probability and the substantial greatness of the probability of the truth of the facts asserted indicates that it is a very demanding standard and should be understood as such. Id. at 795. It is the functional equivalent of an extraordinarily high and truly persuasive demonstration of actual innocence. Id. at 795.
The second component under the Miller test requires the habeas court to determine what a second fact finder, normally a jury, is likely to do if presented with the same evidence, original and new, that was presented to the habeas court. The standard here is also quite high. It erects a demanding but not insurmountable barrier that the petitioner must overcome in order to establish his claim of actual innocence. Id. at 802. The court must determine whether no reasonable fact finder, considering all of the evidence in the same way that the habeas court considered it, and drawing the same inferences that the habeas court drew, would find the petitioner guilty of the crime of which he stands convicted. Miller v. Commissioner, supra, at 800.
In Williams v. Commissioner. 41 Conn.App. 515, 527 (1996), the Appellate Court also held that a substantial claim of actual innocence, as recognized by Summerville, must be based on newly discovered evidence. "Entertaining claims of actual innocence that are not based on newly discovered evidence would have a disruptive effect on the finality of judgments because it would permit a petitioner to raise allegations that, absent proof of an antecedent constitutional violation that affected the result of his criminal trial, could have been raised at the criminal trial." Id. at 527. In Clarke v. Commissioner, 43 Conn.App. 374, 379, the Appellate Court reiterated 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." Although the requirement that the evidence be newly discovered was certified as a question for review by Supreme Court; Clarke v. Commissioner, 249 Conn. 350, 357 (1999); the Supreme Court ultimately concluded that certification was improvidently granted under the facts of that case. To date, the Supreme Court has not reviewed the Appellate Court's requirement that the evidence be "newly discovered." The Appellate Court, however, has continued to hold that the claim of actual innocence must be based on newly discovered evidence. Batts v. Commissioner of Correction, 85 Conn.App. 723, 726-27; cert. denied 272 Conn. 907 (2004).
Petitioner also cannot prevail on a claim of ineffective assistance of either counsel based on failure to investigate unless he can show what "specific evidence any further investigation would have uncovered." United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989). Connecticut courts have stated that "a claim of habeas corpus relief based on ineffective assistance of counsel for failure to investigate cannot succeed where a petitioner fails to show what further investigation would have revealed and how it could have helped him" Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 153 (2001). Furthermore, "it is within the range of reasonably competent counsel for an attorney to advise his client to plead guilty even though defenses may conceivably exist." State v. Lopez, 197 Conn. 337, 343, 497 A.2d 390, 394 (1985). Moreover, advice to plead guilty is not necessarily "ineffective even though . . . investigation was not complete." Bowers v. Commissioner, 33 Conn.App. 449, 454-56, cert. denied 228 Conn. 929 (1994).
A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied. This right arises under the sixth and fourteenth amendment to the United States Constitution and Article First, § 8, of the Connecticut Constitution. Copas v. Commissioner of Correction, 234 Conn. 139, 153 (1995); Levine v. Manson, 195 Conn. 636, 639 (1985); Baez v. Commissioner of Correction, 34 Conn.App. 236, 242-43, cert. denied, 231 Conn. 905 (1994); Rouillard v. Commissioner of Correction, 35 Conn.App. 754, 759 (1994); Davis v. Warden, 32 Conn.App. 296, 301-02, cert. denied, 227 Conn. 924 (1993).
"It is the defendant's burden to show that his counsel's conduct fell below the standard and that (the) lack of competency contributed to the conviction." State v. Clark, 170 Conn. 273, 283, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S.Ct. 748, 48 L.Ed.2d 208 (1976). "Hindsight is irrelevant." Gentry v. Warden, 167 Conn. 639, 647, 356 A.2d 902 (1975). "(T)he issue, therefore, is not what either counsel should have done to constitute the proper representation of the defendant considering the case in retrospect, but rather, whether in the circumstances, as viewed at the time the defendant received effective assistance of counsel." State v. Ralls, 167 Conn. 408, 432, 356 A.2d 147 (1974).
Here, the petitioner simply states that his trial counsel failed to undertake a thorough investigation, failed to organize a defense, and failed to investigate whether witness statements provided to the State were coerced. The Petitioner offers no additional support for his assertions. The Petitioner has failed to identify what "specific evidence any further investigation would have uncovered" as required. U.S. v. Green, 882 F.2d at 1003; see also Holley v. Commissioner of Correction, 62 Conn.App. at 175. The Petitioner cannot prevail because either trial attorney represented the Petitioner based on information the Petitioner, himself provided.
In order to prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) defense counsel's performance was not reasonably competent or within the range of competence expected of attorneys with ordinary training and skill in criminal law; Strickland v. Washington, supra at 466 U.S. 687-88; and (2) but for counsel's substandard performance, there is a reasonable probability that the result of the proceeding would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Under this analysis, to prevail on a constitutional claim of ineffective assistance of counsel, the petitioner must demonstrate both (1) deficient performance and (2) actual prejudice. Bunckley v. Commissioner of Correction, 222 Conn. 444, 445 (1992). The burden of proof is upon the petitioner. Ostolaza v. Warden, 26 Conn.App. 758, 760-61, cert. denied, 222 Conn. 906 (1992). He must establish the underlying facts that form the basis of the claimed violations by a fair preponderance of the evidence. Arey v. Warden, 187 Conn. 324, 331 (1982); Blue v. Robinson, 173 Conn. 360, 370 (1977).
To satisfy the first prong of the Strickland test, the petitioner must show that his counsel made errors so serious that he was not functioning as the counsel guaranteed by the sixth amendment. Bunckley v. Commissioner of Correction, 222 Conn. 444, 455 (1992). Counsel's representation must be shown to have fallen below an objective standard of reasonableness considering all the circumstances. Strickland v. Washington, 466 U.S. at 687-88. The right to counsel, however, is the right to effective assistance and not to perfect or error-free representation. Commissioner of Correction v. Rodriguez, 222 Conn. 469, 478 (1992). Judicial scrutiny of counsel's performance must be highly deferential, and a reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Chase v. Bronson, 19 Conn.App. 674, cert. denied, 213 Conn. 801 (1989). To prevail, the petitioner must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland v. Washington, supra at 466 U.S. 689; Daniels v. Warden, 28 Conn.App. 64, 69-70, cert. denied, 223 Conn. 924 (1992). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Strickland v. Washington, supra at 689.
In order to satisfy the second prong of the Strickland test, the defendant must prove that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. CT Page 8941 Bunckley v. Commissioner of Correction, 222 Conn. at 455. This second prong is satisfied if the defendant can demonstrate that there is a reasonable possibility that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Siano v. Warden, 31 Conn.App. 94, 98 cert. denied, 226 Conn. 910 (1993). In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness has been done is not met by speculation but by demonstrable realities. Adams v. United States, 317 U.S. 269, 281, 63 S.Ct., 236, 87 L.Ed. 268 (1942); Ostolaza v. Warden, supra at 765.
"The right of a defendant to effective assistant is not, however the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chance v. Bronson, 19 Conn.App. 674, 678, 564 A.2d 303 (1989). He must also show `that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial.' Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986). The reviewing court must employ a strong presumption of the reasonableness of that counsel's assistance. Levine v. Manson, supra, 640; Chance v. Bronson, supra, 678. The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight. Levine v. Manson, supra. Even if that assistance is found to have been lacking in competency, the petitioner bears the further burden of showing that there is a reasonable probability that, were it not for the deficiency of counsel, the result of the trial would have been different. Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989)." Williams v. Bronson, 21 Conn.App. 260, 263 (1990). Further, strategic or tactical choices of counsel are not subject to challenge. ( Strickland, supra). The petitioner's claims must be evaluated in light of these standards.
The evidence presented does not establish ineffective assistance of counsel. It also fails to prove that the alleged lack of competency contributed significantly to deprive the Petitioner by the right to a fair trial. The Petitioner has failed to sustain his burden of proving counsel's representation fell below the standard of reasonableness or that there was a reasonable probability that, but for the performance of counsel, the result would have been different.
For the foregoing reasons, the relief sought by the Petitioner is denied and the petition is dismissed.