Opinion
No. CV04-4000240
June 20, 2007
MEMORANDUM OF DECISION
The petitioner, Corey Turner, alleges in his petition for a Writ of Habeas Corpus initially filed on December 17, 2004 and amended for a final time on July 31, 2006, that his convictions for: murder in violation of CGS § 53a-54a and assault in the first degree in violation of CGS § 53a-59 were obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Constitution of the state of Connecticut. He specifically claims to have been deprived of the effective assistance of his habeas appellate counsel.
This petition was initially a two-count complaint with Count I alleging ineffective assistance of habeas appellate counsel and Count II alleging ineffective assistance of the original trial defense counsel. On September 20, 2006, the Court, Swords, J., granted the Respondent's motion to dismiss Count II.
This matter came on for trial before this Court on March 27, 2007 and May 7, 2007 at which time testimony was received from Atty. James Fox, the counsel handling the appeal of the previous habeas petition, In addition, Atty. John R. Williams testified as an expert witness in the field of Criminal Appellate Practice. As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The petitioner was originally convicted in the Judicial District of Hartford in the matter of State v. Turner, Docket No. CR96-465849 and sentenced to a total effective sentence of sixty years incarceration on August 7, 1996. This conviction was affirmed by our Supreme Court on March 17, 2000. See State v. Turner, 252 Conn. 714 (2000). On July 24, 2000, the petitioner filed his first habeas petition in the Judicial District of Danbury under Docket No. CV98-03328085 and captioned Turner v. Warden. After a trial on the merits at which the petitioner represented himself, that petition was dismissed by the Court, White, J. The petitioner then filed a Petition for Certification to Appeal that was denied by the habeas court. The Appellate Court affirmed that denial of the Petition for Certification to Appeal in a per curiam decision entitled Turner v. Commissioner of Correction, 86 Conn.App. 341 (2004), cert. den. 272 Conn. 914 (2005). The petitioner then filed another petition seeking a writ of habeas corpus in the Judicial District of Tolland in 2006 alleging ineffective assistance of Atty. Kaatz, his trial defense counsel. This second petition was dismissed by the Court, Fuger, J., and the inevitable Petition for Certification to Appeal was also denied by the habeas court. The Appellate Court affirmed that denial of this Petition for Certification to Appeal in yet another per curiam decision entitled Turner v. Commissioner of Correction, 97 Conn.App. 15 (2006), cert. den., 280 Conn. 922 (2006). It is clear that the petitioner has been able to have his conviction reviewed by numerous courts.
Discussion of Law
It is important at the outset to understand 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. . . 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, 229 Conn. 397 at 422-23 (1994). The burden of proof in a habeas petition is on the petitioner.
In order to prevail on the issue of whether there has been ineffective representation by the petitioner's counsel, the petitioner 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 renders 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 performance may have been substandard, will result in denial of the petition.
A habeas court knowing the outcome of the trial, "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 attorney's 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).
In the instant case, the petition contains allegations that the petitioner's appellate counsel on his first habeas appeal rendered ineffective assistance of counsel. Ultimately, the petitioner must demonstrate that "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. Strickland, infra at 694. "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).
In this case, the issue of the performance of the petitioner's trial defense counsel, Atty. Kaatz, has long since been laid to rest and decided adversely to the petitioner. It is as clear now, as it was to all of the previous habeas courts, that the petitioner was not deprived of his Sixth Amendment right to the effective assistance of counsel. In order for this habeas court to grant relief and set aside the petitioner's 1996 conviction, the petitioner must prove that (1) his habeas appellate counsel was ineffective, (2) his original habeas counsel was also ineffective, and (3) that his original trial defense counsel was ineffective. Then, the petitioner must demonstrate that there was a reasonable probability that if all of these counsel had done his job properly, that the outcome of the 1996 criminal trial would have been more favorable to the petitioner. This simply cannot be done.
Moreover it is not even necessary to consider whether a counsel's performance was deficient if the habeas Court is satisfied that there was no prejudice to the defendant by the actions of 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).
In the instant case, the petitioner was representing himself at the initial habeas trial before Judge White. At best, even if Attorney Fox was deficient in his performance when he represented the petitioner on the appeal of this habeas, the petitioner would have only established the first step necessary for obtaining relief. Given the petitioner's undoubtedly ill-considered decision to represent himself, he cannot come into this court and complain that the representation he afforded to himself was substandard. Consequently, it is impossible for the petitioner to move beyond step two of the process and this court must deny the petition. The petitioner cannot show ineffective assistance of habeas trial counsel, himself, and therefore, cannot show ineffective assistance of appellate counsel on the prejudice prong.
"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 The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client." Strickland v. Washington, 466 U.S. 668 at 688 (1984).
Justifiably, then, the burden of persuasion in a habeas case rests with the petitioner 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, 229 Conn. 397 at 419 (1994). There is, therefore, 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 Strickland standard for ineffectiveness has not even come close to being met on either of the two prongs. It is indisputable that a criminal defendant is entitled to the representation of trained and competent legal counsel, however, "[t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight. See Bell v. Cone, 535 U.S. 685 at 702 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Strickland v. Washington, 466 U.S. 668, 689; United States v. Cronic, 466 U.S. 648, 656 (1984)." Yarborough v. Gentry, 540 U.S. 1 (2003).
As a final matter, this court notes that at common law, one could file multiple and repeated petitions for a writ of habeas corpus, the doctrine of res judicata being inapplicable. "[A] renewed application could be made to every other judge or court in the realm, and each court or judge was bound to consider the question of the prisoner's right to a discharge independently, and not to be influenced by the previous decisions refusing discharge." W. Church, Writ of Habeas Corpus § 386, p. 570 (2nd edition 1893). This was permissible because, at common law, there was no right to appellate review of a denial of a petition for a writ of habeas corpus; consequently, successive writs served as a substitute for the right of a petitioner to appeal.
The development of appellate review of the decisions on habeas corpus petitions caused some courts during the early part of the 20th century to question the viability of the common-law rule. In fact some states, notably Georgia [see Perry v. McLendon, 62 Ga. 598 (1879)], South Dakota [see McMahon v. Mead, 30 S.D. 515 (1912)], and Wisconsin [see ex parte Heller, 146 Wis. 517 (1911)], completely rejected the common law rule and applied the doctrine of res judicata to denials of habeas petitions. The federal courts reaffirmed that while the doctrine of res judicata did not apply to habeas petitions, with the advent of the right to appeal adverse decisions on habeas petitions, the common-law rule of endless petitions needed modification. Salinger v. Loisel, 265 U.S. 224 (1924). Thus began a long series of cases and legislative changes culminating in the decision of the Supreme Court in McCleskey v. Zant, 499 U.S. 467 (1991). Now, successive and abusive petitions for writs of habeas corpus may be dismissed.
The determination as to whether the petitioner is abusing the right to file a petition for a writ of habeas corpus lies within the trial court. "[T]he State must plead an abuse of the writ with particularity, and [thereafter] the burden then shifts to petitioner to show that presentation of the new claim does not constitute abuse. [ Price v. Johnston, 334 U.S. 266 at 292 (1948)]." See McCleskey v. Zant, infra. at 482. Here in Connecticut "decisions concerning abuse of the writ are addressed to the sound discretion of the trial court." Iasiello v. Manson, 12 Conn.App. 268 at 271 (1987). Moreover, the "applicant must, in other words, show that his application does, indeed, involve a different legal ground, not merely a verbal reformulation of the same ground." Williams v. United States, 731 F.2d 138 at 141 (2nd Circ. 1984). Finally, the "petitioner bears a heavy burden on appeal to show that the trial court abused its discretion" in finding an abuse of the writ State v. Morra, 195 Conn. 421 at 437 (1985).
In the instant case, the petitioner has not asserted any new legal ground upon which the Court can ultimately find he is burdened with an unreliable conviction. "Ground must mean `a sufficient legal basis for granting the relief sought.'" Sanders v. United States, 373 U.S. 1 (1963).
Even arguing a new piece of evidence is not sufficient. It is settled law that "a petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice." McLeskey v. Zant, infra. at 489. Clearly, "if a prisoner deliberately withholds one of two grounds for federal collateral relief at the time of filing his first application, in the hope of being granted two hearings rather than one, or for some other reason, he may be deemed to have waived his right to a hearing on a second application presenting the withheld ground. . . Nothing in the traditions of habeas corpus required the federal courts to tolerate needless, piecemeal litigation or to entertain collateral proceedings whose only purpose is to vex, harass, or delay." Sanders v. United States, at 18. Indeed, even something less than a "deliberate choice" not to raise an issue in the first petition could constitute an abuse of the writ. See, for example, Woodard v. Hutchins, 464 U.S. 377 (1984) (no explanation as to why an issue was not raised in the first petition constituted an abuse of the writ), Antone v. Dugger, 465 U.S. 200 (1984) (hasty preparation of the initial petition that overlooked a ground did not warrant raising that ground in a subsequent petition), and Kuhlmann v. Wilson, 477 U.S. 436 (1986) (raising grounds in a subsequent petition that were available at the first filing is an abuse of the writ).
A constant re-litigation of issues, in addition to squandering precious judicial resources, undermines the entire criminal justice system. "A procedural system which permits an endless repetition of inquiry into facts and law in a vain search for ultimate certitude implies a lack of confidence about the possibilities of justice that cannot but war with the underlying substantive commands. . . There comes a point where a procedural system which leaves matters perpetually open no longer reflects humane concern, but merely anxiety and a desire for immobility." Bator, 76 Harv. L. Rev., at 452-53. "Without finality, the criminal law is deprived of much of its deterrent effect." Teague v. Lane, 489 U.S. 288 at 309 (1989).
There are no issues remaining to be litigated in connection with the petitioner's 1996 conviction. Any further petitions for a writ of habeas corpus shall be considered successive and abusing the privilege of the writ.
Accordingly, the Petition for a Writ of Habeas Corpus is denied.