Opinion
CV154006844S
05-09-2018
Vernon Vassell v. Warden, State Prison
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Sferrazza, Samuel J., S.J.
MEMORANDUM OF DECISION
Sferrazza, J.
The petitioner, Vernon Vassell, seeks habeas corpus relief from sixty years imprisonment, imposed after a jury trial, for the crime of murder. The Appellate Court affirmed the judgment of conviction on direct appeal, State v. Vassell, 79 Conn.App. 843 (2003).
The petitioner brought a first habeas action in which relief was denied, Vassell v. Warden, Superior Court, Tolland Judicial District, d.n. CV 05-4000672 (January 14, 2010), Fuger, J. The Appellate Court affirmed that denial, per curiam, Vassell v. Commissioner, 128 Conn.App. 904 (2011); cert. denied, 301 Conn. 932 (2011).
The petitioner brought a second habeas action for which relief was again denied, Vassell v. Warden, Superior Court, Tolland Judicial District, d.n. CV 12-4004387 (September 24, 2014), Cobb, J. The Appellate Court also affirmed that denial, per curiam, Vassell v. Commissioner, 162 Conn.App. 903 (2016).
Thus, the present case, in part, is a habeas on a habeas on a habeas action. In the first count, the petitioner asserts that he was denied due process of law based on a Brady violation, Brady v. Maryland, 378 U.S. 83 (1963). In the second count, the petitioner asserts an ineffective assistance claim against appellate counsel for his direct appeal, Attorney Frederick Paoletti. In the third count, the petitioner asserts a claim of ineffective assistance of second habeas counsel, Attorney Keith Anthony, based on the failure to plead and prove allegations of ineffective assistance of first habeas counsel, Attorney Joseph Visone.
The respondent denies these allegations and raises special defenses of successive petition, res judicata, and procedural default.
Neither first nor second habeas counsel raised claims for habeas corpus relief premised on the Brady violation set forth in the first count of the present action, nor did the petitioner previously press a claim of ineffective assistance of appellate counsel. Therefore, the present amended petition is not a successive petition nor do the doctrines of res judicata or procedural default apply. See, Practice Book § 23-29(3), permitting subsequent habeas petitions if a different ground for relief is presented; and Lozada v. Warden, 223 Conn. 834, 843-44 (1992), previous habeas adjudications are not res judicata where ineffective assistance of previous habeas counsel is at issue. The doctrine of procedural default is inapplicable because a habeas petitioner has no legal obligation to raise all potential grounds for relief in a single petition (although such a rule would have much to commend its implementation). Again, see Practice Book § 23-29(3).
Therefore, none of the respondent’s special defenses thwart the petitioner’s claims in this third habeas petition. However, the petitioner has withdrawn the second count regarding appellate counsel’s representation.
The Appellate Court succinctly summarized the evidence against the petitioner at his criminal trial:
" On May 26, 1997, a Memorial Day picnic took place at a house on Charles Street in Bridgeport. Late in the afternoon or early evening, a burgundy colored automobile occupied by three or four men, identified as Dwight Daly, Naja and the defendant, nicknamed Markie, arrived at the house. An argument ensured between the men who had arrived and Marcus Colbert, Terry Perkins, Eric Wells, James Harris and Glenn Jones, all of whom were already in attendance. During the argument, the defendant drew a semiautomatic pistol from his waistband and fired multiple times, striking both Colbert and Jones. The defendant and his companions then fled the scene in their automobile. Colbert was transported to St. Vincent’s Hospital in Bridgeport where he subsequently died from multiple gunshot wounds," State v. Vassell, supra, 844-45.
Brady Violation
In the first count, the petitioner asserts that the prosecution failed to disclose to the defense or otherwise correct the false or misleading testimony of a state’s witness, Eric Wells, regarding consideration given to him as part of an agreement to induce him to testify against the petitioner. The petitioner contends that these inactions by the prosecution constitute a denial of due process as recognized under Brady v. Maryland, 378 U.S. 83 (1963).
There are three components needed to establish a valid Brady violation, LaPointe v. Commissioner, 316 Conn. 225-62 (2015). The undisclosed evidence must be favorable to the accused; it must have been suppressed by the prosecution, wilfully or inadvertently; and " prejudice must have ensued," Id. " Prejudice" means that the favorable information withheld " could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict," Id., 26-63.
In this count, the petitioner first identifies the undisclosed and uncorrected, exculpatory information involving Eric Wells to be that, at the time of Well’s testimony, the state and Wells had an understanding that the state would nolle charges Wells faced in a Norwalk case, denoted CR 00-0088617. The prosecutor for G.A. 20, covering the Norwalk area, nolle’d these charges around a week after Wells’ testimony.
Assistant State’s Attorney Joseph Corradino prosecuted the petitioner’s criminal case in the Part A division of the Fairfield Judicial District. Attorney Corradino testified at the habeas trial before this court. He avowed that the only promises made to Wells concerning his expected truthful testimony was to recommend that Wells be released on his promise to appear and that Attorney Corradino would inform the Norwalk prosecutor about Wells’ cooperation.
Attorney Corradino denied that any promise was conveyed to Wells that his Norwalk charges would be nolle’d.
Neither Wells nor anyone representing him nor anyone from the state’s attorney’s office for G.A. 20 was called to testify in the present trial. The court finds Attorney Corradino’s testimony credible and accurate, and the court concludes that the petitioner’s allegation of a Brady violation fails for lack of proof that exculpatory material regarding Wells’ cooperation with the state was withheld by the government from the defense.
Next, the petitioner avers that Wells testified falsely that he was incarcerated on the date that he allegedly failed to appear for his court date in July 2000. The petitioner submitted a Department of Corrections (DOC) printout showing Wells’ movements within the prison system from 1997 to 2007. The document discloses that on May 16, 2000, Wells was in custody at Bridgeport Correctional Center and that on June 15, 2000, he posted bond. The next chronological DOC entry for Wells is dated April 16, 2002.
The respondent points out that DOC records only reflect actions with respect to persons in DOC custody and would omit entries if an individual were in a local lockup or being held out-of-state. However, for purposes of this decision, the court will assume, arguendo, that Wells misspoke.
Wells’ testimony about his whereabouts in July 2000 was immaterial, insignificant, and inconsequential to his identification of the petitioner as the shooter on May 26, 1997. Wells was an eyewitness to the crime charged as opposed to being a jailhouse snitch.
The court infers that Assistant State’s Attorney Corradino was motivated to ask Wells if he had an excuse for his failure to make a court date for his own domestic disturbance case to justify his request that Judge Rodriguez release Wells on his promise to appear. The fact that Attorney Corradino took such action on Wells’ behalf was never suppressed. Whether Wells correctly or incorrectly attributed his failure to appear in court to his incarceration fails to persuade the court that, but for the revelation that Wells might have wrongly testified to that circumstance, the evidence against the petitioner " could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." LaPointe v. Commissioner, supra, 262-63.
As observed by the Appellate Court:
" There was ample evidence to support the jury’s verdict. The state produced eyewitnesses Wells, Perkins and Harris, each of whom testified that the defendant was present at the scene and was the shooter. The testimony of Marshall Robinson, a tool marks and firearms examination expert, supported the testimony of Wells, Harris and Perkins regarding the number of gunshots fired and the existence of only one shooter. In addition, associate state medical examiner Malka B. Shah testified that the victim had died from multiple gunshot wounds," State v. Vassell, supra, 846.
The court determines that the petitioner has failed to prove any of other three components necessary to constitute a Brady violation, and he cannot, therefore, obtain habeas relief as to the first count.
Ineffective Assistance of Previous Habeas Counsel
Subparagraphs 78a through d set forth the alleged deficiencies of Attorneys Visone and Anthony. These allegations simply accuse previous habeas counsel of failing to raise the Brady claim rejected above and the claim against appellate counsel that has been withdrawn. Consequently, the petitioner has failed to prove either prong of the Strickland-Lozada standard. Habeas counsel cannot be faulted for failing to raise meritless claims.
The court denies the petition as to the first and third counts and dismisses the second count.