Opinion
CV124004849
01-31-2019
Floyd WILLIAMS v. COMMISSIONER OF CORRECTION
UNPUBLISHED OPINION
Hon. John M. Newson, Judge
I. Procedural History
The petitioner, represented by Attorney Arnoldo Granados, was the defendant in a matter in the Judicial District of Fairfield, where a jury convicted him of one count of Felony Murder, in violation of General Statutes 53a-54c. On October 5, 1990, the trial court imposed a sentence of sixty years. Represented by Attorney James Shanley, Jr., the petitioner appealed his conviction, which was affirmed. State v. Williams, 220 Conn. 1991, 599 A.2d 1053 (1991). The petitioner was represented in his first petition for writ of habeas corpus by Attorney Thomas Farver, which was pending under docket number CV91-001342. That petition was denied by Sferrazza, J., after trial, and that denial was affirmed on appeal. Williams v. Commissioner of Correction, 41 Conn.App. 515, 677 A.2d 1 (1996), appeal dismissed as improvidently granted, 240 Conn. 547, 692 A.2d 1231 (1997). The petitioner filed his second habeas petition in 1998 and was represented by Attorney Damon Kirschbaum. That petition was also denied following a trial; Williams v. Warden, Superior Court judicial district of New Haven, Docket No. CV98-0412295 (Hadden W., JTR., Aug. 30, 2000); and, once again, affirmed on appeal. Williams v. Commissioner of Correction, 67 Conn.App. 909, 792 A.2d 910, cert. denied, 259 Conn. 932, 792 A.2d 1087 (2002). The petitioner then filed a third petition that was pending under docket no TSR-CV02-815460, however, that matter was withdrawn on April 11, 2007. The petitioner was represented in his fourth petition for writ of habeas corpus by Attorney W. Theodore Koch, III, which was also denied following a trial on the merits. Williams v. Warden, Superior Court judicial district of Tolland, Docket No. CV08-4002127 (Schuman, J., Dec. 13, 2010). According to the allegations in the current complaint, petitioner sought to appeal this decision, however, while his application for waiver of costs and fees was granted, his petition for certification to appeal and request for appointment of counsel on appeal were denied by the trial court, all on January 4, 2011. The petitioner sought review of these denials by the Appellate Court, but that motion was dismissed by the Appellate Court on February 29, 2012. No other appeal was ever taken.
On July 25, 2012, the petitioner filed this, his fifth petition for writ of habeas corpus attacking this conviction. The petition was amended on July 26, 2018, alleging various claim of ineffectiveness against all prior counsel, which will be addressed in detail below. The respondent filed a return and raised special defenses of res judicata/successive petition, abuse of the writ and, procedural default. The matter was tried before the Court on October 22, 2018.
Prior to evidence, the petitioner withdrew claims of ineffectiveness contained in paragraphs 23a, b, c, and d, so those paragraphs will not be addressed in this decision.
II. Law and Discussion
"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.
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).
COUNT ONE
In Count One, the petitioner alleges that Attorneys Farver (1st habeas), Kirschbaum (2nd habeas), and Koch (4th habeas) were all ineffective for failing to present evidence that Attorney Granados (trial counsel) was ineffective for failing to challenge the court’s jury instructions regarding physical evidence, the elements of robbery, and the accessory liability charge. First off, to the extent that the petitioner challenges the effectiveness against any of his prior counsel for not challenging the accessory liability charge, that issue has already been raised and decided by the Appellate Court in the petitioner’s direct appeal. State v. Williams, supra, 220 Conn. 388-90 (rejecting claim that it was improper for court to charge jury that petitioner could be found guilty as a principal or accessory). As such, further review of this claim is barred by the doctrine of res judicata. McGee v. Commissioner of Correction, 157 Conn.App. 863, 872-73, 118 A.3d 140 (2015), cert. denied, 318 Conn. 903, 122 A.3d 633 (2015) (holding that, since Appellate Court had already rejected claims that underlying verdicts were inconsistent and should be vacated, claim of ineffectiveness against defense counsel for failing to file post-trial motion challenging the jury verdicts on the basis of inconsistent verdicts was barred by res judicata).
The petitioner next claims that all of his prior habeas attorneys were ineffective for failing to prove that Attorney Granados was ineffective for failing to object to the jury charges given by the trial court regarding physical evidence and on the elements of robbery. Once again, the petitioner has failed to present any evidence in support of his claim. While the underlying criminal trial transcripts were placed into evidence as full exhibits, the petitioner has failed to present any evidence before the Court as to specific the arguments or objections that could have, or should have, been made by Attorney Granados, or as to the specific portions of the charges he claims were objectionable. It is notable that the trial record indicates that there was an in chambers charging conference between the trial judge and all counsel, which was followed by an on-the-record charging conference where the trial court appears to go through each individual charge and hears various objections from both attorneys. This on-the-record hearing covers seventy-eight pages of transcripts, followed by ninety-nine pages of the trial court instructing the jury, after which petitioner’s trial counsel then raises several additional exceptions to the jury charge. Asking the court to review this large swath of evidence for errors by counsel or deficiencies in the jury charge, but without marshalling the evidence in any way or otherwise pointing to specific issues with those jury charges, asks the court to vacate its role as a fact finder— determining whether the evidence and arguments presented by the petitioner supports its claims— and to creep wearily close to that of an advocate— reviewing the evidence independently in order to lift facts and argument that might support the petitioner’s generalized claims. See, State v. Peloso, 109 Conn.App. 477, 491-92, 952 A.2d 825 (2008). It is the petitioner’s duty to support his claims with affirmative evidence; See Kowalyshyn v. Warden, Superior Court judicial district of Tolland, Docket No. CV10-4003468 (Newson, J., Mar. 5, 2013); not the Court’s job to sift through the record in the hopes of coming across things that might help his cause. Therefore, for the reasons stated, these claims also fail.
Exhibit 7, Transcript of August 17, 1990.
Exhibit 9, Transcript of August 17, 1990, pp. 763-77.
"Whe[n] the testimony is confusing or not altogether clear the alleged jeopardy to one side caused by the clarification of a [witness’] statement is certainly outweighed by the desirability of factual understanding ... A trial judge’s intervention in the conduct of a criminal trial would have to reach a significant extent and be adverse to the defendant to a substantial degree before the risk of either impaired functioning of the [finder of fact] or lack of the appearance of a neutral judge conducting a fair trial exceeded constitutional limits.
We must also be reminded of the presumption that counsel’s tactical decisions, such as objections and requests to charge, are presumed to have been made with the exercise of sound professional judgment; Boyd v. Commissioner of Correction, 130 Conn.App. 291, 297-98, 21 A.3d 969, 974, cert. denied, 302 Conn . 926, 28 A.3d 337 (2011); and that counsel’s strategy assisted in the petitioner being acquitted on six of the seven charges against him.
The petitioner alleges in paragraph 23g that his prior habeas attorneys were all ineffective for failing to prove that Attorney Granados was ineffective for having failed to object to the trial court making a finding with respect to the petitioner after the jury was dismissed, thus taking that finding away from the jury. First, similar to the claims above, the petitioner failed to present any direct evidence on this issue during the habeas trial. See Kowalyshyn v. Warden, supra. So this claim fails for the same reasons as those above. Id. Notwithstanding, by quickly reviewing the post-verdict transcript, the Court was able to determine this claim to be wholly frivolous. Following release of the jury, the trial court addressed the petitioner’s bond and set a date for sentencing, but did not make a single factual finding that one could even reasonably argue belonged to the jury.
Exhibit 9, Transcript of August 21, 1990, pp. 893-96.
The petitioner’s final remaining claims of ineffectiveness were in paragraph 23f, where he alleged that all of his prior habeas attorneys were ineffective for failing to prove that Attorney Granados was ineffective for not giving a proper closing argument directing the jury’s attention to the petitioner’s innocence, and 23h, where he alleged that they were ineffective for failing to prove that Attorney Granados was ineffective for not negotiating a better plea bargain, for failing to convey pretrial offers to the petitioner, and for not fully explaining said offers, the elements of the various offenses, and the consequences for rejecting such offers and taking the case to trial. During oral argument, however, the petitioner conceded that he had failed to present sufficient evidence to support any of these claims. For the record, there was no evidence at all presented by the petitioner as to the evidence Attorney Granados could have highlighted or the arguments he could have made that would have allegedly highlighted his innocence, nor was there any evidence presented that any plea agreement was ever offered or rejected by the petitioner. The petitioner’s failure to present sufficient evidence in support of these claims is fatal. See State v. Hanson, 117 Conn.App. 436, 455, 979 A.2d 576, 589 (2009) (claims not properly briefed and analyzed will be considered to have been abandoned), and 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) (failure to present witnesses to testify in support of claim is fatal).
COUNT TWO
In Count Two, the petitioner alleges that Attorney Koch (4th habeas) was ineffective for failing to properly present, process and preserve the petitioner’s appellate rights following Judge Schuman’s decision in TRS-CV08-4002127. The following facts and circumstances are relevant to this claim. The evidence presented establishes that following the court’s decision, Attorney Koch assisted the petitioner in filing a petition for certification to appeal, and a request for waiver of costs and fees and appointment of counsel on appeal. Judicial records indicate these documents were received by the Court on December 20, 2011. On January 4, 2011, Judge Schuman granted the request for waiver of costs and fees on appeal, but denied the petition for certification to appeal and the request for the appointment of counsel on appeal. Notations in the Court record indicate that notice of these decisions were sent out to all parties on the same day. The next, and only other document in the Court file is a copy of a motion filed by the petitioner with the Appellate Court seeking review of Judge Schuman’s order denying him counsel on appeal, which is dated January 2012, nearly a year later. That motion was dismissed by the Appellate Court on February 29, 2012.
While not all of the evidence was elicited by the parties during the trial, the Court took judicial notice of the Court file in TSR-CV08-4002127 in order to piece together the record of events. See Arriaga v. Commissioner of Correction, 120 Conn.App. 258, 264, 990 A.2d 910, cert. granted on other grounds, 297 Conn . 928, 998 A.2d 1195 (2010) (Court has judicial discretion to take judicial notice of information contained in the official case record), and Wasson v. Wasson, 91 Conn.App. 149, 157-58, 881 A.2d 356, cert. denied, 276 Conn . 932, 890 A.2d 574 (2005) (The accuracy of official court files is generally considered to be beyond question).
"Faced with a habeas court’s denial of a petition for certification to appeal ... a petitioner can obtain appellate review of the dismissal of his petition for habeas corpus only by satisfying the two-pronged test enunciated by our Supreme Court in Simms v. Warden, 229 Conn. 178, 640 A.2d 601 (1994), and adopted in Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994). First, he must demonstrate that the denial of his petition for certification constituted an abuse of discretion ... Second, if the petitioner can show an abuse of discretion, he must then prove that the decision of the habeas court should be reversed on its merits." E.g., Mitchell v. Commissioner of Correction, 68 Conn.App. 1, 790 A.2d 463, 465 (2002).
The Court must first address that, at the close of evidence, petitioner’s counsel moved to orally amend this claim of the petition to confirm with the evidence to make this a claim that the petitioner’s due process rights were violated when Judge Schuman denied the application for appointment of counsel. Finding that the evidence presented generally by the petitioner— that a request for appointment of counsel was filed, ruled upon by the Court, notice of that decision was provided to all parties, and the petitioner then sought review of that decision by the Appellate Court— showed no arguable claim that "the process" was not followed, the Court denied the request to amend. Additionally, the Court found that the amendment would fail to state a claim upon which habeas relief could be granted, because it would require the habeas court to engage in appellate-type review of the factual or legal conclusions of another superior court judge, a power which the habeas court does not have.
"It is within the discretion of the trial court to grant or deny an amendment ... Lawson v. Godfried, 181 Conn. 214, 216, 435 A.2d 15 (1980)." Farrell v. St. Vincent’s Hosp., 203 Conn. 554, 562, 525 A.2d 954, 959 (1987).
"[I]n a habeas corpus proceeding the [habeas trial court] examines only the power and authority of the lower court to act and not the correctness of its conclusions. The order restraining one of his liberty cannot be collaterally attacked in habeas corpus proceedings for errors and irregularities not affecting the jurisdiction." United States v. Moore, 294 F. 852, 855 (2d Cir. 1923).
As to the claim of ineffectiveness against Attorney Koch, not only was there no credible evidence to support such a claim, but the petitioner’s own admission contradicts it. Although Attorney Koch assisted the petitioner in preparing and filing the petition for certification to appeal and the request for wavier of costs and fees, he testified that his involvement in the case, per his contract as assigned counsel through the Division of Public Defender Services, ended once he had done so. That information was corroborated by the testimony of Deputy Chief Public Defender, John Day, formerly the Director of Assigned Counsel for the Division of Public Defender Services. Most importantly, when asked about filing a request for review of Judge Schuman’s denial, the petitioner answered, "I knew I had to file something, because I had done that before." So, by his own admission, the petitioner was aware that he no longer had the assistance of counsel and, if a challenge to Judge Schuman’s decision was to be made, he needed to file it. Based on this information, the Court finds that Attorney Koch met his constitutional duties to the petitioner by helping him to file the initial forms to properly preserve his appellate rights. Strickland v. Washington, supra, 466 U.S. 690. Any failure to challenge the denial of the appointment of counsel, or to continue to preserve the right to appeal that decision, falls solely on the petitioner’s shoulders.
III. Conclusion
In closing, given the deficiency of evidence presented here, this court feels obligated to reiterate and adopt the words of Judge Schuman, where he said: "In his [fifth] and latest petition for writ of habeas corpus, the petitioner claims that all of his [three prior habeas attorneys] rendered ineffective assistance of counsel. Although the petitioner has now withdrawn some of these claims, it is nonetheless time to label this petition what it really is: an abuse of the writ." (Emphasis added.) Williams v. Warden, Superior Court judicial district of Tolland, Docket No. CV08-4002127 (Schuman, J., Dec. 13, 2010). Based on the foregoing, the petition for writ of habeas corpus is DENIED.
It is, however, important ... that the [j]udge be aware that there may be greater risk of prejudice from overintervention than from underintervention. While the judge should not hesitate to exercise his or her authority when necessary, the judge should avoid trying the case for the lawyers ... [I]t should be kept in mind that the [i]nterrogation of witnesses tends to assimilate the court’s role with the advocate’s, and may tread over the line separating the provinces of judge and jury ... There is the risk that the questioning [of witnesses] may bear the seeds of tilting the balance against the accused and place the judge ... on the side of the prosecution ... Prosecution and judgment are two quite separate functions in the administration of justice; they must not merge." (Emphasis added.)