Opinion
No. CV06-4001130
July 24, 2009
THE COURT: All right. We are back on the record regarding Mr. Asif's claim, Mr. Osman Asif v. the Commissioner.
Firstly, the Court wants to thank both counsel and the witnesses for an orderly presentation of the evidence.
And the Court has reviewed the entirety of the exhibits, the transcripts in evidence — that's Respondent's A1, A2, A3 — in addition to the testimony. And as is the Court's custom, I take very detailed notes while individuals are testifying and also have occasion to observe the witnesses who do testify, regarding their demeanor and quality of testimony.
With regard to this particular claim, the petitioner has set forth the essence of his claims in his amended petition dated May 8, 2009. The respondent has denied the claims of ineffective assistance of counsel in their return dated June 8, 2009.
With regard to this particular case, the petitioner has filed a writ of habeas corpus petitioning this Court to grant him extraordinary relief, to essentially put him in pre-plea status and — as was articulated by counsel today — to restore his appellate rights.
With regard to the law applicable to deciding this case, the law is well settled, and the Court will briefly summarize a few cases which certainly provide guidance in review of this claim.
In any claim for a petition for writ of habeas corpus, the petitioner must overcome a strong presumption that trial counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable, professional judgment, so the Appellate Court articulated in Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376; cert denied 275 Conn. 920, 2005.
A habeas petitioner can prevail in a constitutional claim for ineffective assistance of counsel only if he can establish both, one, deficient performance, and two, actual prejudice.
For ineffectiveness claims resulting from guilty verdicts, we apply the two-prong standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 1984.
For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 1985, which modified Strickland's prejudice prong. Quote, to satisfy the performance prong, the petitioner must show that counsel's representation fell below an objective standard of reasonableness. A petitioner who accepts counsel's advice to plead guilty has the burden of demonstrating that the advice was not within the range of competence demanded of attorneys in criminal cases.
The range of competence demanded is reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law. Reasonably competent attorneys may advise their clients to plead guilty, even if defenses may exist. A reviewing Court must review counsel's conduct with a strong presumption that it falls within the wide range of reasonable, professional assistance.
To satisfy the prejudice prong, the petitioner must show a reasonable probability that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. A reviewing Court can find against a petitioner on either ground, whichever is easier, Ricks v. Commissioner of Correction, 98 Conn.App. 497, 502-04, 2006; cert denied, 281 Conn. 907, 2007.
In Ricks, the Court went on to quote other language from Hill v. Lockhart, noting that reasonable probability to satisfy — strike that — noting as follows. To satisfy the prejudice prong, the petitioner must show a reasonable probability that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.
Reasonable probability does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome. And that is, again, from Ricks at Pages 503, 504, reviewing accepted principles from CT Page 18673 Hill v. Lockhart and Strickland.
The Court makes the following findings. The petitioner, Osman Asif, was a defendant in the Judicial District of Ansonia-Milford at Milford on criminal cases with Docket Nos. CR05-0055530 and CR05-0055215.
On June 14, 2005, while represented by Attorney Thomas McKirdy, the petitioner entered a guilty plea under the Alford doctrine under Docket No. CR05-0055530 to one count of larceny in the third degree, in violation of Connecticut General Statutes Section 53a-124.
On that same date, the Court finds that the petitioner also entered a guilty plea to a second count of larceny in the third degree, in violation of the same statute, under Docket No. CR05-0055215, again represented by Mr. McKirdy.
The Court finds that Mr. McKirdy accepted appointment as a special public defender to represent Mr. Asif on or about April 18, 2005. At the time he accepted appointment, Attorney McKirdy was employed as a per diem special assistant public defender, essentially on a full-time basis, without full-time health and other benefits. Nonetheless, he was working on a full-time basis representing individuals accused of crimes at the Milford GA/JD.
The Court notes that Attorney McKirdy graduated from the University of Connecticut in 1997 and from the Quinnipiac Law School in 2002.
At the time he accepted the appointment — the Court accredits Attorney McKirdy's testimony that he had represented some thousand individuals charged with various criminal offenses previously to today, where the Court had the occasion to observe the testimony of Attorney McKirdy.
Attorney McKirdy worked as a public defender for approximately three years, from 2003 to 2006. Prior to that, Attorney McKirdy was an intern with the Office of the Public Defender and also did an internship in the court system under some type of supervision with the Honorable Judge Eddie Rodriguez.
Mr. McKirdy has also worked in the private practice of law, having been employed by Attorneys Moynahan, Broderick, et al., and at present is employed with the law firm of Depanfilis Vallerie and apparently has continued his practice of the criminal law, among other areas, at present.
This Court finds that upon obtaining appointment to represent Mr. Asif, Attorney McKirdy obtained copies of information available in the state's file through the open-file policy then in use at the Milford GA. He was provided copies of witness statements, an affidavit accompanying an arrest warrant or warrants, and essentially, copies of the evidence or documents summarizing the evidence against Mr. Asif.
The Court finds that Attorney McKirdy reviewed said evidence, met with his client, Mr. Asif, on a number of occasions, mostly at the court in Milford. In addition, Attorney McKirdy communicated with Mr. Asif through other means. In the course of meeting with Mr. Asif and talking with Mr. Asif, this Court finds that Attorney McKirdy developed a defense strategy.
The Court accredits the testimony of Attorney McKirdy that he did not perceive any need to request a competency evaluation of Mr. Asif from the time he represented Mr. Asif to the moment that concluded, and Mr. McKirdy's representation apparently ended when a second attorney, an Attorney Mastronardi, filed in lieu of Attorney McKirdy.
And in the course of his representation, Attorney McKirdy had a number of occasions to observe the demeanor and the lucidity of Mr. Asif. Indeed, this Court had occasion to observe same while Mr. Asif testified in this court.
The Court accredits the testimony of the attorney that at no time was there a concern on the part of the attorney that Mr. Asif either did not understand the nature of the charges against him, or second, could — assist in the defense of the criminal charges with his attorney, those two elements, of course, being the requirements of competency under our law.
Indeed, the Court accredits the testimony of Attorney McKirdy that at no time did he consider requesting an examination pursuant to Connecticut General Statute Section 54-56d, which calls for an evaluation of an accused for competency purposes.
This Court has mentioned it had opportunity to observe Mr. Asif today, and as of this moment, Mr. Asif is lucid, attentive, actually engaging, looking both me and all counsel in the eye when responding to questions, and appears in no apparent physical or emotional distress.
The Court accredits Mr. Asif's own testimony that he had a high school education while in Pakistan and entered the armed forces in the late `90s, at which point he had a physical and psychological exam, both of which he passed. The Court notes that Mr. Asif, while in the service, did serve as an electronics aviation technician in the United States Navy.
There is a general presumption of competency, and but for any meaningful reason to further inquire, this Court finds there was no bases to suggest that Attorney McKirdy was deficient in any way for not having raised, let alone explored, any issue of incompetency.
The Court further finds that the attorney actively engaged in pretrial plea negotiations on behalf of Mr. Asif, met with Mr. Asif, as has been stated, and in that time, Mr. Asif communicated with his counsel about a theory of defense.
Essentially, the petitioner was charged with a number of larceny-related offenses, including an original charge of larceny in the first degree which stemmed from an alleged wrongful taking of value in connection with fraudulent debits credited back to credit cards or credit card issued to Mr. Asif while employed with a jeweler — and the Court will later summarize the factual basis for the guilty pleas — that had the matter proceeded to trial, a finder of fact would more likely than not have found certain facts.
But the Court accredits the attorney's testimony that the victims and complainants, as well as the petitioner all were in some type of relationship — personal or business — which was complicated, but the state claimed, nonetheless, constituted evidence of criminal activity.
The Court finds that as a result of plea negotiations, the petitioner was, in fact, offered and declined an initial plea offer of twenty years to serve on a larceny offense. Both Attorney McKirdy and Mr. Asif described the offer as ridiculous.
And the Court finds there was a second plea offer extended by the representative of the State's Attorney's Office at Milford which involved twenty years, suspended after ten, with five years probation. Ten years to serve.
The Court finds further that on or about June 7 of `05, as a result of discussion with the Honorable Patrick Carroll, that Judge Carroll gave a Court-indicated sentence of ten years, suspended after five, with five years probation. The petitioner requested and received a brief continuance of one week to consider the offer.
The Court does accredit the testimony of Mr. Asif that he would like to have had a longer period of time, but Judge Carroll's view, as borne out by the transcripts, was that one week was sufficient; hence, Judge Carroll scheduled the matter for what is called an accept-or-reject date of June 14, 2005.
In evidence is the transcript of that day's proceedings which reflect, by definition, on-the-record discussions. The Court reviewed in detail and carefully the substance of that transcript which did detail the guilty pleas to the two counts of larceny in the third degree.
What is clear as a result of the review of the transcript is that upon entering the plea of guilty, Judge Carroll thoroughly and in accordance with law canvassed the petitioner not only on the factual basis for the pleas of guilty and all of the rights which Mr. Asif was waiving, including his right to continue to not — rather, his right to continue to plead not guilty, his waiver of a right to trial by jury, and his waiver of his right to cross-examine witnesses.
Very significantly, in colloquy with the Court, Mr. Asif indicated on that date full understanding as to the nature of the plea offer, and this Court should make clear the offer was ten years — a total effective sentence of ten years to — suspended after five years as a cap, with a five-year period of probation, with a right to argue for a lesser sentence following a pre-sentence investigation, which would involve an interview with the petitioner.
And Judge Carroll specifically made available time for the petitioner's mother and family members and witnesses and others to come from abroad, Pakistan presumably, and appear in court, which, in fact, they did at the sentencing of September 2nd of `05.
It is notable that the transcript in evidence, Respondent's A-2, reflects what can be described as a degree of apprehension on the part of the petitioner about understanding the nature of the accept or reject date; and I'm referencing, specifically, Judge Carroll's clear admonition to the petitioner that if the offer was not accepted on that date, June 14 of `05, the offer would be withdrawn, not renewed, and the amount of jail time would likely go up.
There was an appropriate recess, during which time the petitioner had opportunity to further discuss the ramifications of this plea with his attorney. This Court finds he had been made available that opportunity.
Thereafter, at Pages 8, et al. of Respondent's A-2, court was back in session, and notably, at Page 6, in colloquy with Judge Carroll, Mr. Asif does express some confusion in the following exchange, beginning at Line 4.
The defendant — of course, Mr. Asif at the time — "The only thing I was confused about was the ten thing because I thought it was ten years sentence and I'd do five and then five year probation."
Line 8, the Court, Judge Carroll responds, Sounds like you got it right. It's a ten year, suspended after five. You are on probation for five years. If you violate your probation, you have five years hanging over your head. That's at Page 6 of A-2.
Accrediting the petitioner's own comments, I thought it was ten years, and I'd do five, this Court infers that language to indicate an understanding on the part of Mr. Asif that he was to do a cap of five years in jail. Indeed, Mr. Asif testified to as much today.
Point of fact, there's a lot of conflicting internal testimony on the part of Mr. Asif, where clearly, he claims in his petition — and at times in his testimony — he did not appreciate the offer was ten years, suspended after five years jail or incarceration, with a five-year period of probation, while at the same time referring back that he understood the offer to be ten years in jail, suspended after five years to serve, with five years probation.
Back on the record, Judge Carroll very carefully and thoroughly elicited affirmative responses to his questions regarding his canvass.
In addition to Judge Carroll, the prosecutor, Assistant State's Attorney Hurley, makes clear on the record, when asked to comment. So it's clear to him — at Page 9 of Respondent's A-2 — the offer is ten years, suspended after five as a cap, with Mr. McKirdy reserving the right to argue for a lesser sentence and the PSI.
Page 11. Judge Carroll asks the accused if he's had any alcohol, drugs, anything that would affect his ability to understand, to which he responded, No.
Judge Carroll asked if he had enough time to speak with his attorney — about your cases and, quote, your decision to enter these pleas. Answer, Yes, sir.
At page 11, the Court continues, Did you specifically discuss with him all the evidence the state claims it has to show that you were involved in these matters? His answer, at first, Sorry, sir; I didn't really get that.
The Court goes on, talks about some details of the amount of the fraud. The state's claim is that the amount of the fraud constituted in excess of 10,500. And the attorney — during the canvass — chimes in and asks, The question is whether or not we discussed it. And the defendant responds, on the record, Yes, sir.
The Court — at the bottom of Page 12 at Line 20 — Did you further discuss with Mr. McKirdy the nature and the elements of the two offenses to which you have just entered your pleas of guilty under the Alford doctrine? And the Court goes on to talk about the maximum penalties.
And the defendant's response at Page 13 is, Yes, sir.
Are you satisfied with Mr. McKirdy's representation?
The defendant responds at Line 10, Page 13, At this point; yes, sir.
Judge Carroll, picking up on the last comment states, Well, you seem to be qualifying that. He's negotiated this disposition for you, which is significantly less than the maximum exposure on the original charges.
So I'm going to ask you again. Are you satisfied with the representation that Mr. McKirdy has provided you in these matters?
Response: Yes, sir.
The Court goes on to canvass the defendant regarding all the rights he is waiving, to which he responds, Yes, acknowledging that he understands that.
The Court — between Pages 13 and 15 — specifically comments about the petitioner's federal status — at the time, apparently on some type of military parole — and very significantly, as is standard, questions the defendant at Page 15 about his citizenship and immigration potential consequences.
At Line 2, Page 15. You should be aware of the fact that if you're not a citizen of the U.S., conviction of the offenses with which you have been charged may have the consequence of deportation, exclusion from admission to the United States, or denial of naturalization, all pursuant to the laws of the United States of America. Do you understand that?
Answer: Yes, sir.
Has anyone threatened you or forced you in any way to cause you to enter these pleas?
Answer: No, sir.
Are you entering the pleas voluntarily? Is that correct?
Yes, sir.
Then the Court — and it bears reading — recites the standard canvass regarding the Alford doctrine, which arose from North Carolina v. Alford.
And you have entered the pleas under what is known as the Alford doctrine. By doing so, you are telling me that you dispute some of the facts as alleged by the state, but you acknowledge that the state likely has enough evidence to convict you of these offenses.
And you have made a determination after discussion with Mr. McKirdy that it is in your best interest to accept the dispositions that have been offered today rather than risking going to trial and facing a possible greater sentence. Is that correct?
Answer: Yes, sir.
The Court goes on to note that the agreement is for a ten-year suspended sentence after service of five years, followed by five years of probation. And in somewhat unusual detail, following Page 16, Judge Carroll goes on to explain what a right to argue for less means and can be summarized at the top of Page 17.
I will impose a sentence that will not be greater than ten years, suspended after service of five years, followed by five years of probation. Is that your understanding of the offer?
Answer: Yes, sir.
The judge indicates he will listen to witnesses, hear what the attorney has to say at sentencing, with the hope that something less may be imposed, something less than the five years, that there will be a PSI, a full background check, criminal history, including military and history regarding any federal status. The petitioner acknowledges understanding of that.
Mention is made in another unusual circumstance — which evidences that Attorney McKirdy was aware of the possibility of another lawyer representing Mr. Asif, although not mentioned at that time.
But Attorney McKirdy notes — and the judge acknowledges — in several instances that hiring another attorney will not result in a withdrawal of the guilty plea. And the judge notes that the plea will not be withdrawn — unless there is some legal reason to do so — once it is accepted.
Page 20, Line 23, the Court asks, Is there anything that I've said today that you do not understand, to which the then defendant responded, No, sir; everything. I got it.
Do you need anymore time to talk to Mr. McKirdy about anything?
Top of Page 21, No. No, sir.
The Court makes the finding that the plea is knowingly and voluntarily made, with adequate assistance of counsel, with a factual basis, and all of the other standard findings of a constitutionally and legally sufficient plea of guilty. The matter thereafter was continued for sentencing.
If this matter proceeded to trial, this Court finds that a finder of fact would likely have found the following: that Mr. Asif sometime between August and October of 2004 and then again in February of `05 was employed at a location known as Michael Matthews Jewelry Store at the Connecticut Post Mall in Milford, and at that time, the owner discovered a variety of abnormal refunds, all being credited to Mr. Asif's credit card.
After doing an inventory and discovering numerous pieces of jewelry missing and charge-backs, there was further investigation. Paperwork was found in a car abandoned at JFK Airport in New York, including Michael Matthews Jewelry Store receipts, credit card applications for customers, driver's license, copies of credit cards. The information led authorities back to bank accounts over which Mr. Asif had control.
At the time, the Federal Bureau of Investigation apparently had a file on Mr. Asif, his having served in the military and having received a bad conduct discharge on or about 2001 involving some type of fraud or felony larceny case involving value in excess of fifty-thousand dollars. Restitution was not deemed probable.
The Court finds on September 2, 2005, the petitioner was sentenced under Docket No. CR05-0055530 to a term of imprisonment of five years, suspended after serving two years, with a five-year period of probation upon a conviction of larceny in the third degree.
The Court further finds that on that same date, the petitioner was sentenced under Docket No. CR05-0055215 on a second charge of larceny in the third degree to a term of imprisonment of five years, suspended after two years to serve, five years probation; those sentences to run consecutively, for a total sentence imposed by Judge Carroll in the amount of ten years, suspended after serving four years state's prison, with five years probation.
The petitioner avers specifically that Attorney McKirdy did not conduct sufficient investigation into the petitioner's case. This Court finds that claim to be unproven. The Court accredits the testimony of both the attorney and Mr. Asif with regard to the petitioner being provided a copy of at least the affidavit or affidavits accompanying the arrest warrant.
The Court accredits the attorney's testimony that he described the evidence against Mr. Asif, the elements of the offenses for which he was charged and for which he pled guilty, and discussed meaningfully any defenses and strengths and weaknesses in terms of going to trial. The Court does not accredit the testimony of Mr. Asif regarding the claimed deficiencies.
Other than providing with — him with a copy of the affidavit, Mr. Asif claims that Mr. McKirdy did not provide any meaningful representation, and the Court finds the testimony not credible. The Court does take into consideration Mr. Asif's prior larceny history in evaluating his credibility.
Uncharacteristically, Mr. Asif, when questioned by the Court, turned in his chair and looked the Court right in the eye, and for that, he is commended. That notwithstanding, to accept Mr. Asif's version of the time period during which he was represented by Mr. McKirdy would paint Mr. McKirdy as about the most willful defense attorney and certainly deficient in every way.
Where the petitioner claims so numerous deficiencies, it defies logic, but what's clear from this Court in review — not only the testimony by the attorney and Mr. Asif, when looking at the transcripts which are in evidence, the transcripts reflect a very vigorous, involved attorney on the part of Mr. McKirdy, making clear of the process on the record.
The petitioner has made a claim of insufficient investigation and in doing so has advanced theories involving documents which may have been in the possession of his mother. Suffice to say, where the petitioner makes a claim of deficiency premised upon a failure to investigate, it is incumbent upon the petitioner to establish, quote, what benefit additional investigation would have revealed, end quote. That's from Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 2001.
It is not enough for the petitioner to merely allege that some nebulous documents which may reflect transactions involving his credit card or restitution might benefit him in some way. There has been no showing here that any such documents would have in any way favored the petitioner.
The Court accredits the testimony of Attorney McKirdy that he met with the petitioner's mother, albeit after the guilty plea, and no such documents ever came forth to counsel for the petitioner.
In addition, it has not been shown whether if any witness besides the mother may have been consulted or called or investigated what the substance of any testimony would be of any witness likely to favor the petitioner in some way to indicate to this Court that the probability exists to conclude that there lacks confidence in the outcome here on these pleas of guilty.
The Court finds insufficient any proof that any defense of extreme emotional defense or disturbance or diminished capacity could have in any way been advanced here based upon what was then known or should have been known to the trial attorney.
And this Court has heard no evidence about whether any such defense would have been fruitful to affirmatively defend the larceny charges for which he was either charged or pled guilty. That pretty much summarizes the allegation in Paragraph 8 at Page 2 of the petitioner's amended complaint.
Paragraph 9, the petitioner alleges that trial counsel did not conduct sufficient investigation into witnesses available to support petitioner's potential defenses. For the reasons already addressed, this Court finds insufficient proof of deficient conduct or prejudice to the petitioner.
Paragraph 10 alleges that trial counsel did not adequately advise petitioner concerning the elements of potential affirmative defenses available to the petitioner. The Court — having concluded that there was no particular affirmative defense, let alone extreme emotional defense, which would likely have favored the petitioner in any way, the Court finds no deficiency on the part of trial counsel.
The Court accredits the trial attorney's conclusion, and there is comments by Judge Carroll on the record in regard to issues involving paperwork which may respect the issue of restitution, and this Court concludes that the petitioner is confusing the issue of potential mitigation with an issue of defense as it was stated by trial counsel, that any paperwork regarding potential payments by a family member to the victims might go toward mitigation, but certainly does not address the underlying defenses in the time period for the crimes to which he pled guilty.
Paragraph 11 alleges that trial counsel did not conduct sufficient investigation into the evidence the state would likely rely upon to support the charges. This allegation, as well as the allegation in Paragraph 10, are unproven.
This Court accredits the testimony of Attorney McKirdy that he reasonably consulted an individual, a Mr. Jaffey — whom the attorney viewed as an agent of the mother or family who was in the United States — and pursued all reasonable investigative leads provided him by his client during the time he represented Mr. Asif.
There has been no evidence that had any particular witness or investigation been conducted, again, that in some way would have affected favorably Mr. Asif in a way to conclude the habeas corpus petition should be granted.
Paragraph 12 alleges that the petitioner's counsel did not adequately advise the petitioner concerning the evidence the state would likely rely upon to support the charges. This Court finds that to be unproven.
By the petitioner's own testimony, a copy of the affidavit was provided to him. In addition, the Court and the state's attorney recited the evidence against the petitioner, and the Court does accredit trial counsel's testimony that he discussed over and over and over again — to use the trilogy of overs — the nature of the evidence which the state had against Mr. Asif.
The Court also accredits the trial attorney's determination that in all probability, the state would obtain a conviction had Mr. Asif proceeded to trial. The Court accredits the testimony of Mr. McKirdy that it was always possible there would be an acquittal.
But the Court attaches more weight to the conclusion that in all probability, not only would conviction result from trial, but a longer sentence than that offered — and potentially, twenty years — could result by a sentencing judge upon conviction of the larceny offenses. The Court finds no deficiency in trial counsel's representation or advice to the petitioner in those regards.
The Court finds specifically that the decision to enter the pleas of guilty under the Alford doctrine were the petitioner's and the petitioner's alone. This is made clear by the canvass. This is made clear by the exchange, which was meaningful, between the Court and Mr. Asif at the time of the plea proceedings.
This Court finds that counsel did apprise the petitioner of the elements of the crimes for which he had been charged.
Paragraph 14 alleges that trial counsel did not adequately consult or advise the petitioner regarding the status of plea negotiations, the plea agreement described above; and the allegation goes on. But I'll address those first two aspects.
What is apparent from both the testimony of Attorney McKirdy and Mr. Asif is that not only did Mr. McKirdy aggressively pursue negotiations, but did so with success, moving the state from a twenty-year offer to twenty suspended after ten, to ten suspended after five and kept the petitioner apprised all along.
And it's clear to this Court that the petitioner was always vocal and vigorous in his involvement in his defense and communications with the Attorney McKirdy.
The Court will note that throughout this proceeding, Mr. Asif has been actively involved in his case as the plaintiff, taking notes, conferring frequently in on-the-record and off-the-record discussions with Attorney Juniewic and leave this Court to believe that he fully understands what's happening here today; and the Court can reasonably infer he was in no impaired state at the time of the pendency of his charges and the plea and sentencing on the eventual charges which bring him here today.
It is alleged further — and lastly — in Paragraph 14 that the attorney did not advise the petitioner of the consequences of accepting the plea agreement. This particular allegation is quite broad.
And this Court recognizes that our Connecticut Supreme Court — and I apologize because I do not recall the name of the case — but counsel was in here yesterday, Attorney Conrad O. Seifert — wherein the Connecticut Supreme Court said collateral consequences such as immigration, deportation is not something that trial counsel is required to advise an individual of, but indeed, the Court canvassed Mr. Asif on potential immigration consequences as a result of entering the plea agreement.
Regarding the issue of appellate rights, this Court — in ruling on permitting the question at the time of examination — did not rule and did not so find that that allegation is necessarily pled or subsumed under Paragraph 14.
As a practical matter, even if the petitioner were advised of his right to appeal guilty pleas under the Alford doctrine, this Court finds there has been no evidence of any motion to withdraw a plea of guilty. There would essentially be no need to advise of a right to appeal the plea given that particular procedural framework, but the Court is not necessarily making any findings regarding any aspect of claimed failures to advise of appeal rights.
This Court does not find that particular claim to be pled in this petition, and under the language of Lebron v. Commissioner, the Court is making no conclusions regarding any claims in that regard, theoretically leaving that door open, I presume, for another day, potentially.
The Court would note, somewhat gratuitously, anecdotally, if the same analysis we're to obtain regarding appellate counsel's claimed failure, one would think it would have to be shown that any appeal would be successful under the case of Small v. Commissioner.
And I cannot imagine, again, somewhat gratuitously, any particular appeal being successful, given what I consider a bullet-proof canvass on the part of Judge Carroll regarding the firmness and validity of the guilty plea canvasses on June 14 of 2005. Hence, this Court concludes that the allegations in Paragraph 14 are unproven.
Paragraph 15 alleges that petitioner's counsel exercised undue influence on whether to accept the plea agreement and assert his right to trial, thereby depriving petitioner of his right to trial. This Court finds that particular allegation baseless and unproven.
This Court finds that the attorney kept the client informed of all aspects of his case and his prospects about going to trial, strengths and weaknesses, and again, it was the petitioner's decision and his alone — as borne out by the evidence today and also in the transcripts — to plead guilty.
The Court accredits the petitioner's own testimony. He's approximately 31 years of age today. At the time he entered his pleas, he was 28, had served time in the military, and although he sought his mother's consultation and desired same prior to entry of the plea, certainly, under the law, that was not required.
But even in the absence of motherly advice, what occurred on June 14 cannot be said to be the result of any undue influence on the part of the attorney.
Paragraph 16 alleges that the attorney's conduct was not competent, and this Court does not find that allegation proven.
Paragraph 17 alleges that the petitioner's confinement is illegal. For all of the foregoing reasons, this Court finds that to be unproven.
And for the foregoing reasons, the Court is denying the petitioner's petition for writ of habeas corpus and will note also — well — that petitioner may be advised of his appeal rights. I'm requesting the clerk prepare notice of his appeal rights. Hand same to the Marshal.
Marshal may hand them to counsel for the petitioner.
I'm requesting a transcript of this ruling be prepared and will constitute a memorandum of decision, which I will sign off on.
And with that, this matter is concluded. Court stands adjourned until 10 a.m. Monday morning.
(The matter was concluded, and court was adjourned for the day.)