Opinion
No. CV 01-0807849
March 12, 2008
MEMORANDUM OF DECISION ON WRIT OF HABEAS CORPUS PETITION
The instant matter has a tortured procedural history. On May 9, 2001, petitioner initiated the instant matter by way of a pro se petition for a writ of habeas corpus filed in the judicial district of Hartford. The petitioner alleged ineffective assistance by appellate counsel, attorneys Kenneth Simon and Susan Brown. After the court granted a motion for appointment of a special public defender, attorney Patrice Cohan filed her appearance on October 10, 2001. At that time, attorney Cohan also represented petitioner in a separate habeas corpus matter (docket number CV93-0001665) pending in the judicial district of Tolland, which alleged ineffective assistance by attorneys Simon and Brown in their capacity as trial defense counsel. Attorney Cohan filed an amended petition on May 28, 2002, which alleged ineffective assistance of appellate counsel attorney Simon for failure to challenge the petitioner's untimely arraignment.
Then, on July 5, 2002, as the matter was proceeding to trial, attorney Cohan filed a motion to withdraw her appearance due to health reasons, which was granted on July 15, 2002. The matter was thereafter referred to the Office of the Chief Public Defender for the appointment of substitute counsel. Attorney Paul Kraus filed his appearance in this matter on August 21, 2002, prior to the court on September 4, 2002 granting the motion to appoint him.
On May 14, 2004, attorney Kraus filed a second amended petition (petition), which remains the operative complaint. The petition raises claims in four counts: first, unreasonable seizure and a violation of due process of law; second, ineffective assistance of habeas counsel; third, ineffective assistance of trial counsel; and fourth, ineffective assistance of trial appellate counsel. Respondent's amended return (return) denies petitioner's material allegations, raises procedural default as a defense to the claims in counts one and two, asserts that count two fails to state a claim upon which habeas corpus relief may be granted, and avers that count three is a successive claim. Next, the matter was transferred from the judicial district of Hartford to the judicial district of Tolland, effective May 24, 2004.
Petitioner then sought to dismiss attorney Kraus. On August 11, 2005, petitioner filed a motion to dismiss appointed counsel premised on a conflict of interest, as well as a motion asking the court to find that a conflict of interest existed. Both motions were denied, the former by Fuger, Jr., J., and the latter by T. Santos, J. Thereafter, the trial did not proceed due to multiple continuance requests by attorney Kraus.
On November 21, 2006, attorney Kraus filed a reply to the return. The reply denied the respondent's allegations in the return ". . . and allege[d] the following facts constituting cause and prejudice claimed to permit review of the issues in his Second Amended Petition, dated May 14, 2004, despite any claimed procedural default, all of which facts are contained in his Second Amended Petition: (1) [T]he petitioner has brought no prior petitions seeking the same relief based upon the same factual and legal theories as are brought in this petition; and (2) the petitioner's failure to have brought a claim on this factual and legal basis in any prior proceeding is due to the ineffective assistance of counsel."
The matter next came before the court on November 24, 2006, for the trial on the merits. Instead of proceeding to trial, attorney Kraus made an oral motion to the court to be released from his appointment to represent the petitioner. The court (Fuger, Jr., J.) granted the motion to withdraw and ordered, furthermore, that the petitioner shall not be appointed substitute counsel, although he could represent himself pro se or hire private counsel using his own resources. The trial was continued to March 7, 2007, although the matter did not proceed on that date.
Instead, on May 10, 2007, the petitioner filed a motion to transfer the instant habeas corpus matter back to the judicial district of Hartford. The petitioner stated as reasons for the transfer the following: Experiencing undue racial and personal prejudice in the judicial district of Tolland; after the two appointed special public defenders were allowed to withdraw, that no further attorneys would be appointed, in part because petitioner had previously filed a petition for a writ of mandamus against a judge in the judicial district of Tolland; and that the petitioner would be more likely to ". . . have someone of his own peer to judge, prosecute, or represent him in the judicial district of Hartford or New Haven." On June 5, 2007, the court (Fuger, Jr., J.) denied the motion to transfer.
On July 23, 2007, the petitioner renewed his efforts to have counsel appointed. The petitioner did not seek representation by counsel; instead, the petitioner requested the appointment of standby counsel. Judge Fuger, Jr., denied said motion on July 25, 2007. After the granting of continuance requests made by respondent's counsel, the matter ultimately proceeded to a hearing on the merits.
The matter came before this court on August 28, 2007 and November 29, 2007, for a trial on the merits. The court heard testimony from petitioner, his trial attorneys, Susan Brown and Kenneth W. Simon, his appellate attorney, Kenneth W. Simon, his habeas corpus attorney, Patrice Cohan and Rubie Moore, record keeper for the Hartford Police Department. The court also received documentary evidence consisting of transcripts, a copy of a subpoena, transmittal of a final proposed decision from the Freedom of Information Commission, two amended petitions, petitioner's appeal and appellate brief and the state's appellate brief. After reviewing the evidence, the court finds no merit to the petitioner's claims.
Findings of Facts
The petitioner was a criminal defendant in the Judicial District of Hartford at Hartford. He was charged in docket number CR02-54832 with attempted murder, in violation of General Statutes §§ 53a-49 and 43a-54a; attempted assault on a police officer, in violation of General Statutes §§ 53a-49 and 53a-167c; criminal use of a firearm in violation of General Statutes § 53a-215; interfering with a police officer, in violation of § 53a-167a; carrying a pistol without a permit in violation of § 29-35; unlawful discharge of a firearm in violation of § 53-203; and larceny in the sixth degree by possession in violation of § 53a-125b.
The charges relate to an incident followed by a motor vehicle stop on September 6, 1988 that occurred on Blue Hills Avenue and East Euclid Street in Hartford. During the motor vehicle stop and ensuing pursuit, the petitioner was shot by a Hartford police officer.
The petitioner was taken to Mount Sinai Hospital in Hartford for medical treatment. While in the hospital recovering from the gunshot wound, the petitioner was restrained to a bed and a Hartford police officer was stationed at the door of the hospital room. The petitioner testified that he was under arrest while recovering at the hospital. The petitioner alleges that his arrest violated the fourteenth amendment to United States constitution and article first, §§ 7, 8 and 9 of the Connecticut constitution.
The petitioner was arrested on the charges on September 17, 1988 and arraigned on the following day, September 19, 1988. The petitioner entered pleas of not guilty to the charges and elected a jury trial. Jury selection began on February 6, 1990. The state began presenting evidence to a jury of six on February 21, 1990. The case was tried to a jury before Miano, J.fn1
On March 2, 1990 the petitioner was convicted by the jury of attempted assault in the first degree in violation of §§ 53a-49(a)(2) and 53a-59(a)(1); attempted assault on a police officer in violation of §§ 53a-167(a)(1) and 53a-49(a)(2); interfering with a police officer in violation of § 53a-167a(a); and carrying a pistol without a permit in violation of § 29-35.
The petitioner challenged his representation by attorneys Simon and Brown in the matter docketed as CV93-0001665 in the judicial district of Tolland. The petitioner was represented by attorney Cohan in that matter. The petitioner there alleged that ". . . he was denied effective assistance of counsel at trial and sentencing because his trial attorneys failed (1) to conduct a proper pretrial investigation that would support impeachment of a witness' testimony, (2) to file a motion to suppress the petitioner's confession on the ground that the confession was obtained involuntarily, (3) to have the petitioner's clothing tested for the presence or absence of gunpowder residue and (4) to proffer expert testimony regarding the ability of a rusty weapon to fire ammunition." Bewry v. Commissioner of Correction, 73 Conn.App. 547, 548, 808 A.2d 746 (2002), cert. denied, 266 Conn. 918, 837 A.2d 801 (2003). The Appellate Court, in a per curiam decision, affirmed the habeas court's judgment denying the petition.
The criminal case tried before Judge Miano was appealed in State v. Bewry, 24 Conn.App. 823, 588 A.2d 1090 (1991) ( per curiam), and was the subject of count two of the matter adjudicated before Barry, J.T.R. and appealed in Bewry v. Commissioner of Correction, 73 Conn.App. 547, 808 A.2d 746 (2002), cert. denied, 266 Conn. 918, 837 A.2d 801 (2003).
Additional facts will be discussed as necessary.
Discussion of Law I. Procedural default and other defenses
The respondent has raised the affirmative defense of procedural default as to the petitioner's claims in counts one and two.
In count one, petitioner alleges that he was the subject of an unreasonable search and seizure, and that he was deprived of his right to due process of law. The claim in count one is premised on the factual allegations that petitioner was shot by police and taken to Mount Sinai Hospital in Hartford. There the petitioner lost consciousness shortly after his arrival, regained consciousness that same day, but woke up in four-point restraints with a police officer stationed at the door. According to the petitioner's allegations, he was under arrest starting September 6, 1988, because his liberty was restrained, but was not arraigned until September 17, 1988.
In count two, petitioner raises a claim of ineffective assistance of habeas counsel, attorney Cohan, for failure to raise the claim that is averred in count one of the instant petition in the prior habeas or on appeal.
"When a respondent seeks to raise an affirmative defense of procedural default, the rules of practice require that he or she must file a return to the habeas petition alleg[ing] any facts in support of any claim of procedural default . . . or any other claim that the petitioner is not entitled to relief.
Practice Book § 23-30(b). If the return alleges any defense or claim that the petitioner is not entitled to relief, and such allegations are not put in dispute by the petition, the petitioner shall file a reply. Practice Book § 23-31(a). The reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default. Practice Book § 23-31(c).
"In discussing the principles that govern review of a respondent's affirmative defense that a habeas claim is procedurally defaulted, [the Supreme Court] ha[s] recognized that, as a general rule, [t]he appropriate standard for reviewability of habeas claims that were not properly raised at trial . . . or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . [T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate's procedural rule . . . [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . or . . . some interference by officials . . . would constitute cause under this standard . . . A court will not reach the merits of the habeas claim when the petitioner fails to make the required showing . . ." (Internal citations and quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 567-68 (2008).
The petitioner's reply asserts as cause and prejudice that he has brought no prior petitions seeking the same relief based upon the same factual and legal theories as are brought in the instant petition. The reply also emphasizes that these facts are contained in the second amended petition. Additionally, the petitioner also alleged that the failure to previously raise the claim is due to ineffective assistance of counsel.
The court first underscores the petitioner's total failure to comply with Practice Book § 23-31(c). That section requires that a ". . . reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default. The reply shall not restate the claims of the petition." (Emphasis added.) Petitioner's asserted cause and prejudice contravene the Practice Book requirement that the claims of the petition shall not be restated as cause and prejudice. The claim that the petitioner's failure to have previously brought the claim is due to ineffective assistance is a reformulation of claims asserted in other counts. Lastly, as to the assertion that petitioner has never raised the claim before, the court finds such assertion fails to meet the threshold of being a factual allegation cognizable as cause. The court finds, therefore, that petitioner has procedurally defaulted as to the claims in count one.
The return also raises procedural default as to the claim in count two, which alleges ineffective assistance of habeas counsel by attorney Cohan. The presence of this claim in this matter is somewhat bizarre. Attorney Cohan, who was predecessor counsel in this matter and also represented petitioner in CV93-0001665 in the judicial district of Tolland, filed an amended petition in this matter raising the very claim petitioner now asserts she failed to raise in Tolland. Successor counsel, attorney Kraus, filed a second amended petition containing a restatement or reformulation of the identical claim raised by attorney Cohan in her amended petition dated May 23, 2002, and filed with the court on May 28, 2002.
The court notes that petitioner initially was represented by attorney Cohan in both the Tolland and Hartford matters. Attorney Cohan filed an amended petition on May 28, 2002, which alleged precisely what petitioner alleged in count one of the second amended petition.
Ineffective assistance of habeas counsel is a well-established claim. See, e.g., Lozada v. Warden, 223 Conn. 834, 842-43, 613 A.2d 818 (1992). Petitioner here has never previously raised a claim of ineffective assistance of habeas counsel. Accordingly, he is neither procedurally defaulted nor is such a claim barred by the doctrine of res judicata.
The task of proving such a claim, however, has come to be described as "herculean." Id., at 843. Petitioner's task here is better described as monumentally surreal or absurd. Attorney Cohan represented petitioner in both the Tolland and Hartford matters. She litigated the petitioner's matter in Tolland, which went to judgment prior to her withdrawal from the Hartford matter, and filed an amended petition in this instant matter before her withdrawal raising the very claim the petitioner now alleges she should have raised in Tolland.
Judge Barry rendered judgment in CV03-000 1665 on October 2, 2001. Attorney Cohan filed her amended petition in the instant matter on May 28, 2002, and her motion to withdraw on July 5, 2002. Interestingly, petitioner initiated the instant matter on May 9, 2001, while CV93-0001665 matter was pending, almost five months before Judge Barry rendered judgment. Given the existing claims against attorneys Simon and Brown in CV93-0001665, the operative complaint could have been amended to incorporate the claims raised via this petition. Another alternative would have been to transfer the case docketed in Hartford to Tolland, so that the cases could either be consolidated or companioned for trial.
Petitioner here in essence is faulting attorney Cohan for representing him in two separate matters, fully litigating the case in Tolland while proceeding with petitioner's case in Hartford, being permitted to withdraw from the instant matter due to health reasons, and then calling her performance deficient for not raising the instant claim in CV93-0001665. Had attorney Cohan not been permitted to withdraw due to health reasons and continued to represent petitioner, she would have represented the petitioner on the claim he now asserts she was ineffective in not raising. The court concludes, based on the foregoing, that the claim of ineffective assistance of habeas counsel is both specious and totally lacking in merit.
The respondent's return also raises a defense to count three. Count three claims ineffective assistance of trial counsel for attorneys Simon's and Brown's failure to raise the timely arraignment issue in pretrial proceedings or during or after trial. The defense to this claim is that it is successive, for petitioner litigated various ineffective assistance of counsel claims in CV03-0001665. Essentially, the respondent is invoking the doctrine of res judicata.
"[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties] on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it." (Internal quotation marks omitted.) Brown v. Commissioner of Correction, 44 Conn.App. 746, 749, 692 A.2d 1285 (1997).
Petitioner's claims in CV03-0001665 were claims of ineffective assistance of trial defense counsel, attorneys Simon and Brown. The petitioner had a full and fair opportunity to litigate his claim at that time. This court cannot conclude, however, that res judicata applies given the specific facts and procedural history of this case. The petitioner was simultaneously raising claims directed at attorneys Simon and Brown in two distinct petitions pending in different jurisdictions. See footnote 4, infra. Due to CV93-0001665 proceeding to a judgment on the merits prior to this matter with its convoluted procedural history, the court concludes that res judicata does not apply to count three, nor is that claim successive. II. Ineffective Assistance of Trial and Appellate Counsel
The court additionally notes that attorney Cohan testified that she remembered discussing with the petitioner his untimely arraignment. Attorney Cohan testified that the untimely arraignment may have proved to be a non issue. Attorney Cohan did not recall the particulars of the petitioner's trial.
"In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable . . .
"The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness . . . In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] 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 . . . 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. 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; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . ." (Citation omitted.) Bowens v. Commissioner of Correction, 104 Conn.App. 738, 741-42 (2007).
"The same two part analysis also applies to the petitioner's claim that his appellate counsel rendered ineffective assistance. The first part of the Strickland analysis requires the petitioner to establish that appellate counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions . . . Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues . . .
"To satisfy the prejudice prong, a petitioner must . . . establish that, because of the failure of his appellate counsel to raise a [particular] claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt." (Citations omitted; internal quotation marks omitted.) Vivo v. Commissioner of Correction, 90 Conn.App. 167, 171-73, 876 A.2d 1216, cert. denied, 275 Conn. 925, 883 A.2d 1253 (2005).
In 1988, General Statutes § 54-1g(a), the relevant statute, in large part existed as its does presently. In relevant part, § 54-1g(a) states that: "Any arrested person who is not released sooner . . . shall be promptly presented before the superior court sitting next regularly for the geographic area where the offense is alleged to have been committed. If an arrested person is hospitalized . . . or is otherwise incapacitated, the person shall be presented, if practicable, to the first regular sitting after return to police custody."
Petitioner's allegations of deficient performance in counts three and four are that his trial and appellate counsel failed to raise the issue of untimely arraignment at trial and on appeal. These claims are without merit.
Attorney Simon testified about his knowledge of the petitioner's convalescence in the hospital from his gunshot wound. Attorney Simon also testified that he knew of the circumstances surrounding petitioner's arrest in 1988. Here, the petitioner was not arrested while in the hospital and was not formally charged until his discharge from the hospital. Attorney Simon indicated that the petitioner was in police custody while in the hospital recuperating from the gunshot wound, but that he was not under arrest. Attorney Simon could not recall if the petitioner discussed the issue before the trial of his case.fn6 Lastly, attorney Brown testified that she did not identify petitioner's restraint in the hospital as an issue to pursue.
There is no credible evidence presented that the petitioner was under arrest until he was formally arrested on September 17, 1988, the day he was released from the hospital. The petitioner was arraigned two days later, on September 19, 1988. The time of arraignment clearly can be affected by a defendant's hospitalization and incapacity. Assuming, arguendo, that the petitioner was "arrested" and he was unable to go about his daily activities because a police officer was guarding him at the hospital at all times, the petitioner nevertheless was not in police custody until after he was arrested on the warrant after release from the hospital.
The court would note that counsel for respondent's pre-trial brief, which is extremely thorough, was particularly helpful to the court, especially section II C. 4, at pgs. 18-24.
The court concludes that the petitioner has failed to meet his burden of proof to show both that trial counsel's performance was deficient and the resultant prejudice. Similarly, the petitioner has failed to prove that appellate counsel rendered deficient performance by not raising the untimely arraignment claim on appeal.
Count four additionally asserts that appellate counsel should have sought review of the untimely arraignment claim under the plain error doctrine. The court disagrees with that assertion. "It is . . . well established that plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings . . . A defendant cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Internal quotation marks omitted.) State v. Madore, 96 Conn.App. 271, 280-81, 900 A.2d 64, cert. denied, 280 Conn. 907, 907 A.2d 93 (2006). The plain error doctrine does not apply to the facts of this case.
Based upon the foregoing, the petition for a writ of habeas corpus is denied. The petitioner shall submit a judgment file within thirty days of the date of this decision.