Bridgeman v. Warden

Full title: Drew Bridgeman #410486 v. Warden

Court: Superior Court of Connecticut

Date published: Mar 1, 2017

CV164008235 (Conn. Super. Ct. Mar. 1, 2017)

Opinion

CV164008235

03-01-2017

Drew Bridgeman #410486 v. Warden

Hon. Vernon D. Oliver, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Hon. Vernon D. Oliver, J.

The petitioner, Drew Bridgeman, initiated this petition for a writ of habeas corpus, claiming that his underlying trial counsel provided him ineffective legal representation. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The court finds the issues for the respondent and DENIES the petition.

Procedural History

On May 27, 2015, in the Fairfield Judicial District at Geographical Area 2, Bridgeport, the petitioner entered guilty pleas in the matters of State v. Drew Bridgeman, docket numbers F02B CR14-276988 and MV14-650485 in a substitute information, to misconduct with a motor vehicle in violation of Connecticut General Statutes Section 53a-57, reckless driving in violation of General Statutes Section 14-222 and operating under suspension in violation of General Statutes Section 14-215. Prior to the filing of the substitute information by the prosecuting authority, the petitioner was charged with Manslaughter in the second degree with a motor vehicle in violation of General Statutes Section 53a-56b, a ten-year felony. The agreed-upon sentence was five years incarceration execution suspended after three years to serve, followed by three years of probation. The court Richards, J., canvassed the petitioner, accepted his guilty pleas and continued the matter to August 7, 2015 for imposition of sentence. (Exh. B.)

On August 7, 2015, the court sentenced the petitioner, in accordance with the agreement. (Exh. C.) Attorney Christian Young represented the petitioner at all relevant stages of the criminal litigation. There was no direct appeal, motion to withdraw plea or motion to correct illegal sentence filed. This petition followed one year later.

II

Law

Standard of Proof

The standard of proof in civil actions, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).

Burden of Proof

" While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it." Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence. Gulycz v. Stop & Shop, 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1982). Failure to do so results in judgment for the defendant. Id.

The Proceedings

" The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). " It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . it is the quintessential function of the factfinder to reject or accept certain evidence . . ." (citations omitted; internal quotation marks omitted). In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). " The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). " [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to the testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). " The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. " The determination of credibility is a function of the trial court." Heritage Square, LLC, v. Eoanou, 61 Conn.App. 329, 333, 764 A.2d 199 (2001).

Credibility

It is well established that " [i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude . . . An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 155, 920 A.2d 236 (2007) (see also Dadio v. Dadio, 123 Conn. 88, 92-93, 192 A. 557 (1937)). Such observation may include all genuine and spontaneous reactions of the witness in the courtroom, whether or not on the stand, but only to the extent that they bear on the witness's credibility. State v. McLaughlin, 126 Conn. 257, 264-65, 10 A.2d 758 (1939). It is generally inappropriate for the trier [of fact] to assess the witness's credibility without having watched the witness testify under oath. Shelton v. Statewide Grievance Committee, 277 Conn. 99, 111, 890 A.2d 104 (2006).

" The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous . . . Historical facts constitute a recital of external events and the credibility of their narrators . . . Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given their testimony . . ." Mahon v. Commissioner of Correction, 157 Conn.App. 246, 116 A.3d 331, cert. denied, 317 Conn. 917, 117 A.3d 855 (2015). " It is well established that a reviewing court is not in the position to make credibility determinations . . . This court does not retry the case or evaluate the credibility of witnesses . . . Rather, we must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude." (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 117 Conn.App. 120, 126, 977 A.2d 772, cert. denied, 294 Conn. 904, 982 A.2d 647 (2009).

Habeas Corpus Matters-Generally

" The right to petition for a writ of habeas corpus is enshrined in both the United States constitution and the Connecticut constitution. See U.S. Const., art. I, § 9; Conn. Const., art. I, § 12. Indeed, it has been observed that the writ of habeas corpus holds an honored position in our jurisprudence . . . The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness . . . The writ has been described as a unique and extraordinary legal remedy . . . It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired." (Citations omitted; internal quotation marks omitted.) Fine v. Comm'r of Corr., 147 Conn.App. 136, 142-43, 81 A.3d 1209 (2013).

" It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations . . . it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised . . . The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise . . . [T]he [petition] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties." (Citation omitted; internal quotation marks omitted.) Lebron v. Commissioner of Correction, 274 Conn. 507, 519-20, 876 A.2d 1178 (2005), overruled in part on other grounds by State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014).

Effective Assistance of Counsel

" A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). The petitioner has the burden to establish that " (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. at 694.

" To satisfy the performance prong, a claimant must demonstrate that 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed . . . by the [s]ixth [a]mendment.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. at 687. It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the " counsel" guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial. Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).

Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).

When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, 466 U.S. at 689. The United States Supreme Court explained:

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 defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

(Citation omitted; internal quotation marks omitted) Id., 689.

Ultimately, " [t]he 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, supra, 466 U.S. at 686.

Effective Assistance in Plea Bargaining

The United States Supreme Court has held that pretrial negotiations implicating the decision as to whether to plead guilty is a critical stage in criminal proceedings for purposes of the sixth amendment right to effective assistance of counsel. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). " In today's criminal justice system . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always a critical point for a defendant." Missouri v. Frye, supra, 132 S.Ct. at 1407. Similarly, " our Supreme Court has recognized that pretrial negotiations implicating the decision of whether to plead guilty is a critical stage, and, therefore, a defendant is entitled to adequate and effective assistance of counsel at this juncture of the criminal proceedings." (Internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 122 Conn.App. 705, 723 n.4, 1 A.3d 170 (2010), aff'd, 308 Conn. 463, 68 A.3d 624 (2013). The decision to plead guilty is " ordinarily the most important single decision in any criminal case." (Internal quotation marks omitted.) Peterson v. Commissioner of Correction, 142 Conn.App. 267, 273, 67 A.3d 293 (2013). Because the plea bargaining process is a critical stage in a criminal proceeding, " criminal defendants require effective assistance of counsel during plea negotiations." Missouri v. Frye, supra, 132 S.Ct. at 1407-08; see Lafler v. Cooper, supra, 132 S.Ct. at 1385. " Anything less . . . might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him." (Internal quotation marks omitted.) Missouri v. Frye, supra, 132 S.Ct. at 1408.

" Although this decision [to plead guilty] is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial." (Internal quotation marks omitted.) Peterson v. Commissioner of Correction, supra, 142 Conn.App. 273.

" The prejudice inquiry in claims arising from counsel's advice during the plea process differs from the analysis of claims following conviction after trial. See Hill v. Lockhart, supra, 474 U.S. at 58-59, 106 S.Ct. 366; see also Copas v. Commissioner of Correction, supra, 234 Conn. at 156, 662 A.2d 718. '[I]n order to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. In many guilty plea cases, the prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error prejudiced the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the prejudice inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial . . . [T]hese predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the idiosyncrasies of the particular decisionmaker.' (Citation omitted; internal quotation marks omitted.) Hill v. Lockhart, supra, at 59-60, 106 S.Ct. 366 'Admittedly, the prejudice [prong] of the Hill-Strickland test may pose a difficulty in some cases because it is by no means obvious how a court is to determine the probability that a defendant would have gone to trial. It is clear enough that a defendant must make more than a bare allegation that he would have pleaded differently and gone to trial . . . but it is not clear how much more is required of him.' (Citation omitted; internal quotation marks omitted.) United States v. Horne, 987 F.2d 833, 835-36, 300 U.S. App.D.C. 169 (D.C.Cir.), cert. denied, 510 U.S. 852, 114 S.Ct. 153, 126 L.Ed.2d 115 (1993)." Carraway v. Commissioner of Correction, 144 Conn.App. 461, 472-73, 72 A.3d 426 (2013), appeal dismissed, 317 Conn. 594, 119 A.3d 1153 (2015).

The petitioner initiated the instant action with the filing of his petition on August 4, 2016. In that operative pleading, the petitioner asserts that underlying counsel was constitutionally deficient in that:

1. Underlying counsel advised the petitioner that he would serve only fifteen months of his three year sentence. The petitioner asserts that he was prejudiced by underlying counsel's " failure to effectively convey the consequences of the offer" prior to his plea.

The petitioner alleges that he is instead required, by virtue of the charges to which he entered pleas, to serve eighty-five percent of his three-year sentence before being considered eligible for parole consideration. He further claims that, had he known he would be required to serve eighty-five percent of his sentence before being eligible for parole consideration, he would not have pled guilty and would instead have taken his case to trial. The respondent, in a return, leaves the petitioner to his proof.

The Court heard the trial of this matter on November 7, 2016. The petitioner presented as witnesses himself and attorney Young. The petitioner entered one full exhibit into evidence. The respondent called no witnesses and entered three full exhibits. The court makes the following findings by a fair preponderance of the evidence.

III

Analysis

Attorney Christian Young

Attorney Young testified to his representation of the petitioner. He described his criminal defense experience of approximately fifteen years at the time he represented the petitioner. The petitioner was originally charged with four offenses: Manslaughter in the second degree with a motor vehicle, operating a motor vehicle under the influence of intoxicating liquor or drugs, reckless driving and operating under suspension. The factual basis for the petitioner's conviction included claims that on February 22, 2014, the petitioner was operating his motor vehicle on Route 8 South in the early morning hours at approximately ninety-seven miles per hour on a wet and icy highway while under the influence of alcohol and with marijuana in his vehicle while his driving privileges were under suspension. The petitioner's vehicle struck the vehicle of the victim, sending it into a concrete highway overpass support, causing the death of the victim. (Exh. B, C.)

Attorney Young testified credibly to his visits and other contacts with the petitioner, including a thorough discussion of pretrial and trial-related issues. The two also discussed the allegations against the petitioner, including the strength of the state's case. Based on the factual basis to which the petitioner entered his guilty pleas and underlying counsel's assessment of the evidence, the petitioner had no " realistic viable defense" to the charges. Attorney Young's litigation strategy, after discovery, investigation, evaluation of the evidence, including hospital records, witness statements, assessment of the petitioner's performance on the standardized field sobriety tests, accident reconstruction and speed information from the petitioner's vehicle's " black box" data recorder, was to attempt to minimize the length of incarceration the petitioner would serve, describing the matter as a " damage control case." There is nothing in the record that causes this court to question underlying counsel's preparation, assessment of the state's evidence, available defenses, likelihood of success at trial and plea bargaining strategy.

Attorney Young testified to the progression of pretrial negotiations with the prosecuting authority. He testified to the reasonably competent strategy of seeking a disposition that might result in a consideration for early release of the petitioner, either on parole or transitional supervision, by the Department of Correction. Counsel testified to having begun preliminary dispositional discussions with the prosecutor involving a period of incarceration in the area of eighteen months. Counsel shared the possibility of a sentence in this range with the petitioner. Counsel also indicated that if the petitioner earned " good time" (Risk Reduction Earned Credits) he could potentially serve between fifteen and eighteen months before becoming parole eligible. Any notion of a misdemeanor disposition in that range was short-lived, however, as it required the agreement of the judicial authority, which was not forthcoming.

Attorney Young testified credibly and without challenge that any plea bargaining between the parties was cut short when the judicial authority was made aware of the preliminary discussed sentencing range of eighteen months. The court explained to the parties that only a sentence in the range of three to four years would be accepted. The court said as much directly to the petitioner on the record a full month before he entered his pleas. (Exh. A.)

Regarding the percentage of the sentence to be served before consideration for parole eligibility, attorney Young gave a detailed recitation of the advice provided, both as to parole eligibility generally and specifically as to the charges to which the petitioner might enter pleas.

Underlying counsel testified to his knowledge that a period of incarceration for a manslaughter conviction would require an inmate to serve eighty-five percent of his sentence before being considered for parole eligibility. He further testified credibly that he counsels " every single client" that there is " no guarantee" of a particular parole eligibility date given the " constantly shifting landscape" of the parole eligibility statutory framework, including legislative considerations.

Counsel testified that the petitioner inquired as to what percentage of his sentence he would have to serve. Initially, counsel advised his client that, depending on how the Department of Correction viewed his conviction, he may only have to serve fifty percent of his sentence before being eligible for parole consideration. He further testified to an initial discussion including the possibility that " good time" credits might further reduce his time to serve before parole eligibility to thirty-five percent of his sentence.

Counsel testified credibly to discussing with the petitioner the possibility of suppressing some of the evidence suggesting intoxication, but impressed upon him the substantial likelihood of conviction and statistical probability that he would, after trial, receive a sentence in excess of that indicated by the judicial authority. Counsel's research regarding the spectrum of sentences handed down in cases of this type indicated that a three-year sentence was still " below average" and a " good" disposition.

The parties continued negotiations and together with the court crafted a plea package and disposition a few months later: guilty pleas to misconduct with a motor vehicle, operating under the influence and reckless driving, with a total effective sentence of five years execution suspended after three years to serve followed by five years probation. Counsel testified without credible challenge that the aforementioned sentence was the best possible disposition available to the petitioner that was acceptable to the judicial authority. It was at this time that underlying counsel discovered that the charge of misconduct with a motor vehicle, as well as other vehicular homicide offenses, would require the petitioner to serve eighty-five percent of his sentence before being considered eligible for parole consideration. Counsel testified credibly that he shared this newly discovered information with the petitioner verbally prior to his entry of guilty pleas on May 27, 2015, indicating that it may have been that very day. Underlying counsel recalled that the petitioner was " disappointed" after being so informed. Counsel denied advising the petitioner that he might secure his release after fifteen months incarceration at the time of his guilty pleas. Counsel testified, adamantly and credibly, that the petitioner never told him he was unwilling to serve a sentence in excess of fifteen months. Counsel testified to the petitioner's unrealistic expectation, during their review of the potential evidence to be adduced at trial, of avoiding both a conviction and a period of incarceration.

On cross examination, counsel testified to telling the petitioner that there are " no guarantees ever" of being granted parole so that the petitioner would be properly informed " prior to committing himself" with a guilty plea. Predispositionally, counsel testified that, after being made aware of the judicially indicated sentencing range, his goal became twofold: First, convincing the prosecuting authority and the court to accept a plea to the five-year felony of misconduct with a motor vehicle instead of the ten-year felony to reduce a greater potential unexecuted portion of the sentence; and second, trying to " lock" the court into a three-year sentence, instead of a range with a " cap" of four years to serve. Counsel was successful in this regard.

Underlying counsel was confronted with copies of text message conversations between himself and the petitioner as the matter approached plea and sentencing.

While the text messages demonstrate that counsel initially advised the petitioner that there may be an available disposition that might allow the petitioner to be released after serving thirty-five percent of his sentence, they further demonstrate that counsel made the petitioner aware that he could face charges that would require him to serve eighty-five percent of his sentence before parole eligibility. (Exh. 1.) Counsel testified credibly to similar previous conversations concerning this topic at his office and at the courthouse.

Drew Bridgman

The Petitioner testified in the instant matter. He testified, as it related to the underlying convictions, that the " first plan" formulated with attorney Christian was to plea bargain. The petitioner's habeas trial testimony corroborated the strong evidence of guilt in the underlying matter testified to by underlying counsel and set forth as a factual basis by the prosecuting authority in the transcripts submitted as evidence in the instant trial, including the data recorder's information that the petitioner was travelling ninety-seven miles per hour in poor road conditions with an elevated blood alcohol content. The petitioner testified credibly that counsel initially advised him that he would seek a disposition on a " fifty percent charge" that might become a thirty-five percent charge with " good time."

The petitioner testified, far less credibly, that he would " never" have accepted a disposition that included a plea to a " violent charge" as he is " not a violent person." He further testified that he would " never" have agreed to a sentence thirty-two months to serve (the court calculates that eighty-five percent of thirty-six months is 30.6 months). He testified that underlying counsel made him aware when the judicial authority rejected a sentence in the eighteen-month range, instead indicating a sentence in the range of three years. He testified that on April 27, 2015, he was advised by underlying counsel that the offenses were still " fifty percent charges" as counsel indicated the charges were " non-violent." The petitioner testified that, between April 27, 2015 and the date of his plea on May 27, 2015; he met with counsel in his office in an attempt to explore ways to get " my eighteen months back." He further testified that, even being made aware of the actual total effective sentence, he thought he would still only serve fifteen months incarceration.

The petitioner testified that, had he been made aware of the eighty-five percent requirement, he would have gone to trial as he didn't think the judicially indicated sentence was " fair." He further testified that the jury would have discounted the " inconsistent" statements of potential law enforcement witnesses, and that he would have " explained to the jury" his version of events. The lack of an objectively reasonable basis to credit the petitioner's assertion that he would have gone to trial, in the face of the state's strong evidence of guilt on a charge of manslaughter second degree with a motor vehicle, buttresses the court's finding that the petitioner's testimony lacked credibility for a number of other reasons.

The petitioner did not contest the essential elements of the state's evidence to support a conviction for manslaughter in the second degree with a motor vehicle, the ten-year felony, including the data recorder's information as to the petitioner's speed and his " .11" blood alcohol content.

The petitioner testified, in direct contrast to underlying counsel's habeas trial testimony, that on May 27, 2015 counsel informed him that the conviction was considered " non-violent" and that he would be released in " fifteen months." The petitioner testified that he was informed by the court on April 27, 2015 of the judicially indicated sentencing range as well as his right to reject the offer and exercise his right to trial.

For the first time, on cross examination, the petitioner testified to having performed legal research on his pending charges, including the maximum possible penalties, indicating that he " looked them up" on his own online. The petitioner later altered his testimony to indicate that he gained his knowledge of the maximum penalties from his friends, not from his own independent online research. This stark shift in testimony while on the stand is damaging in this court's credibility assessment. He further testified that he was " never" advised by counsel to accept the judicially indicated sentence as he was likely to receive a harsher penalty if convicted after trial. The petitioner testified, incredibly for an articulate, intelligent, college-educated accountant, that the possibility of a " worse outcome" at trial played no role in his decision to enter guilty pleas. Such testimony defies all logic and reason.

It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the " counsel" guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial. Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).

When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, 466 U.S. at 689. The United States Supreme Court explained:

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 defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

(Citation omitted; internal quotation marks omitted.) Id., 689. Ultimately, " [t]he 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, supra, 466 U.S. at 686.

" 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 . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . ." Martin v. Commissioner of Correction, 155 Conn.App. 223, 227, 108 A.3d 1174, cert. denied, 316 Conn. 910, 111 A.3d 885 (2015).

In the instant matter, the petitioner has failed to overcome the presumption of competent representation of underlying counsel. The court credits the testimony of underlying counsel in support of a finding that the petitioner has failed to demonstrate ineffective assistance of counsel. The court finds that throughout the course of the criminal litigation, the petitioner was aware of the potential for a conviction to an offense that would require the service of eighty-five percent of his sentence before being eligible for parole consideration. (Exh. 1.) Further, before the entry of his guilty pleas, the petitioner was completely disabused of any notion that he would be eligible for parole consideration after serving only fifty percent of his sentence. Additionally, the court does not find credible the petitioner's testimony that he was informed by counsel the morning of his plea that he would still serve only fifteen months in prison. The court has previously described the more credible evidence in support of this conclusion. Finally, as the petitioner has failed to persuade this factfinder that he was unaware of the eighty-five percent parole eligibility requirement, a necessary predicate to a Strickland 's second prong in this plea agreement challenge, he has necessarily failed to establish prejudice. At the habeas trial, as noted in Carraway, the petitioner made only " bare allegations, " unsupported by evidence in the underlying or habeas records that he would have pleaded differently and gone to trial. These naked assertions lack credibility when placed into the context provided by underlying counsel and the habeas trial exhibits.

The credible evidence in the record supports a finding that underlying counsel fully explained to the petitioner the strengths and weaknesses of the state's case against him, including the allegations, potential defenses, likelihood of success at trial and probable post-trial sentence range. Further, the Court relies on the transcript of the petitioner's plea and sentencing as compelling evidence that he was made aware by counsel, and subsequently by the court, of all necessary information to make an informed decision as to whether to enter a plea or take his case to trial. (Ex. B.) " A habeas court . . . may properly rely on the defense attorney's representations, as well as the responses of the petitioner at the time he responded to the trial court's plea canvass, in determining that he was adequately informed of the elements of the offense charged." Bowers v. Warden, 19 Conn.App. 440, 443, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989).

Finally, the court notes that it is well-established in habeas jurisprudence that there is no recognized liberty interest in parole eligibility, a parole hearing date, or a particular parole release date. Baker v. Commissioner of Correction, 281 Conn. 241, 257-62, 914 A.2d 1034 (2007). This court addresses the merits of the instant petition as it is styled as an ineffective assistance claim that specifically alleges that underlying counsel advised the petitioner that he would be release after a period certain, eighteen months, opposed to a claim that counsel advised the petitioner that he would be eligible for parole eligibility after service of fifty percent of his sentence. Applying Baker more broadly, it is the opinion of this court that, given the " constantly shifting landscape, " the frequent modification to the parole eligibility statutory framework through public acts, and the broad discretion of the respondent as regards parole eligibility and release, a habeas corpus petitioner asserting ineffective assistance of counsel based on broad advice as to conditional release before the expiration of a valid sentence implicates no inherent or constitutional right sufficient to invoke the jurisdiction of the habeas court.

IV

Conclusion

For the foregoing reasons, the petition is denied. Judgment shall enter for the respondent.