Opinion
CV154007111S
12-28-2018
Rogeau COLLINS (Inmate #327526) v. WARDEN
UNPUBLISHED OPINION
OPINION
Kwak, J.
The petitioner filed a pro se petition for a writ of habeas corpus on March 23, 2015. The pro se petition was amended twice by assigned counsel, with the second amended petition asserting claims in four counts: first, that trial counsel, Attorney Aaron Romano, operated under a conflict of interest; second, the petitioner received ineffective assistance of trial counsel; third, the petitioner’s right to due process was violated because he was deprived of a fair trial; and fourth, the petitioner is actually innocent. The respondent’s amended return denies the petitioner’s claims and raises procedural default as an affirmative defense to the first and third counts. The petitioner filed a reply to the return that denies he has procedurally defaulted.
The parties appeared before the court on June 8 and 12, 2018, for a trial on the merits. Both parties entered numerous documents, which predominantly consist of transcripts of the criminal proceedings, into evidence. Additionally, the court received testimony from the petitioner, his former trial counsel, Attorney Romano, expert witness Dr. Andrew Meisler, and Teara Rosario. The respondent also called Attorney Romano as a rebuttal witness. The parties filed post-trial briefs.
Based on its review of the documentary evidence and testimony presented, and for the reasons articulated more fully below, the petition for a writ of habeas corpus is denied.
UNDERLYING FACTS/PROCEDURAL HISTORY
The petitioner was the defendant in a criminal case, docket number CR09-0630168-T, in the judicial district of Hartford. "The jury reasonably could have found the following facts. In March 2009, Robert Dixon, the victim, resided in Hartford with his girlfriend. Dixon always carried two cell phones. He used one cell phone to sell drugs and the other for personal matters. In addition, he always wore an expensive pair of Cartier glasses. He did not store the drugs he sold at his home, but kept them at a remote location secured in a safe. The key to the safe was on the same key ring as Dixon’s car keys.
"On March 9, 2009, Dixon exchanged several phone calls with an individual named Adrian Dean, a friend of the [petitioner]. At approximately 9:25 p.m. that night, Dixon left his residence in his vehicle carrying both of his cell phones and wearing his Cartier glasses. Sometime thereafter, Dean joined Dixon in the vehicle. Dean then contacted the petitioner, who was driving around the Hartford area in his girlfriend’s vehicle. Dean arranged to meet the [petitioner] at a location in Bloomfield and gave the [petitioner] directions to that location. The [petitioner] followed Dean’s directions and arrived at the location at approximately the same time as Dean and Dixon. Dixon and the [petitioner] then drove their vehicles toward a cul-de-sac at the end of the road. Dixon turned his vehicle in the cul-de-sac and came to a stop. The [petitioner] pulled up and stopped his vehicle to the left of Dixon’s vehicle. The [petitioner] then exited his vehicle. Both the [petitioner] and Dean, who had exited Dixon’s vehicle, approached the driver’s side door of Dixon’s vehicle. Dixon was still sitting in the driver’s seat of his vehicle. Dean, with a firearm in one of his hands, opened the driver’s side door of Dixon’s vehicle and shot Dixon in the head. Dean then asked the [petitioner] to search Dixon’s pockets. The [petitioner] began patting Dixon’s pockets when Dixon flinched and attempted to escape the vehicle through the passenger side door. Dixon was shot seven times as he attempted to escape and died as a result of the multiple gunshot wounds. The [petitioner] and Dean then left the scene in the defendant’s vehicle. The following morning, on March 10, 2009, Dixon was found dead by two fishermen. Dixon’s two cell phones, Cartier glasses, and keys were not found at the scene. The [petitioner] was arrested on March 24, 2009.
"The state, in a long-form information filed on January 11, 2011, charged the [petitioner] with murder in violation of General Statutes § 53a-54a(a), felony murder in violation of § 53a-54c, conspiracy to commit murder in violation of General Statutes §§ 53a-48(a) and 53a-54a(a), robbery in the first degree in violation of § 53a-134(a)(2), and conspiracy to commit robbery in the first degree in violation of §§ 53a-48(a) and 53a-134(a)(2). The jury found the [petitioner] guilty of felony murder and robbery in the first degree, but not guilty on each of the remaining charges. The court sentenced the [petitioner] to a total effective term of forty-five years of imprisonment." State v. Collins, 147 Conn.App. 584, 586-88, 82 A.3d 1208, cert. denied, 311 Conn. 929, 86 A.3d 1057 (2014).
"On appeal, the [petitioner] claim[ed] that the trial court improperly: (1) excluded a statement made by another suspect in the crimes of which the [petitioner] was convicted, (2) excluded testimony regarding the [petitioner’s] statements to police, and (3) excluded evidence of items seized from the residence of another suspect. [The Appellate Court] affirm[ed] the judgment of conviction." Id., 586.
Additional facts will be discussed below as necessary to address the petitioner’s claims.
DISCUSSION
I. Count One-Conflict of Interest
The petitioner alleges that Attorney Romano operated under a conflict of interest. More specifically, the petitioner asserts that counsel’s duty of loyalty to the petitioner was impaired when counsel’s financial interest in the retainer precluded him from obtaining experts. The petitioner further avers that in his motions for expenses to hire experts, Attorney Romano argued to the court that he needed the experts to present the defense case, but then abandoned the defense strategy and proceeded to trial without experts. The petitioner avers that Attorney Romano made these decisions due to his own loyalties and interests, contrary to the petitioner’s defense interests. The respondent asserts the affirmative defense of procedural default to this claim because the petitioner did not raise it in either the trial court or on direct appeal. The petitioner denies that he has procedurally defaulted.
A. Procedural Default
"In essence, the procedural default doctrine holds that a claimant may not raise, in a collateral proceeding, claims that he could have made at trial or on direct appeal in the original proceeding and that if the state, in response, alleges that a claimant should be procedurally defaulted from now making the claim, the claimant bears the burden of demonstrating good cause for having failed to raise the claim directly, and he must show that he suffered actual prejudice as a result of this excusable failure." Hinds v. Commissioner of Correction, 151 Conn.App. 837, 852, 97 A.3d 986 (2014), affirmed on other grounds, 321 Conn. 56, 136 A.3d 596 (2016).
" ‘The 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 ... Therefore, attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of [trial and] appellate procedure.’ (Citations omitted; internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001); see also Correia v. Rowland, 263 Conn. 453, 462, 820 A.2d 1009 (2003)." Brunetti v. Commissioner of Correction, 134 Conn.App. 160, 168, 37 A.3d 811, cert. denied, 305 Conn. 903, 44 A.3d 180 (2012).
" ‘[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.’ (Citations omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, [ 285 Conn. 556, 568, 941 A.2d 248 (2008).]" Anderson v. Commissioner of Correction, 114 Conn.App. 778, 788, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009).
The petitioner’s reply asserts that he could not have previously raised the claim in count one because Attorney Romano was burdened by the conflict of interest the petitioner has alleged. That is, Attorney Romano did not raise with the court that he had a conflict of interest because he knew that he had a conflict of interest. The petitioner further asserts that he will show that there is a reasonable likelihood that the result of the jury trial would have been different had Attorney Romano hired experts to assist him in presenting the petitioner’s defense.
The petitioner’s family retained Attorney Romano, who thereafter filed a motion to have the court approve funding for expert services. Petitioner’s Exhibit 6. The court, Mullarkey, J. presided over hearings spanning multiple days, ultimately denying the motion after finding that the petitioner’s indigency was voluntary. Respondent’s Exhibits C, D, E, and F. On July 1, 2010, the court noted that the petitioner retained the right to revert back to public defender representation and any services that were necessary. Respondent’s Exhibit F, p. 43. The court also noted that its ruling was subject to review by the actual trial judge. Id., pp. 43-44. The motion for expenses was renewed and, on February 8, 2011, the court, Espinosa, J., heard additional arguments presented by Attorney Romano.
Judge Espinosa first reviewed the procedural history of the case and addressed whether the petitioner was indigent. Petitioner’s Exhibit 2 (Transcript, February 8, 2011), pp. 26-31. The retainer agreement, which was signed by the petitioner, was a central component to the courts’ determinations that the petitioner had rejected the services of the public defender’s office. The agreement made the petitioner’s parents legally responsible for additional costs, such as for expert witnesses, incurred beyond the retainer agreement. The court determined that the petitioner had failed to establish that he was indigent. Id., p. 31.
The petitioner’s direct appeal did not contest the trial courts’ determinations that he was not indigent, nor did the appeal challenge their denials of the expert witness fees. State v. Collins, supra, 147 Conn.App. 586. The failure to raise these claims first on direct appeal before litigating them in a habeas corpus petition results in the petitioner being procedurally defaulted, unless he has asserted and then shows sufficient cause and prejudice for the procedural default. Anderson v. Commissioner of Correction, 114 Conn.App. 778, 791, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009) ("... respondent under no additional burden to identify facts in the record to support a direct appeal; rather, once the respondent raised the issue of procedural default, it was the responsibility of the petitioner to set forth facts and cause sufficient to permit review of his claims").
Given that the petitioner did not raise the conflict of interest claim with the trial court or on direct appeal, the court concludes that the petitioner has procedurally defaulted. However, even if not procedurally defaulted, the court would conclude that the claim must fail on the merits because the petitioner has failed to show the existence of a conflict of interest.
" ‘[I]t is well established that [a] criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [ 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution ... It is axiomatic that the right to counsel is the right to the effective assistance of counsel.’ (Citation omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, 306 Conn. 664, 677-78, 51 A.3d 948 (2012). ‘As an adjunct to this right, a criminal defendant is entitled to be represented by an attorney free from conflicts of interest.’ (Internal quotation marks omitted.) Phillips v. Warden, [ 220 Conn. 112, 132, 595 A.2d 1356 (1991) ].
" ‘In a case of a claimed conflict of interest ... in order to establish a violation of the [right to counsel] the [petitioner] has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer’s performance.’ (Internal quotation marks omitted.) Id., at 133, 595 A.2d 1356. Although ordinarily a petitioner claiming ineffective assistance of counsel must demonstrate that his counsel’s performance was deficient, and that the deficient performance resulted in actual prejudice to the defense; Strickland v. Washington, supra, 466 U.S. at 687, 104 S.Ct. 2052; a petitioner who claims that his counsel was burdened by a conflict of interest does not need to establish prejudice. Phillips v. Warden, supra, 220 Conn. at 132-33, 595 A.2d 1356. ‘Where there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.’ (Internal quotation marks omitted.) Id., at 133, 595 A.2d 1356; see Strickland v. Washington, supra, at 692, 104 S.Ct. 2052 (‘[p]rejudice is presumed ... if the [petitioner] demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance’ [internal quotation marks omitted])." Rodriguez v. Commissioner of Correction, 312 Conn. 345, 352-53, 92 A.3d 944 (2014).
The petitioner’s post-trial brief posits that Attorney Romano had an actual conflict of interest: his monetary interests rooted in the retainer agreement. Petitioner’s Exhibit 5. Attorney Romano, according to the petitioner, did not use the funds paid to him pursuant to the retainer agreement to hire experts. The retainer agreement provides that any experts deemed necessary by Attorney Romano to the defense would be paid separately. The petitioner’s conflict of interest claim is premised on Attorney Romano not utilizing, contrary to the explicit terms of the agreement, experts at counsel’s expense from the retainer. Thus, experts were not hired by Attorney Romano because doing so would reduce, or even completely deplete, the retainer paid to him by the petitioner’s parents when it became known that they could not pay for expert services.
Attorney Romano sought court-approved funding for experts. At hearings before Judges Mullarkey and Espinosa, Attorney Romano presented arguments in support of funding for experts pursuant to Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). "In Ake v. Oklahoma, supra, 470 U.S. at 77, 105 S.Ct. 1087 the Supreme Court examined whether, and under what circumstances, a state is required to provide an indigent defendant with access to a psychiatric expert to assist in preparing his defense. After the defendant in Ake pleaded not guilty by reason of insanity to murder charges, the defendant’s counsel sought and was denied a court-appointed psychiatrist, or funding to hire a psychiatrist, to examine the defendant with respect to his mental condition at the time of the offense. Id., at 72, 105 S.Ct. 1087. Relying on the due process balancing test articulated in Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Supreme Court in Ake considered three factors in evaluating the defendant’s claim that he was entitled to expert assistance: ‘The first is the private interest that will be affected by the action of the [s]tate. The second is the governmental interest that will be affected if the safeguard is to be provided. The third is the probable value of the additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.’ Ake v. Oklahoma, supra, at 77, 105 S.Ct. 1087." (Footnote renumbered.) State v. Wang, 312 Conn. 222, 228, 92 A.3d 220 (2014) (self-represented indigent defendant has a constitutional right to experts or investigators deemed necessary to the defense); see also Grover v. Commissioner of Correction, 183 Conn.App. 804, 815-16, 194 A.3d 316, cert. denied, 330 Conn. 933, 194 A.3d 1196 (2018).
"The defendant in Ake was represented by an attorney, but it is unclear whether the defendant’s counsel was a court-appointed public defender. See Ake v. Oklahoma, supra, 470 U.S. at 72, 105 S.Ct. 1087. The record is clear, however, that the defendant was indigent and unable to afford a psychiatrist. Id."
The trial court twice determined that the petitioner was not indigent. Furthermore, Attorney Romano presented to those courts the bases for his assertions that the experts he wanted to utilize were necessary to the defense. Attorney Romano’s efforts were unsuccessful because the petitioner was not indigent and these experts were, in the courts’ views, not necessary to establish a defense at trial.
The court concludes, even if the petitioner were not procedurally defaulted, that he has failed to show that Attorney Romano had a conflict of interest. Counsel’s representation and duty of loyalty was in no way compromised by any interest adverse to the petitioner’s defense.
II. Count Two-Ineffective Assistance by Attorney Romano
The second amended petition avers numerous ways in which Attorney Romano rendered deficient performance. However, several of these grounds were withdrawn at the habeas trial. The remaining claims of deficient performance are that Attorney Romano failed to: (A) utilize a forensic psychologist or psychiatrist to examine the petitioner, review records, etc., and render an opinion on the petitioner’s ability to give a voluntary statement to the police; (B) present the petitioner’s school records in support of his motion for expenses for an expert to examine the petitioner and assess his ability to consent to his statements to the police; ... (D) argue the petitioner’s mental capacity in his motion to suppress his statements to the police; (E) meaningfully discuss the evidence against the petitioner and convince him that he would win at trial; (F) discuss the option of a plea with the petitioner and convincing him not to take a plea offer; (G) not requesting a jury instruction on the affirmative defense to felony murder; (H) not finding and presenting the testimony of Teara Rosario, an exculpatory witness, who was in the car with the petitioner on the night of the underlying incident; (I) not having the petitioner testify at trial in support of his affirmative defense to felony murder; and (K) not finding and presenting the testimony of Jeffrey Allman, another exculpatory witness, to whom the petitioner’s co-defendant told about the underlying incident.
The petitioner withdrew the claims in count two, paragraphs C, J, L, M, N, O, P, and Q.
Jeffrey Allman did not testify during the habeas trial. The petitioner had not withdrawn this claim. Given that the claim is unsupported, the court deems the claim in subparagraph (K) to be abandoned. See, e.g., Rodriguez v. Commissioner of Correction, 151 Conn.App. 232, 238-39, 94 A.3d 722, cert. denied, 314 Conn. 910, 100 A.3d 849 (2014) (failure to present evidence from alibi witnesses fatal to failure to investigate claim), citing Norton v. Commissioner of Correction, 132 Conn.App. 850, 859, 33 A.3d 819 (petitioner cannot prevail on claim that trial counsel was ineffective for failing to investigate witnesses when "the petitioner has not presented us with any beneficial testimony from these witnesses that would demonstrate how they would have assisted in his case had trial counsel interviewed them" and thus "failed to establish that further investigation of these witnesses would have been helpful to his defense"), cert. denied, 303 Conn. 936, 36 A.3d 695 (2012); Lambert v. Commissioner of Correction, 100 Conn.App. 325, 327-28, 918 A.2d 281 (prejudice not established where petitioner failed to call alibi witness at habeas trial or offer evidence as to what [witness] would have testified), cert. denied, 282 Conn. 915, 924 A.2d 138 (2007); Hooks v. Commissioner of Correction, 61 Conn.App. 555, 557, 764 A.2d 1291 (2001) (petitioner cannot establish ineffective assistance of counsel for failure "to investigate certain witnesses" when "[n]one of those witnesses testified at the habeas trial" and no evidence introduced as to "how that testimony may have supported his claims"). The petitioner’s post-trial brief did not brief this claim, further signaling abandonment.
(A) Standard for Ineffective Assistance of Trial Counsel
"A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings ... This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution ... As enunciated in Strickland v. Washington, [supra, 466 U.S. 686, 687], [our Supreme Court] has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong ... The claim will succeed only if both prongs are satisfied ...
"To prove his or her entitlement to relief pursuant to Strickland, a petitioner must first satisfy what the courts refer to as the performance prong; this requires that the petitioner demonstrate that his or her counsel’s assistance was, in fact, ineffective in that counsel’s performance was deficient. To establish that there was deficient performance by the petitioner’s counsel, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance ... 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 ...
" ‘[J]udicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable ... 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.’ (Internal quotation marks omitted.) Mukhtaar v. Commissioner of Correction, 158 Conn.App. 431, 449, 119 A.3d 607 (2015). In reconstructing the circumstances, ‘a reviewing court is required not simply to give [the trial attorney] the benefit of the doubt ... but to affirmatively entertain the range of possible reasons ... counsel may have had for proceeding as [he] did ...’ (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 319 Conn. 623, 632, 126 A.3d 558 (2015), quoting Cullen v. Pinholster, 563 U.S. 170, 196, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011)." Spearman v. Commissioner of Correction, 164 Conn.App. 530, 538-39, 138 A.3d 378, cert. denied, 321 Conn. 923, 138 A.3d 284 (2016).
"In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or the jury ... Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support ... [T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged ... The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction, supra, 306 Conn. 688-89.
The court concurs with the respondent that the Strickland standard is the applicable standard, not the standard from United States v. Chronic. See, e.g., Davis v. Commissioner of Correction, 319 Conn. 548, 555, 657, 126 A.3d 538 (2015) ("prejudice may be presumed when: (1) when counsel is denied to a defendant at a critical stage of the proceeding; (2) when counsel ‘entirely fails to subject the prosecution’s case to meaningful adversarial testing’; and (3) when counsel is called upon to render assistance in a situation in which no competent attorney could do so. Notably, the second scenario constitutes an ‘actual breakdown of the adversarial process, ’ which occurs when counsel completely fails to advocate on a defendant’s behalf."), citing and quoting United States v. Cronic, 466 U.S. 648, 659-60, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
(B) & (D) Failure to Use Expert to Evaluate the Petitioner and his Records
The petitioner first alleges that Attorney Romano failed to present the petitioner’s school records in support of his motion for expenses for an expert to review such records and render an opinion about the petitioner’s ability to give voluntary consent to his statements to the police. The petitioner also alleges that Attorney Romano failed to argue in the motion to suppress that the petitioner lacked the mental capacity to voluntarily provide statements to the police.
The petitioner presented the testimony of Dr. Andrew Meisler in support of this claim. The petitioner’s post-trial brief notes that Dr. Meisler evaluated the petitioner and arrived at the conclusion that there were a number of factors influencing his thinking, judgment, and understanding at the time of the police interview. The petitioner maintains that had Attorney Romano hired an expert such as Dr. Meisler to evaluate the petitioner, then there would have been a reasonable probability that the petitioner could have successfully challenged the voluntariness of the statement to the police and meaningfully consider the state’s plea offer, Petitioner’s Post-Trial Brief, pp. 8, 10-11.
On February 9, 2011, Attorney Romano questioned witnesses at a hearing on his motion/s challenging the petitioner’s arrest and the voluntariness of his statements to the police. Respondent’s Exhibit AA. The court, Espinosa, J., continued the matter to the next day, February 10, so that counsel could present their respective arguments to the court. After counsel argued their positions, Judge Espinosa reserved decision, which would be given either as a written ruling or as an oral ruling given from the bench on the first day of trial. Respondent’s Exhibit J, p. 39. Ultimately, Judge O’Keefe was the trial judge. It appears from the transcripts and court documents, although not proven explicitly thereby, that Attorney Romano did not prevail on his motions.
This court has reviewed the trial transcripts. The documents entered into evidence do not appear to contain an oral ruling from Judge Espinosa and the court’s own research did not locate a reported written memorandum of decision. The information reflects an entry dated February 10, 2011, indicating: "Arguments on Def. Motion to Suppress; Court reserves judgment ... Espinosa, J." Petitioner’s Exhibit 1, p. 2. The information does not show what the ruling was and does not have any subsequent orders by Judge Espinosa.
Dr. Meisler testified nearly a decade after the relevant events at issue--the petitioner’s police interviews and criminal trial. Although the petitioner’s school records and presentence investigation report reflect that the petitioner had learning difficulties and behavioral problems, there is no evidence that the petitioner did not understand the police advisement or that his cooperation was involuntary. Dr. Meisler discussed the various factors that may have influenced the petitioner’s understanding, thinking, and judgment. The petitioner’s reading impairments resulted in the police reading his statement to him before he signed it, which is also how the police advised him of the rights he was waiving before the petitioner signed the advisement of rights form. There is no evidence, however, that the petitioner did not understand what was verbally communicated to him by the police.
The petitioner testified that he wanted another person present at the police interview because he did not trust the police at that time, did not know what he was signing, and that that person could read to him what the police was asking him to sign. Testimony by Detective Eric Kovanda at the suppression hearing indicated that the petitioner had trouble reading and writing, and that the police had read the contents of the statement to him. Respondent’s Exhibit AA, p. 86; Respondent’s Exhibit Q. There was no evidence from Attorney Romano that the petitioner was unable to communicate with him, assist in his own defense, etc.
Given the forgoing, the court concludes that the petitioner has failed to show that Attorney Romano rendered deficient performance by not having an expert review and assess the petitioner’s school records. The information from the records and Dr. Meisler had at best marginal usefulness to the defense. Thus, even if the court were to presume deficient performance, the petitioner has failed to show how he was prejudiced thereby because he has not demonstrated that he would have prevailed on either a motion for expenses or a motion to suppress.
(E) & (F) Failures to Meaningfully Discuss Evidence and Plea Deal
The petitioner’s next claim of deficient performance is that Attorney Romano failed to meaningfully discuss the evidence against the petitioner, as well as that counsel convinced the petitioner that he would win at trial. A tangential allegation is that Attorney Romano failed to discuss the option of a plea deal with the petitioner and convinced him not to take the state’s plea offer.
The petitioner was represented by a public defender prior to Attorney Romano’s involvement, which occurred because the petitioner wanted to proceed to trial with privately retained counsel. One or more plea offers were made and communicated by predecessor counsel and later by Attorney Romano, and the state’s plea offer was open to the petitioner up to the time of trial. Attorney Romano testified credibly that he explained any plea offers made during the course of his representation. According to Attorney Romano, he also reviewed the evidence with the petitioner. However, the petitioner testified that little to nothing was explained to him by counsel.
The court does not find credible the petitioner’s testimony that nothing was explained to him about the plea offers or the evidence against him. Consequently, the court concludes that the petitioner has failed to prove both that counsel failed to meaningfully discuss with the petitioner the evidence anticipated at trial and that counsel did not meaningfully explain any plea offer. As to any braggadocio by Attorney Romano and his ability to prevail at trial, the petitioner and his family opted to hire counsel to take the case to trial, rather than rely on the representation of an attorney from the public defenders’ office. Trial counsel’s indications about his abilities reflect the zealous representation counsel would bring to the trial and are not a basis for ineffective assistance.
(G) Failure to Request Jury Instruction on Affirmative Defense to Felony Murder
Another alleged basis for deficient performance by Attorney Romano is that he failed to request a jury instruction on the affirmative defense to felony murder. Attorney Romano was aware of the affirmative defense to felony murder. See General Statutes § 53a-54c. Nevertheless, he explicitly requested that the trial court not charge the jury on the affirmative defense.
Attorney Romano’s defense strategy was to show that the petitioner had no knowledge of the events that transpired and that Adrien Dean was responsible for putting him in that situation. The affirmative defense would have necessitated the petitioner affirmatively showing that he did not know that Dean was armed. Attorney Romano testified that he had two concerns: first, that if the jury were given the affirmative defense charge, that the petitioner could be perceived as conceding he knew that a robbery was going to take place, but that he did not know Dean was armed; and second, that it would be perceived by the jury that the burden is on the defense to prove that he was not guilty, when it is the state that has the burden of proof. Attorney Romano wanted to be able to focus his closing arguments on the state having failed to meet its burden of proof and not address the defense also meeting its respective burden of proof as to the affirmative defense. Thus, Attorney Romano’s strategy resulted in the tactical decision to rely on cross examination and not utilize the affirmative defense to felony murder.
The court concludes that Attorney Romano’s strategy was reasonable and within the bounds of effective representation. The petitioner has continued to maintain to the present that he did not know he and Dean were meeting the victim so he could be robbed. Attorney Romano’s concerns had a foundation and informed his strategic decision to not raise the affirmative defense to felony murder. There was no basis to request a jury instruction for a defense and, therefore, Attorney Romano could not have rendered ineffective assistance for failing to request a jury instruction on the affirmative defense to felony murder.
Furthermore, the Supreme Court has affirmed a trial court instructing a jury on the affirmative defense to felony murder over defense counsel’s objection. State v. Small, 242 Conn. 93, 99-108, 700 A.2d 617 (1997). The trial court in the petitioner’s matter could have, but did not, instruct the jury on the affirmative defense, even over Attorney Romano’s objection, so long as there was evidence supporting the instruction. The trial court not exercising its discretion in this manner bolsters the lack of prejudice to the petitioner. The petitioner has also not shown that had the instruction been given, that the outcome of the trial would have been different.
Lastly, because the court has found that Attorney Romano’s defense strategy as to the affirmative defense was reasonable and within the bounds of effective representation, the claim in subparagraph (I) (i.e., failure to have the petitioner testify in support of the affirmative defense to felony murder) is denied for the reasons already articulated by the court.
(H) Failure to Find Witness and Present Testimony
The petitioner further avers that Attorney Romano was deficient because he did not call Teara Rosario as a defense witness at the time of the criminal trial. The petitioner gave counsel very little useful information-a vague description-that would assist the defense investigation. The police report also did not identify Teara Rosario. Attorney Romano was uncertain if an investigator would be able to find "T" based on the information and description he had. After his motion for expenses was denied, and the petitioner and his family were unable to pay for the additional services pursuant to the retainer agreement, Attorney Romano did not hire an investigator.
"Inasmuch as ‘[c]onstitutionally adequate assistance of counsel includes competent pretrial investigation’; Siemon v. Stoughton, 184 Conn. 547, 554, 440 A.2d 210 (1981); ‘[e]ffective assistance of counsel imposes an obligation [on] the attorney to investigate all surrounding circumstances of the case and to explore all avenues that may potentially lead to facts relevant to the defense of the case.’ (Internal quotation marks omitted.) Williams v. Commissioner of Correction, 100 Conn.App. 94, 102, 917 A.2d 555, cert. denied, 282 Conn. 914, 924 A.2d 140 (2007).
"Nevertheless, ‘strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; [but] strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.
" ‘The reasonableness of counsel’s actions may be determined or substantially influenced by the [petitioner’s] own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the [petitioner] and on information supplied by the [petitioner]. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.’ Strickland v. Washington, supra, 466 U.S. at 690-91, 104 S.Ct. 2052.
" ‘Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.’ State v. Talton, 197 Conn. 280, 297-98, 497 A.2d 35 (1985). Furthermore, ‘[t]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense.’ Id., at 297, 497 A.2d 35.
"Finally, our habeas corpus jurisprudence reveals several scenarios in which courts will not second-guess defense counsel’s decision not to investigate or call certain witnesses or to investigate potential defenses, such as when: (1) counsel learns of the substance of the witness’ testimony and determines that calling that witness is unnecessary or potentially harmful to the case; ... (2) the defendant provides some information, but omits any reference to a specific individual who is later determined to have exculpatory evidence such that counsel could not reasonably have been expected to have discovered that witness without having received further information from his client; ... or (3) the petitioner fails to present, at the habeas hearing, evidence or the testimony of witnesses that he argues counsel reasonably should have discovered during the pretrial investigation ..." (Footnotes omitted.) Gaines v. Commissioner of Correction, supra, 306 Conn. 680-82.
Hiring one or more multiple expert witnesses can readily be distinguished from utilizing an investigator to find and interview a potential fact or eye witness who is identified in the police report. The police report placed an unknown woman (i.e., "T") inside the vehicle during the robbery and shooting. Reasonably competent defense counsel would hire and utilize an investigator to conduct an investigation that is limited in scope: finding "T" and discerning if she had information that would assist the defense. The court finds that Attorney Romano was deficient for not utilizing an investigator to locate Teara Rosario.
Teara Rosario testified at the habeas trial that she was aware of the petitioner’s criminal matter. However, she was not willing to come forward and assist the defense at the time of the trial for fear of the co-defendant, Dean. Efforts by counsel to locate Teara Rosario would not, therefore, have likely resulted in her cooperating with the investigation in a manner that assisted the defense.
According to Teara Rosario’s habeas testimony, she was in the car when Dean called the petitioner and requested that he pick him up. She was also in the car when the petitioner arrived at the eventual crime scene and when the victim was shot. Although the petitioner’s post-trial brief describes Teara Rosario’s testimony as corroborating the petitioner’s assertion that he did not know Dean was going to commit a robbery, that he followed Dean’s directions because he was armed and ordering the petitioner at gun point, and that the petitioner acted under duress, the court does not concur with those characterizations, nor with the degree of corroboration assigned to them by the petitioner. The petitioner conveniently glosses over other critical evidence such as the ballistics evidence and testimony from James Stephenson at the criminal trial, which established that multiple shots were fired from two different firearms. Transcript (March 16, 2011), p. 133.
Teara Rosario could not hear all of what was said between Dean and the petitioner. Teara Rosario had known the petitioner for a long time and they were good friends. Yet she did not provide any helpful information to the police or the defense in his support. The petitioner only knew her as "T" and gave that limited information to Attorney Romano. Although this court has concluded that Attorney Romano was deficient for not utilizing an investigator to locate Teara Rosario, it would be too speculative to assess whether the absence of her testimony at the criminal trial inured to the petitioner’s prejudice. Rosario’s testimony at the habeas trial does not undermine this court’s confidence in the outcome of the jury trial, for it neither rises to the level of creating reasonable doubt nor proves the affirmative defense.
III. Count Three-Due Process and Right to a Fair Trial Violations
The third count of the second amended petition alleges that the petitioner’s right to due process and a fair trial were violated when the trial court denied his motion for expenses to hire expert witnesses, because Attorney Romano was operating under a conflict of interest, and the jury was not instructed on the affirmative defense to felony murder. The court has addressed these claims sufficiently in the context of preceding claims and relies on those discussions to similarly resolve the allegations in count three, including the petitioner’s procedural default for failure to raise these claims on direct appeal.
IV. Count Four-Actual Innocence
The petitioner’s final claim is that he is actually innocent. The petitioner asserts that Teara Rosario’s testimony will establish that he is actually innocent. The standard for actual innocence claims is not easily met.
"In Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997), our Supreme Court ‘held that the proper standard for evaluating a freestanding claim of actual innocence ... is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence-both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial-he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom ... no reasonable fact finder would find the petitioner guilty of the crime.’ (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 80-81, 967 A.2d 41 (2009).
" ‘[O]ur Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence ... This court, nevertheless, has held that a claim of actual innocence must be based on newly discovered evidence. In Weinberg v. Commissioner of Correction, 112 Conn.App. 100, 119, 962 A.2d 155, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009), "the Appellate Court, stated: [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered ... This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner’s criminal trial by the exercise of due diligence.’ (Citation omitted; internal quotation marks omitted.) Sargent v. Commissioner of Correction, 121 Conn.App. 725, 734-35, 997 A.2d 609, cert. denied, 298 Conn. 903, 3 A.3d 71 (2010)." Gaston v. Commissioner of Correction, 125 Conn.App. 553, 558-59, 9 A.3d 397 (2010), cert. denied, 300 Conn. 908, 12 A.3d 1003 (2011).
The testimony from Teara Rosario is not newly discovered evidence because it was available, but for the alleged failures to investigate by counsel and her unwillingness to testify, at the time of the criminal trial. Even if this court assumes her habeas testimony is newly discovered evidence, it is far from clear and convincing and does not prove the petitioner’s innocence. Furthermore, viewing Teara Rosario’s habeas testimony in light of all the criminal trial evidence presented at the habeas trial, the court cannot conclude that a reasonable fact finder would find the petitioner not guilty of the offenses.
CONCLUSION
Based upon the foregoing, the court concludes that the petitioner has failed to meet his burden of proof as to all claims in the second amended petition. Judgment shall enter for the respondent and the petition for a writ of habeas corpus is denied.
It is so ordered.