Opinion
No. CV-03 0822724S
October 25, 2007
MEMORANDUM OF DECISION
The petitioner has brought this amended petition for a writ of habeas corpus in three counts, alleging in count one, prosecutorial misconduct; in count two, that he was deprived of the effective assistance of trial counsel, in violation of the United States and Connecticut constitutions; and in count three, that he was deprived of the effective assistance of appellate counsel for failing to raise the issue of prosecutorial misconduct. The petitioner seeks, as relief, an order from the court to release him from confinement; that the court vacate the judgment of conviction and remand the case for a new trial; and such relief as the law or equity may allow. Respondent's return denies the petitioner's material allegations and that he is entitled to habeas corpus relief. In addition, respondent claims procedural default as to count one of the amended petition. Petitioner is currently in the custody of the respondent.
The matter came before the court on July 3, 2007, for a trial on the merits. Witnesses included the petitioner and his trial and appellate counsel, John Stawicki. As additional evidence, the respondent offered six exhibits. Based on the court's review of the testimony and documentary evidence, judgment enters denying the petition for a writ of habeas corpus.
FINDINGS OF FACTS
The petitioner was the defendant in a case entitled State v. James Davis in docket number CR13-85757 that was prosecuted in the Judicial District of Hartford. The petitioner was charged and convicted, after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134a(a)(4).
The petitioner was sentenced by the trial court, Fasano, J., to twelve years of incarceration consecutive to the sixty-six years he was serving at the time of conviction.
The Appellate Court affirmed the petitioner's conviction for robbery in the first degree. State v. Davis, 33 Conn.App. 915 (1993) (per curiam). The petitioner has exhausted all of his state remedies.
In the first count, the petitioner alleges prosecutorial misconduct. In the return, the respondent raises the affirmative defense of procedural default for failure of the petitioner to address the claim at trial or on direct appeal. In the reply, the petitioner did not set forth a specific cause for the procedural default as required by Practice Book § 23-31(c). Instead, the petitioner denied that procedural default occurred or resulted from anything that he did and continued to claim prejudice. The petitioner testified at the habeas trial that Stawicki had failed to raise the prosecutorial misconduct issue on appeal.
Practice Book § 23-30(b) provides: "The return shall respond to the allegations of the petition and shall allege any facts in support of any claim of procedural default, abuse of the writ, or any other claim that the petitioner is not entitled to relief."
Practice Book § 23-32(c) provides: "The 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 in the petition."
In count two, the petitioner alleges that his trial counsel was ineffective in the following manner:
1. Counsel made several errors while cross-examining a witness, Dani Carlson. Specifically, counsel opened the door to allow otherwise inadmissible evidence and when the state's attorney asked the witness improper questions, counsel failed to object in a timely manner.
2. Counsel cross-examined Dani Carlson in such a way that actually bolstered her testimony, instead of impeaching her, because of counsel's carelessness and lack of preparation.
3. Counsel failed to obtain and introduce Dani Carlson's prior statement given in Florida that would have helped him prepare and investigate the case and properly cross-examine Carlson.
4. Counsel failed to introduce a letter that Dani Carlson had written to Reginald Will that actually supported the defense theory that Carlson was a co-participant in the crime.
5. Counsel failed to move to reopen testimony in order to introduce an inconsistent statement of Dani Carlson and allowed Carlson to leave the courtroom prior to the presentation of the defense.
The petitioner testified at the habeas trial that he was represented by Stawicki in four trials. Stawicki confirmed that he represented the petitioner on all four cases. Stawicki testified that he had sufficient time to prepare for the trial. Stawicki testified that prior to the trial, the petitioner was offered a ten-year concurrent sentence to serve, but the petitioner insisted on having his trial. The petitioner insisted that he was innocent. Stawicki testified that the petitioner was given sufficient time to consider the plea offer. The petitioner denied that he was offered a plea bargain prior to trial that would have resulted in a concurrent sentence with the other three cases. The trial followed. Stawicki cross-examined Dani Carlson, who had been given immunity from prosecution by the state. The codefendant testified for the petitioner at the trial according to Stawicki. The petitioner sought to have his brother testify at the trial, but, at the end, the petitioner's brother refused to testify for the petitioner.
In count three, the petitioner alleges that he was denied the effective assistance of appellate counsel. As stated above, Stawicki also represented the petitioner in connection with the appeal. The petitioner alleges that Stawicki failed to raise the issue of prosecutorial misconduct when the state's attorney "asked questions which illicited (sic) inadmissible, prejudicial, bad character testimony which clearly prejudiced the Defendant and affected his right to a fair trial." In addition, he alleges that Stawicki "failed to raise the issue of the state's failure to promptly turn over exculpatory evidence, to wit, the letter from Dani Carlson to the Defendant which impeached her credibility, and would have allowed the defense to better investigate and prepare their defense."
Stawicki had no specific recollection of having discussed the grounds for the appeal with the petitioner, but it was his custom to do so. Stawicki testified that the letter in question was obtained from the state, but the petitioner already had the letter. Finally, Stawicki testified that during the trial the court had given curative instructions to the jury.
Additional facts will be discussed as necessary.
DISCUSSION Procedural Default and Ineffective Assistance of Appellate Counsel
The respondent has raised the affirmative defense of procedural default as to the petitioner's claim of prosecutorial misconduct, which was set forth in count one of the amended petition. "A petitioner who raises a constitutional claim for the first time in a habeas corpus proceeding must show (1) cause for the procedural default, i.e., the reason for failing to raise the claim at trial or on direct appeal, and (2) prejudice from the alleged constitutional violation. Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). When a petitioner fails to make the required showing, a court will not reach the merits of his claim. Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991)." Niblack v. Commissioner of Correction, 80 Conn.App. 292, 296 n. 5, 834 A.2d 779 (2003).
Standing alone, the petitioner's prosecutorial misconduct claim would be procedurally defaulted. However, although the petitioner did not specifically allege the cause for the default in the reply, as required under Practice Book § 23-31(c), he did allege that the procedural default occurred through no fault of his own. In count three of the amended petition, the petitioner claims that appellate counsel was ineffective for failing to raise the issue of prosecutorial misconduct on appeal. Thus, reading counts one and three together it is apparent that the petitioner's ineffective assistance of appellate counsel claim supplies the alleged cause for the procedural default. "[T]he interpretation of pleadings is always a question of law for the court . . . The modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Carpenter v. Commissioner of Correction, 274 Conn. 834, 842, 878 A.2d 1088 (2005). The court finds the pleadings to be sufficient "[a]s long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party . . ." Id. Thus, nothing short of ineffective assistance will excuse the default and permit the court to review the prosecutorial misconduct claim on the merits.
The same two-part test used for ineffective claims against trial counsel also applies to the petitioner's claims that his appellate counsel provided ineffective assistance. "In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction." (Internal quotation marks omitted.) Crocker v. Commissioner of Correction, 101 Conn.App. 133, 136, 921 A.2d 128, cert. denied, 283 Conn. 905, 927 A.2d 916 (2007). "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 . . . [The Connecticut] Supreme Court has stated that [i]t is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment . . . Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation . . .
"The seminal case of Bunkley v. Commissioner of Correction, [ 222 Conn. 444, 610 A.2d 598 (1992)], considered the prejudice prong of the Strickland analysis in claims of ineffective assistance of appellate counsel. Rejecting the petitioner's contention that the proper analytical focus is the probable result of the appeal, the Bunkley court explained that the proper focus instead is the result of the trial. Id., 454. To satisfy the prejudice prong, a petitioner must, thus, establish that, as a result of appellate counsel's deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. Put another way, he 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. Id. In order to prevail on a claim of ineffective assistance of appellate counsel, therefore, a habeas petitioner must show not only that his appeal would have been sustained but for counsel's deficient performance, but also that there is a reasonable probability that the trial verdict would have been different." (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).
The petitioner testified at the habeas trial that Stawicki did not raise issues of prosecutorial misconduct on appeal. Stawicki did not contradict that testimony. Counsel's omission of this claim on appeal, however, does not necessarily amount to ineffective assistance. There was absolutely nothing presented at the habeas trial evidencing a reasonable probability that, had counsel raised the prosecutorial misconduct claims, the outcome of the petitioner's appeal or jury trial would have been different. The petitioner has failed to prove prejudice; thus, he cannot prevail on his ineffective assistance of appellate counsel claim. A reviewing court can find against a petitioner on either part of the Strickland analysis, whichever is easier. Strickland v. Washington, supra, 466 U.S. 697. In addition, due to the failure to prove prejudice the petitioner cannot overcome the procedural default of his prosecutorial misconduct claims.
Ineffective Assistance of Counsel
"In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) 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 adversary 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 . . .
"The second part of the Strickland analysis requires more than a showing that the errors made by counsel may have had some effect on the outcome of the proceeding . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Citations omitted; internal quotation marks omitted.) Crocker v. Commissioner of Correction, supra, 101 Conn.App. 136-37.
Here, the petitioner makes multiple claims that trial counsel was ineffective. Stawicki testified that he was prepared for the trial of the petitioner's case. Despite the passage of thirteen years since the trial, Stawicki recollected many of the issues and events both at the trial and outside the trial. A review of the trial transcript with respect to Stawicki's examination of Dani Carlson demonstrates that counsel performed adequately in his attempt to bring out bias and prejudice on the part of Carlson. It is therefore clear to this court that counsel was familiar with the petitioner and his cases. There were several instances where counsel delved into areas that were not appropriate; however, the court provided the jury with curative instructions. Over all, Stawicki's performance during the trial does not demonstrate that he was ill-prepared for the trial as claimed by the petitioner.
During Carlson's testimony, Stawicki requested that Carlson remain in Connecticut to be reexamined, if necessary, after the testimony of Robert Will. At the end of Carlson's testimony, on August 5, 1992, the state's attorney and Stawicki discussed on the record possible deposition of Carlson, in anticipation of Will's testimony. Carlson was scheduled to leave on a flight for Michigan, where she resided at the time of trial. Her son was ill. Stawicki asked the court for a recess in order to discuss the issue with the petitioner. After the recess, Stawicki told the court: "I wanted to formally withdraw my subpoena of the last witness. We're not going to be calling her. That's Dani Carlson." (Exhibit F, Tr. 8/4/92, p. 144.) At that point, the court excused Carlson from further testimony. During the announcement by petitioner's counsel on the record, the petitioner did not object to the release of Carlson as a future witness.
Carlson had testified three other times against the petitioner in connection with the other robbery charges for which the petitioner was convicted. Carlson's testimony rendered the case against the petitioner very strong. Stawicki had represented the petitioner in connection with the three other robbery charges. The petitioner had been sentenced to serve sixty-six years.
The court credits the testimony of Stawicki and has considered all of the evidence presented. There is absolutely no evidence of prejudice in this case. Consequently, there is no need to conduct an analysis on the first prong of the Strickland test because the petitioner has failed to prove that he was in any way prejudiced by counsel's performance. "Because both prongs [of the Strickland test] must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong . . . Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim." (Internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn.App. 1, 11-12, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).
The petitioner's claims in counts one, two and three have no merit. Accordingly, the writ of habeas corpus is denied. The petitioner shall submit a judgment file to the Clerk's Office within thirty days of the date of this decision.