Opinion
TSRCV144006694S
01-21-2020
Joseph Joyner (Inmate #385150) v. Warden, State Prison
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Seeley, Hope C., J.
MEMORANDUM OF DECISION
Seeley, J.
The petitioner, JOSEPH JOYNER, brings this petition for a writ of habeas corpus claiming that his trial counsel, Attorney James Pastore, provided him ineffective assistance in violation of the state and federal constitutions. The petitioner is seeking to have his convictions vacated and the matter be returned to the trial court for further proceedings.
Based on the credible evidence presented and for the reasons stated below, the petition is denied.
I
PROCEDURAL HISTORY
The petitioner was a criminal defendant in the matter of State v. Joyner, FBT-CR11-259300-T in the judicial district of Fairfield. The petitioner was arrested pursuant to an arrest warrant on or about August 10, 2011. He originally was charged in a six-count information dated August 22, 2011 with the following offenses in connection with an incident that occurred in Bridgeport on or about July 30, 2011: murder in violation of General Statutes § 53a-54a(a); three counts of attempted murder in violation of General Statutes § § 53a-49 and 53a-54a(a); reckless endangerment in the first degree in violation of General Statutes § 53a-63(a), and carrying a pistol without a permit in violation of General Statutes § 29-35(a).
On September 28, 2011, the state filed a substitute information alleging ten counts and charged the petitioner with the following offenses: manslaughter in the first degree in violation of General Statutes § 53a-55(a)(1); conspiracy to commit murder in violation of General Statutes § § 53a-48 and 53a-54a(a); three counts of attempted murder in violation of General Statutes § § 53a-49 and 53a-54a(a); three counts of assault in the first degree in violation of General Statutes § 53a-59(a)(1); and carrying a pistol without a permit in violation of General Statutes § 29-35(a). The petitioner entered pleas of not guilty to each count and elected a trial by jury.
On May 8, 2013, the petitioner pleaded guilty to attempted murder in violation of General Statutes § § 53a-49 and 53a-54a(a) and carrying a pistol without a permit in violation of General Statutes § 29-35(a). On July 26, 2013, Judge Devlin sentenced the petitioner to a total effective sentence of twenty-two years to serve.
Thereafter, on or about October 6, 2014, the petitioner filed a petition for a writ of habeas corpus. After counsel was appointed, the petition was amended several times. The operative pleading is the fourth amended petition dated April 4, 2019 and filed on April 8, 2019, which alleges he was denied the effective assistance of trial counsel in violation of his state and federal constitutional rights. Specifically, the petitioner claims the performance of his trial counsel was deficient in four separate counts: (1) Count One: trial counsel rendered ineffective assistance of counsel by failing to properly explain the strength and weaknesses of the State’s case and the likelihood that the State would prevail at trial, and by failing to provide his professional advice to the petitioner concerning the State’s plea offer prior to the petitioner pleading guilty; (2) Count Two: trial counsel rendered ineffective assistance of counsel by failing to investigate and prepare an adequate defense; (3) Count Three: trial counsel rendered ineffective assistance of counsel by failing to properly explain the strength and weaknesses of the State’s case and the likelihood that the State would prevail at trial, and by failing to provide his professional advice to the petitioner concerning the probability of having the petitioner’s statement suppressed under the federal constitution; and, (4) Count Four: trial counsel rendered ineffective assistance of counsel by failing to properly explain the strength and weaknesses of the State’s case and the likelihood that the State would prevail at trial, and by failing to provide his professional advice to the petitioner concerning the probability of having the petitioner’s statement suppressed under the due process clause of the state constitution.
While the petitioner detailed numerous allegations against trial counsel in the operative petition, the court will address only those claims for which the petitioner presented evidence and provided a legal analysis in his post-trial brief. All other claims are deemed abandoned. See Walker v. Commissioner of Correction, 176 Conn.App. 843, 857-58, 171 A.3d 525 (2017) ("In light of the petitioner’s failure to brief the due process claim, we conclude that the habeas court properly deemed it abandoned"); Raynor v. Commissioner of Correction, 117 Conn.App. 788, 796, 981 A.2d 517 (2009) ("The petitioner’s failure to brief his first claim to the habeas court, namely, improper preparation and investigation by trial counsel, resulted in an abandonment of that claim"), cert. denied, 294 Conn . 926, 986 A.2d 1053 (2010).
The court heard the trial on this matter on April 8, 2019, April 15, 2019 and May 6, 2019. The petitioner called six witnesses: himself, Jimmy Joyner (petitioner’s father), Attorney James Pastore (trial counsel), Detective Jorge Cintron (Bridgeport Police Department), Detective Christopher Lamaine (Bridgeport Police Department), and Bryan Fischer (private investigator). The petitioner also introduced numerous exhibits, including a copy of the certified clerk’s file, transcripts of the change of plea hearing and sentencing hearing, trial court pleadings, a DVD of the police interrogation of the petitioner, transcripts of police interviews of various witnesses (Jimmy Joyner, Kahin McCrary, Irquan Smith, Carols Pagan and Hason Fleming). The respondent did not call any witnesses or introduce any exhibits.
II
FINDINGS OF FACT
The court has reviewed all of the evidence presented and makes the following findings of fact.
On August 10, 2011, the petitioner was arrested and charged with murder, three counts of attempted murder, reckless endangerment in the first degree and carrying a pistol without a permit in connection with an incident that had occurred on July 30, 2011 at approximately 11:43 p.m. in the area of Washington Park in the city of Bridgeport, Connecticut. There were two groups of individuals involved in an altercation in which four individuals were shot, Blair Belcher, Andrew Stephenson, Keith Teasly and Irquan Smith. Belcher was shot twice, in his left arm and in his chest. He subsequently died as a result of the gunshot wound to his chest. One group of individuals were from the west side of Bridgeport and the other group was from the East side of Bridgeport.
The state’s evidence against the petitioner included witnesses who provided statements to the police identifying the petitioner as one of the shooters. These witnesses told the police that the petitioner was a passenger in a vehicle with several other individuals, and that the petitioner and another occupant of the vehicle exited the vehicle and shot into the crowd. After the petitioner was arrested, the state located one of the individuals who the petitioner told the police was in the vehicle with the petitioner, Howard Adkins. Adkins also told the police that the petitioner was the shooter. Another witness, Carlos Pagan, who had been friends with the petitioner, told the police that the petitioner confessed to him on the night of the shooting that he (the petitioner) had exited his car that night and fired shots. The petitioner told his friend that he saw the decedent fall to the ground and that he shot an individual in the buttocks.
The petitioner refers to "Howard Atkins" while the state’s discovery disclosure refers to "Howard Adkins."
On August 10, 2011, the petitioner was attending court at G.A. #2 in Bridgeport for an unrelated criminal case. He was arrested at court by Bridgeport police officers in connection with the July 30, 2011 shooting near Washington Park and transported to the Bridgeport Police Station for the booking process.
The petitioner’s father, Jimmy Joyner, called the Bridgeport Police Department and spoke with Lieutenant Christopher Lamaine. He asked to speak with his son. Jimmy Joyner then went to the Bridgeport Police Department. The police had not yet interviewed the petitioner. Lieutenant Lamaine and Detective Jorge Citron spoke with Jimmy Joyner for approximately twelve minutes. Jimmy Joyner told the police that the petitioner told him that he was present during the shooting and the person who was the shooter had left Bridgeport and gone to Atlanta. Jimmy Joyner wanted to speak with his son so he could "talk some sense into his head." Cintron and Lamaine advised Jimmy Joyner to tell the petitioner to cooperate with the police and tell them what happened. Jimmy Joyner was placed in an interview room.
Lieutenant Lamaine brought the hand-cuffed petitioner into the interview room where the petitioner’s father was present. The petitioner had been told that his father was at the police department. Lamaine removed the petitioner’s handcuffs. Detective Cintron entered the interview room. Lamaine asked Jimmy Joyner to give his keys to Cintron since there was a small knife on the key chain. Cintron left the interview room with the keys and then Lamaine orally read the Miranda advisement of rights to the petitioner. The petitioner said he understood his rights. Cintron reentered the interview room. Lamaine told Jimmy Joyner and the petitioner they would give them a few minutes and he and Cintron exited the room.
Lamaine advised the petitioner as follows: "You have the right to remain silent. If you talk to any police officer or say anything it can and will be used against you in a court of law. You have the right to consult with a lawyer before you are questioned and may have one with you during questioning. If you cannot afford a lawyer, one will be appointed for you if you wish before any questioning. If you wish to answer any questions, you have the right to stop answering at any time if you wish to talk to a lawyer and may have one with you during further questioning."
Jimmy Joyner repeatedly urged the petitioner to cooperate. He told the petitioner, "Listen to me, man. I know it’s hard to go against the code, brotha, but let me tell you something, man, if I’m sitting in jail for ... murder, as tough as I might seem, if I didn’t shoot to kill somebody ... I’m telling’ the ... truth." Jimmy Joyner also stated, "You need to tell these peoples what really happened, man ... Don’t leave out not details, don’t try to cover for your boy, don’t try to cover for none of them ..." He further stated, "That dude, that scumbag that did it? I know it’s hard, man, but you’re gonna have to swallow your pride about it and man up. ‘Cause trust me, when the table turn they gonna do the same damn thing ... You know you didn’t kill nobody. Tell ‘em ... who did it ... I’m telling you now, that code of don’t talk don’t mean shit right now. This is your life, brotha."
The conversation between Jimmy Joyner and the petitioner lasted approximately four and one-half minutes. When Lt. Lamaine entered the interview room, he stated, "I read you your rights. You said you understood them. Do you want to speak with us? We have a few questions."
At that point, Lamaine asked Jimmy Joyner to leave and offered to have him stay nearby in another room. Jimmy Joyner left the room. During the questioning by Lamaine and Cintron the petitioner admitted he was present at the shooting near Washington Park in Bridgeport on July 30, 2011 and had arrived there as a passenger in a vehicle. He identified the driver as "Rashawn" or "Rasheen" and the other passenger as "Howard." The petitioner told the police he was the only back seat passenger. He claimed that some kids in Washington Park flashed a gun at them and that Howard jumped out of the car and started shooting. The petitioner repeatedly denied that he had shot a gun that evening and also stated numerous times that he never got out of the car that evening.
Lamaine and Cintron told the petitioner they had statements from individuals who saw the petitioner shooting a gun that evening, but they explained to him there was a difference between shooting the gun with the intent to kill and shooting a gun and hitting someone in the leg. Cintron told the petitioner, "You’re getting an opportunity to help yourself. You understand, you see a window right here, we’re giving you this window, but we can’t do it for you. Only you can take the opportunity and go through that window, man. Listen, you shot a gun, but you didn’t, you did not kill anyone." Lamaine stated, "You had the gun ... Maybe you weren’t aiming at the kid so you know you didn’t kill him ..."
Cintron stated, "You, you don’t look like a killer to me. I mean, you made a mistake ... just own it up and help yourself, don’t go down for murder, man." Shortly thereafter, the petitioner stated that if he told them the truth, they would still go after him for murder. Lamaine responded, "[W]e’ll let court deal with who gets charged with what. You’re arrested now and that’s not gonna change. But the facts, the truth, if you didn’t kill somebody, that boy’s parents, your own father is gonna think, have doubts if you killed him ... If you didn’t kill him, everybody’s gotta know the truth. Your father wants to know the truth ... And you can’t sit there and say that you don’t think there’s a difference between putting one in a kid’s chest and missing a kid. You’re smarter than that."
The petitioner then admitted that when Howard got back into the car after shooting the gun, the petitioner exited the car and shot the gun in the air. After being confronted with an inconsistency, the petitioner then stated that the petitioner took the gun, which he admitted was a .22 caliber firearm, and shot it at an individual who was wearing an orange shirt and who was running near the slides in the park. The petitioner claimed that he did not hit the person.
Petitioner’s trial counsel in the criminal case was James Pastore, an experienced criminal defense attorney who graduated law school in 1998. For approximately ten years after graduation, he worked for the Law Offices of Phillip Russell in Greenwich, Connecticut. Subsequently, he was hired by the Office of the Public Defender and initially was assigned to the Norwalk Superior Court for approximately six months and then he was promoted to the serious felony docket, known as Part A, for the Fairfield Judicial District located at the Bridgeport Superior Court. Attorney Pastore currently is an Assistant Public Defender and remains assigned to the Fairfield Judicial District.
On August 25, 2011, Attorney Pastore filed an appearance to represent the petitioner. During his representation, he obtained discovery, including the police reports, witness statements and a DVD of the petitioner’s interview with the police on August 10, 2011. On August 11, 2011, Attorney Pastore also filed a motion for disclosure prior to the probable cause hearing. In response, the state disclosed numerous documents, including police reports, arrest warrants, search and seizure warrants, photo arrays, ballistic reports, photographs, and video and audio statements of witnesses, as detailed in its disclosure dated September 9, 2011. On May 14, 2012, Attorney Pastore sent a memo to the prosecutor in which he indicated he had been reviewing the witness statements and was having transcripts of those statements prepared. He further indicated that in reviewing the petitioner’s statement, he realized that he had not been provided the petitioner’s second recorded statement to the police for which he had been present and he had not received a copy of the petitioner’s cell phone records.
On September 11, 2012, the state disclosed an additional 249 pages of discovery and twenty-three discs containing witness interviews, of which seventeen had not previously been disclosed. Attorney Pastore filed a motion for continuance, indicating that "[a]ll of the previously mentioned statements need to be reviewed by defense counsel and more importantly, the defendant himself" and he requested a continuance so that he could "review, digest, prepare and speak with his client in defense of the charges currently pending against him." The court (Devlin, J.) granted Attorney Pastore’s motion for continuance. On October 18, 2012, Attorney Pastore filed motion for disclosure relating to information he had reviewed in the state’s disclosure on September 12, 2012, which also was granted. The state continued to provide discovery during the spring of 2013, including an audio interview of Dasheen Brown conducted by police on April 2, 2013.
The petitioner was interviewed a second time by the police with Attorney Pastore and the prosecutor present on September 15, 2011. The purpose of the second interview was for the petitioner to identify Carlos Pagan as another shooter during the incident at Washington Park on July 30, 2011. In the second police interview, the petitioner admitted that he shot in the direction of someone who was wearing an orange shirt. One of the individuals who was shot was wearing an orange shirt. Additionally, after the petitioner was arrested, the state located one of the individuals who the petitioner claimed was in the vehicle with the petitioner, Howard Adkins. The police conducted a recorded interview of Adkins on April 30, 2013, which was disclosed to Attorney Pastore on May 6, 2013. This witness contradicted the petitioner’s version of events and told the police that the petitioner was the shooter.
Attorney Pastore met with the petitioner numerous times, including at Walker Correctional Institution, the facility where the petitioner was being held since he was unable to post bond. Attorney Pastore reviewed the discovery with him, including the witness statements of his father, Jimmy Joyner, and the witness statements of Kahin McCrary, Irquan Smith, Carlos Pagan, and Hason Fleming. Attorney Pastore also reviewed a transcript of the petitioner’s first police interview with the petitioner.
Smith and Fleming both identified the petitioner as the shooter. Smith told the police he was 80% positive of his identification. Fleming also identified the petitioner as one of the shooters. Fleming claimed he was standing next to Smith and the decedent at the time of the shooting and he saw the petitioner exit the passenger side of the vehicle and point a gun at them and then fired shots at them. Carlos Pagan told the police that the petitioner told him about three hours after the incident that he (the petitioner) got out of the car and started shooting, he saw the decedent fall after he was shot and he shot someone in the buttocks. Pagan also told the police that he was aware that prior to the Washington Park shooting, the petitioner possessed a 22 caliber firearm.
Attorney Pastore filed a number of standard motions on behalf of the petitioner, including a motion to suppress any oral or written statements made by the petitioner. The trial court (Devlin, J.) continued the motions to suppress to be heard at the time of trial. As part of his preparation of the case, Attorney Pastore conducted legal research into the viability of prevailing on suppressing the petitioner’s statement to the police, including the law of agency and whether the petitioner’s father had become an agent of the state, whether the incriminating statements were made voluntarily, and whether the statements were obtained without the proper advisement of the petitioner’s Miranda rights. Attorney Pastore discussed the suppression issues with the petitioner, including whether the police had used his father as an instrument of the state to coerce the petitioner into confessing and the other suppression issues. Attorney Pastore concluded that he would not be successful in suppressing the petitioner’s statement and he informed the petitioner of his conclusion. Attorney Pastore also understood that even if he were successful in suppressing the petitioner’s statement, there was other incriminating evidence against the petitioner.
After reviewing the state’s evidence and interviewing the petitioner, Attorney Pastore determined that the state’s case, cumulatively, was strong due to the number of witnesses who indicated that the petitioner fired a gun into a crowd of individuals, as well as the incriminating statements he made to the police. Prior to the petitioner pleading guilty, Attorney Pastore reviewed the evidence against him and discussed the strengths and weaknesses of the state’s case, reviewed the maximum sentences for the charges he was facing if he had gone to trial, and explained that the petitioner had a right to have a trial, but that in his opinion, it was likely the state would prevail after a trial. Once the state offered a total effective sentence of twenty-two years of incarceration and reduced the number of charges to two offenses, he advised the petitioner that he thought it was in the petitioner’s best interest to enter a plea of guilty to the two charges based on all of the circumstances known to him at the time of the change of plea hearing. He believed that the offer of twenty-two years of incarceration was a "good" offer. He provided professional advice to the petitioner as to the best course of action in deciding whether to plead guilty or elect to go to trial.
On May 8, 2013, the state filed a second substitute information and charged the petitioner with attempted murder in violation of General Statutes § § 53a-49 and 53a-54a(a) and carrying a pistol without a permit in violation of General Statutes § 29-35(a). Specifically, the state alleged in count one that on July 30, 2011, at approximately 11:43 p.m., in the City of Bridgeport at the area of Washington Park, the petitioner "... with intent to cause the death of another person, did shoot with a firearm and attempt to cause the death of another person ..." In count two the state alleged that the petitioner "... did carry on his person a pistol, without a legal permit therefore, and not being within his dwelling or place of business ..." The petitioner pleaded guilty to both charges before the Honorable Robert J. Devlin on May 8, 2013.
The state summarized the underlying facts at the change of plea hearing as follows: "The defendant was arrested after an investigation ensued to an episode that occurred on July 30th, 2011, approximately 11:43 p.m. in the area of Washington Park, East Washington and Noble Avenues in the city of Bridgeport.
"At that time there was a large group attending or awaiting to attend a house party located on Noble Avenue. Most of the attendees were standing in the area- in the immediate area of the house that was located on Noble Avenue where the party was being held somewhere in the street, somewhere on the sidewalk bordering Washington Park ...
"The allegations and information are that the attendees to the party were mostly from one side of town. Shortly before the house party opened up, while people were still standing in that area, a silver or gray Pontiac containing several individuals, including Joseph Joyner, drove down Noble Avenue- from East Washington up Noble Avenue rather and stopped a short distance away from that party.
"At that time, Joseph Joyner, located on the passenger side of the car, exited the car and with a .22 caliber pistol in his hand opened fire on a crowd of individuals standing in the area of the sidewalk and metal rail fence ... which borders ... the Washington Park area. Several shots were fired, other shots were fired, the car with- containing Mr. Joyner in it left the area. The police were called ...
"As the investigation ensued there were some individuals who identified Mr. Joyner as one of the shooters. Once he was arrested he did admit some involvement in the ... shooting. He maintains that he shot the .22. However, he doesn’t admit that he shot at the group that was hit. He maintains that he shot sort of in the air or in the area of the park and not in the area of the sidewalk where the deceased was found.
"Consistent with that version of events, a collection of .22 shell casings were found in the area that Mr. Joyner admits to having shot the .22 caliber pistol. A collection of .25 caliber casings were found in and around about 50 yards away surrounding the area where ... the crime scene unit was able to identify the deceased’s body was when the medics worked on it ...
"[T]he State’s case suggests that Mr. Joyner, although he initiated this gun battle of sorts, he did not fire the shot that killed the deceased, Blaire Belcher [phonetic]. There also is no ballistic evidence to definitively say whether or not any of the three wounded, that is Erquan Smith [phonetic], Keith Teasley [phonetic], and Andrew Stephenson, what caliber bullet they were hit by. However, the evidence does suggest that it’s most likely that ... it was the .22 calibers based on the fact that the .25 seems to have been a return fire from other individuals in the park meaning that those bullets were going in the opposite direction of the .22 caliber."
During the plea canvass, Judge Devlin asked whether the prosecutor’s summary of the police investigation was a substantially accurate statement of what happened. The petitioner responded, "I think so. I’m not sure." Judge Devlin then stated, "Look, in a nutshell [the prosecutor] says you were in the car, you arrived at Washington Park, you got out of the car, and you fired a bunch of shots at people; is that true or not?" The petitioner responded, "Yeah, it’s true." Following the canvass, Judge Devlin found that the petitioner entered his pleas knowingly and voluntarily with the assistance of competent counsel, and that there was a factual basis for the pleas. Judge Devlin accepted the pleas and entered findings of guilty on each count. On July 26, 2013, Judge Devlin sentenced the petitioner to a total effective sentence of twenty-two years to serve.
III
DISCUSSION
A
Ineffective Assistance of Counsel Standard in the Plea Context
As recognized by the United States Supreme Court, "the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial." Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court also recognized that," ... if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and ... judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts." McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Therefore," ... all defendants facing felony trials are entitled to the effective assistance of competent counsel," id., and that includes in the context of counsel advising a defendant whether to plead guilty. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The decision to plead guilty is "ordinarily the most important single decision in any criminal case." (Internal quotation marks omitted.) Boria v. Keane, 99 F.3d 492, 496-97 (2d Cir. 1996), cert. denied, 521 U.S. 1118, 117 S.Ct. 2508, 138 L.Ed.2d 1012 (1997).
The legal principles in cases involving claims of ineffective assistance of counsel in connection with guilty pleas are governed by Strickland v. Washington, supra, 466 U.S. 668, and Hill v. Lockhart, supra, 474 U.S. 52. Under Strickland, an ineffective assistance of counsel claim "must be supported by evidence establishing 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 ..." Humble v. Commissioner of Correction, 180 Conn.App. 697, 704, 184 A.3d 804, cert. denied, 330 Conn. 939, 195 A.3d 692 (2018); see also Skakel v. Commissioner of Correction, 329 Conn. 1, 11, 188 A.3d 1 (2018), cert. denied, 139 S.Ct. 788, 202 L.Ed.2d 569 (2019). Furthermore, "[t]he longstanding test for determining the validity of a guilty plea is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." (Citations omitted; internal quotation marks omitted.) Hill v. Lockhart, supra, 474 U.S. 56.
Our courts have recognized that, "[t]o satisfy the performance prong under Strickland-Hill, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness ... A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases ... The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ... Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance ..." (Citations omitted; internal quotation marks omitted.) Humble v. Commissioner of Correction, supra, 180 Conn.App. 704-05.
Although the decision to plead guilty is the defendant’s to make, counsel "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." (Emphasis omitted.) Sanders v. Commissioner of Correction, 169 Conn.App. 813, 825, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904, 156 A.3d 536 (2017). "It is well-settled that defense counsel have a constitutional duty to convey any plea offers from the government and to advise their clients on the crucial decision whether to accept a plea offer." (Citation omitted; internal quotation marks omitted.) Cardoza v. Rock, 731 F.3d 169, 178 (2d Cir. 2013); Sanders v. Commissioner of Correction, supra, 169 Conn.App. 831; see also Vazquez v. Commissioner of Correction, 123 Conn.App. 424, 437, 1 A.3d 1242 (2010) (stating that "[a] defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable" [emphasis added; internal quotation marks omitted]), cert. denied, 302 Conn. 901, 23 A.3d 1241 (2011).
A criminal defense lawyer "performs effectively and reasonably when he or she provides a petitioner with adequate information and advice upon which the petitioner can make an informed decision as to whether to accept the state’s plea offer." Sanders v. Commissioner of Correction, supra, 169 Conn.App. 828. "[A]dvising the petitioner on the strengths and weaknesses of his case, alerting him to his potential exposure and explaining to him the terms of the plea offer is insufficient; without the professional advice as to the best course of action, such representation constitutes deficient performance." Id., 831.
In Sanders, our Appellate Court noted that its prior decision in Barlow v. Commissioner of Correction, 150 Conn.App. 781, 93 A.3d 165 (2014), "set forth an obligation for defense counsel to provide professional advice, assistance and an ‘informed opinion as to what pleas [to] enter’ and to make ‘an informed evaluation of the options and determine which alternative will offer the [petitioner] the most favorable outcome.’" (Internal quotation marks omitted.) Id., 832, citing Barlow v. Commissioner of Correction, supra, 150 Conn.App. 798. The Sanders Court "read Barlow to require counsel to provide the petitioner his professional advice, assistance and opinion on the petitioner’s best course of action concerning the state’s plea offer." Id., 832.
As noted in Strickland, "[t]he object of an ineffectiveness claim is not to grade counsel’s performance ..." Strickland v. Washington, supra, 466 U.S. 697. The sixth amendment "does not guarantee perfect representation, only a reasonably competent attorney ... Representation is constitutionally ineffective only if it so undermined the proper functioning of the adversarial process that the defendant was denied a fair trial." (Citations omitted; internal quotation marks omitted.) Harrington v. Richter, 562 U.S. 86, 110, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); see also Skakel v. Commissioner of Correction, supra, 329 Conn. 11.
A trial of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. The Strickland Court cautioned that, "[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 ..." (Citation omitted; internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 689; Skakel v. Commissioner of Correction, supra, 329 Conn. 11. The United States Supreme Court has emphasized that "the standard for judging counsel’s representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is all too tempting to second-guess counsel’s assistance after conviction or adverse sentence." (Internal quotation omitted.) Premo v. Moore, 562 U.S. 115, 122, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011).
In the context of guilty pleas, "[t]o satisfy the prejudice prong [under Strickland-Hill], the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial ..." (Citations omitted; internal quotation marks omitted.) Humble v. Commissioner of Correction, supra, 180 Conn.App. 705. As recently recognized by the Appellate Court, "an allegation of the ineffective assistance of counsel is a factor to be taken into consideration in determining whether a guilty plea was voluntary and intelligent, but for the plea and the judgment of conviction based thereon to be overturned on this ground, it must be demonstrated that there was such an interrelationship between the ineffective assistance of counsel and the plea that it can be said the plea was not voluntary and intelligent because of the ineffective assistance." (Citations omitted.) Henderson v. Commissioner of Correction, 181 Conn.App. 778, 797-98, 189 A.3d 135, cert. denied, 329 Conn. 911, 186 A.3d 707 (2018).
With respect to the prejudice prong, a petitioner "must make more than a bare allegation that he would have pleaded differently and gone to trial ..." (Citation omitted.) Colon v. Commissioner of Correction, 179 Conn.App. 30, 36, 177 A.3d 1162 (2017). "In evaluating whether the petitioner had met this burden and evaluating the credibility of the petitioner’s assertions that he would have gone to trial, it [is] appropriate for the court to consider whether a decision to reject the plea bargain would have been rational under the circumstances." (Internal quotation marks omitted.) Flomo v. Commissioner of Correction, 169 Conn.App. 266, 280, 149 A.3d 185 (2016), cert. denied, 324 Conn. 906, 152 A.3d 544 (2017). As noted in Strickland, "[u]nless 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." Strickland v. Washington, supra, 466 U.S. 687.
B
Count One: Ineffective Assistance Of Counsel By Failing To Render Professional Advice As To The Best Course of Action Prior To The Petitioner Pleading Guilty
In his post-trial brief, the petitioner initially argues that Attorney Pastore rendered ineffective assistance of counsel because no factual basis existed for the plea. He states, "Attorney Pastore should have known that there was no factual basis before the court to find the [p]etitioner guilty of attempted murder" since the factual basis that was placed on the record was that the petitioner shot one time in the air. The petitioner’s fourth amended petition alleges in count one that Attorney Pastore rendered ineffective assistance of counsel based on a number of grounds, but he never alleged that Attorney Pastore was ineffective because the factual basis before the court was not sufficient to support a finding of guilty for the crime of attempted murder.
The petitioner is incorrect that the factual basis for the crimes charged was that the petitioner shot one time in the air. During the prosecutor’s recitation of the factual basis, the prosecutor acknowledged that it was the petitioner’s claim that he shot one time in the air. The prosecutor, however, provided a factual basis for the crime of attempted murder by stating the following during the petitioner’s change of plea hearing on May 8, 2013: "The allegations and information are that the attendees to the party were mostly from one side of town. Shortly before the house party opened up, while people were still standing in that area, a silver or gray Pontiac containing several individuals, including Joseph Joyner, drove down Noble Avenue- from East Washington up Noble Avenue rather and stopped a short distance away from that party. At that time, Joseph Joyner, located on the passenger side of the car, exited the car and with a 22 caliber pistol in his hand opened fire on a crowd of individuals standing in the area of the sidewalk and metal rail fence ... which borders ... the Washington Park area." (Emphasis added). Furthermore, the trial court (Devlin, J.) specifically told the petitioner that it was the state’s claim that, "you were in the car, you arrived at Washington Park, you got out of the car, and you fired a bunch of shots at people ..." The court asked the petitioner whether that was true, and the petitioner responded, "Yeah, it’s true."
The fourth amended petition alleges in paragraph 35 that Attorney Pastore rendered ineffective assistance of counsel in the following ways: (a) by not reviewing the nature and elements of all the offenses charged in the ten-count information dated September 28, 2011; (b) by not reviewing the maximum sentences of all the offenses charged; (c) by not reviewing the mandatory minimum sentences; (d) by not reviewing the possibility of pleading guilty under the Alford doctrine; (e) by not preparing an adequate defense and reviewing the defense with the petitioner prior to the petitioner’s guilty plea; (f) by not adequately discussing the decision not to go to trial with the petitioner given the petitioner’s statement to the Bridgeport police; (g) by not adequately discussing with the petitioner his maximum total exposure if he went to trial and lost; (h) by not adequately explaining to the petitioner his constitutional rights to a jury trial, but instead simply informing the petitioner he would lose if he went to trial; (i) by not adequately explaining and giving professional advice to the petitioner concerning his decision to plead guilty on May 8, 2013; (j) by not explaining to the petitioner the strength and weaknesses of the state’s case; (k) by not explaining to the petitioner the likelihood the state would prevail at trial; and (l) by not offering professional advice to the petitioner as to his best course of action in deciding whether to plead guilty or elect to go to trial. In paragraphs 37 and 38, the petitioner further alleges that Attorney Pastore’s advice to the petitioner was insufficient in that he failed to properly explain the strengths and weaknesses of the state’s case to the petitioner, and he failed to properly advise the petitioner as to the best course of action to take in whether to plead guilty or exercise the petitioner’s right to go to trial.
"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 ... [Although] 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." (Internal quotation marks omitted.) Newland v. Commissioner of Correction, 322 Conn. 664, 678, 142 A.3d 1095 (2016).
Moreover, the Connecticut Supreme Court has determined that "[i]t is clear that a memorandum of law is not a proper vehicle for supplementing the factual allegations in a complaint ..." Nelson v. Commissioner of Correction, 326 Conn. 772, 781, 167 A.3d 952 (2017). In the present case, the petitioner’s habeas petition did not allege ineffective assistance predicated on counsel’s failure to ensure that the factual basis before the court was sufficient to support a finding of guilty for the crime of attempted murder. As a result, this court declines to consider this claim.
The petitioner’s second argument in his post-trial brief is that Attorney Pastore’s performance was deficient because he failed to render professional advice to the petitioner as to the best course of action prior to the petitioner pleading guilty on May 8, 2013. This claim fails.
The court finds credible Attorney Pastore’s testimony regarding his representation of the petitioner. Attorney Pastore met with the petitioner numerous times, including at Walker Correctional Institution, and he reviewed the discovery with the petitioner, including the witness statements. He also reviewed the transcript of the petitioner’s first police interview with the petitioner. Prior to the petitioner pleading guilty, Attorney Pastore reviewed the evidence against him and discussed the strengths and weaknesses of the state’s case, reviewed the maximum sentences for the charges the petitioner was facing if he had gone to trial, and explained that the petitioner had a right to have a trial, but that in his opinion, it was likely the state would prevail after a trial.
The court rejects the petitioner’s testimony regarding Attorney Pastore’s representation of him as not credible.
Attorney Pastore conducted legal research into the viability of prevailing on suppressing the petitioner’s statement to the police, including the law of agency and whether the petitioner’s father had become an agent of the state, whether the incriminating statements were made voluntarily, and whether the statements were obtained without the proper advisement of the petitioner’s Miranda rights. Attorney Pastore discussed the suppression issues with the petitioner, including whether the police had used his father as an instrument of the state to coerce the petitioner into confessing and the other suppression issues. Attorney Pastore concluded that he would not be successful in suppressing the petitioner’s statement and he informed the petitioner of his conclusion. Attorney Pastore also understood that even if he were successful in suppressing the petitioner’s statement, there was other incriminating evidence against the petitioner, including witnesses who identified him as one of the shooters.
Attorney Pastore’s understanding of his professional obligations is supported by his diligence in pursuing discovery as described in part II of this opinion and in his written motion for continuance in which he represented to the court that the state’s late disclosure of discovery needed to be reviewed by him "and more importantly, the defendant himself" and he needed additional time to "review, digest, prepare and speak with his client in defense of the charges currently pending against him."
Once the state offered a total effective sentence of twenty-two years of incarceration and reduced the number of charges to two offenses, Attorney Pastore advised the petitioner that he thought it was in the petitioner’s best interest to enter a plea of guilty to the two charges based on all of the circumstances known to him at the time of the change of plea hearing, which included the petitioner’s incriminatory statements to the police and other witnesses who identified the petitioner as one of the shooters. Thus, Attorney Pastore provided his opinion that the state would prevail at trial, and he provided petitioner with his professional advice, assistance and opinion on the petitioner’s best course of action concerning the state’s plea offer. This court finds that Attorney Pastore’s performance was not deficient, and therefore, count one is denied.
The petitioner was interviewed two times by the police, once without counsel and one time with counsel. During both interviews, the petitioner admitted that he shot in the direction of someone who was wearing an orange shirt. One of the individuals who was shot was wearing an orange shirt.
The state had located one of the individuals who was in the vehicle with the petitioner, Howard Adkins. The police conducted a recorded interview of Adkins on April 30, 2013, which was disclosed to Attorney Pastore on May 6, 2013, two days before the petitioner entered his guilty pleas. This witness contradicted the petitioner’s version of events and told the police that the petitioner was the shooter.
C
Count Two: Ineffective Assistance Of Counsel By Failing To Properly Investigate And Prepare An Adequate Defense
In Count Two, the petitioner alleges that Attorney Pastore provided ineffective assistance of counsel by failing to investigate and prepare an adequate defense. Specifically, he alleges that Attorney Pastore did not interview Irquan Smith, Hasan Fleming, Carlos Pagan, Howard Atkins, Gloria Feliciano and Kaheim McCrary.
See footnote 2 of this opinion.
Our habeas jurisprudence establishes that a court "will not second-guess defense counsel’s decision not to investigate or call certain witnesses or to investigate potential defenses, such as when ... 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." Gaines v. Commissioner of Correction, 306 Conn. 664, 680-82, 51 A.3d 948 (2012). The petitioner failed to present any testimony or evidence regarding Feliciano. Therefore, the court deems the claim pertaining to Feliciano to be abandoned.
The petitioner did not present the testimony of any of these individuals at the habeas trial, but he did introduce transcripts of recorded police interviews of Smith, Fleming, Pagan and McCrary. Additionally, Attorney Pastore testified regarding Adkins’ recorded police statement. Even if this court were to assume arguendo that Attorney Pastore’s failure to interview these potential witnesses constitutes deficient performance under Strickland, the petitioner has not presented any credible evidence showing that these potential witnesses would have provided information that would have caused him not to enter the plea. See Toles v. Commissioner of Correction, 113 Conn.App. 717, 724, 967 A.2d 576, cert. denied, 293 Conn. 906, 978 A.2d 1114 (2009); see also 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).
The petitioner is correct that when McCrary was interviewed by the police, he identified someone other than the petitioner as the shooter, but the remaining witnesses gave statements to the police that implicated the petitioner. In Smith’s police interview, he identified the petitioner as the shooter and indicated he was 80% positive of his identification. Fleming claimed he was standing next to Smith and the decedent at the time of the shooting and he identified the petitioner as one of the shooters. He told the police that the petitioner exited the passenger side of the vehicle and pointed a gun at them and started to shoot. Pagan told the police that the petitioner told him about three hours after the incident that he got out of the car and started shooting, he saw the decedent fall after he was shot and he shot someone in the buttocks. Pagan also told the police that he was aware that prior to the Washington Park shooting, the petitioner possessed a .22 caliber firearm. Finally, Attorney Pastore testified that Howard Adkins contradicted the petitioner’s version of events and told the police that the petitioner was the shooter.
The petitioner has failed to show "a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, supra, 474 U.S. 59. He failed to demonstrate "what benefit additional investigation would have revealed." Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001). "Mere conjecture and speculation are not enough to support a showing of prejudice." Burke v. Commissioner of Correction, 90 Conn.App. 370, 378, 877 A.2d 885, cert. denied, 275 Conn. 926, 883 A.2d 1241 (2005); see also Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009). Because the petitioner has not proven that these witnesses would have provided information that would have caused him not to enter his guilty pleas, see Tolles v. Commissioner of Correction, supra, 113 Conn.App. 724, he has not established a reasonable probability that he would have insisted on going to trial. Accordingly, this claim of ineffective assistance of counsel must fail and count two is denied.
D
Count Three: Ineffective Assistance Of Counsel By Failing To Give Professional Advice To The Petitioner Concerning The Probability Of Having The Petitioner’s Initial Statement To The Police Suppressed Pursuant To The Federal Constitution
In count three, the petitioner alleges that Attorney Pastore rendered ineffective assistance of counsel by failing to properly explain the strength and weaknesses of the state’s case and the likelihood that the state would prevail at trial, and by failing to provide his professional advice to the petitioner concerning the probability of having the petitioner’s statement suppressed under the federal constitution.
Contrary to the petitioner’s assertions, the court finds credible Attorney Pastore’s testimony that he discussed the strengths and weaknesses of the state’s case with the petitioner. The court further finds credible that Attorney Pastore conducted legal research into the viability of prevailing on suppressing the petitioner’s statement to the police, including the law of agency and whether the petitioner’s father had become an agent of the state, whether the incriminating statements were made voluntarily, and whether the statements were obtained without the proper advisement of the petitioner’s Miranda rights. Attorney Pastore discussed the suppression issues with the petitioner, including whether the police had used his father as an instrument of the state to coerce the petitioner into confessing and the other suppression issues. Attorney Pastore concluded that he would not be successful in suppressing the petitioner’s statement and he informed the petitioner of his conclusion. Attorney Pastore also understood that even if he were successful in suppressing the petitioner’s statement, there was other incriminating evidence against the petitioner, including witnesses who identified him as one of the shooters. Therefore, the court finds that Attorney Pastore provided his professional advice to the petitioner concerning the probability of having the petitioner’s statement suppressed under the federal constitution.
The court will not address the petitioner’s claim that Attorney Pastore’s professional advice that a motion to suppress would likely fail was incorrect and constitutes deficient performance. Rather, the court will address the prejudice prong of the Strickland-Hill test. Before doing so, it is important to note the United States Supreme Court’s recognition that strictly adhering to the Strickland standard is essential when reviewing the choices an attorney makes at the plea bargain stage: "Plea bargains are the result of complex negotiations suffused with uncertainty, and defense attorneys must make careful strategic choices in balancing opportunities and risks ... The art of negotiation is at least as nuanced as the art of trial advocacy, and it presents questions further removed from immediate judicial supervision. There are, moreover, special difficulties in evaluating the basis for counsel’s judgment: An attorney often has insights borne of past dealings with the same prosecutor or court, and the record at the pretrial stage is never as full as it is after a trial. In determining how searching and exacting their review must be, habeas courts must respect their limited role in determining whether there was manifest deficiency in light of information then available to counsel." Premo v. Moore, supra, 562 U.S. 124-25.
The petitioner claims his statements would have been suppressed under the federal constitution because (1) they were given involuntarily, resulting in a denial of due process of law; (2) the petitioner’s Miranda waiver was not voluntary, knowingly or intelligently made; and, (3) Jimmy Joyner served as an agent of the state, and therefore, by requesting to speak with his father, the interrogation should have ceased.
In Premo, the Court determined that trial counsel’s decision to advise his client to plead guilty without first challenging his client’s confession to the police was reasonable and adequate under Strickland ’s performance prong in light of his client’s other full and admissible confession. Similar to Premo, the petitioner in the present case confessed to the police in a second interview in the presence of counsel that he shot at an individual with an orange shirt, and he also confessed to a witness on the night of the incident that he got out of the car and started shooting, that he saw the decedent fall after he was shot and that he shot someone in the buttocks.
In this case, even if this court were to assume arguendo that Attorney Pastore failed to provide professional advice to the petitioner concerning the probability of having the petitioner’s statement suppressed under the federal constitution, the petitioner has failed to show "a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, supra, 474 U.S. 59. The petitioner asserts in his fourth amended petition that but for Attorney Pastore’s deficient performance, it is reasonably probable the petitioner would have exercised his right to go to trial and not plead guilty. He reiterated this assertion in his post-trial brief. See Colon v. Commissioner of Correction, supra, 179 Conn.App. 36 (a petitioner must make more than a bare allegation that he would have pleaded differently and gone to trial). The petitioner, however, offered no evidence that he would have pleaded differently and gone to trial. He never testified that he would have pleaded not guilty and gone to trial if he had been informed that his initial statement to the police likely would be suppressed under the federal constitution.
The court recognizes that our Appellate Court recently noted there is an apparent conflict in standards enunciated by the United States Supreme Court and the Appellate Court. See Humble v. Commissioner of Correction, 180 Conn.App. 697, 713 n.11, 184 A.3d 804, cert. denied, 330 Conn . 939, 195 A.3d 692 (2018). In Humble, the Appellate Court stated as follows: "In Carraway v. Commissioner of Correction, 144 Conn.App. 461, 476, 72 A.3d 426 (2013), appeal dismissed, 317 Conn . 594, 119 A.3d 1153 (2015), this court held that in order to satisfy the prejudice requirement in an ineffective assistance claim arising from counsel’s advice during the plea process, a defendant only 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, not that he would have insisted on trial and achieved a more favorable outcome. The United States Supreme Court, however, recently observed: ‘The dissent contends that a defendant must also show that he would have been better off going to trial. That is true when the defendant’s decision about going to trial turns on his prospects of success and those are affected by the attorney’s error - for instance, where a defendant alleged that his lawyer should have but did not seek to suppress an improperly obtained confession ... [C]f., e.g., Hill [v. Lockhart, supra, 474 U.S. at 59, 106 S.Ct. 366] (discussing failure to investigate potentially exculpatory evidence).’ (Citation omitted; emphasis added.) Lee v. United States, 137 S.Ct. 1958, 1965, 198 L.Ed.2d 476 (2017). While we note this apparent conflict, we need not determine today which standard applies because the petitioner has failed to show prejudice under the more lenient Carraway standard." In the present case, as discussed below in this opinion, the petitioner is unable to show prejudice under the more lenient standard.
Furthermore, based on the evidence known to the petitioner at the time he pleaded guilty, it would not have been rational to reject the plea offer even if his initial statement had been suppressed. Because Attorney Pastore reviewed the discovery with the petitioner and discussed the strengths and weaknesses of the state’s evidence with him, the petitioner was aware that several witnesses identified him as firing a gun during the Washington Park incident on July 30, 2011. The petitioner was aware that a witness claimed that within hours of the incident, the petitioner confided to the witness that the petitioner had exited the vehicle he was in and started shooting, that he saw the decedent fall after he was shot and that he shot someone in the buttocks. The petitioner also was aware that the state had located Howard Adkins and that he provided a recorded statement to the police in which Adkins contradicted the petitioner’s version of events and told the police that the petitioner was the shooter. Finally, the petitioner knew that after he was represented by Attorney Pastore, he provided a second statement to the police, in the presence of his counsel, in which he admitted that he shot in the direction of someone who was wearing an orange shirt. Under these circumstances, it would not have been rational to reject a plea bargain where the petitioner’s charges would be reduced from ten charges to two charges, and he would receive a sentence of twenty-two years to serve rather than proceeding to trial and risk being convicted of manslaughter and three counts of attempted murder, with a significantly increased exposure. Accordingly, because the petitioner has not proven the prejudice prong in connection with this claim, count three is denied.
E
Count Four: Ineffective Assistance Of Counsel By Failing To Give Professional Advice To The Petitioner Concerning The Probability Of Having The Petitioner’s Initial Statement To The Police Suppressed Pursuant To The State Constitution
In count four, the petitioner alleges that Attorney Pastore rendered ineffective assistance of counsel by failing to properly explain the strength and weaknesses of the state’s case and the likelihood that the state would prevail at trial, and by failing to provide his professional advice to the petitioner concerning the probability of having the petitioner’s statement suppressed under the state constitution. In his post-trial brief, the petitioner argues that, "Attorney Pastore rendered ineffective assistance of counsel by failing to properly advise the [p]etitioner that his request to go home and to have his father brought into the interrogation room may constitute an ambiguous request for counsel requiring the Bridgeport Police to stop and clarify his intentions during the August 10, 2011 custodial interrogation." The petitioner claims that Attorney Pastore failed to properly advise the petitioner as to the viability of winning a suppression hearing under Article first, § 8 of the Connecticut constitution.
Even if this court were to determine that our Connecticut Supreme Court’s recent decision in Purcell v. Commissioner of Correction, 331 Conn. 318, 203 A.3d 542 (2019) is applicable to this case and that the petitioner established deficient performance, this claim also fails for the same reasons articulated in Part IIID. The petitioner again simply asserts that "Attorney Pastore was ineffective and but for his ineffective assistance of counsel [p]etitioner would not have pleaded guilty and would have elected to go [to] trial." The petitioner did not offer any evidence that he would have pleaded differently and gone to trial. He never testified that he would have pleaded not guilty and gone to trial if he had been informed that his initial statement to the police likely would be suppressed under the state constitution. Based on the totality of the evidence known to the petitioner at the time he pleaded guilty, it would not have been rational to reject the plea offer. See Part IIID of this opinion. The petitioner has not proven the prejudice prong in connection with this ineffective assistance of counsel claim, and therefore, count four is denied.
In Purcell, the Connecticut Supreme Court held that our state constitution requires "if a suspect makes an equivocal statement that arguably can be construed as a request for counsel, interrogation must cease except for narrow questions designed to clarify the earlier statement and the suspect’s desire for counsel." Purcell v. Commissioner of Correction, supra, 331 Conn. 362.
IV
CONCLUSION
For the foregoing reasons, the court denies the claims of ineffective assistance of counsel and judgment shall enter denying the petition for a writ of habeas corpus.