Opinion
CV144006574S
10-11-2017
Clyde Meikle v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Clyde Meikle, seeks habeas corpus relief from fifty years imprisonment, imposed after a jury trial, for the crime of murder. The Appellate Court affirmed the judgment of conviction on direct appeal, State v. Meikle, 60 Conn.App. 802, 761 A.2d 247 (2000), cert. denied, 255 Conn. 947, 769 A.2d 63 (2001).
The petitioner filed a first habeas action in which his claims were either dismissed or denied, Meikle v. Warden, Superior Court, New Haven Judicial District, d.n. CV 01-447385, (May 9, 2003), Robinson-Thomas, J. The Appellate Court also affirmed that judgment, Meikle v. Commissioner, 87 Conn.App. 490, 865 A.2d 1237 (2005), cert. denied, 273 Conn. 922, 871 A.2d 1028 (2005).
The petitioner filed a second habeas case, which was also denied, Meikle v. Warden, Superior Court, Tolland Judicial District, CV 07-4001893, (March 15, 2012), Cobb, J. The Appellate Court affirmed that decision, Meikle v. Commissioner, 146 Conn.App. 905, 75 A.3d 810 (2013).
In this, his third habeas petition, the petitioner alleges ineffective assistance by habeas counsel in his first and second habeas cases, prosecutorial misconduct, and a freestanding due process violation. The respondent denies these allegations and asserts that some counts of the amended petition are successive and/or procedurally defaulted.
Prosecutorial Misconduct and Due Process Violation Claims
In the third and fourth counts, the petitioner raises for the first time issues concerning the purported mishandling of the suspected murder weapon, a shotgun. He never raised these claims of prosecutorial misconduct or due process denials at his criminal trial nor on direct appeal. The petitioner omits any discussion of these issues in his post-trial brief, and the court can regard these claims as abandoned. Walker v. Commissioner, 176 Conn.App. 843, 856 (2017).
Alternatively, the petitioner conceded in his reply that he never raised these claims previously. In Johnson v. Commissioner, 218 Conn. 403, 589 A.2d 1214 (1991), our Supreme Court adopted the " cause and prejudice" standard espoused by the U.S. Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), which standard limits the reviewability of claims first raised in a habeas corpus action. In Johnson, supra, the cause and prejudice test was made applicable to procedural defaults which occurred at the trial level. This standard was extended to apply to the failure to raise claims on appeal in Jackson v. Commissioner, 227 Conn. 124, 132, 629 A.2d 413 (1993). The burden of proving good cause and prejudice for procedural defaults rests with the habeas petitioner. Johnson v. Commissioner, supra, 409.
The petitioner confined his response to this special defense as based on the " good cause" generated because " the petitioner's lack of knowledge regarding the consequences of trial counsel's failure to object to the entry into evidence of the purported weapon . . ."
Good cause must be external to the defense and be some factor besides attorney error. Jackson v. Commissioner, supra, 137. The mere failure of counsel to recognize the factual or legal ground does not constitute good cause to excuse default. Parker v. Commissioner, 27 Conn.App. 675, 682, 610 A.2d 1305 (1992), cert. denied, 223 Conn. 909, 612 A.2d 57 (1992).
Therefore, the court denies the prosecutorial misconduct and due process violations as abandoned or procedurally defaulted.
Ineffective Assistance of First Habeas Counsel
In the second habeas case, the petitioner averred that his first habeas counsel, Attorney Mark Diamond, provided ineffective assistance for failing to raise claims of ineffective assistance against trial counsel, Attorney Martin Zeldis, for his failure to challenge the chain of custody of the shotgun and in failing to provide the petitioner with a copy of the police reports pertinent to his criminal case. These claims must be dismissed, pursuant to Practice Book § 23-29(3) because they present the same grounds for relief denied in an earlier habeas case, namely the ineffective assistance of previous habeas counsel and which are not based on new facts or evidence " not reasonably available at the time of the prior petition." The addition of new specifications of ineffective assistance against Attorney Diamond is insufficient to state a new legal ground different from that raised by the previous habeas petition. McClendon v. Commissioner, 93 Conn.App. 228, 230, 888 A.2d 183 (2006), cert. denied, 277 Conn. 917, 895 A.2d 789 (2006).
Of course, the failure by second habeas counsel, Attorney Brian Russell, to assert those specifications of ineffective assistance against Attorney Diamond can form the basis for a claim of ineffective assistance by Attorney Russell, and the petitioner alleges just such a claim in the second count of the amended petition in this case.
Ineffective Assistance of Second Habeas Counsel
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence that his attorney's performance was substandard and that there exists a reasonable likelihood that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that habeas counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra .
This standard of reasonableness is measured by prevailing, professional practices. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation. Id.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel's competence. Pelletier v. Warden, 32 Conn.App. 38, 46, 627 A.2d 1363 (1993). In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985). Reasonable probability means a probability sufficient to undermine confidence in the outcome. DaEira v. Commissioner, 107 Conn.App. 539, 542-43, 946 A.2d 249 (2008), cert. denied, 289 Conn. 911, 957 A.2d 877 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id. Thus, the failure of the petitioner to establish, by a preponderance of the evidence, either the allegations against trial counsel or habeas counsel or the requisite prejudice as to both the first habeas case and the criminal trial will defeat a claim for habeas corpus relief in the present action.
Also, in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), our Supreme Court recognized a purely statutory right to raise, in a subsequent habeas action, a claim of ineffective assistance on the part of previous habeas counsel in presenting claims of ineffective assistance of trial counsel. Id., 835. However, the petitioner's burden becomes a multi-tiered application of the Strickland standard by which allegations of ineffective assistance claims are gauged. Id., 842. To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel were ineffective, and (2) that his trial counsel was ineffective. Id. (emphasis added). Also, the petitioner must prove that, but for the derelictions of habeas counsel, he was prejudiced in the sense that the outcome of the first and second habeas cases were suspect, and that burden demands proof of the existence of a reasonable likelihood that the outcome of the original, criminal trial would have been different. Id., at 842-43. The Supreme Court described this triple-layered obligation as " a herculean task." Id., 843.
To recapitulate, in order to prevail on this count, the petitioner must prove, by a preponderance of the evidence, that Attorney Russell represented him ineffectively in attempting to prove that Attorney Diamond represented him ineffectively in attempting to prove that Attorney Zeldis represented him ineffectively in his criminal case; and that, but for all these deficiencies, there exists a reasonable probability that the outcomes of the second habeas trial, the first habeas trial, and the criminal case would all have been more favorable.
Specifically, the petitioner alleges that:
1. Attorney Russell failed to raise and/or litigate the petitioner's claim of Attorney Mark Diamond's failure to litigate properly all aspects of the petitioner's claim that trial counsel failed to adequately conduct a pretrial investigation.
2. Attorney Russell failed to raise and/or litigate the petitioner's claim of Attorney Mark Diamond's failure to litigate properly the petitioner's claim that trial counsel failed to cross examine the state's witnesses adequately, and adequately question the defense witnesses on both direct questioning and redirect.
3. Attorney Russell failed to properly raise and/or litigate the petitioner's claim that Attorney Diamond failed to properly raise and/or litigate the petitioner's claim of trial counsel's deficient and prejudicial performance where, despite issues concerning the chain of custody, Attorney Zeldis failed to object to the entry into evidence of the gun that the state identified as the weapon causing the victim's death.
4. Attorney Russell failed to properly raise and/or litigate the petitioner's claim of Attorney Diamond's deficient and prejudicial failure to properly raise and/or litigate the petitioner's claim of trial counsel's deficient and prejudicial performance where Attorney Zeldis, without first conferring with the petitioner, entered into a stipulation that the gun, which the state would present and did present into evidence at trial, was the weapon used in the shooting, despite issues regarding the chain of custody of the weapon.
5. Attorney Russell also failed to litigate properly the petitioner's claim of Attorney Mark Diamond's deficient and prejudicial performance because of his failure to call a forensic ballistics expert to demonstrate that Attorney Diamond failed to prove the ineffectiveness of Attorney Zeldis, by failing to further litigate the petitioner's claim of trial counsel's error in entering into the stipulation referred to directly above, by failing to call at the habeas trial a forensics ballistics expert who could have provided exculpatory testimony at the petitioner's criminal trial by testifying how a weapon's range is determined, and that the range from the end of the barrel of a sawed-off shotgun to the body of the victim would be affected by the length of the gun's stock and barrel, and that any change in the length of the barrel would result in a change in the range of the weapon, so that if the weapon the petitioner actually possessed had a shorter length than the sawed-off shotgun presented by the state as purportedly the weapon causing the victim's death, the range would have been smaller and this fact would support the petitioner's claim while the petitioner and the victim were close to each other struggling over possession of the shotgun.
6. Attorney Russell failed to raise and/or properly litigate the claim that Attorney Diamond was ineffective for failing to raise and litigate the claim of ineffective assistance of appellate counsel, Attorney Martin Zeldis, for his failure to raise on direct appeal the violation of the petitioner's due process rights in that he did not waive his right to have the hearing in probable cause held within the 60-day time limit prescribed by Connecticut General Statutes § 54-46a, or for Attorney Zeldis's failure to raise on direct appeal the violation of the petitioner's testimony that he " thought" the gun that was eventually entered into evidence was the weapon that caused the victim's death, was used against him to prove the element of intent necessary to establish the crime of murder.
The Appellate Court succinctly described the evidence supporting the jury's guilty verdict:
" On November 1, 1994, at approximately 7 p.m., in the rear parking lot of 297-299 Enfield Street in Hartford, the defendant and the victim, Clifford Walker, became involved in a dispute. The dispute resulted in each yelling and cursing at the other. The argument began because the victim wanted the defendant to move his car, which the defendant did not move quickly enough. The argument did not stop even after the defendant moved his car. The defendant subsequently walked to the passenger side of his car, withdrew a sawed-off shotgun from the car and approached the victim. After seeing the weapon, the victim raised his hands with his palms facing out and said, " What are you going to do, shoot me?" The defendant, standing about four feet away, said " Fuck you, " and shot and killed the victim. The defendant then fled, discarded the weapon and spent two days hiding from authorities in New Haven. Police officers arrested the defendant when he returned to Hartford to retrieve some money. The defendant stated to the police that the shooting was accidental but refused to give a sworn statement, " State v. Meikle, supra, 803-04.
A
The first two specifications are general allegations that Attorney Zeldis inadequately prepared for trial and examined witnesses. These blanket accusations lack mention of any particular way in which Attorney Zeldis acted unprofessionally nor do they identify any unpursued line of questioning of any particular witness. Such overly broad allegations fail to serve the purpose of pleading, namely to inform the respondent and the court as to what Attorney Zeldis did wrong. The court cannot grant relief based on such indistinct claims.
B
The petitioner does particularly raise a claim that Attorney Zeldis failed to argue on direct appeal the issue of whether the petitioner validly waived the sixty-day time period in which to conduct the probable cause hearing mandated by General Statutes § 54-46a(b). This claim fails for lack of proof. The only witnesses who testified at the present habeas trial were the petitioner and Attorney Russell. No evidence was adduced regarding the waiver issue. The waiver of a probable cause hearing under § 54-46a(b) can result by implication rather than only through an express colloquy with the court, State v. Ramos, 201 Conn. 598, 603-04, 519 A.2d 9 (1986). For all the court knows, the probable cause hearing was postponed at the behest of defense counsel or with the consent of defense counsel, State v. Santiago, 245 Conn. 301, 313-16, 715 A.2d 1 (1998).
Nor does the court find that the extension of time prejudiced the petitioner. That analysis depends upon how the delay " would affect the trial court's determination of probable cause, " State v. Santiago, supra, 312. The court cannot base its decision on an empty record. This is particularly the case because § 54-46a(b) allows the trial court to expand the sixty-day period without a defendant's consent " for good cause."
The petitioner cannot prevail as to this specification of ineffective assistance for want of proof as to both prongs of the Strickland test.
C
As noted above, under Strickland, the habeas court may decide an ineffective assistance claim by assessing the prejudice component directly. Regarding the petitioner's allegation that Attorney Zeldis deficiently declined to challenge the fact that the sawed-off shotgun introduced into evidence by the state was the actual murder weapon, the court engages the prejudice issue forthwith. In this case, the court determines that the petitioner has failed to meet his burden of establishing the prejudice component, i.e., that there exists a reasonable likelihood that, but for counsel's error concerning the weapon, the outcome of his criminal trial would have been different.
The petitioner argues that if the actual murder weapon had different dimensions than the shotgun exhibited at trial and tested by the state's experts, a reasonable probability exists that he would have been acquitted of murder. The trial record discloses the following additional facts.
The petitioner freely acknowledged that the sawed-off shotgun he had recently purchased and displayed to family and friends was the weapon he retrieved from the front passenger seat of his car and from which the fatal shot was fired when the petitioner attempted to pull it away from the victim's grasp. The only contested issue at the criminal trial was whether the petitioner possessed or lacked intent to shoot and kill the victim.
After the incident, the petitioner fled the area. Acting on a tip, the police searched an abandoned house located about one block from the shooting and within view of the scene. The search of a pantry in that house produced a sawed-off shotgun with a spent round in the chamber. Previously, the police recovered an unused shotgun shell from the petitioner's car that matched the shell from the chamber as to gauge, type, and manufacturer. Pellets recovered from the victim's corpse at autopsy were consistent with those contained in that ammunition, also.
During an interview of the petitioner by the police, an officer showed a photograph of the shotgun found in the abandoned house to the petitioner. He agreed that the weapon depicted in the photograph was the shotgun he accidently fired in his struggle with the victim.
James Green, the victim's brother and the petitioner's cousin, also identified that weapon as the one that the petitioner kept on the front passenger seat of his car and that the petitioner pulled from the car just before the shooting. Annette Broughton, the victim's girlfriend, also testified at the criminal trial and recognized the shotgun recovered from the abandoned house as the one that the petitioner had displayed at her home on multiple occasions, including the day the victim was shot. Kimberly Cruze and James Green's mother also witnessed the shooting and identified the recovered shotgun as the same one the petitioner brandished when the victim was killed.
The petitioner testified at his criminal trial, and he admitted that the sawed-off shotgun retrieved from the pantry of the vacant house was the same one he held when the victim was shot. While on the witness stand, Attorney Zeldis showed the weapon to the petitioner and explicitly asked if it was the same shotgun that he had possessed at the shooting. The petitioner replied, " yes, it look like it." Attorney Zeldis inquired if that shotgun was in the petitioner's vehicle on the day of the incident, and the petitioner confirmed that it was.
The evidence identifying that sawed-off shotgun as the one over which the petitioner and the victim grappled was overwhelming. At the habeas trial, the petitioned opined that maybe the shotgun seized by the police was merely similar to but not the same weapon he possessed during the shooting. The court rejects this contention as utterly unbelievable.
Even if the sawed-off shotgun introduced at the criminal trial only closely resembled the one the petitioner took from his car, but with a somewhat different length from the " real" shotgun, that discrepancy would have had scant exculpatory value. Several witnesses heard the petitioner vehemently arguing with the victim. Witnesses placed the muzzle of the shotgun about four inches from the victim when the petitioner discharged it.
Preceding the shooting, witnesses heard the victim ask the petitioner if he intended to shoot him. Witnesses also heard the petitioner contemptuously reply " Fuck you." The gunshot immediately followed this exclamation. Kimberly Cruze recalled that the petitioner circled in an agitated state just before he shot his cousin.
The state's forensics experts estimated the distance from the muzzle of the weapon to the victim at the moment of firing to be between four and six inches. They ascertained this range by test firing the sawed-off shotgun over various distances to match the spread pattern of pellets, the presence or absence of gunshot residue on the victim's body and shirt, and the degree of scalloping at the edges of the primary entrance wound. At the habeas trial, the petitioner proffered no expert testimony to refute this conclusion.
The court determines that no credible challenge to the identity of the weapon nor the firing distance existed at the time of the criminal trial, for defense counsel to exploit.
For these reasons, the court denies the amended petition for habeas corpus relief.