Opinion
No. CV04-4000005
June 22, 2009
THE COURT: Well, the following will constitute the decision of this Court. Madam Court Reporter, please prepare this for my signature. The writ of habeas corpus, of course, is an ancient writ. It goes back to England around the time of King Edward I. Historically, one could file a habeas petition as long as there was a judge in the kingdom who would entertain a habeas writ. There was no limit on the number of habeas writs that could be filed. That, however, has changed with the advent of appeal. Originally, habeas writs were not subject to appeal. Now, however, they are.
In this case, Mr. Moody has filed a previous habeas petition that was adjudicated in this courthouse by Judge White. It was appealed and affirmed on appeal at 108 Connecticut — Conn.App. 96. Supreme Court denied the cert. 288, 906, and this took place in 2008.
Consequently, the issues that were tried in that first habeas petition are now final. They are res judicata. One of the complaints in that first petition was that trial defense counsel, Attorney Avery Chapman, was ineffective in his representation of Mr. Moody in the second trial. That is precisely count one in the instant habeas petition.
Now, it may be that a few additional facts have been stated, but the claim, ineffective assistance of counsel of Attorney Chapman, is the same in count one as it is — as it had been in the previous habeas case conducted in front of Judge White.
To the extent that there's any different spin on the evidence that's been presented to this Court, the petitioner would be procedurally defaulted for not having presented that evidence at the original trial court.
Count two, of course, represents ineffective assistance of appellate counsel, and that clearly has not been previously litigated. Count three alleged defects in the trial court's instructions.
Now, in this case, the respondent has filed the defense of procedural default, and that would lie as to count one, the failure to present the evidence that, to the extent there was evidence presented here today, the failure to present evidence to show ineffective assistance of appellate habeas counsel, and the failure to raise any alleged defects in the trial court's instructions in the original appeal.
The special defense having been pled, it is then incumbent upon the petitioner to reply to that special defense and deny the special defense in alleging that there was cause and prejudice for having failed to do so — for having failed to raise it earlier. Well, there is no reply in this case. And it's clear that that which is not denied is deemed admitted.
Consequently, on that basis alone, the Court is justified, this Court is justified in denying counts one and three and finding that they are procedurally defaulted.
Now, in connection with the jury instructions, it is clear in Connecticut, of course, the jury instructions are viewed as a totality, that even though there may be error in one or more parts of the jury instruction, these errors will become harmless if the instructions did not mislead the jury when viewed in the context of the whole body of the instructions. And it's clear to this Court that the jury instructions were as a whole, acceptable and constitutional.
Now, the issue of whether there should have been instruction of the lesser included offense of manslaughter in the second degree, even if the defendant had not — I'm sorry — the petitioner had not raised the claim of ineffective assistance of Attorney Chapman before, even if the case — that issue is not res judicata, even if he has not been procedurally defaulted, he would still lose on the merits because in order to find ineffective assistance of counsel, the Court is governed by the standard contained in Strickland v. Washington, and under the Strickland standard, there must be both deficient performance and prejudice. The absence of even one of those renders the claim of ineffective assistance of counsel deficient.
So even if this Court assumes that Attorney Chapman was deficient for not asking for manslaughter in the second degree as a lesser included offense, it is crystal clear that there is no prejudice that inured to Mr. Moody's detriment because there in fact was instruction on the lesser included offense of manslaughter in the first degree.
Now, the way juries deal with crimes and lesser included offenses, they don't start from the bottom and work up. They don't start with the less, the least of the lesser included offenses. They start with the greatest offense, in this case, that would be murder. In the event the jury does not reach a unanimous verdict of either guilt or not guilt — I'm sorry. The jury does not reach a finding of guilty as to the greater offense, it would then move, and only then, to the lesser included offense.
Now, the record's clear. Mr. Moody was convicted of murder, the greater of the three offenses. The jury had the option of acquitting on murder and considering manslaughter in the first degree. It clearly did not do so. It convicted Mr. Moody of murder. Consequently, it never considered the lesser included offense of manslaughter in the first degree, and never would have considered the offense of lesser included offense of manslaughter in the second degree. So even had Mr. Chapman been deficient in not requesting the instruction, that deficiency in no way prejudiced Mr. Moody.
On the count of murder, there has been no attack on that conviction before this Court. There is no basis upon which this Court can conclude that the condition of murder is in any way deficient. So count three and count one are dismissed.
In count two, which clearly is raised and may be presented in this petition, the Court notes that at this stage in the proceedings, Mr. Moody does not sit here as an innocent man, unlike the defendant in the criminal trial, unlike Mr. Moody when he was first presented for trial in this case, he is not entitled to the presumption of innocence. Because at this stage in the proceedings, Mr. Moody is not innocent.
He in fact has been convicted.
Moreover, unlike the defendant in a criminal trial, who has no burden of proof, who has the presumption of innocence, in this habeas proceeding, the burden of proving the right to relief is with the petitioner.
Now, in that sense, if the Court looks at the evidence presented on the issue of ineffective assistance of appellate counsel, there was no evidence presented by the petitioner that in any way went to demonstrate that Attorney Donovan was ineffective in his representation on appeal. The only evidence that bears upon whether — what Attorney Donovan did was his own testimony presented by the respondent.
It's clear on appeal that an appellate counsel has a duty to present the best issues, but not necessarily all issues. Although petitioner in this case has raised a few points that he feels should have been brought up on appeal, this Court is not convinced that there is any merit to those arguments, and the argument that the appeal would have been decided differently, in other words, the case would have been reversed, is purely speculative at this point.
Consequently, this Court cannot find that there is any deficient performance or prejudice that inured to the detriment of the petitioner in connection with any of the representation of the appellate counsel, Attorney Donovan.
Count two must therefore be denied as well. Madam Clerk, if you would serve the appeal papers upon the petitioner.
THE CLERK: Yes, Your Honor. Let the record reflect that the clerk has given the petitioner and petitioner's counsel their copies of the appeal procedures.
THE COURT: Is there anything further from either side?
THE CLERK: Your Honor, did you want to — the petitioner's counsel to prepare a judgment file within thirty days?
THE COURT: Yes. So ordered.
THE CLERK: Thank you.
THE COURT: Anything additional from either side?
MS. HOWE: No, Your Honor.
MR. TSIMBIDAROS: No, Your Honor.
THE COURT: All right. Court will be adjourned.
(Whereupon, court was adjourned.)