Opinion
No. CV06-4000876
June 26, 2009
THE COURT: Okay. You can be seated, sir. All right. Good morning. This is the matter of — is it Niblack, your name, sir?
THE PETITIONER: Niblack.
THE COURT: I'm sorry. Niblack versus Warden. This is a motion for summary judgment that originally was filed by the petitioner; is that correct?
MS. HOWE: They're joint motions, Your Honor.
THE COURT: You're actually both seeking summary judgment.
MS. HOWE: That's true.
MR. NEARY: Yes, Your Honor.
THE COURT: Presumably, you're both seeking summary judgment, but now you'd like the result to be different. I mean that's — you're in agreement only to the point where you're seeking summary judgment.
MR. NIBLACK: Correct.
MS. HOWE: Right.
THE COURT: All right. Well, first question I have is are there any facts in dispute?
MR. NEARY: I don't believe there's any facts in dispute, not to my knowledge, Your Honor.
MS. HOWE: Just for the record, just to give Your Honor some background, Mr. Niblack had a habeas trial here in Rockville.
THE COURT: I know. I read the pleadings.
MS. HOWE: I have, in addition to my motion for summary judgment and my memorandum of law, which was brought up to the Court on June 4th, the prior habeas docket number was CV93-0001725, and after that was completed and went up on appeal and the appeal was decided, the exhibits were returned, my exhibits were returned to me as the respondent, and I also had copies of the exhibits that Attorney O'Brien had introduced as well. There was just two of those, and I had retained my, the exhibits that I had, and I attached — there's a variety of the attachments that fills a manila folder, and I want to make sure those were accepted by the Court.
THE COURT: We have them.
MS. HOWE: So they include the exhibit list, the two exhibits introduced by Mr. Niblack at the hearing, all of the respondent's exhibits, in other words, all the exhibits from the prior habeas trial with the exception of the ones marked for identification only, and there's only two of those. So in other words, if Your Honor grants Mr. Niblack's motion for summary judgment, then, in fact, the materials that his appellate attorney would need are now available because they're back in the clerk's office. So I guess we do need to stipulate to that; otherwise, his relief is not going to get him very far, so I've sent Attorney Neary a set of these, and I'm assuming there's no dispute, but I suppose we should put it on the record.
THE COURT: No problem, Mr. Neary, the Court accepting these?
MR. NIBLACK: No. I have no problem with you accepting that, Your Honor.
THE COURT: Okay. They're part of the record then.
MS. HOWE: Thank you.
THE COURT: Now, Mr. Neary, just to make sure I understand where we sit on this, Mr. Niblack was charged with murder, originally represented by Attorney Blessinger in that case and took a plea of guilty, was found guilty, obviously, in accordance with his plea and sentenced in accordance with that, correct?
MR. NEARY: Correct.
THE COURT: He took an appeal arguing that the hearing in probable cause was defective.
MR. NEARY: Correct.
THE COURT: And lost.
MR. NEARY: Correct.
THE COURT: And who represented him on that appeal?
MR. NEARY: On the appeal from the probable cause hearing?
THE COURT: Correct. I don't think your petition states that. All right. But in any rate, you're not challenging any of the actions of his —
MR. NEARY: No, Your Honor. I can simplify my argument in a one argument. My argument is this. The state already conceded deficient performance. The Appellate Court dismissed this habeas — lawyer didn't do what's required by statute and case law — dismissed the appeal.
THE COURT: Now we're talking about — well, that's why I want to go further down.
MR. NEARY: That's exactly what the Appellate Court did. So they've already conceded in my mind deficient performance.
THE COURT: In other words, the Appellate Court found that Judge Graziani did not abuse his discretion in denying the pet cert to appeal from the habeas trial.
MR. NEARY: I would disagree, Your Honor, right in the language of that decision, in the end, they say exactly what I'm arguing, which is — I'm looking at the paragraph beginning with the commissioner his appellate brief has argued we should not reach the merits of the appeal because the petitioner failed to address, etc., etc.
The appellate courts of this state have often held the appellant may not raise an issue for the first time in a reply brief, etc., etc. After the, quote, Kelley v. Thomas, 2001 decision, they say we decline to consider the argument concerning this matter in this petitioner's reply brief. Right there they say we decline to consider the reply brief argument of abuse of discretion.
THE COURT: Does anybody have a copy of the Appellate Court decision, or at least the cite so I can ask Shalu to get it for me? Why don't you, if you don't mind, grab —
MS. HOWE: You're talking about Niblack versus Commissioner, Your Honor? Is Your Honor talking about the original appeal or the prior habeas appeal?
THE COURT: No, I'm looking at the prior habeas appeal.
MS. HOWE: That should be among the attachments that I submitted to the Court.
THE COURT: I'm sure it is.
MS. HOWE: Towards the bottom of the pile.
MR. NEARY: You need a copy of the decision, Your Honor.
THE COURT: I'll do it the old fashioned way. Never mind, Shalu. I've got it. Thank you. The relief you're seeking is to have his right to appeal his habeas denial by Judge Graziani appealed, correct?
MR. NEARY: Yes, Your Honor. My argument would be that he should get a new appeal, and I recognize that, you know, there is the argument that, well, the Appellate Court also said, hey, there's no abuse of discretion, but to me, Your Honor, that would be the same thing if I came into court for a trial, put on no evidence, the state puts on evidence and you say, counsel, your client loses because you put on no evidence. What if I had no evidence? That's what happened in this appeal. They said we're not going to listen to petitioner's appellate counsel because he's done —
THE COURT: Let's hold on for a minute. Let's not forget where we are. This is a motion for summary judgment. You're basically telling me there's nothing that is outside the record that is necessary to adjudicate this claim. Everything is in the pleadings or in the documents that have been submitted?
MR. NEARY: Absolutely, Your Honor.
THE COURT: So there are no facts in dispute between the parties? Interpretations may differ, but the facts are clear.
MR. NEARY: I believe the facts are clear. Counsel did not do something that was required by the Practice Book. The Appellate Court ruled that they weren't going to consider any arguments relating to abuse of discretion from him, and they dismissed the appeal. I don't think that Linda Howe would dispute those facts, and then the legal argument would be was that deficient performance, and they've already I think argued that, Your Honor, I would say by arguing that the Appellate Court should dismiss the appeal in the first place, and number two, the prejudice prong, and Attorney Howe and I have been around and around about that. I don't think I even need to argue that because in essence, I would be asking the habeas court to reaffirm its own judgment denying an abuse of discretion.
The question is whether or not the habeas court abused its discretion in the first place. The only people that can decide that are the Appellate Court, not the habeas court again. That would be like saying, well, we have a trial here in the criminal court, you know, I put this evidence in, you say no, I'm not letting it in. Then having to go back to that court again and say I think you made a mistake, here, Judge. Well, the Court can't reaffirm its own decision. That's why we have to go on appeal for that. I don't think the habeas court could reconfirm its own judgment.
Here if the Court agrees there's deficient performance, I don't think this Court can address prejudice. The question of prejudice is would the outcome of the appeal have been different. Under the case law now, yes, it would have because they would have considered this, and they wouldn't have dismissed it on those grounds.
MS. HOWE: Should I respond, or —
THE COURT: Hold on.
MS. HOWE: Okay.
MR. NEARY: Even if Attorney Howe wants to argue, yes, they could have, this Court can't say that. Only the Appellate Court can say whether they dismiss it or not.
THE COURT: Didn't they say that when they said that we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right? That's what the Appellate Court said.
MR. NEARY: I will try to get to that argument, Your Honor.
THE COURT: Further, obviously then separating that statement from the one that's about to follow, and that he has failed to sustain his threshold burden of persuasion that the Court's denial of petition for certification to appeal was a clear abuse of discretion.
MR. NEARY: Yes.
THE COURT: Okay. So your argument is that, as I understand it, and correct me if I don't have it right, Mr. Neary, your argument is that it was deficient performance, not to demonstrate why Judge Graziani abused his discretion in denying the pet cert.
MR. NEARY: Yes. I'm sorry, yes.
THE COURT: Okay. Both sides are in agreement that, in fact, at least in the original brief, appellate counsel, Attorney Adamo, did not do so; is that correct, Miss Howe?
MR. NEARY: Correct.
MS. HOWE: Right. He did not.
THE COURT: He did so in the reply brief.
MS. HOWE: He did so in the reply brief.
THE COURT: But the Court corrected that.
MR. NEARY: Correct.
THE COURT: On the theory that you can't accept new argument in a reply brief.
MR. NEARY: Correct.
MS. HOWE: I mean Attorney Adamo argued that he in fact had raised it initially, but he dealt with it in the reply brief. I mean you have what he thought he did and what the Appellate Court's interpretation —
THE COURT: So let's just assume for the sake of argument here this morning that in fact that he was deficient performance. Mr. Neary, your position is it's inappropriate for this habeas court to decide whether there's prejudice?
MR. NEARY: I would say yes, Your Honor, because the habeas court, Superior Court in the State of Connecticut has already denied this petition and denied certification saying in essence, if you will, there's no issue that the Appellate Court needs to look at further. The only people who can decide whether that's a true statement of law is the Appellate Court, and the Appellate Court said, well, we dismiss this, and we don't find that the judge abused discretion here with the caveat or with bearing in mind that they refused to accept any argument from the petitioner about how that might have happened.
THE COURT: Why then did they say he failed to make a substantial showing that he's been denied a state or constitutional right?
MR. NEARY: Because if I walk in here, put on a habeas trial, put on no evidence, you say, well, your client loses, of course he loses. I didn't put on any evidence. Only evidence you have is from Attorney Howe here.
If counsel goes up there and makes a legitimate argument to the Appellate Court about why it's abuse of discretion, maybe it would come out differently, but when all they have is the state's argument in support of abuse or support of denying the abuses, that's the only evidence they have to make that decision. They don't have anything to support why or why not the habeas court might have been wrong.
THE COURT: All right. If I can't make the decision that there's prejudice, who can?
MR. NEARY: The Appellate Court.
THE COURT: And then why are you here?
MR. NEARY: Because we need to have a new appeal.
THE COURT: But I can't give you a new appeal unless I find that ineffective assistance by Attorney Adamo, but you're telling me I can't find ineffective assistance.
MR. NEARY: But you can, Your Honor, just as in cases where the lawyer doesn't bother to file appeal paperwork, we say there's prejudice automatically assumed. That's because your appeal rights are automatically restored.
THE COURT: Not necessarily.
MR. NEARY: My client couldn't even have a proper appeal because the very first question that needs to be addressed, as required by the statute, Practice Book and this case law wasn't done. It's almost like not even bothering to file an appeal. He didn't even have an appeal that could not legally be — there was no chance, Your Honor, not a single chance that this could be decided in his favor regardless what happened because his lawyer didn't address something that was required by the — allowed by the Practice Book section and by case law.
THE COURT: Essentially you're arguing I can't find there was no prejudice, I can find that there's prejudice per se.
MR. NEARY: Yes. He wasn't given the opportunity to have a fair appeal. I mean if I submitted an appeal, Your Honor, to the Appellate Court from a probable cause hearing for Mr. Niblack and I don't submit the transcript to the probable cause, what's going to happen? The Appellate Court is going to say we have no record in which to adequately review the probable cause hearing. We dismissed your probable cause appeal. Okay.
Well, what if the probable cause hearing had come down, and the judge, you said you filed a request, let's say in theory, and the judge says I'm denying your request to certify this to the Appellate Court? The Appellate Court said even if we were to consider this, we don't think there's going to be an issue here. Are we going to say he didn't get a right to new appeal there because his lawyer didn't do something he was required to do? He has to get a new appeal. They said, you know, you didn't do this. We don't have the record in front of us.
Here they said we're not going to consider your arguments about abuse of discretion. What if they had — what would the results have been? I don't know. Only the Appellate Court knows. This Court made it very clear that what they thought about the case. The ultimate decision is whether that decision was right, and in order to determine whether that decision was correct, he has to be afforded the opportunity to even make that argument, and he wasn't afforded the opportunity to make that argument.
That's the crux of my argument. Prejudice has to be assumed because he wasn't even afforded the opportunity to argue that the habeas court was wrong.
THE COURT: Miss Howe?
MS. HOWE: Yes, I did address that argument in my memorandum of law, which was submitted on June 4th. Basically on page five and the following pages where I indicate the petitioner now seeks the remedy of a new appeal from the denial of certification to appeal from Judge Graziani, and I interpret what he's asking for.
In effect, he's analogizing the failure of Attorney Adamo by addressing the issue of the certification part in his reply brief as opposed to the direct appeal, that he's basically claiming that the failure of Attorney Adamo to address the threshold issue of denial of certification is equivalent to failure to file any appellate brief at all. Basically he's claiming that yes, that the Court can grant him the opportunity to do what I call the do over, to redo the appeal, and it's the respondent's position that that is not, that remedy is not warranted, and the reason I say that is in fact a brief was filed by Attorney Adamo, and we do not have a per curiam one-line decision in Brian Niblack versus Commissioner, which is one of the attachments I submitted with my motion for summary judgment.
The Appellate Court has a lengthy opinion, and despite their criticizing of Attorney Adamo, they do, Judge Dranginis does go on to address the merits and refer to Judge Graziani's lengthy memorandum of decision and the review that they reviewed that, so obviously, it's at least obvious to me that the Appellate Court, despite the criticism of the attorney, went on to do a review of the matter on appeal for purposes of assuring itself that in fact no injustice had been done, and so I do not think the analogy to someone not filing any appeal at all is out. And I don't — I think you're basically with the standard that is enunciated in review of appellate counsel under the Small case is that you still have to show a reasonable probability that but for his appellate counsel's error, he would have prevailed on appeal.
So I do think — we don't dispute as to the documents that were presented at the habeas trial. We don't dispute the Appellate decision, the direct appeal, State versus Niblack, Niblack versus Commissioner appeal. We don't dispute what briefs were filed in the matter. We don't dispute Judge Graziani's very long and thorough memorandum of decision that he issued after the habeas trial.
Basically, the dispute, such as it is, is whether Attorney Adamo's brief was so defective that it caused the Appellate Court to totally neglect to decide the merits of the claim. I think when you look at an appellate decision that runs several pages, it's obvious the Appellate Court, despite the criticism, did reach the issue.
I would also point out, I guess in some ways Mr. Niblack is going to get a benefit from filing this habeas regardless, because if Your Honor agrees with the analysis of the respondent and denies the petition, then Attorney Neary will be taking an appeal. He will be claiming you denied — your denial of his petition is an abuse of discretion, and then he will get to reraise the issues that he's claiming had some merit that Attorney Adamo should have raised.
If he prevails, then he gets to have his do over and still be stuck in explaining why Judge Graziani abused his discretion in denying certificate to appeal. But I do think there is a distinction, especially in light of the Appellate Court decision that between the filing of brief and having the Appellate Court criticize it in some respects versus not filing any brief at all, I do think he needs to show some prejudice, and there's no indication in anything that was filed that the core issue here, which is whether Judge Graziani denied, was — abused his discretion in denying certification to appeal whether that was an abuse of discretion by Judge Graziani.
I mean it's been respondent's position that it wasn't. It was basically a credibility issue at the habeas trial, but I mean in a way, I mean I look at it as a practical matter, I think Attorney Neary may have an extra hoop to jump through, but it's — he's going to get the opportunity because of bringing this habeas at some level raises a lot of claims. I do think it's a lot of hoops he set up for himself, but I do think there's no reason for this Court on its own to take one of those hoops down. I think at this point the burden is on him to show not only is the appellate counsel ineffective, but that harm resulted. I think the Small standard is an appropriate one.
This is not a per se violation. An appeal brief was in fact filed. It did result in the Appellate Court decision which addressed the merits, so that's the respondent's position in terms of remedy.
I think his motion, the respondent's motion for summary judgment should be granted, his denied, then, you know, he can make his claim on appeal, but I think procedurally to equate filing a brief that might have been inadequate in some respects or at least found to be so by the Appellate Court that nevertheless went on to look at the issues claimed versus a claim of not filing anything at all, I don't think that's an appropriate analogy. I don't think it really holds when you look at what the Appellate Court actually did.
MR. NEARY: No, Your Honor. I've made my arguments. I don't need to rehash them. I know you heard them.
THE COURT: All right. The sole action — this will be the decision, Becky — the sole action that is alleged to be deficient performance in this case is the failure, at least as identified by the Appellate Court, and for the purposes of the proceedings this morning, is a soon to be failure on the part of Attorney Adamo to submit in his original brief to the Appellate Court appealing Judge Graziani's denial of the writ of habeas corpus, why Judge Graziani abused his discretion and denied the petition for certification to appeal.
Now, it's clear that Attorney Adamo addressed that in the reply brief. It would seem to be clear from the Appellate decision in Niblack versus Commissioner of Correction that the Appellate Court did not consider his arguments in the reply brief on the ground that it's inappropriate to raise new issues in a reply brief.
And, of course, if we're looking at ineffective assistance of counsel, we all know that there's a two-prong test created by Strickland versus Washington in which it's not only necessary to show deficient performance, you must demonstrate prejudice, and, of course, it's the prejudice prong that seems to be the hang-up between the parties.
Mr. Niblack argues in front of me that this is akin to a prejudice per se situation, that it's essentially the same as not having filed a brief at all, thereby resulting in certainly a default in the appeal.
The petitioner also asserts in this case that it's inappropriate for the habeas court to make the determination as to whether Judge Graziani abused his discretion.
Now, the way that argument goes essentially is that while I'm certainly not Judge Graziani, Judge Graziani and I are both co-equal judges of the same court. In essence, since it's not the personality of the individual who happens to be wearing the black robe, it's the judgment of the Court.
The petitioner argues that the Court is now in the position of having to review whether it abused its discretion in denying the original pet cert and makes the argument that that's inappropriate and that the only appropriate forum for that resolution shall be with the Appellate Court.
The problem with that argument is that this Court can't accept the argument that the failure to address in the original brief why the trial court was abusing its discretion in denying the pet cert is prejudice per se.
Consequently, if the Court can't review the facts to determine whether there has been prejudice to Mr. Niblack, as a result then the Court can't take action upon a habeas petition, and, consequently, no habeas petition should lie.
So I am going to find that I can address the question of whether there was an abuse of discretion. Based upon the materials submitted, particularly the complaint, it's impossible to find prejudice. Now, to be sure, there's a speculative argument that might be raised to the extent that had Mr. Adamo addressed the question of whether Judge Graziani abused his discretion in denying pet cert, prejudice might have been found, it then goes on to be speculative. Even if the hurdle of the denial of the pet cert had been overcome, whether the Appellate Court would have granted any relief to Mr. Niblack as a result. And the ultimate question in a petition for a writ of habeas corpus is whether the petitioner is being held in illegal confinement.
Practitioners would do well to recall the writ, history of the writ of habeas corpus, consider its derivation. It essentially was a writ that was designed in Medieval England to check the power of the sovereign to illegally confine people.
The writ was brought into court, and brought not against the king, but against the warden who was holding the prisoner per order of the king. So at its heart, petition for a writ of habeas corpus attacks the underlying reliability of the conviction and the confinement of the person who has brought it before the Court. And in this regard, Mr. Niblack has been found guilty pursuant to his own plea, a plea of guilty, the highest form of proof known to the law. He's been duly sentenced.
While he's challenged aspects of his case, specifically the hearing in probable cause, those appeals have been denied. He's challenged his attorneys who represented him in his criminal conviction and appeal that has been denied by Judge Graziani, and now, four or five generations down the road, Mr. Niblack, Niblack, attempts to argue that an appellate attorney appealing an adverse habeas decision affirming the convictions that have previously been confirmed by the Appellate Court and the trial court had made a mistake.
The biggest problem in this petition, of course, is it does nothing to undermine the reliability of the conviction. And in the end, that's where relief, if it's to be sought, has to be obtained. Consequently, the petition for a writ of habeas corpus will be denied.
Madam Clerk, please serve the appeal papers upon Mr. Niblack.
It's an interesting issue, Mr. Neary. I will give it consideration when I see, assuming I see the petition for certification to appeal.
MR. NEARY: I'm sorry, Your Honor, could you repeat that?
THE COURT: I said it's an interesting issue. I'll give it full consideration if and when I see a petition to appeal my decision.
MR. NEARY: You will see that next week, Your Honor.
THE COURT: All right. Mr. Niblack, good luck to you, sir.