Opinion
No. CV01-0804858
February 4, 2004
MEMORANDUM OF DECISION
The petitioner, Allan Nicholson, alleges in his three count petition for a Writ of Habeas Corpus initially filed in the Judicial District of Hartford on January 18, 2001 and amended for the final time on January 10, 2003, that his 2000 conviction in the Judicial District of Waterbury under Docket Number CR99-277467 was obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Constitution of the State of Connecticut. He claims, in Count One, to have been deprived of the effective assistance of his trial defense counsel, and, in Count Two, his Appellate Counsel. He further claims, without any specific elaboration, in Count Three that his detention is illegal in that he was deprived of the due process of law under both the United States and the State of Connecticut Constitutions.
This case was initially properly filed in the Judicial District of Hartford. In April 2003, jurisdiction for all habeas corpus petitions statewide was transferred to the Judicial District of Tolland All new petitions filed on or after April 1, 2003 axe properly filed in the Judicial District of Tolland In September 2003, pursuant to the direction of the Chief Administrative Judge, approximately two hundred cases that had been pending in the Judicial District of Hartford at the time of the consolidation were transferred to the Judicial District of Tolland This is one of those cases.
Attorney Allan D. McWhirter.
Attorney David J. Krisch.
In June 2000, the petitioner was convicted after a trial to a six-person jury in the Judicial District of Waterbury under Docket Number CR99-277467. In Part A of the Information, the petitioner was found guilty of one count of robbery in the 1st degree in violation of CGS § 53a-134(a)(3). A different six-person jury seated to try Part B of this Information adjudged the petitioner to be a persistent serious felony offender pursuant to CGS § 53a-40(c). As a result, on October 20, 2000, the Court, Doherty, J., sentenced the petitioner to a total effective sentence of twenty-five years to serve. The petitioner thereafter filed an appeal of this conviction to the Connecticut Appellate Court. In its opinion issued August 20, 2002, the Appellate Court, Foti, J., reversed the petitioner's conviction for Robbery in the First Degree and remanded the case back to the trial court with direction to enter a finding of guilty to the Lesser Included Offense of Robbery in the 3rd degree in violation of CGS § 53a-136. Further, the Appellate Court directed that the petitioner be re-sentenced in accordance with the new conviction. Thereafter, on December 30, 2002, the Court, Doherty, J., imposed a sentence of ten years to serve. The petitioner has remained in continuous custody of the Commissioner of Corrections since his arrest for this matter on February 17, 1999.
This matter came on for trial before this Court on February 2, 2004 at which time testimony was received from: the petitioner; his trial defense counsel, Attorney Allan McWhirter; and his appellate counsel, Attorney Daniel Krisch. The transcript of the petitioner's trial (three volumes in all), the appellant's original and reply briefs, and the decision of the Connecticut Appellate Court, State v. Nicholson, 71 Conn. App. 585 (2002) were admitted into evidence and considered by the Court. As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The Court has reviewed all of the testimony and evidence and makes the following additional specific findings of fact (further facts will be related as necessary to resolve specific claims).
Specific Findings of Fact
1. The petitioner was the defendant in a case in the Judicial District of Waterbury, under Docket Number CR99-277467 entitled State v. Nicholson. The petitioner was charged one count of Robbery in the first degree in violation of CGS § 53a-134(a)(2), and with being a persistent serious felony offender in accordance with CGS § 53a-40(c). Attorney Allan McWhirter, the Supervisory Public Defender for the Judicial District of Waterbury, was appointed to represent the petitioner.
2. The underlying facts of this case, as found by the Appellate Court in its decision, show that: "[p]rior to the events [that led to the charges in this case], the petitioner was convicted of a felony, namely, robbery in the first degree. Upon his release from prison, the petitioner supplemented his income from lawful employment by selling illegal drugs. On February 17, 1999, at about 4:30 p.m., the petitioner, after drinking a quantity of vodka, entered a Kentucky Fried Chicken restaurant located in Waterbury. Upon entering, the petitioner walked directly across the restaurant. He passed through a doorway that separated the kitchen area from the rest of the restaurant and entered the kitchen work area behind the cash registers. In doing so, he passed by Margaret Powell, the cashier working at the counter, and several customers.
3. "The petitioner approached Barry Southworth, an assistant manager, who was working behind the counter. With his left hand, the petitioner grabbed Southworth's left arm and positioned himself so that his face was close to Southworth's. The petitioner stated, `[O]pen the drawer, give me the money or I'm going to hurt you real bad.' The petitioner kept his right hand in the pocket of his sweatshirt, causing his pocket to protrude outward. By doing so, the petitioner gave Southworth the impression that he may have possessed a knife, gun or other weapon in his pocket.
4. "Southworth opened the cash register and removed some of the money contained therein, totaling less than one hundred dollars. The petitioner grabbed the money with his left hand and stuck it into his sweatshirt pocket. The petitioner then calmly exited the restaurant. In addition to Southworth and Powell, Angela Williams, another assistant restaurant manager, who had been working in a rear office, witnessed all or part of the incident by means of video cameras that relayed images to a monitor in her office. None of these witnesses ever observed a weapon in the petitioner's possession.
5. "After the petitioner left the restaurant, Powell called the Waterbury police department to report the incident. Upon leaving the restaurant, the petitioner went to the department of children and families (department) building, which is located about 100 yards from the restaurant. Williams and an acquaintance, who had been in the restaurant at that time, followed the defendant. Williams called to the petitioner and told him,' Give me back my money.' The petitioner did not respond to Williams; he continued to run away from the restaurant. Williams observed the petitioner enter the department building and converse with a woman therein. Shortly thereafter, Williams flagged down police officers who responded to the crime scene. On the basis of Williams's identification, officers apprehended the petitioner as he exited the department building. Upon taking the defendant into custody, officers discovered that he had a razor knife or box cutter in his right sweatshirt pocket. The woman with whom the petitioner had been conversing possessed a crumpled wad of cash in the amount of eighty-nine dollars.
6. "At trial, the petitioner testified that, about four days prior to the incident, he sold Southworth illegal drugs and that Southworth had not paid him for the drugs. He admitted that he asked Southworth for his money and that after Southworth had removed cash from the register, he `snatched' it from his hand The petitioner also testified that, after he had left the restaurant, he gave the money to his girlfriend, who was in the department building, and that he was unaware that Williams had been observing him." State v. Nicholson, 71 Conn. App. 585 at 587-80 (2002).
7. The petitioner had initially had a bond of $50,000.00 set in this case. Attorney McWhirter did not ask for another bond hearing because there had been no changes in circumstances that would have warranted a lower bond and the existing bond was low for the Judicial District of Waterbury anyway. Attorney McWhirter feared that a new bond hearing would only result in the bond being increased. Consequently, he made the tactical decision not to request a new bond hearing.
8. The petitioner insisted to his attorney that he did not commit a robbery and only went into the restaurant in order to collect a debt for drugs "sold on credit" that was owed him by the victim. With there being little to no desire on the part of the petitioner to seek a plea bargain in this case then, Attorney McWhirter worked diligently on preparing his client's case for trial.
9. Attorney McWhirter reviewed the materials in the state's attorney files and attempted to contact the state's witnesses, although they were uncooperative with him. He attempted to track down the witnesses that the petitioner indicated would help in his case and had but limited success in doing so. In large measure this was due to the incomplete information provided by the petitioner who knew some of the witnesses only by their "street names." In addition one or more of the witnesses had died long before this case came to trial.
10. At the trial, Attorney McWhirter called the petitioner to the witness stand and one other witness, Mr. James Sparkman who essentially corroborated the petitioner's version of the incident. Namely, that rather than committing a robbery, the petitioner was simply in the process of collecting a debt that he had been owed by the victim when he extended him "unsecured credit" for the purchase of illegal drugs. To the extent that any of the other witnesses identified by the petitioner might have been called, their testimony would have been cumulative of that evidence that had already been put in front of the jury by the petitioner and Mr. Sparkman.
11. After the trial to the six-person jury, the petitioner was convicted of Robbery in the 1st degree. On August 20, 2000, in front of a different six-person jury, the petitioner was tried for being a persistent serious felony offender in violation of CGS § 53a-40(a)(2)(c). He was found guilty.
There was an allegation that this somehow deprived the petitioner of due process and the effective assistance of counsel. It is clear from the testimony of Attorney McWhirter that the reason why there was a second jury was because the petitioner wanted to make this prosecution as difficult upon the state as possible and that it was the petitioner's desire to have a new jury hear the part B of the Information. Moreover, it is difficult for this Court to see how having a fresh jury that had not been exposed to the facts of the case upon which the petitioner had been convicted was in any way prejudicial when it came to trying Part B of the Information.
12. On October 20, 2000 the Court, Doherty J., sentenced the petitioner to a total effective sentence of twenty-five years of incarceration.
13. Subsequently the Appellate Court reversed the petitioner's conviction for Robbery in the First Degree and remanded the case back to the trial court with direction to enter a finding of guilty to the Lesser Included Offense of Robbery in the 3rd degree in violation of CGS § 53a-136. The Appellate Court further directed that the petitioner be re-sentenced in accordance with the new conviction.
14. Thereafter, on December 30, 2002, the Court, Doherty, J., imposed a sentence of ten years to serve.
15. Additional facts shall be discussed as necessary.
Discussion
It is important at the outset to understand a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition, having already been convicted, is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial . . . Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994).
Count I: Deprivation of Effective Assistance of Trial Defense Counsel
In order to prevail on the issue of whether there has been ineffective representation by the petitioner's trial defense counsel, the petitioner must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d (1984) before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. In this regard, the Court notes that counsel for the petitioner has cited numerous matters he styles as trial defense counsel deficiencies. One must bear in mind, however, that "[t]he right of a defendant to effective assistance [of counsel] is not, however, the right to perfect representation." State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chance v. Bronson, 19 Conn. App. 674, 678, 564 A.2d 303 (1989). "Competent representation is not to be equated with perfection. `The constitution guarantees only a fair trial and a competent attorney; it does not require that every conceivable constitutional claim will be recognized and raised.' Jeffrey v. Commissioner of Correction, 36 Conn. App. 216, 219 (1994)." Toccaline v. Commissioner of Correction, 80 Conn. App. 792 at 798 (2004). He must also show "that this lack of competency contributed so significantly to his conviction as to have deprived him of a fair trial." Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986). The reviewing court must employ a strong presumption of the reasonableness of that counsel's assistance. Levine v. Manson, supra, 640; Chance v. Bronson, supra, 678. The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight. Levine v. Manson, supra. Even if that assistance is found to have been lacking in competency, the petitioner bears the further burden of showing that there is a reasonable probability that, were it not for the deficiency of counsel, the result of the trial would have been different. Aillon v. Meachum, 211 Conn. 352, 357, 59 A.2d 206 (1989)." Williams v. Bronson, 21 Conn. App. 260, 263 (1990).
The petitioner alleges, inter alia, that his trial defense counsel failed to: demand a hearing in probable cause; insist upon a 12-person jury; demand a new bail hearing; locate and subpoena favorable witnesses for trial; object to the arrest; move to suppress an involuntary statement request a competency hearing; and, prepare or investigate the case; adequately cross examine witnesses. As such, the petitioner has made broad and, in a few instances wholly, unsupported allegations. Counsel would do well to remember the astute observation of Abraham Lincoln that "in law, it is a good policy to never plead what you need not, lest you oblige yourself to prove what you can not." Letter to Usher F. Linder dated February 20, 1848.
It is, therefore, incumbent upon a habeas court, knowing the outcome of the trial "[to] not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but . . . evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn. App. 253 at 264 (1979), cert. den., 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to 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." Henry v. Commissioner of Correction, 60 Conn. App. 313 at 317 (2000). This Court will, therefore, examine the totality of the trial defense counsel's representation to determine if his performance, overall, fell below the range of competence expected of attorneys with ordinary training and skill in criminal law. Strickland, supra at 687.
Moreover, it is not even necessary to consider whether a trial counsel's performance was deficient if the habeas Court is satisfied that there was no prejudice to the defendant by the actions or inactions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) ('[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')." Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
In the instant case, the petitioner raises multiple complaints about his trial defense counsel. In essence, the petitioner who having had the opportunity to, in his words, "reads a lot in the law library" believes that his interpretation of the law is what should control in this case. For example, it is the petitioner's belief that when the Appellate Court reversed his conviction for Robbery in the 1st degree, it meant that he was entitled to an acquittal. He believes that his counsel should have pressed this argument in both the trial and the appellate courts and that their failure to do so deprived him of the effective representation of counsel. However, he is mistaken in this regard.
In its instructions to the jury, the trial Court properly advised the jury as to the elements of Robbery in the 1st degree. The trial Court then went on to explain that Robbery in the 3rd degree was a Lesser Included Offense (LIO) of Robbery 1st. It is clear that the jury understood that in reaching a finding of guilty as to Robbery 1st, it was also by necessity reaching a finding of guilty to the LIO of Robbery 3rd. When the Appellate Court reversed the guilty verdict of Robbery 1st, it did so, only because it found that the evidence was insufficient to establish the differentiating element between Robbery 1st and Robbery 3rd, namely that a dangerous instrument was used or threatened to be used in the commission of the Robbery. Accordingly, the jury verdict could be allowed to stand only as to Robbery 3rd. Any argument that under the facts of this case the petitioner was entitled to an absolute acquittal would have been singularly unsuccessful. No reasonably competent attorney would even make such a claim. The petitioner's belief is, therefore, without any foundation.
Similarly, as regards the trial and preparation for trial, this Court finds that Attorney McWhirter did conduct an adequate and appropriate investigation in getting ready for trial and sentencing. There are, of course, always some things that could have been undertaken, done differently, or not at all. However, it is not appropriate to view each action, or inaction, of a trial defense counsel and put it under microscopic scrutiny. "Some attorneys make a practice of `building a record' by making motions which are doomed to fail, or seeking disclosure which has already been made. Such a practice serves no useful purpose, is not to be encouraged and abstaining from doing so certainly does not indicate ineffective assistance of counsel." State v. Barber, 173 Conn. 153 at 158 (1977). "Judicial scrutiny of counsel's performance must be highly deferential, and a reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Chace v. Bronson, 19 Conn. App. 674 at 678 (1989). A review of the trial transcript shows that Attorney McWhirter did conduct vigorous cross-examination and made a good argument to the jury. He did identify and emphasize the shortcomings in the government's case. He presented the petitioner's theory of being engaged as simply collecting a debt. Although it is fair to say that different counsel may well have tried the case differently, it is clear that Attorney McWhirter did provide the petitioner with an effective, and therefore, constitutionally acceptable, representation at the trial on the merits. In the end, it is the evidence that is considered by the jury that ultimately carries the day for one party or the other. In this case, it is clear that the jury rejected the petitioner's version of what took place and found that a robbery had taken place.
It is not altogether uncommon for a defendant to be dissatisfied with the performance of his trial defense counsel when there is a conviction. While it is true that there are instances of ineffective representation that do result in unconstitutional and unreliable convictions, there are other cases that no matter how competent and gifted the attorney might he, the evidence is simply overwhelming.
The petitioner had amassed a significantly problematic record when he came to trial in Waterbury for this Robbery. He had at least three previous felony convictions for Robbery in varying degrees and had previously been found to be a persistent serious felony offender. All of this made for significant difficulties at sentencing. In fact, initially, the state wanted to seek a potential life sentence for the petitioner by charging him in Part B of the information as a persistent dangerous felony offender under CGS § 53a-40(a). However, in a pretrial session, the Court, Damiani, J. dismissed that approach for the failure of the state to hold a hearing in probable cause. He did, however, permit the state to charge the petitioner as a persistent serious felony offender under CGS § 53a-40(c). The petitioner now seeks to have this Court find his counsel to have been ineffective for not raising the lack of a hearing in Probable Cause and for not demanding a jury of twelve. The fact of the matter, however, is that with Judge Damiani's action, the petitioner was not exposed to a potential life sentence, hence the right to demand a Hearing in Probable Cause and a twelve-member jury did not mature. In light of this, it is wholly inappropriate to attempt to hold Attorney McWhirter to be ineffective for not pursuing that to which there was no right.
The petitioner seeks to challenge the effectiveness of the trial defense counsel for failing to raise the complaint that his arrest was unconstitutional. Here in Connecticut, ". . . [p]eace officers . . . shall arrest, without previous complaint and warrant, any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others . . ." C.G.S. § 54-1f. Here, Officer Slavin was immediately responsive to the report of an armed robbery and apprehended the petitioner shortly after the crime was committed. Where an arrest has been made as the result of speedy information, no arrest warrant is required. State v. Voelkel, 2 Conn. Cir. Ct. 459 (1964). In State v. Barles, 25 Conn. Sup. 103 (1964), an arrest effected within one hour of the commission of the offense was deemed to be upon speedy information. See also, State v. Gallagher, 38 Conn. Sup. 364 (1982), where twenty minutes was determined to be upon speedy information. It is clear then that there is no matter to a claim of an illegal arrest and, even had Attorney McWhirter filed a motion to challenge the arrest, it would, undoubtedly have been denied. There is, therefore, no prejudice to the petitioner for the failure of his counsel to do so.
Insofar as the other allegations of ineffective representation by trial defense counsel are concerned, there simply has been no proof establishing that the petitioner merits relief. Despite the allegation that he was "stressed" and suffered from a mild case of high blood pressure, there is no basis upon which this Court can conclude that Attorney McWhirter was ineffective in failing to move for a competency examination under CGS § 54-56d. Likewise, as the petitioner admitted at the habeas trial that he gave no statement to the police, there is no ineffectiveness on the part of Attorney McWhirter for his failure to move to suppress a non-existent statement.
Given all of the above, the petitioner has failed to meet his burden under the Strickland standard of showing ineffective assistance of trial defense counsel and Count I of the petition must be denied.
Counts II: Ineffective Assistance of Appellate Counsel
The petitioner has raised an allegation of ineffective assistance of appellate counsel. However, the only evidence introduced on this issue is the appellate briefs, and the decision of the Appellate Court. The petitioner complains that his appellate defense counsel did not raise all of the issues on appeal that he could have done. Even if true, this is a tactical decision that is clearly within the province of the appellate defense counsel.
The standards for effectiveness of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984) apply with equal force to appellate counsel. In order to prevail in the instant habeas petition, then, the petitioner must prove first that he was denied the effective assistance of appellate counsel in that not only could his appellate counsel have raised the issues alleged in his petition on direct appeal, he should have done so. This will necessarily require a showing that his appellate counsel's performance "was so deficient that it fell below the standard of reasonably effective assistance; and, . . . that these errors deprived the defendant of a fair appeal and caused an unreliable conviction to stand" Valeriano v. Bronson, 209 Conn. 75, at 82 (1988). Then, the petitioner must prove that if the issues had been raised on direct appeal, there was a reasonable likelihood that he would have prevailed upon those issues on direct appeal. As previously discussed that he cannot do.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. A habeas court "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn. App. 253 at 264 (1979), cert. den., 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to 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." Henry v. Commissioner of Correction, 60 Conn. App. 313 at 317 (2000).
This is particularly true when one is attacking the decision of appellate counsel to not go forward on an issue on appeal. "Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Jones v. Barnes, 463 U.S. 745 at 751-52 (1983). Simply because there is an appellate issue that could be raised does not necessarily mean that it should be raised. "There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review . . . A brief that raises every colorable issue runs the risk of burying good arguments in a verbal mound of strong and weak contentions." Jones v. Barnes, supra at 752-53. Moreover, it is inappropriate "for judges to second guess reasonable professional judgments and impose on appointed counsel a duty to raise every `colorable' claim suggested by a client." Jones v. Barnes, supra.
Appellate Counsel must carefully pick the ground upon which he or she elects to stand and fight. "One of the first tests of a discriminating advocate is to select the question, or questions, that he will present orally. Legal contentions like the currency depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one . . . [E]xperience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one." Justice Jackson, "Advocacy before the United States Supreme Court," 25 Temple L.Q. 115 at 119 (1951).
Mr. Justice Jackson's observation is all the more pointed in this case given that Attorney Krisch was highly successful in obtaining relief for his client. It is conceivable that, rather than resulting in additional victory for the petitioner had he raised all of the issues that the petitioner wanted, the Appellate Court might have affirmed the conviction for Robbery 1st. It is, of course, speculative for this court to take such a position, however, the petitioner has failed in his burden to convince this court that there is a reasonable probability that any error by appellate counsel would have resulted in a better outcome on appeal. See Toccaline v. Commissioner of Correction, 80 Conn. App. 792 (2004).
Count III: Illegal Detention due to Deprivation of Due Process
The petitioner has made a general allegation that he was deprived of due process in violation of both the state and federal constitutions. Nevertheless, he does not support this Count with any particular facts upon which he bases that allegation. Consequently, this Court will conclude that the bases stated in Counts one and two are the bases upon which he believes that count three should result in the granting of the petition. As previously discussed, there is no merit in any of the matters raised by the petitioner in Counts one and two, therefore, this Court will also deny the petition as regards Count three.
Accordingly, the Petition for a Writ of Habeas Corpus is denied.
S.T. Fuger, Jr., Judge