Opinion
No. TSR CV05 4000270-S
November 26, 2007
MEMORANDUM OF DECISION
The petitioner, Tywaan Reeves, alleges in his petition for a writ of habeas corpus, amended for the second time on December 29, 2006, that he was denied the effective assistance of trial and appellate counsel. The matter came before the court in September 2007 for a trial on the merits. Witnesses included petitioner and Jerald Barber. The court finds the testimony of Barber to be generally credible and the testimony of petitioner to be generally not credible. The court has reviewed and considered the testimony, the exhibits and the parties' closing arguments. After applying the law to the facts, judgment enters denying the petition for a writ of habeas corpus.
The second amended petition also included in count three a claim of prosecutorial impropriety; however, the petitioner withdrew that count at the habeas trial.
Neither party filed a memorandum of law.
FINDINGS OF FACT
Petitioner was the defendant in a criminal case pending in the Superior Court, judicial district of Ansonia-Milford, Docket Number CR 97-0028746 in which he was charged with the crimes of robbery in the first degree in violation of Gen. Stat. § 53a-134(a)(4); failure to appear in the first degree in violation of Gen. Stat. §§ 53a-172(a); two counts of tampering with a witness in violation of Gen. Stat. § 53a-151(a); and larceny in the third degree in violation of Gen. Stat. § 53a-124(a)(1). The matter was tried to the jury over a period of seven days in August and September 1998 and petitioner was found guilty of all counts except larceny in the third degree.
The facts underlying petitioner's conviction were recounted in the decision of the Appellate Court disposing of his direct appeal: "At approximately 6 p.m. on February 21, 1998, Marcus Russell, age seventeen, and his girlfriend, Shaluanda Elliot, age fourteen . . . left his apartment to walk her to her home on Homeside Avenue. As they were walking, Russell and Elliot noticed that three black males were following them. Both Russell and Elliot recognized two of the individuals as the [petitioner] and Willie Minor. Elliot also recognized the third individual as John Walton. Russell told Elliot to keep walking. Both did so. When Russell and Elliot reached Glade Street, which was a few blocks from Homeside Avenue, they noticed that the three individuals who had been following them had disappeared. Shortly thereafter, however, when they had reached Terrace Street, they saw that the [petitioner] and Minor had reappeared behind them and were again following them.
"When Russell and Elliot reached Homeside Avenue, the [petitioner] shouted at them, 'You all stop walking.' Russell turned around and said, 'What?' and continued walking. The [petitioner] then said, 'You all gots to stop walking. I'm going to shoot.' The [petitioner] approached them, and both Russell and Elliot saw a gun in his hand. He stated to Russell, 'You violated me,' and that he was going to 'run [Russell's] jewels.' Both men wore dark jackets and masks that covered the lower half of their faces. Thereafter, the [petitioner] held the gun against Russell's chest. At the [petitioner's] direction, Minor 'popped' a gold chain that Russell was wearing from around his neck. This chain had a round medallion with a depiction of the Virgin Mary on it and was worth approximately $600. Russell was also directed to remove a gold ring from his finger and to give it to the [petitioner]. This ring had rubies and cubic zirconias on the band and a picture of the Virgin Mary on its face, and it was worth about $80. The [petitioner], telling Russell that he knew he had more jewelry, checked Russell's wrists for bracelets but found none. The [petitioner] and Minor then fled toward Glade Street.
"Both Russell and Elliot immediately ran the short distance to Elliot's house and told her mother, Luray Elliot, what had happened. Angered over this situation, Elliot's mother, Elliot, Russell and several neighbors went to Glade Street to try to find the [petitioner].
"In the meantime, the police were called and told of the robbery. David Cahill, an officer with the West Haven police department, was dispatched to the area. Upon his arrival, he spoke to Russell and Elliot, who told him that the [petitioner] had robbed them at gunpoint. He learned that the two alleged robbers were black males, both dressed in dark coats and dark pants, and that they had worn masks that covered the lower half of their faces. He also got a description of the gold chain and the gold ring. Cahill was familiar with the [petitioner] in that he lived in the area. The police dispatcher learned that the [petitioner] lived at an apartment at 54 Glade Street and sent Officers Steven Viele and Pauline Sires, who had been in radio contact with Cahill, to that address to find him.
"Cahill proceeded to the [petitioner's] apartment on foot, but Viele and Sires arrived there before him. Emily Reeves, the [petitioner's] grandmother, answered Sires' knock on the apartment door. Sires told her that the [petitioner] was a suspect in a robbery that had just occurred and that they wanted her consent to search the apartment. She consented and pointed out the [petitioner's] room for them. In that room, Viele and Sires observed two dark jackets, one on the bed and the other on the floor, which were similar to the jackets worn by the alleged robbers. The jackets later were determined to belong to the [petitioner] and Minor. The officers continued to search the bedroom, but the [petitioner] was not there. In that bedroom there was a closet about six feet high and four to five feet wide, with sliding doors, one to each side . . . As he stood up from examining the right side of the closet, Viele saw a piece of jewelry in front of a stack of clothes on a shelf. It was 'very bright,' it was 'gold with clear stones' and 'red colored stones on it,' and the face of the ring . . . had an inscription of the Virgin Mary." No gun was found during that search.
"The police did not locate the [petitioner] that night, but apprehended him several days later on February 26, 1997. He posted a bond, and his trial was eventually set to begin on April 21, 1998.
"In March 1998, while the [petitioner] was still out on bond, Elliot was with her mother in her mother's car on Glade Street when the [petitioner] approached the car. He apologized to 'her for sticking [Russell] up when [she] was with him,' and he told her that 'he wanted to be friends' and that 'he was stupid for doing it.' Later, on April 20, 1998, after Russell had been subpoenaed to attend court on that day, which was when the [petitioner's] trial was scheduled to commence, the [petitioner] pulled up in a car as Russell was coming out of his house. The [petitioner] got out and started to speak with Russell. After Russell told him that he had been subpoenaed, the [petitioner] 'asked him not to go to court and if [he] did to give a false statement.' He also told Russell that 'if [Russell] [needed] any money, he [would] give it to [him] and anything [he] wanted or needed or whatever.' Russell rejected the [petitioner's] offer. The next day, Russell told Joseph Zampano of the state's attorney's office about this incident.
"On the day that the [petitioner] had approached Russell, i.e., April 20, 1998, the [petitioner] called Elliot's mother and told her that he knew that she and Elliot had been subpoenaed to go to court the next day. He talked to her about their not saying they were sure it was him, and he wanted to know if Elliot had talked to the state's attorney. He then wanted to know what Elliot had told the state's attorney, and her mother said she did not know. The [petitioner] said that he 'needed' to know what she said 'so he knew what he would be walking up against when he came into the courtroom.' He went on to say that 'it is not like I'm going to do anything to you guys, I just want to know what I am walking up against when I go into the courtroom.' Elliot's mother said that she did not know what her daughter had said as she was not in the room with her. The [petitioner] then asked her if Elliot was home because he wanted to speak with her. She replied that Elliot was not home. The next day Elliot's mother reported this by telephone to Zampano at the state's attorney's office.
"On April 21, 1998, the [petitioner] went to court, but before his case was called for trial, he left the courthouse and did not return. The police found him on May 21, 1998, in New Haven and he was rearrested." State v. Reeves, 57 Conn.App. 337, 339-43, 748 A.2d 357 (2000).
After petitioner's arrest on the failure to appear charge, Attorney Jerald Barber entered his appearance on petitioner's behalf and represented petitioner throughout his trial and appeal. At the habeas trial Barber testified that he was admitted to the bar of the state of Connecticut in 1992 and prior to his representation of petitioner, had defended several dozen criminal cases, including robbery cases, and had tried three to four cases to verdict. At the time of petitioner's criminal trial, Barber was associated with Attorney Earl Williams who had been a member of the Connecticut bar for forty years and whose practice consisted almost exclusively of criminal cases. Williams assisted Barber in the preparation and trial of petitioner's case.
Prior to Barber's appearance as petitioner's counsel, petitioner had been represented by Attorney Vito Castignoli.
After Barber was hired by petitioner's family, he reviewed the entire contents of the prosecution's file including witness statements, documentary evidence, police reports and petitioner's prior criminal record. Thereafter Barber went over all of the state's evidence with petitioner. Petitioner's family also retained Barber to represent petitioner during his appeal.
Petitioner had prior convictions for robbery in the first degree and a weapons offense.
Additional facts will be discussed as necessary.
DISCUSSION I. Ineffective Assistance of Trial Counsel
For a petitioner to prevail on a constitutional claim of ineffective assistance of counsel, he must satisfy both parts of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first part of the test, known as the performance prong, requires proof that counsel's representation fell below an objective standard of reasonableness. Strickland v. Washington, supra, 466 U.S. 688; Copas v. Commissioner of Correction, 234 Conn. 139, 154, 662 A.2d 718 (1994). "In determining whether such a showing has been made, judicial scrutiny of counsel's performance must be highly deferential . . . The reviewing court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." (Internal quotation marks omitted.) Calabrese v. Commissioner of Correction, 88 Conn.App. 144, 151, 868 A.2d 787, cert. denied, 273 Conn. 936, 875 A.2d 543 (2005). "Because of the difficulties inherent in making [this] evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 799, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).
The second prong of the test, known as the prejudice prong, requires "showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Strickland v. Washington, supra, 466 U.S. 687; see also Copas v. Commissioner of Correction, supra, 234 Conn. 154-55. "It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 799.
In count one, petitioner first claims that Barber failed to present evidence about the nature of the relationship between Marcus Russell and petitioner. Petitioner also claims that Barber failed to present any evidence, aside from the testimony of Jason Lminggio, that petitioner knew Shaluanda Elliot before the alleged robbery.
The following additional facts are relevant to petitioner's claims. Prior to the criminal trial, petitioner informed Barber that he did not commit a robbery, that he was not in possession of a gun and that he did not threaten Russell in order to get him to hand over the jewelry. Petitioner told Barber that Russell sold drugs for petitioner and owed petitioner money for drugs which had previously gone missing. According to petitioner, Russell had failed to pay petitioner for these drugs and on the night of the alleged robbery, Russell voluntarily turned over a ring and gold chain in payment therefore.
Barber and petitioner had extensive discussions on the issue of whether petitioner should testify and the pros and cons of this testimony. Petitioner insisted that he wanted to give the jury his own explanation for his possession of Russell's property. This explanation included a description of the drug dealing relationship between Russell and himself. Barber, however, advised petitioner that his testimony about a drug debt owed to him by Russell ran the risk the jury would convict him notwithstanding any weaknesses in the state's case but merely because he was a drug dealer. Ultimately petitioner elected to testify and denied that he had committed a robbery, denied that he was in possession of a gun, denied that he was wearing a mask and denied threatening Russell. Petitioner also informed the jury that Russell gave him the jewelry in payment for a debt, but did not testify as to the nature of the debt.
On cross examination, petitioner also denied that he had spoken to Elliot's mother the day before the start of the trial, denied that he had offered Russell money to testify falsely, denied that he had apologized to Elliot for disrespecting her by committing the robbery, denied that he had given a false name at the time of his arrest for failure to appear and denied that he fled from the stolen car when it was stopped by police. Criminal Trial Transcript, August 26, 1998, pp. 155-90. By so testifying, petitioner directly contradicted the testimony of at least five other witnesses in the trial.
In an effort to bolster the credibility of petitioner's claim that Russell owed him money, petitioner additionally testified that he and Russell were friends and that over a period of several years they had socialized with one another at petitioner's house and other acquaintances houses. Barber additionally presented the testimony of Jason Lminggio who corroborated petitioner's claim that he and Russell were friends. Barber further attempted to introduce the transcript of a phone call between petitioner, Russell and Luray Elliot to show the animosity of these state's witnesses toward petitioner. The state's objection to the transcript was sustained by the trial court and this exhibit was never introduced at the criminal trial. Barber never sought to introduce this exhibit for the purpose of showing a prior relationship between the parties.
Petitioner claimed that he and Russell had socialized at the homes of Tiffany Chow and Yolanda Foster. Barber testified at the habeas trial that he first learned of the identity of these potential defense witnesses during petitioner's testimony at the criminal trial and that prior to trial petitioner had never given him the names of these witnesses.
Petitioner asserts that Barber's advice not to disclose the nature of petitioner's relationship with Russell and the debt Russell owed to petitioner amounted to ineffective assistance of counsel. In support of this, petitioner argues that although it would not ordinarily be helpful for a criminal defendant to admit he was a drug dealer, in petitioner's case, testimony that Russell was involved in drugs balanced out any harm to petitioner and made the drug dealer evidence a "net zero." Petitioner further argues that the state pointed out in closing argument that the petitioner did not explain the source of the debt.
Petitioner has failed to show how evidence that petitioner and Russell were partners in dealing drugs would have benefitted petitioner's case in any way. The arguments advanced by petitioner are unpersuasive and the evidence presented at the habeas trial does not support a finding of deficient performance. Barber thoroughly discussed the issue with petitioner and weighed the potential benefit against any harm to petitioner's case. The criminal trial transcript indicates that the absence of the evidence did not damage petitioner's defense, and the introduction of the evidence would likely have been prejudicial. Thus, Barber exercised sound professional judgment in deciding against taking an unnecessary risk, and this court will not second guess that trial strategy. See, e.g., Beverly v. Commissioner of Correction, 101 Conn.App. 248, 252, 922 A.2d 178, cert. denied, 283 Conn. 907, 927 A.2d 916 (2007).
The state's own evidence corroborated this defense in that the perpetrator only took items from Russell but did not take anything from the other victim, Elliot.
Petitioner has failed to prove deficient performance, the first prong of the Strickland test. Thus, there is no need to determine whether the petitioner satisfied the prejudice prong. "It is well settled that in order to prevail on a claim of ineffective assistance of counsel, the petitioner must prove both prongs of the Strickland test. A reviewing court [therefore] can find against a petitioner on either ground, whichever is easier." (Internal quotation marks omitted.) Lacks v. Commissioner of Correction, 87 Conn.App. 225, 231, 866 A.2d 660, cert. denied, 273 Conn. 922, 871 A.2d 1027 (2005).
Petitioner next claims that Barber failed to introduce evidence that petitioner knew Shaluanda Elliot and the other parties prior to the robbery. Specifically, petitioner alleges that Barber was ineffective for failing to introduce the transcript of the phone conversation between petitioner, Russell and Luray Elliot as evidence of a prior relationship. Petitioner has failed to prove, however, that had the transcript been offered for that purpose, it likely would have been admitted. Moreover based on a review of the transcript, this court finds that the transcript does not affirmatively establish that petitioner and the parties had a relationship prior to the robbery. Consequently, petitioner has failed to prove prejudice.
"Because both prongs [of the Strickland test] must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong . . . Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim." (Internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn.App. 1, 11-12, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007). Petitioner's claims concerning evidence of his relationship with Russell, Shaluanda Elliot and Luray Elliot are, therefore, denied.
Petitioner next claims that Barber failed to request jury instructions on the lesser included offenses of robbery. Indeed, at the conclusion of the evidence in the criminal trial, Barber did not request that the court instruct the jury on the lesser included offenses of robbery in the second and third degrees. Petitioner testified at the habeas trial that Barber never discussed whether to request such a jury charge. Petitioner further testified that, had he known about the lesser included offense option, he would have wanted the jury charged on the issue. Barber was unable to recall specifically discussing the issue with petitioner. Barber credibly testified, however, that he discussed with petitioner, as he does with every client, each issue which arose during the criminal trial and that he and petitioner were in agreement on every issue.
Petitioner's habeas trial was held nine years after the criminal trial
Petitioner argues that the decision of whether to request a lesser included offense is analogous to such fundamental decisions as whether to plead guilty, waive a jury trial or testify at trial. "It is . . . recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." (Internal quotation marks omitted.) State v. Stewart, 64 Conn.App. 340, 352, 780 A.2d 209, cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001). Predicated on this axiom, petitioner asserts that he, rather than Barber, should have made the decision about the lesser included offense instructions. Petitioner did not, however, cite to any authority in support of his argument, and this court was unable to find any supporting case law through its own research. Instead, the case law reveals that "counsel's failure to request a lesser included offense instruction does not necessarily deprive a defendant of reasonably effective assistance of counsel. It may be sound trial strategy not to request a lesser included offense instruction, hoping that the jury will simply return a not guilty verdict." (Internal quotation marks omitted.) Chace v. Bronson, 19 Conn.App. 674, 682-83, 564 A.2d 303, cert. denied, 213 Conn. 801, 567 A.2d 833 (1989), citing Fair v. Warden, 211 Conn. 398, 404, 559 A.2d 1094 (1989). Additionally defense counsel, not petitioner, has ultimate control over matters concerning trial strategy. See State v. Jeffreys, 78 Conn.App. 659, 672, 829 A.2d 569, cert. denied, 266 Conn. 913, 833 A.2d 465 (2003), citing State v. Stewart, supra, 64 Conn.App. 353.
Barber testified that because the state's evidence as to the elements of the use of force and on larceny was weak, he believed that not requesting any lesser included offense instructions was the best strategy to obtain an outright acquittal on the robbery count. Barber recalled that petitioner did not object to this strategy. In addition, Barber's strategy to obtain a full acquittal on the first degree robbery charge was based, in part, on petitioner's complete denial of guilt — i.e., Russell voluntarily gave petitioner the jewelry as payment for a debt. Such a strategy practically precludes a request for jury instructions on the lesser included offenses of robbery in the first degree. Stated differently, a request for lesser included offense instructions would have been entirely inconsistent with petitioner's desired theory of defense.
No gun was ever recovered despite the fact that police searched petitioner's house within an hour of the robbery and recovered the ring and petitioner's jacket. Additionally there were inconsistencies in each victim's description of the appearance of the gun. Moreover to rebut any inference of intent to commit larceny, the evidence showed that jewelry was taken only from Russell, but nothing was taken from Elliot even though she was wearing numerous items of gold jewelry.
In assessing whether counsel provided ineffective assistance, "[j]udicial scrutiny of counsel's performance must be highly deferential," and the habeas court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland v. Washington, supra, 466 U.S. 689. In the present case, there is no indication that Barber's decision was anything other than well reasoned and informed. Accordingly, this court gives deference to Barber's decision and finds no support for petitioner's claim of ineffective assistance. See Dwyer v. Commissioner of Correction, 102 Conn.App. 838, 842-44, 927 A.2d 347, cert. denied, 284 Conn. 925 A.2d (2007) (no ineffective assistance where habeas counsel declined to raise issue concerning trial counsel's failure to request lesser included offense instruction on the basis that such instruction would have suggested an inconsistent defense). Petitioner's claim therefore fails to satisfy the first part of the Strickland test.
Petitioner has also failed to demonstrate any proof of actual prejudice resulting from Barber's decision. Petitioner argues that a note was sent out from the jury during deliberations asking if they could find petitioner guilty of a lesser offense. There is no evidence, however, to show that the jury's note referred to the robbery charge rather than any of the other four counts with which the petitioner was charged. "Any possibility that the jury would have convicted the petitioner on the lesser included offense[s] of robbery . . . does not amount to a probability sufficient to undermine confidence in the outcome of the [petitioner's] conviction." Harris v. Commissioner of Correction, 40 Conn.App. 250, 260, 671 A.2d 359 (1996). Petitioner's claim therefore fails on both parts of the Strickland test.
II. Ineffective Assistance of Appellate Counsel
In count two, petitioner claims that Barber was ineffective because he failed to file a petition for certification to appeal with the Connecticut Supreme Court. The following facts are relevant to petitioner's claim. After petitioner's family retained Barber to represent petitioner during his appeal, Barber filed an appeal challenging certain court rulings on evidence and later filed a brief in support thereof. After petitioner's conviction was affirmed by the Appellate Court, Barber discussed with petitioner and his family an appeal to the Supreme Court. The court does not credit petitioner's claim that he and Barber never discussed filing a petition for certification to appeal. Petitioner advised Barber that he intended to seek other counsel or apply for the public defender services. Barber informed petitioner that he had a limited period of time in which to do this. Barber never filed a petition for certification to the Supreme Court.
The two part Strickland test used to assess claims of ineffective assistance of trial counsel is also used for ineffective claims against appellate counsel. Bunkley v. Commissioner of Correction, 222 Conn. 444, 455, 610 A.2d 598 (1992). "The first part of the Strickland analysis requires the petitioner to establish that appellate counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [I]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation." (Citations omitted; internal quotation marks omitted.) Mozell v. Commissioner of Correction, 87 Conn.App. 560, 563-64, 867 A.2d 51, cert. denied, 273 Conn. 934, 875 A.2d 543 (2005).
In reviewing petitioner's claim, this court relies on Gipson v. Commissioner of Correction, 67 Conn.App. 428, 433-34, 787 A.2d 560 (2001). In Gipson, supra, 433, the Appellate Court predicated its determination "that the performance of petitioner's appellate counsel, in not filing a petition for certification, did not fall below the standard of reasonable competence" on a consideration of the factors set forth in Practice Book § 84-2. Section 84-2 provides that "[c]ertification by the supreme court on petition by a party is not a matter of right but of sound judicial discretion and will be allowed only where there are special and important reasons therefore." The five factors set forth in § 84-2, "while neither controlling nor fully measuring the court's discretion, indicate the character of the reasons which will be considered" in determining whether certification will be granted.
First, in affirming petitioner's conviction, the Appellate Court did not decide "a question of substance not theretofore determined by the supreme court . . ." Practice Book § 84-2(1). In his direct appeal, petitioner's sole claim was that the trial court unduly restricted his cross examination of the state's main witnesses concerning their bias and motive for testifying. The law concerning the denial of meaningful cross-examination is well established. See, e.g., State v. Brown, 273 Conn. 330, 338-40, 869 A.2d 1224 (2005); State v. Andrews, 248 Conn. 1, 11-12, 726 A.2d 104 (1999). Second, the decision is not inconsistent with other decisions of the Appellate Court or the decisions of the Supreme Court. Practice Book §§ 84-2(1) and (2). Third, there is no indication that the "appellate court has so far departed from the accepted and usual course of judicial proceedings . . . as to call for an exercise of the supreme court's supervision." Practice Book § 84-2(3). Fourth, no "question of great public importance" was involved in the petitioner's direct appeal. Practice Book § 84-2(4). Finally, a unanimous panel of the Appellate Court affirmed petitioner's conviction. Practice Book § 84-2(5).
Petitioner has failed to advance any argument in support of his assertion that the Supreme Court would have granted certification of his appeal. Based on the foregoing, this court therefore finds that counsel's failure to seek further review of an issue unworthy of certification by the Supreme Court does not constitute representation falling below an objective standard of reasonableness. See Gipson v. Commissioner of Correction, supra, 67 Conn.App. 433-34. Petitioner has, therefore, failed to satisfy the first part of the Strickland test.
Concerning the prejudice part of the Strickland analysis, "a petitioner must . . . establish that, as a result of appellate counsel's deficient performance, there remains a probability sufficient to undermine confidence in the verdict that resulted in his appeal. Put another way, he must establish that, because of the failure of his appellate counsel to raise a [particular] claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt . . . In order to prevail on a claim of ineffective assistance of appellate counsel, therefore, a habeas petitioner must show not only that his appeal would have been sustained but for counsel's deficient performance, but also that there is a reasonable probability that the trial verdict would have been different." (Citation omitted; internal quotation marks omitted.) Vivo v. Commissioner of Correction, CT Page 20031 90 Conn.App. 167, 173, 876 A.2d 1216, cert. denied, 275 Conn. 925, 883 A.2d 1253 (2005). Petitioner conceded at the habeas trial that he was unable to prove to a reasonable probability that, had the Supreme Court considered petitioner's appeal, the outcome would have been different. Petitioner's ineffective assistance of appellate counsel claim, therefore, fails on both parts of the Strickland test.
Citing United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), petitioner argues that appellate counsel's failure to file a petitioner for certification with the Supreme Court was per se prejudicial. In Cronic, the Supreme Court recognized certain circumstances in which there is a presumption of prejudice. These circumstances include: when there is a complete denial of counsel at a critical stage in the proceedings; when counsel fails to subject the state's case to meaningful adversarial testing, and; when surrounding circumstances make it unlikely that any attorney could provide effective assistance. Id., 659-60. This court does not find any of these circumstances here.
Accordingly, the writ of habeas corpus is denied. Petitioner's counsel shall prepare and file the judgment file within thirty days.