Opinion
No. CV04-0004561
April 21, 2009
MEMORANDUM OF DECISION
The petitioner, Shawn Robinson, alleges in his petition for a writ of habeas corpus three counts involving claims of ineffective assistance of counsel. The petitioner asserts in count one that he was denied effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and article first, § 8 of the Connecticut Constitution. In count two, the petitioner claims he was denied the effective assistance of his appellate counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article first, § 8 of the Connecticut Constitution. In the third count of the complaint, the petitioner claims that at the jury trial of his case, State v. Robinson, Docket No. CR 90 0042299, judicial district of Tolland at Rockville (1991), he was denied due process "in violation of his federal and state constitutional rights" when, he claims, his rights to confront and cross-examine his accuser were denied. The petitioner in his prayer for relief seeks a new trial, release, or other remedy as the Court deems appropriate.
FINDINGS OF FACT
On June 7, 1991 a jury in the Judicial District of Tolland at Rockville convicted the petitioner of three felonies in State v. Robinson, supra, Docket No. CR 90 0042299. At trial, the petitioner was represented by Brian Karpe, a special public defender. The jury convicted the petitioner of one count of assault in the second degree in violation of General Statutes § 53a-60(a)(5), one count of rioting in a correctional facility in violation of General Statutes § 53a-179b(a) and one count of possession of a weapon in a correctional facility in violation of General Statutes § 53a-174a. (Transcript [Tr.] 6/7/91 at pp. 53-54.) On June 11, 1991, a jury convicted the petitioner of being a persistent serious felony offender in violation of General Statutes § 53a-40. (Tr. 6/11/91 at p. 109.) On July 18, 1991, the court, Klaczak J., sentenced the petitioner to the custody of the commissioner of corrections for a period of ten years on the assault count, twenty-five years for rioting in the correctional facility, and ten years for possession of a weapon. (Tr. 7/18/91 at pp. 74-75.) The court ordered the sentences to run consecutively for a total effective sentence of forty-five years to serve. In addition, the court ordered the sentences to run consecutively to "any sentence previously imposed, whether it is being served, or whether it was previously imposed and is not yet being served." (Tr. 7/18/91 at p. 75.) The petitioner appealed his convictions.
On appeal, the petitioner was represented by Neil Cone, an assistant public defender. The trial court's judgment was affirmed in State v. Robinson, 227 Conn. 711, 747, 631 A.2d 288 (1993).
The facts of the case are set forth by the court in State v. Robinson, supra, 715-16:
"On April 19, 1990, at approximately 8:30 p.m., the defendant attended a gathering of seventy-five to one hundred inmates in the east mess hall of the Connecticut Correctional Institution at Somers in honor of the Islamic religious feast, Ramadan. The gathering turned into a riot when an inmate verbally confronted and then placed his hands on the Imam, a religious leader. Inmates began to shout, climb on tables, fight, and throw trays. Thirty-five correction officers responded in an attempt to restore order. During the incident, the defendant, while situated at the center of the group of rioting inmates, slashed correction officer David Serkosky on the right side of his neck with a sharp metal instrument. The defendant then put the instrument into a paper bag, and walked away from the crowd and toward the east wall of the mess hall. Four correction officers gave testimony relevant to the defendant's involvement in the crimes with which he was charged. Officer Ronnie King testified that from a distance of approximately five feet he had seen the defendant walk around Serkosky and with his right hand cut Serkosky in the neck. He then saw the defendant put a shiny metal object into a paper bag and then step against a wall. King testified that the incident had occurred quickly. Serkosky testified that he had been cut while standing in the center of the group of inmates who had been involved in the disturbance. Serkosky did not see who slashed him, nor did he see the defendant at any time during the incident. Officer Christopher Conniff testified that while breaking up a fight between several inmates, he saw the defendant moving away from the group of inmates toward a wall of the mess hall. Conniff testified that from approximately forty feet away he saw the defendant holding a dark object the size of a roll of dimes in the palm of his right hand. Finally, Officer John Springer, a dog handler, testified that, after Serkosky and two other officers had been injured, he had entered the mess hall with his dog. Once within the mess hail, Springer saw the defendant walking toward him in the forefront of a group of inmates. As the group approached, Springer put the dog into an attack mode. He heard the defendant and others repeatedly yelling: 'Get [the dog] out of here. Let's get that dog out of here. Let's kill Springer and his dog.'"
The court will refer to additional facts in the discussion section below.
In a five-count substitute information, the jury convicted the petitioner of second degree assault, rioting in a correctional institution, and possession of a weapon in a correctional facility. (Tr. 6/7/91 at 53-54.) The jury acquitted the petitioner on the first two counts of first degree assault.
In September 1997, the petitioner filed a habeas corpus petition. The petition, bearing docket number CV 98 0002644, later was withdrawn without prejudice on February 25, 2004. By way of an amended petition for habeas corpus, the petitioner filed this habeas on February 2, 2008. This petition for a writ of habeas corpus is pleaded in three counts. Count one alleges ineffective assistance of trial counsel. The petitioner avers his trial lawyer, Brian Karpe, was deficient when he failed to call certain witnesses to testify at trial and when he failed to object to the imposition of sentence as violating General Statutes § 53a-37. Count two claims the petitioner was deprived of due process when his appellate lawyer, Neil Cone, failed to investigate the case, failed to ask the appeals court whether his sentence was illegal, and failed to appeal an order of the court declining to order disclosure of Officer King's employment records, which the petitioner claims contained impeachment material.
Petitioner withdrew the allegation contained in Count One paragraph 7(a), regarding Karpe's failure to call Diego Robinson, the petitioner's father, as a witness.
The petitioner withdrew Count two, paragraph 7 of his petition, which attacked Cone's failure to raise an inquiry regarding petitioner's complaint that some of the jurors were drinking alcohol during deliberations.
Count three alleges the petitioner was deprived of due process when he was convicted without evidence which petitioner claims is "newly discovered." Count three more fully claims that the personnel records of one of the state's witnesses, Mr. King, would have "impeached the only witness to an event which led to the convictions (of Mr. Robinson)." The petitioner seeks a new trial, or in the alternative, release, or other relief.
The respondent warden denies the petitioner's material allegations and raises the special defense of res judicata to the petitioner's claims relating to the impeachment of Officer King based on his performance review.
Historically, the file reflects the following. On April 30, 2008, the respondent filed a motion for summary judgment and memorandum in support of same. On May 20, 2008, absent objection, the court, Schuman, J. granted the motion for summary judgment. On June 19, 2008, the court, Schuman, J., granted the Petitioner's Motion to open judgment. On June 23, 2008, the court, Schuman, J., granted petitioner permission to respond to the respondent's motion for summary judgment. On September 2, 2008 this court heard argument on the motion for summary judgment. On that same date this court denied the respondent's motion for summary judgment. This court filed a memorandum of decision on the motion for summary judgment September 8, 2008. On September 2 and 3, 2008 a trial on the merits of this petition was held at Superior Court, Judicial District of Tolland at Rockville. This court reserved decision on the petition. Counsel for both parties was ordered to submit simultaneous briefs on October 28, 2008. Both parties filed supplemental post-trial briefs on or about January 12, 2009.
DISCUSSION
Unlike a person who has merely been accused of a crime, the petitioner in a habeas corpus petition, having already been convicted in a court of law, is not entitled to a presumption of innocence. "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." (Internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 422-23, 641 A.2d 1356 (1994). "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 . . ." (Citations omitted; internal quotation marks omitted.) Id., 423. "In Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] which applies to claims of ineffective assistance during criminal proceedings generally, the United States Supreme Court determined that the claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance . . . The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the [s]ixth [a]mendment." (Citations omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 288 Conn. 53, 62-63, 951 A.2d 520 (2008).
"In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances . . . Additionally, [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . [Moreover], a court deciding an actual ineffectiveness claim 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. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." (Citations omitted; internal quotation marks omitted.) Id., 63. "To prevail on the prejudice prong, the petitioner must demonstrate that counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable . . . 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." (Internal quotation marks omitted.) Carneiro v. Commissioner of Correction, 109 Conn.App. 513, 518, 952 A.2d 80, cert. denied, 289 Conn. 936, 958 A.2d 1244 (2008).
Here, the petitioner's first claim of error is that his trial counsel was ineffective by not calling as witnesses two individuals: William Outlaw and Vaughn Outlaw. "Because a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction . . . Regardless, counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it." (Citations omitted; internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721, 789 A.2d 1046 (2002). Furthermore, "in the context of a claim for ineffective assistance of counsel, [t]he failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 288 Conn. 64.
At the time he accepted representation of Mr. Robinson, the petitioner's attorney had been practicing for four years in Connecticut (Tr. 9/3/08). In the petitioner's case, attorney Karpe hired Mr. Day, a private investigator, who in fact interviewed a number of witnesses. In evidence are notes from the investigator employed by attorney Karpe. Petitioner's exhibit 11 comprises notes of an interview with Mr. William Outlaw, a prisoner who was allegedly present at the time of the riot. Exhibit 12 contains Mr. Day's notes of an interview with Vaughn Outlaw, another inmate present during the riot. Mr. Karpe testified he made a strategic choice to not call these witnesses. The court acknowledges that exhibits 11 and 12 were offered with the limitation that each was relevant on what information was available to attorney Karpe while he represented the petitioner. (Tr. 9/3/08 at 23-24.) The petitioner failed to offer evidence as to what each witness would have testified to at trial. The court will not speculate as to the nature and substance of each individual's testimony. Here, the trial attorney identified a number of reasons why he did not call each witness. Attorney Karpe stated that he thought William Outlaw's criminal record could be used to impeach him, the witness might invoke his fifth amendment privilege against self-incrimination, his statement might conflict with the petitioner's own testimony, that Mr. Outlaw did not actually see the stabbing, and that calling Mr. Outlaw would "detract from Mr. Robinson's cases and potentially cast a bad light on him in front of the jury." (Tr. 9/03/08 at 25-29, 50, 54, 63, 65.) Karpe further testified that he called witnesses whom he thought provided credible, relevant testimony. (Tr. 9/2/08 at 96.) The court accredits attorney Karpe's testimony. The petitioner has failed to demonstrate how calling Mr. William Outlaw would have benefited the petitioner. See Johnson v. Commissioner of Correction, supra, 288 Conn. 64. The petitioner's claim of ineffective assistance with regard to not calling William Outlaw must fail.
Attorney Karpe testified he had been practicing for six years, was appointed a special public defender to represent Mr. Robinson, had contracts as a special public defender in the Hartford G.A., Enfield G.A., Rockville part A, and New Britain G.A. He also testified he had undertaken representation in excess of one hundred criminal cases. The attorney also filed a number of motions including a Motion to sequester, Motion to transfer, Motion to sever trials, Motion for disclosure of Jencks Act material, Motion in Limine regarding acts or other crimes of misconduct. (Respondent's A, "pretrial motions.")
With regard to Vaughn Outlaw, the petitioner, again, has failed to show how Mr. Outlaw, if called, would likely have changed, let alone affected, the outcome of trial. Attorney Karpe explained he did not call Vaughn Outlaw because his statement was in "direct conflict with Mr. Robinson's." In choosing to not call Vaughn Outlaw, the attorney testified that had Vaughn Outlaw (or Mr. William Outlaw for that matter) testified he was present at the time of the riot, he might be charged with rioting, thus raising the possibility the witness might invoke his fifth amendment right against self-incrimination. Both William and Vaughn Outlaw placed Robinson in the Mess Hall at the time of the riot. It was, the attorney believably explained, part of his strategy to call witnesses who might "refute" the corrections officers' testimony, rather than conflict with his own client's testimony. Vaughn Outlaw's criminal record might also be used to impeach the witness. (Tr. 9/03/08 at 31-37, 50-54, 63-66.) Karpe's decision to not call Vaughn Outlaw, under these circumstances, was not deficient. The petitioner's claim in this regard fails. "[I]t is well established that a habeas court cannot in hindsight second-guess an attorney's trial strategy." Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 804, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004). "[T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment." Id., 801, quoting Iovieno v. Commissioner of Correction, 67 Conn.App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851 (2002). It was, attorney Karpe explained, his custom to call witnesses who would assist in the defense. (Tr. 9/03/08 at 71-73.) The petitioner has failed to show how attorney Karpe's decision to not call a particular witness would likely have changed the outcome of his criminal trial. See Nieves v. Commissioner, 51 Conn.App. 615, 623, 724 A.2d 508 (1999). It is worth noting that the jury actually acquitted the petitioner on two counts of assault in the first degree. (Tr. 6/7/97 at pp. 52-53.) The petitioner's claim of ineffective assistance of counsel on this basis must fail. The court need not address prejudice where the petitioner has failed to show deficiency on the part of his trial counsel in the decision to not call the above-referenced, or any other, witnesses.
The petitioner next claims in paragraph 7(c) of his amended petition that trial counsel should have objected to the forty-five-year sentence imposed by the court as illegal under Connecticut General Statutes Section 53a-37. The petitioner failed to offer any evidence in support of this claim. The court, therefore, considers the claim to have been abandoned. See Wooten v. Commissioner of Correction, 104 Conn.App. 793, 801, 936 A.2d 263 (2007), cert. denied, 289 Conn. 911, 957 A.2d 858 (2008). That notwithstanding, even if the court were to address the merits of this claim, the court notes that the trial court, Klaczak, J., sentenced the petitioner to a term of imprisonment of ten years on the charge of assault in the second degree, twenty-five years on one count of rioting in a correctional facility and ten years for possessing a weapon in a correctional facility. (Tr. 7/18/91 at 74-75.) The court ordered each sentence to run consecutively for a total effective sentence of forty-five years. In addition, the court ordered the sentences to run consecutively to any sentence previously imposed, "whether it is being served, or whether it was previously imposed and is not yet being served." (Tr. 7/18/91 at 75.) Section 53a-37 provides as follows:
When multiple sentences of imprisonment are imposed on a person at the same time, or when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and to the undischarged term or terms in such manner as the court directs at the time of sentence. The court shall state whether the respective maxima and minima shall run concurrently or consecutively with respect to each other, and shall state in conclusion the effective sentence imposed. When a person is sentenced for two or more counts each constituting a separate offense, the court may order that the term of imprisonment for the second and subsequent counts be for a fixed number of years each. The court in such cases shall not set any minimum term of imprisonment except under the first count, and the fixed number of years imposed for the second and subsequent counts shall be added to the maximum term imposed by the court on the first count.
Here, the trial court imposed three sentences, albeit consecutively, for the three distinct crimes for which the petitioner was found guilty. In imposing the forty-five years, the court specifically noted the total effective sentence. In addition, the court imposed the sentences consecutive to any sentence he was currently or not yet serving. With regard to the assault second degree conviction, there was evidence that the petitioner slashed Officer David Serkofsky causing him injury. This offense is separate and distinct from rioting under § 53a-179b(a). The court sentenced Mr. Robinson to ten years on the assault in the second degree conviction. With regard to the guilty verdict on rioting, in addition to the evidence that the petitioner stabbed Officer Serkosky, there was credible evidence from Officer John Springer that he observed the petitioner in the presence of one hundred or so other inmates in the mess hall yelling, "[G]et that dog out of here, Let's kill Springer and his dog," or words to that effect. State v. Robinson, supra, 227 Conn. 715-16. The petitioner was sentenced to twenty-five years on the charge of rioting. Finally, with respect to possession of a weapon in a correctional institution under § 53a-174a, the evidence adduced at trial included testimony from Officer Ronnie King that he observed the petitioner grasping some object and slashing it across the person of Mr. Serkofsky. Serkofsky, for his part, didn't know what or who literally hit him. State v. Robinson, supra, 515-16. The court sentenced the petitioner to an additional ten years for this offense. The court sentenced the petitioner to consecutive sentences on all counts. "The determination of whether to impose concurrent or consecutive sentences is a matter within the sound discretion of the trial court." State v. King, 249 Conn. 645, 688, 735 A.2d 267 (1999). Section 53a-37 of the general statutes empowers the court to impose concurrent or consecutive sentences. The petitioner has failed to demonstrate how the sentence imposed violates § 53a-37. The petition for a writ of habeas corpus with respect to count one is denied.
At the time the offenses occurred, § 53a-60(a) provided in relevant part: "(a) A person is guilty of assault in the second degree when . . . (5) he is in the custody of the commissioner of correction, confined in any institution or facility of the department of correction, or is a parolee from a correctional institution and with intent to cause physical injury to an employee of the department of correction or an employee or member of the board of parole, he causes physical injury to such an employee or member." This statute was subsequently amended by Public Act 93-246 to only apply to parolees.
Section 53a-179b(a) provides: "A person is guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aids, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution."
Section 53a-174a(a) provides: "A person is guilty of possession of a weapon or dangerous instrument in a correctional institution when, being an inmate of such institution, he knowingly makes, conveys from place to place or has in his possession or under his control any firearm, weapon, dangerous instrument, explosive, or any other substance or thing designed to kill, injure or disable."
Respondent, in his post-trial brief, addresses whether the sentence here imposed violates the Double Jeopardy Clause(s) of the U.S. Constitution and/or Connecticut Constitution. Inasmuch as the petitioner did not raise or argue this claim, arguing instead only that the sentence was illegal under § 53a-37, the court will not address it.
In count two, the petitioner claims his appellate attorney, Mr. Neil Cone, was ineffective by failing to appeal the legality of the court's sentence with respect to § 53a-37 of the general statutes. (Amended complaint, paragraph 8.) In addition, the petitioner claims appellate attorney was deficient by not seeking review of the trial court's decision to not review Officer King's employment records to discern whether it contained any impeachment material, or the trial court's decision to deny the petitioner's request for information from Mr. King's file. (Amended complaint, paragraph 9.) The petitioner at this habeas trial withdrew any claim regarding juror misconduct.
"While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions . . . Indeed, [e]xperienced 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." (Internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn.App. 1, 11, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007). To satisfy the prejudice prong, the petitioner "must show a reasonable probability that, but for his counsel's [error], he would have prevailed on his appeal." Small v. Commissioner of Correction, 286 Conn. 707, 720, 946 A.2d 1203, cert. denied, Small v. Lantz, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). In reviewing such a claim, the habeas court considers the standard of review that would be applicable by the Appellate Court. Id., 722. Counsel's failure to pursue meritless claims is not considered conduct falling below the level of competent representation as defined by our courts. Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990); Mozell v. Commissioner of Correction, 51 Conn.App. 818, 820-21, 725 A.2d 971 (1999). The petitioner's claims must be evaluated in light of these standards.
Here, the petitioner was represented on appeal by Public Defender Neil Cone. He testified in this trial that he raised nine issues on behalf of the petitioner. The claim that the court's sentence violated § CT Page 7112 53a-37 was not one of them. The court, Klaczak, J., sentenced the petitioner to ten years on the charge of Assault second degree, twenty-five years on the count of rioting in a correctional facility, and ten years for possessing a weapon in a correctional facility. The court ordered each sentence to run consecutively. The total effective sentence was forty-five years to serve.
Mr. Cone at the time of trial testified he was employed by the Office of the Public Defender. He began working in the appellate Unit of the public defender's office in the Autumn 1990. While in the appellate unit, Mr. Cone said he had occasion to prepare and argue some twenty-nine appeals to the Connecticut Supreme Court and approximately sixty-nine others to the state Appellate Court.
As discussed previously in the context of the petitioner's claims pursuant to § 53a-37 against trial counsel, the court imposed a lawful sentence under that statute. The court sentenced the petitioner on three separate offenses. The court was within its discretion to sentence consecutively. It is clear the petitioner would not have prevailed on appeal regarding any claim which might seek to attack the sentence as violative of Section 53a-37. See Small v. Commissioner, supra, 286 Conn. 720. This claim is unproven and must fail.
The petitioner next claims that his appellate attorney was ineffective for not raising the issue of the trial court's review of the personnel records of Correction Officer Ronnie King and the court's decision to not release any material from Mr. King's file. Here, it is clear that attorney Cone in fact raised the issue of the trial court's review of Mr. King's personnel records and its decision to not release any material from the records. The Connecticut Supreme Court observed that the trial court conducted an in camera review of Mr. King's personnel record along with those of other Correction officers. Reviewing the personnel files itself to properly evaluate the trial court's ruling, the Supreme Court stated: "[O]ur review of the personnel files . . . reveals that the trial court did not abuse its discretion by withholding any information in those files." State v. Robinson, 227 Conn. 711, 745, 631 A.2d 288 (1993). Here, attorney Cone credibly testified that he sought review of this claim in the context of the petitioner's trial attorney, Mr. Karpe, seeking information from Mr. King's personnel file for the purpose of impeachment, among other reasons. He expressly requested, in relation to his subpoena of the various officer's personnel records, "that my right to cross examine State's witnesses be reserved until you make your ruling on the impeachability or any evidence for impeachment." (Tr., 5/21/91 p. 40.) Moreover, the state even conceded that "anything going to credibility" would be germane under Connecticut law. (Tr., 5/21/91, p. 39.) The trial court, after reviewing King's personnel file, held that "[t]here is no reference anywhere in these files to Mr. Robinson, nor do I find anything that should be disclosed that I think you can reasonably use to impeach him." In addition, in evidence here is the petitioner's appellate brief filed with the Supreme Court. In the brief, it is clear that the petitioner's appellate attorney argued that the trial counsel sought information that included impeachment evidence. (Exh. 8, pp. 32-33.) In its ruling, the Supreme Court noted that the trial court released some information from the records concerning the April 19 riot and the victim's injuries. Id., 744-45. The trial court properly exercised its discretion in not divulging information from the personnel file which the court determined did not constitute legitimate material for cross examination, for impeachment or any other purpose.
The Supreme Court's opinion does not expressly consider "anything going to credibility" as a target of the in camera review; rather, it stated that "The defendant specifically sought any references to past complaints made by any of the officers against the defendant that were recorded in the officers' personnel files. The trial court told the defendant that it would conduct an in camera review of the files and disclose any references therein to the defendant or to the incident." State v. Robinson, supra, 227 Conn. 744.
Nevertheless, attorney Cone did, in his appellate brief, argue that attorney Karpe "alerted the court that impeachment evidence in general would also be germane" and that the court did not "find anything else it thought [could] be reasonably used to impeach [King.]" (Exh. 8 at p. 32.) There is no basis for an ineffective assistance claim where the attorney raised the very issue the petitioner claims he was ineffective for not raising. If the petitioner's argument is, rather, that the Supreme Court erred in failing to consider this argument, his remedy is more in the vein of a writ of error or other such action directed to the Supreme Court. "[T]he habeas corpus . . . cannot have the force and effect of a writ of error . . . nor is it designed as a substitute for [it]." Morrison v. Commissioner of Correction, 57 Conn.App. 145, 148, 747 A.2d 1058 (2000) (habeas court properly dismissed petition where proper remedy for claim of error in sentence review was writ of error). Certainly, this court is in no position to speculate as to what the Supreme Court did or did not consider in rendering its decision.
Thus, the petitioner's claims that both trial and appellate counsel were ineffective for failing to challenge the trial court's ruling on the motion to disclose the performance review are not barred by res judicata, as the respondent contends; rather, the claims are simply factually inadequate. The record reveals that both trial and appellate counsel addressed the issue of King's personnel file and properly sought any evidence that could be used for impeachment. The trial court, however, determined that no such evidence existed. The petitioner is now claiming that his attorneys were ineffective for failing to do certain things that, in fact, the record reveals were done. There is, patently, no possibility of deficiency or prejudice under such circumstances, and the petitioner has failed to demonstrate that he received ineffective assistance of counsel.
The petitioner's final claim is that the 1985 performance appraisal of Officer King was "newly discovered evidence" in that it was not contained in the set of documents comprising King's personnel file reviewed by the trial court or Supreme Court. Although the petitioner's claim is not one of actual innocence, his reliance on "newly discovered evidence" infuses the claim with the appearance of such. Regardless of the actual nature of the claim, however, this argument is without merit, based as it is on the "newness" of the proffered evidence. This court has reviewed in camera the exhibits from the criminal trial containing King's personnel records and located therein the 1985 performance appraisal in question. There is nothing new about this evidence, therefore, and the petitioner cannot hope to succeed on this claim. See Grant v. Commissioner of Correction, 103 Conn.App. 366, 369, 928 A.2d 1245 (2007) (newly discovered evidence is evidence "that was not available at the time of the criminal trial"). While it may have been true that the contents of the personnel file could not have been specifically known by the petitioner because of the trial court's withholding of the information, this does not render it "unavailable"; the evidence was actually presented to and reviewed by the trial court. The petitioner's subsequent, somewhat accidental review of it does little to change the fact that the trial court already considered and ruled on the claim the petitioner now asserts: that the evidence would have been valuable in impeaching Officer King. Moreover, the Supreme Court, in reviewing the same materials, concurred and upheld the trial court's decision. Having failed to present any newly discovered evidence to this court, the petitioner cannot succeed in his claim and, therefore, count three of the petition is denied.
The petitioner suggests that King's personnel file may have been altered between the trial, appeal and the present habeas trial such that the performance appraisal was not included among the original documents reviewed by the trial or Supreme Court. The petitioner concedes, however, that it is "impossible to determine whether this court and the Appellate Court were offered the precisely same version of the King personnel file as was the trial court." The petitioner bears the burden of proving his claim by clear and convincing evidence, Weinberg v. Commissioner of Correction, 112 Conn.App. 100, 119, 962 A.2d 155 (2009). Speculation as to might-have-been scenarios falls far short of this standard, and this court cannot conclude that the petitioner has met his burden of demonstrating that the performance appraisal was not reviewed and determined to be irrelevant by the trial court.
CONCLUSION
The petitioner has failed to prove that he received ineffective assistance of counsel or that he is actually innocent of the crimes for which he was convicted. Therefore, his petition for a writ of habeas corpus is denied. Should the petitioner wish to appeal, his counsel shall submit a judgment file to the clerk within thirty days.