Opinion
CV124004631S
12-14-2015
Somen Shipman (Inmate #192992) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Hon. Vernon D. Olives, J.
The petitioner, Somen Shipman, initiated this petition for a writ of habeas corpus, claiming that the petitioner's federal and state constitutional rights to conflict-free counsel and the effective assistance of counsel were violated. Specifically, the petitioner claims that his trial counsel was burdened by an actual conflict of interest that adversely affected counsel's performance, and that the petitioner's trial counsel's performance was deficient during jury selection and the criminal trial, and that the petitioner was prejudiced thereby. The petitioner seeks to have his convictions vacated and any other relief that law and justice requires.
I
PROCEDURAL HISTORY
On February 10, 2000, in the criminal matter of State v. Shipman, CR97-0127444, the petitioner was convicted after a jury trial of two counts of murder in violation of General Statutes § 53a-54a, one count of capital murder in violation of General Statutes § 53a-54b, and one count of conspiracy to commit murder in violation of General Statutes § § 53a-54(a) and 53a-48(a). On April 28, 2000, the petitioner was sentenced by the trial court, Comerford, J., to imprisonment for the remainder of his natural life without the possibility of release for the capital felony conviction, and a term of twenty years imprisonment for the conspiracy to commit murder conviction, to be served concurrently with the capital felony conviction. Attorney Lawrence Hopkins represented the petitioner at his underlying criminal trial.
The petitioner appealed from the judgment of conviction, which, after transfer from the Connecticut Supreme Court, was affirmed by the Appellate Court. State v. Shipman, 142 Conn.App. 161, 64 A.3d 338 (2013). The Supreme Court denied his petition for certification. State v. Shipman, 309 Conn. 918, 70 A.3d 41 (2013). The petitioner's appellate counsel was Attorney Damon Kirschbaum.
The Appellate Court's opinion reveals the following relevant facts and procedural history.
In October 1996, Torrance McClain, Norman Gaines and the defendant were entrenched in Bridgeport's drug trade. Sometime in mid-October, Ronald Marcellus, another drug dealer and an associate of McClain, Gaines and the defendant, engaged with Gary Louis-Jeune in an angry verbal exchange over their respective drug dealing enterprises. Following this exchange, Marcellus requested that the defendant " take care of [the situation]" for him because Louis-Jeune was attempting to " move in on the block." The defendant and Gaines, on the evening of October 29, 1996, thereafter shot Louis-Jeune and his girlfriend, Marsha Larose, multiple times, killing both of them.
In December 1996, McClain was arrested and pleaded guilty to drug charges. Before he was sentenced pursuant to his guilty plea, McClain provided the Bridgeport police with a written statement indicating that Gaines and the defendant were responsible for the shooting of Louis-Jeune and Larose. The defendant subsequently was arrested and charged with one count of capital felony, two counts of murder and one count of conspiracy to commit murder. After a trial, the jury returned a verdict of guilty on all charges, and the court, on April 28, 2000, rendered judgment in accordance with the verdict. Merging the two counts of murder with the capital felony charge, the court sentenced the defendant to life imprisonment without the possibility of release, to run concurrently with twenty years imprisonment on the charge of conspiracy to commit murder, for a total effective sentence of life imprisonment without the possibility of release.
In June 2000, the defendant appealed his conviction directly to the Supreme Court, following which he moved for rectification of the trial court record to establish the races of the jury venirepersons. The trial court denied his motion and, thereafter, the defendant moved for review by the Supreme Court. On March 16, 2004, the Supreme Court granted the motion and the relief requested therein. On November 17, 2011, the state moved for reconsideration of the Supreme Court's granting of the defendant's motion for rectification of the record. The Supreme Court granted both the state's motion and the relief requested therein, stating: " Upon careful review of the record, it is apparent that the defendant failed to raise a disparate treatment claim in the trial court and, therefore, is not entitled to rectification of the record to augment [it] with evidence to support such a claim. See, e.g., State v. Hodge, 248 Conn. 207, 227 (when 'the defendant [fails] to raise a disparate treatment claim with respect to [specific] venirepersons, the record is inadequate for appellate review of his claims with respect to those venirepersons'), cert. denied, 528 U.S. 969 [120 S.Ct. 409, 145 L.Ed.2d 319] (1999); State v. Haughey, 124 Conn.App. 58, 61 n.3 (same) [cert. denied, 299 Conn. 912, 10 A.3d 529 (2010)]." Thereafter, pursuant to Practice Book § 65-1, the Supreme Court transferred the defendant's appeal to this court.(Footnote omitted.) State v. Shipman, supra, 142 Conn.App. 163-65.
On April 5, 2012, the petitioner filed this petition for a writ of habeas corpus. In his amended petition, filed on May 27, 2014, the petitioner asserts that his constitutional right to non-conflicted counsel was violated because his trial counsel represented one of the prosecuting authority's primary witnesses against the petitioner prior to the petitioner's criminal trial. The petitioner also asserts that his constitutional right to effective assistance of counsel was violated as a result of his trial counsel's deficient performance during jury selection and failure to present several witnesses in the petitioner's defense at trial.
In the amended petition, the petitioner also asserted claims that his constitutional right to due process and a fair trial was violated by the prosecuting authority's failure to disclose material favorable evidence and knowing presentation of false testimony. There is no mention of these two claims in the petitioner's posttrial brief. As such, this court deems those claims abandoned.
A habeas trial was held on September 22, 2014, September 23, 2014, September 24, 2014, October 22, 2014 and February 5, 2015, during which the petitioner introduced testimony from Catherine Mulvihill, assistant clerk of the Fairfield judicial district, Esther Harris, jury administrator for the Connecticut judicial branch, James Vogel, information systems director for the Connecticut judicial branch, Brian Clark, a keeper of records from the Connecticut department of motor vehicles, Sergeant James Kirkland, a sergeant with the Bridgeport police department, Eleanor McClain, Torrance McClain, Attorney Hopkins, the petitioner's trial counsel, Luz Davila, Donna Henry, a private investigator, Bryan Fischer, a private investigator, William Elias, the petitioner, Emie Robear, the deputy chief clerk for criminal matters of the Fairfield judicial district and Madeline Griffin. The parties filed numerous exhibits. Both parties filed posttrial briefs.
II
DISCUSSION
A.
Conflict of Interest
The petitioner first claims that trial counsel was burdened by an actual conflict of interest that adversely affected his performance due to his prior representation of Leo Charles.
" 'The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to effective assistance of counsel.' . . . Santiago v. Commissioner of Correction, 87 Conn.App. 568, 582, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005). 'As an adjunct to this right, a criminal defendant is entitled to be represented by an attorney free from conflicts of interest.' . . . Adorno v. Commissioner of Correction, 66 Conn.App. 179, 194, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001). Thus, '[t]he underlying right to conflict free representation is effective assistance of counsel.' State v. Rodriguez, [61 Conn.App. 700, 706, 767 A.2d 756 (2001)] . . .
" 'In a case of a claimed conflict of interest . . . in order to establish a violation of [his constitutional rights] the [petitioner] has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance.' . . . Phillips v. Warden, [220 Conn. 112, 132-33, 595 A.2d 1356 (1991)]; Anderson v. Commissioner of Correction, 127 Conn.App. 538, 549, 15 A.3d 658 (2011), [aff'd, 308 Conn. 456, 64 A.3d 325 (2013)]. 'Unlike other claims of ineffective assistance of counsel, where a petitioner claims that his counsel's performance was deficient because of an actual conflict of interest, prejudice does not need to be established.' Zollo v. Commissioner of Correction, 93 Conn.App. 755, 757, 890 A.2d 120, cert. denied, 278 Conn. 904, 896 A.2d 108 (2006); see also Phillips v. Warden, supra, 133-34. Instead, '[w]here there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties.' . . . Phillips v. Warden, supra, 133; Anderson v. Commissioner of Correction, supra, 549; see Strickland v. Washington, [466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] ('[p]rejudice is presumed . . . if the [petitioner] demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance' . . .); State v. Vega, 259 Conn. 374, 387, 788 A.2d 1221 (same), cert. denied, 537 U.S. 836, 123 S.Ct. 152, 154 L.Ed.2d 56 (2002)." Hedge v. Commissioner of Correction, 152 Conn.App. 44, 50-51, 97 A.3d 45 (2014). " When only a potential conflict is established, however, the general test applies and resultant prejudice must be proven." (Emphasis in original.) Santiago v. Commissioner of Correction, 87 Conn.App. 568, 583 n.14, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005).
" We have had occasion to point out the caution from the United States Supreme Court that the possibility of conflict is insufficient to impugn a criminal conviction . . . To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest impairment or compromise of his interests for the benefit of another . . . A mere theoretical division of loyalties is not enough." (Citations omitted, internal quotation marks omitted.) Santiago v. Commissioner of Correction, supra, 87 Conn.App. 584-85.
In the instant matter, the petitioner has failed to establish an actual conflict of interest. First, the record fails to demonstrate underlying counsel " actively represent[ed] competing interests, " e.g. creating reasonable doubt in his representation of the petitioner while attempting to avoid implicating Leo Charles as an alleged shooter; Second, underlying counsel's conduct surrounding and during the trial, including his cross examination of Leo Charles, shows no indication that his brief prior representation of Leo Charles adversely affected his representation of the petitioner. Additionally, the petitioner has failed to establish, despite the assertions in the petition, the existence of evidence of the direct involvement of Leo Charles in the murders. Further, the petitioner has failed to supply this Court with a factual basis upon which underlying counsel might have properly asserted a third-party culpability claim against Charles. Accordingly, the petitioner has failed to establish an actual conflict of interest or any prejudice related to the potential conflict of interest.
B.
Ineffective Assistance of Counsel
The petitioner also asserts a claim for ineffective assistance of counsel as a result of trial counsel's deficient performance during jury selection and trial counsel's failure to present several witnesses in the petitioner's defense at trial. " A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut Constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, [ supra, 466 U.S. 687]." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). The petitioner has the burden to establish 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." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. 694.
" To satisfy the performance prong, a claimant must demonstrate that 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed by the [s]ixth [a]mendment.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687. It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the " counsel" guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial. Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).
Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).
When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, 466 U.S. at 689. The United States Supreme Court explained:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 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; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.(Citation omitted; internal quotation marks omitted.) Id., at 689.
Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. 686.
1
Jury Selection
The petitioner first claims that trial counsel was ineffective for failing to adequately raise a claim pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) when the prosecuting authority exercised a peremptory challenge of venire person T.G. Specifically, the petitioner claims that trial counsel misunderstood the law as it related to Batson claims, failed to perform the comparative juror analysis and raise a disparate treatment claim, failed to renew the Batson challenge before the jury was sworn and failed to make an adequate record for appeal during the Batson hearing.
In Batson, the United Supreme Court held that " the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that [members of one race] as a group will be unable impartially to consider the State's case against [a defendant of the same race]." (Internal quotation marks omitted.) State v. Rodriguez, 37 Conn.App. 589, 596, 658 A.2d 98, cert. denied, 234 Conn. 916, 661 A.2d 97 (1995), quoting Batson v. Kentucky, supra, 476 U.S. 79, 89, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
" Under Connecticut law, [o]nce a [party] asserts a Batson claim, the [opposing party] must advance a neutral explanation for the venireperson's removal . . . The [party asserting the Batson claim] is then afforded the opportunity to demonstrate that the [opposing party's] articulated reasons are insufficient or pretextual . . . [T]he trial court then [has] the duty to determine if the [party asserting the Batson claim] has established purposeful discrimination . . . The [party asserting the Batson claim] carries the ultimate burden of persuading the trial court, by a preponderance of the evidence, that the jury selection process in his or her particular case was tainted by purposeful discrimination." (Internal quotation marks omitted.) State v. Collazo, 115 Conn.App. 752, 762, 974 A.2d 729 (2009), cert. denied, 294 Conn. 929, 986 A.2d 1057 (2010).
This court must note at the outset concerns regarding petitioner's counsel's handling of the privacy interests of the underlying venirepersons and jurors. This Court finds counsel's methods for obtaining information about and from these individuals to be overly intrusive. Additionally, the scope and breadth of the documentation subpoenaed by counsel from state agencies regarding these private citizens disturbs this court. These actions have the potential to create a chilling effect on those willing to serve if their personal identifying information will be laid bare in exhibits and pleadings years after they appear in court. It bears mention that no wrongdoing on the part of these people is alleged by the petitioner. Finally, counsel's mid-trial oral suggestion that this court simply " seal" dozens of exhibits containing personally identifying information of private citizens is a facile solution and an inadequate safeguard.
Regarding the merits of the claim, first, this court first considers the respondent's defense that the petitioner's claims regarding the lack of a full Batson challenge and record are barred by the doctrine of res judicata or collateral estoppel.
In general, res judicata and collateral estoppel, which is an aspect of res judicata, see State v. Charlotte Hungerford Hospital, 308 Conn. 140, 145, 60 A.3d 946 (2013), must be specifically pleaded as special defenses. See Wilcox v. Webster Ins., Inc., 294 Conn. 206, 222, 982 A.2d 1053 (2009). " Collateral estoppel, or issue preclusion, means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit . . . [Thus] [i]ssue preclusion arises when an issue is actually litigated and determined by a valid and final judgment, and that determination is essential to the judgment . . . The doctrine of collateral estoppel expresses] no more than the fundamental principle that once a matter has been fully and fairly litigated, and finally decided, it comes to rest." (Citation omitted; internal quotation marks omitted.) In re Application for Writ of Habeas Corpus by Dan Ross, 272 Conn. 653, 661, 866 A.2d 542 (2005). " Before collateral estoppel applies . . . there must be an identity of issues between the prior and subsequent proceedings. To invoke collateral estoppel the issues sought to be litigated in the new proceeding must be identical to those considered in the prior proceeding." (Emphasis in original; internal quotation marks omitted.) Corcoran v. Dept. of Social Services, 271 Conn. 679, 689, 859 A.2d 533 (2004); see Dontigney v. Commissioner of Correction, 87 Conn.App. 681, 686, 867 A.2d 93 (2005) (barring petitioner's ineffective assistance of counsel claim on ground that collateral estoppel bars re-litigation of same issue).
In his amended petition, the petitioner asserts that underlying counsel's performance was deficient because he failed to adequately raise a Batson claim when the prosecuting authority exercised a peremptory challenge of venireperson T.G. On direct appeal, the petitioner asserted that the trial court improperly permitted the state to exercise a peremptory challenge of a black venireperson, T.G. State v. Shipman, supra, 142 Conn.App. 166. More specifically, the petitioner further asserted that the trial court incorrectly found that the state's proffered reasons for excluding T.G. was not pretext for racial discrimination. Id. The court, in considering the claim, stated that " [o]n this record, we cannot conclude that [prosecutor] Satti's proffered reason was 'implausible and fantastic' or that the court's determination that this reason was not pretext had no evidence to support it. The court's finding therefore, was not clearly erroneous." Id. at 175. The court also found that the petitioner failed to prove that the trial court's finding that the state had not engaged in purposeful discrimination was clearly erroneous. Id., 176-77.
This court finds that the issue raised in the amended petition, the state's use of a peremptory challenge and the forthcoming Batson analysis, is identical to the issue raised in the direct appeal. Additionally, the court finds that the issue has been fully and fairly litigated based on the available record. Accordingly, this court finds that re-litigation of this issue is barred.
However, to the extent that this court might have considered the substantive issue, the court finds that the petitioner has failed to demonstrate prejudice.
" [A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006); see also Elsey v. Commissioner of Correction, 126 Conn.App. 144, 10 A.3d 578, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011) (" [b]ecause 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" [internal quotation marks omitted]).
This court is not persuaded, in the absence of controlling legal precedent, that any Batson -related deficiencies constitute per se prejudice as structural error. It is well-established that this court has a duty, in deciding prejudice, to focus on the ultimate outcome, the verdict and sentence, as opposed to merely a portion of the criminal proceedings. Oullette v. Commissioner of Correction, 154 Conn.App. 433, 447, 107 A.3d 480 (2014). Based on the whole record, this court finds that the petitioner has failed to establish prejudice.
2
Failure to Present Witness Testimony
The petitioner also claims that trial counsel was ineffective for failing to call William Elias, Madeline Rivera and Luz Davila as defense witnesses on behalf of the petitioner. " 'The 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. Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it . . . [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 . . .'" Burgos-Torres v. Commissioner of Correction, 142 Conn.App. 627, 639, 64 A.3d 1259, cert. denied, 309 Conn. 909, 68 A.3d 663 (2013). The court cannot use hindsight in evaluating a trial attorney's decision not to call a witness at trial. Dunkley v. Commissioner of Correction, 73 Conn.App. 819, 823, 810 A.2d 281 (2002), cert. denied, 262 Conn. 953, 818 A.2d 780 (2003).
a
William Elias
Regarding Mr. Elias, the petitioner claims that underlying counsel was deficient in not presenting the testimony of Mr. Elias in that he would have testified in a manner that would have cast doubt on the trial testimony of Leo Charles that, after the murders, the petitioner gave him a black sweatshirt and told him to keep it. The petitioner also claims that Mr. Elias' testimony would have contradicted the trial testimony of Torrance McClain. This claim fails.
The petitioner has failed to establish deficient performance in that Mr. Elias was not reasonably available to testify at the underlying trial. His residence changed over the course of the intervening years from Bridgeport, Connecticut to El Salvador to Connecticut (not Bridgeport). Also, Mr. Elias did not have an address registered with the Department of Motor Vehicle and was not a registered voter with a known address. He testified that could not recall where he was living in March 2000. Additionally, Mr. Elias, as a renter, would not have had his address listed in land records. Finally, Mr. Elias, who could be described as a reluctant witness at best, testified that he was " not so sure" that he would have come to court in response to a subpoena as he told the police back then that " didn't want to get involved." Additionally, this court finds that the habeas trial testimony of Mr. Elias would not have been particularly helpful to the defense case. Conversely, Mr. Elias testified in a manner which would have allowed the prosecuting authority to better argue that the petitioner was one of the shooters. His description of the shooters, two or three black males of average height wearing black hoodies, would not have aided the defense or sufficiently contradicted the testimony of Leo Charles or Torrance McClain. As such, the petitioner has failed to establish both deficient performance and prejudice.
b.
Madeline Rivera and Luz Davila
The petitioner argues that the decision of another habeas court finding deficient performance in the legal representation by a different attorney relating to the criminal trial of the petitioner's co-defendant is binding on this court and precludes this court from making a different finding as to the representation of attorney Hopkins in the underlying matter as it relates to Madeline Rivera and Luz Davila. The petitioner also argues that that habeas judge's credibility findings are binding on this court. This court disagrees.
" The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality . . . Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the re-litigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." (Internal quotation marks omitted.) State v. Collazo, supra, 115 Conn.App. 757.
Stated succinctly, this court gives no weight to the petitioner's argument that the respondent and this court are estopped from challenging or rejecting the Gaines habeas trial testimony of Ms. Griffin and Ms. Davila. This court finds the argument unavailing as that trial court never assessed the competence of the legal representation of underlying counsel in this matter. Nor did that court assess the credibility of the several witnesses surrounding the alibi issue presented in the course of the instant trial, including the petitioner. Clearly, the issue of attorney Hopkins' representation of Mr. Shipman was not fully and fairly litigated in the Gaines matter. Accordingly, the doctrine of collateral estoppel does not apply.
This court credits the habeas trial testimony of underlying counsel that the petitioner never provided him with the names of either Ms. Rivera or Ms. Davila. The court also credits counsel's testimony that the petitioner never indicated, in their pre-trial discussions, that he had any alibi for the date of the murders. Counsel testified credibly that the petitioner only provided him with general denials regarding the crimes and never claimed to him to be somewhere else at the relevant time. The record does not establish that a reasonable investigation would have revealed the alibi information. It appears that the only sources of the names of the alibi witnesses, if indeed a valid alibi existed, were the co-defendant, Norman Gaines and his underlying criminal trial counsel. This court is not aware of any duty of criminal trial counsel to compare investigatory information with counsel for a co-defendant. To the contrary, under circumstances where a defendant is relying on an alibi, it may be tantamount to deficient performance to reveal that information before it is presented in the proper course of trial.
Additionally, this court finds it relevant to the weight the court gives to the alibi as contained in the exhibits that these supposed alibi witnesses stood silent with their exculpatory alibi evidence for more than a decade after the petitioner's arrest. Further, this court found their live testimony, to the extent it came before this court, to lack credibility, based on their demeanor and their manner of testifying. Also, the court finds it reasonable in assessing credibility, as Ms. Griffin and Davila are not parties to this action, to consider the invocation of their Fifth Amendment privilege when asked to repeat for this court their prior alibi testimony. The court also considers for credibility purposes the relevant criminal history of Ms. Griffin. The court found the petitioner's testimony unconvincing, including his testimony that he had to be told by a third party of his own alibi for the night of the killings. His list of felony convictions, including forgeries, is also considered by this court for credibility purposes. Finally, this court finds it probative that the petitioner's filings prior to the litigation of the Gaines habeas petition make no consistent mention of this alibi evidence.
III
CONCLUSION
For the foregoing reasons, the petition is denied. Judgment shall enter for the respondent.