Opinion
CV154007565S
06-01-2018
Robert SIEGRIST (Inmate #211262) v. WARDEN
UNPUBLISHED OPINION
OPINION
Prats, J.
The petitioner, Robert Siegrist, initiated the present matter by way of a pro se petition for a writ of habeas corpus filed on October 8, 2015, and which was amended twice after the assignment of counsel. The second amended petition asserts two claims: first, ineffective assistance of trial counsel; and second, prosecutorial misconduct. The respondent’s return denies the petitioner’s material allegations and raises the affirmative defense of procedural default to the claim of prosecutorial misconduct in count two. The petitioner’s reply to the return denies that he has procedurally defaulted and asserts ineffective assistance of trial counsel as the cause and prejudice to further rebut the affirmative defense.
The parties appeared before the court on November 27, 2017, and February 6, 2018, for a trial on the merits. The petitioner testified and presented the testimony of his former trial counsel, Attorney Bruce McIntyre, Jr.; former prosecutor Sarah Murphy; Division of Criminal Justice Inspector Karen Valcourt-Lewis; and Connecticut State Police Trooper Michael Gibson. The petitioner entered various transcripts into evidence, including the plea and sentencing transcripts, as well as copies of the court files, letters from the petitioner to the victim, and Department of Correction movement and time sheets. The respondent did not enter any documents into evidence and did not present the testimony of any witnesses. The parties presented oral closing arguments after the close of evidence. For the reasons articulated more fully below, the petitioner’s claims are denied.
FINDINGS OF FACTS
The prosecutor summarized the facts supporting the petitioner’s guilty plea. "On the early morning of November 2nd, 2013, troopers responded to a residence in Danielson for a report that this defendant was actively choking a female. When police entered the house, they observed obvious signs of a struggle. The defendant reported that he had been fighting with a man who had been in the house. He was sweating profusely.
"In a back bedroom police located the male victim who had called 9-1-1 and the female victim who had reportedly been strangled. Police observed redness on the female victim’s neck and redness and a scratch on the left side of her face. She was holding her left hand close to her body.
"The male victim, who was 79 years old at the time, had a bloodlike substance on the back of his hand and- on his head rather and on his left ear. His hands were covered in a bloodlike substance and pieces of skin were hanging off of them.
"In speaking with the victims, police learned that when both victims had returned from a shopping trip earlier that evening the female victim had gone into the back bedroom to retrieve something. The defendant confronted her in the bedroom about not receiving a hug or a kiss and refused to allow her leave the bedroom [sic]. He grabbed her neck and attempted to forcibly kiss her.
"She called to the male victim for help and he came into the bedroom where the defendant attacked him and pushed him to the floor. The defendant repeatedly hit both victims with his fists and with items to include a flashlight, a television, and a VCR. He sprayed the female victim in the face with a flammable aerosol spray and threatened to burn her.
"He tore at her hair, stomped on her hands and legs and kicked her in her head. He put his hands around her throat several times. He grabbed the male victim’s hands and rubbed the skin until they bled. He repeatedly told both victims that he was going to kill them and that they were never going to leave the room. He held an electrical cord and wrapped it around each of his hands as he told the victims that this would be the final solution. He smashed the house phone making it nonfunctional.
"After several hours the female victim convinced the defendant that she needed to use the bathroom. He escorted her to the bathroom where she retrieved the male victim’s phone and subsequently slipped it under his body so that he could call 9-1-1. When she had an opportunity, she ran out of the room. When the defendant went after her, the male victim called 9-1-1.
"The defendant dragged the female victim by her throat back into the bedroom. He then took the phone from the male victim terminating the 9-1-1 call. In total the defendant abused both victims for approximately three and a half to four hours before police arrived.
"When police did arrive, a state police sergeant heard the defendant coaching the victims to say that there had been an unknown male in the house who had assaulted them and ran away. At arraignment on the defendant’s eleven charges, a full no contact protective order was issued on behalf of the victims.
"On September 9th, 2014 when a trooper spoke with the female victim in an effort to obtain her medical records, the victim informed the trooper that the defendant had been sending her letters. She gave the trooper a box that contained over 40 letters from the defendant. Each letter violated the full no contact protective order.
"The letters also contained repeated attempts to tamper with the female victim in her role as a witness in the assault case. Some of the letters were addressed to a family member of the defendant with instructions to show them to the female victim and other letters were addressed to a false name for the female victim at the address where she was living.
"The letters instruct the victim over and over to drop the charges. The defendant tells the victim to change the protective order and recant her statement. He writes, ‘You better be a strong influence in me getting out very soon. Don’t play with me.’ In another letter he writes, ‘Go on the computer and type in, "How do I, the plaintiff, drop domestic charges against my fiancéhere in Connecticut," then call a couple of lawyers and ask the same question, then call a different court like Manchester and Willimantic or Hartford. Yes, call Hartford court to see to do it, then we get me a program, then we fight against the state.’
"In another letter he tells her, ‘Please stand firm on your fighting for me. I am not going to go to trial. I will lose and go away for a double-digit term. That will scare anyone. I am very scared.’ And in another letter, ‘You need to go write up a different statement. You need to go there and demand dropping the charges, fill out whatever. You need to get things properly done. You did not need to be calling the damn prosecutor.’
"In another letter he ghostwrites a letter to his attorney and tells the victim to copy it in her own writing and send it to his attorney. And in one final letter he writes, ‘Write what I send you and in your writing to show it is coming from you and the male victim. Get those letters written up and get them notarized, then go see each person in person and hand them the letters you wrote.’
"The one for the judge at the end of the letter requests that the protective order be totally dropped. ‘Say you need to be speaking with your future husband. Sweetie, these things lower the state prosecutor’s control. Do you now understand? Be aggressive on getting your Robert, your man, your future husband back, please.’ "
"One more letter contains a checklist of things that the victim should do in order to get the charges dropped with places to fill in the date and time that they completed each item. The letters also contain various admissions to some extent as to what he had done on the night in question." Petitioner’s Exhibit 3, pp. 3-7.
On December 19, 2014, shortly after Attorney McIntyre began representing the petitioner, the matter was on the pretrial docket before the court, Riley, J. Petitioner’s Exhibit 4. At that point there had been one previous judicial pretrial, prior to Attorney McIntyre’s involvement, and the matter was on the docket for the petitioner to accept or reject an offer. Id., p. 1. Attorney McIntyre requested a second judicial pretrial. Id. The prosecutor indicated that the matter had been on the docket for a lengthy time and that the state had made a plea offer back in January of that year (i.e., 2014). Id. Attorney McIntyre requested a second judicial pretrial so that he, as new counsel in the matter, would have an opportunity to negotiate for the petitioner. Id. The matter was continued to December 23, 2014 for a second judicial pretrial, as well as to January 16, 2015, when the petitioner would be transported back to the courthouse. Id., p. 2. It was Judge Riley’s intent to also conduct the petitioner’s VOP hearing on January 16, 2015. Id.
On January 16, 2015, the parties and the petitioner appeared before Judge Riley. Petitioner’s Exhibit 5. Attorney McIntyre indicated that the second judicial pretrial had resulted in an offer that he discussed in detail with the petitioner. Id., p. 1. The offer was for ten years of incarceration, execution suspended after the service of thirty months, followed by three years of probation. Id. The petitioner rejected this plea offer after a canvass by Judge Riley. Id., pp. 1-3. The matter was placed on the firm jury list for May 20. Id., p. 3.
On March 4, 2015, the petitioner, who had been held in presentence confinement since November of 2013 on the pending charges, was arraigned on new charges. Petitioner’s Exhibit 6. The already pending matters were on the docket for jury selection. Id., p. 1. The court and counsel addressed pending issues such as the motion for a speedy trial, jury selection, and the beginning of trial. Attorney McIntyre requested time the next day to meet with the petitioner to discuss resolving the pending cases. Id., p. 4. The court indicated that the petitioner would be transported to the courthouse to begin jury selection the day after he had an opportunity to meet with Attorney McIntyre. Id. The prosecutor represented that the state would be looking to join the new charges to the old charges. Id.
Two days later, on March 6, 2015, the petitioner appeared in court to change his pleas. Petitioner’s Exhibit 7. The plea agreement between the state and the petitioner encompassed the following: the petitioner would plead guilty to the charges of tampering with a witness and violating a protective order, as well as admitting a violating probation (VOP). In exchange for his guilty pleas, the petitioner would receive a sentence of forty-two months to serve, followed by six years of special parole, for the tampering with a witness charge, and a sentence of forty-two months to serve for the violation of a protective order charge, to run concurrently. The petitioner’s probation would be terminated. The state further agreed to not further pursue charges based on the letters sent by the petitioner to the female victim. The court, Seeley, J., fully canvassed the petitioner and found that his plea and admission of the VOP were made knowingly, voluntarily, and with the assistance of competent counsel. Id., pp. 17-18. The court ordered a presentence investigation report and continued the matter for sentencing. On April 29, 2015, the petitioner was sentenced in accordance with the plea agreement. Petitioner’s Exhibit 8.
Additional facts will be discussed as necessary below to address the petitioner’s specific claims.
DISCUSSION
The petitioner’s first claim is ineffective assistance of counsel by Attorney McIntyre. The petitioner alleges that despite Attorney McIntyre’s filing of a standard discovery request on September 9, 2014, the state did not disclose the letters written by the petitioner to the complainant until March 4, 2015. The petitioner faults trial counsel for not seeking relief pursuant to Practice Book § 40-5 (failure to comply with disclosure) premised on the state’s untimely disclosure of the letters. The petitioner further alleges had these letters been disclosed by the state in a timely manner, that there is a reasonable probability that he would not have rejected the court’s offer of ten years of incarceration, execution suspended after the service of thirty months, followed by three years of probation. The petitioner also claims that he would not have been compelled to accept the more disadvantageous plea agreement he ultimately accepted. Lastly, the petitioner avers that Attorney McIntyre failed to request 488 days of presentence confinement credit at the time of sentencing.
"[I]n order to determine whether the petitioner has demonstrated ineffective assistance of counsel [when the conviction resulted from a guilty plea], [courts] apply the two part test annunciated by the United States Supreme Court in Strickland and Hill ... In Strickland, 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. Strickland v. Washington, [ 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] ... Under the test in Hill, in which the United States Supreme Court modified the prejudice standard of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel’s errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, [ 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ] ...
"To satisfy the performance prong under Strickland-Hill, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness ... A petitioner who accepts counsel’s advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases ... The range of competence demanded is reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ... Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist ... A reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance ...
"To satisfy the prejudice prong [under Strickland-Hill ], the petitioner must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial ..." (Citations omitted; internal quotation marks omitted.) Clinton S. v. Commissioner of Correction, 174 Conn.App. 821, 827-28, 167 A.3d 389, cert. denied, 327 Conn. 927, 171 A.3d 59 (2017).
According to Attorney McIntyre, he used an investigator, reviewed the discovery, and met with the petitioner to discuss the charges and how to proceed with the initial charges. Although Attorney McIntyre negotiated with the prosecutor to arrive at a plea agreement, a judicial pretrial toward the end of 2014 resulted in a court indicated resolution of the domestic incident and VOP cases. The court indicated sentence was ten years of incarceration, execution suspended after the service of thirty months, followed by three years of probation. The petitioner rejected the court indicated sentence on January 16, 2015, after a thorough canvass by the court. Petitioner’s Exhibit 5, p. 2. The domestic incident case was placed on the trial list and the VOP case, according to Attorney McIntyre, would likely have proceeded to a hearing prior to the onset of the trial in the domestic incident case. At the petitioner’s request, Attorney McIntyre filed a motion for a speedy trial.
Attorney McIntyre was aware of the letters from the petitioner to the female complainant prior to the state’s disclosure because of his discussions with the petitioner. However, Attorney McIntyre had no indication that the state was aware of the letters, nor was he aware at the time the petitioner rejected the court indicated sentence that there were additional forthcoming charges stemming from the letters. The petitioner, according to Attorney McIntyre, was certain that the female complainant would protect him and not turn the letters over to the police. The letters were damaging to the petitioner and could result in more charges, so Attorney McIntyre did not address them with the state because he did not want to draw attention to them in any way. Had the petitioner on January 16, 2015 accepted the initial court indicated sentence and been sentenced, then the subsequent disclosure of the letters would more likely than not have resulted in additional criminal charges and an additional sentence or sentences.
In March of 2015, as the beginning of the trial was approaching, a new warrant was presented for the petitioner’s arrest based on the letters from him to the female complainant. Attorney McIntyre asked the prosecutor why it took nearly six months from the time the state police obtained the letters to when an arrest warrant was issued. According to Attorney McIntyre, he was informed that the delay was caused by the state police’s investigation. The letters had some utility to the defense and could have been used at trial to undermine the female complainant’s credibility; however, the letters also heavily favored the state’s case and their use at trial in defense of the petitioner would have most likely have been negligible.
On March 4, 2015, the petitioner, who had been held in presentence confinement since November of 2013 on the pending charges, was arraigned on the new charges. Petitioner’s Exhibit 6. The already pending matters were on the docket for jury selection. Id., p. 1. The court and counsel addressed pending issues such as the motion for a speedy trial, jury selection, and the beginning of trial. Attorney McIntyre requested time the next day to meet with the petitioner to discuss resolving the pending cases. Id., p. 4. The court indicated that the petitioner would be transported to the courthouse to begin jury selection the day after he had an opportunity to meet with Attorney McIntyre. Id. The prosecutor represented that the state would be looking to join the new charges to the old charges. Id.
Two days later, on March 6, 2015, the petitioner appeared in court to plead guilty to the charges of violation of a protective order and tampering with a witness, as well as admitting the VOP. Petitioner’s Exhibit 7. The court, Seeley, J., thoroughly canvassed the petitioner and found his pleas to be voluntary, intelligent, and made with the advice of competent counsel. The petitioner was sentenced in accordance with the plea agreement. Attorney McIntyre testified that he tried to resuscitate the initial court indicated sentence, which was more beneficial, but the supervising state’s attorney was unwilling to negotiate a sentence that low in view of all the charges against the petitioner. According to Attorney McIntyre, the state offered a sentence of forty-eight months to serve, but came down from that offer to forty-two months to account for the petitioner’s presentence confinement on a docket that would be nolled and for the late production of the letters.
Attorney McIntyre did not request presentence confinement credits at the time of sentencing because they were not a component of the negotiated plea agreement. Furthermore, although DOC will comply with a judgment mittimus that orders retroactive presentence confinement credits for a docket that is statutorily ineligible for such credits, not all sentencing judges order such credits when requested. The petitioner’s forty-month sentence already embodied a six-month reduction from the original offer of forty-eight months, and Attorney McIntyre did not want to jeopardize the plea agreement by asking for credits at sentencing, only to have the state withdraw its offer.
The petitioner did not present much testimony in support of his claims. According to the petitioner, he did not learn of the court indicated offer of ten years of incarceration, execution suspended after the service of thirty months, until the day he rejected that offer. Attorney McIntyre had sent a letter to the petitioner to apprise him of the offer, but the petitioner did not receive the letter in prison prior to being transported to the courthouse on January 16, 2015. Attorney McIntyre in person communicated the offer to the petitioner. The petitioner rejected the offer after a thorough canvass by Judge Riley. Petitioner’s Exhibit 5. The petitioner testified that at the time he rejected the offer on January 16, 2015, he had no knowledge that the state was in possession of the letters from him to the female complainant and that there might be additional charges arising from those letters. The petitioner testified that he "most likely" would not have rejected the offer on January 16, 2015, had he known the state had the letters.
Former prosecutor Sarah Murphy could not recall when she first became aware of the letters sent by the petitioner to the female complainant. Murphy filed a motion for joinder of the underlying domestic case with the VOP and witness tampering cases because the evidence for all the cases overlapped. Murphy recalled that the state’s plea offer involved a higher sentence, but that it was reduced to adjust for the presentence confinement credit the petitioner had earned on a file that he was not pleading guilty to and that would be nolled by the state.
Karen Valcourt-Lewis, an inspector for the Division of Criminal Justice, testified that she met with the female victim regarding her medical records. Valcourt-Lewis first became aware of the letters from a state police trooper Gibson in September of 2014. The letters from the petitioner were turned over to the trooper when the trooper met with the female victim to obtain releases for her medical records. The prosecutor’s office received copies of the letters sometime in January or February of 2015. The forty-plus letters, which were between two and five pages each, then would be reviewed and prepared for discovery.
Trooper Michael Gibson testified about his investigation and receipt of the letters from the female complainant in September of 2014. Trooper Gibson then initiated and conducted further investigation. The investigation lasted approximately between five and six months.
The petitioner faults Attorney McIntyre for not seeking relief pursuant to Practice Book § 40-5 because the state failed to comply with his discovery request filed in September of 2014. Although Attorney McIntyre was aware of the letters from the petitioner, he did not raise them vis-a-vis the state because he did not want to trigger further potential charges for the petitioner. The prosecutor’s office received copies of the letters sometime in January or February of 2015. The forty-plus letters, which were between two and five pages each, were reviewed, prepared for discovery, and then disclosed to the defense on March 4, 2015. The additional charges brought by the state premised on the letters validate Attorney McIntyre’s concerns about the significant negative impact the letters would- and did- have on the petitioner’s criminal matters.
The court concludes, based upon all the foregoing, that Attorney McIntyre did not perform deficiently. Given his concerns about how the letters would impact the petitioner and his criminal matters, potentially including many more charges based on the letters themselves, it was reasonable for Attorney McIntyre to not file a motion seeking relief when the letters were disclosed. Attorney McIntyre made a sound strategic decision to shield the petitioner by not disclosing the letters to the prosecutor. The petitioner now attempts to use the very same letters as a sword to attack counsel’s reasonable strategy. The petitioner’s assertions against trial counsel are not well-founded.
The court additionally does not credit the petitioner’s testimony that he most likely would have accepted an earlier plea offer, especially given that the letters provided the basis for numerous additional criminal charges, as well as that the petitioner had not accepted an earlier offer made prior to Attorney McIntyre’s appearance. It is entirely speculative how plea negotiations would have been impacted by an earlier disclosure of the letters had the disclosure occurred prior to when the petitioner rejected the plea offer on January 16, 2015. There is no evidence of what plea offer, if any, the state would have made to resolve all charges pending in all cases in such a scenario. The petitioner’s claims presume that the state’s negotiating position would have been unaltered by the letters and any new charges premised on the letters. There is no evidence that the state’s attorney was aware of the letters at the time the petitioner rejected the plea offer on January 16, 2015, although the petitioner was fully aware of the letters and their content. The petitioner’s hope that the female victim would not turn over the letters to the police and cooperate with the state was ultimately shown to be unfounded, but on January 16, 2015, the petitioner maintained that hope. Consequently, the petitioner has also failed to show the necessary prejudice stemming from any presumed deficient performance.
The petitioner also faults Attorney McIntyre for not requesting 488 days of presentence confinement credits at the time of sentencing. The plea agreement explicitly did not include such jail credits. Instead, the credible evidence presented during the habeas trial shows that the state lowered its plea offer to adjust for presentence confinement credits the petitioner would lose because of a nolled docket. Attorney McIntyre did not request the jail credits because the negotiated plea agreement embodied them, as well as because asking for the jail credits could trigger the state’s withdrawal of the plea offer.
The court concludes that Attorney McIntyre’s performance was not deficient and was well within the representation provided by reasonably competent criminal defense attorneys. Furthermore, the petitioner has failed to show how he was prejudiced. There is no evidence that the petitioner would have received the credits, that a judge would have ordered them if requested, or that the prosecutor would have maintained the plea offer if Attorney McIntyre had requested them at sentencing. The petitioner’s claims of ineffective assistance in count one, therefore, are denied.
The petitioner’s second count alleges that the state willfully failed to timely disclose copies of the letters written by the petitioner to the female complainant, despite Attorney McIntyre’s filing of a motion for discovery. The petitioner further alleges that he rejected the court indicated sentence because he was unaware that the state was in possession of the letters. Lastly, the petitioner asserts that but for the state’s willful failure to timely disclose such discovery, the outcome of the proceedings would have been different. The respondent’s return raises the affirmative defense of procedural default as to the claim in count two because the petitioner did not raise it in the trial court or on appeal before raising the claim for the first time in his amended habeas corpus petition. The petitioner’s reply to the return denies that he has procedurally defaulted and also asserts ineffective assistance of counsel as the cause and prejudice for any procedural default.
"In essence, the procedural default doctrine holds that a claimant may not raise, in a collateral proceeding, claims that he could have made at trial or on direct appeal in the original proceeding and that if the state, in response, alleges that a claimant should be procedurally defaulted from now making the claim, the claimant bears the burden of demonstrating good cause for having failed to raise the claim directly, and he must show that he suffered actual prejudice as a result of this excusable failure." Hinds v. Commissioner of Correction, 151 Conn.App. 837, 852, 97 A.3d 986 (2014), affirmed on other grounds, 321 Conn. 56, 136 A.3d 596 (2016).
" ‘The appropriate standard for reviewability of habeas claims that were not properly raised at trial ... or on direct appeal ... because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition ... [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance ... Therefore, attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of [trial and] appellate procedure.’ (Citations omitted; internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001); see also Correia v. Rowland, 263 Conn. 453, 462, 820 A.2d 1009 (2003)." Brunetti v. Commissioner of Correction, 134 Conn.App. 160, 168, 37 A.3d 811, cert. denied, 305 Conn. 903, 44 A.3d 180 (2012).
In Anderson v. Commissioner of Correction, 114 Conn.App. 778, 788, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009), the Appellate Court noted the following: "Practice Book § 23-31(c) explicitly requires a petitioner to assert facts and any cause and prejudice that would permit review of an issue despite a claim of procedural default ... Although that provision states that ‘the reply shall not restate claims raised in the petition,’ it does not relieve the petitioner of his obligation with respect to the contents of a reply ... ‘[T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the [s]tate’s procedural rule ... [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel ... or ... some interference by officials ... would constitute cause under this standard ... A court will not reach the merits of the habeas claim when the petitioner fails to make the required showing.’ (Citations omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, [ 285 Conn. 556, 568, 941 A.2d 248 (2008).]"
Based on the court’s analysis and discussion of count one, the petitioner has not met his burden of proof as to his claim of ineffective assistance of counsel. The petitioner has not, therefore, demonstrated the necessary cause and prejudice to rebut the procedural default defense. The court concludes that the petitioner has procedurally defaulted on his claim of prosecutorial misconduct. However, even in the absence of any procedural default, the petitioner has failed to present any evidence that there was misconduct by the prosecuting attorney for the state, nor that there was any willful conduct to delay production of the letters. The credible evidence shows that the police conducted their investigation and turned the letters over to the office of the state’s attorney when the investigation was completed. Copies of the letters were turned over to the defense, which had been aware of the letters prior to the state knowing about the letters and obtaining them, once they were available to the prosecutor. Consequently, even in the absence of any procedural default, the petitioner’s claim of prosecutorial misconduct fails on the merits for lack of proof.
CONCLUSION
Based upon the foregoing, the court denies the petition for a writ of habeas corpus. Judgment shall enter for the respondent.