Opinion
No. CV 04 4000126 S
August 6, 2008
MEMORANDUM OF DECISION
The petitioner, Lawrence Smith, filed this petition for a writ of habeas corpus on September 15, 2004, challenging the legality of his detention. He was charged with kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(B), attempted sexual assault in the first degree in violation of General Statutes §§ 53a-70(a) and 53a-49(a)(2), robbery in the third degree in violation of General Statutes § 53a-136, larceny in the second degree in violation of General Statutes § 53a-123(a)(3), and assault in the third degree in violation of General Statutes § 53a-61(a)(1). After a jury trial, he was acquitted of sexual assault but convicted on all other counts. On November 16, 1989, the court, Corrigan, J., sentenced him to a total effective sentence of thirty-five years imprisonment. The convictions were affirmed on appeal. See State v. Smith, 219 Conn. 160, 592 A.2d 382 (1991). He was represented at the criminal trial by attorney Julian Schlesinger and on appeal by attorney Elizabeth Inkster.
The petitioner was sentenced to twenty-five years on the kidnapping count, five years on the robbery count, ten years on the larceny count, and one year on the assault count. The latter three sentences were to be served concurrently with each other but consecutively to the kidnapping count.
The petitioner is no stranger to the realm of habeas corpus, having filed numerous petitions in the past. Relevant to the present case are two pairs of prior petitions, the first handled by attorney Thomas Conroy, Docket Nos. CV 90 0000845 and CV 90 001028, alleging ineffective assistance of trial counsel and appellate counsel in the underlying criminal case, respectively. The habeas petitions were dismissed, and the dismissals upheld on appeal. See Smith v. Commissioner of Correction, 51 Conn.App. 905, 727 A.2d 821 (1999) (per curiam). The second pair comprises Docket Nos. CV 99 0334726 and CV 99 0335566, alleging ineffective assistance of counsel against attorney Conroy in his handling of the first set of habeas cases. The petitioner was represented in this latter set of cases by attorney Dennis McDonough. These petitions were also dismissed.
These two petitions were consolidated with two other petitions, Docket Nos. CV 91 0001236 and CV 91 0001291, which alleged ineffective assistance of counsel in an unrelated criminal trial and subsequent appeal. The latter two cases are not relevant to the present petition.
Appeals were filed in both of attorney McDonough's cases; however, the appeal did not progress further after a motion to withdraw was filed by appellate counsel.
The petitioner now alleges, in the first count of a two-count amended petition filed on October 9, 2007, that his trial counsel was ineffective in eliciting testimony from the petitioner that the petitioner gave a misleading statement to Detective Stanley Lucas, did not give him the opportunity to explain the context of this statement, and elicited testimony that the petitioner was in Hartford the day of the assault because he was on special parole. In count two, he alleges that both attorneys Conroy and McDonough were ineffective in failing to raise these issues in the prior habeas petitions. He seeks to have his convictions overturned and his sentence vacated. At trial, the petitioner also requested a new habeas against attorney Schlesinger. In a return filed April 21, 2008, the respondent denied the petitioner's material allegations, and raised the special defense that the claims against both attorneys Schlesinger and Conroy are successive in that they present the same claims that were raised in prior habeas petitions.
The action presently before the court, therefore, is most accurately described as a habeas on a habeas on a habeas. Courts have repeatedly recognized that a habeas petition premised on the ineffective assistance of both trial counsel and previous habeas counsel is a "Herculean" task. Rodriguez v. Commissioner of Correction, 108 Conn.App. 489, 496-97, 948 A.2d 372 (2008). Thus, petitioner's task in the present case is, presumably, a prospective feat at which even Hercules himself might balk.
On April 22, 2008, the respondent filed a motion to dismiss count one and that portion of count two alleging ineffective assistance against attorney Conroy, on the grounds that these claims are successive and, therefore, barred from review by the court. The court conducted a trial on April 28, 2008, at which the motion to dismiss was argued and exhibits were filed. The petitioner and respondent both rested on their exhibits. This court reserved decision on the motion to dismiss until after the trial, and took the papers on both the motion to dismiss and decision on the merits.
DISCUSSION A. Motion to dismiss
Practice Book § 23-29 provides in relevant part: "The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the [habeas] petition, or any count thereof, if it determines that: (1) the court lacks jurisdiction . . . (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition . . . [or] (5) any other legally sufficient ground for dismissal of the petition exists."
The respondent argues that, in count one and that portion of count two against attorney Conroy, the petitioner has raised the same grounds as in his previous petitions, but has not stated any new facts or evidence that were not available at the time of those petitions. Instead, the respondent contends, the petitioner has merely restated the same ineffective assistance of counsel claims in different ways.
"[A] petitioner may bring successive [habeas] petitions on the same legal grounds if the petitions seek different relief . . . But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition." (Citations omitted; internal quotation marks omitted.) McClendon v. Commissioner of Correction, 93 Conn.App. 228, 231, 888 A.2d 183, cert. denied, 277 Conn. 917, 895 A.2d 789 (2006). "A `ground' is a sufficient legal basis for granting the relief sought . . . Identical grounds may be proven by different factual allegations, supported by different legal arguments or articulated in different language." (Citation omitted; internal quotation marks omitted.) James L. v. Commissioner of Correction, 245 Conn. 132, 141, 712 A.2d 947 (1998).
The grounds stated in the petition as against attorneys Schlesinger and Conroy are slightly different than those alleged in the petitioner's previous habeas petitions. In the first set of petitions, he attacked trial counsel's failure to allow him to explain, while testifying at his criminal trial, the inconsistency in his response to officer Lucas and to object to the jury instruction on consciousness of guilt. In the present petition, he attacks trial counsel's elicitation of this testimony during direct examination in the first place, as well as the fact that he was on special parole at the time. The relevant question is whether this minor factual distinction renders the new claims of ineffective assistance of counsel "different grounds" vis-a-vis his previous petitions. A review of Connecticut case law leads to the conclusion that the grounds alleged here as against attorneys Schlesinger and Conroy are no different than in the petitioner's previous cases.
"Simply put, [a]n applicant must . . . show that his application does, indeed, involve a different legal ground, not merely a verbal reformulation of the same ground." (Internal quotation marks omitted.) Mejia v. Commissioner of Correction, 98 Conn.App. 180, 190, 908 A.2d 581 (2006). In Mejia, the petitioner, in a previous petition, had alleged only that both his trial attorney and attorney at his sentencing were ineffective in "failing to prepare and to present adequate evidence in support of his insulin shock defense and . . . provided ineffective assistance by failing to articulate mitigating circumstances at the time of sentencing." Id., 182. In the subsequent petition, he had alleged nine discrete factual bases for ineffective assistance, including the failures to object to jury instructions, to retain expert witnesses, and to file a motion in limine to preclude certain evidence. Id., 188. Nevertheless, the court held that the ground of ineffective assistance of counsel was the same, and that the claims raised were merely a "verbal reformulation" of those raised in the previous petition. Id., 190, see also Anderson v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 88 00582 (November 23, 1990, Axelrod, J.) ("While the factual allegations forming the basis of a claim of ineffective assistance of counsel may differ, the grounds [remain] the same . . . that a conviction resulted from ineffective assistance of counsel").
Similarly, in Brown v. Commissioner of Correction, 44 Conn.App. 746, 751-52, 692 A.2d 1285 (1997), the Appellate Court upheld the habeas court's dismissal of a petition as successive. The petitioner had, in his previous petition, alleged that trial counsel was ineffective in that "he was taking medication, . . . failed to cross-examine witnesses adequately and failed to obtain medical documents that would have assisted the defense." Id., 747. In the subsequent petition, he alleged that "trial counsel failed (1) to conduct an adequate pretrial investigation, (2) to demand that the exact times that the alleged offenses were committed be specified in the information or in a bill of particulars, (3) to demonstrate to the jury that the alleged victim had lied, (4) to prove to the jury that the petitioner had been the victim of assault and unreasonable force by one or more of the arresting officers, and (5) to prepare and to submit an adequate and proper request to charge the jury. He also alleged that prior to and during the trial his attorney was terminally ill and was disoriented and confused as a result of medication." Id., 748. While some of the claims overlapped between the two petitions, several claims, such as the claim regarding the jury charge or the bill of particulars, were new to the second petition. Nevertheless, the court, reasoning that "[a] judgment is final not only as to every matter that was presented to sustain the claim, but also as to any other admissible matter that might have been offered for that purpose"; id., 751-52; held that the petition was successive. See also Carter v. Commissioner of Correction, 109 Conn.App. 300, 950 A.2d 619 (2008) (petitioner claimed that police officer's testimony at underlying trial tended to exonerate petitioner; trial court held that this was not new evidence and could have been raised at first habeas trial and, therefore, petition was successive and was dismissed without hearing).
The Appellate Court in Carter dismissed the petition on appeal because the record was inadequate to determine whether the evidence was actually "new" or was discoverable at the prior habeas trial. Id., 306-07.
There is some authority suggesting that claims of ineffective assistance of counsel may be distinct "grounds" if based on different factual allegations. See, e.g., Carpenter v. Commissioner of Correction, 81 Conn.App. 203, 211-12, 840 A.2d 1 (2004), rev'd on other grounds, 274 Conn. 834, 878 A.2d 1088 (2005) (first petition alleged ineffective pretrial investigation and ineffective request on jury instructions; second petition alleged ineffective assistance in failing to appeal or protect petitioner's right to appeal). Carpenter, however, is easily distinguishable from the present case. The two claims of ineffective assistance in the first and second Carpenter habeas cases were based on totally discrete acts and entirely different stages of the trial. The failure to file an appeal has nothing to do with pretrial investigation or jury instructions, and is readily separable, both factually and legally, from the conduct attacked in the first habeas trial. In the present case, the allegations that counsel was ineffective in eliciting damaging testimony are strikingly similar and interrelated with the previous allegations that counsel failed to explain the same damaging testimony or object to the negative jury instructions this testimony engendered. Moreover, the main relief requested by the petitioner — vacatur of his conviction — is identical to that requested in previous petitions.
While the Supreme Court has held that "[s]hould doubts arise in particular cases as to whether two grounds are different or the same, they should be resolved in favor of the applicant;" Lozada v. Warden, 223 Conn. 834, 844-45, 613 A.2d 818 (1992); there are no such doubts in the present case. The petitioner has already had an opportunity to present his claim of ineffective assistance of counsel to the court, and while it may not have been formulated in the precise manner he now asserts, the court's previous dismissal is dispositive of the present claims and nothing further could be gained by another trial on the merits. Therefore, the respondent's partial motion to dismiss count one and count two as it pertains to attorney Conroy is GRANTED.
B. Ineffective assistance of attorney McDonough
The respondent has not moved to dismiss that portion of count two that alleges ineffective assistance against attorney McDonough for failure to raise the claims stated above in the second habeas case. This claim constitutes a different ground than those previously raised, as the adequacy of attorney McDonough's performance has not yet been raised or adjudicated on the merits. See Lozada v. Warden, supra, 223 Conn. 845 ("a person convicted of a crime is entitled to seek a writ of habeas corpus on the ground that his attorney in his prior habeas corpus proceeding rendered ineffective assistance"); accord Mejia v. Commissioner of Correction, supra, 98 Conn.App. 192-93 (upholding habeas court's dismissal of claims against trial and appellate counsel, but reversing and holding that petitioner was entitled to hearing on claims against first habeas counsel). The trial on this claim consisted solely of argument and the submission of exhibits.
"To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. 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 . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203 (2008).
This court has previously noted the difficulty in proving a claim of ineffective assistance of counsel from a second habeas petition. The petitioner must, in effect, show that counsel in his second habeas trial was ineffective in failing to show that counsel in his first habeas trial was ineffective in failing to show that counsel in his underlying criminal trial was ineffective. See Rodriguez v. Commissioner of Correction, 108 Conn.App. 489, 496-97, 948 A.2d 372 (2008). To achieve this lofty goal, the petitioner submitted no evidence beyond the transcripts of his underlying criminal trial. The respondent submitted the prior two habeas decisions and a transcript of the second habeas trial. A review of the exhibits reveals little from which the petitioner can make a colorable argument.
Attorney McDonough, in the second habeas trial, questioned attorney Conroy on his handling of the first habeas petition. He attempted to delve into the claim that attorney Schlesinger was ineffective in not giving the petitioner a chance to explain his prior inconsistent statement, but attorney McDonough's attempts were frustrated in part because of the length of time between the first and second habeas trials; attorney Conroy had difficulty remembering many of the details of the trial. He did submit the transcript of the first habeas trial into evidence, and questioned the petitioner at length about the nature of his claim regarding the prior inconsistent statement and jury instructions on consciousness of guilt. He adequately developed the claim that the petitioner had stated, to Detective Lucas, that he wasn't at the scene because he had meant "I wasn't at a rape" rather than "I wasn't at the scene, period." The habeas court simply did not find the claims persuasive. See Smith v. Warden, Superior Court, judicial district of Danbury, Docket Nos. CV 99 0334726 and CV 99 0335566 (October 27, 2006, White, J.).
The court also notes that there were likely strategic reasons for attorney Schlesinger's questioning of the petitioner as to his being on parole at the time and his statements to Detective Lucas. The prosecution, in fact, objected to this line of questioning on the basis that attorney Schlesinger was attempting to rehabilitate the petitioner before he was impeached. Since the petitioner had decided to take the stand, his prior convictions and that fact that he was on parole would undoubtedly have come up on cross-examination, and attorney Schlesinger was attempting to head those questions off and minimize them before they arose. Moreover, because the petitioner chose to take the stand, it is difficult to conceive of what would have been discussed besides what he was doing on that day, where both his parolee status and his statement to Detective Lucas would have almost certainly come out on cross-examination had attorney Schlesinger not elicited them himself.
The crux of the petitioner's present claim is that attorney McDonough should have characterized the issue as one of ineffective assistance by attorney Schlesinger for having introduced the prior statement at all, in addition to the claim of ineffective assistance for failing to allow the petitioner to explain the statement or prevent the jury charge on consciousness of guilt. However, if the court found no prejudice resulting from the conduct alleged in the petitioner's previous habeas petitions, it follows that no prejudice resulted from the claims alleged in the present petition. See Smith v. Warden, Superior Court, judicial district of Tolland at Somers, Docket Nos. CV 845, 1236, 0128, 1291 (July 14, 1997, Zarella, J.) ("assuming, arguendo, that the charge to the jury was in error, the petitioner would still not meet his burden on the prejudice prong of the Strickland test"). That is, eliciting the damaging testimony itself could not have been prejudicial, else prejudice would have necessarily resulted from the failure to correct it.
"[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties] on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose . . . The rule of claim preclusion prevents reassertion of the same claim regardless of what additional or different evidence or legal theories might be advanced in support of it." Brown v. Commissioner of Correction, supra, 44 Conn.App. 749. The petitioner cannot hope to establish prejudice resulting from attorney McDonough's performance because, regardless of what evidence or arguments he made to the court, no prejudice ultimately resulted from the elicitation this testimony. Consequently, no prejudice could have resulted from attorney Conroy's failure to show prejudice, and no prejudice could have resulted from attorney McDonough's failure to show that attorney Conroy failed to show prejudice. The remaining claim of the petition, therefore, is DENIED. The petitioner shall submit a judgment file to the court within thirty days.
It should also be noted that the petitioner voluntarily testified, at the criminal trial, that the reason he had answered "no" to Detective Lucas' question was that "[m]an, I just didn't want to be there, you know what I mean?" The court finds it completely disingenuous for the petitioner to fault attorney Schlesinger for asking him a question when the petitioner now posits a different answer for the question than that he gave at trial.