Opinion
CV154006847S
03-14-2018
Leonard TALTON (Inmate #120212) v. WARDEN
UNPUBLISHED OPINION
OPINION
Prats, J.
The petitioner filed a pro se petition for a writ of habeas corpus on December 8, 2014, which has not been amended. The petitioner alleges that his conviction is illegal because of ineffective assistance of counsel and prosecutorial misconduct. The respondent’s return denies the petitioner’s substantive allegations and leaves him to his burden of proof The return also asserts the affirmative defense of procedural default as to the claim of prosecutorial misconduct, as well as that any claims of ineffective assistance of counsel by trial, appellate and first habeas counsel are successive. The petitioner did not file a reply to the return.
The parties appeared before the court on November 14, 2017, for a trial on the merits. The petitioner entered three exhibits into evidence: two transcripts from the underlying criminal proceedings and a copy of the Appellate Court decision in State v. Crocker, 83 Conn.App. 615, 852 A.2d 762, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004). The petitioner was the only witness to testify in support. of the claims. The petitioner indicated during the habeas trial that he was only proceeding on the claim of prosecutorial misconduct and not on any claim of ineffective assistance of counsel.
Based on its review of the documentary evidence and testimony presented, and for the reasons articulated more fully below, the petition for a writ of habeas corpus is denied.
PROCEDURAL HISTORY AND FINDINGS OF FACTS
The petitioner was the defendant in a criminal case in the judicial district of New Haven. The Appellate Court summarized the underlying facts as reasonably found by the jury. " The underlying facts were set forth in [the Appellate Court’s] opinion in State v. Talton, 63 Conn.App. 851, 779 A.2d 166, cert. denied, 258 Conn. 907, 782 A.2d 1250 (2001), in which [that] court affirmed the trial court’s judgment of conviction ... On March 22, 1997, at approximately 8:30 p.m., a shooting occurred at the Quinnipiac Terrace Housing Complex ... in New Haven. As a result, the victim, Tyrone Belton, died after receiving a single gunshot wound to the chest. A friend of the victim, Tacumah Grear, witnessed the shooting and the events that had led to the shooting." Id., at 853, 779 A.2d 166.
" There were two assailants, one wearing a camouflage mask and the other wearing a hood pulled tightly over his head. Grear saw the hooded man point a gun at Belton and fire it. After the assailants fled, the police arrived and questioned Grear. Grear chose not to identify the assailants, even though he knew both of them prior to the night in question and recognized the men as the petitioner and the petitioner’s brother. A few days later, however, Grear informed the police that the petitioner had been the shooter and that the petitioner’s brother had been the accomplice. Id., at 854, 779 A.2d 166. The petitioner was arrested, tried before a jury and convicted of murder, conspiracy to commit murder, criminal possession of a firearm and carrying a pistol without a permit. Id., at 852, 779 A.2d 166.
" On direct appeal, the petitioner claimed, inter alia, that he was deprived of a fair trial because the trial court improperly allowed uniformed correction officers to be present during jury selection. Id., at 853, 779 A.2d 166. The petitioner was represented by Richard E. Condon, Jr., a special deputy assistant public defender. This court declined to address the merits of that claim, however, because the record was inadequate. The record was devoid of any detail with regard to the correction officers’ behavior or their proximity to the petitioner. Without that information, this court concluded that any decision it made respecting that claim would be entirely speculative. Id., at 861, 779 A.2d 166.
" Following the petitioner’s unsuccessful appeal, the petitioner’s first habeas counsel, Sebastian O. DeSantis, filed a petition for a writ of habeas corpus. The petitioner claimed that his trial counsel, Lawrence Hopkins, provided ineffective assistance because he failed to investigate properly and to present an alibi defense. The first habeas court, Fuger, J., denied the petition, and this court affirmed the judgment. Talton v. Commissioner of Correction, 84 Conn.App. 608, 854 A.2d 764, cert. denied, 271 Conn. 930, 859 A.2d 585 (2004).
" Subsequently, the petitioner filed his second petition for a writ of habeas corpus ... alleging that Condon and DeSantis rendered ineffective assistance on direct appeal and during the first habeas proceeding, respectively. Specifically, he claim[ed] that Condon’s representation was deficient because he ‘failed to file a motion for rectification to create an appellate record’ regarding the location of correction officers during the criminal trial. With respect to DeSantis; the petitioner claims that his representation was deficient because he failed to challenge Hopkins’ failure to create a record regarding the location of the correction officers during the criminal trial.
" The matter was tried before the ... habeas court (second habeas court), Newson, J., the morning of May 2, 2013. The second habeas court heard testimony from DeSantis and the petitioner. The petitioner submitted one exhibit, a copy of an excerpt from the transcript of one day of jury selection during his criminal trial. The respondent, the Commissioner of Correction, submitted six exhibits, some of which related to disciplinary violations committed by the petitioner during his period of incarceration. After the parties rested, counsel made brief closing arguments. The court then took a recess and reconvened at noon to give its oral ruling.
" In its ruling; the second habeas court made the following determinations: (1) the petitioner’s only exhibit ‘merely references the fact that there are correction officers’ in the courtroom; (2) the petitioner ‘failed to meet his burden of proof to show that [Condon’s] performance was in any way deficient or that [the petitioner] was in any way prejudiced because ... he’s failed to show by any reasonable basis that appellate counsel could have [filed a motion for rectification], and he’s failed to show what, if anything, would have been the result of this information, had it come forward’; (3) with respect to the claims against DeSantis, his prior habeas counsel, the petitioner was required to prove that both DeSantis and Hopkins were ineffective, and he failed to prove ... that either counsel was ineffective as to any of the claims presented’; (4) ‘the minimal evidence that was presented here was the petitioner’s claim that there were correction officers sitting behind [him]’; (5) the evidence presented failed to establish that the mere presence of correction officers in the courtroom violated the petitioner’s constitutional rights; (6) accordingly, the petitioner failed to demonstrate that Hopkins’ performance or DeSantis’ performance was deficient for failure to vigorously address the issue; (7) DeSantis testified that he believed that he must not have raised the issue during the first habeas proceeding because he believed it was not a viable issue; and (8) the petitioner additionally failed to prove that he was prejudiced by the alleged failures of DeSantis or Hopkins. For those reasons, the second habeas court denied the petitioner’s second petition for a writ of habeas corpus. Subsequently, the second habeas court denied the petition for certification to appeal from the judgment, and this appeal followed." Talton v. Commissioner of Correction, 155 Conn.App. 234, 236-39, cert. denied, 316 Conn. 907, 111 A.3d 881 (2015).
The Appellate Court dismissed the appeal after concluding that the second habeas court did not abuse its discretion in denying the petition for certification to appeal. Id., 246.
In the present matter, the petitioner’s testimony was limited to his assertions that Tacuma Grear’s testimony during the probable cause hearing on January 28, 1997, indicated that the police told him to say it was the petitioner and his brother who were the assailants. Thus, according to the petitioner, the police were the source of the information offered by Tacuma Grear. The petitioner described Tacuma Grear’s later testimony during the criminal trial as merely agreeing with the prosecutor, so that the prosecutor in essence became a witness. The petitioner blames his conviction on the admission of Tacuma Grear’s out-of-court statement. Evidence of the death of Corey Grear, Tacuma Grear’s brother, and the death of the person who killed Corey Grear, both shortly before the petitioner’s criminal trial, were admitted at trial although these incidents had nothing to do with the petitioner’s criminal matters.
DISCUSSION
The pro se petition raises claims of prosecutorial misconduct and ineffective assistance of counsel. As to any claims of ineffective assistance of any prior counsel, the petitioner presented no evidence at the habeas trial and indicated that he was only proceeding on the alleged prosecutorial misconduct claim. Consequently, the court first concludes that the claim of ineffective assistance asserted in the pro se petition is either withdrawn or deemed abandoned through the complete lack of supporting evidence.
As to the claim of prosecutorial misconduct, which centers on the use of Tacuma Grear’s prior statement during the criminal trial, as well as Tacuma Grear’s testimony regarding the deaths of his brother and his brother’s killer, the respondent raised the affirmative defense of procedural default. The petitioner neither filed a reply asserting any cause and prejudice, nor did he present any evidence at the habeas trial of cause and prejudice.
‘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).]"
A review of the Appellate Court’s decision on the petitioner’s direct appeal shows that the second claim on appeal was " ... that the trial court improperly admitted Grear’s testimony that since the victim’s death, Grear’s brother had been shot and killed, and that the person who killed the brother also had been shot and killed." State v. Talton, supra, 63 Conn.App. 858. The petitioner claimed that this improperly admitted testimony was irrelevant and prejudicial. Id.
The Appellate Court summarized the following additional facts: " After the court admitted Grear’s prior inconsistent statement into evidence, the state asked Grear about his brother’s death. Grear testified that since the victim died, Grear’s brother had been shot and killed, and that the person who killed his brother also had been shot and killed. The [petitioner] objected to such testimony on the basis of relevance and prejudicial effect. The state, in response, argued that it was merely attempting to rehabilitate Grear’s credibility by explaining his prior inconsistent statement. According to the state, the testimony was an addition reason as to why Grear was fearful of testifying. The court agreed with the state and admitted the testimony into evidence. in doing so, however, the court issued a limiting instruction to the jury in which it specifically emphasized that the state was in no way claiming that the [petitioner] had a part in the aforementioned deaths ..." (Footnote omitted.) Id., 858-59.
The Appellate Court first concluded that the testimony was " ... offered ... solely for the purpose of explaining Grear’s prior inconsistent statement." Id., 859-60. " After reviewing the record, [the Appellate Court] concluded] that the court did not abuse its discretion in determining that the probative value of Grear’s testimony regarding the death of his brother outweighed any prejudicial effect that it may have had. The state used the testimony solely for the purpose of explaining Grear’s prior inconsistent statement. Furthermore, the court issued a limiting instruction to the jury with respect to the challenged testimony." Id., 860. The Appellate Court also concluded that the admitted testimony was not unfairly prejudicial. Id.
Because the respondent has asserted that the petitioner is procedurally defaulted from raising his claim of prosecutorial misconduct, the burden shifts to the petitioner to allege and show the cause and prejudice for such procedural default. " Although ... pro se litigants [are allowed] some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law ... A habeas court does not have the discretion to look beyond the pleadings ... In addition, while courts should not construe pleadings narrowly and technically, courts also cannot contort pleadings in such a way so as to strain the bounds of ration comprehension." (Internal quotation marks omitted.) Arriaga v. Commissioner of Correction, 120 Conn.App. 258, 263, 990 A.2d 910 (2010), appeal dismissed, 303 Conn. 698, 36 A.3d 224 (2012).
Because the petitioner has neither alleged nor presented evidence of the necessary cause and prejudice, the court concludes that he is procedurally defaulted as to the claim of prosecutorial misconduct. However, even if the petitioner were not procedurally defaulted, the Appellate Court’s decision on his direct appeal forecloses a claim premised on the prosecutor presenting the testimony regarding the two murders. The Appellate Court concluded as a matter of law that the evidence was relevant and not prejudicial. Consequently, and based upon the foregoing, the court also concludes that the claim of prosecutorial misconduct lacks a cognizable factual and legal basis and must be denied.
Lastly, the petitioner’s pro se petition does not assert a claim premised on sentence review. However, the petitioner’s pretrial brief contains the following succinct statement: " Petitioner also seek [sic] Sentence Review." The petitioner reiterated during the habeas trial that he was seeking sentence review. The petitioner did not present any evidence as to this claim, and the pro se petition did not put the respondent on notice that the petitioner would be litigating such a claim at the time of trial. Consequently, the court cannot address a claim regarding sentence review.
CONCLUSION
Based upon the foregoing, the petitioner is either procedurally defaulted or has failed to meet ... his burden of proof as to the claims in his pro se petition. Judgment shall enter for the respondent and the petition for a writ of habeas corpus is denied
It is so ordered.