Opinion
No. CV03-004175 S
March 23, 2010
MEMORANDUM OF DECISION
The petitioner initiated this matter by way of a petition for a writ of habeas corpus filed on August 18, 2003. After a lengthy procedural history, which need not be recited, the petition was amended for the third and final time on June 23, 2009. The third amended petition raises a myriad of claims in ten counts. The first five counts assert various due process violations; count six concerns the right to counsel; and counts seven, eight, nine and ten allege, respectively, ineffective assistance by criminal trial, appellate, prior habeas corpus and habeas corpus appellate counsel. The respondent's return denies the petitioner's material allegations and asserts the affirmative defense of procedural default as to counts three through six; and res judicata/collateral estoppel and successive petitions/abuse of the writ as to count seven. The petitioner's reply to the return denies that he has procedurally defaulted as to the claims in counts three through six and, in the alternative, the cause and prejudice for such procedural default. The reply also denies that res judicata/collateral estoppel and successive petitions/abuse of the writ are applicable.
The matter was tried to this court over the course of five days between June 23 and October 15, 2009. The court heard testimony from numerous witness and the petitioner offered many documents into evidence, both which will be discussed below as relevant to the petitioner's claims. The court permitted the parties to file simultaneous post-trial briefs on or before December 11, 2009.
The respondent's brief was filed on December 2, 2009; the petitioner's brief was filed on December 11, 2009.
For the reasons discussed more fully below, the petition for a writ of habeas corpus is denied.
Findings of fact
The Supreme Court's decision on the petitioner's direct appeal recites the following summary of the underlying criminal proceedings, during which the petitioner was represented by Attorney Thomas K. McDonough. "The [petitioner] . . . was charged in an information with one count of murder in violation of General Statutes 53a-54a . . . and one count of assault in the second degree in violation of General Statutes 53a-60(a)(2) . . . At trial, the jury returned a guilty verdict on the murder charge, but failed to return a verdict on the assault charge. The [petitioner] was subsequently sentenced to a term of sixty years for the murder conviction. He appeal[ed] from that conviction, claiming that the trial court improperly: (1) allowed the admission of an in-court identification of the defendant after an unnecessarily suggestive pretrial identification procedure had been conducted; (2) instructed the jury on the issue of identification; (3) refused to instruct the jury on the substantive use of certain prior inconsistent statements; and (4) failed to conduct the trial in a fair and impartial manner . . .
"Following a mistrial on the assault count, the state entered a nolle prosequi on that charge."
"From the evidence presented the jury could reasonably have found the following facts. At approximately 10:30 p.m. on February 25, 1988, Larry Parrett was shot and killed in his home in Waterbury, where he lived with his girlfriend, Tracy LeVasseur. Anthony Lombardo, who lived on the same street, was also shot and wounded at the same time and place. Earlier that evening, Lombardo had been out walking his dog when he noticed a tall black man, later identified as the defendant, knocking on the door of Parrett's apartment. Lombardo approached the [petitioner], after having recognized him as someone he had seen at the apartment on other occasions. When LeVasseur opened the door from within, the [petitioner] forced himself and Lombardo into the living room, where LeVasseur and Parrett were smoking cocaine. LeVasseur recognized the [petitioner] as `Ron Jackson,' a man from California who, along with other visitors from California, had spent a number of nights at the apartment selling drugs during the months preceding the incident. Parrett also had been involved in the sale of drugs. When the [petitioner] and Parrett began to argue, Lombardo and LeVasseur left the room and went into the kitchen, where three other men were present. A few moments later, Lombardo returned to the living room to find the [petitioner] pointing a gun at Parrett. Lombardo stepped between the two men, thinking that the [petitioner] might be dissuaded from firing. The [petitioner] nevertheless fired four shots from the gun, striking Lombardo in the shoulder and fatally wounding Parrett.
"The [petitioner] checked into a Southington hotel on February 23, 1988 under the name `Ronald Jackson' and checked out at 11:55 p.m. on the night of the shooting although checkout time was not until 11 a.m. the next day."
"That night at the Waterbury police station Lombardo was shown a photographic array from which he chose a photograph of a black man named Jay Frazer as that of the man who had shot him and Parrett. The same night LeVasseur also selected a photograph of Frazer from an array shown to her by the police. Neither array contained a photograph of the [petitioner]. One week later, however, LeVasseur went to the Waterbury police and told them that she had identified the wrong man. A nine person lineup was then conducted in which Frazer participated but the [petitioner] did not. After seeing Frazer in person, LeVasseur told the police that he was definitely not the assailant. Thereafter, the police showed another photographic array to LeVasseur from which she chose the [petitioner's] photograph as that of the person who had shot the victim. Lombardo was subsequently shown a photographic array that included the [petitioner's] picture, but he declined to identify anyone, explaining that he preferred to see the individuals in person. At the probable cause hearing and at trial, both Lombardo and LeVasseur identified the [petitioner] as the man who had shot Lombardo and Parrett." (Footnotes omitted and renumbered.) State v. Tatum, 219 Conn. 721, 722-25, 595 A.2d 322 (1991).
"Jay Frazer was another of the California visitors who had stayed on occasion at Parrett and LeVasseur's apartment to sell drugs. He and several others had been arrested in January 1988, at the apartment after Parrett had asked his landlord to call the police. The [petitioner] was not among those arrested."
"In the interim, LeVasseur realized that Jay Frazer was only about 5'3" or 5'4" tall, much shorter than the man who had shot Parrett and Lombardo. Lombardo's testimony on this point is consistent with LeVasseur's. He told the police on the night of the shooting that his assailant was over six feet tall."
"At the probable cause hearing, both parties referred to an in person lineup held in mid-May of 1988, from which Lombardo failed to select anyone as his assailant. Since there is no other mention of such a procedure anywhere in the trial record or in any of the appellate briefs, we exclude it from our recitation of the background acts."
The Supreme Court's decision indicates that the petitioner was represented on appeal by "Alicia B. Davenport and Steven M. Barry, special public defenders, with whom, on the brief, was Sally S. King, for the appellant." Id., at 722. The petitioner raised the following claims on appeal: ". . . that the trial court improperly: (1) allowed the admission of an in-court identification of the defendant after an unnecessarily suggestive pretrial identification procedure had been conducted; (2) instructed the jury on the issue of identification; (3) refused to instruct the jury on the substantive use of certain prior inconsistent statements; and (4) failed to conduct the trial in a fair and impartial manner." Id., at 723. The Supreme Court affirmed the judgment of conviction.
The petitioner previously sought habeas corpus relief in a prior petition (prior petition), docketed as CV91-0001263, in the judicial district of Tolland. The petitioner was represented by Attorney R. Bruce Lorenzen in that prior petition, which was tried to the court (Zarella, J.). The prior petition was denied and, after the petition for certification to appeal was granted, an appeal was taken.
In the appeal from the prior petition, on which the petitioner was represented by Attorney Felix Esposito, the Appellate Court noted that "[t]he habeas court found the following additional facts. The petitioner's trial counsel, Thomas K. McDonough, was appointed as a special public defender to represent the petitioner. At the time of his appointment, McDonough had been a member of the Connecticut bar for approximately ten years and had handled a number of court trials as well as a number of civil appeals. Prior to representing the petitioner, McDonough's criminal trial experience was limited to two jury trials in felony cases. McDonough's recollection was understandably less than complete at the habeas hearing, as more than ten years had elapsed by that time.
"McDonough had met with the petitioner on `numerous occasions.' McDonough also hired an investigator, and both of them met with the petitioner on at least one occasion prior to trial. Although the principal identification witnesses, LeVasseur and Lombardo, both knew the petitioner and Frazer, the petitioner initially was reluctant to discuss with McDonough his involvement with the witnesses or the victims. The petitioner became more forthcoming as time passed. Some of the information provided by the petitioner was inaccurate, and some could not be verified. That particularly was so with regard to the various alibi defenses that the petitioner discussed with McDonough." Tatum v. Commissioner of Correction, 66 Conn.App. 61, 63-64, 783 A.2d 1151, cert. denied, 258 Conn. 937, 785 A.2d 232 (2001).
On appeal from the prior habeas, the petitioner claimed that McDonough ". . . failed (1) to call three witnesses whose testimony would have been helpful to the defense, and (2) to investigate and present an alibi defense." Id., at 62. The Appellate Court affirmed the prior habeas court's judgment.
The petitioner also petitioned the trial court for a new trial in docket number CV93-0112504, in the judicial district of Waterbury. "In his petition for a new trial, the [pro se petitioner] raise[d] numerous claims of error. He allege[d] misconduct by the prosecution (Counts I, II, IV and VIII); by the trial court (Counts III, V, VI, VII and IX); and by his attorney (Count X)." Tatum v. State, docket number CV93-0112504, judicial district of Waterbury, (February 4, 1994, Sullivan, J.) ( 1994 Ct.Sup. 1169). Although the petitioner raised numerous claims in his petition for a new trial, "he fail[ed] to allege that newly discovered evidence exists that is in fact new and credible. For th[at] reason, the [petitioner's] motion for a new trial [did] not state a cause of action and the court . . . grant[ed] the [state's] motion to strike the petition."
Additional facts will be discussed below as necessary to address the petitioner's specific allegations.
Discussion Count 1 (Due process — Brady v. Maryland)
The petitioner first alleges that the state promised benefits to Anthony Lombardo, the prosecution's key witness in the criminal trial, and/or to his wife, prior to his testimony at the hearing in probable cause and his trial testimony, in exchange for his testimony against the petitioner. The petitioner further asserts that evidence of these facts was favorable to him because it is exculpatory or impeaching, was suppressed by the state willfully or inadvertently, and resulted in prejudice to the petitioner.
"`The law governing the state's obligation to disclose exculpatory evidence to defendants in criminal cases is well established. The defendant has a right to the disclosure of exculpatory evidence under the due process clauses of both the United States constitution and the Connecticut constitution. Brady v. Maryland, 373 U.S. 83, 86, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); State v. Simms, 201 Conn. 395, 405 n. 8, 518 A.2d 35 (1986). In order to prove a Brady violation, the defendant must show: (1) that the prosecution suppressed evidence after a request by the defense; (2) that the evidence was favorable to the defense; and (3) that the evidence was material . . ." State v. Correa, 241 Conn. 322, 360-61, 696 A.2d 944 (1997).
"It is well established that [i]mpeachment evidence as well as exculpatory evidence falls within Brady's definition of evidence favorable to an accused . . . State v. McPhail, 213 Conn. 161, 167, 567 A.2d 812 (1989); see also State v. White, 229 Conn. 125, 135, 640 A.2d 572 (1994) . . . State v. McIntyre, 242 Conn. 318, 323, 699 A.2d 911 (1997); see also United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). A plea agreement between the state and a key witness is impeachment evidence falling within the definition of exculpatory evidence contained in Brady. State v. McIntyre, supra, 323.' (Internal quotation marks omitted.) State v. Floyd, supra, 253 Conn. 736-37."
"The Supreme Court established a framework for the application of Brady to witness plea agreements in Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). See Jenkins v. Artuz, 294 F.3d 284, 292-93 (2d Cir. 2002) (discussing application of Napue and Brady to undisclosed plea agreement). Drawing from these cases, this court has stated: `[D]ue process is . . . offended if the state, although not soliciting false evidence, allows it to go uncorrected when it appears. Napue v. Illinois, supra, 269. If a government witness falsely denies having struck a bargain with the state, or substantially mischaracterizes the nature of the inducement, the state is obliged to correct the misconception. Giglio v. United States, supra; Napue v. Illinois, supra, 269-70. Regardless of the lack of intent to lie on the part of the witness, Giglio and Napue require that the prosecutor apprise the court when he knows that his witness is giving testimony that is substantially misleading. United States v. Harris, 498 F.2d 1164, 1169 (3d Cir.), cert.denied sub nom. Young v. United States, 419 U.S. 1069, 95 S.Ct. 655, 42 L.Ed.2d 665 (1974). A new trial is required if the false testimony could . . . in any reasonable likelihood have affected the judgment of the jury. Napue [ v. Illinois], supra, 271. Giglio v. United States, supra, 154; see United States v. Bagley, [ supra, 473 U.S. 678-80].' (Internal quotation marks omitted.) State v. Satchwell, 244 Conn. 547, 560-61, 710 A.2d 1348 (1998).
"The prerequisite of any claim under the Brady, Napue and Giglio line of cases is the existence of an undisclosed agreement or understanding between the cooperating witness and the state. See State v. Floyd, supra, 253 Conn. 737 (`[w]e first consider whether there was an undisclosed, implied plea agreement between [the witness] and the state'); State v. Satchwell, supra, 244 Conn. 561 (`[t]he defendant, however, has failed to establish the necessary factual predicate to his claim, namely, that the state's attorney did, in fact, promise to dismiss the aiding and abetting arson murder charges against [the witness] as part of the plea agreement between [the witness] and the state'). Normally, this is a fact based claim to be determined by the trial court, subject only to review for clear error. See State v. Floyd, supra, 737; State v. Satchwell, supra, 561 . . ." State v. Ouellette, 295 Conn. 173, 185-87 (2010).
The first witness to present testimony about Mr. Lombardo was Attorney John Connelly, the State's Attorney for the judicial district of Waterbury. According to Connelly, he never met with Lombardo at Lombardo's home, never discussed the charges with him, and never showed a potential or actual photo array to Lombardo. Furthermore, no one met with Lombardo at Connelly's direction to discuss the charges pending against him. Lombardo's testimony is incorrect about him being told that the charges would be dismissed, as well as that an inspector met with Lombardo in his home. Furthermore, no one similarly spoke with Lois Washington, Lombardo's girlfriend. Connelly had no knowledge of any money paid by the State of Connecticut to Lombardo. Because Lombardo wanted to leave the Waterbury area because of his own safety concerns, as well as similar concerns for his girlfriend, Connelly submitted a request to provide relocation assistance. This was the only relocation request Connelly has ever made in approximately thirty years as a prosecutor, first as an Assistant United States Attorney and then as a State's Attorney.
Connelly testified that Lombardo had five files pending. In 1990, the state entered a nolle prosequi in each of Lombardo's five files. The jury returned its guilty verdict in the petitioner's criminal trial on March 2, 1990. The five separate nolles were entered on various dates between March and July 1990. Lombardo, who was shot, was a victim in this case and testified as such. There never were discussions about favorable treatment on any of these pending matters, according to Connelly, and no consideration was given to Lombardo in exchange for his testimony. The subject of relocation arose after Lombardo testified and arose from Lombardo feeling threatened because of having testified. Thus, any Giglio request made before the relocation request was made would not, therefore, have included the relocation request. Connelly did not recognize the promissory note signed April 18, 1990, and noted that any monies paid or provided to Lombardo would have come from the Chief State's Attorney's Office. Connelly was sincere and credible.
Several documents in evidence are relevant to this claim. First, a letter dated March 30, 1990, from Connelly to the Office of the Chief State's Attorney requesting funds for relocation and living expenses. Petitioner's Exhibit 31. This letter references the conviction obtained in the petitioner's criminal matter, as well as that Lombardo was a material eye witness who now feared for his life after having testified. Second, a promissory note dated and signed by Lombardo on April 18, 1990, for the amount of $4,357.00. Petitioner's Exhibit 33. Third, a receipt dated and signed April 23, 1990, in which Lombardo acknowledges receiving a total of $3,357 from the State of Connecticut for relocation and living expenses, as well as two month's rent made payable to Lombardo's new landlord in North Carolina. Petitioner's Exhibit 32. The receipt indicates that: "These funds are received contingent upon meeting the terms of the attached demand promissory note of 4/18/90." The promissory note obligated the petitioner to pay to the Office of the State's Attorney precisely $1,000.00 more than he acknowledged receiving.
Providing further testimony from the Office of the State's Attorney was former inspector Healy, who was involved in the payment of monies to Lombardo in 1990. Healy testified that he witnessed the petitioner's receipt of the monies. Per Healy, his participation in obtaining funds for the relocation and living expenses occurred subsequent to the jury verdict. Lombardo was never, according to Healy, promised anything in exchange for his testimony. Like Connelly's, Healy's testimony is compelling.
Lorenzen, counsel in the prior habeas corpus petition, testified that he used an investigator from the Habeas Corpus Unit, Office of the Chief Public Defender, to investigate the claims in the prior petition. The petitioner believed that Lombardo cut a deal in exchange for his testimony. Lorenzen and his investigator thus sought out Lombardo and LeVasseur to develop evidence in support of this claim.
Although never able to locate LeVasseur, the investigator was able to talk to Lombardo and other witnesses about the claim that Lombardo was offered consideration for his testimony. Petitioner's exhibit 52, a report dated July 27, 1999 from the investigator to Lorenzen, summarizes the information gleaned from Lombardo. Lorenzen testified that while he suspected something had happened to get Lombardo to testify as he did in the criminal trial, Lorenzen ultimately concluded that he could not prove a Brady violation.
The evidence before this court fails to show that Lombardo's testimony was somehow procured or secured through an offer of benefits that was made prior to the petitioner's criminal trial, let alone prior to the hearing in probable cause. There is no credible or reliable evidence proving the timing of the state's assistance to Lombardo was anything but subsequent to the petitioner's criminal trial. Therefore, the claim in count one must be denied.
Count 2 (Due process — Brady v. Maryland)
In count two, the petitioner claims that one or more of the prosecution witnesses were promised benefits by Crimestoppers in exchange for cooperation in prosecuting the charges against the petitioner. Crimestoppers told one or more of these witnesses that these promised benefits would be received only after the petitioner was convicted of the charged crimes. The petitioner further claims that Crimestoppers is administered by or affiliated with the Waterbury Police Department.
Mr. Francis Digiovanna, treasurer of Crimestoppers at the time he testified during this proceeding, indicated that Crimestoppers is a conduit for crime-related tips to get to the police. Crimestoppers pays rewards to anonymous tipsters who provide information to the tip line. Tipsters are provided a code number to collect a reward. Since its inception in 1982, the tip line has never had caller ID. Crimestoppers has no relationship with the Waterbury Police Department and raises its monies through fundraising. Lastly, Digiovanna stated that no records exist prior to 1994.
The petitioner has presented no evidence that even remotely shows a Brady violation somehow pertaining Crimestoppers and a prosecution witness. The court finds the claim in count two to be wholly without merit.
CT Page 7335
Count 3 (Due process — right to confront accusers)
The third count of the amended petition alleges that the non-disclosure of information, as asserted in counts one and two, also rises to the level of being a due process violation because it violated the petitioner's right to confront witnesses. Because the court has concluded in count one that there was no Brady violation and that count two is wholly without merit, the claim in count three also is unsubstantiated. The court, therefore, will not address the affirmative defense of procedural default, which is raised as to count three, but not as to counts one and two.Count 4 (Due process — fair trial)
The fourth count of the petition claims that the prosecution's case against the petitioner included perjured testimony and that the prosecution knew, or should have known, of the perjury based on this undisclosed evidence of benefits sought, promised, or received in exchange for testimony against the petitioner. The claim in this count casts a very serious allegation at the State's Attorney for the judicial district of Waterbury, an attorney admitted to the practice of law and bound by the rules of professional conduct, as is the petitioner's attorney in the instant matter. This claim, which is linked to the Brady violation claimed in count one, goes beyond merely alleging prosecutorial impropriety. Instead, the claim is one of gross prosecutorial misconduct and, as such, should not be lightly made by petitioner's counsel in the absence of a good faith basis in fact beyond merely the petitioner's own self-serving assertion.
A prosecutor has "unique responsibilities . . . in our judicial system. A prosecutor is not only an officer of the court, like every other attorney, but is also a high public officer, representing the people of the [s]tate, who seek impartial justice for the guilty as much as for the innocent." State v. Fauci, 282 Conn. 23, 32-33, 917 A.2d 978 (2007).
See Rules of Professional Conduct § 3.1. The commentary to Rule § 3.1 does note that: "The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery . . ." Alleging serious prosecutorial misconduct is not exactly "frivolous."
The respondent's return raises procedural default as an affirmative defense to the claim in count four because the petitioner failed to raise this claim on direct appeal. The petitioner's reply asserts that he has not procedurally defaulted. The petitioner explicitly asserted in the reply that the facts necessary for this claim ". . . did not appear in the trial court record, the appellate court record or the prior habeas record; the development of factual evidence is required to present these claims." Reply, at pg. 2. The burden then clearly shifts to the petitioner to develop such evidence in support of these very serious claims directed at an officer of the court.
The petitioner's post-trial brief points to Lombardo's testimony on several occasions, during the probable cause hearing and the criminal trial, that he did not receive any consideration in exchange for his testimony. The petitioner then argues that the prosecution made much of Lombardo's credibility during closing arguments. In 1999, Lorenzen's investigator interviewed Lombardo. Ten years later, in 2009, Lombardo was deposed. See Petitioner's Exhibit 1. Lombardo denied being offered consideration in exchange for identifying the petitioner as the shooter, as well as that the charges pending against him would be dropped in exchange for his testimony. Lombardo did testify that he was told that there was not enough evidence and, therefore, the charges were going to be dismissed. Id., at pg. 20. Lombardo at several instances during the deposition indicated that his memory was poor and had great difficulty recalling events. Nevertheless, Lombardo was adamant that the relocation offer was extended after the trial. Lombardo also testified that he was unaware of any promises made by the State's Attorney's Office, or any benefits given, to any of the witnesses.
"`To prove prosecutorial misconduct, the defendant must demonstrate substantial prejudice. State v. Richardson, 214 Conn. 752, 760, 574 A.2d 182 (1990); State v. Northrop, 213 Conn. 405, 421, 568 A.2d 439 (1990). In order to demonstrate this, the defendant must establish that the trial as a whole was fundamentally unfair and that the misconduct so infected the trial with unfairness as to make the conviction a denial of due process. Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) . . . `(Citation omitted.) State v. Alexander, 254 Conn. 290, 303, 755 A.2d 868 (2000)." State v. Singh, 259 Conn. 693, 699-700, 793 A.2d 226 (2002).
The petitioner here has the burden of proving that prosecutorial misconduct in fact occurred. The petitioner has not shown any such misconduct by a preponderance of the evidence. The claim in count four is denied.
Count 5 (Due process — fair trial)
In this count, the petitioner relies on the claim made in the fourth count that the prosecution knowingly used perjured testimony, or reasonably should have known the testimony was perjured. Based on the discussion of the claim in count four, the court concludes that the claim in count five is wholly without merit. As with the claim in count three, the court need not address the affirmative defense of procedural default because the court has already concluded in count four that there was no prosecutorial misconduct.
Count 6 (Right to counsel)
Count six alleges that the petitioner was denied his right to counsel in his petition for a new trial. The petitioner further alleges that a petition for a new trial is a proceeding at which he was entitled to appointed counsel. This count was withdrawn by the petitioner, as no evidence was developed in support of the claim that there is a constitutional right to counsel in petitions for a new trial.
Count 7 (Ineffective assistance of criminal trial counsel)
In count seven, the petitioner puts at issue McDonough's representation during the criminal trial. McDonough, according to the petitioner, failed to (1) obtain either by disclosure or by his own investigation evidence documenting the benefits which witnesses against the petitioner sought, were promised or received in exchange for their testimony against the petitioner; (2) challenge the intent instruction of the trial court as embracing both specific and general intent; and (3) preserve the intent-instruction issue for appellate review. The respondent's return raises as a defense that this claim is barred by the doctrines of res judicata and collateral estoppel.
"`The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made . . . The doctrine . . . applies to criminal as well as civil proceedings and to state habeas corpus proceedings . . . However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner . . . Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights . . . the application of the doctrine of res judicata . . . [is limited] to claims that actually have been raised and litigated in an earlier proceeding.' (Citations omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 288 Conn. 53, 66-67, 951 A.2d 520 (2008).
"Thus, a habeas petition may be vulnerable to dismissal by reason of claim preclusion only if it is premised on the same ground actually litigated in a previously dismissed habeas petition. We recognize, therefore, that the application of the doctrine of claim preclusion to a habeas petition is narrower than in a general civil context because of the nature of the Great Writ.
". . . [O]ur Supreme Court has noted that `[i]n our case law, we have recognized only one situation in which a court is not legally required to hear a habeas petition. In Negron v. Warden, [ 180 Conn. 153, 158, 429 A.2d 841 (1980)], [the court] observed that . . . [i]f a previous application brought on the same grounds was denied, the pending application may be dismissed without hearing, unless it states new facts or proffers new evidence not reasonably available at the previous hearing.'" Kearney v. Commissioner of Correction, 113 Conn.App. 223, 233-34, 965 A.2d 608 (2009).
The petitioner has previously litigated a claim of ineffective assistance by McDonough, his former criminal defense counsel. The petitioner has not presented anything to this court that was not reasonably available at the prior habeas petition. To the contrary: the evidence presented to this court shows that the claim could have been raised before by Lorenzen, who was aware of the potential Brady claim, but chose not to raise it because he felt that he could not prove the claim. Additionally, Lorenzen testified in the instant habeas that he reviewed the jury instructions and did not see anything that was legally incorrect with the instruction Judge Heiman gave on intent. While Lorenzen indicated that the instruction did not appear to match the pattern instruction, he did not see anything legally incorrect and chose not to pursue a claim premised thereon.
The court concludes from the foregoing that the petitioner is barred by the doctrines of res judicata/collateral estoppel from again litigating a claim of ineffective assistance by McDonough. The petitioner has not presented new facts or proffered new evidence not reasonably available at the previous hearing. The petitioner has failed to present any evidence showing that this claim could not have been raised in his prior petition.
Count 8 (Ineffective assistance of criminal appellate counsel)
Here, the petitioner claims that the attorneys on his direct appeal, Sally S. King, Steven M. Barry and Alicia B. Davenport, failed to bring a claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), challenging the trial court's intent instruction as embracing both specific and general intent. All three counsel presented testimony to this court.
"[U]nder . . . Golding, a defendant may prevail on an unpreserved constitutional claim of instructional error only if, considering the substance of the charge rather than the form of what was said, [i]t is reasonably possible that the jury was mislead . . . In determining whether the jury was misled, [it is well established that [a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of [the] statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge." (Citation omitted; internal quotation marks omitted.) State v. Spikes, 111 Conn.App. 543, 558-59, 961 A.2d 426 (2008), cert. denied, 291 Conn. 901, 967 A.2d 114 (2009)
Barry testified that he argued the appeal as a special public defender while he was an associate with the law firm of Robinson Cole. Another Robinson Cole associate, Alicia Davenport, worked together with Barry under the supervision of King, then a partner at Robinson Cole. According to Barry, there was a group of attorneys involved in the briefing of the issues involving identification process, the suggestiveness of the eyewitness identification, and the trial court's comments on the suggestiveness of the identifications. Barry testified that he went to Somers and met with the petitioner to discuss the appeal, but does not believe that specific issues were identified by them. Barry could not recall the specific intent requirement in effect in 1988. He was, however, familiar with what is commonly referred to as Evans/Golding review. Davenport testified that she recalls working on the brief with Barry and others, but did not recall anything else. It is not surprising to this court that counsel whose performance is claimed to have been deficient is unable to recall events of some twenty years ago. The cavernous amount of time between representation and this second habeas trial illustrates the problem of proof that results from habeas claims brought decades after conviction.
King, who oversaw Barry, Davenport and others on the petitioner's direct appeal, testified that her oversight included editing the appellate brief and being available to the associates for comment. Aside from recalling that Barry and Davenport worked well on the appeal, as well as that her involvement was essentially that of editing the brief, King, now retired, was unable to recall little of any relevance to the petitioner's claim in count eight. The passage of time was no kinder to King's memory than that of her former associates Barry and Davenport.
"`To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense.' Morant v. Commissioner of Correction, 117 Conn.App. 279, 301, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009). First, deficient performance may be proved by showing that the counsel's representation `fell below an objective standard of reasonableness.' Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, prejudice to the defense `requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' Id., 687. "Because the petitioner must satisfy both prongs of the Strickland test to prevail on a habeas corpus petition, this court may dispose of the petitioner's claim if he fails to meet either prong." (Internal quotation marks omitted.) Morant v. Commissioner of Correction, supra, 301.
"In regard to the second prong, our Supreme Court distinguished the standards of review for claims of ineffective trial counsel and ineffective appellate counsel. Small v. Commissioner of Correction, 286 Conn. 707, 721-24, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, U.S., 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). For claims of ineffective appellate counsel, the second prong considers `whether there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial.' Id., 722. This requires the reviewing court to `[analyze] the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm.'" Id. Moore v. Commissioner of Correction, 119 Conn.App. 530, 534-35 (2010).
The trial court gave the following instruction on intent to the jury:
The second element which the state must prove beyond a reasonable doubt is that the defendant, in causing the death of the victim, did so with the intent to cause his death.
Intent relates to the condition of mind of the person who commits the act, that is, his purpose in doing it. Intent is a mental process. A person's intention may be inferred from his conduct. It is often impossible and never necessary to prove criminal intent by direct evidence. Ordinarily, intent can be proven only by circumstantial evidence, as I have explained that term to you. A person acts intentionally with respect to a result or conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.
As I have said before, intent is a mental process. To discern what a person is thinking, the question of intent may be determined by considering all of the facts and circumstances leading up to, surrounding and following the events in question. You may consider any statement made and act done or omitted by the defendant, along with all other facts and circumstances in evidence and from those you may infer what his intention was. An intent to cause death may be inferred from circumstantial evidence, such as the type of weapon used, manner in which it was used, the number of shots, the type of wounds inflicted and the events leading to and immediately following the death.
What a man's purpose[,] intention or knowledge has been is necessarily a matter of inference. No person can be able to testify that he looked into another person's mind and saw therein a certain purpose or intention or certain knowledge to do harm. The only way in which a jury can determine what a man's intention or knowledge was at any given time is by determining what the man's conduct was and what the circumstances were surrounding that conduct and from that evidence infer what his purpose, intention or knowledge was. To draw such an inference is not only the privilege, but also the duty of the jury, provided, of course, that the inference drawn is reasonable and it is drawn beyond a reasonable doubt.
In making your determination on the question of intent, you should keep in mind that an intent to cause death does not have to exist for any specified length of time. On the one hand, it may come into existence well in advance of the act causing the death or on the other hand, it may be formulated in a matter of seconds, just before or at the very moment of the commission of the act causing the death.
If you find that the state has failed to . . .
Petitioner's Exhibit 17 (Tr. March 1, 1990, at pgs. 110-12). This exhibit is missing page 113 and continues on page 114, where Judge Heiman concludes his charge to the jury on the murder count.
Reading the court's charge, at least what is available for review, and not artificially isolating the intent instruction at issue from the rest of the charge, this court concludes that the probable effect of the entire charge was to guide the jury to a correct verdict in this case. The court fails to see how the jury was misled in any way by the trial court's instruction on intent, viewed either on its own or in the context of the entire jury charge. Given the foregoing, the court concludes that the petitioner has failed to show that appellate counsel somehow rendered ineffective assistance by not seeking review under Golding of the intent instruction. The claim in count eight, therefore, is without merit.
Count 9 (Ineffective assistance of habeas trial counsel)
The ninth count claims that Lorenzen rendered deficient performance in the prior habeas petition for failure to raise claims against both criminal defense counsel and counsel on direct appeal. More specifically, the petitioner claims that Lorenzen failed to raise the very same claims that the petitioner presently raises in the instant petition against McDonough, King, Barry and Davenport.
These claims thus are premised on and are derivative of the claims in counts seven and eight. Given the court's analyses and conclusions as to the claims in counts seven and eight, the petitioner has failed to prove that Lorenzen rendered deficient performance.
"To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective . . . Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel. The second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement." (Emphasis added.) (Citations omitted.) Lozada v. Warden, 223 Conn. 834, 842-43, 613 A.2d 818 (1992).
Count 10 (Ineffective assistance of habeas appellate counsel)
Finally, in count ten, the petitioner challenges the representation by Esposito, counsel on appeal from the prior habeas petition and the last attorney who represented the petitioner prior to the instant petition. The claim against Esposito is that he failed to raise a claim on appeal from the prior habeas seeking Golding review of the purportedly defective instruction embracing both specific and general intent. Esposito opined that Golding does not apply to habeas. This is a question that remains open at this time. See Johnson v. Commissioner of Correction, supra, 288 Conn. 53 (three justices in majority declining to review under Golding because such review was not requested; two justices separately concurring would review under Golding because record adequate).
As with several other preceding claims, this claim is premised on and derivative of a claim that has not been proven — that the instruction was defective. The claim in count ten cannot, therefore, have been proven because the petitioner has not proven the necessary predicate.
Conclusion
For all the foregoing reasons, judgment shall enter denying the petition for a writ of habeas corpus. Counsel for the petitioner shall submit a judgment file to the clerk within thirty days of the date of this decision.
It is so ordered.