Opinion
No. CV04-40000065 S
May 15, 2008
MEMORANDUM OF DECISION
The petitioner, Robert Valle, has brought this amended petition for a writ of habeas corpus alleging that he was deprived the effective assistance of trial counsel, in violation of the United States and Connecticut constitutions. The petition was brought in five counts. At trial, the petitioner withdrew count five.
Count five alleged ineffective assistance of the petitioner's appellate counsel, attorneys Dakers and Silverstein.
The petitioner seeks, as relief, (1) an order from the court vacating his convictions and his present sentences, (2) impose the sentence that he would have received if he had accepted the state's plea offer, (3) remand the case to the Danbury Judicial District and placing it on the regular court docket, (4) an order granting the petitioner a new trial, (5) an order releasing the petitioner from custody, (6) an order vacating the sentences and the granting of a new sentencing hearing, and (7) such relief as law and justice may require. Respondent's return denies the petitioner's material allegations and that he is entitled to habeas corpus relief.
The matter came before the court on June 26, 2007 and January 8, 2008, for a trial on the merits. Witnesses included the petitioner, Bernabe Diaz, his trial counsel, Anne Valle, the petitioner's mother, Jeannine Palmer, the petitioner's girlfriend at the time of the criminal trial, Sandra Buxeder, the petitioner's first cousin, and Mary Buxeder, the petitioner's aunt. As additional evidence, the petitioner offered many exhibits.
At the time of the criminal trial, Palmer was known as Jeannine Jennings.
The petitioner seeks to admit Exhibits 17, 18, 19, and 20. Based on the court's review of those exhibits, they are admitted as evidence in this habeas corpus trial. Exhibits 17 and 18 verify the criminal convictions of Diaz. Exhibit 19 is the May 27, 2004 transcript of Diaz's nolo contendere pleas to two counts of sexual assault in the second degree and one count of larceny in the first degree. Exhibit 20 is the transcript of the sentencing hearing where Diaz admits his involvement in those crimes and is sentenced by the court to a total effective sentence of twenty years suspended after service of eight years, of which nine months are mandatory, followed by ten years of probation with standard and special conditions. Based upon the court's review of the testimony and documentary evidence, judgment enters granting, in part, the petition for a writ of habeas corpus.
FINDINGS OF FACT
The petitioner was the defendant in a case entitled State v. Valle bearing docket number CR01-113675 that was prosecuted in the Judicial District of Danbury. The petitioner was charged and convicted, after a jury trial, of four counts of accessory to the sale of a hallucinogenic substance in violation of General Statutes §§ 21a-277(a) and 53a-8 and one count of conspiracy to sell a hallucinogenic substance in violation of General Statutes §§ 21a-277(a) and 53a-48.
On July 26, 2002, the trial court (White, G., J.) sentenced the petitioner to 15 years to serve on the first two counts, concurrent to each other; five years to serve followed by 5 years of special parole on the second two counts of sale, each concurrent to the other but consecutive to the first two; and five years on the conspiracy count, concurrent with the others. The total effective sentence was 20 years to serve and 5 years special parole.
The Appellate Court affirmed the petitioner's convictions. State v. Valle, 81 Conn.App. 525, 840 A.2d 1200 (2004). The Supreme Court denied the petitioner's petition for certification to appeal. State v. Valle, 268 Conn. 921, 846 A.2d 883 (2004).
The facts regarding the underlying conviction are judicially noticed, and are taken from the Appellate Court's decision: "The jury reasonably could have found the following facts. The defendant arranged to sell `Ecstasy,' a hallucinogenic substance, on four separate occasions to a cooperating witness in an undercover operation in Danbury spanning from September 26 to October 18, 2001. In each instance, the defendant used his cellular telephone to discuss the time and terms of the drug sales. The cooperating witness then met the defendant or his agent at the defendant's place of business, and the transaction was conducted outside the defendant's presence. The jury found the defendant guilty on all counts. The court thereafter granted the defendant's motion for a judgment of acquittal as to three counts of conspiracy to sell a hallucinogenic substance." State v. Valle, supra, 81 Conn.App. 527.
The charges that were brought against the petitioner arose from a narcotics investigation. Leandro Martinez and Jeannine Jennings were also arrested for their involvement in the conspiracy to sell ecstasy. On March 13, 2002, Martinez pleaded guilty pursuant to a plea agreement to a substitute information charging conspiracy to sell narcotics. On May 8, 2002, Jennings pleaded guilty pursuant to a plea agreement on a substitute information charging conspiracy to sell narcotics.
The Petition
This petition was brought in five counts. Because the first three counts involve the alleged commissions and omissions of Diaz, the court will address these together. In the first count, the petitioner alleges that his counsel failed to advise him properly as to the law and the strength of the state's case against him. Further, he alleges that he was misadvised by his counsel regarding the pretrial offer and that counsel advised him to reject the offer. In count two, the petitioner's allegations summarize Diaz's failures in preparation for trial and his failures during the trial; a lack of adequate investigation, failure to pursue a motion to suppress evidence, the inadequacy of his discovery motion, his failure to object to inadmissible evidence, and his failure to object to the court's jury instructions. Finally, in count three, the petitioner alleges that Diaz failed to properly prepare for sentencing and failed to correct errors and omissions in the pre-sentence investigation and report.
In the fourth count, the petitioner alleges a per se conflict of interest with Diaz. The petitioner alleges that Diaz was committing sexual assaults on minors, using illegal substances, and committed larceny while representing the petitioner.
The petitioner had hired Diaz to represent him. Diaz reviewed the charges with the petitioner. Diaz explained to the petitioner the elements of the crime of the sale of drugs, but did not explain the elements of accessory to the same crime. The state's offer was a sentence of ten years to serve suspended after seven and was made about a week before the jury trial began. Diaz advised the petitioner that if the petitioner paid him more money, he could beat the charge alleging a sale. Diaz advised the petitioner to reject the offer. When asked about the amount of time that he would have to serve in prison, Diaz told the petitioner that he would have to serve 85 percent of the sentence. The petitioner found out later that he probably would only be required to serve 50 percent of the sentence.
The petitioner was told by Diaz that if he was tested for drugs and showed that he had a "dirty urine," he might be able to obtain a drug treatment program for the petitioner. The petitioner and Diaz partied together and Diaz assisted the petitioner in making sure that he had dirty urine.
Diaz failed to review the pre-sentence investigation and report (PSI) with the petitioner. The petitioner discovered the contents of the PSI after he was sentenced.
Martinez, a co-defendant with the petitioner pleaded guilty and was sentenced to three years to serve in prison.
Jason Medeiros was the police informant. There were taped conversations of Medeiros and Martinez. Diaz told the petitioner to send Medeiros to Florida so that Medeiros would not be present to testify against the petitioner.
Jeannine Palmer was the petitioner's girlfriend at the time of his arrest. She was also arrested. Palmer pleaded guilty on May 8, 2002 to some charges and was sentenced on June 19, 2002.
Bernabe Diaz, the petitioner's trial attorney, had practiced law in the Danbury area since 1983-1984. Diaz testified that all options were discussed with the petitioner prior to the actual trial including the pros and cons of going to trial. Diaz was not certain when the co-defendant, Palmer, had entered guilty pleas. In fact, Palmer had entered guilty pleas before the start of the petitioner's trial. Diaz failed to consider the significance of Palmer's guilty pleas in that Palmer was potentially a very damaging witness to testify against the petitioner in his trial.
Diaz is a convicted felon and was disbarred from the practice of law.
Attorney Thomas Farver was called by the petitioner as an expert. Attorney Farver was qualified by the court as an expert in criminal law. He reviewed the police reports, witnesses' statements, laboratory reports, the long form information, the transcripts of the petitioner's trial, the cassette tapes, and bill of particulars. Attorney Farver testified that in order for the petitioner to have decided to plead guilty before the trial, he would have needed information regarding the guilty pleas of the other defendants involved in the case and the arrest record and convictions of Medeiros. If the co-defendant pleaded guilty to conspiracy, it would be difficult for the petitioner to deny his involvement in the case. Then, the petitioner could have made an informed decision to accept the plea offer prior to trial. In addition, attorney Farver testified that Diaz's unethical conduct in advising the petitioner to commit perjury rendered Diaz's assistance ineffective. It is so found.
"[U]nder no circumstance may a lawyer either advocate or passively tolerate a client's giving false testimony." Nix v. Whiteside, 475 U.S. 157, 171, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986).
The petitioner also alleged that Diaz failed to adequately prepare for trial, failed to conduct an adequate pretrial investigation to ascertain the status of the co-defendants' cases, and failed to prosecute his motion to suppress evidence, which was not sufficiently specific. Diaz also failed to develop information that would be considered mitigating factors at his sentencing and failed to review the pre-sentence report with the petitioner.
The petitioner, in count four, alleges a per se conflict of interest between the petitioner and Diaz. While representing the petitioner, Diaz, by his own admission, was committing serious crimes. The issue is whether Diaz's criminal conduct at the time that he represented the petitioner prevented him from representing him in the criminal case.
Additional facts will be discussed as necessary.
DISCUSSION
"In Strickland v. Washington, [ 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: the defendant must show: (1) that counsel's representation fell below an objective standard of reasonableness . . . and (2) that defense counsel's deficient performance prejudiced the defense . . .
"The first part requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the [s]ixth [a]mendment . . . In determining whether such a showing has been made, judicial scrutiny of counsel's performance must be highly deferential . . . The reviewing court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct . . .
"The second part requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable . . . The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." (Internal quotation marks omitted.) Valentin v. Commissioner of Correction, 94 Conn.App. 751, 755, 895 A.2d 242 (2006).
A. Decision to Plead Guilty
"A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings . . . This right arises under the sixth and fourteenth amendments to the United States constitution and Article First, § 8, of the Connecticut constitution . . . Pretrial negotiations implicating the decision of whether to plead guilty is a critical stage in criminal proceedings . . . and plea bargaining is an integral component of the criminal justice system and essential to the expeditious and fair administration of our courts . . .
"Although [the] decision [to plead guilty or proceed to trial] is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial. The right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction." (Internal quotation marks omitted.) Valentin v. Commissioner of Correction, supra, 94 Conn.App. 754-55.
In the present case, the petitioner claims that trial counsel was ineffective because he failed to explain to petitioner his situation and options so that he could make an informed decision on whether to proceed to a jury trial, gave the petitioner erroneous information about the amount of time he would serve if he entered a guilty plea, and recommended against the petitioner accepting a plea offer despite the strength of the State's case and objective likelihood of conviction.
The petitioner testified that attorney Diaz only advised him as to the elements of the sale of drugs, and did not advise him as to accessory liability. He also claims that Diaz told him that, if the petitioner paid Diaz mote money, he could succeed at trial and that the "odds were good" to beat the sale charges. "Effective assistance of counsel includes counsel's informed opinion as to what pleas should be entered . . . Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered." (Internal quotation marks omitted.) Boria v. Keene, 99 F.3d 492 (2nd cir. 1996). "[A]lmost every criminal defendant is faced with the crucial decision of whether to plead guilty or proceed to trial. Although this decision is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial. The right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction." Copas v. Commissioner of Correction, 234 Conn. 139, 154, 662 A.2d 718 (1995).
In Ebron v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 06 4001098 (January 14, 2008, Schuman, J.), the petitioner claimed that his attorney had advised him to reject a plea offer of ten years suspended after six when his maximum exposure was over forty-one years in favor of an open guilty plea before the court. The trial court sentenced the petitioner to eleven years firm. The court held that, in light of the petitioner's egregious criminal history, which an open plea would bring to light though a bargain with the state would not, a reasonable defense attorney should not have expected more mercy from the court than the state was offering and would have advised their client to accept the plea bargain.
In the present case, the petitioner credibly testified that attorney Diaz told him he could "beat" the charges against him if he went to trial. He claims he was not adequately informed of the strength of the state's case against him or the elements of accessory liability so that he could make an informed decision about whether to plead guilty. Attorney Diaz did not investigate the coconspirators' pleas or interview other witnesses, and this court did not find his testimony, that he advised the petitioner to accept the plea, to be credible. Nor did this court find particularly credible Palmer's testimony that Diaz had given the petitioner a fifty percent chance of success; she was not involved in the discussions the petitioner had with Diaz. Based on its review of the record and the testimony of attorney Farver, this court concludes that it was objectively unreasonable to advise the petitioner to plead not guilty and proceed to trial. The state's case against the petitioner was very strong, consisting of informant testimony and taped conversations in which the petitioner was heard discussing sale transactions with the informant. While the petitioner never directly references drugs, the prices and quantities discussed corresponded exactly to the prices and amount of pills the informant purchased at the designated transaction, the informant referenced "pills" in the phone conversations without eliciting confusion or a correction from the petitioner, and there were repeated references to "smiley faces" which corresponded with the smiley face emblems on the ecstasy pills. Moreover, both Palmer and Martinez had already pleaded guilty to the charges against them, which, as attorney Farver testified, would be difficult to explain before a jury at the petitioner's trial. If petitioner had adamantly insisted on going to trial, the defense that the "smiley faces" referenced jewelry being sold by the petitioner might have been reasonable trial strategy; it was not, however, objectively reasonable to tell the petitioner he had a good chance of succeeding on this defense in the context of advising him whether to plead guilty.
The petitioner also alleges that attorney Diaz failed to conduct a proper investigation or prepare adequately for trial. Regardless of whether Diaz determined that Palmer and Martinez' pleas were irrelevant to the petitioner's case, or whether he simply failed to discover the fact of the pleas beforehand, the conclusion is the same: his conduct was objectively unreasonable.
The petitioner also credibly testified that Diaz misinformed him as to his eligibility for parole were he to accept the plea agreement; Diaz told him he would have to serve eighty-five percent of his sentence before parole was available, when in fact he would be eligible after serving only fifty percent of his sentence. General Statutes § 54-125a(a). In United States v. Gordon, 156 F.3d 376 (2nd cir. 1998), the petitioner's counsel had told the petitioner his maximum exposure at trial would be 120 months imprisonment when, in fact, the potential range was 262 to 327 years. The court held that this amounted to ineffective assistance because of counsel's "duty as a defense lawyer in a criminal case to advise his client fully on whether a particular plea to a charge appears desirable." (Internal quotation marks omitted.) Id., 380. See also Braham v. Commissioner of Correction, Superior Court, judicial district of Hartford, Docket No. CV 98 0585938 (April 10, 2001, Rittenband, J.), aff'd, 72 Conn.App. 1, 804 A.2d 951, cert. denied, 262 Conn. 906, 810 A.2d 271 (2002), wherein the petitioner alleged that his attorney had mistakenly advised him that he would be eligible for parole after serving fifty percent of his sentence on a murder charge, for which parole was unavailable. While the court ultimately denied habeas relief on this ground, it did so only because it credited the petitioner's attorney, who testified that he had never given such advice, over the petitioner; the decision implies that the allegations, if true, would constitute deficient performance.
The petitioner in the present case contends that he had thought he would not be eligible for parole until serving eighty-five percent of his sentence rather than the fifty percent allowed by § 52-125a(a). Based on the state's offer of ten years suspended after seven, this constitutes a difference of approximately 894 days to serve, or nearly two and a half years imprisonment. This information is certainly relevant to the question of whether to plead guilty; had the defendant known he would be eligible for release after 3.5 years rather than approximately 6 years, he might well have been more inclined to accept the guilty plea. Cf. Hernandez v. Commissioner of Correction, 82 Conn.App. 701, 708-09, 846 A.2d 889 (2004) (attorney incorrectly informing petitioner he would be eligible for parole after serving 50% on murder charge, for which parole unavailable, was deficient and rendered his nolo contendere plea not intelligent, voluntary and knowing). Finally, Diaz told the petitioner that any sentence upon a conviction after trial was not likely to exceed that offered by the state, despite the fact that the petitioner had a prior criminal record which weighed against leniency at the sentencing hearing.
The petitioner also testified that he was advised by Diaz to take drugs so that he would be eligible for a drug treatment program. The court finds this testimony credible in light of the evidence that Diaz was doing drugs with the petitioner at this time. Aside from the patently unethical nature of advising a client to commit crimes; see Rules of Professional Conduct (2007) § 1.2(d); the petitioner's dirty urines were introduced after his conviction and very likely had a prejudicial effect on his sentence. The petitioner, corroborated by Jeannine Palmer, also testified that Diaz advised him to coerce Madeiros into leaving the state or otherwise preventing him from testifying at his trial.
At the sentencing hearing, Judge White stated: "I think Mr. Valle is a danget to society. He's already violated the conditions of his release. I gave him a break on that and imposed a lower bond than I initially intended to . . . [B]esides, he was not credible or truthful with the court, as far as I'm concerned. He indicated in the PSI that he hadn't used drugs in two years, I think it was, and he came up with four dirty urines between the date of conviction and today
Based on attorney Diaz's failure to properly inform the petitioner of the nature of the charges against him, his erroneous advice on the possibility of parole, his unethical advice that the petitioner take drugs and attempt to make Madeiros unavailable for trial, and his recommendation that he could "beat the case" at trial despite the objective strength of the state's case against the petitioner, this court concludes that attorney Diaz's representation with respect to the plea decision was deficient. This conclusion is strengthened in consideration of Diaz' criminal conduct, especially his crimes of larceny against the state of Connecticut in charging excessive legal fees; that Diaz told the petitioner he could "beat the charges" if he paid Diaz more money creates the inference that Diaz may have conveyed an unreasonably optimistic outcome to the petitioner in an endeavor to get a bigger paycheck.
The prejudice resulting from inadequately informing a defendant on a plea agreement is obvious. See, e.g., Ebron v. Warden, supra, Docket No. CV 06 4001098; Cooke v. State, Superior Court, judicial district of Fairfield, Docket No. CV 96 0332626 (May 24, 2000, Melville, J.) (counsel never informed petitioner of plea bargain; high probability petitioner would have accepted plea and, therefore, gotten a lesser sentence had he known of it established prejudice). While many cases have considered the prejudicial effect of an attorney's recommendation to plead guilty rather than proceed to trial, fewer have addressed the reverse, where counsel unreasonably advises a defendant to proceed to trial rather than accept a plea. If a petitioner can show deficient performance, that if not for the deficient performance he would have accepted the plea, and that he received a harsher sentence than that presented by the plea, prejudice is an inherent consequence. Cf. United States v. Gordon, supra, 156 F.3d 376; Ebron v. Warden, supra, Docket No. CV 06 4001098.
Petitioner has demonstrated that the errors and omissions of Diaz prejudiced him. Had he been fully informed and not misinformed by Diaz, the petitioner would have elected to plead guilty before trial and accept the plea offer. Therefore, the court finds for the petitioner on the first count of ineffective assistance of counsel.
B. Conflict of Interest
The petitioner also contends that Diaz was laboring under a conflict of interest because at the time he represented petitioner, Diaz was engaged in the commission of sexual assault, drug possession and larceny.
"Assertions of the right to conflict-free counsel are of four different varieties: (a) that the district court's knowledge of a possible conflict imposed upon it a duty of inquiry; (b) that there was a `per se' conflict; (c) that there was an actual conflict; and (d) that there was a potential conflict." Armienti v. United States, 234 F.3d 820, 823 (2nd cir. 2000).
"Conflicts of interest . . . may arise between the defendant and the defense counsel. The key here should be the presence of a specific concern that would divide counsel's loyalties. In some instances, defendants have sought (usually unsuccessfully) to convert general incompetence claims into conflict claims by arguing that the interest of counsel in protecting his reputation, in adhering to a particular philosophy, or in minimizing his effort constituted a conflicting interest that divided his loyalties. Typically, however, courts have looked to cases in which a representation fully devoted to [the] defendant's interest is likely to produce an adverse consequence unique to the individual case. Thus, the paradigm case is that in which the lawyer representing the defendant fears opening himself up to a criminal prosecution because he is under investigation for an offense relating to the same events." (Internal quotation marks omitted.) State v. Barnes, 99 Conn.App. 203, 217, 913 A.2d 460 (2007). The second circuit has held that a per se conflict exists where counsel representing a defendant is either (1) not licensed to practice law or (2) somehow involved or connected with the crimes the defendant is charged with. See United States v. Fulton, 5 F.3d 605, 611-12 (2nd cir. 1993) (defendant's counsel had received shipment of heroin from one of witnesses in defendant's case, based on the same overall drug trafficking operation); United States v. Cancilla, 725 F.2d 867, 869-71 (2nd cir. 1984) (defense counsel had, unbeknownst to defendant, engaged in insurance fraud schemes related to those of the defendant); United States v. Williams, 372 F.3d 96 (2004) (counsel actively involved in criminal transactions relevant to the defendant's crimes and, in an effort to conceal his own misconduct, actively discouraged the defendant from engaging in plea discussions).
The petitioner highlights that the Fulton court held that the crimes need not be "identical"; however, the court went on to note that "[t]he per se rule applies when an attorney is implicated in the crimes of his or her client since, in that event, the attorney cannot be free from fear that a vigorous defense should lead the prosecutor or the trial judge to discover evidence of the attorney's own wrongdoing . . . Of course, the per se rule does not apply any time a court learns that an attorney may have committed a crime; the attorney's alleged criminal activity must be sufficiently related to the charged crimes to create a real possibility that the attorney's vigorous defense of his client will be compromised." (Citations omitted; emphasis added; internal quotation marks omitted.) United States v. Fulton, supra, 5 F.3d 611. There is no evidence in the present case that attorney Diaz' crimes were in any way connected with the petitioners'; while Diaz' actions may have been reprehensible, the petitioner has not demonstrated that these unrelated crimes prejudiced him in any way.
Even if there is no per se conflict, "[t]here is an actual conflict between lawyer and client when, during the course of the representation, the attorney's and defendants' interests diverge with respect to a material factual or legal issue or to a course of action." (Internal quotation marks omitted.) Armienti v. United States, supra, 234 F.3d 824. If the petitioner can show that the conflict "adversely affects performance, the defendant is not required to demonstrate prejudice; prejudice is presumed . . . To prove adverse effect, the defendant must demonstrate that some plausible alternative defense strategy or tactic might have been pursued, and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests." (Citation omitted; internal quotation marks omitted.) Id.; see also State v. Vega, 259 Conn. 374, 387, 788 A.2d 1221 (2002) ("Once a defendant has established that there is an actual conflict, he must show that a lapse of representation . . . resulted from the conflict . . . To prove a lapse of representation, a defendant must demonstrate that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorneys other loyalties or interests."); Phillips v. Warden, 220 Conn. 112, 133, 595 A.2d 1356 (1991). In Armienti, the petitioner's trial attorney had been under investigation at the time of trial by the same US attorney's office then prosecuting the petitioner. "A lawyer in these circumstances, while dealing on behalf of his client with the office that is prosecuting him personally may, consciously or otherwise, seek the goodwill of the office for his own benefit." Id., 825. The court ruled that an evidentiary hearing must be held to determine whether the actual conflict had adverse effect. Id., see also United States v. Thomas, 202 Fed.Appx. 531 (2nd cir. 2006), cert. denied, 127 S.Ct. 1320, 167 L.Ed.2d 129 (2007). The petitioner, in the present case, however, has not submitted evidence nor identified exactly how Diaz' crimes presented a conflict with his own interests. The record reveals that Diaz was not under investigation by the state's attorney's office until a year after trial had completed on the petitioner's case. The fact that he was committing crimes at the time he represented the petitioner is insufficient, taken alone, to establish an actual conflict under this doctrine.
It is also worth noting that the District Court, on remand, held that no actual conflict existed because the US Attorney's office responsible for prosecuting the petitioner was unaware or had little knowledge of the charges against his attorney. See Armienti v. United States, United States District Court, Eastern District of New York, Docket No. 96 CV 2999 (May 11, 2001); aff'd, 313 F.3d 807 (2nd cir. 2002).
Another set of cases have held that if the attorney's criminal conduct is particularly notorious or otherwise known or revealed to the jury, there is an actual conflict because it may unfairly reflect poorly on a defendant; for example, in Phillips v. Warden, supra, 220 Conn. 112, counsel, during petitioner's criminal trial, was in the midst of appeal of a highly publicized conviction for the murder of his wife. The court recognized the difficult Hobson's choice this presented: the attorney could either neglect to voir dire the jurors as to their knowledge of him personally and risk tainting the petitioner's defense with his own crimes, or could, on the other hand, risk alerting otherwise ignorant jurors to this fact by inquiring about it during voir dire. Either scenario, the court reasoned, would unfairly prejudice the defendant. But the court also limited its holding to instances where the attorney's own crimes were particularly notorious, noting the extreme nature of the "unique factual circumstances" of the case and adding the qualification: "We do not hold that whenever a lawyer who has been convicted of a felony represents a criminal defendant there is a conflict of interest in the constitutional sense." Id., 142-43.
The petitioner has not provided evidence, beyond his allegation that a conflict existed, that Diaz' crimes influenced his representation of the petitioner. The transcripts of Diaz' plea and testimony reveal only that he had committed various crimes — admittedly some of them drug-related, but having nothing to do with the petitioners' sale of ecstasy — and was prosecuted and convicted for them a year after the petitioner's conviction. There is no indication in the present case that the petitioner's jury was aware of Diaz' crimes, or that he was being investigated for them at the time of trial.
The petitioner alleges that Diaz "partied" and smoked marijuana with him. The are no allegations, however, that Diaz was in any way connected with the sale or purchase of ecstasy for which the petitioner was convicted; the petitioner's casual drug use was not at issue in his criminal trial. Although the petitioner also raises claims that he was induced by attorney Diaz to use drugs because having dirty urine would allow him to enter a drug treatment program, this does not implicate a conflict of interest.
At best, the petitioner's claims may amount to that of a potential conflict of interest. A potential conflict requires traditional Strickland ineffective assistance analysis outlined above, and requires a showing of prejudice. Armienti v. United States, supra, 234 F.3d 824; United States v. Williams, supra, 372 F.3d 102-03. There is no evidence to suggest that the specific conflicts of interest alleged by the petitioner themselves prejudiced him Whether any of Diaz' acts otherwise caused prejudice to the petitioner are adequately discussed in other sections and need not be repeated here.
The petitioner does not characterize his claim that he was told by Diaz that if he paid Diaz more he could "beat the charges" as a conflict of interest. While this claim might fairly be construed as a potential conflict, this has duly undergone Strickland analysis above, and serves mainly to reinforce the conclusion that the petitioner received ineffective assistance of counsel.
D. Conduct During Trial
The petitioner next claims that counsel was ineffective in (1) failing to raise the extent of the state's informant witness' agreement during cross examination, (2) eliciting uncharged misconduct evidence and failing to object to other misconduct evidence, and (3) failing to investigate and present an entrapment defense. These claims all must be analyzed under the Strickland standard.
The petitioner argues that trial counsel should have elicited testimony or presented evidence with respect to Madeiros' plea agreement with the state; namely, that his maximum exposure was thirty-six years imprisonment, but that after agreeing to work with the state to implicate the petitioner, his recommended sentence was set at seven years imprisonment suspended after two. Attorney Farver testified that it was objectively unreasonable not to have this information before the jury.
When attorney Diaz questioned Madeiros, the latter testified that he thought he might get up to three years in prison, and this is when he decided to work with the state. Diaz later asked "you were going to jail for more than three years, weren't you?" which was objected to by the prosecution. The court conducted a sidebar, then dismissed the jury and allowed further questioning and argument by counsel on the record. Attorney Diaz expressed his desire to question the witness as to his potential exposure: "What I was attempting to do was go into his representation of the jail time that supposedly he was facing, your honor . . ." to which the judge replied: "Well . . . there's been testimony on that. At the appropriate time, I suppose you can make of that what you will. If there's an objection I'll hear it, and I'll make a decision." When cross-examination resumed several days later, no further inquiry was made as to Madeiros' potential sentence. While it is unclear exactly why Diaz neglected to revisit this line of questioning and elicit the full extent of Madeiros' sentence, the petitioner has not established that prejudice has resulted even assuming deficient performance. While the jury was not aware that Madeiros faced over thirty years on the charges against him, Diaz did establish the connection between Madeiros' plea bargain and his agreement to work with the police in implicating the petitioner. The intended inference was there for the jury to make, even if it may have been stronger were they aware of the true extent of Madeiros' potential sentence. Given the substantial amount of evidence the state otherwise adduced against the petitioner, it is very unlikely that the jury would have reached a different conclusion even had Diaz successfully shown that Madeiros faced much more time in prison. Therefore, the petitioner has failed to establish prejudice on this ground. Cf. Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 803, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004) (trial court's conclusion that counsel's failure to object to inadmissible testimony by expert witness would have eroded credibility of his testimony was "speculative" and not prejudicial, especially in light of "balance of evidence indicating . . . guilt").
The petitioner's next contention is that counsel elicited testimony establishing that the police were investigating the petitioner, and failed to object to evidence of drugs found in the petitioner's home. Attorney Farver testified that defense counsel should never create a situation where they must explain their client to the jury. Attorney Diaz did not provide a strategic reason for these alleged infirmities.
The only testimony regarding prior investigation of the petitioner was from detective Krupinsky, who testified that they had "bits and pieces coming in" but "nothing concrete on Mr. Valle"; just "indications of . . . not ecstasy, but . . . possibly prescription pills, percocets, percodans. We had that information in the past." While these statements were not particularly helpful to the petitioner, in the overall context of Diaz' cross examination they are seen to be harmless. He got Krupinsky to admit that he had "no information regarding Mr. Valle until you met with Jason Madeiros" and that there was no open investigation of the petitioner until Madeiros implicated him after being arrested. He was attempting to show that Madeiros was really the only solid evidence the police had of the petitioner's illicit activities, and did not reveal this information until after he had been arrested and could benefit from implicating another party. This is certainly a reasonable line of inquiry and, overall, is more beneficial than harmful to the petitioner.
With respect to the testimony of drugs found in the petitioner's home, the state only elicited this for the purposes of rebutting the petitioner's testimony that there were no drugs in his home. The trial judge issued a cautionary instruction to the jury that the testimony was solely to be considered for rebuttal purposes, was only relevant with respect to credibility, and that the jury could not use it as substantive evidence of the petitioner's propensity to commit drug-related crimes. Thus, an objection may simply not have been warranted, as the evidence was admissible to impeach the petitioner. Even assuming, arguendo, that it was inadmissible, there is no indication that any prejudice that may have resulted was not vitiated by the curative instruction. See Bond v. Commissioner, 87 Conn.App. 50, 59, 863 A.2d 757, cert. denied, 273 Conn. 912, 870 A.2d 1079 (2005). The petitioner has failed to establish that he suffered prejudice either from attorney Diaz' elicitation of inculpatory testimony or failure to object to testimony.
"It is to be presumed that the jury followed the court's [curative] instructions unless the contrary appears . . . We have repeatedly acknowledged, in cases tried to a jury, that curative instructions can overcome the erroneous effect of statements that a jury should not have heard . . . Because curative instructions often remedy the prejudicial impact of inadmissible evidence . . . [w]e have always given great weight to such instructions in assessing claimed errors . . . Thus, [a] jury is normally presumed to disregard inadmissible evidence brought to its attention unless there is an overwhelming probability that the jury will not follow the trial court's instructions and a strong likelihood that the inadmissible evidence was devastating to the defendant." (Internal quotation marks omitted.) Bond v. Commissioner, supra, 87 Conn.App. 59.
The petitioner next claims that counsel was ineffective in not putting forth an entrapment defense. General Statutes § 53a-15 provides: "In any prosecution for an offense, it shall be a defense that the defendant engaged in the proscribed conduct because he was induced to do so by a public servant, or by a person acting in cooperation with a public servant, for the purpose of institution of criminal prosecution against the defendant, and that the defendant did not contemplate and would not otherwise have engaged in such conduct." "Entrapment is the inducement by a public servant or police officer of a person to engage in criminal conduct that had not been contemplated by him, for the sole purpose of instituting criminal prosecution against him. The defense is available to the defendant only if he would not have engaged in the proscribed conduct but for the inducement of a police officer." State v. Grant, 8 Conn.App. 158, 164, 511 A.2d 369 (1986). While a request by an undercover police officer to purchase drugs is not itself sufficient to support a defense of entrapment; see, e.g., State v. Jurgensen, 42 Conn.App. 751, 760-62, 681 A.2d 981, cert. denied, 683 A.2d 398, 239 Conn. 931 (1996); "[e]vidence of unlawful inducement may be found where the police or an agent acting on their behalf appeal to the [accused's] sympathy or friendship, or where they repeatedly or persistently solicit the [accused] to commit the crimes." (Emphasis in original; internal quotation marks omitted.) One Way Fare v. Department of Consumer Protection, 96 Conn.App. 780, 784, 901 A.2d 1246 (2006). The defense is not available, however, where a defendant denies involvement in the crimes or that he committed the acts at all. State v. Avery, 152 Conn. 582, 584-85, 211 A.2d 165 (1965).
The petitioner stresses that Madeiros engaged in "repeated attempts" to obtain drugs from him and was "repeatedly turned away" between July 2001 and September 2001, when the first deal went through. This mischaracterizes the facts as revealed at trial, however, that Madeiros did not attempt to buy drugs from Valle until September, and was successful in negotiating a sale almost immediately. In State v. Taylor, 214 A.2d 362, 153 Conn. 72, cert. denied, 86 S.Ct. 1372, 384 U.S. 921, 16 L.Ed.2d 442 (1965), the defendant was arrested after selling heroin to a minor. The minor had been arrested by the police earlier that day for possession of narcotics, and agreed to attempt to buy heroin from the defendant, from whom he had purchased narcotics before. The court held that he was not acting as an "agent" of the police in this instance, and that the defendant could not prevail on a theory of entrapment in such circumstances. The present case is similar; it did not take much prodding to get the petitioner to set up the sale; even though, when re-approached by Madeiros, he said he "wasn't that into it anymore" he went on to state that he would "see what he could do" and shortly after set up the first sale on September 26. There was evidence that the petitioner was initially wary of Madeiros because he knew of his arrest, which the state argued was why the petitioner set up an arms-length transaction through Martinez rather than sell directly to Madeiros. Given this set of facts, it is unlikely the petitioner would have succeeded with the entrapment defense at trial; even assuming deficient performance on the part of trial counsel, therefore, he has failed to establish prejudice.
Moreover, his theory of the case the entire time was fundamentally at odds with a defense of entrapment. See State v. Avery, supra, 152 Conn. 584-85. Counsel could have gone forward on the defense of entrapment, but would have then had to forego the alibi defense that the petitioner did proceed with. While this court has found that it was unreasonable to recommend going to trial on this defense rather than accepting the state's plea offer, the court does not find it similarly unreasonable to have gone forward with this defense rather than one of entrapment, given that neither was particularly likely to succeed, and that the petitioner maintained his innocence throughout. In this context, the petitioner cannot overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; it is the petitioner's burden to overcome the presumption that his attorney's actions or inactions were not, in fact, sound trial strategy . . . We also must make every effort to evaluate the challenged conduct from counsel's perspective at the time." (Internal quotation marks omitted.) Lacks v. Commissioner of Correction, 87 Conn.App. 225, 230, 866 A.2d 660, cert. denied, 273 Conn. 922, 871 A.2d 1027 (2005). Therefore, the petitioner has not established deficient performance in this regard, and has failed to prove that he received ineffective assistance of counsel.
E. Failure to Present Mitigating Factors at Sentencing
Because this court vacates the petitioner's conviction and remands to the trial court for further proceedings, the petitioner's claims regarding his sentencing hearing are rendered moot. While the court will not reach these claims on the merits, it nevertheless notes that, although the petitioner has proposed various mitigating factors that could have been but were not raised in the sentencing hearing, he has not demonstrated that they would have influenced the sentencing judge to reduce the petitioner's sentence. At best, they are speculative and failure to raise them is not likely to have been prejudicial. That the petitioner had some clean urines amidst repeated dirty urines, had purchased a home and was current on the bills, and that Martinez was involved in a gang relationship bear little on the petitioner's culpability for the crimes and do not particularly inspire leniency.
F. Remedy
The petitioner requests various forms of relief, including the opportunity to accept the state's pretrial plea offer, the vacatur of his convictions and sentences, the remand of his case to the Superior Court and the granting of a new trial, and the petitioner's release from prison. "In accordance with § 52-470, the [habeas] trial court, much like a court of equity, has considerable discretion to frame a remedy, so long as that remedy is commensurate with the scope of the constitutional violations which have been established." (Internal quotation marks omitted.) Brooks v. Commissioner of Correction, 105 Conn.App. 149, 160, 937 A.2d 699, cert. denied, 286 Conn. 904, 943 A.2d 1101 (2008). The habeas court in Ebron v. Warden, supra, Docket No. CV 06 4001098, citing Brooks, mandated that the petitioner be allowed to accept the state's original offer, which he would have accepted but for the ineffective assistance of counsel. The court recognized that it could not sentence the petitioner, but returned the case to the trial court for resentencing. Id.
This court finds the reasoning in Ebron, while not entirely inapplicable, ultimately distinguishable from the present case. In Ebron, the case had not gone to trial; the petitioner had simply entered an open guilty plea in the hopes of receiving a more favorable sentence from the court, which was not forthcoming. Instating the rejected plea agreement did not alter the fundamental basis of the petitioner's decision with respect to the plea, only the specific result, and did not follow a full trial and conviction on the merits. In the present case, wherein the defendant pleaded not guilty and was convicted by a jury, reinstating the plea agreement is a much broader remedy and not entirely "commensurate with the scope of the constitutional violations which have been established." Brooks v. Commissioner of Correction, supra, 105 Conn.App. 160.
Nevertheless, the petitioner testified that he relied upon the advice of counsel, and that, had counsel accurately represented the strength of the state's case and recommended acceptance of the plea or warned of the likelihood of a conviction after trial, he would have accepted the plea. He at no point expressed a burning desire to take the case to trial regardless of counsel's advice or the evidence against him. This court is convinced that, but for the ineffective assistance of counsel, the petitioner would have accepted the plea agreement and obtained a much more favorable result than had he gone to trial. While the court is not without reservations about vacating a conviction after a fairly conducted jury trial, the clear and prejudicial error in Diaz' pretrial advice and investigation, coupled with the factually unusual and egregious nature of his unreasonable suggestion to go to trial in order to make more money and his unethical conduct in advising the petitioner to take drugs and prevent Madeiros from testifying, convince the court that the petitioner's right to competent counsel was violated, fundamentally undermining the fairness of his conviction and entitling him to habeas relief.
Therefore, the petitioner's convictions after his jury trial are vacated and the petitioner is remanded to the trial court for further proceedings. It is suggested that the state offer the petitioner the same plea agreement the petitioner rejected based solely on the ineffective assistance of his counsel. It should be noted, however, that the court does not vacate pleas and sentence on the gun possession charges.
Accordingly, the writ of habeas corpus is granted as to count one only, and it is ordered that the petitioner receive a new trial. The petitioner shall submit a judgment file to the Clerk's Office within thirty days of the date of this decision.