Opinion
CV134005041S
01-26-2016
James E. Walker (#284986) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Hon. Vernon D. Oliver, J.
The petitioner, James Walker, initiated this petition for a writ of habeas corpus, claiming that his underlying criminal counsel provided him ineffective legal representation. He further claims Brady and due process violations. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The respondent denies the claims and asserts the special defense of procedural default as to certain of the claims.
The court finds the issues for the RESPONDENT and DENIES the petition.
Procedural History
In the criminal matter State v. James Walker, CR08-00818555, in the New Haven Judicial District, the petitioner was charged with two counts of assault in the first degree by means of the discharge of a firearm in violation of Connecticut General Statutes § 53a-59(a)(5) and 53a-8 and one count of conspiracy to commit assault in the first degree in violation of Connecticut General Statutes § § 53a-48 and 53a-59(a)(5).
On November 10, 2010, the petitioner was acquitted after jury trial of the two assault counts and convicted of the conspiracy charge. On February 10, 2011, the Court (Licari, J.) sentenced the petitioner to nineteen years to serve. Attorney Richard Silverstein represented the petitioner at the underlying trial. The petitioner appealed the judgment of conviction, which was affirmed. State v. Walker, 147 Conn.App. 1, 82 A.3d 630 (2013). The Supreme Court, in granting certification, limited its review to whether the appellate court's determination that the record was inadequate to review the petitioner's unpreserved appellate claim that his absence from an in-chambers conference regarding a potential conflict of interest violated his constitutional right to be present at all critical stages of the prosecution because of his failure to augment the record with the facts related to the alleged in-chambers conference. State v. Walker, 319 Conn. 668, 126 A.3d 1087 (2015). In finding that the appellate court's determination was proper, the Supreme Court found the following facts and reached the following conclusions of law relevant to the instant matter.
" In connection with the nonfatal shooting of two persons, the defendant was charged with two counts of assault in the first degree by means of the discharge of a firearm in violation of General Statutes § § 53a-59(a)(5) and 53a-8 and one count of conspiracy to commit assault in the first degree in violation of General Statutes § § 53a-48 and 53a-59(a)(5). A key witness for the state, a jailhouse informant named James Dickerson, was an acquaintance of the defendant and was incarcerated at the same facility as the defendant. At trial, Dickerson testified that the defendant had admitted to him his involvement in the shooting and his motive for the shooting. Dickerson denied that he had received any promises in exchange for his testimony but acknowledged that he hoped to get favorable treatment from the state on pending narcotics charges .
" The connection between Dickerson's testimony and the issue on appeal arose during jury selection, when the following colloquy occurred:
The Court: Good morning, everybody. We are back to jury selection in [the present case]. The attorneys have brought a matter to the court's attention this morning which should be put on the record . [Assistant State's Attorney Stacey] Haupt [the prosecutor], I don't know if you want to go first or--
[The Prosecutor]: . . . It was brought to my attention late Friday by [Assistant State's] Attorney Jack Doyle [regarding] the [plea offer] between . . . Dickerson and the state's attorney's office. I asked Attorney Doyle to write a memo about how exactly that went down and what promises had been made to [Dickerson] and in looking at his file attempting to prepare the memo, Attorney Doyle realized that [defense counsel in the present case] . . . had spoken to [Dickerson] at the request of Attorney Jamie Alosi to try to talk to him about taking some type of deal. However, it was prior to [Dickerson] cooperating in this case. I don't believe that deal came to fruition, but I just thought it should be brought to the court's attention that . . . [defense counsel] in some respect had conversations with one of the state's witnesses.
The Court: Let me flush that out a bit. Apparently, [Dickerson], and it's already a matter of knowledge and public [record] in this case, is going to testify against [the defendant]. [Dickerson], and I think you put this on the record earlier, and if not, it should be. [Dickerson] was on trial in front of this court, represented by Attorney Alosi. At some point, he entered a plea upstairs, and I had nothing to do with the plea. I had nothing to do with the sentencing. My involvement was picking a jury up to the point where the matter was resolved. Apparently, [defense counsel], you can add to that factual situation. Listen up, Mr. Walker, I just want to make sure you understand this.
[Defense Counsel]: [Dickerson] was brought in to begin jury selection in a matter which he eventually pled guilty to and is seeking to have consideration for based on his testimony or anticipated testimony in this case. I happen[ed] to be on the sixth floor. He was in the bullpen upstairs with his attorney, and his attorney, who I know, had told me about the case he was proceeding to trial on."
" Defense counsel then went on to explain that Dickerson's attorney had told him about the evidence against Dickerson relating to the sale of narcotics, which included a videotape of the purported transaction and a still photograph from that videotape that appeared to show Dickerson making the sale, and the fact that the state had offered Dickerson a plea agreement. Because defense counsel knew Dickerson, he was asked, or may have volunteered, to speak with Dickerson about the sentence that could be imposed in light of the evidence and Dickerson's past history. In summarizing the discussion that ensued, defense counsel noted that Dickerson had told him about the plea offer as well as " what the plea agreement was that he could accept short of going to trial." Defense counsel then explained: " I said, in my opinion, the evidence was substantial. Then again, I didn't spend more than five or six minutes with him, nor did I, other than the layout, which he probably already heard from his attorney, have anything that would impact on [the] decision he made. Then he proceeded to come down here and begin jury selection with Your Honor.
" Subsequent to that, it would appear, and I didn't know until, let's say, a month to six weeks after that he had given that statement because it wasn't being handled by [the prosecutor] at that time, this case . . .
My client [the defendant] was incarcerated, having not made bond, and, at some point . . . I became aware that Dickerson had made a statement. As soon as I became aware, I asked [the prosecutor] to send me a copy of that statement. I spoke to [Assistant State's Attorney] Doyle . . . I spoke to them about the parameters of the new plea agreement that [Dickerson] had entered into based on his cooperation and I was told essentially what happened. I was given a copy of the statement, and that's where we are today. My client [the defendant] is aware I had a limited interaction with (Dickerson] prior to him giving inculpatory evidence or [an] anticipated statement that inculpates him, and I explained to [the defendant] that this in no way would impede my cross examination of [Dickerson]. I don't think that that conversation is probably relevant to the deal he eventually entered into, and I would probably not, in my cross examination, unless it came out that we knew each other, but we had known each other prior to me speaking to him up in court, and I wouldn't get into any details of the conversation. I don't think that would hamper my cross examination of him at all. [The defendant] has indicated to me that he wants me to continue to represent him.
The Court: You heard that, Mr. Walker? You're comfortable with that?
The Defendant: Yes, yes.
The Court: Let me tell you what I'm concerned about to protect your rights. As your lawyer, [defense counsel] owes you a duty of undivided loyalty. He can't represent two people at the same time that have any kind of conflict. From what I've heard here today, I haven't seen any. Whatever he did with [Dickerson] was unrelated to whatever deal [Dickerson] now has going, and he can go after that deal hand and claw, and there's nothing that I can see in his prior contact with [Dickerson] that is even relevant to the situation that developed after he spoke to [defense counsel]. I don't see any conflict. I don't see any violation of the law by [defense counsel], and I want to make sure you're comfortable with it so we can get on with the trial, and you've got to let me know. Are you okay with it?
The Defendant: Yes.
The Court: Good, all right, then we'll pick it up. Let's bring the panel out. Thank you.
During his cross examination of Dickerson, defense counsel did not attempt to elicit information about any matter discussed at their prior meeting. At the conclusion of the trial, the jury returned a verdict finding the defendant not guilty of assault in the first degree, as either principal or accessory, but guilty of conspiracy to commit assault in the first degree. The trial court rendered judgment in accordance with the verdict, from which the defendant appealed.State v. Walker, 319 Conn. 668, 670-74, 126 A.3d 1087 (2015). (Emphasis added and in original.)
In prior appellate litigation, our appellate court likewise considered the testimony of James Dickerson and described it thus:
James Dickerson, an acquaintance of the defendant, who was incarcerated in the same facility as the defendant, told police that the defendant admitted to him his involvement in the shootings on Dixwell Avenue. Dickerson testified at the defendant's trial that he had come forward with this information in the hope of getting favorable consideration on his pending drug charges . He testified that the defendant had told him that he and James had gone to Pouncey's house in a car belonging to James' girlfriend in order to seek revenge against Pouncey for having robbed him. He further testified that the defendant had told him that both he and James had fired guns through Pouncey's bedroom window at Pouncey and his female friend, that they had fled in the car after the shooting and that they had abandoned the car thereafter.State v. Walker, supra, 147 Conn.App. 4-5. (Emphasis added.)
In his Amended Petition dated March 9, 2015, the petitioner asserts the following: 1. Ineffective assistance of trial counsel, Richard Silverstein, in that:
a. Counsel operated under a conflict of interest which affected counsel's performance in the underlying matter;
b. Counsel precluded the petitioner from joining an in-chambers conference between counsel, the prosecuting authority and the trial court concerning counsel's potential conflict of interest;
c. Counsel failed to adequately impeach and cross examine James Dickerson;
d. Counsel failed to raise a due process claim regarding lost fingerprint evidence; and
e. Counsel failed properly raise and argue a constitutional claim regarding fingerprint evidence;
2. Brady v. Maryland claim: a due process violation in that the prosecuting authority failed to disclose material impeachment evidence relating to witness James Dickerson, submitted materially false testimony to the jury about its agreement with witness James Dickerson, and failed to correct that false testimony at trial;
3. The prosecuting authority failed to obtain, disclose and/or retain latent fingerprints from a " getaway" vehicle; and
4. Due Process violations in that the petitioner was denied his right to be present at an in-chambers conference relating to a potential conflict of interest between trial counsel and the petitioner involving witness James Dickerson.
In his post-trial brief and post-trial reply brief, the petitioner analyzes and develops only the Brady and Adams claims related to James Dickerson and the alleged conflict of interest related thereto. The court, therefore, deems the remaining claims abandoned. See Solek v. Commissioner of Correction, 107 Conn.App. 473, 480-81, 946 A.2d 239 (" The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration"), cert. denied, 289 Conn. 902, 957 A.2d 873 (2008).
The respondent denies the allegations and asserts the special defense of procedural default related to the claim of lost fingerprint evidence. The Court heard the trial of this matter on July 8, 2015. The petitioner presented a number of witnesses and exhibits. The respondent presented no witnesses and no full exhibits.
II
Law/Discussion
" A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States Constitution and by article first, § 8, of the Connecticut Constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). The petitioner has the burden to establish that " (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. 694.
" To satisfy the performance prong, a claimant must demonstrate that 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed . . . by the [s]ixth [a]mendment.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687. It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the " counsel" guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial. Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008).
Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).
When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, 466 U.S. 689. The United States Supreme Court explained:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.(Citation omitted; internal quotation marks omitted.) Id., 689.
Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. 686.
A. Conflict of Interest
The petitioner first claims that trial counsel was burdened by an actual conflict of interest that adversely affected his performance: his prior contacts with James Dickerson. The Court is not persuaded.
" 'The sixth amendment to the United States constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut constitution, guarantee to a criminal defendant the right to effective assistance of counsel.' . . . Santiago v. Commissioner of Correction, 87 Conn.App. 568, 582, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005). 'As an adjunct to this right, a criminal defendant is entitled to be represented by an attorney free from conflicts of interest.' . . . Adorno v. Commissioner of Correction, 66 Conn.App. 179, 194, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001). Thus, '[t]he underlying right to conflict free representation is effective assistance of counsel.' State v. Rodriguez, [61 Conn.App. 700, 706, 767 A.2d 756 (2001)].
" 'In a case of a claimed conflict of interest . . . in order to establish a violation of [his constitutional rights] the [petitioner] has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests and (2) that an actual conflict of interest adversely affected his lawyer's performance.' . . . Phillips v. Warden, [220 Conn. 112, 132-33, 595 A.2d 1356 (1991)]; Anderson v. Commissioner of Correction, 127 Conn.App. 538, 549, 15 A.3d 658 (2011), [aff'd, 308 Conn. 456, 64 A.3d 325 (2013)]. 'Unlike other claims of ineffective assistance of counsel, where a petitioner claims that his counsel's performance was deficient because of an actual conflict of interest, prejudice does not need to be established.' Zollo v. Commissioner of Correction, 93 Conn.App. 755, 757, 890 A.2d 120, cert. denied, 278 Conn. 904, 896 A.2d 108 (2006); see also Phillips v. Warden, supra, 133-34. Instead, '[w]here there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties.' . . . Phillips v. Warden, supra, 133; Anderson v. Commissioner of Correction, supra, 549; see Strickland v. Washington, [466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] ('[p]rejudice is presumed . . . if the [petitioner] demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance' . . .); State v. Vega, 259 Conn. 374, 387, 788 A.2d 1221 (same), cert. denied, 537 U.S. 836, 123 S.Ct. 152, 154 L.Ed.2d 56 (2002)." Hedge v. Commissioner of Correction, 152 Conn.App. 44, 50-51, 97 A.3d 45 (2014). " When only a potential conflict is established, however, the general test applies and resultant prejudice must be proven." (Emphasis in original.) Santiago v. Commissioner of Correction, 87 Conn.App. 568, 583 n.14, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005).
" We have had occasion to point out the caution from the United States Supreme Court that the possibility of conflict is insufficient to impugn a criminal conviction . . . To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest impairment or compromise of his interests for the benefit of another party . . . A mere theoretical division of loyalties is not enough." (Citations omitted, internal quotation marks omitted.) Santiago v. Commissioner of Correction, supra, 87 Conn.App. 584-85.
In the instant matter, the petitioner has failed to establish an actual conflict of interest. First, the record fails to demonstrate underlying counsel " actively represent[ed] competing interests, " e.g., creating reasonable doubt in his representation of the petitioner while attempting to avoid impeaching James Dickerson as a prosecution witness. Second, underlying counsel's conduct surrounding and during the trial, including his blistering and thorough cross examination of James Dickerson, show no indication that his prior contact with, and knowledge of, James Dickerson, adversely affected his representation of the petitioner. " [A]n attorney's line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will not, in hindsight, second-guess counsel's trial strategy." (Internal quotation marks omitted.) Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).
" [C]ross examination is a sharp two-edged sword and more criminal cases are won by not cross examining adverse witnesses, or by a very selective and limited cross examination of such witnesses, than are ever won by demolishing a witness on cross examination." (Internal quotation marks omitted.) State v. Clark, 170 Conn. 273, 287-88, 365 A.2d 1167 (1976). " The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance." (Citation omitted; internal quotation marks omitted.) Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).
In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense, after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . .Martin v. Commissioner of Correction, 155 Conn.App. 223, 227, 108 A.3d 1174, cert. denied, 316 Conn. 910, 111 A.3d 885 (2015).
The petitioner has failed to allege or establish what additional meaningful cross examination could have been conducted by underlying counsel at trial. Additionally, it does not avoid the notice of this Court that underlying counsel's representation of the petitioner and cross examination of James Dickerson contributed mightily, in this Court's estimation, to the petitioner's acquittal on two of the three charges.
Taken as a whole, there is insufficient evidence in the record to establish an actual conflict of interest on the part of underlying counsel or any prejudice related to a potential conflict. Accordingly, this claim fails.
B. Brady Violation/Prosecutorial Impropriety
The petitioner asserts that the prosecuting authority improperly allowed false testimony from James Dickerson regarding his agreement with the state to stand uncorrected for the jury's consideration at his criminal trial in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
" The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness . . . To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal . . . In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 419, 641 A.2d 1356 (1994).
The constitutional violation ultimately claimed by the defendant is the failure of the prosecuting authority to correct false trial testimony, thereby undercutting the related material impeachment evidence at trial. " In Brady v. Maryland, supra, 373 U.S. at 87, 83 S.Ct. 1194, the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Internal quotation marks omitted.) State v. Rivera, 152 Conn.App. 248, 255, 96 A.3d 1285, cert. denied, 314 Conn. 934, 102 A.3d 85 (2014). " To establish a Brady violation, the [defendant] must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [defendant], and (3) it was material [either to guilt or to punishment] . . . Impeachment evidence as well as exculpatory evidence falls within Brady 's definition of evidence favorable to an accused." (Citation omitted; internal quotation marks omitted.) State v. Richard W., 115 Conn.App. 124, 137, 971 A.2d 810, cert. denied, 293 Conn. 917, 979 A.2d 493 (2009); State v. Giovanni P., 155 Conn.App. 322, 342, 110 A.3d 442, 456-57 (2015).
" [E]vidence is not considered to have been suppressed within the meaning of the Brady doctrine if the defendant or his attorney either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence . . . Documents that are part of public records are not deemed suppressed if defense counsel should know of them and fails to obtain them because of lack of diligence in his own investigation." (Citations omitted; internal quotation marks omitted.) United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995); see also State v. Simms, 201 Conn. 395, 407, 518 A.2d 35 (1986) (" any information bearing on . . . credibility as a witness was as available to the defendant as it was to the state, or could have been discovered through reasonably diligent research"); State v. Giovanni P., supra, 155 Conn.App. 343.
" The rules governing our evaluation of a prosecutor's failure to correct false or misleading testimony are derived from those first set forth by the United States Supreme Court in Brady v. Maryland, 373 U.S. 83, 86-87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and we begin our consideration of the respondent's claim with a brief review of those principles. The United States Supreme Court also has recognized that " [t]he jury's estimate of the truthfulness and reliability of a . . . witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Accordingly, the Brady rule applies not just to exculpatory evidence, but also to impeachment evidence; e.g., United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); which, broadly defined, is evidence " having the potential to alter the jury's assessment of the credibility of a significant prosecution witness." (Internal quotation marks omitted.) United States v. Rivas, 377 F.3d 195, 199 (2d.Cir. 2004). " Because a plea agreement is likely to bear on the motivation of a witness who has agreed to testify for the state, such agreements are potential impeachment evidence that the state must disclose. See, e.g., State v. McIntyre, 242 Conn. 318, 323, 699 A.2d 911 (1997)." Adams v. Commissioner of Correction, 309 Conn. 359, 369-70, 71 A.3d 512, 519 (2013).
" Not every failure by the state to disclose favorable evidence rises to the level of a Brady violation. Indeed, a prosecutor's failure to disclose favorable evidence will constitute a violation of Brady only if the evidence is found to be material. 'The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial . . .'" United States v. Bagley, supra, 473 U.S. at 675, 105 S.Ct. 3375. " In a classic Brady case, involving the state's inadvertent failure to disclose favorable evidence, the evidence will be deemed material only if there would be a reasonable probability of a different result if the evidence had been disclosed. Bagley 's touchstone of materiality is a 'reasonable probability' of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A 'reasonable probability' of a different result is accordingly shown when the government's evidentiary suppression 'undermines confidence in the outcome of the trial.'" Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)." Adams v. Commissioner of Correction, supra, 309 Conn. 370-71. " Any . . . understanding or agreement between any state's witness and the state police or the state's attorney clearly falls within the ambit of Brady principles . . . An unexpressed intention by the state not to prosecute a witness does not." (Citation omitted.) Walker v. Commissioner of Correction, 103 Conn.App. 485, 493, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007).
In the instant matter, the Court finds that the petitioner has failed to establish, based on the whole record, that false testimony from James Dickerson regarding a plea agreement remained on the record uncorrected for the consideration of the factfinder. Conversely, this Court finds, as did both the Appellate and Supreme Courts when describing the nature of James Dickerson's testimony, that " Dickerson testified at the defendant's trial that he had come forward with this information in the hope of getting favorable consideration on his pending drug charges, " State v. Walker, supra, 147 Conn.App. 4-5, and that " Dickerson denied that he had received any promises in exchange for his testimony but acknowledged that he hoped to get favorable treatment from the state on pending narcotics charges." State v. Walker, supra, 319 Conn. 670. This Court finds the aforementioned descriptions to be an accurate representation of the nature of the agreement between the witness and the prosecuting authority.
Taken as a whole, the record clearly demonstrates that the prosecuting authority and underlying counsel were both aware of the nature of the agreement between the witness and the state. Although the witness attempted to parse the meaning of certain terms, including " promise, " " consideration" and " deal, " any failure to immediately correct isolated instances of dissembling by James Dickerson do not constitute a material violation of Brady, as such instances were subsequently corrected by both the prosecuting authority and underlying counsel. Additionally, the petitioner adduced no evidence at the habeas trial to suggest that the agreement between the witness and the prosecuting authority was other than that previously disclosed to underlying counsel. Finally, this Court does not find it reasonably probable that the trial testimony of James Dickerson negatively affected the underlying verdict. Accordingly, this claim fails.
III
Conclusion
For the foregoing reasons, the petition is denied. Judgment shall enter for the respondent.