Opinion
CV124004336S
12-08-2017
Geovanny ZILLO v. WARDEN, STATE PRISON
UNPUBLISHED OPINION
OPINION
Sferraza, J.
The petitioner, Geovanny Zillo, seeks habeas corpus relief from a total, effective sentence of thirty years imprisonment, suspended after fifteen years, and fifteen years probation, imposed after a jury trial, for the crimes of three sexual assaults first degree, attempted sexual assault first degree, and four counts of risk of injury to a minor. The Appellate Court affirmed the judgment of conviction on direct appeal, State v. Zillo, 124 Conn.App. 690 (2010).
The petitioner asserts that his criminal defense counsel, Attorney Jerry Attanasio, provided ineffective representation in his criminal case. The petitioner withdrew a claim of ineffective assistance of appellate counsel during the habeas trial, as well as several specifications of ineffectiveness against Attorney Attanasio.
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, that his attorney’s performance was substandard and that there exists a reasonable likelihood that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that habeas counsel’s representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra.
This standard of reasonableness is measured by prevailing, professional practices. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel’s conduct from that attorney’s perspective at the time of the representation. Id.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel’s competence. Pelletier v. Warden, 32 Conn.App. 38, 46 (1993). In order to satisfy the prejudice prong of Strickland test, the petitioner must prove that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640 (1985). Reasonable probability means a probability sufficient to undermine confidence in the outcome. Daeira v. Commissioner, 107 Conn.App. 539, 542-43 (2008), cert. denied, 289 Conn. 911 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id. Thus, the failure of the petitioner to establish, by a preponderance of the evidence the allegations against trial counsel, or the requisite prejudice will defeat a claim for habeas corpus relief in the present action.
Specifically, the petitioner alleges that Attorney Attanasio rendered ineffective legal assistance by failing to move for a Franks hearing; by failing to raise a statute of limitations defense; by failing to pursue a motion to suppress evidence seized as a result of a search of the petitioner’s residence; by failing to object to inflammatory language in a substitute information; by failing to consult with and/or present the testimony of a mental health expert in the field of child sexual abuse; by failing to obtain and review the victim’s school, Department of Children and Families, and health records; by failing to present defenses of innocent, alternative explanation or third-party culpability; by failing to cross examine the victim competently; by failing to call Janice Collela as a defense witness; by failing to prepare and/or advise the petitioner regarding testifying at his criminal trial; by failing to object to the prosecutor’s threat to impeach the petitioner with previously undisclosed information; and generic claims of insufficient trial preparation, investigation, and/or presentation.
The Appellate Court concisely summarized the criminal trial evidence supporting the jury’s verdicts:
" The family of the eleven-year-old victim in this case, all of whom emigrated to the United States from China, owned a Chinese restaurant that the defendant frequented during 1998 and early 1999. During this time, the defendant became friendly with the victim and her family, often assisting the children with their homework and with the English language. The defendant was invited to family gatherings and holiday celebrations, and he purchased several gifts for the family, including a computer for the children and a $500 translator. The victim’s parents eventually became concerned about the attention that the defendant was showing the victim, especially his attempts to speak with her privately, and the family told the defendant that he no longer was welcome at the restaurant. Accordingly, the defendant stopped going to the restaurant.
After the defendant stopped going to the restaurant, he began to follow the victim and to pick her up as she waited for the bus to take her to school. The defendant would take the victim to a house where he would sexually assault her. He also took her to a wooded area to take photographs of her, and he took her to a McDonald’s restaurant. The victim testified that the defendant, whom she called G-Bunny, repeatedly sexually assaulted her when she was eleven years old. The defendant made the victim remove her clothing, kissed her breasts, performed oral sex on her, digitally penetrated her vagina and her anus, licked her anus, made her hold his erect penis in her hand, made her urinate into his mouth so that he could taste her urine to see if it was as " sweet" as she and attempted to make her perform oral sex on him. The defendant instructed the victim not to tell anyone about his behavior, and he told her that he wanted to marry her. He also gave her money. In 2005 and 2006, the defendant established an account on the social web site Myspace.com (MySpace) using the name AnnaLuckyOne, where he purported to be an Asian female and included a photograph of an unknown Asian female on his profile. He soon contacted the victim, who also had a MySpace account, and he attempted to establish a relationship with the victim by telling her that he was a young Asian girl. The defendant, acting as this young Asian girl, subsequently told the victim that the defendant was AnnaLuckyOne’s friend and asked if she would be willing to resume a friendship with him. Suspicious that her new friend really was the defendant and not another young Asian female, the victim panicked and went to see her school counselor and her dormitory parent in whom she confided that the defendant previously had sexually assaulted her. Soon thereafter, the victim filed a police report, and a warrant was issued for the defendant’s arrest." State v. Zillo, supra, 692-93.
Lack of Franks Hearing Motion
The petitioner contends that Attorney Attanasio was deficient for failing to move for a hearing under the procedure and principles set forth in Franks v. Delaware, 438 U.S. 154 (1978), in order to attack the validity of the arrest warrant, dated May 30, 2006, which authorized the petitioner’s apprehension. This specification of ineffective assistance fails for multiple reasons.
First, the legitimacy of a conviction remains intact despite the fact that the arrest warrant application that initiated the criminal proceeding lacked probable cause, State v. Fleming, 198 Conn. 255, 257-63 (1986); overruling, State v. Licari, 153 Conn. 127 (1965). That is, an unlawful arrest does not require dismissal of criminal charges, unless that illegality impaired the fairness of a subsequent trial, State v. McIver, 201 Conn. 559, 563 (1986). The fairness of a prosecution stemming from an illegal arrest impairs fairness " only where evidence obtained as a direct consequence of that arrest is admitted against the defendant at trial, " Id., (emphasis in original).
In the petitioner’s case, the salient evidence seized by the police was pursuant to a search warrant which predated the issuance and execution of the arrest warrant. That evidence included the petitioner’s laptop computer, an external hard drive, and photographs of the petitioner’s car and home. Also, the police interviewed the petitioner in conjunction with execution of the search warrant, and the petitioner revealed certain information used against him at his trial.
Because the police obtained this evidence before his arrest, any defects relative to the arrest warrant had no bearing on the admissibility of the previously acquired evidence so as to taint the fairness of his criminal trial.
Secondly, in order for Attorney Attanasio to seek a Franks hearing, he needed to harbor a good faith belief that he could present a substantial showing that the police affiants intentionally submitted a false or misleading arrest warrant application, or did so with reckless disregard, as to material matters pertinent to a probable cause determination by the issuing authority, State v. Grant, 286 Conn. 499, 519-20 (2008). The petitioner makes no claim that the arrest warrant affidavit contained false statements, Rather, he submits that relevant information was intentionally or recklessly left out in order to mislead the judge.
The court finds that the petitioner adduced no credible evidence to demonstrate intentional or reckless omission of material facts by the police or prosecutor. " To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory and must be supported by more than a mere desire to cross-examine, " Franks v. Delaware, supra, 171. " Allegations of negligence or innocent mistake are insufficient, " Id. The deliberate falsity or reckless disregard for truth must be on the part of the affiants themselves and cannot rest on proof of such misconduct by nongovernmental witnesses, Id.
In the amended petition, the petitioner alleges that the police utilized an abridged version of the internet exchanges between the petitioner and the victim which omitted, in his opinion, information regarding the victim’s apparent ignorance of the meaning of the phrase " great water" as used in their communications. The petitioner also faults the affiants’ use of irrelevant, unreliable, and unsubstantiated innuendo that the petitioner had also abused other victims. As discussed above, a Franks hearing is warranted only where a substantial preliminary showing of intentional or reckless falsity is employed. Attorney Attanasio had no good faith basis for seeking such a hearing.
Thirdly, even if that criterion had been satisfied, a Franks hearing is only required if the correction of the misleading information would deprive the affidavit of sufficient facts to establish probable cause. In other words, if the unsullied portions of the affidavit still justify a finding of probable cause, no hearing is warranted, Franks v. Delaware, supra, 172; State v. Grant, supra, 520.
A review of the arrest warrant affidavit shows an abundance of incriminating evidence against the petitioner even if one considers the information that the petitioner argues was missing. The victim personally described in great detail to the police the various sexual, predatory, and injurious acts performed by the petitioner. The petitioner’s own statement admitted engaging in a ruse to entice the victim to communicate with him, albeit unknowingly. The petitioner’s criticisms of the affidavit appear trivial and inconsequential toward the finding of probable cause. The petitioner cannot prevail based on this specification of ineffective assistance.
Statute of Limitations Defense
Under the pertinent part of General Statutes § 54-193a, in effect at the time of the petitioner’s arrest, the criminal prosecution of the petitioner needed to begin within five years of when the victim personally n otified " any police officer or state’s attorney acting in [their] official capacity of the commission of the offense." The petitioner contends that Attorney Attanasio ought to have attempted to demonstrate that such notification occurred in 1999, which was more than five years before his arrest in 2006. The petitioner premises his contention on his testimony at the habeas trial that he was stopped and ticketed for motor vehicle violations on March 11, 1999, and police officers engaged, on that occasion, in a two-hour interrogation of him while he remained in his car. He swears the officers told him that the lengthy questioning concerned allegations by the victim’s family that he had sexually abused her. He identified the officers as Woodbury police officers Howard Northrup and Dana Lent and Trooper Richard Binkowski of the state police.
Former officers Northrup and Lent testified at that habeas trial that they had no recollection of lengthy interrogation of the petitioner on the date Officer Northrup issued the petitioner a traffic ticket. Trooper Binkowski also testified that he never interacted with the petitioner at all on March 11, 1999. He also refuted the petitioner’s testimony that the victim’s family had accused the petitioner of sexual abuse of the victim in 1999 and avowed that he had no such knowledge from any source in 1999.
The victim testified at the petitioner’s criminal trial that she never spoke to any law enforcement personnel about the petitioner until 2006 when she discovered that the petitioner had posed as a young Asian girl on MySpace to contact her.
The court finds that the petitioner has failed to meet his burden of proving that, had Attorney Attanasio raised such a statute of limitations defense, there exists a reasonable likelihood of acquittal. The court disbelieves his testimony on this issue, and Attorney Attanasio’s habeas testimony confirms that the petitioner never told him the police accused him of sexually assaulting the victim during the traffic stop in 1999. Instead, the petitioner told his attorney that the police officers cautioned him that the victim’s family wanted him to stay away from their place of business, the victim, and their family.
Even if the court were to credit the petitioner’s testimony as to the traffic stop, which the court expressly does not, such evidence would be insufficient to implicate the running of the statute of limitations under § 54-193a. In order to trigger the start of the five-year period under § 54-193a, a defendant needs to establish, by a preponderance of the evidence, that the eleven- or twelve-year-old victim directly and personally reported to a law enforcement official the petitioner’s alleged misconduct, State v. George J., 280 Conn. 551, 564-65 (2006). Our Supreme Court clearly held in that case that the five-year limitation does not commence " when a parent or other legal representative of a minor victim notifies the police or state’s attorney of the abuse, " Id., 565. " We conclude that the limitation period commences only when the actual victim notifies the specified authorities, " Id., 565-66 (emphasis added).
The only evidence as to when the victim actually and personally notified the requisite authorities came from the victim, and, as recounted above, she avowed that that occurred in 2006. Consequently, the petitioner has failed to prove either prong of the Strickland standard as to this allegation.
Search of Residence
The petitioner never offered the search warrant allowing intrusion into the petitioner’s home in evidence at the habeas trial. The petitioner’s legal expert, Attorney Theodore Koch, III, had no criticism as to the performance of Attorney Attanasio on this ground. Nor was other pertinent and credible evidence adduced concerning this issue. The court finds that the petitioner cannot prevail as to this specification of ineffectiveness for lack of persuasive evidence as to either component of the Strickland test.
Inflammatory Information Language
The petitioner also submits that Attorney Attanasio incompetently failed to object to the filing and reading to the jury of a substituted information that improperly contained inflammatory details. The court has reviewed the transcript of the recitation of the allegations of that information and determines that the challenged language was unnecessarily inflammatory as to only one count.
Initially, the state charged the petitioner with eight counts of risk of injury to a minor, two counts of attempted sexual assault first degree, and five counts of sexual assault first degree. It was appropriate and pragmatic for the prosecutor to lay out sufficient details of each purported crime in order to distinguish which counts pertained to which acts by the petitioner. This specificity delineated for the defense, the judge, and the jurors these distinctions, allowed sufficient notice, and avoided a claim of duplicative charging. The allegations against the petitioner comprised compelling the eleven- or twelve-year-old victim to pose for provocative photographs, sexual contact, voyeurism, disrobing the victim, digital penetration, cunnilingus, and urination. The level of detail was especially necessary because the date of all the offenses was the same, namely within the range of " late 1998 and to early 1999."
At the conclusion of the evidence, just before the court was to hear and decide a motion for judgment of acquittal, the state withdrew seven counts. The precise descriptions contained in each count certainly facilitated the proceedings at that juncture in the trial and afforded usable knowledge as to which counts, alleging which misconduct, remained.
It strikes the court that the sole superfluous and potentially inflammatory depiction appeared in the fourth count (as originally denominated). That allegation averred that the petitioner disrobed the eleven- or twelve-year-old victim. However, that count unnecessarily particularized one of the removed garments as " white Winnie-the-Pooh underwear."
This reference to an endearing and enduring character from children’s literature had the potential to dramatize and emphasize the victim’s naivete, vulnerability, and preteen status. Perhaps, jurors would view this alleged misconduct as more despicable than a less graphic description and one less reminiscent of loss of innocence at the hands of the person charged with such an action. However, under the particular circumstances of this case, the presence of the extraneous language was harmless.
This is so because the Winnie-the-Pooh theme had evidentiary significance beyond mere embellishment. The evidence permitted an inference that the petitioner knew that the victim fancied anything related to Winnie-the-Pooh and that he exploited that fondness by giving the victim gifts of that genre. The victim also testified that the petitioner had a predilection for removing the Winnie-the-Pooh underwear from the victim and retaining it. Thus, the type of underwear the victim wore appeared to play some perverse role in the petitioner’s feelings and behavior toward the victim.
Although the fourth count of the information could have set forth a viable allegation of crime without reference to the style of underwear removed by the petitioner from the victim, the jury would eventually have learned of that circumstance during trial. The superfluous description contributed little, therefore, by way of tainting the juror’s assessment of the facts of the case, and there is no reasonable likelihood that the outcome of the criminal trial would have been more favorable but for that extraneous language. This specification of ineffective assistance also fails.
Failure to Consult with Child Sexual Assault Expert
Next, the petitioner contends that Attorney Attanasio was delinquent for failing to consult with and/or present the testimony of a child sexual abuse expert. The petitioner presented no such evidence at his habeas trial, either. The case is bereft of any factual support that, but for such expertise, advice, and opinion, there exists a reasonable probability that the outcome of the criminal case would have been different. This specification also remains unproven.
Victim’s School and Health Record
The petitioner was unable to produce any salient records at the habeas trial regarding the victim’s attendance or tardiness at school to undermine her testimony that she sometimes arrived late for school because of the petitioner’s crimes. Nor were the victim’s health records produced at the habeas trial to show that material contained in such records might have had a bearing on an evaluation of the victim’s credibility. In the absence of such evidence, the court finds that the petitioner has failed to prove either prong of the Strickland test.
Failure to Call Janice Collela to Testify
The petitioner avers that Attorney Attanasio ought to have called his godmother, Janice Collela, as a defense witness at his criminal trial. Again, the petitioner never called Ms. Collela to testify at the habeas trial. It is incumbent upon the petitioner to establish the ways in which defense counsel’s failure to present a witness negatively affected the pertinent proceeding, Henderson v. Commissioner, 129 Conn.App. at 188, 195 (2011). " [P]rejudice cannot be demonstrated with regard to trial counsel’s failure to interview potential witnesses where petitioner fails to call those witnesses to testify at the habeas trial or offer proof that their testimony would have been favorable to him at the criminal trial, " id.; Antwon W. v. Commissioner, 172 Conn.App. 843 (2017).
The petitioner’s case lacks any evidence supplying this missing information, therefore he cannot prevail as to these allegations of neglectful representation because he has failed to prove the prejudice prong under Strickland.
Alternative Explanation and/or Third-Party Culpability
The petitioner alleges that Attorney Attanasio was deficient for failing to present evidence and argument regarding innocent explanation for the petitioner’s purported illicit actions upon the victim and/or third-party culpability. These allegations are meritless.
The victim’s testimony was graphic and definitive regarding digital penetration, cunnilingus, the stripping of her clothes by the petitioner, and his desire to taste her urine. The victim was eleven or twelve years old when this misconduct occurred and an adult when she testified. It is unlikely an older child would misconstrue the specific acts she described, and the petitioner did not occupy any supervisory status regarding the victim. Misinterpretation was beyond cavil.
Also, any argument that the victim was confused as to the identification of her abuser was feckless. The petitioner was a well-known family friend who spent many hours lingering at the family’s restaurant when the victim was present. He gave the victim several gifts and money, and they often cleaned the restaurant aquarium together. The only plausible defense had to be one of false accusation.
This tack was precisely the course taken by Attorney Attanasio. That strategy cannot be faulted as it is pellucid that the defenses of innocent alternative explanation and third party culpability were spurious.
Cross Examination of the Victim
The petitioner submits that Attorney Attanasio’s cross examination of the victim was substandard. The court’s review of that cross examination leads the court to conclude otherwise.
As noted above, the victim’s testimony, and the petitioner’s admission of posing as a young Chinese girl on MySpace to deceive the victim into unwittingly communicating with him through use of that fraudulent identity, compelled the defense to attempt to create reasonable doubt by attacking the victim’s credibility. The petitioner’s legal expert, Attorney Koch, opined that Attorney Attanasio ought to have eschewed a direct challenge to the victim while on the witness stand lest the jurors’ sympathy be aroused against defense counsel and his client. Attorney Koch suggested that a better approach would focus on the victim’s late disclosure and the statute of limitations issue. Attorney Koch never expressly stated that Attorney Attanasio’s cross examination of the victim fell below acceptable defense practice. Rather, he characterized a direct attack on the victim’s truthfulness as not a good idea.
The court finds that the state of the case was such that Attorney Attanasio really had no reasonable route but to try to undermine the victim’s believability as he attempted to do in his questioning of her. As determined earlier, the statute of limitations defense was very weak because the police and the victim and her family all testified at the criminal trial or habeas trial that the victim never notified the requisite authorities of the alleged crimes until 2006. No documentary proof corroborated the petitioner’s supposition that such notification must have occurred because of the inquisition he underwent during the 1999 traffic stop.
The court’s assessment of Attorney Attanasio’s cross examination of the victim is that it was thorough and well-executed. Attorney Attanasio brought out the lengthy delay between the criminal acts alleged and the victim’s report to others years later. He elicited that the victim never sought succor from family or friends or altered her activities to avoid encountering the petitioner about whom she expressed great fear. He also pointed out that her memory fell short as to certain events, her testimony was inconsistent on some topics, and that her description of the petitioner’s home was inaccurate in some ways.
Attorney Koch took umbrage with the circumstance that Attorney Attanasio may have shouted at the victim. His belief was based on an objection by the prosecutor. However, the trial judge never admonished Attorney Attanasio on that basis and, in fact, he directed the victim to answer the question posed.
The court finds that Attorney Attanasio’s cross examination of the victim was a tactical approach that fell well within the broad spectrum of competent advocacy. There is a presumption in ineffective assistance cases that counsel’s tactical decisions embrace " sound trial strategy, " in the absence of contrary evidence. Streater v. Commissioner, 143 Conn.App. 88, 107 (2013). Unsuccessful tactical decisions which are the result of the reasonable exercise of professional judgment will still constitute effective assistance despite the unfavorable outcome, Stephen S. v. Commissioner, 94 Conn.App. 288, 296 (2006).
The court concludes that the petitioner has also failed to satisfy his burden of proving deficient performance as to this specification of ineffective assistance.
Petitioner’s Decision Not to Testify
The petitioner declined to testify in his own defense. He now contends that he always wanted to testify, but Attorney Attanasio’s poor preparation and advice misguided him. Additional facts will help address this claim.
Exposing the petitioner to cross examination was always fraught with peril. The petitioner admitted contriving a false internet identity to trick the victim into unknowingly engaging with him in an exchange of messages. It must be recalled that he deployed this ruse in 2006, years after the alleged crimes. His explanation for concocting this connection with the victim, who was then of age to consent, was that he was trying to discover why she may have made sexual abuse allegations about him years earlier. Attorney Attanasio recognized that this excuse, as well as others, strains credulity. The lack of corroborating evidence rendered it even more improbable.
The petitioner’s explanation for the victim’s accusations was similarly preposterous. He contends that the victim’s parents must have sought revenge against him for his refusal, in 1999, to enter a marriage of convenience to allow a relative to come to the United States from China. Why the victim’s family would postpone retaliation to 2006 remains unexplained. Why the victim would agree to participate in the effort to frame the petitioner, years later, also defies commonsense.
Attorney Attanasio expended many hours attempting to prepare the petitioner to take the witness stand. The petitioner conceded that he and Attorney Attanasio discussed this subject until about 3:30 a.m., the day he was scheduled to testify. Attorney Attanasio testified that he reviewed direct examination and all anticipated areas of cross examination with the petitioner. Attorney Attanasio repeatedly urged the petitioner to present evidence concerning anatomical peculiarities with respect to the petitioner’s genitalia about which the victim had never mentioned to anyone or in her testimony. Attorney Attanasio felt this lapse would be the strongest evidence that the victim fabricated her allegations of sexual abuse.
The petitioner adamantly refused to testify regarding this bodily feature. He refused to allow his genitalia to be photographed. Attorney Attanasio suggested that the petitioner have a urologist examine him and testify about the petitioner’s physiology. The petitioner refused to participate in this procedure, also.
Attorney Attanasio stressed that the decision to testify was the petitioner’s alone to make. Attorney Attanasio acknowledged that having the petitioner testify was problematic for the reasons noted above regarding his flimsy explanations. Defense counsel could not recall whether ultimately he advised the petitioner to testify or not. However, Attorney Attanasio was certain that the petitioner was very opposed to testifying. The court finds this testimony credible.
Events of the next day, however, intervened and solidified the petitioner’s reluctance to take the stand. The prosecutor alerted Attorney Attanasio that he possessed a CD that contained several photographs which the prosecutor planned to use in cross examination of the petitioner. The state’s attorney gave a copy to Attorney Attanasio. Defense counsel was unable to open the documents on the CD, but discussed the prosecutor’s description with the petitioner. The petitioner chose not to testify.
The trial judge diligently canvassed the petitioner concerning his decision. The petitioner acknowledged that he understood that the choice was his to make, that he had discussed the options with Attorney Attanasio, and that defense counsel had advised him as to the risks and benefits attendant to each option.
The petitioner testified at the habeas trial that he wished to testify at his criminal trial, but that Attorney Attanasio advised him otherwise. That advice entailed discussion of the prosecutor’s disclosure regarding the CD. Eventually, the petitioner capitulated to his attorney’s advice.
The court credits the testimony of Attorney Attanasio and disbelieves that of the petitioner as to this controversy. The petitioner resisted taking the witness stand, and the possible use of the CD finalized his decision. The CD was said to contain several photographs.
The petitioner asserts that Attorney Attanasio should have refrained from advising the petitioner until he personally examined the contents of the CD instead of relying on the prosecutor’s description. Also, the petitioner contends that defense counsel ought to have objected to the prospective use of the contents of the CD by the prosecutor during cross examination.
No one offered the CD into evidence at the habeas trial nor proffered other evidence as to its contents. The absence of knowledge of the contents reduces the petitioner’s argument as to any prejudice to mere conjecture. Assuming, arguendo, that Attorney Attanasio acted deficiently by advising the petitioner without personally reviewing the CD, the court does not find that the lack of that personal knowledge created a reasonable probability of a more favorable outcome.
First, the court had already found that the petitioner never wanted to testify, and the court cannot find that the petitioner’s decision would have been in favor of testifying except for the threatened use of the CD during cross examination. Second, the contents of the CD may very well have been exactly as the prosecution implied. Third, without evaluating the contents, this court cannot assess whether any objection to the prosecutor’s use of the CD during cross examination would have a reasonably likelihood of success. It is far more probable that, since the prosecutor availed Attorney Attanasio of a copy of the CD beforehand, that the material recorded on the CD would have been grist for cross examination, see Practice Book (2008) § 40-11(a)(20).
The court concludes that the petitioner has failed to satisfy the prejudice component of the Strickland standard as to this specification.
Unspecified Claims of Ineffective Assistance
Generic allegations of lack of adequate preparation, investigation, and representation fail to serve the basic purposes of pleading to notify the adverse party and the court of the specific ground of a claim and provide a means of establishing whether a claim has been adjudicated. Each pleading should " contain a plain and concise statement of the materials facts" and " fully disclose the ground of [the] claim ..." Practice Book (2008) § 10-1.
The court cannot discern from such a statement what it is that defense counsel did or did not do competently. Such general charges cannot be utilized as a wild card to seek adjudication of any issue regarding defense counsel’s performance. The petitioner, therefore, cannot prevail by recourse to such vague statements. For these reasons, the court denies habeas corpus relief.