Abrahams v. Warden

Full title: David Abrahams #241224 v. Warden

Court: Superior Court of Connecticut

Date published: Jul 12, 2017

CV144006053S (Conn. Super. Ct. Jul. 12, 2017)

Opinion

CV144006053S

07-12-2017

David Abrahams #241224 v. Warden

Vernon D. Oliver, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Vernon D. Oliver, J.

The petitioner, DAVID ABRAHAMS, initiated this fourth petition for a writ of habeas corpus, claiming that both his first habeas appellate counsel, second and third habeas counsel provided him ineffective legal representation. He seeks an order of this court vacating his convictions, restoring the matter to the criminal docket for further proceedings and ordering his release. The respondent denies the claims. Based upon the evidence adduced at trial, the court finds the issues for the respondent and denies the petition.

I

Procedural History

The petitioner was originally charged in State of Connecticut v. David Abrahams, docket number DBD-CR00-0110691-S and D03-CR97-0131949-T, in the Danbury Judicial District. On October 21, 2001, the petitioner was convicted of attempt to commit murder; criminal possession of a firearm; commission of a B felony with a firearm; and a violation of probation. On December 7, 2001, the trial court, White, J., imposed a total effective sentence of fifty-one years of incarceration, followed by nine years special parole. The petitioner was represented at trial by attorney Joseph Romanello.

The Appellate Court affirmed the judgment on appeal. State v. Abrahams, 79 Conn.App. 767, 831 A.2d 299 (2003). The petitioner was represented by attorney Lisa Steele.

The petitioner's first writ for a petition of habeas corpus, CV02-0461618, was denied by the court, Demayo, J., after trial. The petitioner was represented by attorney Bruce McIntyre. The appeal, A.C. 26832, was withdrawn. The petitioner was represented by attorney John Drapp.

The petitioner's second habeas petition, CV04-4000012, wherein the petitioner was represented by attorney Salvatore Adamo, was denied by the court, Swords, J., after trial. The appeal, A.C. 29965, wherein the petitioner was represented by attorney Matthew Collins, was dismissed.

The petitioner's third habeas petition, CV10-4003316, wherein the petitioner was represented by attorney Justine Miller, was denied by the court, Sferrazza, J., after trial. The appeal, A.C. 35248, was dismissed. The petitioner was represented by attorney Heather Golias. The Connecticut Supreme Court, SC 130403, denied the certification to appeal.

In this fourth petition for a writ of habeas corpus, the petitioner claims that his right to effective legal representation related to his first habeas appeal was denied because attorney Drapp withdrew said appeal. He claims that, absent attorney Drapp's alleged ineffectiveness, his appeal would have been successful, his first petition would have been granted and he would have received a new trial. At closing argument, the petitioner requested relief in the form of having his appellate rights restored.

II

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.

III

Attorney Drapp

The petitioner asserts that attorney Drapp, his assigned first habeas appellate counsel, was ineffective in withdrawing the appeal. The credible evidence supports this court's conclusion that this unequivocal order came from the petitioner. The petitioner now asserts in closing argument that counsel was under an obligation to inform the petitioner that he could have proceeded with the appeal as a self-represented litigant.

It is now established that: " [a] criminal defendant's right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States Constitution and by article first, § 8, of the Connecticut Constitution. See, e.g., Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); In re Christina M., 280 Conn. 474, 489, 908 A.2d 1073 (2006)." Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203 (2008), cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

To succeed on a claim of ineffective assistance of appellate 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). Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000). " Strickland requires that a petitioner satisfy both 'a " performance prong" and a " prejudice prong." The claim will succeed only if both prongs are satisfied.' Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom, Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006)." Small v. Commissioner of Correction, supra, 286 Conn. 713.

" In order to satisfy the performance prong, the petitioner must show that appellate counsel's representation fell below an objective standard of reasonableness considering all of the circumstances." (Internal quotation marks omitted.) Santaniello v. Commissioner of Correction, 152 Conn.App. 583, 587, 99 A.3d 1195 (2014).

For claims of ineffective assistance of appellate counsel, the habeas court must determine " whether there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial . . . [T]o determine whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily analyzes the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm." Small v. Commissioner of Correction, supra, 286 Conn. 722; Moody v. Commissioner of Correction, 127 Conn.App. 293, 301, 14 A.3d 408 (2011); see also Smith v. Robbins, supra, 528 U.S. 285.

Although subject to habeas review, claims related to appellate counsel's failure to raise a particular nonfrivilous claim are difficult to establish. The United States Supreme Court in Smith v. Robbins, supra, 528 U.S. 288, explained: " In Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), we held that appellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal. Notwithstanding Barnes, it is still possible to bring a Strickland claim based on counsel's failure to raise a particular claim, but it is difficult to demonstrate that counsel was incompetent."

The Connecticut Supreme Court has found similarly with respect to assessing habeas claims against appellate counsel. " The right to counsel is not the right to perfect representation . . . [Although] an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions . . . Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues . . . Most cases present only one, two, or three significant questions . . . The effect of adding weak arguments will be to dilute the force of the stronger ones . . . Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation." (Internal quotation marks omitted.) Bailey v. Commissioner of Correction, 107 Conn.App. 362, 366-67, 947 A.2d 2, cert. denied, 287 Conn. 922, 951 A.2d 568 (2008). Johnson v. Commissioner of Correction, supra, 131 Conn.App. 808-9. " It is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment." Valeriano v. Bronson, 209 Conn. 75, 87, 546 A.2d 1380 (1988). See also, Vivo v. Commissioner of Correction, 90 Conn.App. 167, 172, 876 A.2d 1216, cert. denied, 275 Conn. 925, 883 A.2d 1253 (2005).

In the instant matter, the petitioner, John Drapp and Justine Miller testified. The court finds that the petitioner has failed to establish prejudice in that it was not constitutionally defective representation for attorney Drapp to withdraw the appeal on orders from the petitioner. Counsel testified that he likely advised the petitioner as to options other than withdrawal. Additionally, the petitioner has failed to establish prejudice in that he has failed to demonstrate a reasonable probability that, but for the withdrawal, the petitioner would have prevailed in his direct appeal. He has also failed to demonstrate that, but for appellate counsel's failure to raise the several vague and bare-bones issues listed by the petitioner at the instant trial, he would have succeeded on appeal, i.e., reversal of his conviction or granting of a new trial. Finally, the petitioner has failed to identify, articulate or analyze a potentially stronger appellate issue that counsel failed to pursue. Accordingly, the claim fails.

IV

CONCLUSION

For the foregoing reasons, the court denies the petition for writ of habeas corpus. Judgment shall enter for the respondent.