Opinion
TSRCV104003316S.
11-13-2012
David ABRAMS v. WARDEN, STATE PRISON.
UNPUBLISHED OPINION
SFERRAZZA, J.
The petitioner, David Abrams, was convicted, after a jury trial, of attempted murder; assault first degree; criminal possession of a firearm; and commission of a Class A, B, or C felony with a firearm. For these crimes, and a violation of probation, the petitioner received a total, effective sentence of fifty-one years imprisonment. The convictions were upheld on direct appeal, State v. Abrahams, 79 Conn.App. 767 (2003).
This petition is the third habeas corpus action pursued by the petitioner in an attempt to overturn his convictions and sentence. His first petition asserted that his defense counsel, the late Attorney Joseph Romaniello, rendered ineffective assistance several ways. This petition was denied, Abrahams v. Commissioner, Superior Court, New Haven, J.D., d.n. CV 02-0461618 (February 25, 2005), DeMayo, J.T.R.
The second petition claimed that Attorney Romaniello; appellate counsel, Attorney Lisa Steele; and previous habeas counsel, Attorney Bruce McIntyre, all provided ineffective assistance. This petition was also denied, Abrams v. Warden, Superior Court, Tolland J.D., CV 04-4000112 (April 7, 2008), Swords, J. This denial was affirmed on appeal, Abrams v. Commissioner, 119 Conn.App. 414 (2010).
The present habeas corpus petition is based on the purported ineffective assistance of Attorney Salvatore Adamo, who represented the petitioner for his second habeas case, as well as appellate counsel, Attorney Steele. A claim regarding sentence review was granted by agreement previously.
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, both that his attorney's performance was substandard and that there exists a reasonable probability that, but for counsel's deficient representation, the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra. This standard of reasonableness is measured by prevailing, professional norms. 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. With respect to ineffectiveness of previous habeas counsel, the petitioner must prove both (1) that his habeas counsel was ineffective and (2) that his trial or appellate counsel in his criminal case were ineffective, Harris v. Commissioner, 126 Conn.App. 453, 457 (2011).
Specifically, the petitioner alleges that Attorney Adamo failed to present expert testimony to support the claims of ineffective assistance of defense counsel, appellate counsel, and earlier habeas counsel; that Attorney Adamo failed to introduce pertinent portions of transcripts to support these allegations; that he failed to litigate trial counsel's failure to object to a jury instruction on mistaken identity; and that he failed to assert a double jeopardy argument with respect to consecutive sentences for attempted murder and assault first degree. As for appellate counsel, the petitioner alleges that Attorney Steele failed to file a petition for certification to appeal to our Supreme Court from the adverse decision of the Appellate Court.
Ineffective Assistance Claims Re Habeas Counsel
Three witnesses testified in the present habeas case, viz. Attorney McIntyre, Attorney Steele, and the petitioner. As to the performance of Attorney Steele, there is no useful purpose to go beyond stating that no credible evidence was adduced supporting any allegation of substandard representation by previous habeas counsel Adamo as to Attorney Steele. The petitioner produced no expert witness who criticized the professional performance of any lawyer who is the subject of the petitioner's present ineffective assistance claims.
The only remotely colorable issue that the court discerns from the evidence concerns Attorney Steele's decision to refrain from petitioning for certification for review of the Appellate Court's decision in State v. Abrahams, supra. That issue is addressed below with respect to the petitioner's present ineffective assistance claim against Attorney Steele directly.
As to the remaining specifications of ineffective assistance by Attorney Adamo, the petitioner has failed to meet his burden of proving, by a preponderance of the evidence, that habeas counsel's representation was deficient in any of the ways alleged.
Also, as to the prejudice prong of Strickland, the petitioner failed to prove, by a preponderance of the evidence, that the outcome of his criminal trial was affected by the purported substandard representation of counsel. The Appellate Court state that " the case against the [petitioner] was very strong, " State v. Abrahams, supra, at 781-82. That Court characterized the criminal trial as having produced " overwhelming evidence of the [petitioner's] guilt, " Id.
J.T.R. DeMayo observed that trial counsel Romaniello, " was confronted with a strong case favoring the prosecution, " and that defense counsel engaged in " a diligent and effective effort to make the most of what little counsel had at his disposal, " Abrahams v. Commissioner, CV02-0461618, supra. He concluded that defense counsel " was faced with a near impossible task, immensely burdened by a client with ... a distorted notion that his contrived episodic inventions would overcome the state's ironclad case."
At his second habeas trial, the petitioner conceded on cross examination by the respondent that " the prosecutor had a strong case against him, " Abrams v. Warden, CV04-4000112, supra. Having carefully reviewed the transcript of the criminal trial, the first and second habeas trials, and the decisions of the previous habeas courts and Appellate Court, this court finds that concession to be a gross understatement.
The petitioner cohabited with the victim, on and off, during a five and one-half year relationship, which the Appellate Court described as " volatile, " State v. Abrahams, supra, at 769. The victim testified that, in the days preceding the crimes, the victim and the petitioner had heated arguments concerning her refusal to admit him to her apartment when the petitioner visited their son and also concerning the victim's new boyfriend. In the early evening of November 4, 2000, the victim returned to her apartment in Danbury and saw the petitioner sitting in his car. As she neared her building, the petitioner ran up and grabbed her. The petitioner was armed but the victim managed to break free of his grasp. The petitioner then fired four shots at the victim as she fled and only stopped when his pistol jammed. Three of those bullets struck the victim in her leg, arm, and buttocks. The fourth round lodged in her clothing. Frustrated by his jammed weapon, the petitioner verbally threatened to engage someone to murder the victim. Several witnesses identified the petitioner's vehicle as he sped away from the scene just after the shooting.
It is uncontroverted that the victim was shot three times as noted above. The petitioner's defense at his criminal trial, and the ultimate foundation for all his claims of prejudice deriving from the ineffectiveness of his various lawyers, is that the victim was shot by someone else and the victim used her gunshot wounds as a fortuitous occasion to implicate the petitioner, instead of the real assailant, out of spite.
At his criminal trial, the petitioner testified that he was in Bridgeport at a friend's house throughout the day and evening of the shooting. However, no credible witness corroborated this alibi in the criminal trial or at any later proceeding. The petitioner's phone records demonstrated that he placed several calls to the address at which he claimed to be during the critical time period. During cross examination by the prosecutor the petitioner at first denied making these calls, but when confronted with his phone records, he changed his story. He then claimed that he accidentally damaged his friend's phone and used his own phone to call his friend's number several times to check if his friend's phone was functioning properly.
In light of the petitioner's preposterous testimony and the other evidence at his criminal trial, the court finds that the supposed errors by defense counsel by failing to object to overzealous argument by the prosecutor and inappropriate jury instructions on misidentification by the judge had absolutely no bearing on the outcome of the petitioner's jury trial and determination of his guilt.
Also, the petitioner's claim that his consecutive sentences for attempted murder and assault first degree violated his constitutional right against double jeopardy is plainly wrong, State v. Blocker, 46 Conn.App. 734, 739-40 (1997); State v. Hazel, 106 Conn.App. 213, 225-26 (2008).
Claims Against Appellate Counsel
Attorney Steele purposefully omitted filing a petition for certification to the Connecticut Supreme Court. She made this decision after notifying the petitioner and consulting with Attorney McIntyre, the petitioner's first habeas counsel. She feared that if our Supreme Court consented to hear the appeal from the Appellate Court's affirmation of the convictions, the Supreme Court could very well overturn the Appellate Court's favorable holding that the prosecutor had engaged in improper argument, State v. Abrahams, supra, at 776-80. The Appellate Court decided that in two instances the prosecutor's argument exceeded acceptable commentary, but that Court also determined that the petitioner received a fair, criminal trial despite these improprieties, Id., at 780-82.
The petitioner had initiated the first habeas case while his direct appeal was pending before the Appellate Court. One claim in that habeas case was that his defense counsel, Attorney Romaniello, had failed to object to the prosecutor's inappropriate argument. The Appellate Court listed the absence of objection by defense counsel as one of the reasons why the wrongful comments were not unduly prejudicial, Id. Appellate counsel Steele and habeas counsel McIntyre discussed the possibility that the Supreme Court might hold that the prosecutor's argument was proper and thereby remove a viable specification of ineffective assistance from the habeas claim.
Both Attorneys were aware that the failure to seek certification for review could eliminate a federal habeas claim, but Attorney Steele decided that the tactical benefit of retaining such a ground in the state habeas action outweighed the potential loss of federal review. She opined that a federal habeas petition was unlikely to succeed in any event, and she chose to file a motion for reconsideration with the Appellate Court rather than try to obtain certification from our Supreme Court.
As noted above, the petitioner presented no expert witness to establish that this decision was questionable nor beneath any prevailing professional norm for appellate counsel. An informed and reasonable tactical decision by appellate counsel constitutes effective representation, Mozell v. Commissioner, 87 Conn.App. 560, 568 (2005), cert. denied, 273 Conn. 934 (2005). The petitioner has failed to meet his burden of proving, by a preponderance of the evidence, that Attorney Steele's decision to protect his state habeas claim, with respect to ineffective assistance by trial counsel, rather than take the chance that our Supreme Court's decision might destroy that ground, was deficient. Consequently, habeas counsel was also not ineffective for declining to raise this specification of ineffective assistance against Attorney Steele.
For these reasons, the petition for habeas corpus relief is denied.