Opinion
No. CV08-4002419
June 21, 2011
MEMORANDUM OF DECISION
On May 30, 2008, the petitioner, Roberto Alvarado, filed a pro se petition for a writ of habeas corpus, which was amended by appointed counsel on March 16, 2011. The amended petition claims that he was denied his right to both an impartial judge and jury, to due process and a fair trial, his right to effective assistance of trial counsel, appellate counsel, and habeas counsel, all in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8 and § 9, of the Constitution of Connecticut in the following ways: Count One — petitioner alleges his constitutional rights to an impartial judge, impartial jury and to due process and a fair trial were violated; Count Two — petitioner alleges trial counsel was ineffective; Count Three — petitioner alleges appellate counsel was ineffective; Count Four — petitioner alleges habeas counsel was ineffective. For reasons stated more fully below, the petition is denied.
The matter came to trial on May 2, 2011. The court heard testimony from Janet Mariano, petitioner's only witness, and Carol Sementini, Sandy Bes, and Michael O'Shaughnessy, respondent's witnesses. All four witnesses were members of the jury in petitioner's case. Petitioner entered into evidence a portion of the trial transcript in which the jury's verdict was rendered. The respondent proffered the affidavit of the Honorable Gary J. White, the judge who presided at petitioner's criminal trial.
The affidavit bears the docket number CV04-4559. The court takes judicial notice of the fact that the affidavit was first entered into evidence in the petitioner's first habeas corpus petition. There, the court, Fuger, Jr., J., found that the petitioner's claim of trial irregularity was procedurally defaulted. Alvarado v. Warden, Superior Court, judicial district of Tolland, Docket No. CV04-0004559 (July 5, 2007, Fuger, Jr., J.) ( 2007 Ct.Sup. 12311).
The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
FINDINGS OF FACT
1. The petitioner was the defendant in the judicial district of Danbury bearing docket CR-99-0106539, in which he was charged with felony murder, in violation of General Statutes § 53a-54c, attempt to commit robbery in the first degree with a deadly weapon, in violation of General Statutes §§ 53a-49(a) and 53a-134(a)(2), carrying a pistol without a permit, in violation of General Statutes (Rev. to 1999) § 29-35(a), and having a weapon in a vehicle, in violation of General Statutes (Rev. to 1999) § 29-38.
2. Petitioner's trial counsel was Senior Assistant Public Defender Paul D. Eschuk.
3. After a jury trial, the petitioner was convicted as charged. The jurors were individually polled and thereby confirmed the unanimous verdict.
See Petitioner's Exhibit 1.
4. On May 29, 2001, the trial court, White, J, sentenced the petitioner to a total effective sentence of 50 years of incarceration, followed by 10 years of special parole. On December 9, 2003, in State of Connecticut v. Ruperto Lugo, S.C. 16553, the Connecticut Supreme Court affirmed the judgment of the trial court. The petitioner's appellate counsel was Assistant Public Defender Suzanne Zitser.
State of Connecticut v. Ruperto Lugo, 266 Conn. 674, 825 A.2d 451 (2003).
5. On or about May 24, 2004, in Ruperto Alvarado v. Commissioner of Correction, CV-04-0004559, the petitioner filed a pro se petition for a writ of habeas corpus collaterally attacking the judgment in State of Connecticut v. Ruperto Lugo, CR-99-0106539.
6. On February 1, 2006 in State of Connecticut v. Ruperto Lugo, CR-99-0196539, the Sentence Review Division affirmed the petitioner's sentence.
7. On April 2, 2007, in Ruperto Alvarado v. Commissioner of Correction, CV-04-0004559, the habeas court, Fuger, Jr., J, denied the petitioner's petition for a writ of habeas corpus.
8. On August 2, 2007, in Ruperto Alvarado v. Commissioner of Correction, CV-04-0004559, the habeas court, Fuger, Jr., J., denied the petitioner's petition for certification to appeal.
9. In Ruperto Alvarado v. Commissioner of Correction, A.C. 29162, the petitioner appealed from the judgment in Ruperto Alvarado v. Commissioner of Correction, CV-04-0004559.
10. On March 28, 2008, the habeas court, Kaplan, J., granted the petitioner's habeas appellate counsel's motion for leave to withdraw appearance of appointed counsel.
11. On August 12, 2008, the Appellate Court dismissed the petitioner's appeal.
12. In the instant case, petitioner offered the testimony of only one witness, Janet Mariano, a member of the jury in his trial. Ms. Mariano, whose name was Janet Stewart at the time of the trial, testified briefly stating that she kept asking for "different things" to be sent into the jury room. Finally, she said that Judge White came into the room while all the jurors were deliberating, sat on the edge of the table near her and asked, "Are there any tools I can offer you to make your decision easier?" He said this in the presence of all the other jurors. Ms. Mariano then told him she was very distraught about what was going on. She further stated that she was having trouble saying the word guilty. She then said that Judge White responded to her that "he would be judged fairly." Ms. Mariano testified that all the other jurors were in the room and were watching and hearing this conversation.
13. After petitioner rested, the respondent offered the testimony of three other jurors from the same jury, to wit Carol Sementini, Sandy Bes and Michael O'Shaughnessy, the latter having been the jury foreperson. All three stated unequivocally that Judge White never came in to the jury deliberations room during the trial. Ms. Sementini did remember, however, that he came in after trial was over to thank the jury for their service.
14. The affidavit of Judge Gary White proffered by the respondent states, in part, that "[a]t no time . . . did I enter the jury deliberations room or communicate with any juror or jurors in any location other than the courtroom and in the presence of counsel and Mr. Lugo."
Respondent's Exh. A, p. 2.
15. Additional facts will be discussed as needed.
DISCUSSION
"Practice Book § 42-7 . . . provides that `[a]ll communications from the jury to the judicial authority shall be in writing. The judicial authority shall require that a record be kept of all communications received by it from a juror or the jury after the jury has been sworn, and it shall not communicate with a juror or the jury on any aspect of the case itself, as distinguished from matters relating to physical comforts and the like, except after notice to all parties and reasonable opportunity for them to be present.' In a criminal trial, ex parte conversations between the judge and jury are constitutionally prohibited. State v. McCall, 187 Conn. 73, 81-82, 444 A.2d 896 (1982). "`Even when communication occurs between the judge and a juror after deliberations have begun, however, prejudice must be found to warrant a mistrial . . . In a criminal case the burden is on the state to show that the communication was harmless beyond a reasonable doubt.'" (Citation omitted.) State v. Wooten, 227 Conn. 677, 631 A.2d 271 (1993)." State v. Teti, 50 Conn.App. 34, 43, 716 A.2d 931, cert. denied, 247 Conn. 921, 722 A.2d 812 (1998).
The instant matter is not, however, a criminal case. Instead, it is what is referred to as a "habeas on a habeas." "`[A] person convicted of a crime is entitled to seek a writ of habeas corpus on the ground that his attorney in his prior habeas corpus proceeding rendered ineffective assistance.' Lozada v. Warden, 223 Conn. 834, 845, 613 A.2d 818 (1992). When, as here, the petitioner's claim is that prior habeas counsel did not effectively pursue a claim that trial counsel rendered inadequate representation, the following principles apply: `To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective and (2) that his trial counsel was ineffective. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unworkable . . . Only if the petitioner succeeds in [this] herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel.' (Citations omitted; internal quotation marks omitted.) Id., 842-43." Stevenson v. Commissioner of Correction, 112 Conn.App. 675, 684, 963 A.2d 1077, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009).
Here, it is the petitioner who bears the burden of proof, and a heavy one at that. Succinctly put, the petitioner has not presented any credible evidence in support of his claims. The court finds the testimony from Ms. Mariano to be completely incredible and belied by the record, as well as her fellow jurors' testimonies and Judge White's affidavit. In the absence of any credible testimony, the petitioner has failed to show that there was any trial irregularity or that the trial judge did anything improper. The allegations in claim one that the petitioner was deprived of his constitutional rights to an impartial judge, to an impartial jury, and to due process and a fair trial are wholly without merit. The allegations of ineffective assistance of trial, appellate and prior habeas counsel, made respectively in claims two, three and four, which are derivative of claim one, therefore must also fail.
Based upon the foregoing, judgment shall enter denying the petition for a writ of habeas corpus. Counsel for the petitioner shall prepare a judgment file and file it with the clerk within thirty (30) days of the judgment in this matter.
It is so ordered.