Opinion
NNHCV030475015S
10-31-2016
Tobias Anderson v. Commissioner of Correction
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON REMAND
Steven D. Ecker, J.
This case comes before the court on remand from the Appellate Court. See Anderson v. Commissioner of Correction, 146 Conn.App. 528, 80 A.3d 82 (2013). The petitioner was convicted of kidnapping, attempted robbery and attempted sexual assault following a jury trial. The trial court (Kline, J.) imposed a total effective sentence of twenty-five years' imprisonment, to run consecutively to a thirty-five-year sentence previously imposed for a different conviction. His claims on direct appeal were unsuccessful. State v. Anderson, 212 Conn. 31, 561 A.2d 897 (1989). The court will not recount the lengthy and unsuccessful history of petitioner's previous efforts to obtain habeas relief over the past three decades. See Anderson v. Commissioner of Correction, 114 Conn.App. 778, 781, 971 A.2d 766 & n.1 (2009) (summarizing history of five previous petitions). The sole issues requiring adjudication on remand in the present case are the claims raised in count thirty-five of Anderson's third amended petition for a writ of habeas corpus, dated November 22, 2006 (" Petition"). See 146 Conn.App. at 531.
An on-the-record conference call was held on December 16, 2015, for the purpose of establishing a procedure for proceedings on remand. The parties agreed that the evidentiary record from the prior trial, held on February 17 and March 31, 2010, would provide the evidentiary record in this proceeding, and no further evidentiary hearing or submissions would be necessary. (This procedure was requested by petitioner. See Letter from Tobias Anderson to Atty. Jo Anne Sulik dated March 23, 2015. (Docket Entry #278.00.)). A briefing schedule was also agreed upon and approved by the court. See Order dated December 16, 2015 (Docket Entry #280.00). Petitioner's brief was filed on February 22, 2016. Respondent evidently elected to rely on its previous briefs submitted in connection with the 2010 proceeding, see Respondent's Post-Trial Brief dated August 16, 2010 (#254), because no further briefing on Respondent's behalf. On July 1, 2016, petitioner filed a supplemental memorandum in which he requested the court to take judicial notice of the United States Supreme Court decision in Williams v. Pennsylvania, 136 S.Ct. 1899, 195 L.Ed.2d 132 (June 9, 2016). See Request for Judicial Notice, dated June 27, 2016 (#282.00, filed July 1, 2016). Respondent filed no objection or response to this request.
Respondent's brief was due on or before March 14, 2016.
The court would have accepted a timely reply from respondent in response to petitioner's supplemental filing of July 1, 2016, and expected something to be filed by respondent regarding the Williams decision. Nothing was received, however, and so the court retroactively deemed the case ready for adjudication as of July 1, 2016 (the date of petitioner's final submission).
The sole focus of count 35 of the Petition is petitioner's allegations of ineffective assistance of habeas counsel, Attorney David A. Dee, who represented Anderson in his third habeas case, State v. Anderson, Docket No. CV87-0000080-S (Judicial District of Tolland) (referred to by petitioner as the " #87-080 habeas case"). Although the claim relating to Attorney Dee is contained in a single count, it incorporates the allegations contained in counts 1-34, on the theory that Dee failed in the habeas case to raise the various claims of judicial misconduct (counts 1-14), prosecutorial misconduct (counts 15-21), and trial counsel ineffectiveness (counts 22-31) contained in those previous counts. In addition to the relevant operative pleadings (with exhibits) and prior judicial decisions in connection with Anderson's habeas petitions, the court has reviewed the various legal memoranda (and exhibits) and other filings of record submitted by the parties relating to count 35 and the claims incorporated therein. The court also has read the transcripts of the trial proceedings before Judge Zemetis on February 17, 2010, and March 31, 2010.
Count 19 was withdrawn by petitioner. TR 3/31/10 at 12, 14.
Count 26, 27 and 28 are no longer part of this case. Count 26 was resolved by stipulation when respondent agreed to restoration of petitioner's sentence review rights. See TR 2/17/10 at 41; TR 3/31/10 at 25. Petitioner withdrew counts 27 and 28. TR 3/31/10 at 25-6.
Counts 32, 33 and 34 seek relief based on the " cumulative effect" of different combinations of specified previous allegations. In addition to incorporating prior allegations, count 35 also alleges that Attorney Dee rendered ineffective assistance in six other respects set forth, in conclusory terms, in paragraph 314(IV) through (IX) of the Petition. See Petition at p. 68. These additional claims relate to Dee's alleged failure to properly prepare for the habeas trial, investigate and research petitioner's case, and/or present petitioner's claims in the #87-080 habeas case.
The legal framework in a habeas proceeding raising claims of ineffective assistance of counsel is governed by the analysis set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which " consists of two components: a performance prong and a prejudice prong." Francis v. Commissioner of Correction, 142 Conn.App. 530, 535, 66 A.3d 501 (2013). See Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008). The core focus of these components is well established:
To satisfy the performance prong . . . the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . .
To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's [incompetent performance], the result of the proceeding would have been different.Francis v. Commissioner of Correction, supra, 142 Conn.App. at 535-36 (inner quotation marks and citations omitted).
Prejudice is presumed under Strickland if defendant establishes that his trial lawyer's performance was adversely affected by an actual conflict of interest. 466 U.S. at 692. In addition, the United States Supreme Court recently held that a due process violation based on the participation of a biased or interested judge is not subject to harmless error review, but is in the nature of a structural error requiring a new trial before an impartial judge. See Williams v. Pennsylvania, 136 S.Ct. 1899, 1909, 195 L.Ed.2d 132 (2016).
The analysis of petitioner's claims in count 35 is complicated somewhat by three factors. First, as noted above, although count 35 nominally is directed only at the performance of habeas counsel Attorney Dee, those allegations incorporate prior counts directed at the conduct of other participants in the adjudicative process--the judge, the prosecutor, and trial counsel. This multi-tiered feature itself is not unusual, in that ineffective assistance claims relating to the performance of prior habeas counsel often relate, in whole or in part, to the prior habeas lawyer's alleged failure, in an earlier habeas proceeding, to raise ineffective assistance claims against trial or appellate counsel. See, e.g., Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992); Harris v. Commissioner of Correction, 108 Conn.App. 201, 947 A.2d 435 (2008). While not unusual, this analysis adds complexity because requires a dual-level application of the dual-prong Strickland standard. The combined effect of this interaction has been summarized as follows:
[when] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding . . . [T]he petitioner will have to prove that . . . prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . . Harris v. Commissioner of Correction, 108 Conn.App. 201, 209-10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice: he must " prove both (1) that his appointed habeas counsel was ineffective, and (2 that his trial counsel was ineffective." (Emphasis added.) Id. at 842, 613 A.2d 818; see also Denby v. Commissioner of Correction, 66 Conn.App. 809, 812-13, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002).LaPointe v. Comm'r of Correction, 113 Conn.App. 378, 394-95, 966 A.2d 780 (2009) (emphasis in original).
Satisfying this standard has been described by the courts as a " herculean task" for a habeas petitioner. See, e.g., Mukhtaar v. Commissioner of Corrections, 158 Conn.App. 431, 438-39, 119 A.3d 607 (2015).
The second complicating factor here is that the claims incorporated by petitioner into count 35 already have been rejected by courts on grounds of procedural default. See Anderson v. Commissioner of Correction, supra, 114 Conn.App. at 786-92 (counts 1-21 properly dismissed for failure to comply with Practice Book § 23-31(c)); id. at 792-94 (counts 22-25, 27-34, and 36 dismissed as successive petitions). The immediate question raised by this circumstance is whether the procedural default on the underlying claims has any effect on petitioner's claims against Attorney Dee. The fact that the Appellate Court remanded the case for trial on count 35 would indicate that there is no automatic preclusive effect, at least not as to every underlying claim. This conclusion makes sense upon consideration of the Strickland prejudice prong; unless the specific procedural default at issue existed prior to the #87-080 habeas proceeding (such that the pre-existing default would have operated to defeat the claim had it been raised in that proceeding), then logically it is possible that petitioner suffered prejudice due to Attorney Dee's alleged deficient performance in that proceeding. Conversely, if the procedural default is based on independent grounds that would have rendered success impossible regardless of the performance of Attorney Dee, then the claim here necessarily must fail, because no prejudice could have resulted from any ineffectiveness on his part. In the exercise of caution, this court has not treated as defaulted any of the claims contained in count 35.
The third factor bearing on the present procedural posture is the finding by Judge Terrence Zemetis, in his consideration of count 35 at an earlier phase of this proceeding, that petitioner had abandoned all claims underlying count 35 " except [petitioner's] claim that the prior habeas counsel, Attorney David A. Dee, was ineffective or failed to raise claims that the trial judge, the Hon. M. Morgan Kline, should have been disqualified from presiding in the 1987 jury trial because Judge Kline signed the search and arrest warrants and [therefore should not have] later presided over the criminal jury trial." Memorandum of Decision dated 1/3/12, at 8 (#256.00) (" 1/3/12 MOD). The judgment of dismissal entered by Judge Zemetis was reversed by the Appellate Court for failure to render judgment within the time limitations imposed by General Statutes § 51-183b, Anderson v. Commissioner, supra, 114 Conn.App. at 783. The legal status of this prior " abandonment" finding has not been briefed by either party. Petitioner has briefed the issues in this proceeding as if there had been no abandonment, and this court has not treated any claims to have been abandoned under the theory set forth in the 1/3/12 MOD.
Turning to the substance of Anderson's petition, as amended, the court finds no merit to any of the claims in count 35. Many of these claims are overlapping and inter-related, but the fundamental allegations can be organized into four basic categories for purposes of discussion. Category I is a broad category including claims relating to the independent or combined failure of the trial judge, the prosecutor, and petitioner's trial counsel to raise and cure various instances of judicial bias/misconduct resulting in an unfair trial (" Judicial Misconduct Claims"). See Petition, Counts 1-2, 4-5, 7-15, 23. Category II involves the claim that petitioner's trial counsel was burdened by a conflict of interest at the time that he represented petitioner at trial. See Petition, Counts 3, 22. Category III involves claims relating to the alleged use of shackles on petitioner in the presence of the jury. See Petition, Counts 6, 18, 25. Category IV includes all other claims of prosecutorial misconduct, ineffective assistance of trial counsel, and ineffective assistance of habeas counsel. See Petition, Counts 16-17, 19-21, 24, 29-34, 35 (paragraph 314(IV)-(IX).
To repeat, to remain viable at this stage, a claim ultimately must relate in some way to the performance of Attorney Dee as habeas counsel in Case #87-080.
Petitioner emphasizes, and the court understands, that his claims of " misconduct" do not allege actual animus or intentional wrongdoing directed at petitioner by the trial judge, but rather involve allegations relating to various alleged errors by the judge that resulted in an unfair trial regardless of the court's subjective intentions. See, e.g., TR 2/17/10 at 521 (petitioner's explanation).
These four categories of claims are addressed separately below. Speaking generally, the defect common to all of petitioner's claims is his failure to produce evidence that comes anywhere close to meeting his burden under Strickland . This deficiency stems in significant part from the fact that petitioner consistently has chosen to repeat his various claims in conclusory terms that restate the same allegations of misconduct, neglect and/or prejudicial effect without evidentiary support beyond petitioner's self-serving say-so. The habeas trial itself consisted almost entirely of petitioner's recitation of the allegations contained in the Petition itself. TR 2/17/10; TR 3/31/10. Petitioner's testimony at times provided minor or insubstantial elaboration, and he occasionally made reference to selected portions of the trial transcript and other documents submitted as exhibits in support of the Petition. But petitioner presented no witnesses (except himself), and, with one inconsequential exception, petitioner failed to produce any material evidence to supplement the trial record in support of his claims. The court has searched the record in vain for actual, credible evidence to support petitioner's many conclusory accusations of neglect and wrongdoing. The court has concluded that the allegations rest on nothing more than speculation and conjecture, which are plainly insufficient grounds for habeas relief. See, e.g., Johnson v. Commissioner of Correction, 285 Conn. 556, 584, 941 A.2d 248 (2008); Moye v. Commissioner of Correction, 168 Conn.App. 207, 224, 145 A.3d 362 (2016); Lopez v. Commissioner, 142 Conn.App. 53, 59, 64 A.3d 334 (2013).
The court's written analysis, below, does not address every separate aspect of every claim contained in petitioner's densely handwritten, 325-paragraph, 74-page Petition. This memorandum largely follows petitioner's own lead by addressing the issues that he treated most prominently at trial presentation and in his post-trial brief. Whether or not expressly discussed herein, all of petitioner's claims in count 35 were considered by the court, and the evidence (transcripts and exhibits) relied on by petitioner was reviewed in connection with all claims made part of count 35. Any aspect of any claim not expressly addressed herein should be considered rejected on the merits.
The exception involves evidence regarding petitioner's date of graduation from high school. TR 3/31/10 at 6-11, 31-32. The court calls the evidence " inconsequential" because petitioner failed to satisfy either prong of Strickland in connection with his claims of ineffective assistance of counsel as it relates to his year of graduation.
Petitioner's failure to supplement the trial record is ironic in light of his repeated claim that he suffered prejudice (under Strickland ) as a result of his trial counsel's failure to make a record in various respects at trial. The habeas trial provided petitioner the opportunity to create his record, and he did not do so.
Category I--Judicial Misconduct
Petitioner's principal contention is that the trial judge should not have presided over the criminal trial due to his participation in pretrial proceedings in petitioner's case, namely the issuance of search warrants for Anderson's house and car and the warrant for Anderson's arrest. See Third Amended Petition at ¶ ¶ 27-66A, 186-90, 241-45. He argues that his constitutional rights to a fair trial, fair sentencing, and fair appellate proceedings were violated when the trial judge failed to recuse himself, and neither the prosecutor nor defense counsel moved to disqualify the judge. These claims are rejected under the authority of cases such as State v. Canales, 281 Conn. 572, 594-96, 916 A.2d 767 (2007), Despres v. Commissioner of Correction, 166 Conn.App. 572, 583-85, 142 A.3d 400 (2016), and Francis v. Commissioner, 142 Conn.App. at 545-48. Under any standard--actual bias, appearance of impropriety, the " possible temptation" standard of Tumey v. Ohio, or any other standard invoked by petitioner--there was no need for the trial court to disassociate himself from the criminal trial on the record presented for review here. Petitioner's claim gathers no force as a result of the decision of the United States Supreme Court in Williams v. Pennsylvania, supra, the case brought to the court's attention by petitioner's supplemental submission filed on July 1, 2016 (#282.00). The facts in Williams --involving the impropriety of a former prosecutor participating as a judge in a case in which he had significant involvement making a critical decision as a prosecutor earlier in his career--have no connection to this case, by analogy or otherwise.
The citation to particular paragraphs in the course of this discussion should not be understood to mean that the court did not consider any other paragraphs in connection with the particular claim under consideration.
Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, 5 Ohio Law Abs. 159, 5 Ohio Law Abs. 185, 25 Ohio L.Rep. 236 (1927). In light of petitioner's heavy reliance on Tumey, the court notes that the " actual bias" standard is applicable at this stage of the proceedings to petitioner's claims of judicial bias. See Francis v. Commissioner, supra, 142 Conn.App. at 547. The Tumey " possible temptation" language remains relevant to the analysis, but not as a separate and independent inquiry. See Williams v. Pennsylvania, supra, 136 S.Ct. at 1909-10 (applying " objective risk of actual bias" standard, but also referring to Tumey " possible temptation" standard, in deciding that a judge's participation in stay proceedings violated due process clause). On the present record, no reasonable trial judge would have experienced any temptation whatsoever--during trial or at sentencing--to defend or justify or otherwise be affected by his or her pre-trial conduct in connection with the issuance of search or arrest warrants.
With respect to petitioner's other claims of judicial misconduct, see Third Amended Petition at ¶ ¶ 67-90, the challenged conduct and comments of the trial court at trial and during sentencing do not support any valid claim of judicial bias or misconduct. Cf. Despres v. Commissioner, supra, 166 Conn.App. at 585 (" Vague and unverified assertions of opinion, speculation and conjecture cannot support a motion to recuse"). To summarize, the performance of Attorney Dee cannot be faulted in connection with any of petitioner's judicial misconduct claims.
Some of these claims were raised--and rejected--in the direct appeal from petitioner's conviction. State v. Anderson, supra, 212 Conn. at 46-50 & nn. 8, 10.
Category 2--Trial Counsel's Conflict of Interest
Petitioner alleges that trial counsel had a conflict of interest based on the fact that counsel, who had been privately retained, had not received full payment from petitioner's family in connection with a different case against petitioner. See Third Amended Petition at ¶ ¶ 84(N)-(P), 114-18, 227-40; TR 2/17/10 at 14-19; TR 3/31/10 at 14-17. This financial issue arose on the record in the criminal case when trial counsel requested appointment as a special public defender, so that he could continue representing Anderson. The trial court granted that motion. The court has read the relevant portion of the trial transcript, TR 2/10/87 at 491-506, and the other submissions of petitioner relating to this allegation. There is no evidence to support the claim that trial counsel was burdened by a conflict of interest or that his performance was adversely affected by any such conflict. See Anderson v. Commissioner of Correction, 308 Conn. 456, 461, 64 A.3d 325 (2013). Speculation and conjecture is insufficient. Nor, under the circumstances, is there any basis to fault the trial judge for failing to inquire regarding any such conflict; on this record, there was no reason to do so.
Petitioner also has failed to establish ineffective assistance in connection with trial counsel's disbarment after the criminal case ended. This fact obviously does not reflect well on trial counsel, but, standing alone, it does not reflect in any way on his performance in this case. Petitioner has failed to demonstrate that habeas counsel provided ineffective assistance in connection with the allegations raised by petitioner regarding the performance of trial counsel.
Category 3--Shackles
Petitioner alleges that he was required to wear physical restraints (" shackles") in the courtroom at all times throughout his criminal trial, including when the jury was present, in violation of his right to a fair trial. See State v. Brawley, 321 Conn. 583, 587, 137 A.3d 757 (2016) (acknowledging right of accused to appear in court free from physical restraints, but finding error harmless in absence of evidence that the jury was aware of the restraints). Fatal to petitioner's claim is his failure to adduce any credible evidence that he was shackled while the jury was present or that the jury was aware of the shackles. TR. 2/17/10 at 21-26; 3/31/10 at 19-25. Indeed, the relevant evidence, such as it is, tends to indicate that the shackles were not worn when the jury was present. Neither prong of Strickland has been satisfied with respect to this claim.
Category Four--All Other Claims
The remainder of petitioner's claims are rejected as well. The claims of prosecutorial misconduct (Counts 16, 17, 19, 20) were unsubstantiated, as were the allegations of ineffective assistance of trial counsel relating to issues other than conflict-of-interest (Counts 24, 29-32). All claims of " cumulative effect" (Counts 14, 21, 32-34) are also without merit in the context made here. See Anderson v. Commissioner, supra, 114 Conn.App. at 795-96. Finally, to the extent that petitioner has raised ineffectiveness claims against habeas counsel that are not subsumed within those allegations already addressed (Count 35, ¶ 314(V)-(IX), neither prong of Strickland has been met with respect to any of these allegations.
Conclusion
For the foregoing reasons, the relief sought in Count 35 of the Third Amended Petition is denied. Judgment shall enter for the respondent.
During the telephonic status/scheduling conference held on December 16, 2015. The court declined to do so after reviewing the record.
It is so ordered.