Opinion
No. CV00-0800140
October 19, 2006
MEMORANDUM OF DECISION
The petitioner, Glen Bailey alleges in his petition for a Writ of Habeas Corpus initially filed on July 7, 2000 and amended for a final time on May 17, 2006, that his 1997 conviction for four counts of sexual assault in the first degree in violation of CGS § 53a-70(a)(2), and four counts of risk of injury in violation of CGS §§ 53-21 were obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Constitution of the state of Connecticut. He specifically claims to have been deprived of the effective assistance of Appellate Counsel.
This petition was initially filed in the Judicial District of Hartford and transferred to the Judicial District of Tolland on May 24, 2004.
Specifically, the petitioner claims that there were numerous issues that should have been pursued on appeal and that his appellate counsel failed to petition the state Supreme Court in a timely manner for certiorari. As to the latter issue, the Supreme Court rejected certiorari in this case. State v. Bailey, 264 Conn. 901 (2003). Petitioner did represent himself pro se in that petition. Nevertheless, with the petition for certiorari being rejected, it is apparent that the Supreme Court declined to hear an appeal of the decision of the Appellate Court. Consequently, even if the appellate counsel were deficient in their performance by failing to file a petition for certiorari to the Supreme Court, there can be no prejudice because such a petition was actually filed and the Supreme Court declined to entertain the case. Consequently, this claim by the petitioner is summarily rejected.
This matter came on for trial before this Court on October 3, 2006 at which time testimony was received from the petitioner. The transcript of the petitioner's trial, eleven volumes in all; the decision of the Appellate Court in State v. Bailey, 56 Conn.App. 760 (2000); the appellate record and the Court's decision on a prior habeas alleging ineffective assistance of Trial Defense Counsel were received into evidence. As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
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 a case in the Judicial District of Hartford, under Docket Number CR95-0480189 entitled State v. Bailey. The petitioner, after a trial to the jury, was convicted of four counts of sexual assault in the first degree in violation of CGS § 53a-70(a)(2), and four counts of risk of injury in violation of CGS §§ 53-21.
2. The petitioner was sentenced by the court, Spada, J., to a total effective sentence of forty years to serve.
3. Attorneys Alexander Schwartz and Megan McLoughlin represented the petitioner on appeal.
4. Two issues were raised on appeal and both of these issues were decided adverse to the petitioner.
5. Additional facts shall be discussed as necessary.
Discussion of Law
It is important at the outset to understand a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt In re Winship, 397 U.S. 385, 90 S.Ct 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial . . . Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994).
Deprivation of Effective Assistance of Appellate Counsel
In order to prevail on the issue of whether there has been ineffective representation by the petitioner's Appellate counsel, the petitioner must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct 3562, 82 L.Ed.2d (1984) before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the CT Page 19404 Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. 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 unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's performance may have been substandard, will result in denial of the petition.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. It is indisputable fact that many times if one had foreknowledge of certain events, different courses might well have been taken. Likewise, a habeas court knowing the outcome of the trial, or in this case, the appeal, "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn.App. 253 at 264 (1979), cert. den. 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to 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." Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317 (2000).
In the instant case, there are a plethora of allegations involving the failure of the petitioner's appellate counsel to raise issues on appeal, however, there was a paucity of proof supporting these allegations adduced at the habeas trial. To be sure, the petitioner did introduce the transcript of his criminal trial thereby allowing the habeas court to ascertain what took place at the criminal trial, however there is no way that this court can conclude that the petitioner has met his burden of proof that he was the "victim" of ineffective assistance of counsel. A habeas court does not sit as an examiner to grade the performance of counsel. To simply submit a transcript and essentially ask the court to engage in a plenary critique of counsel's efforts and thereafter attempt to find something wrong is a misunderstanding of the role of the habeas court and the burden that rests with the petitioner. "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client." Strickland v. Washington, 466 U.S. 668 at 688 (1984).
Justifiably, then, the burden of persuasion in a habeas case rests with the petitioner, because of the "fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence." Summerville v. Warden, 229 Conn. 397 at 419 (1994). There is, therefore, a strong societal interest "in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility." Id.
Moreover it is not even necessary to consider whether a trial counsel's performance was deficient if the habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) ('[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')" Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
In the instant case, the petitioner has failed to present any affirmative evidence that would support a finding of ineffective assistance by appellate counsel. Testimony consisted entirely of a statement by the petitioner. There was no expert opinion testimony offered by another appellate counsel as to the viability of any of the issues that might have been raised. The attorneys who represented the petitioner on appeal were not even called to testify. In essence, the petitioner now simply asserts, without any real support, that there were better issues that should have been raised and weren't. In order to prevail in the instant habeas petition, then, the petitioner must prove first that he was denied the effective assistance of appellate counsel in that not only could his appellate counsel have raised the issues on direct appeal, they should have done so. This will necessarily require a showing that his appellate counsels' performance "was so deficient that it fell below the standard of reasonably effective assistance; and, . . . that these errors deprived the defendant of a fair appeal and caused an unreliable conviction to stand." Valeriano v. Bronson, 209 Conn. 75, at 82 (1988). Then, the petitioner must prove that if the issues had been raised on direct appeal, there was a reasonable likelihood that he would have prevailed upon that issue on direct appeal.
To be sure, there is argument by counsel for the petitioner in her pretrial brief as to what issues should have been raised. Nevertheless, it is clear that the petition for a writ of habeas corpus is not a substitute for a direct appeal. "We have repeatedly and emphatically stated that habeas corpus cannot be used as an alternative to a direct appeal. Blue v. Robinson, 173 Conn. 360 (1977); Vena v. Warden, 154 Conn. 365 (1966); Wojculewicz v. Cummings, 143 Conn. 624 (1956)." This habeas petition essentially asks the habeas court to sit as a Court of Appeals and consider the issues that are now raised by the petitioner. This cannot have been done unless there has been a showing that his initial appellate counsel were ineffective.
It is not for the habeas court to second guess the decision of appellate counsel to not go forward on an issue on appeal. "Experienced 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." Jones v. Barnes, 463 U.S. 745 at 751-52 (1983). Simply because there are appellate issues that could be raised does not necessarily mean that they should be raised. "There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review . . . A brief that raises every colorable issue runs the risk of burying good arguments in a verbal mound of strong and weak contentions." Jones v. Barnes, supra at 752-53. Moreover, it is inappropriate "for judges to second guess reasonable professional judgments and impose on appointed counsel a duty to raise every `colorable' claim suggested by a client." Jones v. Barnes, supra.
The Strickland standard for ineffectiveness has not even come close to being met on either of the two prongs. It is indisputable that a criminal defendant is entitled to the representation of trained and competent legal counsel, however, "[t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight. See Bell v. Cone, 535 U.S. 685 at 702 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Strickland v. Washington, 466 U.S. 668, 689; United States v. Cronic, 466 U.S. 648, 656 (1984)." Yarborough v. Gentry, 540 U.S. 1 (2003).
Accordingly, the Petition for a Writ of Habeas Corpus is denied.