Opinion
CV144005888S
07-26-2016
Tyrone Carolina (#152269) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Hon. Vernon D. Oliver, J.
The petitioner, Tyrone Carolina, initiated this petition for a writ of habeas corpus, claiming that his underlying criminal trial counsel (Jennifer Tunnard) provided him ineffective legal representation. He also asserts a conflict of interest on the part of underlying counsel. Finally, the petitioner claims constitutional due process violations in his underlying trial. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The court finds the issues for the respondent and DENIES the petition.
Procedural History
In State v. Carolina, 143 Conn.App. 438, 69 A.3d 341, cert. denied, 310 Conn. 904, 75 A.3d 31 (2013), the Appellate Court made the following findings:
The defendant, Tyrone Douglas Carolina, appeals from the judgment of conviction, rendered after a jury trial, of two counts of risk of injury to a child in violation of General Statutes § 53-21(a)(2), two counts of risk of injury to a child in violation of § 53-21(a)(1) and one count of tampering with a witness in violation of General Statutes § 53a-151. On appeal, the defendant claims that (1) the evidence was insufficient to convict him of the crime of tampering with a witness, (2) certain prosecutorial improprieties during closing arguments deprived him of his due process right to a fair trial and (3) the court abused its discretion when it admitted portions of the victim's recorded interview into evidence as a prior consistent statement. We affirm the judgment of the trial court.
The jury reasonably could have found the following facts. The victim, K, was living with her parents and her sister in their home in Danbury at the time of the incidents. K was born in 1993 and has attended special education classes since she began school. The defendant was close friends with K's parents and has known K from the time she was born. Although K is not related to the defendant, she had a good relationship with him and referred to him as her uncle. The defendant was a frequent visitor at K's house, occasionally sleeping there overnight, and he was aware of K's cognitive disabilities.
On May 11, 2009, when K returned home from school, W, a family friend, noticed that K's behavior was unusual. K's cousin and her sister also were present at that time. They began questioning K, and she reluctantly revealed that the defendant had had sexual contact with her. A few hours later, K's older brother, L, arrived at the house and saw that K was upset and shaking. He asked her to accompany him in his car so that they could talk in private. In response to L's questions, K told him of a recent incident in which the defendant had sexually molested her. The Danbury police department was contacted and officers arrived at K's house later that evening. Thereafter, the defendant was arrested and charged with offenses related to his sexual contact with K.
While the defendant was incarcerated awaiting trial, he mailed a letter to his cousin, Christopher Carolina, from the correctional institution. The defendant used his cellmate's name and prison number as the defendant's return address on the envelope. The defendant failed to write the name of Christopher Carolina as the addressee on the envelope, but he did include his cousin's correct mailing address. The letter was intercepted and held by a corrections officer. The letter's contents were disclosed to the office of the state's attorney. In the letter, the defendant asked his cousin to remind Tierra LaPlant, the cousin's daughter, that she had spoken with K. In a prepared script, the defendant asked if his cousin remembered LaPlant's statements that she had spoken with K and that K had recanted the sexual molestation claims against the defendant. The defendant concluded by asking his cousin to " get [LaPlant] to confess that testimony again . . . [Have LaPlant] make a phone call with that confession to my attorney . . . Get to work." The defendant then was charged with tampering with a witness in violation of § 53a-151. All of the charges against the defendant were consolidated for trial.
Following a five-day trial in September 2010, the jury returned a verdict finding the defendant guilty of four counts of risk of injury to a child and one count of tampering with a witness. The trial court rendered a judgment of conviction in accordance with the jury's verdict and sentenced the defendant to a total effective sentence of twenty years incarceration, suspended after twelve years, followed by twenty years of probation. This appeal followed."State v. Carolina, supra, 143 Conn.App. 440-42.
The following additional findings of the Appellate Court are relevant to the disposition of certain claims of the petitioner:
The defendant's first claim is that the evidence was insufficient to convict him of the crime of tampering with a witness. Specifically, he argues that the state failed to prove beyond a reasonable doubt that he induced or attempted to induce a witness to testify falsely. According to the defendant, a person is guilty of tampering with a witness only if he intends that his conduct directly cause a particular witness to testify falsely. Although he admits that his letter could be construed as an attempt to induce LaPlant to testify falsely, he claims that such conduct would not satisfy the elements of the crime because " [t]he letter was an attempt to induce the defendant's cousin to induce his daughter [LaPlant] to testify falsely. The letter never reached [LaPlant]. Therefore [LaPlant] was never aware of the defendant's attempts to induce her to testify falsely."
The defendant does not contest the fact that an official proceeding was pending, but, rather, he argues that the state failed to present the evidence needed to show that he directly induced or attempted to induce LaPlant to testify falsely. We conclude that the state met its burden.
Because the defendant's letter was intercepted by a corrections officer before it reached the defendant's cousin, LaPlant never became aware of the defendant's scripted testimony. A failed attempt, however, may violate the statute. " The language of § 53a-151 plainly warns potential perpetrators that the statute applies to any conduct that is intended to prompt a witness to testify falsely . . . in an official proceeding that the perpetrator believes to be pending or imminent." (Emphasis added.) State v. Cavallo . 200 Conn. 664, 668, 513 A.2d 646 (1986). A defendant is guilty of tampering with a witness " if he intends that his conduct directly cause a particular witness to testify falsely . . ." Id., at 672, 513 A.2d 646. So interpreted, § 53a-151 applies to conduct intentionally undertaken to undermine the veracity of testimony given by a witness. Id. The statute applies to successful as well as unsuccessful attempts to induce a witness to render false testimony. Id. at 669 . . .
In the present case, from the evidence presented, the jury reasonably could have concluded beyond a reasonable doubt that the defendant intended that his letter would cause his cousin to contact LaPlant, that the cousin would provide LaPlant with the scripted false testimony and that LaPlant then would testify falsely as a witness during the defendant's criminal trial. In other words, the defendant's conduct was intended to directly cause LaPlant to testify falsely. Accordingly, we conclude that the state met its burden of proof with respect to the charge of tampering with a witness in violation of § 53a-151 . . .
The defendant's final claim is that the court abused its discretion when it admitted portions of K's recorded interview with Meyer as a prior consistent statement. He argues that prior consistent statements are generally inadmissible and are barred by the hearsay rule. He further claims that the court improperly failed to consider the timing of K's prior consistent statement in relation to K's inconsistent statements.
The following additional facts are necessary to resolve this claim. Meyer's interview with K took place on May 14, 2009, which was a few days after she had told W and L that the defendant had sexually molested her. When L testified at trial, he described the defendant's conduct as K had recounted it to him. At the time of her interview with Meyer, K's description of the sexual contact varied from the description she had given to L. Shortly before her testimony at trial, K, with W and the prosecutor, watched her videotaped interview with Meyer to help her remember what had happened. At trial, K's testimony substantially was consistent with the statements she had given during the interview with Meyer. Defense counsel, during cross examination, impeached K's credibility with K's previous statements to L and with various inconsistencies in her trial testimony. Frequently, during direct and cross examination, K responded simply that she did not remember the events or details surrounding the events. The prosecutor subsequently requested that the taped interview with Meyer be admitted as a prior consistent statement.
The state argued that the entire videotape should be admitted because K had been impeached (1) on the basis that she lacked any independent recollection of the events, and (2) through numerous inconsistent statements that she made during her cross examination. Defense counsel objected to its admission, arguing, inter alia, that K's inconsistencies were the result of fabricating the story, not a faulty memory. Defense counsel concluded: " I'm going to object to putting in the entire video or even portions of it." The court indicated that it would make its evidentiary ruling as to the admissibility of the videotaped interview after it had reviewed the testimony referred to by the state and the defendant.
On September 8, 2010, the court made its ruling on the record. The court decided that " only those portions [of the interview] that related very specifically to the areas that were the basis of cross examination and impeachment by the defense were properly admissible . . ." The court provided the basis for its ruling: " [B]ased on the cross examination and the impeachment, and the fact that the questions and the testimony that have gone before the jury have addressed issues relating to [K's] faulty memory, her inability to remember, the--what is arguably at this point a--a claim of fabrication or a made-up story on the part of [K], as well as the various inconsistencies and impeachment that has been addressed, the court's ruling is that the very limited area of the forensic testimony that relates specifically to that may come in before the jury for issues of credibility and only for those issues. So I will give a limiting instruction that they not come in substantively."
In the present case, the court referenced two of the exceptions: (1) K's prior consistent statement was offered to rehabilitate her impeachment by prior inconsistent statements and (2) K's prior consistent statement was used to rehabilitate her as a witness with a faulty memory. The court expressly instructed the jury that K's prior consistent statement, as contained in the redacted videotaped interview with Meyer, could be used only in assessing K's credibility and not for substantive purposes. The record amply supports the court's decision and the basis for its evidentiary ruling, and the court correctly applied the law relating to the admissibility of prior consistent statements. According, we conclude that the court did not abuse its broad discretion in admitting the redacted videotaped interview as a prior consistent statement of K.Id., at 442-53.
The petitioner, in his amended petition filed May 2, 2016, his habeas trial testimony, his examination of underlying counsel and his closing argument, made the following claims that this Court finds capable of analysis:
a. Counsel agreed to waive the petitioner's right to a speedy trial without his consent;
b. Counsel failed to seek mental health records of the complainant;
c. His constitutional right to conflict-free counsel was violated when underlying counsel continued to represent him after the petitioner filed a grievance against her; and
d. Counsel was constitutionally ineffective in failing to object to the admission of a letter written by the petitioner which served as the basis for an additional charge of tampering with a witness.
To the extent the petitioner makes other claims, they were either unintelligible to this court, incompletely asserted or not supported by testimony or argument and, therefore, deemed abandoned. The courts of this state have held that " [i]t is not the responsibility of the trial judge, without some specific request from a petitioner, to search a record, often, in a habeas case, involving hundreds of pages of transcript, in order to find some basis for relief for a petitioner . . . The responsibility of a habeas court, in confronting an often voluminous trial court record, is to respond to those claims fairly advanced by the petitioner. The mere recital of those claims in a petition, without supporting oral or written argument, does not adequately place those claims before the court for its consideration." (Citation omitted.) Solek v. Commissioner of Correction, 107 Conn.App. 473, 480-81, 946 A.2d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008).
The petitioner asserts that if counsel's representation had been constitutionally adequate, there is a reasonable probability that the result of the criminal proceedings would have been more favorable to the petitioner. He also claims that the conflict of interest violated his right to a fair trial.
The respondent, in a return filed June 10, 2016, denies the allegations and asserts several special defenses generally. The court heard the trial of this matter on July 18, 2016. The petitioner presented as witnesses underlying counsel and himself. No exhibits were entered into evidence.
II
Law/Discussion
Standard of Proof
The standard of proof in civil actions, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
Burden of Proof
" While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it." Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence. Gulycz v. Stop & Shop, 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1982). Failure to do so results in judgment for the defendant. Id.
The Proceedings
" The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). " It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . it is the quintessential function of the factfinder to reject or accept certain evidence . . ." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). " The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). " [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to the testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). " The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. " The determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333, 764 A.2d 199 (2001).
A. Habeas Corpus Matters-Generally
" The right to petition for a writ of habeas corpus is enshrined in both the United States Constitution and the Connecticut Constitution. See U.S. Const., art. I, § 9; Conn. Const., art. I, § 12. Indeed, it has been observed that the writ of habeas corpus holds an honored position in our jurisprudence . . . The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness . . . The writ has been described as a unique and extraordinary legal remedy . . . It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired." (Citations omitted; internal quotation marks omitted.) Fine v. Commissioner of Correction, 147 Conn.App. 136, 142-43, 81 A.3d 1209 (2013).
" The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous . . . Historical facts constitute a recital of external events and the credibility of their narrators . . . Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given their testimony . . ." Mahon v. Commissioner of Correction, 157 Conn.App. 246, 116 A.3d 331, cert. denied, 317 Conn. 917, 117 A.3d 855 (2015). " It is well established that a reviewing court is not in the position to make credibility determinations . . . This court does not retry the case or evaluate the credibility of witnesses . . . Rather, we must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude." (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 117 Conn.App. 120, 126, 977 A.2d 772, cert. denied, 294 Conn. 904, 982 A.2d 647 (2009).
1. Ineffective Assistance of Counsel
" 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.
" [A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006); see also Elsey v. Commissioner of Correction, 126 Conn.App. 144, 10 A.3d 578, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011) (" [b]ecause both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong" [internal quotation marks omitted]).
" In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] 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 . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . ." Martin v. Commissioner of Correction, 155 Conn.App. 223, 227, 108 A.3d 1174, cert. denied, 316 Conn. 910, 111 A.3d 885 (2015).
A. Speedy Trial Rights
The petitioner asserts ineffective assistance of counsel as well as a due process violation when underlying counsel waived his right to a speedy trial without his consent. This claim is unavailing as the credible evidence adduced at the habeas trial, including the habeas trial testimony of underlying counsel as well as the attachments appended to the petitioner's pleadings of which this court takes judicial notice demonstrates that the petitioner did indeed receive his trial, against the advice of underlying counsel, within the time required by law.
B. Suppression of the Letter from Prison
The petitioner asserts that underlying counsel was deficient in failing to file a motion to suppress evidence seized without a search warrant, to wit: a letter written by the petitioner intended to alter the upcoming testimony of a potential trial witness. This claim fails.
Underlying counsel testified credibly that while she did file a motion in limine to preclude the admission of the letter during the underlying trial, she did not believe that a motion to suppress on constitutional grounds had any legal foundation and was without merit. The petitioner has failed to establish that this legal assessment by counsel constitutes deficient performance.
C. Mental Health Records of the Complainant
The petitioner asserts that counsel was deficient in failing to seek the mental health records of the complainant, asserting that the records would somehow establish that the complainant was fabricating the allegations. This claim fails.
" The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner. United States v. Green, 882 F.2d 999, 1003 (5th Cir. 1989) (petitioner could not succeed on claim of ineffective assistance of counsel because he failed to show what further investigation would have revealed and how it would have helped him) . . ." (Citation omitted.) Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001). In the instant matter, the petitioner has failed to establish any basis for this court to conclude that anything in the mental health records of the complainant would have been favorable to the defense.
D. Conflict-Free Counsel
The petitioner claims that trial counsel was burdened by an actual conflict of interest that adversely affected her performance due to his having filed a complaint against her with the Statewide Grievance Committee.
" 'The sixth amendment to the United States Constitution as applied to the states through the fourteenth amendment, and article first, § 8, of the Connecticut Constitution, guarantee to a criminal defendant the right to effective assistance of counsel.' . . . Santiago v. Commissioner of Correction, 87 Conn.App. 568, 582, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005). 'As an adjunct to this right, a criminal defendant is entitled to be represented by an attorney free from conflicts of interest.' . . . Adorno v. Commissioner of Correction, 66 Conn.App. 179, 194, 783 A.2d 1202, cert. denied, 258 Conn. 943, 786 A.2d 428 (2001). Thus, '[t]he underlying right to conflict-free representation is effective assistance of counsel.' State v. Rodriguez, [61 Conn.App. 700, 706, 767 A.2d 756 (2001)] . . ."
" 'In a case of a claimed conflict of interest . . . in order to establish a violation of [his constitutional rights] the [petitioner] has a two-pronged task. He must establish (1) that counsel actively represented conflicting interests, and (2) that an actual conflict of interest adversely affected his lawyer's performance.' . . . Phillips v. Warden, [220 Conn. 112, 132-33, 595 A.2d 1356 (1991)]; Anderson v. Commissioner of Correction, 127 Conn.App. 538, 549, 15 A.3d 658, 666 (2011), [aff'd, 308 Conn. 456, 64 A.3d 325 (2013)]. 'Unlike other claims of ineffective assistance of counsel, where a petitioner claims that his counsel's performance was deficient because of an actual conflict of interest, prejudice does not need to be established.' Zollo v. Commissioner of Correction, 93 Conn.App. 755, 757, 890 A.2d 120, cert. denied, 278 Conn. 904, 896 A.2d 108 (2006); see also Phillips v. Warden, supra, 133-34. Instead, '[w]here there is an actual conflict of interest, prejudice is presumed because counsel [has] breach[ed] the duty of loyalty, perhaps the most basic of counsel's duties.' . . . Phillips v. Warden, supra, 133; Anderson v. Commissioner of Correction, supra, 549; see Strickland v. Washington, [466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] ('[p]rejudice is presumed . . . if the [petitioner] demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance' . . .); State v. Vega, 259 Conn. 374, 387, 788 A.2d 1221 (same), cert. denied, 537 U.S. 836, 123 S.Ct. 152, 154 L.Ed.2d 56 (2002)." Hedge v. Commissioner of Correction, 152 Conn.App. 44, 50-51, 97 A.3d 45 (2014). " When only a potential conflict is established, however, the general test applies and resultant prejudice must be proven." (Emphasis in original.) Santiago v. Commissioner of Correction, 87 Conn.App. 568, 583 n.14, 867 A.2d 70, cert. denied, 273 Conn. 930, 873 A.2d 997 (2005).
" We have had occasion to point out the caution from the United States Supreme Court that the possibility of conflict is insufficient to impugn a criminal conviction . . . To demonstrate an actual conflict of interest, the petitioner must be able to point to specific instances in the record which suggest impairment or compromise of his interests for the benefit of another party . . . A mere theoretical division of loyalties is not enough." (Citations omitted, internal quotation marks omitted.) Santiago v. Commissioner of Correction, supra, 87 Conn.App. 584-85.
In the instant matter, the petitioner has failed to establish an actual conflict of interest. First, the record fails to demonstrate that underlying counsel " actively represent[ed] competing interests, " e.g, not attempting to raise reasonable doubt in her representation of the petitioner as punishment for the petitioner having filed a grievance against her. To the contrary, counsel's description of her attempts to raise reasonable doubt in the case of the petitioner borders on the herculean and the petitioner has adduced no evidence to refute this. Second, the petitioner has failed to establish that underlying counsel's conduct surrounding and during the trial show any indication that his having filed a grievance in any way adversely affected her representation of the petitioner. Based on the petitioner's own habeas trial testimony, his " anger" and unwillingness to assist in his defense, in conjunction with his having written the aforementioned incriminating letter, damaged his defense. Accordingly, the petitioner has failed to establish an actual conflict of interest or any prejudice related to the potential conflict of interest.
III
Conclusion
For the foregoing reasons, the petition is denied. Judgment shall enter for the respondent.