Opinion
No. CV06-4001373
November 18, 2011
MEMORANDUM OF DECISION
The petitioner, James Cummings, alleges in his petition for a writ of habeas corpus initially filed on October 19, 2006, and amended on September 4, 2009, that he was denied the effective assistance of trial and appellate counsel in various ways, all in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. As to trial counsel, petitioner's allegations include inter alia the following: failure to investigate properly, failure to pursue all possible affirmative defenses available to the petitioner, failure to call potential witnesses available to support petitioner's defenses, failure to adequately cross-examine the State's witnesses as to numerous specific facts, failure to consult with an expert relative to potential defenses, failure to investigate the claim of actual innocence, denied petitioner his right to testify on his own behalf, and failed to adequately consult with or advise petitioner concerning the status of plea negotiations. Similarly, as to appellate counsel, petitioner's allegations include inter alia the following: generally, that counsel failed to adequately raise, research and brief all viable issues for appeal, and, additionally, alleges specific issues which he claims counsel should have raised, researched and briefed. For reasons set forth more fully below, the petition is denied.
This matter came to trial on March 17, 2010 and July 26, 2010. The Court heard testimony from petitioner, trial counsel, Attorney Margaret Levy, and appellate counsel, Attorney Glenn Falk. Although petitioner also called Wanda Cummings, petitioner's sister, as a witness and she testified briefly, she was withdrawn as a witness after respondent's objection to the subject matter of her testimony on the ground of relevancy was sustained. In addition, the petitioner entered into evidence transcripts of the criminal trial and sentencing, petitioner's appellate brief and appendix, the appellate brief of the State, the appellate record, the petition for certification to the Supreme Court, the State's brief in opposition to the petition for certification, and a transcript of the Motion to Suppress in the criminal case. Respondent proffered a copy of the decision of the Connecticut Appellate Court. The petitioner and respondent filed post-trial briefs on June 28, 2011, and July 21, 2011, respectively.
The Court has reviewed all of the testimony and the evidence and makes the following finding of fact.
FINDINGS OF FACT
1. The petitioner was the defendant in a criminal case in the judicial district of New Britain under docket number CR97-01693810. He was charged with two counts of murder in violation of C.G.S. §§ 53a-54a(a) and 53a-8, two counts of attempted murder in violation of C.G.S. §§ 53a-54a(a), 53a-8 and 53a-40(a)(2), conspiracy to commit murder in violation of C.G.S. §§ 53a-54a(a) and 53a-48(a), and conspiracy to commit assault in violation of C.G.S. 53a-59(a)(1) and 53a-48(a).
2. As stated by the Appellate Court, the jury could reasonably have found the following facts underlying the offense: "In May 1994, the defendant was the second highest ranking member of the New Britain chapter of the Los Solidos gang. The gang was comprised of chapters located throughout the state. The Hartford chapter, led by Jorge Rivera, exercised control over the other chapters in the state. Within each chapter there existed a hierarchical authority structure, known as a committee. The committee consisted of the chapter president, the vice president, warlords, stars and enforcers. The rest of the gang was comprised of soldiers and members. The New Britain chapter was led by Aramy Rivera, as its president, and the defendant, as its vice president. The defendant's duties in the gang included issuing orders to lower ranking members to carry out committee directives. The defendant, in his position of authority, typically instructed soldiers to perform "missions" to inflict bodily harm on others. Gang members were bound to obey orders issued by the committee under penalty of violent retribution, including death.
3. "By May 1994, a hostile relationship, marked by violence and murder, existed between the Los Solidos gang and the Latin Kings gang. The gangs were both engaged in illegal drug related activity. In May 1994, a member of the Los Solidos gang was murdered by Latin Kings members. That killing prompted Jorge Rivera, in his leadership capacity, to order retribution against the Latin Kings. Specifically, Jorge Rivera ordered the New Britain committee to murder two Latin Kings members for every Los Solidos member killed at the hands of the Latin Kings. Aramy Rivera and the defendant encouraged Los Solidos members to be prepared to carry out this directive.
4. "During the evening hours of May 14, 1994, Aramy Rivera and the defendant learned from other Los Solidos members about an incident that transpired earlier that evening between Los Solidos members and two Latin Kings members at a party in the Corbin Heights housing project in New Britain. They learned that the Latin Kings members had brandished firearms during a dispute and that the Latin Kings members were in the vicinity of the housing project where the dispute had occurred. Aramy Rivera and the defendant immediately began planning for Los Solidos members to retaliate with the use of firearms, a method of retaliation previously used by the gang. The defendant helped to select Los Solidos members to participate in the mission. The defendant instructed other gang members to obtain a stolen vehicle to use during the mission. The defendant provided gang members with clothing to wear and firearms to use during the mission. The defendant instructed Juan Santiago, the driver of the automobile used during the mission and the highest ranking Los Solidos member to participate in the mission, not to return unless someone, presumably a Latin Kings member, had been shot or killed.
5. "The four Los Solidos members who had been selected for the mission, a group that included Santiago, Maurice Flanagan, Larry Gadlin and Derrence Delgado, drove to the area of New Britain where the Latin Kings members had been observed earlier that evening. Gadlin, who had been involved in the altercation with the two Latin Kings members earlier that evening, identified the two Latin Kings members traveling in an automobile near the Corbin Heights housing project. Santiago drove the automobile carrying the Los Solidos members alongside the automobile carrying the two Latin Kings members as well as two other men. When the two automobiles were near a stop sign, Flanagan and Gadlin aimed their firearms out of the windows of their automobile and fired on the automobile carrying the Latin Kings. Flanagan and Gadlin later exited their automobile and fired on the Latin Kings' automobile as it drove away. The two Latin Kings members, Hector Rodriguez and Patrick Gannon, died as a result of the shooting. Another individual who was in the automobile, Walter Rodriguez, sustained various gunshot injuries. The fourth occupant of the vehicle, Reinaldo Mercado, did not sustain a gunshot injury." State v. Cummings, 91 Conn.App. 735, 737-39, 883 A.2d 803, cert. denied, 276 Conn. 923, 888 A.2d 90 (2005).
6. After a jury trial presided over by the Honorable Joseph M. Shortall, the petitioner was found guilty as charged and on August 19, 2003, was sentenced to a total effective sentence of seventy-five years.
Petitioner's Exhibit (Exh.) 14, p. 35-36.
7. The petitioner was represented at trial by Attorney Margaret Levy. Ms. Levy is a graduate of Barnard College and the University of Connecticut School of Law and was admitted to practice in 1994. In 2003 her practice was entirely a criminal defense practice, about fifty percent in state court and the other fifty percent in federal court. By 2003 she had handled hundreds of criminal matters, most of which were Part A cases and had had forty jury trials, including murders, assaults and other felonies, almost all of which had gone to verdict.
8. Attorney Levy testified that the trial which is the subject of this habeas petition was the second trial in which she represented petitioner for the same charges. In the first trial he was convicted and the matter was remanded on appeal. In the instant case she then had all of the information, investigation and evidence from the first trial. Petitioner had stated from the outset that he did not do the shooting and was not present at the shooting. She further stated that she had an investigator, Donald Gates, for both trials and that he had investigated all alibi witnesses that petitioner provided, none of which were helpful. Attorney Levy also indicated that, after reviewing all the evidence from the former trial, all the information obtained from her investigator and from her client, there were simply no other possible defenses.
See State v. Cummings, CT Page 23921 67 Conn.App. 734, 789 A.2d 1063 (2002).
9. Attorney Levy further stated that her client had rejected all plea bargains and it was ultimately his decision to go to trial. She also indicated that it was petitioner's decision not to testify at trial after she advised him as to the pros and cons of testifying. Further he was canvassed by the Judge Shortall concerning that decision.
Petitioner's Exh. 8, pp. 14-15.
10. The petitioner was represented on appeal by Attorney Glenn Falk. Mr. Falk is a graduate of Harvard College and Harvard Law School. As of 2003 he practiced in the area of criminal law, half of which involved appeals and the other half criminal trials. By 2005 he had done approximately thirty appeals. Attorney Falk testified that he has never filed an appeal without consulting in some manner with the defendant. He further stated that he does not remember meeting with the petitioner in person, but would have done so if he had so requested. Additionally, he stated that he reviews the issues in every appeal he has handled with legal colleagues and remembers doing so in this case. He explained that it is ultimately his decision in his role as appellate counsel as to what issues are raised on appeal after thorough review of the trial transcripts, exhibits, and any input from the defendant and trial counsel.
11. Additional facts will be discussed as needed.
DISCUSSION I.
The first count of the amended petition alleges ineffective assistance by trial counsel, Ms. Levy. More specifically, the petitioner makes no less than twenty-two (22) separate claims against Ms. Levy's representation, several of which assert failures to investigate defenses, witnesses and evidence in support of the petitioner's actual innocence. The use of a superlative such as "plethora" barely suffices to describe the sheer number of failures the petitioner purportedly was subjected to by Ms. Levy's deficient performance.
"`A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings . . . This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution . . . As enunciated in Strickland v. Washington, [ 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel . . . A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. 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 unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied.' (Citations omitted; internal quotation marks omitted.) Bryant v. Commissioner of Correction, 290 Conn. 502, 509-10, 964 A.2d 1186 (2009). `[A] reviewing court can find against a petitioner on either ground, whichever is easier.' (Internal quotation marks omitted.) Washington v. Commissioner of Correction, 287 Conn. 792, 832-33, 950 A.2d 1220 (2008)." Fernandez v. Commissioner of Correction, 291 Conn. 830, 834-35, 970 A.2d 721 (2009).
"`Constitutionally adequate assistance of counsel includes competent pretrial investigation.' (Internal quotation marks omitted.) CT Page 23918 Ostolaza v. Warden, 26 Conn.App. 758, 765, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). However, `counsel need not track down each and every . . . evidentiary possibility before choosing a defense and developing it.' (Internal quotation marks omitted.) Id. `In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been `done is not met by speculation . . . but by demonstrable realities.' (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, [ 285 Conn. 585, 599, 940 A.2d 789 (2008)].
The following excerpt from a recent Appellate Court decision affirming a habeas court's decision to deny a habeas corpus petition also asserting a "plethora" of claims against appellate counsel is highly instructive.
In count two of the amended petition, discussed below, the petitioner also alleges a multitude of failures by appellate counsel, Mr. Falk. The Appellate Court's discussion, although in the context of appellate counsel claims, is highly pertinent in this case as to both trial and appellate counsel claims, which total nearly three dozen allegations of deficient performance, a virtual tsunami.
There, "the [habeas] court stated: `[T]here 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.'"
"The [habeas] court further stated: `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 [in the direct appeal]. 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 were not.' The court summarized its assessment of the evidence, noting that the petitioner argued effectively that additional claims might have been raised in his direct appeal, but did not present any evidence that these claims ` should' have been raised such that the failure to raise such claims constituted deficient representation. (Emphasis in original.) Accordingly, the court concluded that the petitioner failed to satisfy his burden of demonstrating that his appellate counsel were ineffective as alleged." Bailey v. Commissioner of Correction, 107 Conn.App. 362, 364-65, 947 A.2d 2, cert. denied, 287 Conn. 922, 951 A.2d 568 (2008).
The petitioner has alleged a plethora of deficiencies by Ms. Levy. Given the evidence presented, which consists of the criminal trial transcripts, appellate record, appellate briefs, and the testimonies of Ms. Levy, Mr. Falk and the petitioner himself, the petitioner has failed to present evidence that takes his allegations outside the realm of speculation. Stated somewhat differently, the evidence presented in support of the claims of ineffective assistance by trial counsel, including the petitioner's own testimony, in no way goes to affirmatively prove deficient performance, let alone how such deficiencies prejudiced the petitioner by undermining this court's confidence in the outcome of the criminal trial. Therefore, the petitioner's myriad claims lacking virtually any evidentiary support are denied.
II.
The second count of the amended petition alleges that Mr. Falk rendered ineffective assistance as appellate counsel. "Our Supreme Court has distinguished the standards of review for claims of ineffective assistance of trial counsel and of appellate counsel. See Small v. Commissioner of Correction, 286 Conn. 707, 721-24, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). For claims of ineffective assistance of appellate counsel, `[courts] must assess whether there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed [on] appeal, i.e., [obtaining] reversal of his conviction or granting of a new trial.' Id., 722.
"`Our Supreme Court has adopted [the] two part analysis [set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] in reviewing claims of ineffective assistance of appellate counsel . . . The first part of the Strickland analysis requires the petitioner to establish that appellate counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [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 . . . The right to counsel is not the right to perfect representation . . . [Although] an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions . . . Indeed, [e]xperienced 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 . . . Most cases present only one, two, or three significant questions . . . The effect of adding weak arguments will be to dilute the force of the stronger ones . . . Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation.' (Internal quotation marks omitted.) Bailey v. Commissioner of Correction, 107 Conn.App. 362, 366-67, 947 A.2d 2, cert. denied, 287 Conn. 922, 951 A.2d 568 (2008)." Johnson v. Commissioner of Correction, 131 Conn.App. 805, 808-09 (2011).
Again, "[i]n a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation . . . but by demonstrable realities." (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, supra, 285 Conn. 599.
Attorney Falk testified about the representation he provided as appellate counsel, as well as his process of reviewing the record in a case to ascertain the claims to raise on appeal. There is no evidence aside from Mr. Falk's testimony and the appellate record probative of his representation. Count two, while it alleges a dozen failures or deficiencies by Mr. Falk, remains wholly unproven. The petitioner has failed to prove deficient performance and, even if the first prong had been proven, that he somehow would have prevailed on appeal.
CONCLUSION
Based upon the foregoing, the petition for a writ of habeas corpus is denied. Counsel for the petitioner shall prepare and within thirty days submit to the clerk a judgment file.
It is so ordered.