Opinion
No. CV 05 4000470
August 27, 2007
MEMORANDUM OF DECISION ON WRIT OF HABEAS CORPUS PETITION
The petitioner, Jason M. Day, filed a pro se habeas corpus petition on June 7, 2005, in which he claims that he was denied his statutory right to the effective assistance of habeas counsel. Specifically, the petitioner alleges that his habeas counsel was ineffective because he failed to raise a claim of actual innocence and a claim of ineffective assistance of trial counsel in his previous habeas petition. Presently, the petitioner is in the custody of the Commissioner of Correction in the state of Connecticut.
The matter came before the court for a trial on the merits on May 7, 2007. Witnesses included prior habeas counsel James J. Ruane, trial defense counsel Patrick Culligan and the petitioner. Based on the court's review of the testimony and evidence, judgment enters denying the habeas corpus petition.
FINDINGS OF FACTS
The petitioner was the defendant in a case entitled State v. Day that was prosecuted in the Judicial District of Fairfield at Bridgeport. The petitioner was charged with one count of capital felony murder in violation of General Statutes § 53a-54b(8), four counts of murder in violation of § 53a-54a(a) and one count of assault in the third degree in violation of § 53a-61(a)(1).
The facts regarding the underlying offenses are taken from the decision on the petitioner's first writ of habeas corpus: "[T] he jury could have reasonably found that in early 1990, the petitioner resided in a one bedroom apartment in Bridgeport with his girlfriend, Lisa G.; Lisa's brother, Raymond G.; Raymond's girlfriend, Theresa H.; and Theresa's sons, five-year-old George G. and two-year-old Marcus G. Sometime before 10 p.m. on March 19, 1990, the petitioner shot and killed Raymond G., Lisa G. and George G. in the apartment. The petitioner also shot and killed Theresa H. while she was in her car in the parking area of the apartment house and dragged her body to an adjacent storage shed. Either before or after shooting Theresa H., the petitioner repeatedly struck her in the head with the blade of a snow shovel. Each victim was shot in the head from close range. Marcus G., who was present in the apartment when the shootings took place, had been slapped in the face by the petitioner but had not been shot.
"The petitioner thereafter drove Theresa H.'s car to the hospital in New York City, where he requested treatment under an assumed name and was diagnosed as having a fractured toe. Although he was scheduled for surgery, the petitioner left the hospital before the operation was due to be performed. He subsequently was apprehended in a hospital in Baltimore by agents of the Federal Bureau of Investigation (FBI) on charges of unlawful flight to avoid prosecution. While in custody, the petitioner confessed his role in the killings to FBI agents.
"The gun used to shoot the victims was a revolver. This revolver was recovered by the New York City Police Department underneath the front seat of Theresa H's car that had been left at the hospital in New York.
"A blue snow shovel was found next to Theresa H.'s body. Blue flakes of paint were discovered on her body as well as on the steering wheel of the car the petitioner drove to New York City." (Internal quotation marks omitted.) Day v. Warden, Superior Court, judicial district of Tolland at Rockville, Docket Number CV 01 0003455 (Feb. 19, 2003, Fuger, J.).
Attorneys Patrick Culligan and William Holden were appointed to represent the petitioner. At that time, Culligan worked at the trial services unit in the office of the chief public defender and Holden was an attorney in the public defender's office in the judicial district of Fairfield. On March 4, 1991, the petitioner filed a pro se motion for a speedy trial, which was granted by the court over the objection of the petitioner's trial attorneys. On March 26, 1991, the court granted the petitioner's motion to waive his right to counsel and to represent himself. Culligan was appointed as standby counsel.
William Holden is now a Superior Court judge.
Jury selection began on March 27, 1991. The petitioner represented himself through the selection of the twelve-person jury and the first four state's witnesses. On May 21, the petitioner requested that his standby counsel be reinstated to represent him. The court granted the motion, reappointing Culligan and Holden. Culligan and Holden sought a 60-day continuance of the case; however, the trial court granted only a 13-day continuance.
Throughout the rest of the trial, the petitioner was represented by attorneys Culligan and Holden. On July 22, 1991, the petitioner was convicted by the jury on all counts. The petitioner was sentenced by the court (McKeever, J.) on October 23, 1991, to a total effective sentence of life in prison without the possibility of release. The petitioner's conviction was affirmed by the Supreme Court. State v. Day, 233 Conn. 813, 661 A.2d 539 (1995).
In the prior writ of habeas corpus, the petitioner alleged that his trial attorneys were ineffective because the trial court refused them a thirty-day continuance; that he was denied the effective representation of trial defense counsel; and that he was denied the effective representation of appellate counsel. After careful and thorough consideration of all of his claims, the court (Fuger, J.) denied the petition. The petitioner's appeal of that judgment was affirmed. Day v. Commissioner of Correction, 86 Conn.App. 522, 862 A.2d 309 (2004).
Additional facts will be discussed as necessary.
DISCUSSION
"The right to effective assistance of counsel is predicated on the statutory right to habeas counsel pursuant to General Statutes 51-296, which provides for the appointment of counsel for an indigent person `in any habeas corpus proceeding arising from a criminal matter . . . `It would be absurd to have the right to appointed counsel who is not required to be competent. [C] ounsel should be appointed in post conviction matters . . . When counsel is so appointed he must be effective and competent. Otherwise, the appointment is a useless formality . . . Indeed, 51-296 would become an empty shell if it did not embrace the right to have the assistance of a competent attorney." (Citation omitted; internal quotation marks omitted.) Lozada v. Warden, 223 Conn. 834, 838-39, 613 A.2d 818 (1992).
To succeed on a claim of ineffective assistance of habeas counsel, "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 unreliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.d 674 (1984) . . . 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 counsel. The second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement." (Citations omitted; internal quotation marks omitted.) Lozada v. Warden, supra, 23 Conn. 842-43.
Here, the petitioner claims that prior habeas counsel was ineffective because he failed to raise an actual innocence claim. To prevail on a claim of actual innocence, a petitioner must overcome two hurdles. "First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence . . . that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty." Miller v. Commissioner of Correction, 242 Conn. 745, 791-92, 700 A.2d 1108 (1997).
In addition, the Connecticut Appellate Court "has held that a claim of actual innocence must be based on newly discovered evidence. Clarke v. Commissioner of Correction, 43 Conn.App. 374, 379, 682 A.2d 618 (1996), appeal dismissed, 249 Conn. 350, 732 A.2d 754 (1999). [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered. Williams v. Commissioner of Correction, 41 Conn.App. 515, 530, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997). This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence." (Internal quotation marks omitted.) Batts v. Commissioner of Correction, 85 Conn.App. 723, 726-27, 858 A.2d 856, cert. denied, 272 Conn. 907, 863 A.2d 697 (2004).
Prior habeas counsel, James Ruane, testified that he reviewed the petitioner's entire criminal file in preparation for the first habeas trial. Ruane further testified that he did not raise an actual innocence claim because there was absolutely no evidence to support such a claim. Indeed, the petitioner has not proffered any new evidence here that could be applied to an actual innocence claim. The arrest warrant affidavit (Ex. 1) adduced by the petitioner in support of his claim was available at the time of the criminal trial; thus, it cannot be considered newly discovered evidence. "Entertaining claims of actual innocence that are not based on newly discovered evidence would have a disruptive effect on the finality of judgments because it would permit a petitioner to raise allegations that, absent proof of an antecedent constitutional violation that affected the result of his criminal trial, could have been raised at the criminal trial." Williams v. Commissioner of Correction, supra, 41 Conn.App. 527. The petitioner has therefore failed to meet the threshold requirement for a cognizable claim of actual innocence. Habeas counsel certainly cannot be considered ineffective for failing to raise an actual innocence claim when the petitioner cannot provide the court with even the slightest indication that newly discovered evidence exists to support that claim.
Even if the petitioner had presented this court with newly discovered evidence, there is neither clear nor convincing evidence that the petitioner is actually innocent. As Ruane testified at the habeas trial, the information contained in the affidavit puts the petitioner at the scene of the crime. It is therefore not supportive of the petitioner's claim. The petitioner has not asserted any other facts in support of his actual innocence. Thus, the petitioner has failed to prove that he is actually innocent. Put into the context of the petitioner's ineffective assistance claim, there is no reasonable probability that, had habeas counsel raised a claim of actual innocence, the outcome of the petitioner's habeas trial would have been different. The claim therefore fails on both prongs of the Strickland test.
The petitioner next claims that competent habeas counsel would have raised a claim concerning trial counsel's failure to seek a jury instruction pursuant General Statutes § 54-83. Section 54-83 "provides that `[n] o person may be convicted of any crime punishable by death without the testimony of at least two witnesses, or that which is equivalent thereto.' " State v. Day, supra, 233 Conn. 848.
There is no need to conduct an analysis on the first prong of the Strickland test because the petitioner has failed to prove that he was in any way prejudiced by counsel's performance. "Because 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 . . . Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim." (Internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn.App. 1, 11-12, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).
Even if the jury had been given the statutorily prescribed instruction, it is not reasonably probable that the outcome of the petitioner's case would have been different. "[W] hile colloquially referred to as the `two witness' rule, [Connecticut] cases establish that § 54-83 does not actually require the testimony of two eyewitnesses in order for the jury to convict in a death-eligible prosecution . . . The statute, which explicitly allows the state to have recourse to `equivalent' evidence, is satisfied when, in addition to the testimony of a witness, the state introduces circumstantial evidence from which the jury may infer the defendant's guilt." (Citations omitted.) State v. Day, supra, 233 Conn. 851-52.
The state presented ample "equivalent" evidence to meet the requirement established under § 54-83. "[T] he state introduced autopsy reports for the victims that attributed their deaths to gunshot wounds to the head. Agents of the FBI testified that the [petitioner] had confessed to the murders. [A witness] testified that, two weeks before the murders, the [petitioner] had threatened to kill everyone living in the apartment if Lisa G. attempted to leave him. The [petitioner's] fingerprints were found on the handle of the shovel used to bludgeon Theresa H. From the car that the [petitioner] admitted driving to the hospital in New York, the police recovered a gun, belonging to Raymond G., which the [petitioner] had been seen to handle on many prior occasions. Ballistics tests demonstrated that the eight shell casings recovered from the murder scene had been fired by that gun." Id., 852.
Based on the foregoing, an instruction pursuant to § 54-83 would not have in any way impacted the reliability of the petitioner's conviction. The petitioner has failed to prove ineffective assistance of trial counsel; as a result, he has also failed to prove that habeas counsel was ineffective for failing to raise that claim.
The petitioner finally claims that habeas counsel was ineffective because he failed to withdraw from the petitioner's case due to a conflict of interest. According to the amended petition, in the previous habeas action the petitioner filed a pro se motion to discharge Ruane as habeas counsel. A hearing was held on the motion, and Ruane was allowed to proceed in his representation of the petitioner.
"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 [the] effective assistance of counsel . . . Where a constitutional right to counsel exists . . . there is a correlative right to representation that is free from conflicts of interest." (Internal quotation marks omitted.) State v. Barnes, 99 Conn.App. 203, 216, 913 A.2d 460, cert. denied, 281 Conn. 921, 918 A.2d 272 (2007). For habeas claims involving an alleged conflict of interest, "to establish a violation of the sixth amendment 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." (Internal quotation marks omitted.) Phillips v. Warden, 220 Conn. 112, 133, 595 A.2d 1356 (1991).
The Connecticut Supreme Court "has described a conflict of interest as that which impedes [counsel's] paramount duty of loyalty to his client [such that] an attorney may be considered to be laboring under an impaired duty of loyalty, and thereby be subject to conflicting interests, because of interests or factors personal to him that are inconsistent, diverse or otherwise discordant with [the interests] of his client . . ." (Internal quotation marks omitted.) State v. Barnes, supra, 99 Conn.App. 217. "Allegations that a defendant is simply unhappy with counsel's performance, without more, do not create a conflict of interest." Id., 217-18.
The petitioner's claim has absolutely no merit. The petitioner testified that the conflict of interest arose when Ruane advised the petitioner that he could not in good conscious raise a claim of actual innocence or a claim concerning the failure of trial counsel to request specific jury instructions. By so advising the petitioner, Ruane was acting in accordance with the Rules of Professional Conduct; see Rules of Professional Conduct 3.1, commentary; and was not actively representing competing interests. Ruane never indicated that his interests were diverse with those of the petitioner or that he would be unable to effectively pursue the petitioner's other claims. Based on the record, it is clear to this court that Ruane's representation of the petitioner was more than reasonably competent. There is absolutely no evidence that there was any conflict of interest whatsoever or that counsel's performance was adversely affected by the alleged conflict. The court finds that the petitioner has failed to prove the claims asserted in the pro se petition. Accordingly, the writ of habeas corpus is denied.
Rule 3.1 of the Connecticut Rules of Professional Conduct provides: "A lawyer shall not bring or defend a proceeding or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous." The commentary provides in relevant part: "What is required of lawyers . . . is that they inform themselves about the facts of their client's cases and the applicable law and determine that they can make good faith arguments in support of their client's positions." Id., commentary.