Opinion
No. CV04-4000164
August 21, 2007
MEMORANDUM OF DECISION
The petitioner, Melvin Delgado, inmate #232938, alleges in his petition for a Writ of Habeas Corpus initially filed on November 2, 2004 and amended for the final time on February 20, 2007, that his convictions following a trial to a jury of: Murder in violation of C.G.S.A. §§ 53a-54a(a) and 53a-8, and the commission of a felony with a firearm in violation of C.G.S. § 53-202k was defective under both the United States Constitution and the Constitution of the State of Connecticut. The petitioner was sentenced to serve a total effective sentence of sixty-five years. He asserts that he is entitled to have his conviction and sentence set aside.
This habeas petition came on for trial before the Court on July 24, 2007 and again on August 14, 2007. The Court received testimony from the petitioner, his trial defense counsel, Attorney Kimberly Graham, his appellate counsel, Atty. Theresa Dalton, and the petitioner's brother, Alvin Delgado. In addition, the Court also received various pieces of documentary material into evidence, including the transcript of the petitioner's criminal trial and the statement he made to the police.
After considering all of the evidence presented at the habeas trial, this court concludes that the petitioner has not met his burden of proving ineffective assistance of counsel as regards the underlying conviction and sentence and will deny those portions of the petition seeking release from confinement and vacation of the conviction.
The petition initially contained five counts. Count I alleges Ineffective Assistance of Trial Defense Counsel. Count II alleges Ineffective Assistance of Appellate Counsel, Count III alleges Prosecutorial Misconduct. Count IV alleges Denial of Due Process due to Cumulative Errors. Count V alleges a Claim of Actual Innocence. Pursuant to a Motion to Dismiss filed by the Respondent, the Court on the record on July 24, 2007, dismissed Counts III and IV as being procedurally defaulted. The Respondent alleged the defense of procedural default and the petitioner declined to file a Reply, thereby admitting the procedural default as to these two counts.
Findings of Fact
1. The petitioner was a defendant in a criminal case proceeding in the Judicial District of Hartford under Docket No. CR14-467814 in which he was charged with committing the crimes of: Murder in violation of C.G.S.A. §§ 53a-54a(a) and 53a-8, and the commission of a felony with a firearm in violation of C.G.S. § 53-202k.
It was not fully explained why, but it appears that the name by which the petitioner was known was Gabrielle. This is the name on the Appellate decision as well. Nevertheless, the petitioner's correct first name is Melvin and it is stipulated that Melvin Delgado and Gabrielle Delgado are the same person.
2. In its decision, the Supreme Court found that a jury could reasonably have concluded that the following facts were true. "On the evening of December 20, 1994, the defendant, a member of the Los Solidos street gang, was socializing with friends at a party in an apartment in Hartford's Dutch Point housing project (Dutch Point). A fellow Los Solidos gang member, identified only by the nickname `Cheesecake,' also was present at the party. Late in the evening, the defendant, who was carrying a nine millimeter pistol, left the party and went to meet Cheesecake at a nearby store located at 63 Norwich Street. Cheesecake was armed with a .38 caliber revolver.
State v. Delgado, 247 Conn. 616 (1999).
3. "Shortly after midnight, while he was walking from Dutch Point to the store, the defendant encountered the victim, Anthony Battle, near the intersection of Stonington and Norwich Streets. The defendant recognized the victim as a member of Twenty Love, a rival gang with which the Los Solidos gang was at war. The defendant approached the victim from the Stonington Street side of the intersection, and the two men engaged in a heated argument. The defendant, who at this time was approximately fifteen to twenty feet from the victim, drew his pistol and began firing at the victim. While the defendant was shooting at the victim, Cheesecake, who was standing at the Norwich Street side of the intersection, also opened fire on the victim. The defendant and Cheesecake continued to shoot at the victim as he attempted to flee. After firing thirteen rounds, the defendant watched as the wounded victim climbed a fence and escaped into a nearby park. Thereafter, the defendant and Cheesecake left the scene separately.
4. "Within minutes, two Hartford police officers arrived at the scene of the shooting and found the victim lying on the ground in intense pain. He had been shot twice, once in the back of the right leg and once in the back of the right arm. The victim told the officers that he had been shot by members of Los Solidos and that at least one of the shooters was Hispanic. The victim was transported to Hartford Hospital, where he subsequently died from loss of blood caused by his gunshot wounds."
5. Attorney Kimberly Graham represented the petitioner at all pertinent points in the criminal trial.
6. Attorney Theresa Dalton represented the petitioner on appeal to the Supreme Court.
7. The petitioner did not testify at the hearing on the Motion to Suppress his confession.
8. Attorney Graham, the petitioner's attorney was present at all stages of the trial, with the exception of the third day of jury deliberations. On that day, Attorney Norma I. Sanchez-Figueroa appeared as defense counsel in place of Ms. Graham.
9. Despite the protestations of Atty. Sanchez-Figueroa that Atty. Graham was on her way back to Hartford from a court appearance in Bristol and would arrive within twenty minutes, the trial judge declined to hold the report of the verdict and took the jury's verdict in the absence of Ms. Graham.
10. The petitioner was convicted of all of the charges.
11. Thereafter, the Court, Corrigan, J. sentenced the petitioner to a term of sixty-five years imprisonment.
12. Additional facts will be discussed, as necessary, in subsequent portions of this decision.
Discussion
The petitioner now comes before this Court seeking to have this court set aside his conviction of guilty to the charge of murder in violation of C.G.S. § 53a-54a, and order that his case be returned to the docket for a new trial. In this petition for a writ of habeas corpus, the petitioner is alleging that he was deprived of the effective representation of trial defense counsel and appellate counsel as guaranteed by the Sixth Amendment to the United States Constitution. The petitioner specifically complains that his trial defense counsel did not do a good job for him because she failed to: (a) have the petitioner testify at the suppression hearing; (b) investigate and subpoena possible defense witnesses; (c) offer an alibi defense; (d) object to improper comments by the prosecutor; (e) be present for all critical stages of the trial; and, (f) review the Pre Sentence Investigation (PSI). The complaints against the appellate counsel are pled in a non-specific manner so this Court is unable to ascertain the exact nature of the alleged deficiencies of appellate counsel. The remainder of this Memorandum shall deal with the Ineffective Assistance of Counsel claims.
The petitioner has raised a claim of actual innocence, however that claim was all but abandoned in the trial of this matter. In order for a petitioner to prevail on a claim of actual innocence, there is the threshold question regarding the issue of actual innocence that must be considered by the Court. "The respondent asserts that a claim of actual innocence, when raised in a habeas corpus proceeding, must be based on newly discovered evidence. To be considered `newly discovered,' `the evidence must be such that it is not cumulative, was not available to the petitioner at his criminal trial and could not have been discovered prior to the criminal trial through the exercise of due diligence.' In Clarke v. Commissioner of Correction, 249 Conn. 350, 375-58 (1999), our Supreme Court has left the absolute requirement of newly discovered evidence an open question in our habeas jurisprudence `until the actual outcome of the case is likely to depend on the answer to the legal question.' Id. at 351." LaPonte v. Warden, No. CV 97-0571161 (Sep. 6, 2000), Freed, J. Although having been presented with several opportunities to do so, our Supreme Court has declined to make the definitive statement. Consequently, while the final rule in this state may be to the contrary, as it stands at this time, the operative appellate decision on this issue is Clarke v. Commissioner, 43 Conn.App. 374 (1996).
In Clarke, the Appellate Court "concluded that although no governing standard of proof exists under which a claim of actual innocence should be evaluated, such a claim must, nonetheless, be based on newly discovered evidence. Williams v. Commissioner of Correction, supra, 41 Conn.App. 527. [The Appellate Court] concluded that `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.' (Emphasis added.) Id., 530. Moreover, `[it] incorporate[d] the due diligence component of the standard used in determining whether a new trial should be granted because of newly discovered evidence in the determination of whether a writ of habeas corpus should issue as a result of a petitioner's claim of actual innocence.' Id., 528. Thus, [it] held that a petitioner must demonstrate, by a preponderance of the evidence, that the proffered evidence is such that it could not have been discovered earlier by the exercise of due diligence." Clarke, supra at 379.
So, at least for the present, the petitioner must demonstrate not only that there is newly discovered evidence but also with a preponderance of the evidence that he could not have discovered such evidence earlier through the exercise of due diligence. It is clear that the evidence proffered by the petitioner cannot be considered newly discovered evidence. All that the petitioner put forth is testimony of his brother to the effect that he had an alibi and was at a party. His brother's statement and testimony was easily within his ability to procure back at the time of the original trial. Consequently, the petitioner has failed to show that there is newly discovered evidence and his claim of actual innocence must fail.
Any claim of ineffective assistance of counsel 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 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 trial performance may have been substandard, will result in denial of the petition.
I. Ineffective Assistance of Trial Defense Counsel
In regard to the petitioner's complaint, it is important at the outset to recognize that this instant proceeding is an action seeking the issuance of a writ of habeas corpus. This case having been tried and appealed to the Connecticut Supreme Court is now in, what has colloquially come to be known as the "court of last resort." A petition for a writ of habeas corpus is, therefore, an application for extraordinary judicial relief in which, contrary to the criminal trial court, the burden of persuasion rests with the petitioner.
This may seem to be difficult for a layman to accept, given the oft-repeated phrase that "one is innocent until proven guilty." However, in a habeas corpus proceeding, the petitioner is not innocent and has, in fact been already proven guilty beyond all reasonable doubt. Moreover, a habeas petitioner has more likely than not had the opportunity to have at least one appellate court review the case to determine if there have been any errors of law that were made by the trial court. Given that a habeas petition is often called the "court of last resort" it should not be unexpected that the burden of showing an irregularity must now rest with the petitioner.
One must understand that there is 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." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994). Consequently, even though our courts have recognized that "a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial," Summerville v. Warden, 229 Conn. 397 at 422 (1994), the burden of proving entitlement to the grant of a writ rests with the petitioner. "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, infra, at 422.
The writ of habeas corpus is an ancient and time-honored component of our Anglo-American jurisprudence. "We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence: `the most celebrated writ in the English law.' 3 Blackstone Commentaries 129. It is `a writ antecedent to statute, and throwing its root deep into the genius of our common law . . . It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I." Fay v. Noia, 372 U.S. 391 at 399 (1963). When the United States achieved independence from England, the writ was embodied in our law as well. "Received into our own law in the colonial period, given explicit recognition in the Federal Constitution, Art. I, § 9, cl. 2, incorporated in the first grant of federal court jurisdiction, Act of September 24, 1789, c. 20, § 14, 1 Stat. 81-82, habeas corpus was early confirmed by Chief Justice John Marshall to be a `great constitutional privilege.' Ex parte Bollman and Swartwout, 44 Cranch 75, 95." Fay v. Noia, infra at 400 (1963).
Edward I reigned in England in the late 13th century A.D.
Issuance of a writ of habeas corpus is a remedy whose "most basic traditions and purposes are to avoid the grievous wrong of holding a person in custody in violation of the federal constitution and thereby protect individuals from unconstitutional convictions and help guarantee the integrity of the criminal process by ensuring that trials are fundamentally fair." O'Neal v. McAnnich, 513 U.S. 432 at 442 (1995). Moreover, when a court reviews a petition for habeas corpus, "it must decide whether the petitioner is in custody in violation of the Constitution or laws or treaties of the United States. The court does not review a judgment, but the lawfulness of the petitioner's custody simpliciter." Coleman v. Thompson, 501 U.S. 722 at 730 (1991). So, the writ of habeas corpus "has been for centuries esteemed the best and only sufficient defense of personal freedom." Lonchar v. Thomas, 517 U.S. 314 (1996).
A criminal defendant has an absolute Constitutional right to persist in a plea of not guilty, even in the face of seemingly insurmountable obstacles and overwhelming evidence. He or she has an absolute right to hold the government to its justifiably high burden of proof and take the matter to a jury of his or her peers. The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers. Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt. Moreover, all criminal defendants are entitled to the representation of counsel. The sixth amendment to the United States constitution provides in relevant part: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . and to have the assistance of counsel for his defense." The sixth amendment right of confrontation and right to counsel is made applicable to the states through the due process clause of the fourteenth amendment. See Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), respectively. Moreover, the Sixth amendment right to counsel is the right to an effective counsel.
"The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The `demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula `beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.'" In re Winship, 397 U.S. 358 at 361 (1970).
It is not, and never has been, for the trial defense counsel to make the decisions that a client must make. The defendant decides how to plead, whether to testify, whether to waive the right to trial by jury, etc. Nevertheless, effective representation is crucial. "Because a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the `right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.' Copas v. Commissioner of Correction, 234 Conn. 139, 154 (1995)." See Baillargeon v. Commissioner of Correction, 67 Conn.App. 716 at 721 (2002). Consequently, an attorney who fails to offer his or her client proper counsel at critical junctures in the trial may well be providing ineffective representation.
In the instant case, the petition alleges that Attorney Graham was ineffective in the manner in which she represented the petitioner. This Court is not persuaded that the representation of Attorney Graham has been deficient in any regard, much less that the petitioner suffered any sort of prejudice.
As already noted, a criminal defendant is entitled to the representation of trained and competent legal counsel. Notwithstanding, "[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. Washingon, 466 U.S. 668, 689; United States v. Cronic, 466 U.S. 648, 656 (1984)." Yarborough v. Gentry, 540 U.S. 1 at 8 (2003). This court sincerely doubts that any defense attorney has ever conducted the perfect criminal trial. However, the law does not demand such representation. In this case, it is clear that Attorney Graham did provide quality representation, although the outcome was not favorable for the petitioner.
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. A habeas court "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 regard to prejudice, the petitioner must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, infra, at 694. "To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962). D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); see also Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." (Internal quotation marks omitted.) Buckley v. Commissioner of Correction, 222 Conn. 460-61. Summerville v. Warden, 229 Conn. 397 at 419 (1994).
The habeas petition seems to revolve around the voluntariness of the confession offered by the petitioner when he was arrested for the murder of Anthony Battles. Indeed, that is what Atty. Graham identified as the key to this case in that she put extraordinary effort into attacking the voluntariness of the confession in an unsuccessful attempt to get it suppressed. The allegation at the habeas trial was that the petitioner should have testified himself at the suppression hearing. If he had and testified as he did at the habeas trial, this Court is certain that whatever chance Atty. Graham had had to get that statement suppressed would have been spectacularly blown away by the mendacious testimony of the petitioner. At the habeas trial, the petitioner told the fantastic tale of not having told the police anything and that he signed a blank piece of paper. The implication of this testimony, of course, is that with the signed blank paper, the police filled in the confession in the way that would implicate the petitioner without his knowledge. Unfortunately for the petitioner, and his credibility, there are several strikeouts throughout the document that have also been initialed by the petitioner. It completely stretches believability to find that the police took a blank, signed piece of paper and lined up all of the typed text such that not only does the signature fall on the signature line, but all of the strikeouts do as well. Consequently, the Court finds the petitioner to be lacking in credibility.
It is true that the trial defense counsel did not present an alibi defense. Of course, in order for this to constitute ineffective assistance, there must be some prejudice to the petitioner. Given that there is no credible support for an alibi, other than the testimony of the petitioner and his brother, there is no reasonable probability that the result of the trial would have been any different.
The issue of the petitioner being at the party was, in fact, raised in front of the jury and, apparently rejected. This Court is convinced that even had the testimony of both Delgado brothers been presented to the jury, it would have made no difference.
All of the other claims of the petitioner have failed to be proven and are rejected. Specifically as to the claims against the appellate counsel, there has been no evidentiary basis presented to this court to permit it to conclude that Appellate Defense Counsel was anything other then effective.
This Court is well aware 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, supra. 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. In the final analysis then, the question before this Court is whether the petitioner is burdened with an unreliable conviction. Given the state of the evidence presented to this Court at the habeas trial, there simply is no basis upon which this Court can conclude that there is any unreliability in the petitioner's conviction. Through his own testimony before this habeas court the petitioner has conclusively proven that he lacks credibility and that all of the issues surrounding the representation of Attys. Graham and Dalton alleged ineffective representation are baseless.
Or, as the British legal system might phrase it, "Is the petitioner burdened with an unsafe conviction?"
The Petition for a Writ of Habeas Corpus is denied.
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