Opinion
CV144006040
09-01-2016
Raul Diaz (#160833) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Hon. Vernon D. Oliver, J.
The petitioner, Raul Diaz, initiated this petition for a writ of habeas corpus, claiming that his underlying trial counsel provided him ineffective legal representation. He seeks an order of this court vacating his plea and convictions and returning the matter to the criminal court for further proceedings. The respondent denies the claims, moves that the petition be dismissed for failure to state a claim upon which habeas relief can be granted, and asserts the special defense of procedural default. The court finds the issues for the respondent and DENIES the petition.
I
Procedural History
In the criminal matter State v. Raul Diaz, TTD-CR11-0655336, in the Tolland Judicial District, the petitioner, having been originally charged with two counts of burglary in the first degree, in violation of Connecticut General Statutes § 53a-101(a)(1) and (a)(2); two counts of home invasion, in violation of Connecticut General Statutes § 53a-100aa; one count of larceny in the third degree, in violation of Connecticut General Statutes § 53a-124; one count of larceny in the fourth degree, in violation of Connecticut General Statutes § 53a-125; one count of assault in the second degree, in violation of Connecticut General Statutes § 53a-60b; and one count of robbery in the first degree involving a dangerous instrument, in violation of Connecticut General Statutes § 53a-134(a)(3), after a plea of guilty, was convicted, on April 26, 2013, of one count of home invasion, in violation of Connecticut General Statutes § 53a-100aa. On that same date, the court, Solomon, J., sentenced the petitioner to a total effective sentence of twenty-five years incarceration. At all relevant times the petitioner was represented by Attorney Robert Pickering. There was no appeal or other relevant post-trial motions.
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 factfinding 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).
Credibility
It is well established that " [i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude . . . An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [factfinder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 155, 920 A.2d 236 (2007) (See also Dadio v. Dadio, 123 Conn. 88, 92-93, 192 A. 557 (1937)). Such observation may include all genuine and spontaneous reactions of the witness in the courtroom, whether or not on the stand, but only to the extent that they bear on the witness's credibility. State v. McLaughlin, 126 Conn. 257, 264-65, 10 A.2d 758 (1939). It is generally inappropriate for the trier [of fact] to assess the witness's credibility without having watched the witness testify under oath. Shelton v. Statewide Grievance Committee, 277 Conn. 99, 111, 890 A.2d 104 (2006).
" 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, 117 Conn.App. 120, 126, cert. denied, 294 Conn. 904, 982 A.2d 647 (2009).
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).
" It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations . . . it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised . . . The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise . . . [T]he [petition] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties." (Citation omitted; internal quotation marks omitted.) Lebron v. Commissioner of Correction, 274 Conn. 507, 519-20, 876 A.2d 1178 (2005), overruled in part on other grounds by State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014).
The petitioner initiated the instant action with the filing of his pro se petition on March 11, 2014. In the operative pleading, a second amended petition dated January 21, 2016, the petitioner asserts that underlying counsel was constitutionally deficient in the following ways:
1. Trial counsel " failed to file any motions in the case, " including a motion to dismiss the charge of home invasion;
2. Trial counsel " failed to do any investigation of any kind" into the underlying incident or the petitioner's background;
3. Trial counsel and the trial judge made a racial comment on the record concerning the Latin community;
4. Trial counsel failed to pursue the defense of diminished capacity as the petitioner was " high" on drugs during the incident;
5. Trial counsel failed to present a self-defense theory to the court during the proceedings;
6. The attorney-client relationship had broken down during the proceedings (this claim is clarified in the petitioner's pre-trial memo to assert a due process claim that underlying counsel suffered a conflict of interest in his representation of the petitioner); and
7. Trial counsel misadvised the petitioner to waive his right a pre-sentence investigation prior to the imposition of the agreed upon sentence. The petitioner asserts that the background information likely to have been contained therein would have " shed light" on the petitioner's drug use leading up to the incident.
The Court heard the trial of this matter on August 8, 2016. The petitioner presented as witnesses himself and Attorney Pickering. The petitioner entered four full exhibits into evidence.
A
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.
" When a habeas petitioner alleges ineffective assistance of trial counsel in connection with his plea of guilty, his failure to move to withdraw his plea or to challenge his plea on direct appeal will not constitute procedural default." (Citation omitted; internal quotation marks omitted.) Merle S. v. Commissioner of Correction, 167 Conn.App. 585, 593 (2016).
I
Failure to File Motions, Including a Motion to Dismiss the Charge of Home Invasion
The petitioner asserts in his pleadings and argument that counsel's failure to file " any" motions was constitutionally deficient. Even if this were true, such a claim would depend upon the facts and circumstances of an individual criminal case and the reasons for not pursuing certain motions. In the instant matter, however, the assertion is simply inaccurate and is, therefore, unavailing.
During his habeas trial testimony, underlying counsel, Attorney Robert Pickering, testified credibly and thoroughly as to the number and subject matter of the several motions he filed in the underlying matter, including discovery requests and three different motions to suppress. Other than a motion to dismiss, the petitioner's overly broad and wholly inaccurate assertion does not specify what motion should have been filed and what expected result would have beneficial to the petitioner. Regarding the claim that underlying counsel was deficient in failing to file a motion to dismiss the charge of home invasion, this court, having reviewed the operative home invasion statute, concurs with the analysis and conclusion of underlying counsel that there was no good faith basis upon which to challenge the home invasion charge, as the factual basis upon which the prosecution rested (and that the petitioner, including through his own habeas trial testimony has failed to credibly refute, even considering his " specious" self-defense claim) supported the essential elements of home invasion. The petitioner has also failed to refute the analysis of underlying counsel that this was a strong case for the prosecution with a sympathetic elderly victim who suffered injuries in his own home due to the petitioner's intentional assault with a dangerous instrument (to wit: a jewelry box).
Finally, while counsel testified that, factually and legally, he agreed with the prosecuting authority's assessment that the petitioner's actions constituted a violation of the home invasion statute, he nonetheless argued, to the court and the prosecutor that the matter was more properly prosecuted as a first degree burglary. His argument failed to convince the prosecuting authority or the court. Accordingly, the petitioner has failed to establish both deficient performance and prejudice.
2
Failure to Investigate
The Petitioner asserts that counsel was ineffective in making " no attempt" to investigate the underlying matter and by failing to do " any investigation of any kind" into the incident or the petitioner's background. This claim, based on the credible evidence in the record, fails. The court credits the habeas trial testimony of underlying counsel that he retained an investigator in this matter. The petitioner presented no evidence to refute this testimony. Counsel testified that he did not send his investigator out to interview the victim in this matter as he " didn't think it was necessary." Counsel also testified that he did not want to add to the already " damning" evidence against the petitioner or raise the ire of the prosecution by being seen as harassing the victim when there was no good reason to support contacting him.
" The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when (s)he was conducting it . . . The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." (Citations omitted; internal quotation marks omitted.) Norton v. Commissioner of Correction, 132 Conn.App. 850, 858-59, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).
The petitioner has failed to establish what additional benefit would have accrued to him by interviewing the victim in this matter. The notion that the victim would have somehow corroborated the petitioner's incredible self-defense theory is not supported by any credible evidence in the record. Further, as underlying counsel testified credibly that he was aware of the petitioner's version of events regarding the incident, the petitioner's expectations in the case, his history of drug use, and his admission that he was under the influence of drugs at the time of the incident. The petitioner has failed to counter the assertion of underlying counsel that he possessed all necessary information to adequately defend against the criminal allegations. The petitioner has failed to establish both deficient performance and prejudice.
3
Failure to Pursue the Defense of Diminished Capacity
The petitioner asserts that counsel's failure to pursue a diminished capacity defense was constitutionally deficient. This claim is unavailing as the petitioner has failed to provide credible evidence to support the proposition that any such defense would have had a reasonable probability of success. The petitioner has failed to establish the existence of information of which underlying counsel was unaware that made his strategic decision to resolve this matter with a plea objectively unreasonable.
The petitioner's exposure in the underlying criminal matter was considerable. It is clear to this court that the twenty-five-year sentence was not the result of any deficient performance or failure to investigate on the part of underlying counsel, but the result of the petitioner's unwillingness to accept an initial offer of twenty years to serve. Based on the petitioner's criminal history and the factual basis for the home invasion provided in the sentencing transcript, as well as the fact that these offenses were committed while the petitioner had other criminal matters pending, any advice to the petitioner to accept an offer of twenty years to serve was eminently reasonable. Absent credible evidence that bears a reasonable probability of negating the specific intent crimes with which the petitioner was charged, the petitioner has failed to establish both deficient performance and prejudice.
4
Failure to Present a Self-Defense Theory
The petitioner's habeas trial testimony is the best evidence that counsel's " failure" to pursue a theory of self-defense was not deficient. Attorney Pickering testified correctly that the victim was under no obligation to flee his home or step aside to allow the petitioner to successfully complete a residential burglary. Additionally, the petitioner has failed to provide this court with any credible evidence contradicting underlying counsel's understanding that the nature of the injuries suffered by the victim at the hands of the petitioner was inconsistent with the petitioner's version of events: that the victim's striking him caused him to throw the jewelry box at the victim, resulting in the elderly man's injuries (skull laceration, broken nose and broken cheek bone).
The petitioner's testimony was largely unconvincing and not credible. His habeas trial testimony in support of a self-defense theory that he " threw" the jewelry box as a " reaction" to the victim " sucker punch[ing]" him and spraying him with mace was not persuasive based on the other, more credible evidence in the record, including the petitioner's guilty plea. The Petitioner has provided this court with no reason to find a reasonable probability that proffering a self-defense theory would have been favorable to him in the underlying criminal matter.
5
Mis-advice in Waiving the Pre-Sentence Investigation
Underlying counsel testified, credibly and thoughtfully, that he made a strategic decision to advise the petitioner to waive his right to a pre-sentence investigation report in the underlying matter. Counsel testified that, there being an agreed-upon sentence and with an eye toward an eventual parole hearing, he did not want to make an extensive written record of the petitioner's several convictions (including prior robbery, burglary and felony assault convictions), violations of probations and victim input. Counsel testified that he believed the information likely to be contained in a presentence investigation would be " absolutely damning" to the petitioner and that he would " never" have been released on parole if a pre-sentence investigation was done.
" 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." Martin v. Commissioner of Correction, 155 Conn.App. 223, 227, 108 A.3d 1174, cert. denied, 316 Conn. 910, 111 A.3d 885 (2015).
The court concurs with the assessment of counsel in this respect. Accordingly, the petitioner has failed to overcome the presumption of competence in counsel's representation of the petitioner.
B
Due Process Claims I
Due Process: Trial Counsel and the Trial Court's Comments
The court will briefly address the petitioner's claim that comments made by underlying counsel and the trial court were racially discriminatory and/or culturally insensitive. The argument is without merit. When provided with the opportunity to confront underlying counsel with a transcript of the colloquy between himself and the court, the petitioner failed to avail himself thereof. Instead, the petitioner sought, after underlying counsel was finished testifying, to testify himself as to his interpretation of the comments and how reading the comments, for which he was not present, made him feel. This is the height of speculation and inappropriate in a proceeding of this nature.
" Mere conjecture and speculation are not enough to support a showing of prejudice." (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009). Absent evidence of actual bias or even potential bias, this court cannot find any due process violation.
2
Due Process: Conflict of Interest
The petitioner claims that trial counsel was burdened by an actual conflict of interest that adversely affected his performance due to the petitioner having filed a complaint against underlying counsel 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 or negotiate a favorable disposition in representing the petitioner as punishment for the petitioner having filed a grievance. To the contrary, counsel's description of the legal representation provided was more than constitutionally adequate. Second, the petitioner has failed to establish that the grievance filing in any way adversely affected the legal representation of the petitioner. Based on his own habeas trial testimony, it was the petitioner's unwillingness to assist in his defense that damaged his cause. 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.