Opinion
No. TSR CV05 4000414-S
May 1, 2008
MEMORANDUM OF DECISION
On March 31, 2005, the petitioner filed a pro se petition for a writ of habeas corpus, which was amended by appointed counsel for the last time on November 15, 2007. The second amended petition raises claims in a single count: ineffective assistance by trial defense counsel. The respondent's return denies the petitioner's material allegations and asserts the affirmative defense of procedural default. The petitioner filed a reply to the return and denied that he has procedurally defaulted, as well as that procedural default applies to his claims of ineffective assistance of counsel.
The matter came before the court in January 2008 for a trial on the merits. Witnesses included the petitioner and John Cizik, the petitioner's trial defense counsel. The court finds the testimony of Cizik to be highly credible and the testimony of the petitioner to be generally not credible. The court has reviewed and considered the testimony, the exhibits, the parties' memoranda of law and their closing arguments. After applying the law to the facts, judgment enters denying the petition for a writ of habeas corpus.
FINDINGS OF FACT
The petitioner was the defendant in a criminal case pending in the judicial district of Waterbury, Docket Number CR03-318448, in which he was charged with sexual assault in the first degree in violation of Gen. Stat. § 53a-70(a)(2) and risk of injury to a minor in violation of Gen. Stat, § 53-21(a)(2). On April 16, 2003, the petitioner pleaded guilty to both counts; the pleas were canvassed by the court, Iannotti, J., and the matter continued for sentencing. Thereafter on May 5, 2003, the petitioner was committed to the custody of the commissioner of correction for a total effective sentence of twenty years execution suspended after thirteen years to be followed by ten years of probation.
At the time of the petitioner's pleas of guilty, the assistant state's attorney placed on the record the factual basis for the prosecution, "On February 15 of 2000, . . . Waterbury police officers responded to Wilby High School here in Waterbury to speak with the vice principal. At that time a fourteen year old student, female, revealed that she had been sexually assaulted by her uncle, the [petitioner], Hector Estrada. [She] said [this had occurred] since the age of seven. Last time it occurred was Christmas vacation 1999 . . . approximately two months prior to [the complaint]."
The victim gave a statement to the police where she told the police that for the past nine years she had been living on Winchester Street here in Waterbury. [Her] father's foster brother, the [petitioner], Hector Estrada, had been living with them [for] four to six years on and off. She considered the [petitioner] to be her uncle. She recalled that the assaults occurred when she was attending elementary school in Waterbury. She recalled who her teacher was, what grade she was in. And that she would be in her bedroom at night, sleeping, and she would go to sleep every night around approximately eight o'clock p.m. She shared a room with her brother at that time. And that she slept in one bed in the room, her sibling slept in the other. She would wake up and feel pressure. She saw her uncle Hector was on top of her. She noticed her night gown was lifted up and her underwear was pulled to the side. That there was penetration of the victim at that time when she was approximately seven years old. Penetration by the [petitioner] by his penis. This went on for a period of time.
"Finally in 2000 — in February of 2000 she was with some family members. She revealed at school she was feeling upset about herself and what had happened. She told her guidance counselor about what had happened, what her uncle was doing to rape and molest her over the years. So that was when the police became involved . . . And friends of the victim who she had revealed the incidents to also gave statements to the police." Criminal Trial Transcript, April 16, 2003, p. 2-3. Additionally the arrest warrant affidavit, introduced at the habeas trial, indicates the victim complained of multiple incidents of sexual intercourse and sexual contact when she was seven, eight, eleven, thirteen and fourteen years of age.
At the time of the petitioner's guilty plea, Judge Iannotti thoroughly canvassed the petitioner regarding the voluntariness of his plea. The petitioner was specifically asked by Judge Iannotti whether he ". . . had enough time to talk to Mr. Cizik about the [petitioner's] necessity now to be registered in the State of Connecticut as a sex offender? Was that explained to you?" Criminal Trial Transcript, April 16, 2003, p. 4. The petitioner answered in the affirmative. Judge Iannotti continued by canvassing the petitioner further regarding the sex offender registration requirements: "You will have to comply with all rules and regulations of registration. If you don't, you can subject yourself to a new Class D felony, an additional five years in jail and or five thousand dollar fine. A condition of your probation will be sexual assault evaluation and treatment as deemed necessary. If you fail to comply with the registration and the evaluation process, what I mean by that is, even though you [pleaded] under the Alford Doctrine, you are going to be asked what your participation in this crime was. If you fail to disclose that to them, you could be found in violation, come back here and be subject to serving the unexecuted portion of your sentence which in this case would be the difference between twenty years and thirteen years. That would be seven years. Do you understand that, sir?" The petitioner answered "Yes, sir." Id., at pgs. 4-5.
Immediately after the foregoing exchange, the following transpired:
THE COURT: All right. Because it is sexual assault first degree, regardless of the fact there was a minor involved, it should be subject to up to lifetime registration.
Sir, have you had enough time to talk to Mr. Cizik?
THE [PETITIONER]: Yes.
THE COURT: Are you satisfied with the advice that he has given you?
THE [PETITIONER]: Yes.
THE COURT: I can't hear you, sir.
CT Page 7437
THE [PETITIONER]: Could I ask him something? Excuse me.
THE COURT: You certainly can.
MR. CIZIK: Could Your Honor just restate the last question?
THE COURT: If I can remember what it was. Are you satisfied with his advice?
THE [PETITIONER]: Yes.
Criminal Trial Transcript, April 16, 2003, p. 5.
At the habeas trial, the petitioner testified that at all times he was represented by Attorney John Cizik and that Cizik showed the petitioner a copy of the arrest warrant affidavit which contained the statement of the victim and her two friends, Christina and Jamar. The petitioner testified that he read some of the affidavit and returned it to Cizik. The petitioner further testified that he told Cizik he did not assault the victim and he proceeded to point out statements in the warrant affidavit which the petitioner claims were not accurate. In his testimony at the habeas trial, the petitioner pointed out only one alleged inaccuracy, i.e., that the statement in the affidavit indicating that the victim had known Jamar for two weeks was not correct.
In fact, the arrest warrant affidavit avers that the victim knew Jemar for "a couple of months." It does not allege that the victim knew Jermar for "two weeks."
The petitioner further testified that he met with Cizk in the lock-up at the Waterbury courthouse and Cizik conveyed to him an offer of twenty years execution suspended after thirteen years to be followed by probation for seven years. Cizik informed the petitioner that this was the best offer that he could get and that if it was rejected the state intended to add more charges to the information. Nevertheless, the petitioner rejected the offer. Thereafter, Julie King, a social worker employed by the public defender's office met with the petitioner at the Waterbury courthouse. King reiterated the plea offer to the petitioner and told the petitioner that his family would all be against him if he took the case to trial. The petitioner testified he told King that he felt he had no choice but to take the offer. The petitioner admitted, however, that he never informed Cizik of this. The petitioner also testified that he never requested that Cizik undertake any investigation, that he never discussed with Cizik the possibility of a trial or testifying and that Cizik never explained the Alford doctrine to him. The petitioner further testified that when he pleaded guilty, he did not understand what was going on, but merely "went along with the flow because he had no other choice." Finally the petitioner testified that if he had known he could have had a trial, he would "probably" or "possibly" have wanted a trial.
Based on the allegations set forth in the arrest warrant affidavit, at a minimum, the state could have added the following charges to the information: one count of sexual assault in the first degree, four counts of sexual assault in the third degree, one count of attempted sexual assault in the third degree and five counts of risk of injury.
In cross examination, the petitioner testified that he had wanted Cizik to investigate the whole case. He admitted, however, that he never informed Cizilk of this and that at present he was unable to state what he had wanted Cizik to investigate. The petitioner further admitted that he never asked Cizik to interview the victim or the victim's father. The petitioner also testified that Cizik informed him the maximum penalty was twenty-five years but he was unsure whether a sentence of twenty suspended after thirteen was a better sentence. The petitioner further admitted that Cizik never told him he had to plead guilty and he also recalled telling the trial judge that no one was forcing him to plead guilty.
Attorney John Cizik testified at the habeas trial. Prior to his representation of the petitioner, Cizik had been an assistant public defender for eleven years, had tried fifteen cases to verdict and had handled hundreds of cases which had resulted in plea bargains. Cizik' s cases have ranged from misdemeanors to capitol felonies. Additionally on three occasions, Cizik has been appointed as a mentor for newly hired public defenders. In February 2003, Cizik was appointed to represent the petitioner. Cizik obtained a copy of the arrest warrant affidavit and read the allegations to the petitioner. Cizik recalls that the petitioner denied some of the allegations in the warrant, but also admitted many instances of misconduct which rose to the level of sexual assault in the first degree and risk of injury. Cizik discussed the case with the petitioner numerous times at the courthouse, once at Bridgeport Correctional Center and once over the telephone. According to Cizik, at all times the petitioner seemed able to understand their discussions.
Cizik further testified that the petitioner never asked him to conduct any investigation in this case. Cizik does not recall the petitioner telling him that he did not live with the victim's family on some of the operative dates or asking him to obtain information as to his residence on certain dates. On his own, however, Cizik attempted to sketch out when the petitioner was in the home and when he was not. In sexual assault cases so that the victim does not become "comfortable" with Cizik, it is his practice not to interview the victim before trial. In the present case, Cizik was also aware that in the affidavit, there was no statement from the father of the victim. In Cizik's experience it is not unusual for a parent to be unaware of the sexual assault of his child even though it occurs over a period of many years.
In early April 2003, a judicial pretrial was held. The state offered a sentence of twenty years, but the court reduced that offer to twenty years execution suspended after thirteen years to be followed by ten years of probation with a special condition of, inter alia, sex offender treatment. Cizik conveyed this offer to the petitioner and the matter was continued to April 16, 2003, for petitioner to accept or reject that offer. Cizik testified that it is not his practice to make a recommendation to a client on whether to accept a plea offer. Rather Cizik lays out the facts for his client including the state's evidence, his opinion of the strength of the state's case, the defense case and the pros and cons of a client testifying at trial. In Cizik's experience few cases of sexual assault involving a minor are good cases to take to trial. According to Cizik, juries tend to want to believe children and the younger the child, the more difficult this is to overcome. In Cizik's opinion, the state had a good case against the petitioner and Cizik told him so. Cizik also informed the petitioner that if he testified at trial, the state would be able to impeach him with his prior burglary convictions and that in the event the plea offer was rejected, the state intended to amend the information. Cizik further explained the sex offender treatment condition to the petitioner and advised him that even if he pleaded guilty under Alford, he would be required to admit his conduct or it would be a violation of probation. Cizik also had Julie King speak to the petitioner about the facts of the case and the court's offer. Cizik testified that he often has King speak to his clients in order to assess them for mental health issues and to help them understand the court process. Cizik further testified that the petitioner made the decision to plead guilty and that the petitioner never told him that he wanted to take the case to trial.
During the plea canvass, the court also advised petitioner of these consequences. See footnote 1.
Cizik testified that in petitioner's case, there were no mental health issues present. Petitioner did however have a history of substance abuse.
Additional facts will be discussed as necessary.
DISCUSSION Procedural Default
The petitioner challenges the validity of his guilty pleas by alleging ineffective assistance of counsel. The respondent has raised the affirmative defense of procedural default as to the petitioner's allegations that trial defense counsel rendered ineffective assistance. More specifically, the respondent avers that the claims are "procedurally defaulted by the petitioner's failure to raise [the claims] at sentencing or subsequently pursuant to Practice Book § 43-22, or on direct appeal." Return, p. 2. Essentially, the respondent asserts that the petitioner should be procedurally defaulted from raising the instant claims because he has failed to either file a motion to correct an illegal sentence or challenge his convictions on direct appeal. The petitioner's reply denies both that procedural default applies and that he is procedurally defaulted.
Practice Book § 43-22 states that: "The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner."
In Cobham v. Commissioner of Correction, 258 Conn. 30, 35, 779 A.2d 80 (2001), "[t]he petitioner contended that because he was incarcerated in accordance with an illegal sentence, his confinement was unlawful." The Supreme Court ". . . decline[d] to reach the merits of any of the petitioner's claims, however, due to a procedural default, in that the petitioner prematurely has challenged his sentence before the habeas court." Id., at 37. The Cobham court discussed the function and import of § 43-22.
According to the Supreme Court, "Practice Book § 43-22, which provides the trial court with . . . authority [to take action affecting a defendant's sentence after it has begun], provides that `[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.' An `illegal sentence' is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant's right against double jeopardy, is ambiguous, or is internally contradictory . . . We previously have noted that a defendant may challenge his or her criminal sentence on the ground that it is illegal by raising the issue on direct appeal or by filing a motion pursuant to § 43-22 with the judicial authority, namely, the trial court. We have not, however, had the occasion to express an opinion as to whether habeas corpus is an appropriate vehicle by which to challenge the legality of a sentence . . . We now conclude that before seeking to correct an illegal sentence in the habeas court, a defendant either must raise the issue on direct appeal or file a motion pursuant to § 43-22 with the trial court." (Internal citations and quotation marks omitted.) Id., at 38.
The Supreme Court has very recently emphasized that "[w]hen a habeas petitioner has failed to file a motion to withdraw his guilty plea or to challenge the validity of the plea on direct appeal, a challenge to the validity of the plea in a habeas proceeding is subject to procedural default. Johnson v. Commissioner of Correction, 285 Conn. 556, 567, 941 A.2d 248 (2008). `The appropriate standard for reviewability of [a procedurally defaulted claim] . . . is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . Therefore, attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of [trial and] appellate procedure.' . . . Cobham v. Commissioner of Correction, [ supra, 258 Conn. 40].
"Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice . . . [When] no evidence [of cause and prejudice] has been provided [to the habeas court], [the reviewing] court can independently conclude that the petitioner has failed to meet the cause and prejudice test . . ." (Emphasis added.) (Citation omitted.) Council v. Commissioner of Correction, 286 Conn. 477, 489-90 (2008).
In the instant matter, it is undisputed that the petitioner did not seek to withdraw his guilty plea in accordance with Practice Book § 39-27(4) or file a direct appeal. See Johnson v. Commissioner of Correction, supra, 285 Conn. 567. The Supreme Court in Johnson held that the failure to have either sought to withdraw the guilty plea pursuant to the rules of practice or take a direct appeal results in a procedural default. Id. The petitioner would normally then have to allege and show the cause and prejudice for the procedural default.
§ 39-27(4) enumerates ineffective assistance of counsel as a ground for allowing a defendant to withdraw his or her plea of guilty after acceptance, provided the plea resulted from the denial of ineffective assistance of counsel.
The court notes that petitioner filed a motion to withdraw his plea well after he was sentenced. On November 10, 2004, Judge Iannotti denied said motion. See Criminal Trial Transcript, November 10, 2004.
"Although the cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance, a claim of ineffective assistance of counsel, by definition, involves incompetence under sixth amendment standards. The United States Supreme Court . . . has concluded that, although ignorance or inadvertence is not cause, ineffective assistance of counsel is a legitimate ground for cause . . . That determination of ineffectiveness is made under the two part test for ineffective assistance of counsel under Strickland v. Washington, [ 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. If a petitioner can prove that his attorney's performance fell below acceptable standards, and that, as a result, he was deprived of a fair trial or appeal, he will necessarily have established a basis for `cause' and will invariably have demonstrated `prejudice.' . . . Although the wording of the tests is not identical and some authorities disagree . . . we conclude that once a defendant is denied a fair appeal that causes an unreliable conviction to stand under Strickland . . . it is obvious that his ineffective counsel worked to his actual and substantial disadvantage, infecting his [appeal] with errors of constitutional dimension . . . The similarity of the second part of the Strickland . . . test and of the prejudice prong of the cause and prejudice test of Wainwright . . . makes a threshold showing of cause and prejudice unnecessary for ineffective assistance of appellate counsel claims. Rather than factoring in the Strickland . . . test to find cause, we conclude that it is simpler and more appropriate to move directly to the Strickland test. Thus, if [counsel's conduct] is shown to be within the acceptable range of conduct or the result is reliable, then the habeas petition must be denied. If counsel does not meet the Strickland . . . level of competence and the result is not reliable, then the petition must be granted. There is no need to confuse this process by utilizing the cause and prejudice test . . .
"[The Johnson court] conclude[d] that the same reasoning applies when a petitioner who has not moved to withdraw his guilty plea pursuant to Practice Book § 39-27(4), or challenged his plea on direct appeal, brings a habeas claim alleging ineffective assistance of trial counsel. In such cases, the court need not apply the cause and prejudice test . . . in determining whether to grant the habeas petition because application of the two-pronged test in Strickland, as modified for guilty plea cases by Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), accomplishes the same result." (Internal citations and quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 285 Conn. 570-71.
Applying the foregoing principles to the instant case, the petitioner does not allege that his sentence is illegal. Thus Cobham is inapplicable. The petitioner does challenge the validity of his guilty pleas by way of ineffective assistance of counsel, a claim potentially subjecting the petitioner to having to surmount the defense of procedural default. Given the Supreme Court's recent pronouncement in Johnson, however, that a habeas court need not apply the cause and prejudice test when a petitioner who has not moved to withdraw his guilty plea pursuant to the practice book provisions or challenged the plea on direct appeal, the court will simply apply the Strickland/Hill test in accordance with Johnson. Id., at 571-72.
Ineffective Assistance of Counsel
The standard the court must apply to such a claim is well established. "In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable . . .
"For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), which modified Strickland's prejudice prong . . . To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial . . . A reasonable probability is a probability sufficient to undermine confidence in the outcome . . . A different result must be sufficiently probable to undermine confidence in the actual outcome . . ." (Citations omitted; internal quotation marks omitted.) Hernandez v. Commissioner of Correction, 82 Conn.App. 701, 705-06, 846 A.2d 889 (2004).
"The Hill court noted that [i]n many guilty plea cases, the prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate . . . the determination whether the error prejudiced the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial . . . A reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted.) McClellan v. Commissioner of Correction, 103 Conn.App. 159, 162, 927 A.2d 992 (2007).
"[A]lthough it is incumbent on a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction . . . counsel need not track down each and every lead or personally investigate every evidentiary possibility . . . 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 . . . One cannot successfully attack, with the advantage of hindsight, a trial counsel's trial choices and strategies that otherwise constitutionally comport with the standards of competence." (Quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 285 Conn. 583-84, 941, citing and quoting Edwards v. Commissioner of Correction, 87 Conn.App. 517, 525-26, 865 A.2d 1231 (2005).
The petitioner claims that his guilty pleas, entered April 16, 2003, were not knowing, intelligent and voluntary due to ineffective assistance by Cizik. Thus, the petitioner avers the following lengthy litany of failures by Cizik: undertake a thorough investigation of the circumstances and events alleged to constitute his offense; independently interview the victim, as well as others with knowledge pertaining to the alleged events and circumstances; obtain evidence corroborating the dates on which the petitioner was not residing with the victim's family; provide the petitioner with copies of police reports and victim's statements, as well as statements of others; discuss with the petitioner the prospect of taking the charges to trial; describe to the petitioner the evidence in his favor that might be used as defense if the case went to trial; explain to the petitioner his prospects of prevailing if he took the case to trial; discuss with the petitioner the pros and cons of his testifying at trial in his own defense; unduly pressured the petitioner to accept the state's plea offer by telling him that if he declined the offer the state would amend its information by adding multiple charges of sexual assault; employed a social worker from the public defender's office, Julie King, who met with the petitioner individually to pressure him to accept the State's plea offer by telling him that if he went to trial his entire family would be against him; and advise the petitioner that although he could enter his pleas under the Alford, doctrine, once incarcerated, and later, when on probation, he would be required to undergo sexual offender programs in which he would be required to admit to the details of the sexual assault.
At trial the petitioner did withdraw the claim in paragraph 14 (f) of the second amended petition, namely that Cizik failed to adequately advise the petitioner of the State's evidence against him that would be presented at trial.
The only witnesses to testify in the habeas corpus proceeding were the petitioner and Cizik. Essentially, the only evidence presented by the petitioner is support of his claims is his own self-serving testimony, which the court finds generally not credible. Much of the petitioner's own testimony, furthermore, undermines his own claims. Cizik's testimony does no less.
The petitioner testified that he never requested Cizik undertake any investigation or to interview the victim or the victim's father, but that he had wanted Cizik to investigate the whole case. Cizik confirmed that the petitioner never asked him to conduct an investigation, but further testified that, on his own, he created a time-line of the petitioner's presence in the victim's household. The petitioner has in no way proven the benefit to his underlying criminal case of any additional investigation. Accordingly, even if Cizik's performance could be considered deficient, the petitioner has failed to prove the prejudice prong.
The petitioner also claims that in a variety of ways, Cizik failed to explain the trial process, probable trial evidence and the petitioner's prospects at trial. Cizik credibly testified that it is his practice with each of his clients to lay out the facts for his client including the state's evidence, his opinion of the strength of the state's case, the defense case and the pros and cons of a client testifying at trial. In Cizik's experience, few cases of sexual assault involving a minor are good cases to take to trial. According to Cizik, juries tend to want to believe children and the younger the child, the more difficult this is to overcome. In Cizik's opinion, the state had a good case against the petitioner and Cizik told him so. Cizik also informed the petitioner that if he testified at trial, the state would be able to impeach him with his prior burglary convictions. Moreover the petitioner's value as a witness in his own defense was compromised by his admissions to Cizik of conduct constituting sexual assault in the first degree. The court finds the petitioner's testimony that he was uninformed to be not credible. This claim of the petitioner thus fails.
The petitioner also claims that he never received a copy of the police reports and the witnesses' statements, that Cizik employed King to pressure him into a plea of guilty and that Cizik himself unduly pressured him to plead guilty. Neither the petitioner nor Cizik ever testified that the petitioner did not receive copies of the relevant statements or reports or that the petitioner believed Cizik unduly pressured him. Thus these allegations are unproven. The petitioner did, however, testify that he felt pressured by King's statement that if he went to trial, his family would be against him. The petitioner also admitted that he never informed Cizik of this concern. Cizik credibly testified that he asked King, a licensed clinical social worker, to speak with the petitioner to get her assessment of any possible mental health issues and to provide the petitioner with another explanation of the court process. While it is likely the petitioner felt pressure, this pressure was induced from the situation in which the petitioner put himself not from any action of Cizik or King. Moreover when asked by Judge Iannotti, the petitioner disavowed that anyone had forced him or threatened him to plead guilty. The petitioner has failed to prove deficient performance or to undermine this court's confidence in the outcome.
The trial transcript indicates the following colloquy:
THE COURT: Did you plead guilty today freely and voluntarily?
THE [PETITIONER]: Yes.
THE COURT: Did anybody force you, threaten you, or promise you anything to get you to plead guilty?
THE [PETITIONER]: No, sir.
Criminal Trial Transcript, April 16, 2003, pp. 8-9.
Finally, the petitioner claims Cizik failed to advise him that as a condition of sex offender treatment, he would be required to admit his sexual misconduct even though he had pleaded guilty under Alford. The only testimony in support of this contention is the uncorroborated testimony of the petitioner which the court finds not credible. At the habeas trial, Cizik testified that he explained the sex offender treatment condition to the petitioner and advised him that even if he pleaded guilty under Alford, he would be required to admit his conduct or it would be a violation of probation. Cizik further testified that at all times the petitioner seemed able to understand all of their numerous discussions. Judge Iannotti also informed the petitioner that he would be required to admit his conduct during sex offender treatment. This claim thus fails.
See Criminal Trial Transcript, April 16, 2003, pp. 4-5.
Given all of the forgoing, the court finds that the petitioner has not presented any credible evidence that substantiates a single one of his many claims. It is the petitioner who has the burden of proof in this matter and must meet the requirements of Strickland/Hill. Without restating the many alleged deficiencies by Cizik, the petitioner has failed to prove that Cizik's performance was deficient and, therefore, has completely failed to meet his burden of proof in that regard. Even assuming the petitioner had shown anything done by Cizik was deficient, the petitioner has in no way shown the required prejudice resulting therefrom. The petitioner has in no way undermined this court's confidence in the outcome of the underlying proceeding.
CONCLUSION
The petition for a writ of habeas corpus is, therefore, denied. Counsel for the petitioner shall submit a judgment file to the Clerk's Office within thirty days of the date of this decision.