Opinion
No. CV 05 4000481
April 15, 2008
Memorandum of Decision
This habeas case arises out of an unusual set of circumstances and seeks the unusual remedy of restoration of a prior habeas petition. For the reasons that follow, the court grants the petition and the relief sought.
I
The court finds the following facts concerning the tortuous history of this case. The petitioner was convicted by a jury of murder, carrying a pistol without a permit, and alteration of an identification mark on a pistol, all in connection with a drug-related shooting that occurred in Hartford in 1993. He received a net effective sentence of sixty years in prison. In 1998, our Supreme Court reversed the alteration conviction but otherwise affirmed. State v. Francis, 246 Conn. 339, 717 A.2d 696 (1998). Because the five-year sentence for alteration ran concurrently with the sixty-year sentence for murder, the petitioner remained subject to a sixty-year prison term. Id., 341 n. 5.
In 1999, the petitioner filed a pro se state habeas corpus petition. See Francis v. Warden, Superior Court, Judicial District of Hartford, Docket No. CV01-0804771. Attorney Frank Cannatelli was then appointed to represent the petitioner as a special public defender. Cannatelli filed an amended petition in August 2002. The amended petition alleged in count one that Collins was ineffective for failure to investigate and failure to present a defense. (Exhibit 4.) In count two, the petitioner alleged that the state had failed to disclose at trial that Corey Rosemond, a witness for the state, was also a confidential informant who had told the police about the movement of firearms shortly after the murder. The petitioner alleged that disclosure of this information would have provided the petitioner with important material with which to impeach Rosemond's testimony. Related to the claim of failure to disclose was a claim in count three that trial counsel, attorney William Collins, was ineffective for failure to request discovery concerning the informant.
Count four concerned the status of the alteration count, and has no bearing on the issues herein.
Along with the amended petition, Cannatelli filed a "Motion for In-Camera Inspection to Determine Identity of Relevant Informant or other Preliminary Relief." The habeas court, Rittenband, J.T.R., held a hearing on this motion on November 14, 2002. The petitioner was present. On the day of the hearing, and possibly earlier, Cannatelli discussed with the petitioner his strategy of putting "all of his eggs in one basket" and relying solely on the claim that the state had failed disclose that Rosemond was the confidential informant. Accordingly, at the hearing, Cannatelli offered to withdraw the habeas petition if, based on a disclosure by the state, the informant was not Rosemond. The colloquy went as follows:
"[Assistant State's Attorney] Macchiarulo: "Your Honor, if I could just clarify one point. Is Attorney Cannatelli saying if it's not Rosmond, no matter who else it is, I'm going to drop this. Are we going to be back here learning who the confidential informant is?
The transcript incorrectly reports the name as Rosmond. The correct name is Rosemond.
"Mr. Cannatelli: "That's what we stated on the record and we're two men of our word. We will withdraw the action if that person is not the confidential informant. But based on my experience as a lawyer, Your Honor, I went through all those affidavits and I believe that he is, based on the way I went through those affidavits and I put it in the complaint."
(Exhibit 5, pp. 23-24.)
At no time before or during the hearing did the petitioner inform Cannatelli that he disagreed with this strategy.
On at least one occasion, Cannatelli stated that he would only withdraw the petition if the informant was not "involved in the crime," thus suggesting that the state also had to disclose whether the informant was Casey Wilcox or Andre Shirley, two other associates of the petitioner who testified for the state. See State v. Francis, supra, 246 Conn. 342. (Exhibit 5, pp. 4-5.) Cannatelli did not pursue this version of his offer at the remainder of the hearing and instead limited it to a request for a disclosure of whether the informant was Rosemond.
At the conclusion of the hearing, Judge Rittenband granted the petitioner's motion. The court ordered that the state submit an affidavit to the court "identifying to the Court the identity of the confidential informant . . ." The Court added: "I'll review it in camera, the affidavit will be sealed as part of the file and not be available to anyone. That's why it's in camera. But if it turns out to be Mr. Rosmond's I will give the information to the petitioner's attorney." (Exhibit 5, p. 29.)
On December 16, 2002, the state filed a "Motion for Reconsideration of Ruling Ordering Respondent to Disclose Identity of Informant." The memorandum of decision dated January 22, 2003, Judge Rittenband granted the state's motion for reconsideration and agreed to rehear the matter. The court held a hearing on February 5, 2003. Cannatelli, however, did not visit the petitioner between the time of the motion and the hearing or inform the petitioner of the motion.
At the outset of the hearing, the following colloquy took place:
The Court: Okay. Attorney Cannatelli, your client is not here. Do you have any problem with that?
Mr. Cannatelli: No, I do not, your Honor.
The Court: You waive it?
Mr. Cannatelli: Yes.
The Court: Okay. I don't think it's necessary because this is not dispositive of the case. If it was a motion to dismiss or something along those lines, a motion for summary judgment . . .
The remainder of the court's response does not address the petitioner's absence.
After further discussion, the state inquired whether the court would be "satisfied with an affidavit in the negative that indicates from an officer who obtained the confidential information that a particular witness — in this case, Rosmond — was not the confidential informant?" (Exhibit 8, p. 20.) At that point there was additional colloquy concerning whether the state had to disclose whether any of the three principal state's witnesses — Rosemond, Casey Wilcox, or Andre Shirley — was the informant. See note 3 supra. Cannatelli again declined to pursue this expanded inquiry.
"The Court: Well, an affidavit that it is not Mr. Rosmond or an affidavit that as to who it is? I guess why are you concerned about Rosmond and not — what if the other two witnesses, one of them is the confidential informant?
"Mr. Cannatelli; Your Honor, then the same problem arises. The problem that I am having is that my client when he was here agreed that, you know, he and I both believed from reviewing the record that it was Rosmond and that if the state would comply with your Honor's order and disclose to the Court who the confidential informant was that we would withdraw our habeas action as long as the state complied.
. . .
"The Court: Well, what about the other two? What if one of the other two is the informant? In other words, why is it that you're setting your sites on Rosmond when it's very possible the other two, one of the other two —
"Mr. Cannatelli: Yes.
"The Court: — could be the confidential informant?
"Mr. Cannatelli: Yes. It's true, your Honor. It is possible. It's just from the —
"The Court: Pardon me?
"Mr. Cannatelli: It is possible. But from the way that we went through the record, it seems pretty clear that it was Rosmond . . . (Exhibit 8, p. 22.)
The state then produced an affidavit from a Hartford police officer stating that Corey Rosemond was not the confidential informant in the case. (Exhibit 9.) After reviewing the affidavit, the following dialogue ensued:
Mr. Cannatelli: Well, it seems to be sufficient. I would ask if I could have a copy of that affidavit for my client. I will withdraw the action. May I approach?
The Court: Yeah, sure. This is not full compliance because the order was: Give me the name of the confidential informant. Now, obviously if I insist on that, this officer is not going to come up with Cory Rosmond once he's already filed an affidavit. So I don't know what good it is to get the name of the confidential informant at this point.
Mr. Cannatelli: But that's sufficient. That's made under oath, your Honor.
The Court: Well —
Mr. Cannatelli: Unless your Honor has a concern with it.
The Court: No. I still think that — well, you — you've committed, so I guess.
Mr. Cannatelli: Yes.
The Court: — I can't really — I can't really say anything further . . .
(Exhibit 8, p. 25.) Cannatelli then signed and filed a withdrawal of the case with prejudice. (Exhibit 8, p. 27; Exhibit 10.) The Court inquired whether Cannatelli wanted to file the withdrawal before talking to his client. Cannatelli replied in the affirmative. (Exhibit 8, p. 27.)
Cannatelli visited the petitioner soon after filing the withdrawal. They were both upset with what had happened. Nothing further took place, however, until August or September 2003 — at least six months after the petitioner's withdrawal of the petition — when Cannatelli filed a "Motion to Set Aside Withdrawal of the Action." The premise of the two paragraph motion was that the state should have revealed whether one of the other two state's witnesses was the informant. (Exhibit 11.)
The motion is dated August 16, 2003, but the clerk's stamp contains the date of September 19, 2003. (Exhibit 11.)
A hearing on the motion took place before Judge Rittenband on December 18, 2003. The court initially expressed concern for whether it had jurisdiction in view of the fact that, in the usual civil case, a party has only four months to file a motion to set aside a judgment. (Exhibit 12, pp. 9-10.) Without addressing the time lapse, Cannatelli stated: "Finally, the state even fought [on February 5, 2003] and then finally came in and handed an affidavit to the Court. I do recall Mr. Francis wasn't here the day I withdrew." (Exhibit 12, p. 11.) The following dialogue then took place:
Ms. Macchiarulo: That is not true, Your Honor. Mr. Francis absolutely was here.
The Court: I would never allow you to withdraw without his being here.
Mr. Cannatelli: I don't believe he was present that day, Your Honor.
The Court: Well then you better show me, get me a transcript or something like that.
Mr. Cannatelli: Okay. And, furthermore, and the last day there was something stated by the Court I recall, are you sure you want to do this and I said yes, I have my client's permission. And then I went to see Mr. Francis at the jail that day.
The Court: Saw Mr. Francis what?
Mr. Cannatelli: At the jail a few days after. He wasn't here that day. That's number one.
And number two, I do agree it's definitely ineffective, no doubt about it. Because when Your Honor made this ruling and said, you know what, you're entitled to know whether or not any of these witnesses, you know, I think that clearly I should never have allowed my client to do that.
(Exhibit 12, p. 12.)
The court reiterated that it had only a transcript of the November 2002 hearing on the original discovery motion. (Exhibit 12, p. 15.) After reading from that transcript, the court stated: "Now, if there is a date right now it seems to me that I should deny the motion [to set aside], and I'm going to deny the motion without prejudice. So if you can find something in a transcript that says he wasn't there, and give me some caselaw that he has to be there, I don't think you can but if you know that that's one thing." The court then added: "I don't think based on the withdrawal with prejudice I can simply grant the motion. We can argue some other day whether that's a violation of Brady [v. Maryland, 373 U.S. 83(1963)]. (Exhibit 12, pp. 18-19.) Finally, the following colloquy occurred:
The Court: Now, I'm saying I'm denying the motion without prejudice only on the basis that you may want to get a transcript of something else. I'm not sure it's going to be — to do you much good.
Even if Mr. Francis was not here, you stated you had authority to do this. I'm finding that it's very hard to believe that I would allow the withdrawal without Mr. Francis present.
I mean, I've taken the position in the past that when there's a withdrawal I insist that the petitioner come in and I let them know this is with prejudice and if you withdraw now you know the ball game is over, you can't decide a year later that you want to come back. I have a feeling he was here. But you can check if you want.
Mr. Cannatelli: We will, Your Honor.
The Court: If you decide that you want to do something on it, you know you can file the transcript and ask for reconsideration of the motion and because I'm denying it without prejudice, but I think you have to do that certainly within four months.
Mr. Cannatelli: Yes, Your Honor.
The Court: And probably less if we're going to move this thing along. And then if there's nothing in the transcript that helps, you'd have to show me some law that says you must be here when it's withdrawn.
If you have that then of course, Attorney Macchiarulo, you can counter that obviously, but if you have that there might be a reason why this shouldn't have been done and I could reopen it may be on that basis.
But assuming the transcript doesn't show anything, which is my belief, then there's nothing pending before the court.
This case has been withdrawn, Mr. Francis, then you can file a habeas.
. . .
If you want to do something to reopen it go right ahead. If not, Mr. Francis, the only thing we have left for you is to bring a habeas claiming that Mr. Cannatelli was ineffective and in foreclosing the other possibilities of discovery.
(Exhibit 12, pp. 20-22.)
At no point thereafter did Cannatelli file a pleading or otherwise supply the February 5, 2003 transcript to the court. The petitioner has now filed a habeas corpus petition alleging that Cannatelli was ineffective.
In count one, the petitioner alleged ineffective assistance of trial counsel. The court, Fuger, J. dismissed this count on May 2, 2007. Count two alleged that Cannatelli was ineffective in his representation of the petitioner on a motion for a new trial. The court, A. Santos, J., dismissed this count on December 7, 2007, on the ground that there is no right to counsel or effective assistance thereof on a motion or petition for a new trial. The petitioner's allegations concerning his representation by Cannatelli in his prior habeas action are contained in count three of the second amended petition.
II
The petitioner alleges in count three that Cannatelli was ineffective in a variety of ways. Chief among them are the allegations that Cannatelli dismissed the prior petition after being told that the informant was not Rosemond, despite the fact that Judge Rittenband had ordered the disclosure of the name of the informant (paragraph 9); that Cannatelli dismissed the petition without the petitioner's permission at a hearing at which the petitioner was not present (paragraph 10); and that Cannatelli failed to file with the court a copy of the February 5, 2003 transcript to demonstrate that the petitioner was not present in court when the habeas petition was dismissed (paragraph 11). The court agrees in part and disagrees in part with these allegations.
Contrary to the respondent's concerns, the court in this decision has relied on these allegations rather than on allegations not made in the operative petition.
A petitioner claiming ineffective assistance of counsel must prove both deficient performance and prejudice. See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187 (2006). To prove deficient performance, the petitioner must show that defense counsel's representation "fell below an objective standard of reasonableness . . ." Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002). "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005).
In this case, it was reasonable for Cannatelli to recommend that the petitioner pursue only the claim that the state had failed to disclose that Rosemond was a confidential informant. Generally, the state has a greater obligation to disclose the identity of an informant if the latter is a key witness or a participant in the crime charged. See State v. Jackson, 239 Conn. 629, 636-37, 687 A.2d 485 (1997). Cannatelli was convinced that the informant was Rosemond, who was a key state's witness, that disclosure of his identity as such would have assisted defense counsel at trial, and that therefore the state had an obligation to disclose his identity. It was an effective strategy to concentrate on this one strong claim and not press weaker claims. See Pierce v. Commissioner of Correction, 100 Conn.App. 1, 11, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007) ("[e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues . . ."). (Internal quotation marks omitted.) Hence, the petitioner has not overcome the presumption that counsel in this regard acted "in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, supra, 89 Conn.App. 376.
There was also no ineffective assistance, at least in theory, in failing to object to Judge Rittenband's decision to allow the state to disclose only whether or not the informant was Rosemond rather than disclose the informant's name. There was no dispute that Judge Rittenband would examine the state's affidavit in camera and that the court would inform the petitioner only whether or not the informant was Rosemond. Under no circumstances would the petitioner learn the informant's identity if it was not Rosemond. Thus, whether the state submitted the actual name of the informant to the court would make no difference in the information that the petitioner would receive.
However, the way in which Cannatelli went about handling this matter reveals significant shortcomings in his performance. To begin with, Cannatelli failed to inform his client of the state's motion for reconsideration or of the February 2003 hearing on the motion. Cannatelli offered no excuse for failing to communicate with his client on this important matter.
More importantly, Cannatelli should not have withdrawn the case at that hearing without obtaining the presence of his client in court or at least his renewed consent. There are at least two grounds for this conclusion, First, as matter of constitutional law, "[i]t is . . . recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal . . ." (Citations omitted; internal quotation marks omitted.) State v. Stewart, 64 Conn.App. 340, 352, 780 A.2d 209, cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001). There is no reason to believe that this approach does not apply to the decision whether to file or withdraw a habeas petition. See Lusas v. St Patrick's Roman Catholic Church Corp., 125 Conn. 206, 208, 4 A.2d 333 (1939) ("It is generally recognized that the general authority of an attorney does not empower him, unless expressly authorized by his client, to discontinue or withdraw a case where the ultimate rights of the parties will be thereby terminated."). In this case, by the time of the February 2003 hearing, three months had elapsed since Cannatelli had last spoken to his client and, in the interim, the state had filed a motion for reconsideration of the court's initial ruling. Under these evolving circumstances, Cannatelli should not have withdrawn the petition without insuring that the petitioner still consented to the withdrawal.
Second, under our habeas corpus rules, "[t]he petitioner and, if they are not the same, the subject of the petition shall have the right to be present at any evidentiary hearing and at any hearing or oral argument on a question of law which may be dispositive of the case, unless the petitioner, or the subject of the petition, as the case may be, waives such right or is excused by the judicial authority for good cause shown." Practice Book § 23-40(a). Thus, the petitioner had a right under state law to be present at a hearing that disposed of his habeas petition. There is no valid contention that the petitioner waived his right to be present at the February 2003 hearing, since Cannatelli never spoke to him about it. It is true that it may not have been clear at the outset that the hearing would become "dispositive of the case." Id. On the other hand, the hearings in 2002 and 2003 had an unpredictable quality. As soon as the state disclosed that the informant was not Rosemond and asked Cannatelli to withdraw the case, Cannatelli should have at least requested a continuance to consult with or obtain the presence of his client.
The court does not suggest that it was Cannatelli's responsibility to obtain the petitioner's physical presence in court in the first instance. Cannatelli testified credibly that the immediate reason for the petitioner's absence was that the clerk did not submit a writ of habeas corpus to transport the petitioner to court for that day. But Cannatelli should have requested a continuance once he learned that his client would not be present for some reason other than the client's own request or preference and that the hearing would reach a dispositive stage.
Finally, Cannatelli should have filed a pleading with Judge Rittenband containing the transcript of the February 2003 proceedings. In a case rife with unusual pleadings, it would not have been unusual to file something akin to a motion to reconsider the motion to set aside the withdrawal. Cannatelli advanced no excuse for essentially abandoning the case despite Judge Rittenband's decision to consider the withdrawal "without prejudice" and his express invitation to submit the transcript with another motion. For these reasons, Cannatelli's performance was deficient.
The next question is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Ledbetter v. Commissioner of Correction, supra, 275 Conn. 458. Judge Rittenband stated twice that he would not allow an attorney to withdraw a habeas petition without the client being present. While this precise result did take place, it is clear that the result was contrary to the approach that Judge Rittenband usually took to this issue and that he would have looked favorably upon an opportunity to reform his ruling. Of course, even if Cannatelli had sent Judge Rittenband the transcript proving that the petitioner was not present at the February 2003 hearing, there is no absolute certainty that Judge Rittenband would have granted a motion to reconsider and then set aside the withdrawal. There is, however, based on his comments, at least a "reasonable probability" that he would have done so. Ledbetter v. Commissioner of Correction, supra, 275 Conn. 458. Accordingly, the petitioner has proven prejudice.
In analogous cases in which the habeas petitioner has lost a post-conviction remedy such as an appeal, our appellate courts have not required the petitioner, in order to establish prejudice, to prove the additional fact that the remedy would have been successful. See e.g., CT Page 6289 Iovieno v. Commissioner of Correction, 242 Conn. 689, 702-08, 699 A.2d 1003 (1997). Further, the parties and the court agreed, in a Motion for Reconsideration re: Bifurcation of the Trial, that the petitioner would not have to present proof in this proceeding of the merits of the underlying habeas petition. Therefore, the court does not require such proof here.
III
The remaining issue is the appropriate remedy. Pursuant to General Statutes § 52-470(a), a court hearing a habeas petition "shall . . . dispose of a case as law and justice require." Thus, the habeas trial court, "much like a court of equity, has considerable discretion to frame a remedy, as long as that remedy is commensurate with the scope of the constitutional violations which have been established." (Internal quotation marks omitted.) Brooks v. Commissioner of Correction, 105 Conn.App. 149, 160, 937 A.2d 699 (2008). In this case, the remedy commensurate with the scope of the violation, which is the loss of the prior habeas petition, is to restore that petition. Our courts have taken a similar approach with the loss, through ineffective assistance of counsel, of the opportunity to file an appeal; see Bunkley v. Commissioner of Correction, 222 Conn. 444, 459 n. 16, 610 A.2d 598 (1992); an application for sentence review; see James L. v. Commissioner of Correction, 245 Conn. 132, 148, 712 A.2d 947 (1998); or a petition for certification to appeal the denial of a habeas petition. See Iovieno v. Commissioner of Correction, 242 Conn. 689, 706-08, 699 A.2d 1003 (1997). Accordingly, the court orders that the petitioner's prior habeas petition be restored to the docket.
The respondent, of course, retains all appropriate defenses.
IV
The petition for a writ of habeas corpus is granted. Judgment shall enter for the petitioner restoring Francis v. Warden, Docket No. CV01-0804771 to the docket and transferring the case to the Judicial District of Tolland. Petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.