Opinion
TSRCV144005900S
06-30-2016
Kermit Francis v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Kermit Francis, seeks habeas corpus relief from sixty years imprisonment imposed, after a jury trial, for the crimes of murder and carrying a pistol without a permit. These convictions were affirmed on direct appeal, State v. Francis, 246 Conn. 339, 717 A.2d 696 (1998).
The petitioner had filed a previous habeas corpus action which was withdrawn with prejudice by habeas counsel, Attorney Frank Cannatelli, without consulting his client. The petitioner filed a second habeas corpus action, alleging the ineffective assistance of Attorney Cannatelli, and that petition was granted by Judge Schuman in Francis v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 05-4000481 (July 2, 2012). In that action, the petitioner raised, inter alia, a claim that his trial counsel, Attorney Williams B. Collins, provided ineffective assistance. The denial of that habeas petition was affirmed on appeal, per curiam, Francis v. Commissioner, 150 Conn.App. 906, 98 A.3d 121 (2014).
In the present case, the petitioner alleges that his previous habeas counsel, Attorney Michael Day, represented him ineffectively by failing to present evidence as to the availability of Fredrica Knight, a potentially exculpatory witness, to testify at the petitioner's criminal trial in October 1996.
In Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), our Supreme Court recognized a purely statutory right to raise, in a second habeas action, a claim of ineffective assistance on the part of previous habeas counsel in presenting claims of ineffective assistance of trial counsel, Id., at 835. However, the petitioner's burden becomes a two-tiered application of the Strickland standard by which allegations of ineffective assistance claims are gauged, Id., at 842. " To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective, " Id., (emphasis added). Also, the petitioner must prove that, but for the derelictions of habeas counsel, he was prejudiced in the sense that the outcome of the first habeas case was suspect, and that burden demands proof of the existence of a reasonable likelihood that the outcome of the original, criminal trial would have been different, Id., at 842-43. The Supreme Court described this double-layered obligation as " a herculean task, " Id., at 843.
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra .
This standard of reasonableness is measured by prevailing, professional practice. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation. Id.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel's competence. Pelletier v. Warden, 32 Conn.App. 38, 627 A.2d 1363 (1993). In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985). Reasonable probability means a probability sufficient to undermine confidence in the verdict. DaEira v. Comm'r of Corr., 107 Conn.App. 539, 542-43, 946 A.2d 249, cert. denied, 289 Conn. 911, 957 A.2d 877, (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id. Thus, the failure of the petitioner to establish, by a preponderance of the evidence, either the allegations against trial counsel or habeas counsel or the requisite prejudice as to both the first habeas case and the criminal trial will defeat a claim for habeas corpus relief in the present action.
At the habeas trial before Judge Bright, Ms. Knight testified that the person she believed shot the victim, Moses Barber, was definitely not the petitioner. Knight never testified at the criminal trial. However, Attorney Day failed to elicit from her, or through any other evidence, whether Knight was available and willing to testify at the criminal trial in 1996. Judge Bright found this omission fatal to a specification of ineffective assistance based on the failure to call Knight as a defense witness, Francis v. Warden, supra .
Proof of Ms. Knight's whereabouts was significant because she and her family had received threats of harm arising from statements she had given to the police, shortly after the shooting of the victim, indicating that the petitioner was innocent. Knight was sixteen or seventeen years old at the time the victim was killed. Soon after the murder, she moved twelve times and changed her name seven times.
Attorney Collins sought Ms. Knight's location through the State's Attorney's office, but to no avail. Attorney Collins could only have represented the petitioner deficiently for failing to present Knight as a defense witness if he could ascertain her whereabouts through reasonably diligent effort, Hopkins v. Commissioner, 95 Conn.App. 670, 677, 899 A.2d 632, cert. denied, 279 Conn. 911, 902 A.2d 1071 (2006).
Attorney Day testified at the present habeas trial and acknowledged that he erred in failing to ask Knight about her availability to testify at the time of the petitioner's criminal trial in 1996. This omission was by oversight rather than by choice. Clearly, the petitioner has satisfied, by a preponderance of the evidence, the deficient performance prong of the Strickland standard applicable to habeas counsel by virtue of Lozada v. Warden, supra .
Satisfaction of the prejudice component of the Strickland test for habeas counsel is another matter, however. As described above, under Lozada a petitioner must prove a case within a case. That is, in order to establish the prejudice prong in this case, the petitioner must prove prejudice resulted from habeas counsel's omissions and trial counsel's failures at the criminal trial. If the petitioner falls short of demonstrating that there exists a reasonable likelihood that, but for the absence of Ms. Knight's testimony, the outcome of his criminal trial would have been different, he cannot prevail in this habeas on a habeas action.
Ms. Knight also testified at the present habeas trial. After consideration of her testimony at both habeas hearings combined with that produced at the original criminal trial, the court finds that the petitioner has failed to meet this burden.
Knight was very sketchy as to the sequence of events she purportedly perceived. She first testified that after school on December 20, 1993, she and two friends walked to a corner store located about one block from her residence. The victim, Moses Barber, was her mother's boyfriend. She saw him on or at a porch attached to a house designated as 88 Atwood Street in Hartford. She saw a " spark" of light between the victim and a person other than the petitioner. She heard no gunshot accompanying the glint of light. Sometime later, she observed the victim lying on the ground, went near his body, and spoke to a young man whom she believes was the petitioner. The man told her to leave the area. Subsequently, Knight modified her recollection so that she stated that she noticed the activity recounted above on her way back from the corner store. Knight reiterated that she never saw the actual shooting, but she knew the petitioner was not the shooter.
The other evidence adduced at the criminal trial both refutes and explains some of Knight's inconsistent observations. Casey Wilcox lived at 88 Atwood Street. He, Corey Rosemond, Andre Shirley, and the petitioner regularly sold crack cocaine at that locale. The victim partook of their product. During the early evening of December 20, 1993, the petitioner approached the porch at 88 Atwood Street upon which Wilcox, Rosemond, and Shirley loitered. The petitioner asked for a light in order to smoke a marijuana cigar. Rosemond obliged.
A little later, the victim also approached the group and complained to the petitioner about whether a drug transaction between them was satisfactorily fulfilled. Following some argument, the petitioner crossed the street to enter a driveway or alleyway between 89 and 91 Atwood Street. The victim followed the petitioner but stopped on the sidewalk at the beginning of the driveway. The petitioner proceeded down the driveway toward the rear of the buildings.
The petitioner emerged from the alley carrying a pistol. The victim tussled with the petitioner followed by an audible gunshot. The victim staggered backward a few steps and then collapsed. Wilcox, Rosemond, and Shirley ran across the street to where the victim lay. The petitioner ran away, and no one encountered him again that night. A girl also came over to the victim, and Wilcox told her to call an ambulance.
After full review of the evidence, the court finds it highly unlikely that a jury would find Knight's putative testimony very persuasive. This witness repeatedly stated that she never saw or heard anyone shoot the victim. Instead, she recalled a spark of light without audible accompaniment. Knight may very well have seen the assisted lighting of the petitioner's marijuana cigar. It should be noted that evidence of the use of the cigarette lighter shortly before the argument between the petitioner and the victim was introduced at the criminal trial at which Knight never testified. Thus, that testimony was not an attempt to explain away Knight's perception of a flash of light among the group of young men.
Also, other witnesses in the neighborhood heard the gunshot which must have been quite audible. Yet, Knight observes only a quick " spark" of light uncoupled from the sound of gunfire.
At the criminal trial, Wilcox described a young female approach the victim while he stood nearby the body. Wilcox mentioned that he engaged the girl in a brief conversation. His testimony came sixteen years before Knight testified at the first habeas hearing. It appears likely that a factfinder would find Knight's identification of the person to whom she spoke sincere but mistaken. In sum, the addition of her testimony fails to undermine the court's confidence in the petitioner's convictions.
Having failed to meet his burden of proving the prejudice prong of the Strickland-Lozada standard, the amended petition is denied.