Opinion
No. CV03-0004303 S
November 30, 2005
MEMORANDUM OF DECISION
This petition for a Writ of Habeas Corpus was originally filed on December 17, 2003 and thereafter amended on May 6, 2005. This court notes that the petitioner's history before the various courts of this state has been ongoing and is subject to judicial notice. "The petitioner was originally committed to the custody of the Commissioner of Corrections on March 21, 1988 as a result of his arrest and charges of Conspiracy to Commit Murder in violation of CGS § 53a-48 and 53a-54a and Accessory to Murder in violation of CGS § 53a-8 and 53a-54a. The petitioner has since remained in the continuous custody of the respondent. On November 13, 1990, following a trial before a twelve-member jury the petitioner was acquitted of the count of Conspiracy to Commit Murder but found guilty of being an Accessory to Murder. On January 11, 1990 the Court, Corrigan, J. sentenced him to a term of twenty-five (25) years of incarceration. The petitioner was represented throughout the criminal trial by Attorney Donald Freeman.
"The Connecticut Supreme Court decided the petitioner's direct appeal of his conviction on July 23, 1991. Attorney Michael Sheldon of the University of Connecticut School of Law represented the petitioner on this appeal. Ultimately, the petitioner's conviction was affirmed. See State v. Grant, 219 Conn. 596 (1991). As noted by the Connecticut Supreme Court in its decision, a jury could reasonably have found the following facts regarding the underlying crimes to be true.
"On the evening of March 19, 1988, the victim, Marcel Malcolm, was found `slumped over' the seat of his white Nissan automobile at the intersection of Harold and Lyme Streets in Hartford. He was transported to the hospital where he was pronounced dead. The cause of death was certified as shotgun wounds to the head and neck The manner of death was ruled a homicide.
"Two witnesses for the state, Robert Gordon and Marc Osborne, testified about the events that occurred immediately prior and subsequent to the shooting. Gordon testified that the victim was involved in the selling of cocaine and that an association existed between the victim and Ronald Daniels, whereby Daniels would sell drugs for the victim. Disagreements had arisen over $400 that Daniels owed to the victim. Between 5 and 6 p.m. on March 19, 1988, Daniels called Gordon, who, at the time, was living in Daniels' house with Daniels' family, and asked him to take the victim to a certain location at Lyme Street. When the victim appeared at Daniels' house, he and Gordon drove to Lyme Street in the victim's white Nissan automobile.
"Osborne testified that at approximately 5:45 p.m. on March 19, 1988, he received a telephone call at his home from Daniels, requesting the use of Osborne's shotgun. When Osborne asked Daniels why he wanted the shotgun, Daniels responded that he `wanted to scare someone.' Between approximately 6:45 and 7 p.m, Daniels arrived at Osborne's house and took the shotgun and three shells. Daniels put the shotgun down his sweatpants and zipped up his jacket and then he and Osborne left the house and proceeded on foot west on Tower Avenue toward its intersection with Palm Street. Before they reached Palm Street, a man, later identified as the [petitioner], drove up in a dark colored Mazda automobile and Daniels `flagged it down.' Osborne got in the back seat and Daniels got in the passenger seat.
Although the Supreme Court did no include this in its opinion, from the evidence produced at the habeas trial, this Court is able to conclude that the petitioner was driving a burgundy colored Mazda RX-7 with Massachusetts marker plates. In all likelihood, this was a stolen vehicle, although it is unclear whether the petitioner was the person who had stolen the vehicle or was simply driving it. At any rate, the petitioner's trial defense counsel was successful in having a motion in limine granted that forbade the state from making reference to the Mazda as a stolen vehicle.
"Once in the car, there was some whispered conversation between the [petitioner] and Daniels, but nothing that Osborne could hear.
"Without any instructions from Daniels, the [petitioner] proceeded west down Tower Avenue, took a right onto Palm Street going north and another left onto Harold Street. About halfway between Palm and Lyme Streets, Daniels told the [petitioner] to pull over, and Daniels and Osborne got out of the [petitioner]'s automobile. The [petitioner] then proceeded west down Harold Street and made a right onto Lyme Street. Daniels and Osborne continued to walk down Harold Street until they reached the intersection of Lyme Street, where they waited until the white Nissan driven by the victim pulled up and parked.
"After the victim arrived and parked his car, Gordon, who was in the passenger seat, got out and walked over to Daniels, who had proceeded to the driver's side of the vehicle. An argument developed between the victim and Daniels, after which Daniels pulled the shotgun out of his sweat pants, told the victim he had five seconds and proceeded to count backwards from five. After the countdown, Daniels fired three shots into the victim.
"Within seconds of the shooting, the [petitioner]'s dark colored Mazda automobile reappeared and pulled up next to the victim's car. After the [petitioner] gave certain instructions to Daniels, all three men, Daniels, Gordon and Osborne, got into the [petitioner]'s automobile and drove away from the scene." Grant v. Warden, Superior Court, judicial district of Tolland, Docket Number CV 94-0001817 (April 25, 2003, Fuger Jr., J.), quoting State v. Grant, 219 Conn. 596, 597-99 (1991).
Subsequent to the Supreme Court's decision, affirming the lower court, the petitioner on February 15, 1994 filed a petition for a writ of habeas corpus on three grounds, which was tried over four days in January February and April 2003, alleging that: (1) his trial defense counsel, Attorney Donald Freeman, did not provide effective representation in violation of the 6th Amendment to the United States Constitution and Article 1, § 8 of the Connecticut Constitution; (2) the state attorney prosecuting the case engaged in prosecutorial misconduct; and (3) his appellate defense counsel, Attorney Michael Sheldon, did not provide the effective assistance of counsel in preparing and arguing the appeal.
In that case, the petitioner was represented by Attorney Sebastian DeSantis. The court (Fuger, J.) denied the Writ of Habeas Corpus, which was then appealed in Grant v. Commissioner of Correction, 86 Conn.App. 392 (2004). The appellate court affirmed the trial court below. The petitioner brings this appeal asserting in Count 1, ineffective assistance of habeas counsel in Docket No. CV 91-0001817 and in Count 2, that he is actually innocent of the charge of accessory to murder for which he was convicted in Docket No. CR88-032490.
This court has reviewed the testimony of the witnesses, specifically the petitioner and Attorney Sebastian DeSantis, as well as the exhibits entered into evidence, including the amended petition and return filed in Docket Nos. CV 94-0001817, CV 96-0002305, CV 97-0002426, the Memorandum of Decision filed in Docket No. CV 91-0001817, the post-trial briefs filed by Attorney DeSantis and Assistant State's Attorney Michael Gailor, and the transcripts of the underlying habeas trial. For the reasons stated below, the court finds that the petitioner has not met his burden and denies his petition.
Discussion
It is important at the outset to understand a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial . . . Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994).
I. Ineffective Assistance of Habeas Counsel
". . . To succeed in his bid for a writ of habeas corpus [alleging ineffective assistance of habeas counsel], the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable . . . Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel. The second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement . . ." (Internal citations and quotation marks omitted.) Lazada v. Warden, 223 Conn. 834, 842-43 (1992).
In considering the alleged deficient performance of the petitioner's habeas counsel, his claim of ineffective assistance of counsel must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d (1984), before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant mates both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124 (1988) ('[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')" Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. As such, a habeas court knowing the outcome of the trial "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn.App. 253, 264 (1979), cert. den., 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Henry v. Commissioner of Correction, 60 Conn.App. 313, 317 (2000).
Given these standards, the petitioner here must show that the performance of Attorney DeSantis in the habeas trial was below the standard of a reasonably competent trial attorney doing habeas corpus cases and that said deficient performance prejudiced the petitioner. Then the petitioner must additionally show that his trial counsel was ineffective. Lozada v. Warden, supra, 223 Conn. 842. This latter showing also entails the two-pronged showing of deficient performance and the prejudice arising therefrom. Only if the petitioner satisfies these multiple requirements, which in the words of the Supreme Court is a Herculean task, can the petitioner prevail on his claim of ineffective assistance of habeas counsel.
Here the petitioner claims that Attorney DeSantis was ineffective due to his failure to subpoena and produce the following witnesses: Mark Osborne, Joseph Octave, Leon Katz, James Ravello and James Furnell. Attorney DeSantis, however, credibly testified that he could not find two of them. In addition, notwithstanding his client's difference of opinion with respect to these witnesses, he also did not believe any of them would provide helpful testimony and in fact, had the potential to be harmful to his client. As discussed above, the court will not second-guess trial counsel's decisions with respect to calling witnesses; he is entitled to the presumption that his decisions are reasonable and indeed, the petitioner has not produced these witnesses himself or given this court sufficient basis to overcome that presumption.
Moreover, Attorney DeSantis clearly did a thorough job in reviewing the evidence as well as the state's file which he received from prior habeas attorneys, hired an investigator, produced numerous witnesses on behalf of the petitioner, including the Honorable Michael Sheldon, the petitioner, Attorney Donald Freeman, Robert Gordon, Ronald Daniel and Assistant State's Attorney Warren Maxwell. He also reviewed the 72-page "dissertation" written by the petitioner that thoroughly described the petitioner's recitation of the underlying events, as well as his claims and concerns, and which Attorney DeSantis testified was very well done and very helpful.
There is simply no basis to the petitioner's claims of ineffective assistance of counsel with respect to trial counsel's preparation for trial and performance during trial. The petitioner's actual innocence claim, insofar as it is alleged in support of ineffective assistance of counsel, is also unfounded and shall be discussed as part and parcel of Count 2 below.
II. Actual Innocence
The petitioner also claims that he is actually innocent of the crime of accessory to murder, and that his habeas counsel was ineffective for his failure to pursue this claim in the prior proceeding. As such, he seeks habeas corpus relief by either finding that trial counsel was ineffective for failing to pursue this claim and/or that because the petitioner is actually innocent, his incarceration is unconstitutional and his conviction illegal.
". . . [I]n Miller v. Commissioner of Correction, [ 242 Conn. 745 (1997)], [the Supreme Court] resolved the question [of what the appropriate standard is for freestanding claims of actual innocence] . . . [The Supreme Court] held `that the proper standard for evaluating a freestanding claim of actual innocence, like that of the petitioner, is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty of the crime.' . . .
"In so holding, however, `[the Supreme Court] assume[d] without deciding that the petitioner's claim must be based on `new evidence,' that is, evidence that is not cumulative, was not available to the petitioner at his criminal trial, and could not have been discovered by him at that time through due diligence.' . . . [The Supreme Court] engaged in that assumption for three explicitly stated reasons: `(1) the habeas court [had] applied that requirement to the petitioner in [that] case, and determined that the petitioner's evidence met that requirement; (2) the petitioner agreed that this should be one of the components of his burden and (3) the parties [did] not dispute that the petitioner's evidence [was] newly discovered.' . . ." (Internal citations omitted.) Clarke v. Commissioner of Correction, 249 Conn. 350, 355-56 (1999). ". . . Our Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence `an open question in our habeas jurisprudence.' Clarke v. Commissioner of Correction, 249 Conn. 350, 358 (1999).
[The Appellate Court], however, has held that a claim of actual innocence must be based on newly discovered evidence. Clarke v. Commissioner of Conrrection, 43 Conn.App. 374, 379 (1996), appeal dismissed, 249 Conn. 350 (1999). 'A writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered.' Williams v. Commissioner of Correction, 41 Conn.App. 515, 530 (1996), appeal dismissed, 240 Conn. 547 (1997). `This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence `could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence.' . . ." Batts v. Commissioner of Correction, 85 Conn.App. 723, 726-27, cert. denied, 272 Conn. 907 (2004).
The petitioner has failed to establish both that he is actually innocent and that Attorney DeSantis rendered ineffective assistance of counsel by not raising such a claim in the previous habeas petition. Habeas counsel made a reasonable decision not to pursue the actual innocence claim because he believed that Mr. Daniel's testimony, and his credibility before the habeas court, (Fuger, J.), were the critical issues. Attorney DeSantis testified that if the habeas court believed Mr. Daniels' testimony, then Attorney Freeman's failure to produce Mr. Daniels at the underlying criminal trial would have likely been deemed ineffective. He saw no point in pursuing an actual innocence claim. This strategic decision was well-founded, especially given the heightened standard of proof a habeas petitioner has in an actual innocence claim vis-a-vis a claim of ineffective assistance of counsel.
The petitioner today claims that prior habeas counsel should have raised the actual innocence claim because not only did Mr. Daniels testify that the petitioner did not know that a crime was going to occur, Mr. Gordon also similarly testified that petitioner had nothing to do with the crime. The petitioner's claim however, is problematic for several reasons. First of all, Mr. Gordon and Mr. Daniels both testified at the petitioner's first habeas trial and the court (Fuger, J.) found neither to be credible. As such, Attorney DeSantis's failure to allege actual innocence could hardly be deemed ineffective or prejudicial where neither witness, upon whose testimony this actual innocence claim is based, was credited by the court. It simply would not have mattered which theory Attorney DeSantis pursued on behalf of the petitioner where the petitioner's witnesses were sorely lacking in credibility.
In addition, an actual innocence claim requires that the petitioner present newly discovered evidence to the habeas court, i.e. evidence that was not discoverable at the time of the criminal trial. Battis v. Commissioner of Correction, supra, 85 Conn.App. 727. As a matter of law, Mr. Daniels' testimony was discoverable; as such, Attorney DeSantis would not likely have prevailed in attempting to argue that Mr. Daniels' testimony was newly discovered evidence. By the same token, the petitioner in this separate count of actual innocence has also failed to prevail in establishing that he is actually innocent. His only evidence in support of actual innocence is his own testimony and the testimony in the transcripts produced for the underlying habeas, which the court in that trial (Fuger, J.) did not credit. This court cannot find that the petitioner has met his burden with respect to showing that there is newly discovered evidence to support his claim of actual innocence, nor has he established that he is actually innocent.
Accordingly, the petition for a Writ of Habeas Corpus is denied.