Opinion
No. CV 05-4000598 S
November 10, 2008
Memorandum of Decision
On July 25, 2005, the petitioner initiated this matter by way of a petition for a writ of habeas corpus filed by and through counsel. The petition raised several claims in four counts. The respondent filed a return denying petitioner's material allegations and raising procedural default, deliberate bypass, that the petitioner has failed to show cause and prejudice for the procedural default, and that res judicata precludes the petitioner from re-litigating any issues previously litigated. The petitioner thereafter filed a motion for permission to amend the petition, which was denied by the court (Swords, J.), and thus has not been amended.
The motion was renewed at a later time and again denied by Judge Swords, who also denied the petitioner's motions for permission to appeal and to stay the habeas corpus proceedings. On May 15, 2007, the petitioner filed an appeal, which was assigned docket number A.C. 28835. On July 25, 2007, the Appellate Court granted the respondent's motion to dismiss the appeal.
The matter proceeded to trial on June 11, 2008, at which time the petitioner withdrew counts one, two and four of the amended petition and only proceeded on count three. The trial was continued to a second day and completed on June 24, 2008. The parties entered various documentary exhibits and the court heard testimony from Department of Correction Record Specialist Cheryl Lee Wright, the petitioner, Parole Manager Gregory Everett from the Board of Pardons and Paroles, the petitioner's sister Gwendalina Jones, attorney William Dow III, Assistant State's Attorney John Waddock, and expert witness attorney Leon Kaatz. The court granted the parties' request to submit post-trial briefs, with the petitioner submitting briefs on July 7 and 21, and the respondent filing a brief on July 24, 2008.
The court has reviewed all the evidence and concludes that the petitioner has not met his burden of proof. For the reasons stated more fully below, the petition for a writ of habeas corpus is denied.
Findings of Facts
The petitioner was the defendant in State v. Eric Ham, CR93-6-0381505, in the judicial district of New Haven. The petitioner was charged with the following crimes: conspiracy to commit larceny in the third degree in violation of C.G.S. §§ 53a-48(a) and 53a-124(a)(1); larceny in the third degree in violation of C.G.S. § 53a-124(a)(1); conspiracy to commit murder in violation of C.G.S. §§ 53a-48 and 53a-54a(a); murder in violation of C.G.S. § 53a-54a(a); assault in the first degree in violation of C.G.S. § 53a-59; and falsely reporting an incident in violation of C.G.S. § 53a-180(a)(3)(A). The petitioner's potential maximum sentence, based on these six charges, was lengthy and potentially for the remainder of much of his natural life.
The petitioner was represented by privately retained counsel, attorney William Dow, III, who has been admitted to the practice of law in Connecticut since 1968 and has had extensive experience in criminal law, both as a prosecutor and defense attorney, since 1970. Prior to the beginning of the criminal trial, attorney Dow and prosecuting attorney Waddock conducted plea negotiations to resolve the matter short of trial. The state's final offer made shortly before the beginning of trial was that the petitioner would receive a total effective sentence of twenty-seven years, suspended after the service of seventeen years. Attorney Dow indicated to the petitioner that on a seventeen-year sentence, he would be eligible for parole after serving eighty-five percent of the to-serve portion, which attorney Dow indicated would be approximately fourteen and one-half years. Attorney Dow specifically advised the petitioner that "[w]hile it is possible that parole eligibility may come sooner, [the petitioner's] assessment of [his] confinement based on this plea bargain should assume the 14 and 1/2-year period of incarceration." Petitioner's Exhibit 3. Attorney Dow also emphasized that if the petitioner were to proceed to trial and be convicted on the murder charge, that he would be parole ineligible and face a mandatory minimum sentence of twenty-five years to serve.
Petitioner's Exhibit 3 is a letter from attorney Dow to the petitioner dated January 6, 1997, the day prior to the beginning of trial. The letter begins by apprising the petitioner that "[t]he purpose of this letter is to set forth the offer proposed by the State as a plea bargain in [his] case."
The petitioner did not resolve the matter via plea agreement and proceeded to trial beginning January 7, 1997. After several days of trial, possibly between January 8 and January 10, 1997 according to a letter dated January 16, 1997 from attorney Dow to the petitioner, the state indicated to the petitioner its continuing willingness to resolve the matter via plea agreement. According to the January 16, 1997 letter, ". . . the State indicated that it would be willing to offer . . . a plea bargain in the approximate range of 12 to 13 years. [Attorney Dow] communicated this to [the petitioner, who] rejected that offer. [Attorney Dow] also indicated to [the petitioner] that it was [his] belief that [he] could probably obtain a plea bargain offer of approximately 10 years. That plea bargain offer would be to the charge of manslaughter which could be entered under an Alford plea. Similarly, [the petitioner] rejected any attempts by [attorney Dow] to secure that disposition. [The petitioner] indicated to [attorney Dow] that [he] would take no plea bargain offer greater than 5 years." Petitioner's Exhibit 4, at pg. 1.
The January 16, 1997 letter emphasized that attorney Dow's ". . . recommendation ha[d] always been that [the petitioner] should seriously explore the possibility of a plea bargain to avoid the possibility of conviction on or conspiracy to commit murder, [the petitioner's] decision ha[d] been to go forward with the trial. [Attorney Dow] ha[d] attempted to explore every opportunity to develop the case as favorably as possible in [the petitioner's] behalf." Id., at pg. 2.
The state's case-in-chief began on January 7 and continued over seven days until January 15, 1997. The petitioner did not call any witnesses in his defense and, upon advice of attorney Dow and after being canvassed by Judge Hadden, the petitioner also did not testify in his own defense. The jury returned a guilty verdict on all six counts. The petitioner was sentenced on April 17, 1997 to a total effective sentence of fifty years to serve.
The Appellate Court's decision sets forth the following underlying facts, which are not put at issue in the instant habeas corpus petition. "From the evidence, the jury reasonably could have found that in March 1993, the [petitioner], accompanied by four masked men, approached Alex Santana and asked him where to find his cousin, George Flores. When Santana replied that he had not seen Flores, the [petitioner] punched Santana in the face, causing him to be thrown against a store window. The owner of the store came outside and the [petitioner] and his companions departed.
"On May 5, 1993, at approximately 11 p.m., the [petitioner] agreed to pay Ronaldo Rivera $40 if he would steal a large, fast, four door automobile and deliver it to the [petitioner]. Rivera found such a vehicle on Frank Street in New Haven and, with the help of a friend, stole a four door Buick and brought the car to the [petitioner] and another man on Ward Street at approximately 2 a.m.
"Santana had been riding that night in the car of his friend, Butch Console, with three other persons, Marilyn Torres, Melissa Dawson and Dimiris Vega. When the car stopped on Button Street, the occupants got out. As they were standing by the car, a man approached and offered to paint Console's initials on the driver's door. Console agreed and then stood next to a red station wagon parked on the opposite side of the street. Meanwhile, his friends stood on the street side of Console's car watching the man paint. Console noticed a car approaching slowly on Button Street. He saw what he first thought were firecrackers coming from the rear seat of the car. When he realized it was gunfire, Console ran around the front of the station wagon to the sidewalk and knelt to avoid the bullets. The approaching car was the stolen Buick and contained the [petitioner] and three companions. Gunfire erupted from the area of the rear seat of the Buick. One bullet hit Santana in the stomach, resulting in his hospitalization. Another bullet struck Torres in the back, causing her death. The evidence indicated that at least five shots were fired from close range.
"A few minutes later, the [petitioner] and his companions crashed the Buick on Howard Avenue and abandoned it with the motor running, the rear door open, a bullet casing on the floor behind the driver's seat, and a sheet covering the rear seat wet with blood. The rear window had been blown out. A second shell was found on the roof of the car, and a third was found on Button Street at the shooting scene. The [petitioner] went to the Hospital of St. Raphael (hospital) at 2:49 a.m. to seek treatment for a gunshot wound. He spoke with a New Haven police officer at 3:05 a.m. He gave a statement to Sergeant Diane Langston declaring that he and his friend had been accosted and shot on the street in an attempted robbery by two masked men. The [petitioner] stated that he and his friend then ran directly to the hospital.
"A ballistics expert testified that the bullet obtained from Torres' body matched the .45 caliber shell casing found on the floor of the Buick. The other casings found on the roof of the Buick and on Button Street came from a nine millimeter gun. A fingerprint expert identified fingerprints found on the interior of the driver's door as those of the [petitioner]. Experts from the state forensic laboratory testified that the blood on the sheet covering the back seat was consistent with the [petitioner's] blood type." State v. Ham, 55 Conn.App. 281, 283-85, 739 A.2d 1268, cert. denied, 252 Conn. 916, 743 A.2d 1128 (1999).
The petitioner appealed from the judgment of conviction, raising three claims: "(1) except for the larceny charges, there was insufficient evidence to establish his guilt beyond a reasonable doubt with respect to the other crimes, (2) he was denied his right to confront his accusers and (3) the trial court gave incorrect jury instructions concerning proof beyond a reasonable doubt and consciousness of guilt." Id., at 283. The petitioner did not prevail on any of the claims and the Appellate Court affirmed the trial court's judgment. The Supreme Court denied the petitioner's certification to appeal from the Appellate Court's decision. The petitioner thereafter filed the instant petition.
Additional facts will be addressed below as necessary to resolve the petitioner's claim.
Discussion
The sole claim before this court is that attorney Dow rendered ineffective assistance of counsel. More specifically, the petitioner alleges in count three that attorney Dow advised him that if he were to plead guilty to the manslaughter charge, he would be eligible for parole after serving eighty-five percent of the offered sentence of twenty-seven years, suspended after the service of seventeen years. The petitioner avers that he relied upon this advice to specifically reject a plea offer of twelve years. An additional allegation asserted by the petitioner is that he told attorney Dow that if he were eligible for parole after serving fifty percent of his sentence, that he would take the plea bargain. As a result of the faulty, inaccurate information given by attorney Dow, the petitioner chose to go to trial and was convicted by a jury. Instead, had the petitioner not relied on this faulty information regarding parole eligibility, then he would have taken the plea bargain and not gone to trial. As relief the petitioner requests that the court either immediately release him from custody, immediately vacate his judgment of conviction and remand the case back to the trial court for a new trial, or such other relief as law and equity may allow. The respondent's return to count three denies the petitioner's material allegations and leaves him to his proof. The respondent also raises the defenses of procedural default and res judicata, though neither of these two defenses apply to the claim in count three.
The court must initially address what can only be described as both a logical and legal incongruity: a claim of ineffective assistance of counsel that in no way challenges the legality of the petitioner's confinement. The petitioner stands convicted by a jury of all charges brought in the information. He was sentenced to a term of fifty years to serve for those convictions. There is no claim brought by the petitioner that attorney Dow in any way performed deficiently during the criminal trial itself. It would appear, therefore, that the petitioner, who is being confined as a result of properly obtained jury convictions that are not at issue, is not challenging the legality of his confinement. Instead, the petitioner is seeking to resuscitate a plea bargain he did not accept.
Attorney Dow's advice to the petitioner that he would be parole eligible at 85% was in accord with the Board of Pardons and Paroles (Board) interpretation and application of P.A. 95-255, § 1. The Board was interpreting the Public Act to apply retroactively. It was not until early 2002, approximately five years after attorney Dow's advice at issue, that the Supreme Court in Johnson v. Commissioner of Correction, 258 Conn. 804, 786 A.2d 1091 (2002), held that P.A. 95-255, § 1 only applied prospectively. This court would not conclude, given the foregoing, that attorney Dow's advice regarding parole eligibility at 85% versus 50% would rise to the level of being deficient performance. State v. Hickey, 80 Conn.App. 589, 597, 836 A.2d 457 (2003), cert. denied, 267 Conn. 917, 841 A.2d 1192 (2004); Larkin v. Commissioner of Correction, 45 Conn.App. 809, 819, 699 A.2d 207 (1997) (attorneys generally cannot be held accountable for failure to counsel clients regarding future changes in the law).
"The writ of habeas corpus indisputably holds an honored position in our jurisprudence. Tracing its roots deep into English common law, it claims a place in Art. I of our Constitution. Today, as in prior centuries, the writ is a bulwark against convictions that violate `fundamental fairness.' Wainwright v. Sykes, [ 433 U.S. 72, 97, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)] (Stevens, J., concurring).
"We have always recognized, however, that the Great Writ entails significant costs. Collateral review of a conviction extends the ordeal of trial for both society and the accused. As Justice Harlan once observed, `[b]oth the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community.' Sanders v. United States, [ 373 U.S. 1, 24-25, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963)] (dissenting opinion). See also Hankerson v. North Carolina, [ 432 U.S. 233, 247, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977) (Powell, J., concurring in judgment). By frustrating these interests, the writ undermines the usual principles of finality of litigation.
"Liberal allowance of the writ, moreover, degrades the prominence of the trial itself. A criminal trial concentrates society's resources at one `time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence.' Wainwright v. Sykes, supra, at 90. Our Constitution and laws surround the trial with a multitude of protections for the accused. Rather than enhancing these safeguards, ready availability of habeas corpus may diminish their sanctity by suggesting to the trial participants that there may be no need to adhere to those safeguards during the trial itself." Engle v. Isaac, 456 U.S. 107, 126-27, 102 S.Ct. 1558, 71 L.Ed.2d 783, reh. denied, 456 U.S. 1001, 102 S.Ct. 2286, 73 L.Ed.2d 1296 (1982).
The Connecticut Supreme Court also has emphasized that "[t]he principal purpose of the writ of habeas corpus is to serve as `a bulwark against convictions that violate "fundamental fairness."' Engle v. Isaac, [ supra, 126], quoting Wainwright v. Sykes, [ supra, at] 97 (Stevens, J., concurring) . . . `To mount a successful collateral attack on his conviction a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962).' D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); see also Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." Bunkley v. Commissioner of Correction, 222 Conn. 444, 460-61, 610 A.2d 598 (1992), rev'd on other grounds, Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203 (2008).
In Summerville v. Warden, 229 Conn. 397, 641 A.2d 1356 (1994), the Supreme Court agreed with the respondent's claim on appeal that, inter alia, the Appellate Court had applied the incorrect standards of habeas corpus review of final convictions. Although lengthy, the following excerpt from Summerville bears repeating. "It is important to clarify initially what is not, and what is, involved in our consideration of this issue. The petitioner does not claim that the evidence of guilt at his criminal trial was insufficient. The Appellate Court rejected that claim in his original appeal . . . and habeas corpus is not designed to re-litigate that issue . . .
"The petitioner's claim is instead that he is entitled by way of habeas corpus to a new trial because the evidence at his criminal trial was medically unreliable. That claim, however, is independent of and unrelated to any claim that his conviction was otherwise affected by some antecedent constitutional error that affected his trial. Thus, in the context of this issue he cannot claim that his criminal trial was unfair because, for example, his counsel was ineffective, or evidence was unconstitutionally introduced or excluded in that trial. We are not confronted, therefore, with a claim that he is burdened by an unreliable conviction resulting from such an antecedent constitutional violation. Compare, e.g., Bunkley v. Commissioner of Correction, supra, 222 Conn. 444 (habeas corpus claim for new trial based on constitutional claim of ineffectiveness of appellate counsel); Phillips v. Warden, 220 Conn. 112, 595 A.2d 1356 (1991) (habeas corpus claim for new trial based on constitutional claim of ineffectiveness of trial counsel flowing from actual conflict of interest).
"The foundational question is whether habeas corpus permits the granting of a new trial pursuant to a petitioner's claim of actual innocence, unadorned by an antecedent showing of a constitutional violation that affected the fairness of his criminal trial. We conclude that it does.
"Habeas corpus is the ultimate inquiry into the fundamental fairness of a criminal proceeding. See, e.g., Lozada v. Warden, 223 Conn. 834, 840, 613 A.2d 818 (1992); Safford v. Warden, 223 Conn. 180, 190, 612 A.2d 1161 (1992); Bunkley v. Commissioner of Correction, supra, 222 Conn. 460. In Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), the United States Supreme Court held that the cause and prejudice standard applies to procedural defaults by state appellate counsel for purposes of federal habeas corpus jurisprudence. The court carved out an exception, however, for certain claims of actual innocence: `Accordingly, we think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas corpus court may grant the writ even in the absence of a showing of cause for the procedural default.' Id., 496. Similarly, this court, in holding that the cause and prejudice standard applies to appellate procedural defaults for purposes of our own habeas corpus jurisprudence, made clear that our holding was not meant to preclude `a substantial claim of innocence in fact.' Jackson v. Commissioner of Correction, 227 Conn. 124, 132 n. 7, 629 A.2d 413 (1993).
"We now hold, therefore, what we implied in Jackson, namely, that a substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the res alt of his criminal trial. This holding is consistent with the mandate of 52-470(a) that the habeas court `dispose of the case as law and justice require.' Even the strong interest in the finality of judgments, and the state's interest in retrying a defendant with reasonably fresh evidence, does not require the continued imprisonment of one who is actually innocent. This holding is also consistent with our prior statements that habeas corpus is designed to remedy fundamental miscarriages of justice. See, e.g., D'Amico v. Manson, supra, 193 Conn. 144. The continued imprisonment of one who is actually innocent would constitute a miscarriage of justice.
"Contrary to the petitioner's argument, however, such an inquiry, as a collateral attack on a conviction, cannot rely on the presumption of innocence because that presumption does not survive a judgment of conviction. 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 [ 397 U.S. 358], 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). It is also true that other constitutional provisions, such as the right to counsel, the right of confrontation, the right to compulsory process, the requirement of proof beyond a reasonable doubt, and the right to exculpatory evidence, `also have the effect of ensuring against the risk of convicting an innocent person.' Id. `All of these constitutional safeguards . . . make it more difficult for the State to rebut and finally overturn the presumption of innocence which attaches to every criminal defendant.' Id., 860.
"The presumption of innocence, however, does not outlast the judgment of conviction at trial. `Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears. Cf. Ross v. Mofjitt, 417 U.S. 600, 610, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) ("The purpose of the trial stage from the State's point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt"). Here, it is not disputed that the State [has] met its burden of proving at trial that petitioner was guilty of [manslaughter in the first degree] beyond a reasonable doubt. 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 of [manslaughter in the first degree].' Id.
"Any other conclusion would be inconsistent with the fact that our habeas corpus jurisprudence places a heavy burden on the petitioner to establish that, notwithstanding his conviction, he is entitled to a new trial. Lubesky v. Bronson, 213 Conn. 97, 110, 566 A.2d 688 (1989); Myers v. Manson, 192 Conn. 383, 387, 472 A.2d 759 (1984). Put another way, it would be anomalous to say that one who is presumed to be innocent nonetheless bears a heavy burden to prove that he is entitled to a new trial because he is actually innocent. If the presumption of innocence means anything, it means that one who is clothed with it does not bear the burden of establishing his innocence, Furthermore, attaching the presumption of innocence to a habeas corpus petitioner would be inconsistent with the well recognized difficulties and costs often occasioned by the issuance of a writ of habeas corpus years after the original conviction. See Johnson v. Commissioner of Correction, 218 Conn. 403, 589 A.2d 1214 (1991). Thus, we reject the conclusion that the petitioner was entitled, in these proceedings, to the presumption of innocence." (Emphasis added.) Summerville v. Warden, supra, 229 Conn. 419-24.
Applying the foregoing principles, it is patently clear that the petitioner does not benefit from the presumption of innocence, was convicted by due process of law and stands convicted by a jury of all charges, has failed to show that there was a reasonable doubt regarding his guilt, and does not challenge the outcome of the trial itself or the legality of the convictions themselves. The petitioner has neither alleged nor shown to this court that there was either a fundamental unfairness or miscarriage of justice. The petitioner has in no way demonstrated that he somehow has been burdened by an unreliable conviction. This habeas court cannot, therefore, nullify the jury verdicts in the absence of an antecedent constitutional violation that affected the outcome of the criminal trial.
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.