Opinion
CV124004371S
10-11-2017
Troy Harris v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Troy Harris, seeks habeas corpus relief from a total, effective sentence of forty years imprisonment, imposed after a jury trial, for the crimes of two counts of attempted murder and one count of assault first degree. The Appellate Court affirmed the judgment of conviction, State v. Harris, 85 Conn.App. 637, 858 A.2d 284 (2004); cert. denied, 272 Conn. 901, 863 A.2d 695 (2004).
The petitioner filed a first habeas action attacking his convictions based on ineffective assistance of defense counsel, Attorney Robert Berke. That petition was denied, Harris v. Warden, Superior Court, Tolland Judicial District, d.n. CV 05-4000485 (May 12, 2008), Schuman, J. The Appellate Court affirmed that denial, Harris v. Commissioner, 121 Conn.App. 240, 994 A.2d 685 (2010); cert. denied, 297 Conn. 926, 998 A.2d 1193 (2010).
The petitioner then filed a second habeas action alleging that first habeas counsel, Attorney Justine Miller, provided ineffective assistance, and that petition was also denied, Harris v. Warden, Superior Court, Tolland Judicial District, d.n. CV 08-4002725 (June 7, 2011), T. Santos, J. The Appellate Court also affirmed that denial, Harris v. Commissioner, 146 Conn.App. 877, 81 A.3d 259 (2013); cert. denied, 322 Conn. 905, 139 A.3d 708 (2016).
The present action is a habeas on a habeas on a habeas alleging that second habeas counsel, Attorney Joseph Visone, also represented the petitioner deficiently. 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, that his attorney's performance was substandard and that there exists a reasonable likelihood that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that habeas counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra .
This standard of reasonableness is measured by prevailing, professional practices. 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, 46, 627 A.2d 1363 (1993). In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Reasonable probability means a probability sufficient to undermine confidence in the outcome. DaEira v. Comm'r of Corr., 107 Conn.App. 539, 542-43, 946 A.2d 249 (2008), 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 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.
Also, in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), our Supreme Court recognized a purely statutory right to raise, in a subsequent habeas action, a claim of ineffective assistance on the part of previous habeas counsel in presenting claims of ineffective assistance of trial counsel. Id., 835. However, the petitioner's burden becomes a multi-tiered application of the Strickland standard by which allegations of ineffective assistance claims are gauged. Id., 842. To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel were 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 and second habeas cases were 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., 842-43. The Supreme Court described this triple layered obligation as " a herculean task." Id., 843.
Thus, in this case, the petitioner must prove, by a preponderance of the evidence, that Attorney Visone represented him ineffectively in attempting to prove that Attorney Miller was ineffective in her attempt to prove that Attorney Berke was ineffective at the petitioner's criminal trial. Specifically, the petitioner avers that Attorney Visone failed to demonstrate that the testimony of Tammy Jamison, the mother of the petitioner's children, " was unreliable"; failed to subpoena Jamison's medical records; failed to present an additional alibi witness, Esperanza Harris; failed to present the testimony of John Simpson, Howard Dozier, and Hector Quinones.
The petitioner never called Esperanza, Harris, Simpson, Dozier, or Quinones to testify at the present habeas trial nor did he establish their expected testimony through other sources. It is incumbent upon the petitioner to establish the ways in which defense counsel's failure to present a witness negatively affected the pertinent proceeding, Henderson v. Commissioner, 129 Conn.App. at 188, 195, 19 A.3d 705 (2011). " [P]rejudice cannot be demonstrated with regard to trial counsel's failure to interview potential witnesses where petitioner fails to call those witnesses to testify at the habeas trial or offer proof that their testimony would have been favorable to him at the criminal trial, " Id.; Antwon W. v. Commissioner, 172 Conn.App. 843, 163 A.3d 1223 (2017).
The petitioner's case is bereft of any evidence supplying this missing information, therefore he cannot prevail as to these allegations of neglectful representation because he has failed to prove the prejudice prong under Strickland .
The petitioner never presented the testimony of a legal expert who opined that Attorney Visone's representation fell below that of reasonably competent habeas counsel. Also, neither Attorney Visone nor Attorney Miller testified in the present case. The Appellate Court concisely summarized the evidence that supported the jury's verdict:
" On May 16, 2000, John Simpson drove Howard Dozier and Hector Quinones to Washington Street in Waterbury to pick up Ray Ramos. At that time, the defendant was residing at 39 Washington Street with Tammy Jamison, the mother of his child. Simpson stopped the vehicle he was driving on Washington Street in a driveway between the defendant's house and the house where they were picking up Ramos, and all three men exited the car. Dozier walked up the street and encountered the defendant standing on his porch at 39 Washington Street. Dozier and the defendant had a brief conversation. As Dozier turned his back to the defendant in an attempt to return to the vehicle in which he had arrived, the defendant began firing an Uzi machine gun at Dozier. Dozier ran back to the vehicle and he and Simpson drove off. The defendant continued to fire at the vehicle, and Simpson, who was driving, was shot in his neck, " State v. Harris, supra, 639-40. This court concurs in the Appellate Court's assessment of the power of the evidence pointing to the petitioner's guilt:
" Although the credibility of the witnesses was central to the state's case, the state's case was overwhelmingly strong. This was not merely a credibility contest between one defendant and one victim--this was a credibility contest, supported by physical evidence, among the defendant and Simpson, his assault victim and attempted murder victim; Dozier, an eyewitness to the assault and an attempted murder victim; and Jamison, the mother of his child, with whom he was residing at the time of the shooting. The evidence showed no connection between Jamison and the victims, and therefore no reason to suspect that she offered false testimony to corroborate the stories of Simpson and Dozier. The evidence also showed that Simpson and Dozier had no personal animus toward the defendant, and therefore no motivation to fabricate a story. The physical evidence showed conclusively that the gun from which the bullets were fired was the same gun that was recovered after Jamison told the police where she disposed of it after it was fired by the defendant. The testimony of the witnesses in this case, who had very different connections and relationships with the defendant, and which was supported by the physical evidence, strongly supported the defendant's conviction, " Id., 647.
The remaining specification of ineffective assistance on the part of Attorney Visone pertains to Tammy Jamison. The petitioner contends that his then girlfriend must have lied when she testified at his criminal trial that she saw him retrieve the Uzi that was hidden in the ceiling of the bathroom of their apartment, proceed downstairs with the machine gun, and shoot at the car occupied by the victims. He then returned upstairs with the Uzi. He gave the weapon to Jamison who inserted it into a book bag and eventually concealed the bag in a barbeque grill. Jamison later removed the weapon, at the petitioner's behest, and gave it to the petitioner's acquaintance. Later, she admitted her participation to the police and informed them where the weapon was hidden. The police recovered the Uzi at the location she described.
The petitioner laments that Attorney Visone, Attorney Miller, and Attorney Berke all failed sufficiently to demonstrate that Jamison lacked veracity because of her unstable mental condition. At the present habeas trial, the petitioner offered the testimony of a private investigator, Gregory Senick. Senick avowed that he interviewed Jamison while she was incarcerated in February 2008, and she admitted that her statements to the police and her courtroom testimony were " all lies." Senick reported this recantation to Attorney Miller, but it was never reduced to writing.
Attorney Miller declined to call Ms. Jamison as a witness at the petitioner's first habeas trial. Attorney Visone thoroughly explored that decision by Attorney Miller at the second habeas trial. Attorney Miller stated that she communicated with Jamison after receiving the information from Senick. She also personally spoke with Jamison just before the first habeas trial commenced. Jamison equivocated about the recantation and displayed hostility toward the petitioner.
Attorney Miller still prepared to present Jamison as a witness, including questioning her about her psychiatric condition and treatment. However, Jamison adamantly refused to release her medical records. Fearful of Jamison's unwillingness to abide by her recantation of February 2008, Attorney Miller made a tactical decision to avoid presenting Jamison as a habeas witness.
Judge T. Santos found this decision to be within the wide bounds of reasonable habeas representation and ruled that the petitioner failed to prove deficient performance under the Strickland standard. No credible evidence was adduced at the present habeas trial to persuade this court otherwise.
According to Judge Schuman, see Harris v. Warden, supra, footnote 1, the evidence disclosed that, at the time of the criminal trial, Attorney Berke did subpoena Jamison's medical records from the institutions and offices he reasonably believed provided her with psychiatric services. However, these providers responded by denying the existence of any such records in their custody. Although Ms. Jamison was in prison at the time of her testimony at the criminal trial. Attorney Berke never sought her Department of Corrections (DOC) records.
Ms. Jamison testified at the present habeas trial and confirmed that she steadfastly refused to release her psychiatric records for all previous proceedings. Consequently, the petitioner cannot demonstrate that Attorney Berke, Miller, or Visone were constitutionally inept by failing to produce the unobtainable.
Also, Jamison did eventually consent to allow this court to receive and review her medical/psychiatric records in camera. These records are Exhibit 10. The court's in camera examination of those records disclosed no evidence bearing on Ms. Jamison's capacity to perceive, communicate, or recall events accurately during the period 2000 to 2002.
Her statements to the police and testimony in court were consistent with and corroborated by the testimony of other witnesses who personally knew the petitioner, observed the shooting, and identified him as shooting the machine gun. She correctly revealed the location of the Uzi to the police. She spent months in prison for her role in abetting the petitioner.
The petitioner's allegations that Attorney Visone incompetently represented him in his second habeas case are devoid of merit under either prong of the Strickland test. For these reasons, the amended petition for habeas corpus relief is denied.