Opinion
No. CV 06 4001325
July 22, 2010
MEMORANDUM OF DECISION
The petitioner, Darcus Henry, alleges in his petition for a writ of habeas corpus, filed on September 26, 2006 and amended on December 18, 2009, that he was denied the effective assistance of counsel at the trial and appellate level in violation of the sixth and fourteenth amendments to the United States Constitution and article first, § 8, of the constitution of Connecticut. He requests that this court release him from confinement. For reasons set forth more fully below, the petition is denied.
The petitioner also alleged, in counts four and five of his amended petition, that he was denied his right to due process and a fair trial by incidents of prosecutorial impropriety, the trial court's denial of a motion for continuance and the jury's erroneous understanding and application of the reasonable doubt standard. At the conclusion of the habeas trial, this court dismissed these counts as being procedurally defaulted.
This matter came to trial before this court on March 15, 16 and April 5, 2010. Attorneys Michael Dolan, John Williams and Moira Buckley testified at the trial. The petitioner and Attorney Gary Mastronardi, a legal expert in the practice of criminal defense, also testified at the trial. The parties filed numerous exhibits, including transcripts of the petitioner's criminal trial and the appellate briefs submitted in his direct appeal. The petitioner filed a post-trial brief on May 5, 2010.
Findings of Fact
Having reviewed all of the testimony and documentary evidence, the court makes the following findings of fact.
1. The petitioner was charged in the judicial district of New Haven, under docket number CR97-0442900, with murder as an accessory in violation of General Statutes §§ 53a-54a(a) and 53a-8, conspiracy to commit murder in violation of General Statutes §§ 53a-54a(a) and 53a-48(a) and with two counts of assault in the first degree as an accessory in violation of General Statutes §§ 53a-59(a)(5) and 53a-8.
2. The petitioner pleaded not guilty and exercised his right to a jury trial.
3. "The jury reasonably could have found the following facts. At approximately 2 a.m. on December 14, 1996, the [petitioner] and three fellow members of a street gang, Sean Adams, Carlos Ashe and Johnny Johnson, went to a housing project in New Haven and fired with automatic or semiautomatic weapons at three unarmed members of a rival street gang. During the attack, the [petitioner] and his companions killed Jason Smith and seriously injured Marvin Ogman and Andre Clark. The motive for the attack was to avenge the murder of a former member of the [petitioner's] gang, Tyrese Jenkins, by members of the rival gang, one of whom was Clark's cousin." State v. Henry, 72 Conn.App. 640, 643, 805 A.2d 823, cert. denied, 262 Conn. 917, 811 A.2d 1293 (2002).
4. The petitioner was tried jointly with Adams, Ashe and Johnson.
5. Attorney Michael Dolan represented the petitioner until September 14, 1999, the day jury selection was scheduled to begin. On that date, the petitioner requested to replace Attorney Dolan with Attorney John Williams. After a discussion in chambers, the trial court (Licari, J.) rescheduled jury selection to September 21, 1999, thereby allowing Attorney Williams to represent the petitioner from the beginning of the trial.
Petitioner's Exhibit [Exh.] 1.
6. Attorney Williams represented the petitioner throughout the trial.
7. On December 14, 1999, the jury found the petitioner guilty as charged.
8. Thereafter, on March 1, 2000, the trial court (Licari, J.) sentenced the petitioner to a total effective sentence of 100 years of incarceration.
9. The petitioner unsuccessfully appealed his conviction. See State v. Henry, supra, 72 Conn.App. 640.
10. Attorney Moira Buckley represented the petitioner on appeal.
11. Additional facts will be discussed as necessary.
Discussion of Law
"To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the [s]ixth [a]mendment . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). "[W]hen a petitioner is claiming ineffective assistance of appellate counsel, he must establish that there is a reasonable probability that but for appellate counsel's error, [he] would have prevailed in his direct appeal." (Internal quotation marks omitted.) Turner v. Commissioner of Correction, 118 Conn.App. 565, 568, 984 A.2d 793 (2009), cert. denied, 296 Conn. 901, 991 1104 (2010). "[An ineffective assistance of counsel] claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Emphasis in original; internal quotation marks omitted.) Small v. Commissioner of Correction, supra, 713.
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 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; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." (Citations omitted; internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 689. "What constitutes effective assistance [of counsel] is not and cannot be fixed with yard-stick precision, but varies according to the unique circumstances of each representation." (Internal quotation marks omitted.) Henderson v. Commissioner of Correction, 80 Conn.App. 499, 505, 835 A.2d 1036 (2003), cert. denied, 267 Conn. 918, 841 A.2d 1190 (2004).
Count I: Ineffective Assistance of Pretrial Counsel CT Page 15107
In count one of his amended petition, the petitioner alleges that Attorney Dolan, his pretrial counsel, rendered ineffective assistance by failing to (1) turn his file over to Attorney Williams in a timely fashion, (2) conduct an adequate pretrial investigation, (3) retain an expert to review the medical records of Ogman and to determine the extent to which, if any, Ogman's use of PCP impaired his ability to identify the shooters and (4) by failing to adequately explain to the petitioner any plea offers, the strengths and weaknesses of the state's case, the strengths and weaknesses of any defenses that could be raised at trial and his exposure on all the charges.The petitioner first claims that Attorney Dolan was ineffective because he gave his file to Attorney Williams only after a considerable delay, which seriously disadvantaged Attorney Williams in his defense of the petitioner. At the habeas trial, Attorney Williams testified that Attorney Dolan gave him part of his file on September 14, 1999, the day on which he replaced Attorney Dolan as the petitioner's trial counsel. He received the rest of Attorney Dolan's file before the evidentiary portion of the petitioner's trial. He further testified that he had enough time to prepare for the trial.
The petitioner has failed to demonstrate either deficient performance or prejudice as to this particular claim of ineffective assistance of counsel. The petitioner did not introduce any evidence as to exactly when Attorney Dolan provided Attorney Williams with copies of his entire file. Nor did he introduce any evidence demonstrating that his defense was prejudiced by the "considerable delay" in turning over the file. Attorney Williams made no mention of being disadvantaged by the timing of his receipt of Attorney Dolan's file. "Mere conjecture and speculation are not enough to support a showing of prejudice." (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009). Accordingly, this claim fails.
The petitioner next claims that Attorney Dolan conducted an inadequate pretrial investigation, which contributed to the petitioner's failure to prevail at trial. "To succeed in his attack on the adequacy of counsel's pretrial investigation, the petitioner must show both that the investigation was inadequate, not merely imperfect . . . and that, had it not been for the inadequate investigation, there is reasonable probability that the outcome would have been different." (Citation omitted.) Williams v. Bronson, supra, 21 Conn.App. 267. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland v. Washington, supra, 466 U.S. 691. "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information." Id., 691.
Attorney Dolan testified at the habeas trial that the petitioner informed him that he had an alibi. He hired Daniel Blackmon, who he described as a thorough investigator, to investigate the petitioner's case. Mr. Blackmon had trouble contacting the people identified by the petitioner as his alibi witnesses. Attorney Dolan recalled instructing the petitioner to bring these alibi witnesses to his office. Apparently, they never came. Attorney Dolan also stated that the petitioner, who was out on bond, was not completely cooperative and that he was surprised by what he described as the petitioner's lack of interest in the case. He further testified that he reviewed all the police reports, including Ogman's statement, and that a number of attempts were made to contact Ogman. Attorney Dolan was present on at least one occasion when Blackmon attempted to interview Ogman. He also went to the crime scene to get the lay of the land. Attorney Dolan admitted, however, that he did not inquire into whether the lights at the crime scene were working at the time of the crime and that he did not instruct Mr. Blackmon to contact the paramedics or the officers who rode in the ambulances with the victims.
Again, the petitioner has failed to demonstrate either deficient performance or prejudice. Attorney Dolan cannot be faulted for the failure of the petitioner's alibi witnesses to cooperate. Mr. Blackmon's report reveals that he made several, albeit unsuccessful, attempts to contact the petitioner's alibi witnesses. It also demonstrates that he sought the petitioner's assistance in contacting the alibi witnesses and that he even had trouble contacting the petitioner on more than one occasion. Since the petitioner was out on bond he was in a position to assist in the investigation of his case. It appears that he did not do so. Under these circumstances, Attorney Dolan's investigation was reasonable. Not only did he attempt to contact the petitioner's alibi witnesses, he also reviewed all the evidence that the state had against the petitioner. In any event, the petitioner has made no showing of what benefit additional investigation would have revealed. He has alluded to impeachment evidence, i.e., poor lighting at the crime scene and testimony from the paramedics and officers that Ogman and Clark told them that they could not identify the shooters, that Attorney Dolan could have discovered but has not presented any such evidence to this court. This court cannot speculate as to the benefit that any additional investigation by Attorney Dolan would have revealed. This claim accordingly fails.
Respondent's Exh. H.
Similarly, the petitioner's claim that Attorney Dolan should have retained an expert to review Ogman's medical records and to determine what effect, if any, his use of PCP had on his ability to identify the shooters fails for lack of a showing of prejudice. In his brief, the petitioner argues that if Attorney Dolan hired an expert and the expert's findings supported the contention that Ogman's PCP use impaired his ability to identify the shooters Attorney Dolan could have used the information to negotiate "a very favorable plea agreement." This claim is purely speculative. The record is bereft of any evidence that Ogman's PCP use impaired his ability to make accurate observations. Although Ogman tested positive for PCP at the hospital, the test only revealed the presence of PCP; it did not reveal the amount of PCP in his system. Dr. Peter Angood, Ogman's treating physician, testified that "different drugs have different time periods in your body, depending on your metabolism, and PCP is usually cleared within a few days." He also testified that there was no indication in Ogman's medical records that he was psychotic, disoriented or schizophrenic on the date of treatment. On cross examination, Ogman admitted to using PCP that month but denied using it around the time of the shooting. Moreover, he had identified the petitioner as one of the shooters to the police on more than one occasion immediately following his admittance to the hospital. In light of the above, even if Attorney Dolan retained an expert, it is far from clear that the expert would have been able to opine that Ogman's PCP use impaired his ability to identify the shooters. Additionally, even if the expert could have rendered such an opinion, the petitioner has failed to prove that Ogman's credibility would have been so impeached thereby that Attorney Dolan could have used this information to negotiate a favorable plea agreement.
Petitioner's Exh. 4, pp. 145, 164-65.
Petitioner's Exh. 4, p. 145.
Petitioner's Exh. 5, p. 58.
Petitioner'sExh. 8, p. 188.
Petitioner's Exh. 12, pp. 134-36; Petitioner's Exh. 13, p. 11.
Lastly, the petitioner claims that Attorney Dolan failed to adequately explain any plea offers, the strengths and weaknesses of the state's case, the strengths and weaknesses of any defenses that could be raised at trial and the petitioner's exposure on all the charges. He alleges that but for these errors he would have taken a plea bargain. "[A]lmost every criminal defendant is faced with the crucial decision of whether to plead guilty or proceed to trial. Although this decision is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial." (Internal quotation marks omitted.) Ebron v. Commissioner of Correction, CT Page 15110 120 Conn.App. 560, 567, 992 A.2d 1200, cert. denied, 297 Conn. 912 (2010).
At the habeas trial, although he could not specifically remember the conversation, Attorney Dolan testified that he conveyed all offers to the petitioner and that he discussed the case, including possible defenses and the petitioner's exposure on all the charges, with the petitioner. He explained that he was not going to call the petitioner's alibi witnesses at the trial because they had not made themselves available to him and because he believed the alibi defense was false and would be torn apart by the prosecution. He also indicated that the petitioner had no interest in pleading guilty to murder. The petitioner testified, to the contrary, that Attorney Dolan never brought any plea offers to him or explained the number of years he could serve if he was convicted on all the charges. However, he admitted that he knew it was possible that he could spend the rest of his life in jail.
Based upon the above, this court cannot find that Attorney Dolan inadequately advised the petitioner regarding the case and any plea offers. This court credits Attorney Dolan's testimony that he discussed the case with the petitioner and conveyed all plea offers to him. Even if this court found Attorney Dolan's conduct to be deficient, the petitioner has not met his burden in proving that he was prejudiced by such conduct. To prevail on this claim, the petitioner must demonstrate that he was deprived of the benefit of a plea offer that he and the court would have accepted. See Ebron v. Commissioner of Correction, supra, 120 Conn.App. 560; Sanders v. Commissioner of Correction, 83 Conn.App. 543, 552, 851 A.2d 313 (2004). "There is no constitutional right to [a] plea bargain." (Internal quotation marks omitted.) Ebron v. Commissioner of Correction, supra, 581. In the present case, there is no evidence before this court that the petitioner would have accepted a plea offer but for the ineffective assistance of counsel let alone any evidence of a specific plea offer. This claim is purely speculative and thus, fails.
Count Two: Ineffective Assistance of Trial Counsel
In count two of his amended petition, the petitioner alleges that his trial counsel, Attorney Williams, rendered ineffective assistance by failing to (1) be prepared for trial, (2) obtain Blackmon's report, (3) adequately investigate the petitioner's case, (4) adequately cross examine and impeach Ogman and (5) by failing to provide the petitioner with a thorough analysis regarding whether he should proceed to trial or enter into a plea agreement.
In count two, the petitioner alleges other specific ways in which Attorney Williams rendered ineffective assistance. However, he presented little to no evidence regarding these claims and addressed them only in a cursory fashion in his briefs. Accordingly, this court deems these claims to have been abandoned by the petitioner. See Solek v. Commissioner of Correction, 107 Conn.App. 473, 480, 946 A.3d 239, cert. denied, 289 Conn. 902, 957 A.2d 873 (2008) ("Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned . . . These same principles apply to claims raised in the trial court").
In claiming that Attorney Williams was unprepared for trial, the petitioner stresses that he only had seven days between the time that he began to represent the petitioner and the beginning of jury selection. Even though the evidentiary portion of the petitioner's trial did not commence until November 1, 1999, the petitioner claims that once jury selection began Attorney Williams, by virtue of his role in jury selection, had limited time to prepare for the trial. His argument appears to be that Attorney Williams simply could not have prepared for the trial in the amount of time that he had between being hired by the petitioner and the start of the trial and that he should not have taken the case. In his brief, the petitioner acknowledges that he knew Attorney Williams would be proceeding at a disadvantage but alleges that he continued with Attorney Williams as his new attorney because the only other option the court afforded him was to proceed pro se with the same preparation time constraints.
Petitioner's Exh. 4.
Attorney Williams testified at the habeas trial that upon being hired by the petitioner he asked the trial court for a thirty-day continuance, which was denied. He then modified his request to two weeks. Ultimately, he got a one-week continuance. On cross-examination, he testified that he had had enough time to prepare. The petitioner acknowledged that he knew about the trial date in at least mid-August of 1999. He voluntarily chose to replace Attorney Dolan with Attorney Williams on the eve of trial. Contrary to the representation in his brief, he had more options available to him than proceeding pro se; he could have proceeded with Attorney Dolan and Attorney Williams as co-counsel or with just Attorney Dolan.
Petitioner's Exh. 4, pp. 18-22.
Attorney Williams filed his appearance on September 14, 1999. Jury selection commenced one week later, on September 21, 1999, and the evidentiary portion of the petitioner's trial commenced approximately five weeks thereafter, on November 1, 1999. Although Attorney Williams would have preferred more preparation time, he was able to prepare for the petitioner's trial in the amount of time afforded to him. A review of the transcripts of the petitioner's trial demonstrates that not only was Attorney Williams prepared for trial but he performed throughout the trial at a high level. There are no grounds for finding that he performed deficiently by taking the petitioner's case close to the trial date or that the petitioner was thereby prejudiced.
The petitioner next claims that Attorney Williams was ineffective for failing to obtain Blackmon's report. He asserts that Attorney Williams should have made greater efforts to obtain the report such as hiring an investigator to find Blackmon, who had moved to North or South Carolina prior to the petitioner's trial. Regardless of the efforts or lack of efforts made by Attorney Williams in getting Blackmon's report, the petitioner has not established that there is a reasonable probability that had Attorney Williams obtained the report the outcome of his trial would have been different. Blackmon's report details the efforts that he made to contact the petitioner's alibi witnesses and Ogman. While the report is certainly not useless, it does not contain any information that Attorney Williams could not have gotten from the petitioner or by contacting the people identified by the petitioner as his alibis. Notably, Blackmon was not successful in contacting most of the alibi witnesses identified by the petitioner and those whom he was successful in contacting did not provide very helpful information. Additionally, although the petitioner suggests in his brief that Ogman verbally represented to Blackmon that he could not identify any of the shooters, Blackmon's report indicates that Ogman told him that he could identify four of the shooters. The petitioner did not present any evidence of this alleged verbal representation to Blackmon. In short, there is nothing in Blackmon's report that would have made a difference in the petitioner's case.
Exh. H.
Blackmon was able to speak to Jerome Baldwin and Alanda Jefferson. Baldwin, who the petitioner said he was with around the time of the shooting, primarily related his knowledge of the shooting and death of Jenkins to Blackmon. When asked if he knew the petitioner and if they were on friendly terms, Baldwin stated that they went to school together and that "they spoke when they passed each other on the street." He did not mention being with the petitioner around the time of the shooting. As for Jefferson, the petitioner's former girlfriend, she told Blackmon that she saw the petitioner the day before the shooting and that he did not have any clothing at her home and did not come to her home the night of the shooting to change his clothes. Respondent's Exh. H.
Blackmon's report states in relevant part: "Met with Marvin Ogman and attempted to interview him regarding the shooting incident. Mr. Ogman stated that he had seen five men on the night he was shot. I asked him if he had recognized any of the five. He stated that he had recognized four of them." Respondent's Exh. H.
The petitioner also claims that Attorney Williams did not perform an adequate investigation of his case. Specifically, he alleges that Attorney Williams should have hired an investigator to interview the petitioner's alibi witnesses and to further interview Ogman regarding his alleged statements to the paramedics, hospital staff and Blackmon that he did not know who shot him. He also claims that Attorney Williams should have retained an expert to assess what impact, if any, Ogman's PCP use had on his ability to identify the shooters. He asserts that Attorney Williams could have used this information to negotiate a favorable plea offer.
At the habeas trial, Attorney Williams testified that he interviewed the alibi witnesses. He described the presentation of the alibi defense at the petitioner's trial as one of the great disasters of the trial. He also testified that he did not think it was necessary to hire an expert to discuss the effects of PCP use. Attorney Mastronardi, a legal expert in the practice of criminal defense, testified on behalf of the petitioner at the habeas trial that Attorney Williams should have discovered that two of the petitioner's alibis, Germaine and Heshema Taylor, were lying and that he should not have called them as witnesses. He also opined that Attorney Williams should not have called Thawoma Boatwright, Heshema Taylor's girlfriend, as an alibi witness because she had previously given a statement that she did not know where the petitioner was around the time of the shooting.
The petitioner's claim that Attorney Williams should have retained an expert to discuss the effects of PCP use on Ogman's ability to perceive and recall events on the night in question fails for the same reasons it failed against Attorney Dolan. The claim is purely speculative, and there has been no showing of any resulting prejudice.
See part I of the Discussion.
Similarly, the petitioner's claim regarding the alibi witnesses fails, as there has been no demonstration that upon further investigation Attorney Williams would have discovered that the witnesses were lying. There was testimony from Attorney Dolan that the alibi witnesses were uncooperative. The petitioner testified that he was at Germaine and Heshema Taylor's apartment around the time of the shooting. Both Germaine and Heshema Taylor testified that they remembered the petitioner coming to their apartment early in the morning on December 14, 1996, the date of the shooting. There is no evidence before the court that Attorney Williams knew that the Taylors would testify, as they did, that they remembered the petitioner being at their apartment at that particular time because of the airing of an HBO show, Def Comedy Jams. Nor is there any evidence that the Taylors would have informed him of such upon further inquiry. If Attorney Williams knew the Taylors were going to mention the show in their testimony, he should have looked into whether it aired at that time, as the prosecution was able to discredit the testimony of the Taylors by having an HBO employee testify that the show did not air at all in December of 1996.
In any event, regardless of whether Attorney Williams performed deficiently with respect to the petitioner's alibi defense, the petitioner has not demonstrated that if the defense was presented differently or if it was not presented at all there is a reasonable probability that the result of the trial would have been different. The petitioner was not convicted solely because of a "disastrous" alibi defense. As noted by the Appellate Court on direct appeal, "the state's case against the [petitioner] was strong because there was eyewitness testimony against him . . ." State v. Henry, supra, 72 Conn.App. 683.
As for the claim that Attorney Williams should have had Ogman furthered interviewed regarding any statements that he may have made to the paramedics, hospital staff or Blackmon, it likewise fails. Again, there has been no showing that had Ogman been further interviewed he would have revealed that he told the paramedics, hospital staff and Blackmon that he did not know who shot him. Moreover, there is no evidence before the court that Ogman told the paramedics or Blackmon that he did not know who shot him. Ogman's statement to hospital staff that he did not remember what happened was known and brought out at the petitioner's trial. In short, the petitioner has failed to demonstrate either deficient performance or prejudice.
Petitioner's Exh. 11, p. 127.
The petitioner next claims that Attorney Williams ineffectively cross examined Ogman. He asserts that Attorney Williams should have confronted Ogman with the ballistic evidence that the bullets and casings retrieved from the crime scene could have come from two rather than four guns. The petitioner also claims that Attorney Williams should have impeached Ogman's testimony by having police officers or other first responders to the crime scene testify that Ogman did not know who shot him. These claims have no merit. The transcripts of the petitioner's trial demonstrate that Attorney Williams effectively cross examined Ogman, confronting him with his association with the men convicted of killing Jenkins, a former member of the petitioner's gang, his prior felony convictions, his drug use and his statements to the hospital staff that he did not remember what happened. The aforementioned ballistic evidence was before the jury. There has been no demonstration that directly confronting Ogman with this evidence would have made much of a difference, if any at all, in impeaching his testimony. The ballistic evidence recovered from the crime scene was not inconsistent with Ogman's claim that there were four shooters. As for impeaching Ogman's testimony with that of the first responders to the crime scene, there is no evidence before this court that Ogman told anyone at the crime scene that he did not know who shot him. Neither deficient performance nor prejudice has been shown regarding Attorney William's cross-examination or impeachment of Ogman.
Petitioner'sExh. 11, pp. 87-134.
Edward McPhillips, a firearms examiner from the Connecticut State Police Forensic Lab, testified that based on his evaluation of the ballistic evidence a minimum of four guns were used in the crime. He acknowledged, however, that it is possible that only two were used. Petitioner's Exh. 13, pp. 95-96.
Lastly, the petitioner alleges that Attorney Williams did not provide him with a meaningful analysis of whether he should proceed to trial or enter into a plea agreement. He claims that if Attorney Williams had done so there is little doubt that he would have entered a plea agreement as opposed to proceeding to trial. This claim is purely speculative. The petitioner hired Attorney Williams on the eve of trial. Attorney Williams testified at the habeas trial that the petitioner was intent on going to trial. The petitioner notably did not testify at the habeas trial that he would have entered a plea agreement if Attorney Williams had so advised him. The petitioner acknowledged that he knew he could spend the rest of his life in jail if convicted. Nonetheless, he proceeded to trial. Moreover, there is no evidence before this court that had the petitioner pleaded guilty in the midst of the trial he would have received a shorter sentence. Accordingly, this claim has no merit.
Count Three: Ineffective Assistance of Appellate Counsel
In addition to alleging that Attorneys Dolan and Williams rendered ineffective assistance, the petitioner alleges that Attorney Moira Buckley, his appellate counsel, rendered ineffective assistance. In count three of his amended petition, the petitioner claims that Attorney Buckley was ineffective in that she failed to raise the following issues on appeal: the jury's request for a reinstruction on the meaning of reasonable doubt less than twenty-four hours after it had found the petitioner guilty and the court's denial of the motion for a continuance filed by Attorney Williams.
The petitioner makes additional claims regarding Attorney Buckley's alleged ineffectiveness in his amended petition. However, he failed to present any evidence on them and to brief them. Accordingly, this court deems those issues to have been abandoned by the petitioner. See Solek v. Commissioner of Correction, supra, 107 Conn.App. 480.
"The determination of which issues to present, and which issues not to present, on an appeal is by its nature a determination committed to the expertise of appellate counsel, and not to his client . . . By that determination, appellate counsel seeks to focus the concern of the appellate court on those issues which he deems to be most persuasive, and thus does appellate counsel most effectively present his client's appeal." (Citation omitted.) Valeriano v. Bronson, 12 Conn.App. 385, 390, 530 A.2d 1100 (1987), aff'd, 209 Conn. 75, 546 A.2d 1380 (1988). "[A] habeas court will not, with the benefit of hind-sight, second guess the tactical decisions of appellate counsel. Legal contentions, like the currency, depreciate through over-issue . . . [M]ultiplying assignments will dilute and weaken a good case and will not save a bad one . . . The effect of adding weak arguments will be to dilute the force of the stronger ones." (Internal quotation marks omitted.) Farnum v. Commissioner of Correction, 118 Conn.App. 670, 679, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010).
At the habeas trial, Attorney Buckley testified that she did not raise the issue of the denial of the motion for a continuance because she did not think it was worth pursuing. Attorney Williams did receive a one-week continuance. As for the jury's request for reinstruction on the reasonable doubt standard, she testified that in arguing that the trial court erroneously instructed the jury on reasonable doubt, she used the jury's request for reinstruction as evidence of its confusion.
The petitioner has not met his burden in proving either deficient performance or prejudice regarding Attorney Buckley's representation. Attorney Buckley chose those issues that she believed were worth pursuing on appeal. She raised seven issues on appeal. This court will not second guess her choices. Furthermore, the petitioner has not presented any evidence establishing that had Attorney Buckley raised the aforementioned issues, there is a reasonable probability that he would have prevailed in his direct appeal.
Respondent's Exh. A.
CONCLUSION
Based on the foregoing, the petitioner's petition for a writ of habeas corpus is DENIED. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.