Opinion
No. CV 03 0823519 S
July 22, 2009
MEMORANDUM OF DECISION
The petitioner, Walter Hinds, filed a petition for a writ of habeas corpus on January 29, 2003, challenging the legality of his detention. The petitioner was convicted by a jury of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A) and sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1). Following a presentence investigation, the court sentenced the petitioner to twenty-five years to serve on the kidnapping conviction, ten of which were a mandatory minimum, and twenty years to serve on the sexual assault, consecutively, for a total effective sentence of forty-five years to serve. The state nolled a loosely related charge of disorderly conduct in light of the maximum sentence imposed by the court. The petitioner was represented at trial by attorney Peter Stark. The petitioner appealed his convictions, which were upheld by the Appellate Court. See State v. Hinds, 86 Conn.App. 557, 861 A.2d 1219 (2004), cert. denied, 273 Conn. 915, 871 A.2d 372 (2005).
In a revised amended petition filed July 18, 2008, the petitioner alleges in count one that attorney Stark was ineffective in that (1) he failed to subpoena witnesses including a physician, forensic expert, investigators, the petitioner's girlfriend, various officers involved in the investigation, Dana Varney and others, (2) he failed to investigate the aforesaid witnesses as well as various exculpatory facts such as the petitioner's hand injury, the petitioner's lack of underwear, the forensic evidence of hair on the victim's clothing, the photographic and videographic evidence, (3) he misrepresented the plea offer to the petitioner, (4) failed to challenge an unlawful identification procedure, (5) failed to offer exculpatory photographs, and (6) failed to effectively cross-examine state witnesses. In count two, the petitioner alleges that the trial judge made prejudicial comments and erred in ordering that the petitioner remain shackled during trial; in count three, he alleges cumulative errors and, in count four, he alleges that he is actually innocent of the crimes for which he was convicted. In a return filed August 11, 2008, the respondent denies the material allegations of the petition and asserts the special defenses of procedural default and failure to state a claim upon which relief may be granted as to both counts two and three. The petitioner filed a reply on October 31, 2008, in which he denied that procedural default applied to either counts two or three.
The matter came before the court on March 6, May 1, and May 6, 2009. Testifying were Stephen Sterowsky, an officer involved in the criminal investigation of the petitioner, Dr. James Philips, a forensic psychiatrist retained, but not called at the criminal trial, Deborah Messina, director of the state forensic laboratory, attorney Stark, and the petitioner. The parties submitted a number of exhibits, including transcripts from the underlying criminal trial, photographs of the petitioner's truck and person, and videos of a Stop Shop surveillance camera, the petitioner's arrest, and the execution of a search and seizure warrant to remove the petitioner's genital piercing.
FINDINGS OF FACT
The record reveals the following underlying facts. On August 28, 2000, the sixteen-year-old female victim was walking from her job at Stop Shop in Milford to her friend's apartment. The route she typically took crossed through the parking lot of In-Line Plastics, Inc. While crossing through the lot, the victim noticed a man parked in a bluish pickup truck. When she passed him, he exited his vehicle and began following her. She noticed he had on no pants, only underwear, which prompted her to begin running. The man, whom the victim later identified as the petitioner, caught her and forced her into some nearby bushes, forcing her to perform fellatio on him and telling her he would kill her if she did not cooperate. After ejaculating into her mouth, the petitioner left, telling her "you can go now" and leaving in his truck. The victim continued to her friend's house, telling her friend what had happened, and notifying the police. She described her attacker as being about 40 years old, between 5'6" and 5'8" tall with a medium build, having a grayish mustache with salt and pepper hair below his ears and that his body odor was unusually strong. The next day, she aided the police in creating a computer-generated composite sketch of her attacker; officers later testified that she was extraordinarily accurate in her description and spent much longer than most in ensuring the sketch was correct.
Over the course of the next few days, the police surveilled the shopping plazas in the area around Stop Shop, and on August 31, 2000 spotted a truck and driver matching the victim's description in the plaza by a K-Mart. The driver sat in the truck for an extended period of time, simply watching passersby. Continued surveillance of the petitioner
revealed that he drove to various shopping plazas and parking lots in the general area, and would park his car and remain inside, noticeably paying close attention to females walking by in the parking lots. On September 1, 2000, Officer Chacon, pursuant to direction by Sergeant Youd, stopped the truck based on a motor vehicle violation in that a trailer hitch obscured the truck's license plate. Chacon identified the driver as the petitioner, and found that the truck was registered in Maine to both the petitioner and Carol Hinds, now known as Carol Hanna, the petitioner's ex-wife. Records from the department of corrections indicated that the petitioner had been arrested in 1980 for sexual assault and served a fifteen-year sentence. A photograph taken at the time of the petitioner's release was put in a photographic lineup with eleven other men and shown to the victim, who unhesitatingly identified the petitioner as her attacker.
A warrant for the petitioner's arrest was obtained and was served on September 1, 2000. Police stopped his truck and, as he was exiting and being pat down for weapons, police noticed his pants were fully undone and his genitals were hanging out. Photographs and a video were taken of the arrest. At trial, the state presented testimony of the victim identifying the petitioner as her assaulter and a number of police officers involved in the investigation, as well as the petitioner's employer, who testified regarding the petitioner's truck and strong body odor.
Attorney Stark was appointed to represent the petitioner. There was at least one plea offer made to the petitioner, involving "something suspended after six years," which Stark advised the petitioner to take. The petitioner rejected the offer because he "wanted to go to trial" and "tell his side of the story." Based on his discussions with the petitioner and his review of the case, attorney Stark determined that the best defense to pursue at trial was one of misidentification. At trial, the attorney attempted to illustrate discrepancies in the accounts and testimony of the victim and police officers, focusing on the fact that the petitioner had a genital piercing comprising a metal ring with a plastic cap on the underside of his penis, a tattoo on his left arm, mostly dark hair, and that he never wore underwear, while the victim had not mentioned the piercing or tattoo, said the attacker was wearing briefs and had described his hair as "grayish" or "salt and pepper." Trial counsel also elicited discrepancies in the color descriptions of the petitioner's truck, which ranged from blue to green, and challenged the victim's ability to adequately view and identify her attacker. He retained Dr. James Phillips to testify regarding the petitioner's piercing, but after attempts to continue the trial date to accommodate Phillips' vacation plans were unsuccessful, and after Stark became aware
that the petitioner's ex-wife would be available to testify regarding the piercing, he declined to call Phillips to testify. The petitioner's ex-wife, Carol Hanna, testified at the criminal trial that the petitioner typically wore the piercing but would remove it before they had intercourse, that he never wore underwear as far as she knew and that he had cut his hand around the time of the incident.
The petitioner testified at the habeas trial that he used wire cutters to remove his piercing because it would hurt him otherwise. A video depicting the execution of a search and seizure warrant while the petitioner was incarcerated reveals a department of corrections doctor removing the piercing with apparent discomfort to the petitioner. Nevertheless, this court does not find particularly probative any indication that another person has trouble safely removing the piercing. The petitioner also testified that he had been stopped by a police officer two days before he was stopped for a motor vehicle violation, and that the officer simply looked at his license and ran his plates without explaining why. The petitioner wanted to testify at the criminal trial, but asserts that attorney Stark "prevented him mentally" from testifying and erroneously told him that his prior convictions could then be brought up.
The petitioner also presented a video taken from a security camera in the Stop Shop plaza. The video shows a pickup truck drive past the entrance to the store and park some distance away, then leave shortly before the time the crime took place. The color and model of the truck are not discernible, nor can the driver be identified; there also appears to be nothing in the bed of the truck. Officer Ricci, however, testified at the criminal trial that the "truck on the camera, as best I can tell, was a greenish bluish color" although the video itself was not presented or offered into evidence. Attorney Stark testified that he viewed the video, but did not see fit to introduce it as it would not have aided the petitioner's case.
Dr. Phillips testified that he viewed the petitioner's genital piercing while the petitioner was incarcerated, before the search and seizure warrant was executed, and that the absence of redness or inflammation around the area indicated it had definitely not been pierced within a week or two, and most likely had not been pierced within one or two months.
Additional facts will be discussed as necessary.
DISCUSSION
"A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . 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 . . . The 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." (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203 (2008).
"The first part of the Strickland analysis requires the petitioner to establish that counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . .
"Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Andrades v. Commissioner of Correction, 108 Conn.App. 509, 512, 948 A.2d 365, cert. denied, 289 Conn. 906, 957 A.2d 868 (2008).
A. Count one: Ineffective assistance of counsel
The petitioner first contends that attorney Stark was ineffective in failing to investigate or call Dr. Phillips to testify regarding the petitioner's genital piercing. Stark attempted to obtain a continuance of trial to accommodate Phillips' schedule, as he had vacation plans for the trial date, but the request was denied. Phillips did show up at the petitioner's trial but was not called by attorney Stark. Phillips testified at the habeas trial that the absence of redness or swelling surrounding the piercing on April 12, 2002 indicated that it was not recent; he could only conclusively say that it had not been pierced within two weeks prior to his examination, and likely not a month or two prior. Attorney Stark testified that he initially intended to call Phillips, but determined that it would not have been particularly helpful to the case and ultimately did not see the need for his testimony, particularly in light of the fact that Carol Hanna testified regarding the piercing. According to attorney Stark, it was uncertain whether Ms. Hanna would show up, but the fact that she did rendered Dr. Phillips' testimony unnecessary. This was a reasonable tactical decision, and there was no deficiency therein. See Mitchell v. Commissioner of Correction, 109 Conn.App. 758, 770-71, 953 A.2d 685, cert. denied, 289 Conn. 950, 961 A.2d 417 (2008) (failing to call witness a strategic decision entitled to deference). Moreover, Phillips' testimony did little to further the petitioner's cause, as both Hanna and others testified as to the existence of the petitioner's piercing, and Phillips' testimony would have been cumulative and indicative of nothing beyond that the piercing must have been performed before February or March 2002.
The petitioner next argues that counsel was ineffective in not calling a forensic expert to testify regarding the hair recovered from the victim's clothes. Exactly how such an expert would aid the petitioner's case is unclear, particularly in light of the fact that state witness Elaine Pagliaro, a criminalist with the Connecticut forensic science laboratory, testified at the criminal trial that mitochondrial DNA comparison of the hairs on the victim's clothes did not genetically match those taken from the petitioner. The petitioner has not suggested how presenting testimony from another forensic expert would have helped his case. The only forensic expert to testify at the habeas trial was Deborah Messina, who had been Pagliaro's supervisor before Pagliaro retired, and she only testified to much the same information presented at the criminal trial. The petitioner has, therefore, failed to demonstrate that his attorney performed deficiently, or that he suffered prejudice from this omission even if deficient performance were presumed.
The petitioner's next claim is that attorney Stark was deficient in not investigating the discrepancies in the police officers' and victim's descriptions of his truck, and in not calling investigators Irma Grimes and Nicole Donzella-Flotz, the petitioner's girlfriend, Julie Maxim-Bean, Dennis Nephew or Dana Varney for this purpose. None of these witnesses testified at the habeas trial, so it is wholly speculative what their testimony might have been. "[T]he petitioner's burden of proving that a fundamental unfairness [has] been done is not met by speculation but by demonstrable realities." (Internal quotation marks omitted.)
Weinberg v. Commissioner of Correction, 112 Conn.App. 100, 115, 962 A.2d 155 (2009). Moreover, attorney Stark endeavored to draw out the discrepancies in the descriptions of the petitioner's truck by various state's witnesses at trial, particularly with respect to the truck's color and the presence of an orange cooler in the bed. It is unclear what further investigation he should have conducted in this regard, as the only discrepancies revealed by the evidence in this trial or record of the criminal case were elicited on cross-examination by attorney Stark. There is, quite simply, no evidence of any deficient performance or prejudice to the petitioner on this basis.
The victim described her attacker's truck to the police as a "full size bluish truck with a long bed," likely American-made. Subsequently, officers identified the truck as similar to the one described by the victim but described it as a green truck. The victim testified at trial that it was "bluish," darker rather than lighter and more greenish than purple. She had previously told officer Ricci it was not simply "what she would classify as blue," but a blue-type or "greenish-bluish" color. Photographs of the truck submitted into evidence depict a predominantly blue truck inclining towards the green end of the spectrum. There was only so much counsel could do with this minor and understandable discrepancy, if it can even be called such; at any rate, attorney Stark clearly attempted to impeach both the victim and the police officers as to their recollection of the truck's color and the presence of the orange cooler in the bed. That this proved unsuccessful is not in itself a basis for a finding of ineffective assistance of counsel.
Likewise, the petitioner's claim that attorney Stark was ineffective in not introducing the Stop Shop surveillance videotape at trial does not withstand scrutiny. The video is of little moment to the petitioner's claims. While it is indeed true that neither the color, model nor license plate of the pickup truck can be conclusively determined from the video, whether the truck depicted in the video was the petitioner's truck was largely irrelevant. Indeed, even if the truck could be satisfactorily identified as being one other than the petitioner's, it would not prove particularly exculpatory because it did little to counter the bulk of the evidence identifying the petitioner as the perpetrator of the crime. See Weinberg v. Commissioner of Correction, supra, 115 ("[t]he strength of the state's case is a significant factor in determining whether an alleged error caused prejudice to the petitioner. The stronger the case, the less probable it is that a particular error caused actual prejudice"). Rather, it would simply show that there was another pickup truck in the parking lot of that particular Stop Shop on the night of the crime, hardly a remarkable coincidence and in no way particularly exculpatory. There was no deficiency in the decision not to introduce this evidence at trial. Moreover, "[a] court hearing an ineffective claim must consider the totality of the evidence before the judge or jury . . . Some errors will have had a pervasive effect on the inferences to be drawn from the evidence altering the entire evidentiary picture, and some will have an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland v. Washington, supra, 466 U.S. 695-96; see also Bryant v. Commissioner of Correction, 290 Conn. 502, 523 964 A.2d 1186 (2009). The collective weight of the other evidence against the petitioner would overpower the evidence above; therefore, there was no prejudice to the petitioner even if deficient performance were presumed.
The petitioner also claims that attorney Stark should have introduced into evidence other relevant and allegedly exculpatory photographs and videos. Apart from the bare allegation, however, there is nothing to support the claim that these would somehow have been beneficial to the petitioner. The video and photographs of the petitioner's arrest, for example, tended only to corroborate the testimony of the arresting officers that the petitioner's pants were not undone by Detective Huggins when he handcuffed the petitioner and brought him to the ground. Attorney Stark testified that the video was at best not relevant and at worst prejudicial, and this court agrees. Likewise, the video of the execution of the search and seizure warrant demonstrated only that the genital piercing could be removed, albeit with difficulty, by another person. It speaks little to whether the petitioner himself could remove it at will, and did nothing to counter the petitioner's wife's and his own testimony that he could remove it by cutting it off, and that he had a ready supply of others to replace it. Hanna testified at the criminal trial that Mr. Hinds would remove it before they had intercourse. The jury was presented with essentially all the information the petitioner contends would have been adduced by the introduction of the video and/or photographs of the piercing's removal, yet still reached the reasonable conclusion that the victim's failure to mention or notice the piercing was not inconsistent with the petitioner having been the man who raped her. Attorney Stark credibly testified that the photographs would have added nothing to the defense and that the state had never contested that the petitioner had a genital piercing. There was no deficiency in deciding not to introduce the potentially damaging video or photographs of its removal, and no prejudice resulting therefrom.
The petitioner's insistence that the piercing was difficult to take out is equivocal at best. While he strives to demonstrate that he had the piercing on when arrested several days after the incident, it is purely speculative whether he had it on the night of the incident or simply attached it in the three days between the incident and his arrest.
The petitioner's claim that attorney Stark was ineffective for failing to cross-examine or impeach certain witnesses is simply factually inadequate. "An attorney's line of questioning on examination of a witness clearly is tactical in nature. [As such, a] court will not, in hindsight, second-guess counsel's trial strategy." (Internal quotation marks omitted.) Gallimore v. Commissioner of Correction, 112 Conn.App. 478, 482, 963 A.2d 653 (2009). The record reveals that attorney Stark extensively cross-examined the victim, police officers and forensic examiners on most of the points now argued by the petitioner; specifically, the color of his truck and the presence of the orange cooler in the bed, whether he had a genital piercing, whether he had a tattoo, and the visibility conditions and timing influencing the victim's ability to identify her attacker. There is certainly no basis for a finding of deficient performance when counsel actually did perform those acts the petitioner claims he should have performed. Those points the petitioner now raises that attorney Stark did not in fact solicit would largely have been irrelevant to his guilt or innocence; for example, the claimed "police chase and harassment of petitioner through Milford streets" or "any litigation against Stop Shop," and certainly no deficient performance or prejudice can have resulted from the failure to raise such entirely ancillary or tangentially related issues. Finally, with respect to the petitioner's claimed hand laceration at the time of the incident, even if true, the petitioner himself conceded at the habeas trial that it was "not noticeable." Such a minor and understandable inattentiveness on the part of the victim, even if capable of demonstration by counsel, was not likely to have changed the outcome of the trial given the victim's immediate and confident identification of the petitioner, her extraordinarily accurate description of the petitioner prior to even viewing any photographic arrays or lineups, her description of the petitioner's truck and her comments that he had a strong body odor in conjunction with other testimony that the petitioner typically exhibited stronger than normal body odor.
The petitioner's final basis for ineffective assistance is that attorney Stark failed to challenge the identification process used and illegal stop by the police on August 29, 2000. This stop is not reflected in the record, attorney Stark could not recall being aware of it, and the sole source of its occurrence is the petitioner's testimony at the habeas trial. Irrespective of whether that stop was actually conducted and, if so, was illegal, however, it has no bearing on the fairness of the petitioner's trial or constitutionality of his convictions. This stop, during which an officer allegedly took the petitioner's license information but issued no tickets or warnings, was not used as a basis for the arrest warrant nor used in the prosecution of the petitioner in any way. Even if the stop was unconstitutional, the petitioner has failed to demonstrate how it was at all relevant, or what challenging it would have accomplished given the bulk of the evidence against the petitioner. "[T]he petitioner's burden of proving that a fundamental unfairness [has] been done is not met by speculation but by demonstrable realities . . . [T]he strength of the state's case is a significant factor in determining whether an alleged error caused prejudice to the petitioner. The stronger the case, the less probable it is that a particular error caused actual prejudice." (Citation omitted; internal quotation marks omitted.) Weinberg v. Commissioner of Correction, supra, 112 Conn.App. 115. As to the photographic lineup shown to the victim by which she identified the petitioner, attorney Stark credibly testified that it was not unreasonably suggestive, and there was no basis for challenging it. The lineup was not introduced into evidence here and this court has no basis to conclude otherwise.
In short, the petitioner's ineffective assistance of counsel claims lack merit and, therefore, count one of the petition is denied.
The petitioner also alleged that counsel misrepresented the plea offer to him. Even aside from the fact that there was no testimony with respect to this claim beyond attorney Stark's comment that the petitioner was offered "something suspended after six years," the petitioner's claim is muddled at best and nonsensical at worst. He contends that counsel erroneously informed him that the offer was for four years to serve, when in fact it was for a sentence suspended after six years. He now maintains that if the offer actually was four years to serve, it would have induced him to plead guilty. Clearly, however, he did not plead guilty despite his allegation that he thought the offer was for four years; moreover, in any event, attorney Stark had no control over what the state was willing to offer and could not unilaterally reduce the offer to four years to serve. This claim, whatever its nature, fails.
B. Counts two and three: Trial court error and cumulative errors CT Page 13561
The court must first address the respondent's defense of procedural default as to counts two and three. See Taylor v. Commissioner of Correction, 284 Conn. 433, 447 n. 18, 936 A.2d 611 (2007) ("a habeas court generally should decide the threshold issue of cause and prejudice when it is raised as a defense because, in the ordinary case, failing to do so undermines the prudential considerations that the cause and prejudice rule was designed to promote"). The petitioner alleges, in count two, that the trial court judge made prejudicial remarks and improperly kept him shackled throughout the trial. This is just the sort of issue best raised at trial or on direct appeal that the procedural default rule is meant to preclude from collateral attack. "A State's procedural rules serve vital purposes at trial, on appeal, and on state collateral attack . . . [Such rules] [afford] . . . the opportunity to resolve the issue shortly after trial, while evidence is still available both to asses the defendant's claim and to retry the defendant effectively if he prevails in his appeal . . . This type of rule promotes not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case . . . Jackson v. Commissioner of Correction, 227 Conn. 124, 134, 629 A.2d 413 (1993)." (Internal quotation marks omitted.) Henderson v. Commissioner of Correction, 104 Conn.App. 557, 569, 935 A.2d 162, cert. denied, 285 Conn. 911, 943 A.2d 470 (2007). "[T]he appropriate standard for reviewability of habeas claims that were not properly raised at trial . . . or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition . . . [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance . . ." (Citations omitted; internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001). The petitioner has not asserted any cause or prejudice that would cure the default in this case. Therefore, the petitioner is procedurally defaulted from raising the claims now, and count two of the petition is denied.
Count three does not admit of the same analysis, as the allegations therein encompass ineffective assistance of counsel, which is not subject to procedural default as it cannot be raised at trial or on direct appeal. See State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986) ("a claim of ineffective assistance of counsel is more properly pursued on a petition for new trial or on a petition for a writ of habeas corpus rather than on direct appeal"). The respondent has, alternatively, raised the defense that this count fails to state a claim upon which relief can be granted. The petitioner alleges that the cumulative effect of counsel's errors and the trial court's errors combined to deny him a fair trial. While other courts may recognize a claim that discrete errors, insufficient in themselves to reach the level of constitutional violations but, in the aggregate, may constitute grounds for a new trial; see, e.g., Kubat v. Theieret, 867 F.2d 351, 370 (7th Cir. 1989) ("Sometimes no single specific error of counsel is sufficiently bad to justify a new trial. But, when considered cumulatively, enough `not-too-bad' errors can amount to one very bad trial"), cert. denied sub. nom. Kubat v. Greer, 493 U.S. 874; 110 S.Ct. 206; 107 L.Ed.2d 159 (1989); see also United States v. Kladouris, 739 F.Sup. 1221 (ND Ill. 1990); Connecticut courts have expressly rejected this reasoning: `The petitioner also claims that the combined effect of these errors should be considered and should justify granting a new trial. Our Supreme Court rejected a similar argument in State v. Robinson, 227 Conn. 711, 746-47, 631 A.2d 288 (1993), and, therefore, we reject the petitioner's claim in the present case. As explained in Robinson, `[w]e decline to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.' (Internal quotation marks omitted.) Id., 747. Thus, because we have found no erroneous factual, evidentiary or legal errors, the combined claims cannot give rise to a constitutional violation." Henderson v. Commissioner of Correction, 104 Conn.App. 557, 567, 935 A.2d 162 (2007), cert. denied, 285 Conn. 911, 943 A.2d 470 (2008). The petitioner has, therefore, failed to state a cognizable claim, and count three of the petition is denied.
D. Actual Innocence
The petitioner's final claim is that he was actually innocent of the crime for which he was convicted. "[T]he proper standard for evaluating a freestanding claim of actual innocence . . . 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 as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime." (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 80-81, 967 A.2d 41 (2009). Before reaching the merits of such a claim, however, the petitioner must make a threshold showing that the evidence relied upon is "newly discovered." See id., 81 n. 10 (not reaching the issue, but acknowledging that Appellate Court precedent requires newly discovered evidence). "[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 . . . 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." (Citation omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 101 Conn.App. 465, 470-71, 922 A.2d 221 (2007).
The petitioner has not presented this court with any evidence that would not have been discoverable before his criminal trial. The photographs and videos he presented were expressly considered by attorney Stark, who (reasonably, as has previously been discussed) concluded they would not be beneficial to the defense. The bulk of other evidence regarding the petitioner's innocence presented at the habeas trial was either itself presented at the criminal trial or the petitioner's own testimony and, therefore, is clearly not "newly discovered." A habeas court is not an opportunity for the petitioner to retry his criminal case. Therefore, count four of the petition is denied.
CONCLUSION
Because the petitioner has failed to demonstrate that he received ineffective assistance of counsel or was actually innocent of the crimes for which he was convicted, his 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.