Opinion
CV124004970S
04-12-2017
Anthony Hopkins v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
Pursuant to General Statutes § 52-470(b)(1), the respondent moved for an order to show cause why this habeas matter should not be dismissed. On April 10, 2017, the court conducted the hearing in accordance with § 52-470(b)(3), and, " after considering any evidence or argument by the parties, " rules as follows.
This case is a habeas on a habeas on a habeas claim of ineffective assistance. The petitioner asserts that his second habeas counsel, Attorney Reine Boyer, provided ineffective assistance in attempting to prove that his first habeas lawyer, Attorney Michael Moskowitz, provided ineffective assistance in attempting to prove that his criminal defense counsel, the late Attorney Frank J. Riccio, Sr., provided ineffective assistance at his criminal trial.
A jury found the petitioner guilty of felony murder, attempted robbery first degree, and assault first degree. For these crimes the petitioner serves a total, effective sentence of fifty years imprisonment imposed on September 8, 1989. That judgment of conviction was affirmed on direct appeal, State v. Hopkins, 222 Conn. 117, 609 A.2d 236 (1992).
In the petitioner's first habeas, represented by Attorney Moskowitz, the habeas court denied the petition for relief, Hopkins v. Barbieri, Superior Court, New Haven Judicial District d.n. CV 94-359357, (June 25, 1996), W. Sullivan J. The Appellate Court affirmed that decision, Hopkins v. Commissioner, 47 Conn.App. 910, 701 A.2d 355 (1997); cert. denied, 243 Conn. 956, 704 A.2d 804 (1997).
A subsequent habeas action, in which Attorney Boyer represented the petitioner, averred claims that Attorneys Moskowitz and Riccio rendered deficient legal assistance in divers ways. Judge Hadden dismissed that second habeas petition on October 22, 2004, Hopkins v. Commissioner, Superior Court, New Haven Judicial District d.n. CV 990433207, . The Appellate Court affirmed that dismissal, Hopkins v. Commissioner, 95 Conn.App. 670, 899 A.2d 632 (2006); cert. denied, 279 Conn. 911, 902 A.2d 1071 (2006).
At the show cause hearing heard by this court, it was conceded that the petitioner's claims against his previous lawyers have at their factual core an allegation that the prosecution committed a Brady violation, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The failure to investigate and raise this claim forms the bases for the various allegations of ineffective assistance.
There are three components needed to establish a valid Brady violation, LaPointe v. Commissioner, 316 Conn. 225, 225-62, 112 A.3d 1 (2015). The undisclosed evidence must be favorable to the accused; it must have been suppressed by the prosecution, wilfully or inadvertently; and " prejudice must have ensued, " Id. " Prejudice" means that the favorable information withheld " could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict, " Id., 262-63.
Specifically, the petitioner contends that the state's attorney must have engaged in a secret deal to induce a potential defense witness, Raymond Jeffries, to leave Connecticut for Georgia so that Jeffries would be unavailable for the defense to use at his criminal trial which commenced on July 28, 1989.
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, both that his attorney's performance was substandard and 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, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985). Reasonable probability means a probability sufficient to undermine confidence in the outcome. DaEira v. Commissioner, 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, by a preponderance of the evidence, 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., at 842-43. The Supreme Court described this triple layered obligation as " a herculean task." Id., 843.
Thus, in order to establish at least a prima facie case in the present action, the petitioner will need to produce some evidence that the state concealed Jeffries' whereabouts during the criminal trial, that Jeffries possessed useful information for his defense, and that, but for the absence of Jeffries' testimony, there exists a reasonable likelihood that the outcome of the criminal trial and each preceding habeas would have been favorable.
In assessing whether good cause to proceed to trial exists under § 52-470, the reviewing court must consider whether the operative petition, the exhibits submitted, and arguments propounded " (A) allege the existence of specific facts which, if proven, would entitle the petitioner to relief under applicable law, and (B) provide a factual basis upon which the court can conclude that evidence in support of the alleged facts exists and will be presented at trial, " § 52-470(b)(3). The court does not make credibility judgments nor opine as to how persuasive the existing evidence will be. Instead, the court scrutinizes the available evidence and claims as it would when considering whether to direct a verdict or grant summary judgment.
After thorough examination, the court determines that even this low, evidentiary threshold cannot be satisfied. First, all of Jeffries' previous testimony and interview statements reveal that he knows nothing about the homicide in question. Second, no direct evidence supports the allegation that his departure from Connecticut was the result of any negotiations with the state. Third, the only purported circumstantial evidence of any such agreement with the state was that Jeffries left Connecticut even though he was released from pretrial confinement on bond. Fourth, as it turns out, Department of Corrections records show that Jeffries was, in fact, in the Bridgeport Correctional Center in Connecticut during the petitioner's criminal trial and not in Georgia.
The court rules that there exists no factual support for the Brady violation alleged. The petitioner's counsel concedes that the failure to investigate, raise, and pursue this claim is the sole ground for his present assertion of ineffective assistance by his previous attorneys. The amended petition is, therefore, dismissed.