Opinion
CV144006027S
08-10-2017
Benjamin Jenkins (Inmate #210026) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Vernon D. Oliver, J.
The petitioner, Benjamin Jenkins, initiated this petition for a writ of habeas corpus, claiming that his trial counsel, first habeas counsel and second habeas counsel provided him ineffective legal representation. He further claims a due process violation pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He seeks an order of this court vacating his convictions and sentence in the underlying cases and restoring the matters to the criminal court for further proceedings according to law. The respondent denies the claims and asserts the defenses of procedural default, res judicata and abuse of the writ to the petitioner's claims. The court finds the issues for the respondent and denies the petition.
I
PROCEDURAL HISTORY
The petitioner stands convicted, after a jury trial, of one count of murder in violation of General Statutes § 53a-54 and two counts of assault in the first degree in violation of General Statutes § 53a-59. The petitioner was represented at all relevant times by Attorney Thomas Conroy. On August 3, 2000, the trial court, Hartmere, J., sentenced the petitioner to a total effective sentence of ninety years of imprisonment. The petitioner's convictions were affirmed on direct appeal. State v. Jenkins, 70 Conn.App. 515, 800 A.2d 1200, cert. denied, 261 Conn. 927, 806 A.2d 1062 (2002). The Appellate Court held that the jury could have reasonably found the following facts:
In the early evening hours of December 21, 1998, several individuals were congregated on the sidewalk in front of a package store in New Haven. The defendant apparently had had a disagreement with someone who he believed was standing in that vicinity. The defendant, carrying a firearm and accompanied by another man, suddenly approached the group on foot. He raised his firearm and showered the group with gunfire. As people began to flee, bullets struck Lamont Coleman, George Kimpson and Marcus Warner. Coleman and Kimpson sustained serious physical injuries as a result of the shooting; Warner, whom the defendant shot in the head, subsequently died as a result of his injuries.
After the shooting, the defendant and his accomplice fled the immediate scene on foot. Police were dispatched to the shooting scene. As one officer in a vehicle responded within minutes, the defendant's vehicle sped by. The officer activated his vehicle's overhead lights, but the operator of the defendant's vehicle did not stop. Despite the fact that the officer took note of the vehicle's license plate number, he did not engage in a protracted, high-speed pursuit of the vehicle and eventually lost sight of it.(Footnotes omitted.) State v. Jenkins, supra, 70 Conn.App. 517-18.
The petitioner brought his first habeas petition, last amended on March 31, 2004, alleging claims of ineffective assistance of trial counsel as to Attorney Conroy. The petitioner was represented by Attorney Kirsten Coffin. The habeas court, Fracasse, J., denied the petition on September 29, 2004. The petitioner appealed the habeas court's decision, and the petitioner's appeal was dismissed. Jenkins v. Commissioner of Correction, 94 Conn.App. 902, 892 A.2d 1042, cert. denied, 278 Conn. 909, 899 A.2d 37 (2006).
The petitioner then filed his second habeas petition, last amended on September 24, 2009, alleging claims for ineffective assistance of first habeas counsel, Attorney Coffin, for failing to claim and prove that trial counsel was ineffective in failing to withdraw as petitioner's attorney in order to be a witness on petitioner's behalf at trial, and failing to prove that Kimpson perjured himself about his true identity. The petitioner was represented by Attorney William Koch. The habeas court, Nazzaro, J., denied the petition on August 20, 2010. The petitioner appealed the habeas court's decision, and the petitioner's appeal was dismissed. Jenkins v. Commissioner of Correction, 142 Conn.App. 901, 63 A.3d 548, cert. denied, 308 Conn. 950, 67 A.3d 291 (2013).
The petitioner initiated the present habeas petition on February 27, 2014. In his amended petition, filed on August 25, 2016, the petitioner alleges ineffective assistance of counsel claims as to trial counsel, first habeas counsel and second habeas counsel for failing to investigate if the state's key witness, George Kimpson, was given any favorable consideration by the state in exchange for his testimony against the petitioner at the criminal trial. The petitioner also alleges a due process claim for a Brady violation for the state's failure to disclose all exculpatory materials as required by law. The respondent filed a return on September 30, 2016, asserting special defenses of procedural default, res judicata and abuse of the writ. The petitioner filed a reply in response to the respondent's return on October 13, 2016.
A trial was held on February 7, 2017, and March 1, 2017, at which the petitioner called Attorney Conroy, Attorney Koch, Attorney James Clark, Attorney Coffin, Attorney Vicki Hutchinson, Attorney John P. Doyle and himself as witnesses. Both parties presented exhibits to the court.
II
DISCUSSION
A
Brady Violation
The petitioner asserts that the prosecuting authority improperly withheld exculpatory evidence favorable to him at his criminal trial in violation of Brady v. Maryland, supra, 373 U.S. 83. Specifically, the petitioner claims that the prosecution failed to disclose an agreement with the state's witness, George Kimpson, to give consideration for his non-related pending criminal charges in exchange for his testimony against the petitioner.
The following additional facts are relevant to this claim. At the petitioner's underlying criminal trial, Kimpson identified the petitioner as the person who shot him on the night of the incident. During Attorney Conroy's cross examination, Kimpson also admitted that he had two pending cases for the sale of drugs. On February 26, 2001, nearly eight months after the petitioner was convicted, Kimpson was sentenced on his pending cases to a total effective sentence of ten years incarceration, execution suspended after two and a half years, with three years of probation. During Kimpson's sentencing, the court, Alexander, J., noted: " Certain matters were brought to this Court's attention. It's this Court's opinion, had those other matters not been brought to my attention, you would have been facing a significantly greater sentence." The matters referenced by the sentencing court were not identified on the record.
At the habeas trial, the petitioner was the only witness to testify that he believed that Kimpson received a deal in exchange for his testimony. Attorney Conroy testified that, while he had no specific recollection of the petitioner's case, it is his routine to investigate whether a witness had pending cases and to question him as to those charges. The record reveals that he did cross examine Kimpson in the petitioner's case as to his pending drug sale cases. Attorney Clark, the prosecutor in the petitioner's case, testified that he did not offer a deal to Kimpson for his testimony. Attorney Coffin, the petitioner's first habeas counsel, testified that she investigated Kimpson and she did not come across any evidence suggesting a plea agreement. Attorney Koch, the petitioner's second habeas counsel, also testified that he found no evidence that Kimpson received favorable consideration for his pending cases in exchange for his testimony in the petitioner's case. Attorney Doyle, the prosecutor on Kimpson's pending cases, testified that there was no evidence of a deal made with Kimpson and that such an agreement would have been in writing. Attorney Doyle further testified that any number of matters could have been brought to the sentencing judge's attention and that the dispositions in Kimpson's cases were within the framework of acceptable dispositions for those charges during that time period in that courthouse. " 'In [ Brady v. Maryland, supra, 373 U.S. at 83, 83 S.Ct. 1194] . . . the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. To establish a Brady violation, the [petitioner] must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [petitioner], and (3) it was material [either to guilt or to punishment].' . . . Floyd v. Commissioner of Correction, 99 Conn.App. 526, 533-34, 914 A.2d 1049, cert. denied, 282 Conn. 905, 920 A.2d 308 (2007) . . .
" Our Supreme Court has recognized that '[i]mpeachment evidence as well as exculpatory evidence falls within Brady 's definition of evidence favorable to an accused.' . . . State v. Monteeth, 208 Conn. 202, 213, 544 A.2d 1199 (1988); see also Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); State v. Ortiz, 280 Conn. 686, 717, 911 A.2d 1055 (2006). The purpose of requiring the state to disclose impeachment evidence to a criminal defendant is 'to ensure that the jury knows the facts that might motivate a witness in giving testimony . . .' State v. Paradise, 213 Conn. 388, 400, 567 A.2d 1221 (1990), overruled in part on other grounds by State v. Skakel, 276 Conn. 633, 693, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S.Ct. 578, 166 L.Ed.2d 428 (2006) . . .
" A petitioner bears the burden of proving the existence of an agreement between the state or police and a state's witness. See State v. Floyd, supra, 253 Conn. at 737, 756 A.2d 799. Any such understanding or agreement between any state's witness and the state police or state's attorney clearly falls within the ambit of the Brady principles. See State v. Rucker, 177 Conn. 370, 373, 418 A.2d 55 (1979). An unexpressed intention by the state not to prosecute a witness does not. Id., at 376, 418 A.2d 55." Walker v. Commissioner of Correction, 103 Conn.App. 485, 492-93, 930 A.2d 65, cert. denied, 284 Conn. 940, 937 A.2d 698 (2007).
In this case, pursuant to the relevant law and presented evidence, the court concludes that the petitioner has failed to prove that an agreement existed between the state and Kimpson within the scope of Brady . The prosecuting attorneys in the petitioner's case and in Kimpson's case testified that no deal existed. The prior habeas attorneys testified that they could find no evidence that a deal existed. The petitioner points to the comments made by the court during Kimpson's sentencing as proof that he received favorable consideration for his testimony, but this court cannot leap to that inference, particularly in light of the fact that such an inference belies counsels' testimony, which this court deems credible, that no such deal existed. " Our Supreme Court has made clear . . . that not every possible connection between a witness' willingness to testify and the state's recommendation with respect to that witness constitutes an agreement within the penumbra of Brady." Walker v. Commissioner of Correction, 103 Conn.App. 485, 930 A.2d 65. As a result, the petitioner's Brady claim must fail.
B
Ineffective Assistance of Counsel Claims
The petitioner also claims that his trial counsel, Attorney Conroy, first habeas counsel, Attorney Coffin, and second habeas counsel, Attorney Koch, rendered ineffective assistance of counsel for failing to investigate if Kimpson received any favorable consideration by the state in exchange for his testimony against the petitioner at the criminal trial. The petitioner failed to sustain his burden of proving these claims.
" 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)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
The petitioner has the burden to establish that " (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, at 466 U.S. 694.
" 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.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, at 466 U.S. 687. " It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the 'counsel' guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial." Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008). When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, at 466 U.S. 689.
Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012). Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, at 466 U.S. 686.
" The use of a habeas petition to raise an ineffective assistance of habeas counsel claim, commonly referred to as a 'habeas on a habeas, ' was approved by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992). In Lozada, the court determined that the statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51-296(a) includes an implied requirement that such counsel be effective, and it held that the appropriate vehicle to challenge the effectiveness of habeas counsel is through a habeas petition." (Footnote omitted.) Sinchak v. Commissioner of Correction, 126 Conn.App. 684, 686-87, 14 A.3d 343 (2011).
The Appellate Court recently explained that when the Strickland standard is " 'applied to a claim of ineffective assistance of prior habeas counsel, [it] requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding . . . [T]he petitioner will have to prove that one or both of the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . .' Harris v. Commissioner of Correction, 108 Conn.App. 201, 209-10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). 'Therefore, as explained by our Supreme Court in Lozada v. Warden, [ supra, 223 Conn. 834], a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of [trial] counsel must essentially satisfy Strickland twice: he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his [trial] counsel was ineffective.' . . . Ham v. Commissioner of Correction, 152 Conn.App. 212, 230, 98 A.3d 81, cert. denied, 314 Conn. 932, 102 A.3d 83 (2014). 'We have characterized this burden as presenting a herculean task . . . Alterisi v. Commissioner of Correction, 145 Conn.App. 218, 227, 77 A.3d 748, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013)." Mukhtaar v. Commissioner of Correction, 158 Conn.App. 431, 438-39, 119 A.3d 607 (2015). Therefore, pursuant to the foregoing case law, in order to set forth a prima facie case of ineffective assistance of habeas counsel on the ground of ineffective assistance of trial counsel, the petitioner must set forth a prima facie case of ineffective assistance of trial counsel.
At the habeas trial, Attorney Conroy testified that, while he had no independent recollection as to the petitioner's case, it is his routine to investigate a witness's pending charges. The record reveals that Attorney Conroy cross examined Kimpson as to his pending drug sale charges. Additionally, both Attorney Koch and Attorney Coffin credibly testified at the habeas trial that they investigated the petitioner's claim but did not find any evidence to prove that Kimpson received a deal. As a result, the court finds that the petitioner failed to prove that counsels' performances fell outside the wide range of reasonable professional assistance.
Moreover, the court has found no evidence that a plea deal existed between Kimpson and the state. Without evidence of a plea deal, there is not a reasonable probability that the outcome of the proceedings would have been different. Therefore, the petitioner also failed to prove the prejudice prong of his claim. As a result, the petitioner's ineffective assistance claims against Attorney Conroy, Attorney Coffin and Attorney Koch must fail.
III
CONCLUSION
Accordingly, the petitioner's habeas petition is denied.