Opinion
CV154006829S
03-23-2017
Richard Langston #179930 v. Warden, State Prison
UNPUBLISHED OPINION
ORDER
Vernon D. Oliver, J.
The petitioner, Richard Langston, initiated this third petition for a writ of habeas corpus, claiming that his 1999 convictions for robbery in the first degree, criminal possession of a firearm and commission of a class A, B or C felony with a firearm should be vacated and that he should receive a new sentence or a new trial. The petitioner identifies several grounds in his amended petition, which include that his trial counsel was ineffective in failing to relate a plea offer to the petitioner, that first habeas counsel was ineffective in failing to litigate the aforementioned alleged ineffectiveness, trial counsel's ineffectiveness for trying the charge of criminal possession of a firearm to the jury rather than to the court and first habeas counsel's ineffectiveness for failing to litigate the same.
The matter was referred to the Office of the Chief Public Defender for an indigency investigation and assignment of counsel. On February 11, 2015, the Law Office of Christopher Duby, LLC filed a firm appearance. Petitioner's counsel then filed an amended petition on November 28, 2016. Shortly thereafter, on December 19, 2016, the respondent filed a request, pursuant to General Statutes § 52-470(d) and (e), asking the court to order the petitioner to show cause why he should be permitted to proceed despite his delay in filing the instant habeas corpus petition. This court granted the respondent's motion on January 11, 2017, and the parties appeared before this court on February 8, 2017 for the show cause hearing.
For the reasons articulated more fully below, the court concludes that the petitioner has failed to show good cause for the delay in filing the present habeas corpus petition. Accordingly, judgment shall enter dismissing the petition for a writ of habeas corpus.
I
PROCEDURAL HISTORY
The petitioner was the defendant in a criminal case brought in the judicial district of Hartford. In addition to the above-referenced convictions, the petitioner was acquitted of assault first degree. The petitioner thereafter was sentenced to a total effective sentence of twenty-five years of incarceration. The petitioner appealed from the judgment of conviction.
The Appellate Court, on direct appeal, affirmed the petitioner's convictions per curiam. State v. Langston, 67 Conn.App. 903, 786 A.2d 547 (2001). Our Supreme Court denied certification to appeal. State v. Langston, 259 Conn. 916, 792 A.2d 852 (2002). In 2002, the petitioner filed a state habeas petition asserting ineffective assistance of counsel. After trial, the court, Corradino, J., granted the petition and the relief requested. Langston v. Warden, Superior Court, Judicial District of New Haven, Docket No. CV02-465630, 2005 WL 1023194 (March 29, 2005) [39 Conn.L.Rptr. 197, ]. The Appellate Court subsequently reversed the decision below, directing the habeas court to deny the petition. Langston v. Comm'r of Corr., 104 Conn.App. 210, 931 A.2d 967, cert. denied, 284 Conn. 941, 937 A.2d 697 (2007).
In finding that the petitioner had not been denied effective assistance of counsel, the Appellate Court set forth the following relevant procedural history and found the following facts: " The petitioner was arrested on March 25, 1998, in connection with an armed robbery and shooting that occurred on March 4, 1998, during a drug transaction in a parking lot on Garden Street in Hartford. The petitioner was charged with assault in the first degree in violation of General Statutes § 53a-59(a)(5), commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k, criminal possession of a firearm in violation of General Statutes § 53a-217 and robbery in the first degree in violation of General Statutes § 53a-134(a)(2). The jury found the petitioner not guilty of assault in the first degree, but guilty of the other charges. The petitioner's conviction was upheld summarily on direct appeal. See State v. Langston, 67 Conn.App. 903, 786 A.2d 547 (2001), cert. denied, 259 Conn. 916, 792 A.2d 852 (2002). " The petitioner filed a petition for a writ of habeas corpus in April 2002, in which he alleged that he was denied the effective assistance of counsel on numerous grounds. Only two of those claims are relevant to this appeal. The court granted his second amended petition for a writ of habeas corpus in part, concluding that defense counsel had rendered ineffective assistance, pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), by (1) failing to object to the prosecutor's questioning an investigating police officer about a handgun silencer made from a potato (potato silencer) that was found at the time of the petitioner's arrest and (2) conceding during final argument, without the petitioner's prior knowledge or permission, that the petitioner had participated in the robbery. The respondent filed this appeal following the court's granting the petition for certification to appeal. Additional facts will be addressed as necessary . . . " The respondent first claims that the court improperly determined that defense counsel rendered ineffective assistance by failing to object to testimony concerning the potato silencer. We agree. At the petitioner's criminal trial, the prosecutor called Juan Roman, a detective with the Hartford police department, to testify about the petitioner's arrest. According to Roman, the petitioner was arrested at his residence in East Hartford. The petitioner and his female companion, who shared the residence, both gave the officers permission to search the apartment. One of the officers found a round object bound with black electrical tape. The round object was determined to be a potato. A police sergeant who accompanied Roman asked the petitioner what the object was. The petitioner responded that it was a silencer for a handgun and that he had seen something like it on television. In his amended petition for a writ of habeas corpus, the petitioner alleged that defense counsel's representation was ineffective because he failed to object to or move to strike Roman's testimony about the potato silencer because the testimony was " irrelevant and remote . . ."
" As previously stated, the events that gave rise to the charges against the petitioner stemmed from a drug transaction. The state produced evidence at trial that the victim and a friend approached the petitioner and his accomplice to purchase drugs. The state also produced evidence that the petitioner had a handgun in the waistband of his trousers at the time he demanded money from the victim. Although the victim was shot in the knee, no one saw the petitioner shoot the victim. The weapon with which the victim was injured was not recovered. The petitioner was tried under an information charging him with assault in the first degree in violation of § 53a-59(a)(5), commission of a class A, B or C felony with a firearm in violation of § 53-202k, criminal possession of a firearm in violation of § 53a-217 and robbery in the first degree in violation of § 53a-134(a)(2). Section 53a-59(a)(5) contains the element of " a firearm." Sections 53-202k, a sentence enhancement statute, and 53a-217 contain the element of " possession" of a firearm. Section 53a-134(a)(2) contains the element of " armed with a deadly weapon." " On appeal, the respondent argues that evidence of the potato silencer had a tendency to establish that the petitioner had access to a handgun and knew how to use it. That evidence, therefore, was relevant to the crimes with which the petitioner was charged. We agree with the respondent.
" On the basis of our plenary review of the record, we conclude that the testimony concerning the potato wrapped in tape that the petitioner told police was a silencer for a handgun was relevant to his possession of a weapon, which was an element of at least two of the crimes with which he was charged. If the petitioner had a silencer for a handgun, it was circumstantial evidence that he possessed a handgun. Had defense counsel filed a motion in limine to exclude the evidence or objected to it at trial, it is highly likely that the trial court would have denied the motion or overruled the objection. " [T]he failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation." Sekou v. Warden, 216 Conn. 678, 690, 583 A.2d 1277 (1990). The petitioner, therefore, failed to meet the first Strickland prong that defense counsel's performance with respect to the potato silencer fell below an objective standard of reasonableness. For these reasons, we conclude that the habeas court improperly granted the petition for a writ of habeas corpus regarding defense counsel's failure to object to evidence of the potato silencer. " The respondent's second claim is that the court improperly found a portion of defense counsel's final argument to be a concession that the petitioner committed robbery. We agree.
" The specific language used by defense counsel that the court found fell below the objective standard of reasonableness was, " I'll concede for a moment a robbery did occur." " [W]e must review the comments complained of in the context of the entire trial." State v. Robinson, 227 Conn. 711, 746, 631 A.2d 288 (1993). " We review the argument that the [petitioner] claims is improper in the context in which it was used." State v. Cromety, 102 Conn.App. 425, 438, 925 A.2d 1133 (2007); see also State v. Warholic, 278 Conn. 354, 364, 897 A.2d 569 nn. 4-5 (2006). " On the basis of our review of defense counsel's closing argument, the context of the trial and the theory of defense, we conclude that the court's finding that defense counsel conceded that the petitioner robbed the victim was clearly erroneous. The theory of defense was that the petitioner had been identified wrongly as the perpetrator of the crimes. What the court characterized as a concession, in fact, was a rhetorical device intended to highlight for the jury the lack of logic with respect to the robbery and the shooting, i.e., if the victim had given his money to the petitioner and was retreating, why would the petitioner then shoot the victim.
" Closing arguments of counsel . . . are seldom carefully constructed in toto before the event; improvisation frequently results in syntax left imperfect and meaning less than crystal clear . . . Therefore, because closing arguments often have a rough and tumble quality about them, some leeway must be afforded to the advocates in offering arguments to the jury in final argument . . . [W]e must review the comments complained of in the context of the entire trial." (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Chasse, 51 Conn.App. 345, 358, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). We need not determine in hindsight whether defense counsel could have made his rhetorical argument clearer, as our review of the challenged portion of the argument within the context of the whole argument and the trial itself demonstrates, defense counsel did not concede that the petitioner committed the robbery at issue. " The judgment is reversed and the case is remanded to the habeas court with direction to render judgment denying the petition for a writ of habeas corpus." Langston v. Comm'r of Corr., supra, 104 Conn.App. at 211-24.
As it relates to the petitioner's claim of a lapsed plea offer, the habeas court addressed that issue as follows: " It is said the petitioner did not receive a letter sent by the lawyer explaining his options. There is apparently no claim that a plea bargain was not conveyed to the petitioner or that if it was it would have been accepted. The letter defense counsel sent was introduced into evidence but at the habeas trial there was no point by point reference to it by petitioner's counsel to indicate that, on the assumption it was not received by Langston, the lawyer did not discuss specific aspects of it in face-to-face meetings.
" Even if the latter is assumed to be the claim there is no indication in petitioner's brief as to how this prejudiced petitioner. He said he was told of the plea offer at the habeas hearing. He was adamant about his innocence-see for example his objection to defense counsel's purported admission of guilt in closing argument. There is no claim made that if the letter had been received by him he would have considered a plea, or suggested new tactics to his lawyer, or questioned any observations in the letter.
" Generally as regards all these issues raised by the petitioner it has been said that the strength or weakness of a case is an important factor in determining whether any particular error, assumed or established, caused prejudice. Strickland, 466 U.S. at page 696; Anderson v. Johnson, 338 F.3d 382, 393 (5th Cir., 2003); cf. Murrell Frank, 332 F.3d 1102, 1117-18 (7th Cir., 2003). Here, in addition to the fact that the prejudice has not been indicated, it is also true that this was not a weak, but a strong case." Langston v. Warden, supra, , 2005 WL *9-10.
This court notes for emphasis the first habeas court's reference, in 2005, to a plea offer as well as the petitioner's assertion that he was previously unware of the offer. This court also takes note of underlying counsel's habeas trial testimony, and the first habeas court's crediting of that testimony, that the petitioner was " adamant" concerning his innocence, his desire to go to trial, and his flat refusal to concede guilt on the charges.
On March 17, 2008, the petitioner filed a federal habeas action (Ex. 4). The petitioner asserted that the state court actions were either contrary to, or an unreasonable application of, federal law. The court denied the petition, finding that the state Appellate Court properly applied federal law and legal precedent to the facts of the case. Langston v. Murphy, United States District Court, D.Conn., Docket No. 3:08-CV-410(DJS), 2012 WL 774196 (March 7, 2012). (Ex. 3.)
On May 9, 2012, shortly after the decision issued in the federal action, the petitioner filed his second state pro se petition for a writ of habeas corpus, assigned docket no. CV12-4004729. Counsel was assigned to represent the petitioner on January 24, 2013. (Ex. 2.) The operative amended petition asserted that both his trial and first habeas counsel were ineffective in their representation. The petitioner withdrew the petition on September 22, 2014, prior to a court hearing scheduled for argument on the respondent's motion to dismiss. (Ex. 2.)
On December 3, 2014, the petitioner filed this third state habeas petition giving rise to the instant matter. Counsel for the petitioner appeared February 11, 2015. The operative pleading is the amended petition filed November 28, 2016, wherein the petitioner alleges a lapsed plea offer and another in- trial error by counsel and first habeas counsel's failure to litigate same.
II
DISCUSSION
The respondent, relying on General Statutes § 52-470(d) and (e), requested an order that the petitioner show cause why he should be permitted to proceed despite his delay in filing the present habeas corpus petition. That request was granted and the petitioner was provided a hearing at which he could show cause. The court concludes that the petitioner has failed to show cause for the delay.
A
General Statutes § 52-470
In 2012, General Statutes § 52-470 was amended by P.A. 12-115, which added several new subsections, (c) through (e). These subsections were effective October 1, 2012, and provide as follows:
(c) Except as provided in subsection (d) of this section, there shall be a rebuttable presumption that the filing of a petition challenging a judgment of conviction has been delayed without good cause if such petition is filed after the later of the following: (1) Five years after the date on which the judgment of conviction is deemed to be a final judgment due to the conclusion of appellate review or the expiration of the time for seeking such review; (2) October 1, 2017; or (3) two years after the date on which the constitutional or statutory right asserted in the petition was initially recognized and made retroactive pursuant to a decision of the Supreme Court of Appellate Court of this state or the Supreme Court of the United States or by the enactment of any public or special act. The time periods set forth in this subsection shall not be tolled during the pendency of any other petition challenging the same conviction.
(d) In the case of a petition filed subsequent to a judgment on a prior petition challenging the same conviction, there shall be a rebuttable presumption that the filing of the subsequent petition has been delayed without good cause if such petition is filed after the later of the following: (1) Two years after the date on which the judgment in the prior petition is deemed to be a final judgment due to the conclusion of appellate review or the expiration of the time for seeking such review; (2) October 1, 2014; or (3) two years after the date on which the constitutional or statutory right asserted in the petition was initially recognized and made retroactive pursuant to a decision of the Supreme Court or Appellate Court of this state or the Supreme Court of the United States or by the enactment of any public or special act. For the purposes of this section, the withdrawal of a prior petition challenging the same conviction shall not constitute a judgment . The time periods set forth in the subsection shall not be tolled during the pendency of any other petition challenging the same conviction. Nothing in this subsection shall create or enlarge the right of the petitioner to file a subsequent petition under applicable law.
(e) In a case in which the rebuttable presumption of delay under subsection (c) or (d) of this section applies, the court, upon the request of the respondent, shall issue an order to show cause why the petition should be permitted to proceed. The petitioner or, if applicable, the petitioner's counsel, shall have a meaningful opportunity to investigate the basis for the delay and respond to the order. If, after such opportunity, the court finds that the petitioner has not demonstrated good cause for the delay, the court shall dismiss the petition. For the purposes of this subsection, good cause includes, but is not limited to, the discovery of new evidence which materially affects the merits of the case and which could not have been discovered by the exercise of due diligence in time to meet requirements of subsection (c) or (d) of this section. (Emphasis added.)
Because the present petition is a petition filed subsequent to the judgment on a prior petition, the applicable subsection is (d).
By operation of subsection (d), there is a rebuttable presumption that the present petition was delayed without good cause if such petition is filed after the later of the three time periods specified in subsections (1) through (3). There is no constitutional or statutory right, initially recognized and made retroactive, asserted in the petition that makes the two-year time period in subsection (3) applicable. The notice from the Supreme Court denying certification to appeal was dated December 5, 2007, so that 2009 is the year established by subsection (1). Consequently, the date established by subsection (2), October 1, 2014, is the later of the dates established by application of subsections (1) through (3). The present petition was filed on December 3, 2014. Contrary to the petitioner's argument, although the petitioner filed a second petition in 2012, that petition was withdrawn in 2014 and does not constitute a judgment for purposes of this analysis. The court finds, therefore, that the rebuttable presumption in (d) applies to the present petition.
On December 19, 2016, the respondent filed the request for order to show cause, pursuant to subsection (e). This request was certified to the petitioner's counsel of record. The request was granted by the court, resulting in the instant hearing on February 8, 2017. At the hearing, in addition to the arguments of counsel and entry of exhibits into evidence, the petitioner testified. Counsel for the petitioner has not indicated that there was no meaningful opportunity to investigate the basis for the delay and respond to the order. Consequently, the court finds that the petitioner has had a meaningful opportunity to investigate the basis for the delay and respond to the order.
B
Show Cause Hearing
At the show cause hearing, the petitioner testified that, after the Connecticut Supreme Court denied certification to appeal, he filed a federal habeas, which " took a while" to be decided. He further testified to a decision to file another state habeas petition in 2012 instead of seeking appellate review of the federal habeas decision. The petitioner also testified that, despite being aware of the respondent's filing of a motion to dismiss the 2012 petition, he was unaware of the reason he withdrew the petition in 2014 with the intent to " re-file, " testifying that he relied on the advice of assigned counsel.
Counsel for the petitioner argued the following: First, that the October 1, 2014 date in General Statutes § 52-470 does not apply as the September 22, 2014 withdrawal is the operative " two-year" date, giving the petitioner until 2016 to file the instant petition. Second, that the petitioner's reliance on the presumed strategic decision of second habeas counsel to withdraw and " re-file" the petition constitutes good cause to excuse the delay in filing the instant petition.
The respondent argued that the petitioner had failed to show any good cause for delay. The respondent emphasized that the only good cause specifically enumerated in General Statutes § 52-470(e) is " . . . the discovery of new evidence which materially affects the merits of the case and which could not have been discovered by the exercise of due diligence in time to meet the requirements of subsection (c) or (d) of this section." However, the same section indicates that " [f]or purposes of this subsection, good cause includes, but is not limited to, . . ." the discovery of new evidence. (Emphasis added.) The petitioner is not limited, therefore, to showing good cause based on newly discovered evidence.
" [G]ood cause is defined as 'a substantial reason amounting in law to a legal excuse for failing to perform an act required by law [and] [l]egally sufficient ground or reason.' Black's Law Dictionary (6th Ed. 1990) . . ." (Citation omitted.) Roberto v. Honeywell, Inc., 33 Conn.App. 619, 626, 637 A.2d 405 (1994) (error by trial court to simply find prejudice and delay without considering intent and reasons for failure to timely disclose expert witness); see also Schoolhouse Corp. v. Wood, 43 Conn.App. 586, 591, 684 A.2d 1191 (1996) (neglect, indifference, disregard of plainly applicable statutory authority and self-created hardship are not good cause to excuse delay in filing motion).
General Statutes § 52-470(d) specifically provides that a withdrawal of a petition does not constitute a judgment. This is consistent with General Statutes § 52-80 (" . . . The plaintiff may withdraw any action so returned to [court] and entered in the docket of any court, before the commencement of a hearing on the merits thereof . . ."). The petitioner here essentially presents the withdrawal as the good cause.
The withdrawal of the second petition asserting counsel's advice, even if true, is not sufficient good cause. The petitioner withdrew the second petition on September 22, 2014. There was no evidence adduced that counsel failed to inform the petitioner of the time restraints imposed by the statute as issue.
The petitioner has not presented any newly discovered evidence, nor has he presented anything that amounts to a substantial reason in law as a legal excuse for failing to file his third habeas corpus petition prior to October 1, 2014. The claims relating to the in-trial error of underlying counsel are certainly not " new, " as the jury rendered its verdict in 1999. Additionally, evidence relating to an " eight year offer, " of which the petitioner claims not to have been previously aware, was provided to the petitioner, at the very latest, in October 2004, during his first habeas trial. A partial transcript of that proceeding entered into evidence at the instant hearing clearly establishes this. (Ex. A). The petitioner has not demonstrated a legally sufficient ground or reason for such delay and has not shown why he should be permitted to proceed further. The court concludes, therefore, that the petitioner has failed to rebut the presumption of delay because he has not shown good cause for the delay in filing his third habeas corpus petition and has failed to rebut the presumption of delay.
III
CONCLUSION
The petition for a writ of habeas corpus is dismissed pursuant to General Statutes § 52-470(e).