Opinion
CV144005768S
04-26-2016
Luis Lebron (Inmate #185091) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE SHOW CAUSE PURSUANT TO GENERAL STATUTES § 52-470(B)
Samuel J. Sferrazza, Senior Judge.
This matter arises from the petition of Luis Lebron (petitioner) for a writ of habeas corpus, which was amended by assigned counsel on January 8, 2016. The amended petition raises claims in six counts: (1) violation of the constitutional right to counsel of choice; (2) violation of the constitutional right to self-representation; (3) violation of the constitutional right to effective assistance of counsel (Attorney Ken Simon); (4) violation of the constitutional right to effective assistance of counsel (Attorney Thomas Conroy); (5) violation of the statutory and constitutional right to effective assistance of habeas counsel (Attorney Sebastian DeSantis) and (6) violation of the statutory and constitutional right to effective assistance of second habeas counsel (Attorney Paul Kraus). The respondent's return denies these claims and asserts defenses to the claims in counts one through four. The petitioner filed a reply that is responsive to the defenses. On March 7, 2016, the petitioner filed a certificate of closed pleadings.
Thereafter, on March 30, 2016, pursuant to General Statutes § 52-470(b)(1), this court gave notice to the parties that it would determine whether there is good cause for trial for all of the petition. In light of the entry of guilty pleas by the petitioner, submitted exhibits were to address whether the petitioner's guilty pleas operate as a waiver of the petitioner's right to pursue the claims in counts one through four of the amended petition. See, e.g., State v. Niblack, 220 Conn. 270, 276-77, 596 A.2d 407 (1991); Mincewicz v. Commissioner of Correction, 162 Conn.App. 109, 112-13, 129 A.3d 791 (2015); McKnight v. Commissioner of Correction, 35 Conn.App. 762, 646 A.2d 305, cert. denied, 231 Conn. 936, 650 A.2d 173 (1994). Should there be no cause for trial as to counts one through four, then counts five and six, which are derivative of and depend on the first four counts, also cannot have good cause for trial. Both parties filed submissions with the court pursuant to General Statutes § 52-470(b)(2).
After reviewing the matter and the parties' submissions, the court concludes that there is no good cause for trial for the entire petition.
PROCEDURAL HISTORY
In docket number CR97-168981, judicial district of New Britain, the petitioner was arrested on May 12, 1997, and initially charged with one count of murder in violation of General Statutes § 53a-54a(a) and one count of criminal use of a firearm in violation of General Statutes § 53a-216. Public Defender Attorney Kenneth Simon represented the petitioner in that matter and began jury selection on January 13, 1999. Jury selection continued for several days until January 27, 1999, when the court, Gaffney, J., granted Attorney Simon's motion to withdraw his appearance, which was filed because counsel concluded that he would be called as a witness for the petitioner at the criminal trial to rebut consciousness of guilt evidence the state intended to present.
The court granted the motion to withdraw and addressed with the petitioner how the matter would proceed. The petitioner indicated that he did not ask counsel to seek withdrawal and wanted the case to proceed to trial. The court inquired how the matter would proceed, to which the petitioner responded that he would represent himself. The court asked the petitioner if he had any legal training and the extent of his education. The petitioner did not have much formal education and no legal training, however, and the court indicated that it would not permit him to proceed to trial at that time. Instead, to protect the petitioner's right to a fair trial, the court granted a mistrial and continued the matter so that new counsel could take over representation and prepare for trial. The prosecutor indicated that the petitioner would be arrested in several days on additional charges.
Thereafter, in docket number CR99-189763, judicial district of New Britain, the petitioner was arrested on February 5, 1999, and charged with two counts of conspiracy to commit murder in violation of General Statutes § § 53a-48 and 53a-54a, and two counts of conspiracy to tamper with a witness in violation of General Statutes § § 53a-48 and 53a-151. The petitioner was arraigned that same day and the new case was transferred from the G.A. to the Part A docket so it could be companioned with the 1997 case. The court, Iannotti, J., continued the cases to February 26, 1999, so that the petitioner could receive substitute defense counsel.
On February 26, 1999, the prosecutor and counsel from the Office of the Public Defender in New Britain appeared before Judge Iannotti. Said office informed the court that Attorney Thomas Conroy would be appointed in both of the petitioner's criminal cases. The matters were then continued to March 12, 1999, when Attorney Conroy filed his appearances and requested a continuance to a date on or after July 1st of that year so he could prepare for trial. After the petitioner entered 'not guilty' pleas to the newer charges, Judge Iannotti granted the continuance to June 7, 1999, so counsel could update the court on the status of the cases.
On May 13, 1999, the parties appeared before Judge Iannotti so that the petitioner could plead guilty, pursuant to the Alford doctrine, North Carolina v. Alford, 400 U.S. 25, 35, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) to the following charges in the substitute information in the 1997 docket: one count of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a, and one count of conspiracy to tamper with a witness in violation of General Statutes § § 53a-48 and 53a-151. The plea agreement provided for the state recommending a sentence of thirty years to serve for the manslaughter charge and an unconditional discharge for the conspiracy to tamper with a witness charge. The agreement also provided for the petitioner to have the right to argue for a lesser sentence at the sentencing. The court thoroughly canvassed the petitioner and found that there were factual bases for his guilty pleas, as well as that they were knowingly and voluntarily made with the advice of competent counsel. The court ordered a presentence investigation report and continued the matter to August 12, 1999 for sentencing.
On August 12, 1999, after the parties made their respective sentencing arguments, the court sentenced the petitioner to a total effective sentence of thirty years incarceration for the manslaughter in the first degree with a firearm charge, and to an unconditional discharge for the conspiracy to tamper with a witness charge. The state nolled all other open charges. Lastly, the clerk provided the petitioner with notice of his right to sentence review and right to appeal.
The petitioner filed his first habeas corpus petition in 2000, which was assigned a docket number CV00-0003240 in the judicial district of Tolland. The petitioner was represented in that matter by Attorney Sebastian DeSantis. The petitioner asserted the following claims against Attorneys Simon and Conroy in an amended petition: that they failed to pursue discovery to obtain, and/or communicate with the petitioner regarding the evidence against him such as police reports, witness statements, and warrants; that they failed to challenge the petitioner's arrest and the search of the area in which he was arrested and the arrest warrant; they failed to communicate with the petitioner regarding legal standards and evidentiary standards so that he could make a knowing and voluntary decision of whether to proceed to trial or to plead guilty; and that they failed to ensure that the petitioner's plea was knowing, intelligent, and voluntary. After a trial on the merits at which the petitioner and Attorney Conroy testified, the court, Fuger, J., denied the petition.
The petitioner filed his second habeas corpus petition in 2004, which was assigned docket number CV04-0004460 in the judicial district of Tolland. The petitioner was represented in that matter by Attorney Paul Kraus. The second habeas petition was resolved via a stipulated judgment that restored the petitioner's right to file a petition for certification to appeal from the judgment of the first habeas court. The petitioner appealed from the denial of the petition for certification to appeal, and the Appellate Court affirmed the judgment of the habeas court. Lebron v. Commissioner of Correction, 108 Conn.App. 245, 947 A.2d 349; cert. denied, 289 Conn. 921, 958 A.2d 151 (2008).
PRESENT PETITION
The first count of the amended petition alleges that the court, Gaffney, J., violated the petitioner's right to proceed with his counsel of choice, Attorney Simon. This claim is premised on the petitioner's assertions that Judge Gaffney failed to conduct a meaningful inquiry into whether Attorney Simon was a necessary witness, declined to accept the petitioner's waiver of his right to conflict-free counsel, and granted counsel's motion to withdraw as counsel. The petitioner's memorandum accompanying his good cause submissions acknowledges that as a general rule, a guilty plea " operates as a waiver of nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings." State v. Niblack, supra, 220 Conn. 276; see also Mincewicz v. Commissioner of Correction, supra, 162 Conn.App. 113 (petitioner must prove that guilty plea was not voluntary and intelligent by showing interrelationship between ineffective assistance of counsel and the plea itself). The petitioner argues, however, that a claim of ineffective assistance of counsel is an exception to that general rule.
" It is well established that an unconditional plea of guilty, made intelligently and voluntarily, operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings . . . [A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea . . .
" In general, the only allowable challenges after a plea are those relating either to the voluntary and intelligent nature of the plea or the exercise of the trial court's jurisdiction . . ." (Internal citations and quotation marks omitted.) State v. Hanson, 117 Conn.App. 436, 456, 979 A.2d 576 cert. denied, 295 Conn. 907, 989 A.2d 604 cert. denied, 562 U.S. 986, 131 S.Ct. 425, 178 L.Ed.2d 331 (2010). " There is no requirement that the defendant be advised of every possible consequence of such a plea or that the court assume the role of the defendant's counselor . . . It is therefore not necessary for the trial court to canvass the defendant to determine that she understands that her plea of guilty or nolo contendere operates as a waiver of any challenge to pretrial proceedings." (Internal citations and quotations marks omitted; footnote omitted.) Id., 457.
A fair reading of the allegations in counts one and two of the amended petition shows that they are directed at the trial court itself, not any attorney conduct. The court notes that the petitioner's allegations in count four include two allegations that Attorney Conroy was deficient for failing to advise the petitioner that his guilty plea may operate as a waiver to challenging the trial court's rulings as now claimed in counts one and two. The petitioner's guilty plea operated as a waiver of the petitioner in a habeas corpus petition directly challenging the trial court's rulings as to Attorney Simon's withdrawal. Similarly, the guilty plea operated as a waiver to now challenging the trial court's rulings that the petitioner alleges in count two deprived him of his right to represent himself. The court concludes that the petitioner's submissions do not " allege the existence of specific facts which, if proven, would entitle [him] to relief under applicable law[.]" General Statutes § 52-470(b)(3)(A).
The claim in count three is a claim of ineffective assistance of counsel. The petitioner alleges that Attorney Simon rendered deficient performance by failing to: explore the possibility of having a special public defender appointed to advise the petitioner of the risks of proceeding with conflicted counsel; adequately inform the trial court that the petitioner wished to waive his right to conflict-free counsel; withdraw his motion to withdraw as counsel after the petitioner voluntarily waived his right to conflict-free counsel; advise the petitioner about his right to appeal from the trial court's granting of the motion to withdraw as counsel; and advise the petitioner about his right to appeal from the trial court's denial of the petitioner's request to represent himself. Although these allegations pertain to Attorney Simon's representation, there is no interrelationship with his representation and the guilty plea itself, which occurred several months after Attorney Conroy began representing the petitioner.
The court concludes that the lack of interrelationship between Attorney Simon's purported deficient representation and the guilty plea itself bars the petitioner from pursuing the claim of ineffective assistance alleged in count three. State v. Niblack, supra, 220 Conn. 276 (alleged errors in probable cause hearing do not invalidate Alford guilty plea; unconditional plea of guilty intelligently and voluntarily made operates as a waiver of all nonjurisdictional defects and bars the later assertion of constitutional challenges to pretrial proceedings). Consequently, the submissions fail to establish that there is good cause for trial on count three.
Next, the petitioner alleges in count four that Attorney Conroy was deficient for failing to: conduct an adequate investigation into the strength of the state's case; conduct an adequate investigation into the existence of evidence available to support a theory of self-defense to the charge of murder; adequately investigate and locate witnesses who could testify that the alleged victim had a gun at the time of the shooting; adequately advise the petitioner about the strength of the state's case; adequately investigate the circumstances under which the petitioner's prior counsel withdrew from representing the petitioner; advise the petitioner that pleading guilty may operate as a waiver of his right to challenge the trial court's ruling granting Attorney Ken Simon's motion to withdraw as counsel; advise the petitioner that pleading guilty may operate as a waiver to challenge the trial court's denial of the petitioner's request to represent himself; advise the petitioner about his right to appeal from the trial court's ruling granting Attorney Ken Simon's motion to withdraw as counsel; and advise the petitioner about his right to appeal from the trial court's denial of the petitioner's request to represent himself.
The petitioner acknowledges that he previously raised a claim of ineffective assistance by Attorney Conroy in his first habeas corpus petition. However, the petitioner asserts, without specificity, that he did not have a full and fair opportunity to present this claim in his first habeas petition. The respondent's return avers that the claim in count four is successive. Given the claims raised by the petitioner in his first habeas corpus petition against both Attorneys Simon and Conroy, the petitioner would be precluded by the principles of res judicata from again directly pursuing claims of ineffective assistance by them. See, e.g., Diaz v. Commissioner of Correction, 125 Conn.App. 57, 63-64, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011) (res judicata precludes habeas petitioner from relitigating claim that has previously been decided). The court concludes that the submissions fail to show good cause for trial on the claims in count four because he has not shown that he would be entitled to habeas corpus relief under applicable law.
Count five of the amended petition alleges that first habeas counsel, Attorney DeSantis, was deficient for failing to: discover, investigate, and raise claims one, two and three of the amended petition; and adequately plead, prove and argue claim for of the amended petition. As to the claims pertaining to counts one through three, the court relies on its discussion and conclusions above regarding each of those claims and why there is no good cause for trial. As to the claim pertaining to count four, although the petitioner filed a second habeas corpus petition, it was resolved with a stipulation that restored his right to file a petition for certification to appeal in the first habeas. Thus, the petitioner has never litigated a claim of ineffective assistance of first habeas counsel and he could, even though the allegations in count five are derivative of count four, assert such a claim in this petition. Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992). Similarly, the petitioner has never litigated a claim against his second habeas counsel, Attorney Kraus, who successfully resolved the second petition via a stipulated judgment that restored the petitioner's right to appeal from the judgment of the first habeas court. Count six is such a claim of ineffective assistance by Attorney Kraus.
The petitioner at this juncture, nevertheless, must show good cause for trial by both " alleging the existence of specific facts which, if proven would entitle [him] to relief under applicable law, and . . . 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 . . ." (Emphasis added.) General Statutes § 52-470(b)(3)(A) and (B). The submissions by both parties consist almost entirely of copies of police documents, transcripts and court documents and were previously available. The one exception is the petitioner's affidavit dated April 12, 2016.
The petitioner's affidavit attests to the events surrounding Attorney Simon seeking permission to withdraw and the rulings by Judge Gaffney that are at issue in counts one and two of the amended petition. The affidavit also attests to the petitioner's opposition to the withdrawal, his willingness to waive any conflict of interest, the appeal he would have taken if advised that he had a right to appeal, his willingness to represent himself and proceed to trial, and his opposition to the mistrial. The affidavit also attests to the petitioner's interactions with Attorney Conroy after he replaced Attorney Simon. The petitioner's focus as to Attorney Conroy is his not investigating, challenging or appealing the issues the petitioner has identified relating to Attorney Simon's withdrawal. Had both Attorneys Simon and Conroy done all that the petitioner alleges they did not do, then he would not have pleaded guilty.
The court concludes from its review of the pleadings and the submissions provided by both parties that the petitioner has neither alleged the existence of specific facts that would entitle him to have his guilty plea vacated, nor that the submissions 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. Most importantly, the petitioner's attestations in his affidavit do not establish the necessary interrelationship between ineffective assistance of counsel and the plea itself. Mincewicz v. Commissioner of Correction, supra, 162 Conn.App. 113. Stated somewhat differently, none of the petitioner's claims have a direct relationship to the validity of the plea itself, and any relationship he asserts is too indirect and tenuous.
CONCLUSION
The petitioner has not shown good cause for trial pursuant to General Statutes § 52-470(b)(2) and (3). The parties shall appear before this court at 10 a.m., Wednesday, May 4, 2016, for the preliminary hearing required by General Statutes § 52-470(b)(3).
It is so ordered.