Opinion
CV134005104S
12-23-2015
Felipe Mulero (#255637) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Vernon D. Oliver, J.
The petitioner, Felipe Mulero, initiated this third petition for a writ of habeas corpus, claiming that his underlying criminal and habeas counsel provided him ineffective legal representation. At the open of evidence, the petitioner withdrew all claims, with the exception of a claim asserting that all prior counsel were ineffective relating to an insanity defense. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The court dismisses the petition.
Procedural History
In the criminal matter State v. Felipe Mulero, in the New Britain Judicial District, the petitioner was charged with Forgery in the Second Degree in violation of Connecticut General Statutes § 53a-139(a)(2). At his jury trial, the petitioner was represented by attorney Ott P. Witt. After having been convicted, the petitioner received a total effective sentence of five years incarceration, execution suspended after twenty-five months, followed by five years probation.
The petitioner's conviction was affirmed on direct appeal by the Connecticut Appellate Court, in State v. Felipe Mulero, 91 Conn.App. 509, 881 A.2d 1039 (2005). The petitioner was represented by attorney Jon L. Schoenhorn. The petitioner's claims on appeal were: 1) There was insufficient evidence to support the conviction; 2) The trial court's instructions deprived the petitioner of his due process right to a fair trial; and 3) prosecutorial impropriety during closing argument. There was no claim related to an insanity defense. The jury verdict was affirmed.
On or about August 30, 2005, the petitioner filed his first pro se petition. He was later represented by attorney Laljeebhai R. Patel. In an amended petition dated June 30, 2009, the petitioner asserted ineffective assistance of underlying counsel in four different ways, none of which related to an insanity defense. Respondent's Motion to Dismiss, Appendix B . The Habeas trial court (Santos, T., J.) found the issues in favor of the respondent. Respondent's Motion to Dismiss, Appendix C . In his second habeas petition dated April 29, 2011, the petitioner, as a self-represented litigant, asserted fifteen claims in the nature of due process rights violations related to the underlying criminal trial, none of which related to an insanity defense. Respondent's Motion to Dismiss, Appendix D . In a decision dated August 2, 2011, the habeas court (Schuman, J.) granted the respondent's motion to dismiss based on procedural default. The court stated as an alternate ground for dismissal the petitioner's failure to appear at trial to prosecute his petition. Respondent's Motion to Dismiss, Appendix E .
In a Motion to Dismiss/Motion for Summary Judgment dated August 4, 2015, the respondent seeks the dismissal of the petition for three reasons, including procedural default and successive petitions as an abuse of the writ. The court grants the respondent's motion and dismisses the petition with prejudice.
II
Law/Discussion
" The right to petition for a writ of habeas corpus is enshrined in both the United States constitution and the Connecticut constitution. See U.S. Const., art. I, § 9; Conn. Const., art. I, § 12. Indeed, it has been observed that the writ of habeas corpus holds an honored position in our jurisprudence . . . The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness . . . The writ has been described as a unique and extraordinary legal remedy . . . It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired." (Citations omitted; internal quotation marks omitted.) Fine v. Commissioner of Correction, 147 Conn.App. 136, 142-43, 81 A.3d 1209 (2013).
" 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, 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, 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).
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).
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, 466 U.S. 689. The United States Supreme Court explained:
A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.(Citation omitted; internal quotation marks omitted) Id., 689.
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, 466 U.S. 686.
For assessing claims of ineffective assistance based on the performance of prior habeas counsel, the Strickland standard is as follows: " [When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard 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 . . . 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 . . . Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of [appellate] counsel must essentially satisfy Strickland twice: he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his [appellate] counsel was ineffective." (Citations omitted; internal quotation marks omitted. Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 394, 966 A.2d 780 (2009).
A. Procedural Default
Connecticut has adopted the federal cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). " [T]he appropriate standard for reviewability of [a procedurally defaulted claim] . . . 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." (Internal quotation marks omitted.) Chaparro v. Commissioner of Correction, 120 Conn.App. 41, 48, 990 A.2d 1261, cert. denied, 297 Conn. 903, 994 A.2d 1287 (2010).
In Johnson v. Commissioner, 218 Conn. 403, 589 A.2d 1214 (1991), our Supreme Court adopted the " cause and prejudice" standard espoused by the U.S. Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), which standard limits the reviewability of claims first raised in a habeas corpus action. In Johnson, supra, the cause and prejudice test was made applicable to procedural defaults which occurred at the trial level. This standard was extended to apply to the failure to raise claims on appeal in Jackson v. Commissioner, 227 Conn. 124, 132, 629 A.2d 413 (1993). The burden of proving good cause and prejudice for procedural default rests with the habeas petitioner, Johnson v. Commissioner, supra, 409.
In the instant matter, the petitioner's claims are not properly before this court. The issues should properly have been presented to the underlying trial court, and subsequently in his direct appeal. State v. Wang, 312 Conn. 222, 228, 92 A.3d 220 (2014). Good cause must be external to the defense and be some factor besides attorney error. Jackson v. Commissioner, supra, 137. The mere failure of counsel to recognize the factual or legal ground does not constitute good cause to excuse default. Parker v. Commissioner, 27 Conn.App. 675, 682, 610 A.2d 1305 (1992), cert. denied, 223 Conn. 909, 612 A.2d 57 (1992). In the circumstance of a self-represented petitioner, " [t]he petitioner is accountable to himself for the decisions made as a self-represented litigant." State v. Kenney, 53 Conn.App. 305, 327, 730 A.2d 119 (1999). Even if the petitioner's response to the motion to dismiss is to be believed, the claim that he was prevented by underlying criminal trial counsel from asserting an insanity defense does not establish good cause for his failure to raise it on direct appeal or at either of his prior habeas trials.
III
Conclusion
Judgment shall enter for the Respondent. The petition is dismissed.