Opinion
No. CV 07 4001696
May 25, 2010
MEMORANDUM OF DECISION
On April 2, 2007, the petitioner, Willie Myers, filed a petition for a writ of habeas corpus challenging his conviction which resulted from a guilty plea entered on June 21, 1996. On that date, the petitioner pleaded guilty to murder in violation of General Statutes § 53a-54a. On May 4, 2007, the court, Fuger, J., dismissed the petition pursuant to the doctrine of res judicata. After appeal, the dismissal was affirmed as to the first count, alleging ineffective assistance of counsel, but reversed and remanded as to the second and third counts of the petition. On October 6, 2009, the petitioner filed an amended petition with all three counts included, but, on the date of trial, indicated that the first count was included only for background facts and that he was proceeding only on the second and third counts. In count two, the petitioner alleges that he was denied a fair trial by the trial court, and in count three, he alleges that he is innocent of the underlying offense. He is seeking to have his guilty plea vacated and to be released from custody.
The petitioner has brought at least two other habeas corpus petitions. See Myers v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 03 0004043; Myers v. Warden, Superior Court, judicial district of Hartford, Docket No. CV 07 4001009.
See Myers v. Commissioner of Correction, 111 Conn.App. 405, 959 A.2d 646 (2008).
The matter came to trial on November 19, 2009. The court heard testimony from Zebulon Cummings, who was present at the scene of the crime, and the petitioner. The petitioner also called Jonathan DeBarros, who was also present at the scene of the crime, but he refused to testify. The petitioner proffered as evidence, among other documents, a transcript of his probable cause hearing and his statement to the Waterbury police at the time of his arrest. The respondent had no witnesses, but entered into evidence the statement of Cummings to the Waterbury police and the transcripts of the petitioner's plea hearing and sentencing. The petitioner and the respondent filed posttrial briefs on January 29, 2010 and March 25, 2010, respectively. Having reviewed all of the testimony and evidence, the court makes the following findings of fact.
FINDINGS OF FACT
1. The petitioner was the defendant in a criminal case in the judicial district of Waterbury, under Docket No. CR95-0233660, in which he was charged with murder in violation of § 53a-54a and hindering prosecution in violation of General Statues (Rev. to 1995) § 53a-166.
Petitioner's Exhibit [Exh.] 3.
2. He was arrested by a warrant signed by the Honorable Joanne K. Kulawicz on January 9, 1995.
Petitioner's Exh. 2.
3. On February 17, 1995, a hearing in probable cause was conducted before the Honorable Judge Kulawicz, at which time the court found probable cause as to the charge of murder and the charge of hindering prosecution in the first degree. 4. Thereafter, on May 22, 1996, the state filed a substitute information, charging the petitioner with (1) murder in violation of § 53a-54a, (2) accessory to murder in violation of General Statutes §§ 53a-8 and 53a-54a, (3) conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a and (4) assault in the first degree in violation of General Statutes § 53a-59(a)(1).
Petitioner's Exh. 1, pp. 36-37.
Petitioner's Exh. 3.
5. On June 11, 1996, after jury selection had commenced before the Honorable Joseph Flynn, the petitioner pleaded guilty under the Alford doctrine to the murder charge. The prosecution nolled the remaining charges. The court, Fasano, J., thoroughly canvassed the petitioner and found his plea to be knowingly and voluntarily made with the assistance of competent counsel.
See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). "A defendant who pleads guilty under the Alford doctrine does not admit guilt but acknowledges that the state's evidence against him is so strong that he is prepared to accept the entry of a guilty plea." (Internal quotation marks omitted.) Kearney v. Commissioner of Correction, 113 Conn.App. 223, 225 n. 1, 965 A.2d 608 (2009).
Respondent's Exh. B, p. 8.
6. The factual allegations underlying the charge of murder are as follows: On January 6, 1995, the petitioner was in an apartment, located at 417 East Main Street in Waterbury, with several individuals when the victim, Jeffrey Rabuska, entered the apartment. Rabuska and the petitioner got into a verbal altercation, at which time the petitioner pulled a .45 caliber gun from his waist band and shot Rabuska three times in the lower body. One bullet entered the lower abdomen area and lodged itself in Rabuska's right thigh. That bullet went through several vital organs and ultimately was fatal. The victim was then removed at the petitioner's command by several of the other individuals present, and later shot in another location at the petitioner's command to make sure the victim was actually dead. The petitioner provided a statement to the Waterbury police, indicating his involvement in the shooting. He also provided the police with the location of the hidden .45 caliber gun.
Respondent's Exh. B, pp. 2-3.
Petitioner's Exh. 6, p. 6.
Respondent's Exh. B., p. 3.
7. On July 19, 1996, the court, Damiani, J., sentenced the petitioner, on the murder charge, to a term of thirty years to serve.
Respondent's Exh. C, p. 11.
8. The petitioner called Cummings as a witness in the habeas trial. Cummings had been a witness to certain activities at the apartment where the victim was shot on January 6, 1995. He stated that he had been arrested and charged with hindering prosecution in connection with the incident. He testified that at no time on that date did he see the petitioner at the apartment. He further confirmed that he had given the police a statement about the incident in which he makes no mention of the petitioner. He even added that he was offered a suspended sentence with probation to the charge of hindering prosecution and other unrelated drug charges if he would testify against the petitioner at his trial. Cummings refused to do so. He was sentenced to seven years for those charges.
Respondent's Exh. A.
9. The Court will discuss additional facts as needed.
DISCUSSION
In count two of his amended petition, the petitioner claims that Judge Kulawicz deprived him of his constitutional right to a fair trial by failing to recuse herself from his probable cause hearing in light of the fact that she had signed the application for the warrant for his arrest. Specifically, he alleges that she had knowledge of disputed evidentiary facts by virtue of the application for the arrest warrant and thus, should have disqualified herself pursuant to canon 3(c) of the Code of Judicial Conduct. In the return, the respondent raised the affirmative defense of procedural default as to this count of the amended complaint, alleging that the petitioner should have, but did not, raise this claim at the probable cause hearing or on appeal. In his reply, the petitioner asserted that his claim is not procedurally defaulted and that the court should apply the deliberate bypass standard as opposed to the cause and prejudice standard in determining the reviewability of his claim.
Constitutional claims raised for the first time in a habeas corpus petition are subject to procedural default. See, e.g., Solman v. Commissioner of Correction, 99 Conn.App. 640, 644, 916 A.2d 824, cert. denied, 282 Conn. 901, 918 A.2d 888 (2007). "Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice." Zabian v. Commissioner of Correction, 115 Conn.App. 144, 152, 971 A.2d 822 (2009). Contrary to the petitioner's contention, the cause and prejudice standard applies to all procedural defaults. See, e.g., Crawford v. Commissioner of Correction, 294 Conn. 165, 179-90, 982 A.2d 620 (2009) ("[s]ince Jackson [v. Commissioner of Correction, 227 Conn. 124, 130-36, 629 A.2d 413 (1993)], this court consistently and broadly has applied the cause and prejudice standard to trial level and appellate level procedural defaults in habeas corpus petitions"). "[T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate's procedural rule . . . Cause and prejudice must be established conjunctively . . . If the petitioner fails to demonstrate either one, a trial court will not review the merits of his habeas claim." (Citations omitted; internal quotation marks omitted.) Id., 191.
The petitioner's constitutional claim regarding Judge Kulawicz's alleged failure to disqualify herself from his probable cause hearing is subject to procedural default because the petitioner did not raise this issue before the trial court or on appeal. In fact, he did not pursue a direct appeal of his conviction at all. Since the respondent raised the defense in the return, it was incumbent on the petitioner to prove cause and prejudice. The petitioner has failed to prove, let alone plead in his reply, either cause or prejudice. Accordingly, his claim in count two is not reviewable by this court.
In count three of his amended petition, the petitioner claims that newly discovered evidence in the form of testimony from Cummings, DeBarros, Javier Santiago and Edward Wright proves that he is actually innocent of murder.
"Our Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence . . . [Our Appellate Court], however, has held that a claim of actual innocence must be based on newly discovered evidence . . . [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered . . . This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence." (Internal quotation marks omitted.) Weinberg v. Commissioner of Correction, 112 Conn.App. 100, 119, 962 A.2d 155, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009). "[T]he proper standard for evaluating a freestanding claim of actual innocence . . . is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty of the crime." (Internal quotation marks omitted.) Mozell v. Commissioner of Correction, 291 Conn. 62, 80-81, 967 A.2d 41 (2009).
The first question is, thus, whether the petitioner has presented any newly discovered evidence in support of his actual innocence claim. The only evidence presented by the petitioner in support of his claim consisted of his own testimony and that of Cummings. Cummings testified more or less in accordance with the statement that he provided to the Waterbury police on January 8, 1995, two days after the crime occurred. He did not proffer anything that can be construed as being newly discovered. Although the petitioner testified that he was not aware of Cummings' statement to the police, Cummings' statement certainly was discoverable. Moreover, in his own statement to the police on January 8, 1995, the petitioner stated that "[a] blak [sic] kid named Zeb came into the apartment and saw that the white guy was shot." Consequently, the petitioner was aware of Cummings' presence at the scene of the crime and could have instructed his attorney to contact Cummings. As for the petitioner's own testimony regarding the crime, it would defy logic to construe it as newly discovered.
As noted supra, the petitioner called DeBarros as a witness but he refused to testify.
Respondent's Exh. A.
Petitioner's Exh. 5.
Nonetheless, even if Cummings' testimony could be construed as newly discovered, the petitioner's actual innocence claim would still fail because he has not established by clear and convincing evidence that he is innocent of the underlying offense and that no reasonable fact finder would find him guilty of the crime. Cummings testified that he never saw the petitioner the night of the crime. This does not prove that the petitioner is innocent, as the petitioner, himself, has always admitted to being present at the scene of the crime and firing his gun at the victim three times. Additionally, Cummings testified that he was away from the apartment for forty-five minutes that night and that upon returning, he heard gunshots from the car. The petitioner testified that he left the apartment right after firing at the victim. Accordingly, it is plausible that Cummings never did see the petitioner that night but that, in and of itself, does not prove that the petitioner is actually innocent of the crime. Under the circumstances, the petitioner had the ability to shoot the victim and leave before Cummings actually reentered the apartment.
Cummings also testified that he first saw the victim lying behind a door to the apartment, that the victim was moaning and that he believed the victim was just beat up. This differs markedly from his statement to the police in which he stated that after hearing gunshots from the car, as he approached the apartment, he saw DeBarros and Santiago "pulling a white guy's body around the corner of the back door." Cummings has several felony convictions and pleaded guilty to hindering prosecution in connection with this crime, as he aided in disposing of the victim's body and car. This court does not find his testimony regarding the condition of the victim to be credible. In any event, regardless of whether the victim was still breathing after the petitioner shot him and left the scene of the crime, there is substantial evidence that the petitioner committed the crime of murder, either as an accessory or as a principal.
Respondent's Exh. A.
"This state . . . long ago adopted the rule that there is no practical significance in being labeled an `accessory' or a `principal' for the purpose of determining criminal responsibility." (Internal quotation marks omitted.) State v. Hart, 118 Conn.App. 763, 779, 986 A.2d 1058, cert. denied, 295 Conn. 908, 989 A.2d 604 (2010).
As noted supra, not all of the shots fired by the petitioner were nonlethal. The medical examiner reported that the bullet, which entered the victim's lower abdomen and was found lodged in the victim's right thigh, "[perforated] the lateral aspect of the spleen, the posteroinferior quadrant of the left kidney, the aorta just above the iliac bifurcation as well as the adjacent inferior vena cava." His report also indicates that there were only four entry gunshot wounds. The other participants in the crime gave sworn statements to the Waterbury police that the petitioner fired at the victim three times. Wright also stated in his sworn statement that while he and Santiago were disposing of the victim's body, Santiago gave him the gun used in the crime and told him that the petitioner wanted them to make sure the victim was dead, at which time Wright fired a single gunshot into the victim's head. In light of this evidence, it is unlikely that no reasonable fact finder would find the petitioner guilty of murder, either as an accessory or a principal. The petitioner has not proven his actual innocence.
Petitioner's Exh. 6, p. 6.
Petitioner's Exh. 6, pp. 6-7.
CONCLUSION
For all the foregoing reasons, judgment shall enter denying the petition for a writ of habeas corpus. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.