Opinion
CV144006576S
09-15-2017
Brian Niblack v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Brian Niblack, seeks habeas corpus relief from a total, effective sentence of fifty years imprisonment, imposed after guilty pleas to murder and escape from custody. Our Supreme Court affirmed the judgment of conviction on direct appeal, State v. Niblack, 220 Conn. 270, 596 A.2d 407 (1991) (Niblack I ).
In 1993, the petitioner filed his first habeas action in which he asserted that his defense counsel, Attorney Peter Blessinger, represented him ineffectively. Attorney Donald O'Brien represented the petition in that matter. The habeas court denied relief, Niblack v. Warden, Superior Court, Tolland, Judicial District, d.n. CV 93-1725, (July 31, 2002), Graziani, J. (Niblack II ). The Appellate Court affirmed that denial, Niblack v. Commissioner, 80 Conn.App. 292, 834 A.2d 779 (2003); cert. denied, 267 Conn. 916, 841 A.2d 219 (2004). Attorney Salvatore Adamo represented the petitioner for that appeal.
In 2006, the petitioner filed a second habeas petition attacking the representation of habeas appellate counsel, Attorney Adamo. Attorney Christopher Neary represented the petitioner in the second habeas action. Judge Fuger granted summary judgment in favor of the respondent and denied the petition, Niblack v. Warden, Superior Court, Tolland Judicial District d.n. CV 06-4000876, (June 26, 2009) (Niblack III ). The Appellate Court affirmed that decision, Niblack v. Commissioner, 132 Conn.App. 505, 33 A.3d 761 (2011); cert. denied, 303 Conn. 929, 36 A.3d 240 (2012).
The present case is the petitioner's third habeas action. He avers that appellate counsel for his direct appeal; first habeas counsel; and second habeas counsel all provided ineffective assistance. The court dismissed other claims pertaining to unrelated crimes for lack of subject matter jurisdiction because the petitioner completed service of the sentences imposed for those cases many years before initiating the present petition.
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, that his attorney's performance was substandard and that there exists a reasonable likelihood that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra .
This standard of reasonableness is measured by prevailing, professional practices. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation. Id.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the questions of counsel's competence. Pelletier v. Warden, 32 Conn.App. 38, 46, 627 A.2d 1363 (1993). In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1982). Reasonable probability means a probability sufficient to undermine confidence in the verdict. DaEira v Commissioner, 107 Conn.App. 539, 542-43, 946 A.2d 249 (2008), cert. denied, 289 Conn. 911, 957 A.2d 877 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id.
I
Ineffective Assistance re Appellate Counsel
As to appellate representation, the prejudice component of the Strickland standard refers to the outcome of the appeal rather than that of a retrial of the criminal case, Small v. Commissioner, 286 Conn. 707, 723-24, 946 A.2d 1203 (2008). Therefore, the petitioner bears the burden of establishing that, but for the purported deficiencies of then Attorney Gregory T. D'Auria, now Justice, the result of the direct appeal would have been more favorable.
The petitioner alleges that then Attorney D'Auria omitted reference to beneficial factual material in the appellate brief and failed to correct factual errors therein. However, the petitioner has failed to particularize these supposed omissions or inaccuracies in the amended petition or at trial. No legal expert at the habeas trial criticized appellate counsel's handling of the petitioner's direct appeal in any regard. Nor did any expert testify that the petitioner's appeal suffered prejudice in any way as required by the Strickland-Small criteria.
The court determines that the petitioner has failed to satisfy his burden of proving either prong of the Strickland-Small standard as to appellate counsel.
II
Ineffective Assistance re First Habeas Counsel
In count three, the petitioner submits that Attorney O'Brien performed deficiently in the first habeas action, Niblack II, by failing to raise issues that trial counsel, Attorney Blessinger, failed to provide the petitioner with paperwork to start his direct appeal and assist the petitioner in filing that appeal; failed to provide the sentencing court with a list of inmates who posed a potential danger to the petitioner if incarcerated in the same institution; failed to object to the absence of such a list; failed to seek to withdraw the guilty pleas based on that absence; misinformed the petitioner that the sentencing judge only had the power to recommend rather than compel Department of Corrections actions regarding his safety; and failed to assert the claim of ineffective assistance of appellate counsel discussed in Section I of this memorandum.
A
Having determined earlier that the petitioner failed to demonstrate any deficiency on the part of then Attorney D'Auria in the present habeas case, ipso facto, the petitioner cannot prevail as to this specification of ineffective assistance against Attorney O'Brien.
B
In Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), our Supreme Court recognized a purely statutory right to raise, in a subsequent habeas action, a claim of ineffective assistance on the part of previous habeas counsel in presenting claims of ineffective assistance of trial counsel. Id., 835. However, the petitioner's burden becomes a multi-tiered application of the Strickland standard by which allegations of ineffective assistance claims are gauged. Id., 842. To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his first habeas counsel was ineffective, and (2) that his trial counsel was ineffective. Id. Also, the petitioner must prove that, but for the derelictions of habeas counsel, he was prejudiced in the sense that the outcome of the habeas case was suspect, and that burden demands proof of the existence of a reasonable likelihood that the outcome of the original, criminal trial would have been different. Id., at 842-43. The Supreme Court described this double layered obligation as " a herculean task." Id., 843.
The remaining specifications of ineffective assistance by Attorney O'Brien relate to his purported failure to allege and prove that Attorney Blessinger rendered substandard representation by failing to intervene and insure that the sentencing judge instructed the court clerk to note on the postsentencing mittimus the names of inimical inmates.
Preliminarily, the court doubts that such an allegation is one for which habeas corpus relief is available. This transgression, if it occurred, is unrelated to the fact or duration of imprisonment and is unlikely to impair any cognizable liberty interest, Perez v. Commissioner, 326 Conn. 357, 370, 163 A.3d 597 (2017); Baker v. Commissioner, 281 Conn. 241, 248, 914 A.2d 1034 (2007); but see Anthony A. v. Commissioner, 326 Conn. 668, 166 A.3d 614 (2017). Additionally, the appropriate remedy would be for the criminal court to issue a revised mittimus to allay the petitioner's concerns. Assuming, arguendo, that the court has subject matter jurisdiction to adjudicate this type of claim of ineffective assistance of counsel, the court finds that the petitioner has failed to prove any prejudice simply because a different approach to the petitioner's request occurred.
The sentencing court asked Attorney Blessinger to prepare a letter identifying persons whom the petitioner feared and ordered the clerk to attach that document to the sentence mittimus. This was done. Attorney O'Brien testified at the present habeas trial that he declined to raise this allegation against Attorney Blessinger because it lacked legal merit. No legal expert testified to the contrary as to the actions or inactions of Attorney O'Brien or Attorney Blessinger on this issue.
Nor was evidenced adduced that any person on the list ever occupied the same facility so as to endanger the petitioner since his sentencing twenty-eight years ago. The court determines that the conduct of Attorney Blessinger, and derivatively Attorney O'Brien, fall within acceptable norms of advocacy for criminal defense and habeas counsel.
III
Ineffective Assistance Claim re Second Habeas Counsel
In the fourth count, the petitioner alleges that second habeas counsel, Attorney Neary, rendered ineffective assistance in Niblack III by failing to allege that Attorney D'Auria and Attorney O'Brien acted deficiently in Niblack II as described above in Sections I and II; and by failing to litigate properly the ineffective assistance of Attorney Adamo who handled the habeas appeal for Niblack II .
A
As explained above, under the Lozada holding, any ineffective assistance on the part of Attorney Neary is derivative of a finding of ineffective assistance on the part of Attorney O'Brien and/or Attorney D'Auria. Having determined in Section I and Section II A and B that those ineffective claims remain unproven, these specifications of ineffective assistance against Attorney Neary must also fail.
B
The last claim of ineffective assistance by Attorney Neary arises from the circumstance that the Appellate Court in Niblack II, 80 Conn.App. 292, 834 A.2d 779 (2003), declined to consider Judge Graziani's refusal to grant certification to appeal from his denial in the first habeas action because Attorney Adamo failed to discuss that threshold issue in the main brief, Id., 298. Attorney Neary presented this claim, unsuccessfully, before Judge Fuger in Niblack III .
Once again no legal expert testified that Attorney Neary's advocacy in the second habeas case was deficient in any way nor that the petitioner's case was prejudiced by Attorney Neary's purported delinquencies. Attorney Neary argued to the habeas court that Attorney Adamo's failure to raise the preliminary issue surrounding Judge Graziani's denial of certification was ineffective and that the respondent conceded as much.
The crux of Attorney Neary's argument was that prejudice should be presumed because Attorney Adamo entirely omitted from the main habeas appellate brief discussion of the absolutely essential threshold issue concerning the habeas court's abuse of discretion by denial of the petition for certification. In other words, before the Appellate Court could hear the merits of the petitioner's habeas appeal, Attorney Adamo needed to address Judge Graziani's refusal to grant certification to appeal and Attorney Adamo failed to do so in the main brief.
The respondent disagreed with Attorney Neary's per se prejudice analysis. Judge Fuger ruled that no " automatic" finding of prejudice to satisfy the Strickland test applied to the situation.
However, in the Niblack III appellate decision, the Appellate Court stated that it had, indeed, considered the merits of the petitioner's appeal in Niblack II, albeit with " cursory analysis, " Niblack v. Commissioner, 132 Conn.App. 505, 509, 33 A.3d 761. Having articulated that no presumed prejudice rule applied, the Appellate Court " carefully . . . reviewed the entire record, " Id., 511. " That review convinces us that the petitioner would not have prevailed on appeal if counsel had addressed the denial of certification issue in his principal appellate brief, " Id. The Appellate Court concluded that this outcome was not debatable among jurists of reason, Id.
That conclusion, after plenary review by the Appellate Court, eliminates any viable claim that the petitioner sustained prejudice derivable from Attorney Adamo's omission.
For these reasons, the court denies the amended petition for habeas corpus relief.