Opinion
No. CV06-4001372
November 23, 2009
MEMORANDUM OF DECISION
THE COURT: All right. We're back on the record regarding Mr. Parrott v. Warden. And the Court has reviewed the exhibits or those portions which the Court deems relevant, as well as considered the evidence presented and the arguments of counsel.
With regard to this claim, the Court notes the following. At the outset, the Court dismissed Count 1 as a successive petition for reasons indicated earlier and will not elaborate now.
Toward the end of the petitioner's case, the Court accepted the withdrawal of Count 3, which leaves Count 2 as the essence of the petitioner's claim.
The Court makes the following findings. The petitioner commenced this petition sometime in 2006, claiming ineffective assistance of counsel. This matter proceeded to trial today.
With regard to the underlying case or cases giving rise to this petition, the Court notes that the petitioner was originally charged in the Judicial District of Hartford under Docket No. CR98-526718 in which he was found guilty in a trial by jury at that — of a number of offenses before the Honorable Judge John Mulcahy.
The petitioner at that time was represented by Attorney Gerald Klein of Hartford, Connecticut. The petitioner was convicted of one count of assault in the first degree, in violation of Connecticut General Statutes Section 53a-59(a)(5); one count of burglary in the first degree, in violation of Connecticut General Statutes Section 53a-101(a)(1); criminal possession of a pistol, in violation of Connecticut General Statutes Section 53a-217c; and attempt to commit robbery in the first degree, in violation of Connecticut General Statutes Section 53a-49 and 53a-134(a)(2)
Thereafter, the petitioner was sentenced as follows. The petitioner was sentenced on the charge of assault in the first degree to a term of imprisonment of seventeen years; on the charge of burglary in the first degree to a term of imprisonment of seven years, consecutive to the original assault count.
Of note, the petitioner was also acquitted of a charge of assault in the first degree.
The petitioner was sentenced to a term of imprisonment of seven years on the attempt to commit robbery in the first degree, consecutive with the two prior sentences referenced. Lastly, the petitioner was sentenced to a term of imprisonment of three years, consecutive to certain of the offenses which I've referenced.
Some of these charges involved mandatory minimums. Suffice to say, the petitioner was sentenced to a total effective sentence of twenty-seven years state's prison.
Thereafter, the petitioner appealed his case to the Appellate Court, which affirmed — actually, he appealed to the Appellate Court; but the Supreme Court took the case on direct appeal, and a decision by Justice Vertefeuille affirmed the conviction in the trial below and found no error.
Following that, the petitioner did commence a previous habeas corpus petition on or about September 15, 2003, and at that time, the petitioner was represented by Attorney Margaret Flynn. In that case, the petitioner alleged ineffective assistance of counsel of his trial attorney, Gerald Klein.
The matter went to hearing before the Honorable Judge Stan Fuger on February 9, 2006, and following a bench trial, Judge Fuger denied the petition.
Thereafter, the petitioner appealed his case to the Appellate Court. In a decision reported at Parrot v. Commissioner of Correction, 107 Conn.App. 234, 2008, in a decision by Judge West, the Appellate Court affirmed the decision by the trial Court in the habeas matter before Judge Fuger. The Court finds that in the appeal on the habeas petition, Mr. Parrott was represented by Attorney David DeRosa of Naugatuck, Connecticut.
With regard to this claim, the petitioner submitted a number of documents into evidence, including appellate briefs and — from both the appellee and appellant, as well as reply briefs, in addition, the record from the underlying appeal from the habeas case, as well as supplemental briefs.
The respondent has introduced a number of exhibits, many of which are transcripts from the underlying trial in the matter of State v. Parrott. In addition, the respondent has admitted into evidence a copy of the decisions by the Supreme Court, the Appellate Court, and the Superior Court regarding the claims referenced brought by Mr. Parrott.
Here, the factual bases of the jury's conviction are set forth in the appeal, and in particular, actually, the Supreme Court decision at length between Pages 279 and 282.
In addition, Judge Fuger in his memorandum of decision incorporates that recitation of facts in Judge Fuger's findings of fact at Paragraphs 2 through 7 of his reported decision. Actually, it's an unreported decision involving the claim of Parrot v. Commissioner of Correction, CV03-0004158.
The Court need not recount and will not recite the facts yet again but would direct the parties' attention to the factual summaries that are referenced.
Suffice to say, here, in the one count which is before the Court, the petitioner by way of amended complaint dated May 28, 2009 alleges ineffective assistance of his appellate attorney, Mr. DeRosa, claiming in Paragraphs 27 through 30 the following: that Mr. DeRosa was ineffective for failing to raise all possible issues for appeal, in particular, whether or not the trial Court had sufficient evidence before it to determine that petitioner lacked the requisite mental state to form the specific intent needed for the jury to find him guilty of the crimes as charged; that he failed to raise claims for appeal involving the jury charge on both general and specific intent crimes; that he failed to research for appeal whether or not there was sufficient evidence to determine that petitioner lacked the requisite mental state to form the specific intent needed for the jury to find him guilty of the crimes as charged.
And in these paragraphs, essentially, he's set forth the same claim, although reformulated somewhat, all premised upon the theory that Attorney DeRosa failed to research and brief and argue jury charge issues having to do with specific and general intent.
Suffice to say, on the issue of this claim, as in any claim for ineffective assistance of counsel, all counsel are guided by the accepted law, specifically in the area of ineffective assistance of counsel. That law was certainly adequately set forth by the United States Supreme Court in the case of Strickland v. Washington, wherein, the petitioner, in order to prevail in a case of ineffective assistance of counsel, must prove both deficient performance and prejudice. Strickland can be found at 466 U.S. 668, a 1984 decision.
Here in Connecticut, the petitioner is indeed required to prove both deficient performance and prejudice. See Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 2005, cert. denied, 546 U.S. 1187, 2006.
If there is a deficiency in proof on either prong, the claim must necessarily fail; so the Court need not address issues of deficient performance if indeed the Court finds no prejudice and vice versa.
Here, it's claimed that Mr. Parrott's appellate advocate was ineffective. And our Court of Appeals in Small v. Commissioner of Correction, 286 — actually, our Supreme Court — pardon me — in Small v. Commissioner of Correction, 286 Conn. 707, 721 to 24, in 2008 has held, quote, "When a petitioner is claiming ineffective assistance of appellate counsel, his burden is to prove that there is a reasonable probability that but for appellate counsel's error or errors, the petitioner would have prevailed in his direct appeal."
The Connecticut Appellate Court has stated in Pierce v. Commissioner of Correction, 100 Conn.App. 1, at Page 11, cert denied, 2007, quote, "While an appellate advocate must provide effective assistance, he is under no obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of bearing good arguments . . . in a verbal mound made up of strong and weak contentions . . . Indeed, experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue, if possible, or at most, on a few key issues.
Here, the Court heard testimony today from Mr. Gerald Klein, the petitioner's trial counsel, and also testimony from Attorney David DeRosa.
With regard to the testimony of Mr. Klein, the Court will note the following, as relevant on these claims. It's clear that after Mr. Klein began representing Mr. Parrott, he obtained all relevant reports, records, evidence against his client, and developed a defense strategy. The chosen defense between he and his client, Mr. Parrott, was a defense of alibi.
It is clear from the outset that Mr. Parrott never admitted being present at the time of the crime and instead indicated that he was with a lady friend; and the case was based upon a mistaken identity, or the defense was based upon that theory.
The Court accredits Mr. Klein's testimony as an experienced attorney with over one-hundred jury trials, in excess of a number of years as an experienced criminal practitioner.
Attorney Klein received his undergraduate degree in 1967 from the University of Florida and then his law degree from the University of Baltimore College of Law thereafter.
At the time he undertook to represent Mr. Parrott privately, he had a substantial criminal practice, along with experience at jury trials.
The Court accredits Mr. Klein's testimony that although he was aware of some history of past drug use by the petitioner, including a potential stay at Cedarcrest Hospital, he did not consider advancing any defense which involved intoxication or diminished capacity by virtue of voluntary intoxication of drugs or any substances.
To accredit Attorney Klein's statement, it would have been ludicrous to so advance such a claim in light of the fact that a claim of alibi was being advanced.
This statement by counsel recognizes the practical awkwardness, if not logical inconsistency, of claiming on the one hand that his client was not present and in fact was somewhere else, but in the alternative, if the jury finds that he was present, he was acting with some type of diminished capacity.
The attorney was not able to recall such an instance where any such defense was advanced, let alone advanced successfully. It was a tactical decision by the attorney not to advance any defense premised upon voluntary use of drugs or intoxication.
This is particularly borne out by examination of Respondent's Exhibit C, which is a transcript of proceedings at trial before Judge Mulcahy, where, on the record, at Pages 35, 36, and 37, in colloquy between Mr. Klein, the Court, and indeed, Mr. Parrott himself, Mr. Klein indicates for the record that he's not pursuing any defense and it was Mr. Parrott's desire not to pursue any defense which would, in essence, admit Mr. Parrott's presence at the time of the event.
Clearly, there is reference to not advancing an insanity defense, but the verbal testimony here today by Attorney Klein was that the petitioner would be in the same logical conundrum or Catch-22 had he sought to advance a defense of voluntary intoxication which would have necessarily involved admitting presence, which, according to the attorney, the petitioner was unwilling to do.
This Court cannot conclude that the strategy advanced by Attorney Klein was unsound or unreasonable.
What's more, at trial, the defense, in fact, produced a witness, Ms. Whittaker, who testified to the presence of the petitioner at the time of the events complained about at another location.
The petitioner did not testify in the underlying trial. He had felony history and chose not to testify.
There being the one defense strategy advanced at trial, argued before the jury, the attorney did not submit any request to charge to the Court on the issue of any specific intent versus general intent issues on any of the crimes for which Mr. Parrot was charged.
Again, the Court accredits the testimony of Attorney Klein that it would not have made any sense to do so, given the defense posture at trial.
With regard to the appeal, the Court finds that at the time he undertook the appeal as a Special Public Defender, Mr. DeRosa had experience as an appellate advocate. He had attended the Boston College, where he obtained his undergraduate degree in 1995. Thereafter, he attended Quinnipiac College or University, obtaining a law degree in 1998.
This was approximately Mr. DeRosa's fifth appeal. He had a number of appeals at that time, and as of this date, I believe he testified he has done eighteen to twenty more appeals.
With regard to this case, the Court accredits Attorney DeRosa's testimony that it is an appellate attorney's job to review the record, review the transcript, review all the evidence from the trial below — and in this view, Mr. DeRosa certainly met or exceeded the standard of care required of an appellate attorney — and it was his custom to go down to court, inspect the file, inspect the exhibits, and actually speak with the client, which Attorney DeRosa indicated he did.
The Court accredits Attorney DeRosa's testimony that it would not be usual to speak with the underlying attorneys in the cases; however, here, Mr. DeRosa had some conversation with both Attorneys Flynn and Klein, although not of any particular substance.
The Court accredits Attorney DeRosa's testimony that he did not speak to Mr. Parrott until he reviewed all the information and therefore had a fund of knowledge to have an intelligent discussion with Mr. Parrott.
Thereafter, the Court accredits Mr. DeRosa's testimony that he reviewed the transcript for what he viewed were the best possible claims to prevail. In the words of the attorney, to seek either a new trial or a reduction in the time which Mr. Parrott is serving.
After doing a copious review of the record, Attorney DeRosa sought to advance two claims arising from the habeas petition, both of which he argued before the Appellate Court, without success.
Firstly, in a very general sense, Attorney DeRosa raised an issue of a potential — strike that.
Attorney DeRosa essentially — in the maximum number of pages allowed in the Appellate Court rules of thirty-five pages, advanced, essentially, two claims, one involving a potential conflict of interest by the attorney, Mr. Klein, in representing Mr. Parrott. The second involved a claim of prosecutorial misconduct for the Assistant State's Attorney's reference to the petitioner's failure to testify at trial and hence, invoking his right against self-incrimination.
The attorney, Mr. DeRosa, believed that these claims were, indeed, strong and could potentially lead to a new trial.
The Court heard testimony today regarding possible review of claims involving impropriety in jury instructions and the absence of any instructions on specific intent on certain of the crimes for which Mr. Parrott was charged and convicted. Frankly, the Court found confusing Attorney DeRosa's testimony regarding exactly what he considered and when, but the Court accredits his testimony insofar as Attorney DeRosa said, candidly, had he briefed or argued any issue involving jury instructions and the issue specifically of the Court's instruction on specific intent and general intent in the context of any intoxicated state or evidence of drug use, in his opinion, those claims would not likely have prevailed.
And actually, in his opinion, the testimony of the attorney was, he would, if presented with the same set of facts at this stage, not argue any such claims. It was for the appellate attorney to decide which issues he would advance.
And in terms of this Court, with regard to the decision by the Supreme Court in Small v. Commissioner, there is no evidence before this Court that had Attorney DeRosa briefed the issues the petitioner complains about that the result would have been any different.
There's no evidence before this Court upon which this Court can conclude that Judge Mulcahy's instruction — whether taken apart or specifically — on any of the crimes for which the jury was charged and for which Mr. Parrott was convicted were in any way erroneous.
It is notable that appellate attorneys are not required to brief or argue every conceivable issue. That would be a virtual impossibility, especially given the page limitation in the briefs, which the Court indicated petitioner's counsel maximized. In addition, there were reply briefs.
And so it was clear that the two issues that were advanced — in counsel's view and with permission of the Court — were sufficient to require what this Court views to be extraordinary briefing.
With regard to the specific allegations that were referenced earlier or the complaints of deficient performance, this Court has no basis to conclude that Attorney DeRosa's briefing was in any way deficient; but moreover, there is no way to conclude there exists prejudice to the petitioner by virtue of the jury charge given.
There is no evidence that the charge was inaccurate, insufficient, or improper under law.
This Court makes a finding that it would have been peculiar indeed for appellate counsel to have argued the issue that the trial Court should have considered the evidence of intoxication when indeed it was the trial attorney and the then defendant's own desire to advance the issue and defense of alibi.
The Court certainly could not reward the petitioner for a claimed error which the trial attorney and the defendant led the Court into. That is a seminal principle of fairness and due process.
The Court acknowledges there was evidence in the trial, particularly by the witness Juan Maldonado, that the petitioner appeared in some type of altered state at the time of the alleged incident. Whether or not that evidence along with potential other evidence in the record rises to the level of sufficiency to warrant any such instruction involving diminished capacity or voluntary intoxication is very dubious, and this Court won't reach to that length.
So the Court finds no deficiency, no prejudice with regard to the approach taken in selecting the issues, in researching the issues, briefing the issues, and arguing the issues undertaken by Attorney DeRosa. The Court cannot conclude there was deficient performance.
This Court makes a finding that Attorney DeRosa's conduct was indeed sufficient, met the standard of care applicable to lawyers in the area of appellate advocacy, and in particular, those skilled in the area of the criminal law.
The Court does not find any deprivation of rights, either under the State or Federal Constitution, to lead the Court to conclude that the integrity or justice regarding his appeal was in some way or manner undermined. Just as trial counsel is accorded latitude in the tactics he pursued, the appellate attorney, as well, is accorded latitude in the issues with which he selects to present to the Court of Appeals.
And barring some fundamental unfairness or impropriety or certainly deficient performance — under Strickland v. Washington — or prejudice and meeting the standards set forth by our Court in Small v. Commissioner, this Court will not grant habeas relief.
And for those reasons under the foregoing circumstances, the petition for writ of habeas corpus is denied. Judgment may enter in favor of the respondent.
If an appeal is to ensue, I am requesting petitioner's counsel prepare a judgment file within thirty days.
I'm requesting that notice of appeal rights be prepared for the petitioner. The record shall reflect the clerk is preparing those at this time. Notice of rights shall be handed to the petitioner, in accordance with law, and the record shall reflect the Marshal is doing that at this time.
I am requesting that an on-bench ruling and transcript thereof be prepared for my signature. It shall constitute a memorandum of decision, and I will sign off on same.
And I should have indicated this earlier, I do appreciate counsel's attention in this matter. This was unusual, given the withdrawal and also the deleting of the first count at the outset; but nonetheless, the Court entertained a full trial on the merits and stands by this decision.
With that, this matter is concluded. Court is adjourned until tomorrow morning, 10 a.m. (The matter was concluded, and court was adjourned for the day.)
HABEAS TRIAL DISMISSAL OF COUNT 1
THE COURT: Also, this case presents multiple counts, Counts 1 through 3, and it's the Court's view that any further claim of ineffective assistance of counsel levied against the warden in connection with the trial conduct of Mr. Klein constitutes a successive petition, and the count should be dismissed.
Inasmuch as in this Court's view, the petitioner had a full and fair opportunity to file a claim of ineffective assistance of counsel, did so on a prior occasion, had a full hearing on the merits of that claim, and there is no indication whatsoever as to why any claim of ineffective assistance of counsel sought to be advanced at present could not have been advanced on the prior occasion.
In this Court's view, there are no new facts or new evidence articulated which would overcome dismissal of the count against Mr. Klein under these circumstances.
The Court acknowledges there has been some pleadings back and forth, including a motion for more specific statement. However, the response to the motion for more specific statement regarding the allegations set forth in Count 1 of the amended petition dated May 28, 2009, again, merely set forth additional facts on the same theory of ineffective assistance of counsel previously advanced by Mr. Parrott in the matter of Parrott v. Commissioner of Correction, Docket No. CV03-0004158, which is, as I referenced earlier, a matter of decisional law in a decision by the Honorable Court, Judge Fuger, dated March 7, 2006 denying the petition on the merits.
The petitioner at that time did advance a claim of ineffective assistance of counsel. That decision was affirmed on appeal in the matter of Parrott v. Commissioner of Correction, 107 Conn.App. 234, a 2008 decision of the Appellate Court, where the Court found no error in the trial Court's finding.
Pursuant to Practice Book Section 23-29(3) and (5), the Court dismisses Count 1 inasmuch as it does present the same ground as the prior petition previously denied and fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition.
I'll hear anyone on that particular ruling, but the record is the record; and again, if anyone wishes to comment or advance any argument on that, I will hear it at this time.
ATTY. JUNIEWIC: Your Honor, if I may.
THE COURT: Certainly.
ATTY. JUNIEWIC: Again, I realize you can no longer take exceptions in the State of Connecticut, but I probably will be looking at the appropriate avenue to deal with the Court's decision. Just for clarification, despite the fact that there is no motion to dismiss filed by the respondent, is it my understanding that the Court sua sponte dismissed Count 1 of petitioner's amended petition?
THE COURT: Yes; pursuant to Practice Book Section 23-29, without the taking of evidence.
As I review the allegations in Count 1 and all of the paragraphs — in particular, the gravamen of the essence of the ineffective assistance claims sought to be advanced here are articulated in Paragraphs 17 through 23.
Suffice to say, trial counsel is alleged to have conducted an insufficient investigation, failed to call witnesses, failed to produce experts, failed to request a jury instruction, failed to object to jury instructions, failed to submit jury instructions. Counsel was ineffective for not presenting mitigating factors at sentencing. All of those claims are sought to be advanced here.
This Court, within its powers under the Practice Book, has the authority, even in the absence of a motion to dismiss, to dismiss any such count by definition that does not come into conformance with Section 23-29(3) of the Practice Book, which I had already articulated.
ATTY. JUNIEWIC: And, Your Honor, I would just state for the record that the claims in petitioner's second amended petition dated May 28, 2009 are singularly different and distinct from the ones in the prior habeas.
The ones in the prior habeas only dealt with two issues. One was the lack of an alibi witness, and the other was the lack of trial counsel to file a motion in limine regarding the identification of the defendant.
So therefore, Your Honor, the claims are extremely distinct, different, and separate and should be litigated in this petition and should not be subject to a motion to dismiss by the Court.
THE COURT: By way of further articulation and in all respect to counsel, the Court recognizes that there are different facts which underpin these allegations, which, in fact, were not previously litigated.
That notwithstanding, this is a situation, frankly, in the case of Sanders v. United States, 373 U.S. 1, 1963 and Iasiello v. Manson, 12 Conn.App. 268, 272; cert denied, 205 Conn. 811, a 1987 decision of the Connecticut Appellate Court, which underscores — as is set forth in the special defense articulated by the respondent — that the Court should not — or rather a claim should be dismissed because the petition advances a claim that offers evidence that essentially was available at the time of the prior petition.
And the case actually uses the inverse or negative language, The Court should not permit a claim unless there is new evidence or evidence was not reasonably available.
To permit this claim to go forward at this time would, in essence, literally permit, encourage the successive filing of petitions on the same theory of ineffective assistance of counsel ad infinitum, and although the right to bring claims is broad, indeed, the right to bring the same theory of ineffective assistance of counsel is not unfettered and — frankly — comports with due process concepts of fairness. To accept the petitioner's version, he could file yet another claim of ineffective assistance of counsel on yet other theories.
There's no facts articulated in the amended petition that were not available or could not have been available through any due diligence at the time of the prior petition. And at some point, there needs to be an end to litigation, and that's why the cases support this particular Practice Book rule; and that's why we have the rule.