Opinion
No. CV03-004220
April 11, 2005
MEMORANDUM OF DECISION
The petitioner, Jeffrey Pierce alleges in his petition for a Writ of Habeas Corpus initially filed on November 17, 2003 and amended on November 16, 2004, that his 1999 conviction for one count of kidnapping in the second degree in violation of CGS § 53a-94, and one count of burglary in the first degree in violation of CGS § 53a-101 were obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Constitution of the state of Connecticut. He specifically claims to have been deprived of the effective assistance of Appellate Counsel, prior habeas counsel and to have been the victim of prosecutorial misconduct.
The petitioner also filed a count of ineffective assistance of trial defense counsel, however, this count was dismissed as res judicata since the petitioner had previously raised this claim in a habeas petition denied a year ago in front of Judge White.
This matter came on for trial before this Court on April 6, 2005. During the twenty-eight minute trial before this Court, the petitioner introduced no testimonial evidence and offered only the transcript of his trial, his previous habeas trial, and the decisions of the Appellate and Supreme Courts in his underlying criminal case into evidence. During the Respondent's presentation, the Court heard testimony from the petitioner's appellate counsel and his previous habeas counsel. As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a cast in the Judicial District of New Britain, under Docket Number CR98-177629 entitled State v. Pierce. The petitioner was charged with one count of kidnapping in the 2nd degree in violation of CGS § 53a-94, and one count of burglary in the 1st degree in violation of CGS § 53a-101.
2. Attorney Claude Chong represented the petitioner throughout these proceedings.
3. After a trial to the jury, the petitioner was convicted on both counts and sentenced by the Court, Gaffney, J. to a sentence of thirty years suspended after the service of twenty-five years.
4. The conviction was affirmed on appeal. State v. Pierce, 69 Conn.App. 516, reversed in part at 264 Conn. 914 (2002).
5. The petitioner was represented on appeal by Attorney Francis O'Reilly.
6. Additional facts shall be discussed as necessary.
Discussion of Law
It is important at the outset to understand a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial . . . Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994).
This case is a bit problematic in regards to drafting a memorandum of decision. There really is no dispute as to the salient facts in the case. The petitioner's main thrust is that the prosecutor at his original trial engaged in prosecutorial misconduct in the manner in which he made his closing argument to the jury. Since the record of trial stands unrebutted, it is clear that these statements contained in the prosecutor's closing-argument were, indeed, made. The petitioner, then, is in the position of arguing that these statements make out a case of prosecutorial misconduct such that reversal of his conviction is warranted. The respondent has raised the claim of procedural default in regard to this issue, because it is true that the prosecutorial misconduct claim is one that is normally pursued on direct appeal. It was not. Therefore, the respondent properly asserts that in order for the petitioner to prevail on that issue, he must show that there was a cause for this failure to raise the issue on direct appeal and that he was prejudiced thereby. In reply, the petitioner asserts that his appellate counsel was ineffective in not raising the issue and therein lies the cause. The first issue that must then be resolved in this habeas is the issue of the ineffective assistance of appellate counsel claim.
Deprivation of Effective Assistance of Appellate Counsel
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. It is indisputable fact that many times if one had foreknowledge of certain events; different courses might well have been taken. Likewise, a habeas court knowing the outcome of the trial "may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn.App. 253 at 264 (1979), cert. den. 243 Conn. 967 (1998). "A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to 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." Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317 (2000). This is particularly true when one is attacking the decision of appellate counsel to not go forward on an issue on appeal. "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." Jones v. Barnes, 463 U.S. 745 at 751-52 (1983). Simply because there is an appellate issue that could be raised does not necessarily mean that it should be raised. "There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review . . . A brief that raises every colorable issue runs the risk of burying good arguments in a verbal mound of strong and weak contentions." Jones v. Barnes, supra at 752-53. Moreover, it is inappropriate "for judges to second guess reasonable professional judgments and impose on appointed counsel a duty to raise every `colorable' claim suggested by a client." Jones v. Barnes, supra.
Even were this Court to disregard the admonition in Jones and enter the dangerous minefield of substituting its judgment for the judgment of the appellate counsel; there was a good reason for the appellate counsel to not raise the issue of prosecutorial misconduct. The error of the prosecutor, to the extent that it was an error at all, was never the subject of an objection by the trial defense counsel. This failure to preserve the issue would have proven a difficult hurdle to be overcome by appellate counsel in appeal, particularly in light of the decision in State v. Glenn, 194 Conn. 483 (1984) in which the Court had rejected a preserved claim of prosecutorial misconduct in circumstances more egregious than that presented in this case. Moreover, an unfavorable decision on this issue on direct appeal, even if on the basis that it was unpreserved, could have adversely affected the potential habeas petition alleging ineffective assistance of trial defense counsel. Given all of that, this Court simply cannot say that the decision by the appellate counsel to pass over the prosecutorial misconduct issue fell below the standard of reasonable performance.
In the instant case, the petitioner did introduce the transcript of his criminal trial thereby allowing the habeas court to ascertain exactly what the prosecutor said on the record at the criminal trial. The thrust of the petition is that since these comments are clearly in the realm of prosecutorial misconduct, the appellate counsel was ineffective for not making this an issue. However, it is clear that the appellate counsel chose not to raise the issue on appeal because, as he testified, he did not feel it arose to the level of prosecutorial misconduct. A habeas court does not sit as an examiner to grade the performance of appellate counsel. To submit a transcript and essentially ask the court to engage in a plenary critique of counsel's efforts and to then attempt to find something wrong is a misunderstanding of the role of the habeas court and the burden that rests with the petitioner. "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for, a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client." Strickland v. Washington, 466 U.S. 668 at 688 (1984). Justifiably, then the burden of persuasion in a habeas case rests with the petitioner because of the "fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence." Summerville v. Warden, 229 Conn. 397 at 419 (1994). There is, therefore, a strong societal interest "in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility." Id.
Moreover it is not even necessary to consider whether a trial counsel's performance was deficient if the habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) ('[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')" Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
This habeas court agrees with the appellate counsel and finds that the challenged statements by the state's attorney do not arise to the level of prosecutorial misconduct and that any attempt to raise this in the appeal would have been unsuccessful. Consequently, the decision by Attorney O'Reilly to not raise the issue was sound and appropriate.
The petition for a writ of habeas corpus is not a substitute for a direct appeal. "We have repeatedly and emphatically stated that habeas corpus cannot be used as an alternative to a direct appeal. Blue v. Robinson, 173 Conn. 360 (1977); Vena v. Warden, 154 Conn. 363 (1966); Wojculewicz v. Cummings, 143 Conn. 624 (1956)." What this means is that the petitioner cannot, as a sole basis for the granting of the habeas petition, allege that he was convicted as a result of an issue that he could have raised on direct appeal. However, he "may collaterally raise federal constitutional claims in a habeas corpus proceeding even though he has failed to appeal his federal constitutional claims directly . . . if he alleges and proves, by a fair preponderance of the evidence, facts which will establish that he did not deliberately bypass the orderly procedure of a direct appeal." Vena v. Warden, 154 Conn. 363 at 366 (1996).
This Court recognizes that the "deliberate bypass" standard has been supplanted by the "cause and prejudice" standard. See Johnson v. Commissioner of Correction, 218 Conn. 403 (1991).
It is clear in the instant case that the petitioner could have raised the issue of prosecutorial misconduct in his direct appeal. It is equally clear that a decision was made by appellate counsel not to raise that issue. Therefore, this Court will not even consider an attack upon the petitioner's conviction on the direct ground that there was prosecutorial misconduct at his trial. Notwithstanding this, however, the petitioner has alleged that he was denied the effective assistance of appellate counsel. Further, the petitioner alleges that the deficiency of performance by his appellate counsel was in not raising the prosecutorial misconduct issue at the direct appeal. This is an issue that can, and indeed must be raised, if at all, through the filing of a habeas petition. "When a petitioner raises a claim of ineffective assistance of appellate counsel because his attorney did not raise an issue on direct appeal, the deliberate bypass standard should be utilized . . . [However] any claim invoking ineffective assistance of appellate counsel automatically satisfies the deliberate bypass requirement." Valeriano v. Bronson, 209 Conn. 75 at 85 (1988).
See the comment made in footnote 4.
The standards for effectiveness of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984) apply with equal force to appellate counsel. In order to prevail in the instant habeas petition, then, the petitioner must prove first that he was denied the effective assistance of appellate counsel in that not only could his appellate counsel have raised the prosecutorial misconduct issue on direct appeal, they should have done so. This will necessarily require a showing that his appellate counsel's performance "was so deficient that it fell below the standard of reasonably effective assistance; and, . . . that these errors deprived the defendant of a fair appeal and caused an unreliable conviction to stand." Valeriano v. Bronson, 209 Conn. 75, at 82 (1988). Then, the petitioner must prove that if the prosecutorial misconduct issue had been raised on direct appeal, there was a reasonable likelihood that he would have prevailed upon that issue on direct appeal.
It is doubtful that the petitioner would have prevailed on the issue of prosecutorial misconduct, even had it been raised in his direct appeal. First of all, the allegations of prosecutorial misconduct extend only to certain statements made by the Assistant State's Attorney in his argument, and as has been previously noted, the petitioner's trial defense counsel did not object to any of these statements at the time. "[N]o objection was made following the remark, suggesting defense counsel had not found the statement sufficiently prejudicial to require an immediate curative instruction from the court . . . Moreover, the prosecutor's remark, although improper, was a small part of a very long closing argument." State v. Falcone, 191 Conn. 12 at 23 (1983). This failure to object was a major, although not necessarily fatal, impediment to an appeal. "A defendant must avail himself of the opportunity to make an objection and if he `does not avail himself of the opportunity, he must be holden to a waiver of the objection. Otherwise he would be permitted to lie by and speculate upon the chances of a verdict, and that cannot be tolerated.' State v. Tuller, 34 Conn. 280, 295." State v. Evans, 165 Conn. 61 at 66 (1973). With an unpreserved objection, "[t]here appear then, to exist only two situations that may constitute `exceptional circumstances' such that newly raised claims can and will be considered by this court. The first is . . . where a new constitutional right had arisen between the time of trial and appeal . . . The second `exceptional circumstance' may arise where the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial." State v. Evans, supra at 70 (1973). Only the latter "exceptional circumstance" could have been used to support an appeal in the petitioner's case.
"In argument before the jury, counsel may comment upon facts properly in evidence and upon reasonable inferences drawn therefrom. United States v. Dibrizzi, 393 F.2d 642 (2nd Cir.); CT Page 6187 State v. Evans, 165 Conn. 61, 71, 327 A.2d 576. Comments to the jury will not constitute error unless they are prejudicial and deprive the defendant of a fair trial. Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431. Moreover, the comments must be viewed in the context of the entire trial. United States v. Phillips, 482 F.2d 191 (8th Cir.), cert. den. 414 U.S. 1114, 94 S.Ct. 846, 38 L.Ed.2d 741." State v. Kinsey, 173 Conn. 344, 348 (1977). The prosecutor is alleged to have engaged in prosecutorial misconduct by: vouchsafing for the veracity of the state's witnesses. Despite the impassioned argument of petitioner's counsel at the habeas trial, that is not what happened. It must be noted that in reviewing the issue of prosecutorial misconduct, the Connecticut Supreme Court has accepted "the practice of the majority of jurisdictions in according the absence of bad faith by the prosecutor considerable weight, depending upon the circumstances of the case." State v. Hafner, 168 Conn. 230, 251 (1975). "While bad faith by a prosecutor, if present, must be accorded considerable weight in a given case, that is not to say that a showing of good faith on his part is determinative." State v. Glenn, 194 Conn. 483, 491-92 (1984). The prosecutor does not personally guarantee the veracity of these witnesses; he suggests that it is their testimony, not the testimony of the defendant that is the more believable. "While the privilege of counsel in addressing the jury should not be too closely narrowed or unduly hampered, it must never be used as a license to state, or to comment upon, or to suggest an inference from facts or to present matters which the jury have no right to consider. State v. Ferrone, 96 Conn. 160, 169 (1921). Nevertheless, in consideration of the isolated nature of the comments, even assuming them to mischaracterize the evidence, in relation to the trial as a whole, it is most unlikely that the Supreme Court would have even entertained the unpreserved claim, much less afforded any relief.
Finally, the standard instructions by the trial judge would have operated to ameliorate, if not eliminate, any misstatements that may have been made by the prosecutor. "Prosecutorial misconduct generally falls within one of three categories: `those comments whose effects may be removed by appropriate instructions . . . those which are flagrant and therefore deny the accused a fair trial,' (citations omitted) and those `remarks deliberately intended to undermine the rulings of the trial court to the prejudice of the defendant.'" State v. Reid, 193 Conn. 646 at 665 (1984).
Appellate Counsel must carefully pick the ground upon which he or she elects to stand and fight. "One of the first tests of a discriminating advocate is to select the question, or questions, that he will present orally. Legal contentions like the currency depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one. . . . [E]xperience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one." Justice Jackson, "Advocacy before the United States Supreme Court," 25 Temple L.Q. 115 at 119 (1951). This Court specifically finds that the count alleging ineffective assistance of counsel is not proven. Consequently, the defense of procedural default raised by the respondent is found to be valid. Without a finding of ineffective assistance of appellate counsel, the cause for failing to raise the issue on direct appeal goes away. More pointedly, as the Court finds that such an issue would have been decided adverse to the petitioner, even had it been raised, there is no prejudice either. This effectively resolves Count I as well as Count III of the amended petition.
The final issue, set forth in Count IV, alleges ineffective assistance of habeas counsel. This is easily and summarily disposed of. The petitioner has failed to introduce any evidence upon which this Court can make a finding of fact that would suggest that Attorney Haims was ineffective in his representation of the petitioner at his original habeas trial. Consequently, Count IV is dismissed as well.
Accordingly, the Petition for a Writ of Habeas Corpus is denied.
S.T. Fuger, Jr., Judge