Opinion
No. CV05-4000609 S
November 24, 2010
MEMORANDUM OF DECISION
The petitioner initiated this matter by way of a petition for a writ of habeas corpus filed on August 4, 2005. After the appointment of a special public defender, the petition was amended for the second and final time on June 22, 2009. The second amended petition enumerates five claims: first, that the petitioner's rights to due process and to a jury trial were violated; second, ineffective assistance of trial defense counsel; third, ineffective assistance of appellate counsel; fourth, ineffective assistance of first habeas counsel; and fifth, ineffective assistance of second habeas counsel. The respondent's return denies the petitioner's material allegations and that he is entitled to habeas corpus relief, and raises procedural default as to the claim in count one. The petitioner's reply denies that he has procedurally defaulted and asserts ineffective assistance of counsel as the cause and prejudice for any such procedural default.
The paragraph asserting procedural default indicates that the defense is raised as to the claim in count three. The paragraph is inserted in between responses to counts one and two. Furthermore, procedural default is a proper defense to the claim in count one. The court will treat the reference to count three as a scrivener's error, as does the petitioner's reply to the return.
The respondent filed a motion to dismiss counts one through four, which was objected to by the petitioner. The parties appeared before the court on August 21, 2009, at which time arguments were presented on the motion to dismiss and the objection thereto. The parties then proceeded to the trial on the merits and presented testimony from Attorney Francis O'Reilly, Public Defender Claude Chong, and Attorney Owen Chace. Additionally, the parties entered various documents — transcripts and copies of briefs and decisions — into evidence. The court permitted the parties to file simultaneous post-trial briefs thirty days after receipt of all habeas trial transcripts. On August 3, 2010, counsel for the respondent filed a notice with the court that receipt of the transcripts was complete on August 2, 2010, and that the simultaneous post-trial briefs would therefore be due no later than September 1, 2010. The respondent's brief was filed on November 3, 2010; the petitioner's brief was filed on November 17, 2010.
For the reasons discussed more fully below, the petition for a writ of habeas corpus is denied.
Findings of fact
The Appellate Court's decision on the petitioner's direct appeal recites the following facts, which are not at issue. "On August 11, 1998, the victim drove her Plymouth Voyager minivan to the Shaw's Supermarket in Newington to purchase groceries. The victim was alone and spent approximately one-half hour inside the store. The victim then returned to her vehicle, loaded her groceries and got in the driver's seat. The [petitioner] was hiding in the backseat of the vehicle and, upon the victim's entry into the vehicle, placed a knife to her side. The knife's blade was five to six inches in length and was beveled.
"The victim testified that she accidentally had left the vehicle's sliding door unlocked because it has to be locked manually, and she had forgotten to lock the vehicle manually after someone else had driven it on the previous day."
The [petitioner] told the victim to `do as I say and you will not be hurt.' The [petitioner] ordered the victim to drive to Glastonbury and gave her specific directions to follow. The [petitioner] directed the victim to a park on a dirt road in East Hartford. The road was blocked by a gate and the victim stopped the vehicle. The [petitioner] ordered the victim to accompany him into a wooded area. The victim refused and told the [petitioner] that she did `not feel like getting harmed or raped by [the petitioner].' The [petitioner] stated that he did not intend to harm the victim, but he did not want the victim to see which way he would be going in the wooded area to aid in his escape. The victim suggested that she would look away while the [petitioner] fled into the wooded area. The [petitioner] `seemed satisfied with that,' and the victim did not turn around until she was certain that the [petitioner] was gone.
"The victim then drove to the Newington police department and reported the incident. The victim described the man who perpetrated the crime as having shoulder length, dirty blond hair and wearing a baseball cap, blue jeans and a shirt. A detective prepared a composite sketch drawing based on the victim's description. Thereafter, flyers were printed based on the composite sketch drawing. The flyers were shown to members of the Newington police department, including Officer Jeannine M. Candels and her partner, Officer Timothy A. Walsh, who both recognized the sketch as depicting the [petitioner]. They then went to a motel in Newington, where they believed the [petitioner] was currently living.
"The officers interviewed the [petitioner] and he gave them a full statement in which he confessed. He signed the statement, and his version of the events matched that given by the victim. The [petitioner] also gave the officers a baseball cap that he had been wearing during the event, and the officers took a picture of the [petitioner] wearing the hat. The next day, the victim returned to the Newington police department and was shown a photographic lineup consisting of eight photographs, including the [petitioner]. The victim recognized the [petitioner] and pointed him out as the man that she had described three days earlier." (Footnote renumbered.) State v. Pierce, 69 Conn.App. 516, 519-20, 794 A.2d 1123 (2002).
The petitioner was convicted by a jury of kidnapping in the second degree in violation of General Statutes § 53a-94 and burglary in the first degree in violation of General Statutes § 53a-101(a)(1). He was sentenced to a total effective term of thirty years imprisonment, execution suspended after twenty-five years and five years probation. Additionally, the petitioner was ordered to register as a sexual offender pursuant to General Statutes § 54-254(a).
The petitioner's first claim on direct appeal was that the trial court abused its discretion when it ordered him to register as a sex offender. Id., at pg. 520. After a lengthy and thorough analysis, the Appellate Court affirmed the ". . . judgment of conviction . . . and . . . reverse[d] only as to the requirement that the [petitioner] register as a sexual offender and the case is remanded for a hearing for the sole and specific purpose of determining whether the [petitioner] committed the offense of kidnapping in the second degree in violation of § 54-94 `for a sexual purpose' as provided in § 54-254(a)." Id., at pg. 538.
The Supreme Court granted the state's petition for certification to appeal from the Appellate Court's decision. State v. Pierce, 261 Conn. 914, 806 A.2d 1056 (2002). The Supreme Court ultimately concluded that the Appellate Court erred when it applied the plain error doctrine to the petitioner's claim on appeal. State v. Pierce, 269 Conn. 442, 453, 849 A.2d 375 (2004). The Supreme Court the noted that ". . . the trial court acted pursuant to a presumptively valid statute in accordance with its express provisions. In other words, by finding that the [petitioner] had committed a felony for a sexual purpose, the trial court complied with § 54-254(a) as written. Accordingly, [the Supreme Court was] not persuaded `that the [petitioner] ha[d] illustrated the existence of a manifest injustice, such that [the Supreme Court] would apply plain error review.' State v. Lemoine, 256 Conn. 193, 208, 770 A.2d 491 (2001)." State v. Pierce, supra, 269 Conn. 454.
The petitioner initiated his first habeas corpus petition after the Appellate Court's decision in State v. Pierce, but prior to the Supreme Court granting the state's certification to appeal. The first habeas corpus, assigned docket number CV02-0003666 in the judicial district of Tolland, raised a claim of ineffective assistance of trial defense counsel, Public Defender Claude Chong. After a trial on the merits, the first habeas corpus petition was denied by the Honorable Gary White on September 18, 2003. Judge White concluded that the petitioner had failed to prove ineffective assistance of counsel. The petitioner's right to sentence review, however, was restored by the first habeas court. The petitioner did not appeal from the judgment in the first habeas corpus matter.
The court hereby takes judicial notice of the first habeas corpus matter. See, e.g., Carpenter v. Planning Zoning Commission, 176 Conn. 581, 591, 409 A.2d 1029 (1979). ("The trial court has the power to take judicial notice of court files of other actions between the same parties.")
The petitioner initiated his second habeas corpus petition several weeks later in October 2003. The direct appeal was still pending on the Supreme Court docket at this time. The second habeas corpus petition, as amended on November 16, 2004, raised claims of prosecutorial misconduct, ineffective assistance of trial counsel, ineffective assistance of appellate counsel, and ineffective assistance of appellate counsel. As articulated in its memorandum of decision, the second habeas court denied these claims. Pierce v. Warden, Superior Court, judicial district of Tolland; Docket No. CV03-0004220, (April 11, 2005, Fuger, Jr., J.) ( 2005 Ct.Sup. 6180). The petitioner appealed from the denial of the petition for certification to appeal and the Appellate Court dismissed the appeal after concluding that the second habeas court did not abuse its discretion when it denied said petition. Pierce v. Commissioner of Correction, 100 Conn.App. 1, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007). On August 4, 2005, while appealing the second habeas court's decision, the petitioner initiated the instant matter, his third petition for a writ of habeas corpus. The amended petition alleges that the petitioner's rights to due process and to a jury trial were violated, ineffective assistance of trial defense counsel, ineffective assistance of appellate counsel, ineffective assistance of first habeas counsel, and ineffective assistance of second habeas counsel.
The court also takes judicial notice of the second habeas corpus matter.
The Supreme Court decision in State v. Pierce was released on June 1, 2004.
Additional facts are discussed below as necessary to address the petitioner's specific allegations.
Discussion
Count 1 (Due process and jury trial)
The petitioner first alleges that his constitutional right to due process was violated because the jury did not find, beyond a reasonable doubt, that he committed the offense of kidnapping in the second degree for a sexual purpose before he is classified as a sex offender under General Statutes § 54-254. The petitioner further asserts that it is impermissible for the State of Connecticut to classify him as a sex offender in accordance with § 54-254 because no jury has found, beyond a reasonable doubt, that he committed the offense of kidnapping in the second degree for a sexual purpose. The respondent has raised the affirmative defense of procedural default as to this claim. The petitioner in turn has asserted ineffective assistance of appellate and all prior habeas counsel as the cause and prejudice for any procedural default.
"A petitioner who raises a constitutional claim for the first time in a habeas corpus proceeding must show (1) cause for the procedural default, i.e., the reason for failing to raise the claim at trial or on direct appeal, and (2) prejudice from the alleged constitutional violation. Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). When a petitioner fails to make the required showing, a court will not reach the merits of his claim. Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991).
"The United States Supreme Court stated in adopting the cause and prejudice standard that `[a] State's procedural rules serve vital purposes at trial, on appeal, and on state collateral attack . . . [Such rules afford] . . . the opportunity to resolve the issue shortly after trial, while evidence is still available both to assess the defendant's claim and to retry the defendant effectively if he prevails in his appeal . . . This type of rule promotes not only the accuracy and efficiency of judicial decisions, but also the finality of those decisions, by forcing the defendant to litigate all of his claims together, as quickly after trial as the docket will allow, and while the attention of the appellate court is focused on his case.' (Internal quotation marks omitted.) Jackson v. Commissioner of Correction, 227 Conn. 124, 134, 629 A.2d 413 (1993), quoting Murray v. Carrier, 477 U.S. 478, 490-91, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)." Niblack v. Commissioner of Correction, 80 Conn.App. 292, 296 n. 5, 834 A.2d 779 (2003), cert. denied, 267 Conn. 916, 841 A.2d 219 (2004).
Attorney Francis O'Reilly, counsel on the petitioner's direct appeal from the criminal conviction, testified at the habeas corpus proceeding that he raised a claim on appeal that it was improper for the trial court to require the petitioner to register as a sex offender. State v. Pierce, supra, 69 Conn.App. 520; see also Petitioner's Exhibit 1. After oral argument, the Appellate Court ordered the parties to brief supplementary issues the Appellate Court raised subsequent to the oral arguments. State v. Pierce, supra, 69 Conn.App. 520-21.
On January 27, 2010, the petitioner and respondent stipulates to the following: "After testifying during the trial of this [habeas] case on August 21, 2009, Attorney Francis O'Reilly, the petitioner's former appellate counsel, located and reviewed his case file from the petitioner's direct appeal. He found a note made prior to the Appellate Court ordering supplemental briefing. Reviewing the note refreshed his recollection of his decision about whether to raise a claim under Apprendi v. New Jersey, 530 U.S. 466 (2000). He considered raising such a claim, but decided not to raise it because sex offender registration had been found to be administrative, not punitive. This is the limit of his refreshed recollection." Court Exhibit II.
These issues were as follows: "Is § 54-254(a) a sentence enhancement statute? A. If it is a sentence enhancement statute, what is the proper procedure to be followed? See Apprendi v. New Jersey, 530 U.S. 166, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). B. If it is not a sentence enhancement statute, must the court hold an evidentiary hearing before finding that the defendant has committed a felony for a sexual purpose, and what is the standard of proof to be applied at the hearing?" State v. Pierce, 69 Conn.App. 516, 519-20, 794 A.2d 1123 (2002).
The Appellate Court's decision noted that "[t]he state and the [petitioner] agree that if the statute enhances the defendant's sentence, a jury should have decided the question of whether the [petitioner] had committed the crime of kidnapping in the second degree for a sexual purpose, the quantum of proof being beyond a reasonable doubt. Both parties also agree that if § 54-254(a) is not an enhancement statute, an evidentiary hearing is required. The state claims, however, that such a hearing was already held when the [petitioner] was sentenced, but that the [petitioner] did not seek to produce any information to show that he had not committed the crime for a sexual purpose. The [petitioner] seeks an additional hearing for the specific purpose of having the court make a finding by a fair preponderance of the evidence. The state concludes in its supplemental brief that `perhaps two hearings may be required in the future' because of the recent decision in Doe v. Dept. of Public Safety ex rel. Lee, 271 F.3d 38 (2d Cir. 2001).
Attorney O'Reilly testified that he conferred with Attorney Shelly Sadin, appellate counsel in the federal Doe case, about the sexual offender registration claim.
"[The Appellate Court] conclude[d], after a review consonant with the doctrine of plain error, that § 54-254(a) is not a sentence enhancement statute and that the court's finding of a sexual purpose requires a hearing with the quantum of proof being a fair preponderance of the evidence. The hearing must afford the [petitioner] an opportunity to present evidence to show that he did not commit the crime for a sexual purpose." (Footnote omitted.) State v. Pierce, supra, 69 Conn.App. 523-24.
After determining that Connecticut's statutory sex offender registration requirement was neither a sentence enhancement nor that it involved a sentencing factor, the Appellate Court analyzed the Doe case and its use of the "stigma plus" test. Id., at pgs. 530-31. "On the basis of Doe and the other cases cited herein, [the Appellate Court] conclude[d] that the [petitioner] is entitled to a hearing because he satisfies the `stigma plus' test. Although we are dealing with the registration component of the statute, as opposed to its disclosure component, disclosure cannot occur without registration having first been ordered. Both disclosure and notification should be treated in the same manner as far as due process is concerned.
"Because registration as a person convicted of an offense committed for a `sexual purpose' is not an element of the underlying crime, nor does it increase the penalty for that crime, the hearing is to be conducted by the court and the fact is to be found by a fair preponderance of the evidence. See McMillan v. Pennsylvania, [ 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1990).] Section 54-254(a) uses the phrase `may be required by the court' and is, therefore, discretionary. It allows the court, if it first finds that the crime was committed for a sexual purpose, to exercise its discretion as to whether to require the [petitioner] to register with the commissioner of public safety. The purpose of the hearing is to allow the [petitioner] and the state to produce whatever relevant evidence each deems necessary for the court to determine if the underlying offense was committed for a sexual purpose. The hearing does not disturb the [petitioner's] conviction or his sentence in any way and determines only whether he will be required to register with the commissioner of public safety upon the conclusion of his term of imprisonment." State v. Pierce, supra, 69 Conn.App. 532-33.
After granting the state's petition for certification to appeal, the Supreme Court ultimately reversed the Appellate Court's decision. State v. Pierce, supra, 269 Conn. 454. The Supreme Court concluded that the Appellate Court had abused its discretion when it invoked and applied the plain error doctrine to the supplementary issues. Id., at pg. 453. The Supreme Court remanded the case to the Appellate Court "with direction to reinstate the registry requirement imposed by the trial court." Id., at pg. 454.
In its decision, the Supreme Court ". . . note[d] that the issue of whether the imposition of registry requirements pursuant to § 54-254(a) is a sentence enhancement has been resolved by [the Supreme Court] in State v. Waterman, CT Page 22864 264 Conn. 484, 492-93, 498, 825 A.2d 63 (2003), wherein [the court] held that the registration requirement of the statutory scheme known as Megan's Law; General Statutes § 54-250 et seq.; is a separate regulatory incident of the criminal judgment of conviction and therefore the trial court retained jurisdiction, even after the judgment was rendered, with respect to making the finding necessary to trigger the registration requirement. [The Supreme Court] noted therein that the registration requirement is not punitive in nature, but, rather, is ministerial, and that making the factual finding and informing the defendant of the registration requirement did not necessitate any modification, opening or correction of the defendant's sentence. State v. Waterman, supra, 497." State v. Pierce, supra, 269 Conn. 448 n. 5.
In a more recent appeal to the Supreme Court, the defendant/appellant relied on the Appellate Court's decision in State v. Pierce, supra, 69 Conn.App. 516. The Supreme Court emphasized that it had ". . . reversed that decision, however, on the ground that the Appellate Court improperly had invoked the plain error doctrine because it raised the due process issue sua sponte and the trial court's actions were in conformity with a presumptively valid statute, and we therefore did not express an opinion as to whether a liberty interest was implicated . . . We also note that the Appellate Court's decision in Pierce rested largely on the Second Circuit's decision in Doe v. Dept. of Public Safety ex rel. Lee, [ supra], reaching the same conclusion as to the stigma plus test; see also id., 58-60 (noting split among courts on that issue); which the United States Supreme Court thereafter reversed without addressing the question of whether registration under our scheme constituted stigma plus . . . See Dept. of Public Safety v. Doe, 538 U.S. 1, 7, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003) (`even assuming, arguendo, that [the] respondent has been deprived of a liberty interest, due process does not entitle him to a hearing to establish a fact that is not material under the Connecticut statute') . . . In light of the Supreme Court's decision and our conclusion in part I of this opinion that § 54-254(a) does not mandate a finding of future dangerousness as a predicate to registration, to the extent that the defendant claims that due process mandates certain procedures when the trial court makes such a finding, his claim must fail. Indeed, we point out that the Appellate Court's decision in Pierce related to a factual finding that is a statutory predicate to the possibility of exposure to registration, not the trial court's exercise of discretion after making that finding. To the extent that the defendant's claim is more generally related to the due process attendant to such discretionary decisions, however, we need not decide in the present case whether registration under § 54-254(a) satisfies the stigma plus test, because, even if we were to assume that the registration requirement implicates a constitutionally cognizable interest, the procedure afforded to the defendant clearly was not constitutionally deficient." (Internal citations omitted; footnotes omitted.) State v. Arthur H., 288 Conn. 582, 953 A.2d 630 (2008).
The petitioner now seeks, in his third petition for a writ of habeas corpus, to again litigate a challenge to the trial court's requirement that he register as a sex offender. Based upon the foregoing summary of relevant case law, there is no legal basis for the petitioner's claim in count one, as there is no right to have a jury find, beyond a reasonable doubt, that he committed the offense of kidnapping in the second degree for a sexual purpose. The petitioner stands duly convicted by a jury of kidnapping in the second degree. His registration as a sexual offender results from the sentencing court finding that the offense was committed for a sexual purpose, a finding which itself is not an element of the underlying crime. Additionally, registration as a sexual offender does not increase the punishment for the sentence imposed for the kidnapping conviction. The petitioner has no right to have a jury determine that the kidnapping occurred for a sexual purpose.
Consequently, the petitioner has failed to show the cause and resulting prejudice sufficient to overcome the affirmative defense of procedural default. The claim in count one is without merit and, therefore, counsel could not have rendered ineffective assistance for failing to raise said claim. The court concludes the petitioner is procedurally defaulted.
Counts 2, 3, 4 and 5 (Ineffective assistance of counsel)
In counts two, three and four, the petitioner claims, respectively, that his trial defense counsel, appellate counsel and both prior habeas counsel all rendered ineffective assistance of counsel for failure to raise in the criminal trial, on direct appeal and his prior habeas corpus petitions, the claim asserted in count one of the instant petition. Thus, these claims are derivative of the claim in count one.
The petitioner's alleged cause and prejudice to rebut the affirmative defense of procedural default in count one essentially reasserts the allegations in counts two through five.
"`To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense.' CT Page 22866 Morant v. Commissioner of Correction, 117 Conn.App. 279, 301, 979 A.2d 507, cert. denied, 294 Conn. 906, 982 A.2d 1080 (2009). First, deficient performance may be proved by showing that the counsel's representation `fell below an objective standard of reasonableness.' Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, prejudice to the defense `requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.' Id., 687. "Because the petitioner must satisfy both prongs of the Strickland test to prevail on a habeas corpus petition, this court may dispose of the petitioner's claim if he fails to meet either prong." (Internal quotation marks omitted.) Morant v. Commissioner of Correction, supra, 301.
"In regard to the second prong, our Supreme Court distinguished the standards of review for claims of ineffective trial counsel and ineffective appellate counsel. Small v. Commissioner of Correction, 286 Conn. 707, 721-24, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). For claims of ineffective appellate counsel, the second prong considers `whether there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial.' Id., 722. This requires the reviewing court to `[analyze] the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm.' Id." Moore v. Commissioner of Correction, 119 Conn.App. 530, 534-35, 988 A.2d 881, cert. denied, 296 Conn. 902, 991 A.2d 1103 (2010).
The petitioner's burden only becomes greater as the number of links in the litigation chain increases. This is the petitioner's third petition for a writ of habeas corpus and at least the third proceeding in which he has litigated a claim pertaining to his sexual offender registration requirement. Given that the petitioner has failed to show that the claim in count one has merit, the petitioner cannot prevail on the four ineffectiveness claims, as they are premised on, and derivative of, the claim in count one. The court concludes that the petitioner cannot show that any of the attorneys in the chain of representation provided deficient performance.
"To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective . . . Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel. The second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement." (Emphasis added.) (Citations omitted.) Lozada v. Warden, 223 Conn. 834, 842-43, 613 A.2d 818 (1992).
Conclusion
For all the foregoing reasons, judgment shall enter denying the petition for a writ of habeas corpus. Counsel for the petitioner shall submit a judgment file to the clerk within thirty days of the date of this decision.
It is so ordered.