Opinion
No. CV 06-4001356-S
January 29, 2010
MEMORANDUM OF DECISION
The petitioner, Ehson Rosado, filed a petition for a writ of habeas corpus on October 13, 2006, challenging the legality of his detention. After the appointment of a special public defender, the petition was amended. The amended petition raises a single claim, namely ineffective assistance by trial defense counsel. The respondent's return denies that the petitioner is entitled to habeas corpus relief and asserts the affirmative defenses of collateral estoppels and res judicata. The petitioner's reply denies that these affirmative defenses apply to the ineffective assistance of counsel claim.
The present matter came before this court for a trial on the merits on three days: December 19, 2008; February 27, 2009; and May 12, 2009. Numerous exhibits were entered into evidence. The court permitted the parties to file post-trial briefs. The petitioner's brief was filed on September 18, 2009, and the respondent's brief was filed on October 15, 2009.
The respondent's brief addresses only the ineffective assistance of counsel claim on its merits. The brief makes no mention of either collateral estoppel or res judicata. Thus, the court deems these two affirmative defenses to be abandoned in addition to being inapplicable to the previously not litigated claim of ineffective assistance by trial defense counsel.
The court has reviewed the evidence and, for the reasons stated more fully below, denies the petition for a writ of habeas corpus.
FACTS
The Appellate Court summarized the following facts pertaining to the convictions at issue in the instant habeas corpus petition, and which are not in dispute. "On May 26, 2003, at approximately 1 a.m., Derrick Dickens, an acquaintance of the defendant, approached a four way stop on Irving Place in Danbury. As he was doing so, a white Chevrolet Malibu stopped at an angle in the middle of the intersection, thereby blocking Dickens' path. The defendant got out of the passenger side of the Malibu and approached Dickens' car.
"Dickens saw a chrome object in the defendant's hand and, believing the object to be a handgun, tried to drive away. In order to do so, he hit the front driver's side of the Malibu with the passenger side of his car. As Dickens hit the Malibu, the defendant, who was standing approximately one foot away at the time, fired a gunshot that hit the side of Dickens' car. As Dickens drove away, he heard approximately five additional gunshots fired. As a result of this incident, Dickens' car sustained bullet holes.
"Four days later, on May 30, 2003, Dickens drove to the house of his girlfriend in a different car and stood outside the house talking to her. As Dickens was about to leave, he saw the defendant being dropped off in front of the house. As Dickens watched the defendant walk up the driveway, a gun fell from the defendant's waistband. When Dickens saw the gun, he yelled to his girlfriend to clear everyone away, got into his car and drove away through the backyard. He thereafter reported both incidents to the police.
"The defendant subsequently was charged in an amended long form information with attempt to commit assault in the first degree, criminal possession of a firearm and breach of the peace in the second degree in violation of General Statutes § 53a-181(a)(1). After a trial to the jury, the defendant was convicted on all counts. The defendant thereafter filed a motion for a judgment of acquittal, which the court granted as to the third count of the amended information, breach of the peace in the second degree. The defendant was sentenced to a total effective term of eighteen years incarceration-consecutive to a sentence he was then serving." State v. Rosado, 107 Conn.App. 517, 519-20, 945 A.2d 1028, cert. denied, 287 Conn. 919, 951 A.2d 571 (2008).
"The [petitioner] appeal[ed] from the judgment of conviction, rendered after a jury trial, of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59(a)(5), and criminal possession of a firearm in violation of General Statutes § 53a-217(a)(1). On appeal, the [petitioner] claim[ed] that the trial court (1) improperly denied his motion to dismiss for lack of a speedy trial, (2) abused its discretion in denying his motion to sever, (3) improperly admitted into evidence five shell casings and (4) violated his right to due process by its improper jury instructions. [The Appellate Court] affirm[ed] the judgment of the trial court." Id., at 519.
The petitioner's first claim on appeal was that the trial court improperly denied his motion to dismiss for lack of a speedy trial. The Appellate Court restated the following facts to address that claim. "While incarcerated on other charges, the [petitioner] received notice, dated February 4, 2004, that the present charges were pending against him and that he had the right to request a final disposition of the charges. The [petitioner], acting pro se, signed the acknowledgement of receipt of notification and requested a trial on those charges but did not date his signature. The [petitioner] filed a pro se motion to dismiss on speedy trial grounds dated July 22, 2004, which alleged that on February 10, 2004, he had filed notice of a request for a speedy trial and had not been tried within the mandated 120 days.
"On August 31, 2004, the [petitioner], through counsel, filed a motion to dismiss on speedy trial grounds, alleging that he had filed a motion for a speedy trial as an incarcerated prisoner on February 5, 2004. Jury selection commenced on September 2, 2004. The parties argued the [petitioner's] motion to dismiss on September 8, 2004. During argument, the state averred that it had not received notice of the [petitioner's] speedy trial request. The court reserved ruling on the motion. The parties argued the motion again at sentencing on January 13, 2005, at which time the court denied the motion. The court, in a subsequent articulation of its memorandum of decision on the [petitioner's] motion to dismiss for lack of a speedy trial, found that the filing of the notice of the [petitioner's] request for a speedy trial was defective in that the [petitioner] failed to cause to be delivered to the state's attorney or assistant state's attorney of the Danbury judicial district a written notice of the place of his imprisonment and his request for a final disposition of the information in the case, as required by General Statutes § 54-82c(a).
"For purposes of speedy trial rules, jury trial begins with voir dire examination. State v. Lacks, 58 Conn.App. 412, 416, 755 A.2d 254, cert. denied, 254 Conn. 919, 759 A.2d 1026 (2000); see also Practice Book § 43-42."
"The court, in its memorandum of decision on the [petitioner's] motion to dismiss for lack of a speedy trial, found, inter alia, that there were numerous occasions on which the trial was postponed at the request of the [petitioner's] counsel and that when the continuances were taken into account, the petitioner's] right to a speedy trial was not violated. On appeal, the [petitioner] additionally [took] issue with this finding, claiming that neither he nor his trial counsel requested any continuances that would toll the running of the speedy trial time period under General Statutes § 54-82c. [The Appellate Court did not need to] address the issue of continuances because [it] conclude[d] that the 120 day period did not commence."
"General Statutes § 54-82c provides: `(a) Whenever a person has entered upon a term of imprisonment in a correctional institution of this state and, during the continuance of the term of imprisonment, there is pending in this state any untried indictment or information against such prisoner, he shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state's attorney or assistant state's attorney of the judicial district or geographical area, in which the indictment or information is pending, and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information. For good cause shown in open court, the prisoner or his counsel being present, the court may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the warden, Community Correctional Center Administrator or other official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the Board of Pardons and Paroles relating to the prisoner.
'(b) The written notice and request for final disposition referred to in subsection (a) hereof shall be given or sent by the prisoner to the warden, Community Correctional Center Administrator or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.'
'(c) The warden, Community Correctional Center Administrator or other official having custody of the prisoner shall promptly inform him in writing of the source and contents of any untried indictment or information against him concerning which the warden, administrator or other official has knowledge and of his right to make a request for final disposition thereof.'
'(d) Escape from custody by the prisoner subsequent to his execution of the request for final disposition referred to in subsection (a) hereof shall void the request.'"
"The [petitioner] argue[d] that the reason for the failure of notice to the state's attorney was either malfeasance or negligence of either the warden or the state's attorney and, accordingly, the 120 day period within which § 54-82c requires that he be brought to trial commenced on February 23, 2004, the day on which the certified mail receipt indicates that the [petitioner's] request was received by the Danbury clerk's office. The state responds that because a copy of the [petitioner's] speedy trial request was not delivered to the state's attorney, as required by § 54-82c, the 120 day period did not commence. [The Appellate Court had to] decide whether the 120 day period ever commenced under § 54-82c if the state's attorney failed to receive notice, regardless of whether notice was not received because of negligence or malfeasance on the part of the warden or the office of the state's attorney." (Emphasis added.) Id., at 520-23.
"The [petitioner's] request for a speedy trial was not date stamped by the clerk's office."
The Appellate Court began its ". . . analysis with a brief overview of the speedy trial statutory scheme. `General Statutes §§ 54-82c and 54-82d provide a statutory method by which an inmate of a Connecticut penal institution who has a detainer placed against him can request and receive an expedited disposition of pending charges. The inmate must be serving a sentence at that time in order to have the procedure available to him. General Statutes § 54-82c(a) . . . Eligible inmates are entitled to a trial within 120 days or to a dismissal of the pending charges, if they follow the procedure outlined in the statutes. First, the inmate must request an expedited hearing under the statutes by giving written notice to the `warden, community correctional center administrator or other official having custody of him . . .' General Statutes § 54-82c(b). The prison official must then forward the request by certified mail to the `appropriate prosecuting official and court,' together with a certificate `stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served off the sentence, the amount of good time earned, the time of parole eligibility of the prisoner and any decisions of the parole board relating to the prisoner.' General Statutes § 54-82c(a). If the procedure is complied with and the case is not assigned for trial within 120 days, then the charges must be dismissed. General Statutes § 54-82d. The trial court may, however, toll the 120-day period by granting, for good cause shown, `any necessary or reasonable continuance.' General Statutes § 54-82c(a).' (Citations omitted.) State v. Toste, 198 Conn. 573, 585-87, 504 A.2d 1036 (1986).
"General Statutes § 54-82d provides: `If an action is not assigned for trial within the period of time as provided in section 54-82c, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment or information be of any further force or effect, and the court shall enter an order dismissing the same.'"
"The clear statutory language of § 54-82c(a) guide[d] [the Appellate Court's] resolution of the [petitioner's] claim [because it] provides, in relevant part, that a prisoner who has any untried indictment or information against him `shall be brought to trial within one hundred twenty days after he has caused to be delivered, to the state's attorney . . . and to the appropriate court, written notice of the place of his imprisonment and his request for final disposition to be made of the indictment or information . . ." (Emphasis added.) General Statutes § 54-82c(a).
"When applying § 54-82c, our Supreme Court has `required strict compliance with the statutory notice procedures.'" State v. Toste, supra, 198 Conn. 588; see also State v. McCarthy, 197 Conn. 166, 496 A.2d 190 (1985) (running of 120 day period not commenced until both court and state's attorney notified); State v. Best, 171 Conn. 487, 370 A.2d 1035 (1976) (same); State v. Springer, 149 Conn. 244, 178 A.2d 525 (1962) (same).
"`[General Statutes § 54-82c] clearly contemplates delivery to the state's attorney and the court before the 120-day period will begin to run.' (Emphasis added.) State v. Best, supra, 491 (interpreting former General Statutes § 54-139, now § 54-82c). `[U]nder [ § 54-82c], the act required to be done in order to start the running of the period of 120 days is the delivery of the prisoner's request, accompanied by his custodian's certificate, to the prosecuting official of the county and the appropriate court. Obviously, a prisoner confined in a penal or correctional institution could not be required to make personal delivery. The General Assembly has therefore provided that the prisoner initiate the request for a trial, has required further that his custodian supply information concerning the prisoner's confinement to the prosecuting official and the court, and has then prescribed the procedure to effect the actual delivery of both. It is the completed delivery of both the request and the supplemental information which starts the running of the period of 120 days within which the prisoner must be brought to trial . . . The return receipt furnishes ample means of fixing the date from which the 120 days is to be computed.'" (Internal quotation marks omitted.) State v. McCarthy, supra, 169-70, quoting State v. Springer, supra, 249-50.
"The language of § 54-82c compels the conclusion that the 120 day period did not commence because notice of the [petitioner's] written request was not received by the state's attorney. Under the circumstances of this case, any alleged negligence or malfeasance on the part of the warden or state's attorney did not eliminate the statutory requirement that notice be received by both the court and the state's attorney in order to trigger the commencement of the 120 day period. State v. McCarthy, supra, 197 Conn. 166, [controlled the Appellate Court's] resolution of this issue. In that case, our Supreme Court declined the defendant's invitation `to create an implied exception' to the commencement date of the 120 day period when a defendant has done `all things required of him to secure his right to a speedy trial under § 54-82c and where the only failure to comply with the statute has been on the part of the warden who, due to inadvertence or malfeasance, has failed to notify the appropriate officials of the defendant's request.' (Internal quotation marks omitted.) Id., 170. In McCarthy, the state's attorney did not receive the defendant's request until some eighteen months after it was delivered to the warden. Id., 169. Our Supreme Court noted that the defendant failed to offer any evidence indicating that the delay `was caused by the `inadvertence or malfeasance' of the warden in violation of the warden's statutory duty `promptly [to] forward' the defendant's request.' Id., 171. The court held that `[i]n the absence of any evidence to the contrary, it is presumed that the warden properly performed his duty.' Id. `In McCarthy [our Supreme Court] made it incumbent upon the defendant to show that the prison official was in derogation of his duty and . . . refused to presume that the official had acted improperly under the statute.' State v. Toste, supra, 198 Conn. 589.
"In light of McCarthy, we need not address the outcome if negligence or malfeasance had been shown in this case. We note that the defendant or his attorney presumably could have ascertained at any point whether delivery to the state's attorney had been accomplished."
"Like the defendant in McCarthy, the [petitioner] in the present case failed to call the warden to testify at the hearing on his speedy trial motion or otherwise offer any evidence concerning the cause of the lack of delivery of the request to the state's attorney. In fact, during the January 13, 2005 hearing on the [petitioner's] motion to dismiss, defense counsel stated that `there's no proof from the department of [correction] that any copy [of the petitioner's speedy trial motion] was ever sent to the state's attorney, and the state's attorney says he never received one, so I'm assuming that's true: I'm not denying that.' In the absence of any evidence to the contrary, [courts must] presume that the officials acted properly under the statute. Because written notice was not delivered to the state's attorney, the statutory 120 day period did not commence. Accordingly, [the Appellate Court] conclude[d] that the court properly denied the [petitioner's] motion to dismiss." State v. Rosado, supra, 107 Conn.App. 523-27.
"The [petitioner], however, attempt[ed] to distinguish McCarthy by claiming that in the present case it is clear from the record that the basis for the failure of notice to the state's attorney was due to malfeasance or negligence of either the warden or the state's attorney. The [petitioner] argue[d] that State v. McCahill, supra, 265 Conn. 437, controls the issue. McCahill concerns General Statutes § 54-82m and Practice Book § 43-41, which provide that if a criminal defendant who is not incarcerated is not brought to trial within twelve months from the filing date of the information against him or from the date of his arrest, whichever is later, and if, absent good cause shown, a trial is not commenced within thirty days of the filing of a motion for a speedy trial, the information shall be dismissed with prejudice.
"In McCahill, the defendant and the state, at the hearing on the defendant's motion to dismiss the information for lack of a speedy trial, stipulated that the copies of the defendant's motion for a speedy trial filed with the clerk's office and at the office of the state's attorney were misfiled, and, as a result, the filing of the motion was not brought to the attention of those who customarily would respond to it, including, inter alia, the state's attorney. State v. McCahill, supra, 265 Conn. 442-43. In McCahill, our Supreme Court held that the misfiling of the defendant's motion for a speedy trial did not constitute good cause for the state's failure to commence his trial within the time frame required by § 54-82m. Id., 452-53.
"The [petitioner] analogize[d] the present case to McCahill and argues that malfeasance or negligence on the part of the state should not delay the commencement of the 120 day period in General Statutes § 54-82c. Contrary to the [petitioner's] contention, McCahill does not control. In McCahill, the state and the defendant stipulated that the copies of the defendant's motion were filed with the clerk's office and the office of the state's attorney but were misfiled. Id., 442. In contrast in the present case, the office of the state's attorney failed to receive notice, and the [petitioner] failed to offer any evidence concerning the cause of such failure. [The Appellate Court] also note[d] that McCahill was decided in the context of a statutory provision; id., 446-53; different from the one involved in the present case."
Additional facts will be discussed below as necessary to address the petitioner's claim.
DISCUSSION
The petitioner's sole claim is ineffective assistance of counsel. Here, the petitioner alleges that trial counsel performed deficiently in the following five ways: first, that he failed to adequately research the law governing the petitioner's right to a speedy trial under General Statutes §§ 54-82c and 54-82d; second, that he failed to conduct an adequate factual investigation into the facts related to the petitioner's right to a speedy trial under General Statutes §§ 54-82c and 54-82d; third, that he failed to present evidence that the agents for the respondent intentionally or negligently failed to comply with their duties under General Statutes § 54-82c; fourth, that he failed to present other evidence in the custody of the respondent and agents of the Chief State's Attorney that the petitioner's right to a speedy trial under General Statutes § 54-82c was violated; and fifth, that he failed to adequately argue that the information should have been dismissed under General Statutes § 54-82d. The petitioner further asserts that there is a reasonable probability that, but for trial counsel's deficient performance, the trial court would have granted the petitioner's motion to dismiss the information.
Standard for ineffective assistance of counsel
"A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the [s]ixth [a]mendment . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
"The first part of the Strickland analysis requires the petitioner to establish that . . . counsel's representation fell below an objective standard of reasonableness considering all of the circumstances . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ."
"Turning to the prejudice component of the Strickland test, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Andrades v. Commissioner of Correction, 108 Conn.App. 509, 512, 948 A.2d 365, cert. denied, 289 Conn. 906, 957 A.2d 868 (2008).
"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." Taft v. Commissioner of Correction, 47 Conn.App. 499, 504, 703 A.2d 1184 (1998), citing and quoting Pelletier v. Warden, 32 Conn.App. 38, 46, 627 A.2d 1363, cert. denied, 227 Conn. 920, 632 A.2d 694 (1993).
Additional findings of fact
The Uniform Arrest Report for the charges at issue shows that the petitioner was arrested on June 3, 2003. A series of continuance mittimi indicate that the petitioner was in court for his criminal case on ten dates between June 4, 2003 and November 26, 2003. A letter dated November 26, 2003, from the criminal caseflow coordinator to attorney Romanello indicates that the petitioner's criminal case was on one-hour's notice to commence a jury trial. On February 3, 2004, at 3:07 p.m., notice was provided that the criminal trial would commence at 9:30 a.m., February 4, 2004.
A notice dated February 4, 2004, informed the petitioner of his right to a speedy trial. This notice indicates that the petitioner came into the respondent's custody on January 30, 2004, to serve a one-year sentence, although the petitioner was expected to discharge from the one-year sentence on August 5, 2004 because 184 days of presentence confinement credit. The petitioner signed the section in which he can acknowledge receipt of the notice of the right to a speedy trial and thereby make such request, but did not date when he signed the acknowledgement. At the bottom of the notice form is a section in which the Department of Correction can indicate when it wants to receive notice that the criminal matter will be disposed. The notice form indicates that the Department of Correction wanted two weeks notice in advance of such disposition and that it was signed by a records specialist on February 10, 2004.
The speedy trial notification and request for disposition form bears the hand-written date "2/4/04." Immediately above that date is the printed date "02/05/04."
Because the petitioner did not date the acknowledgement, the precise date is not ascertainable. But the acknowledgement occurred sometime between February 4-10, 2004.
A continuance mittimus was prepared on February 3, 2004, indicating that the next court date for the criminal case was February 4, 2004, the anticipated onset of trial. Another mittimus, prepared on February 4, 2004, shows that the criminal case was continued to March 2, 2004. A notice of service, with the captioned date of February 11, 2004, reflects that the Assistant State's Attorney Bochicchio, who prosecuted the underlying criminal case, gave notice to the petitioner of a Practice Book § 40-7 request for disclosure and production.
On February 27, 2004, a revised mittimus was issued, modifying the next court date to March 1, 2004. Mittimi were also prepared on March 3, 5 and 16, 2004, leading up to the beginning of jury selection on March 30, 2004. On March 19, 2004, attorney Romanello filed his motion to withdraw appearance and appointment of a special public defender, which was granted on March 24, 2004, after a hearing. The information indicates that attorney McDonough was appointed on March 24, 2004, to represent the petitioner. Thereafter, another eight mittimi, issued on various dates between March 30, 2004, and August 31, 2004, show that the petitioner was present at court for proceedings that were to lead up to the eventual jury trial.
In a motion to dismiss bearing the captioned date of July 22, 2004, the petitioner himself, although represented by counsel, sought dismissal of the charges. The petitioner's motion to dismiss indicated that he had moved for a speedy trial on February 10, 2004. Because he had not been brought to trial as of July 22, 2004, the petitioner sought dismissal of all charges. The petitioner certified that he had mailed a copy of his motion to dismiss to all counsel of record on July 22, 2004. Documents from the Danbury clerk's office contain a photocopy of an envelope addressed to attorney Bochicchio bearing the postmark date July 27, 2004, with the petitioner's name and address in the return address area. Although the envelope is addressed to Bochicchio, who had been prosecuting the criminal matters in Danbury since their inception in June 2003, and the petitioner had been transported numerous times to Danbury for court proceedings, the petitioner sent the letter to the Superior Court in Enfield with the hand-written notation to "Please forward."
Because the photocopy of this envelope is amongst the documents provided by the Danbury clerk's office, it appears that Bochicchio provided that office with a copy upon eventually receiving the forwarded letter. If that is how the clerk's office ended up with a copy of the petitioner's motion to dismiss, it could explain why the letter was not date stamped. There is no indication that the petitioner, who was represented by counsel, sent the motion to dismiss directly to the clerk's office itself. Bochicchio testified at the habeas corpus trial that he began working in Enfield while the petitioner's criminal matter was pending. Bochicchio commuted from Enfield to Danbury to attend to this case.
On September 2, 2004, attorney McDonough filed a motion to dismiss, seeking dismissal of the pending charges because the petitioner's right to speedy trial had been violated, and which was taken up by the court on September 8, 2004, immediately preceding the beginning of the jury trial. It is not clear when McDonough learned of the speedy trial motion, but it appears from his representations to the trial court that it was just before the September 2, 2004 motion to dismiss was filed. Thus, both attorneys Romanello and McDonough apparently were unaware of the speedy trial motion from June 2003 until either late August or early September 2004.
McDonough centered his attack on the clerk's office and its failure to date stamp the motion for a speedy trial. McDonough also stressed that the clerk's office did not bring the motion to either the presiding judge's or the state's attorney's attention. McDonough's approach was guided in large part by, and hinged on, the fact that the petitioner had submitted the speedy trial motion to an agent of the respondent and that the motion had been received by the court. McDonough emphasized that the failure was that of the clerk's office and neither the petitioner's, nor the state's attorney's office, nor the court's (i.e., a judge as distinguished from the clerk's office) fault. That is, McDonough focused on that link in the chain of events where the process or procedure appeared to have broken down. The court took the motion under consideration and reserved ruling on the motion to dismiss. The jury trial then commenced.
After the jury returned its guilty verdicts, the trial court on January 13, 2005, took up the motions to dismiss. Attorney McDonough again presented his arguments that the petitioner was denied his right to a speedy trial. McDonough stressed that the petitioner had complied with the statutory requirements of § 54-82c by filing the motion for a speedy trial, which was received by the clerk's office. McDonough presented the return receipt, signed by a clerk's office employee on February 23, 2004, as evidence showing that the petitioner had complied with § 54-82c. McDonough reiterated that the clerk's office neither affixed a date stamp to the motion for a speedy trial, nor docketed that motion in the court's filed.
It is clear from McDonough's arguments that both he and predecessor counsel had no knowledge of the speedy trial motion. McDonough's comments to the court also indicate that he was at no time aware of the speedy trial motion until just before he drafted his motion to dismiss captioned August 31, 2004, and filed on September 2, 2004. McDonough blamed not only the clerk's office, as he had previously, but now also asserted that the Department of Correction had failed to properly send the speedy trial motion. Based on these failures by both the Department of Correction and the clerk's office, McDonough claimed that the petitioner's right to a speedy trial, which he further argued had attached the minute the petitioner submitted his speedy trial motion to the Department of Correction, had been violated. Responding to the court's observation that some of the continuances to prepare for trial had been at the petitioner's request McDonough argued that none of the attorneys knew of the filing of the speedy trial motion, nor that the petitioner had to tell anybody that he had filed the motion. The petitioner, simply by giving the motion for a speedy trial to the Department of Correction, did everything that he was required to do.
At the habeas proceeding, McDonough testified that he did not review the McCarthy and Toste decisions. McDonough believed that the clerk's office had been negligent and wanted to put on evidence in support of that. However, after discussion with opposing counsel and the court, there was no dispute as to the fact that the clerk's office had received the speedy trial motion, but did not date stamp the motion, as well as that Bochicchio had never received the speedy trial motion. The relevant facts were undisputed, according to McDonough, and demonstrated negligence or malfeasance by the Department of Correction because, if prosecutor never received the motion, then it was never sent.
On cross-examination, McDonough testified that he replaced Romanello in either late March or early April of 2004. McDonough agreed to take the case and asked for ninety days to prepare for trial. Had the case gone to trial before the expiration of the 120 days following the speedy trial motion, McDonough would not have been prepared for trial. McDonough acknowledged that although he argued there was negligence or malfeasance by the Department of Correction, he was not aware of any specific negligence. McDonough had issued a subpoena duces tecum to the keeper of records and/or the warden that required them to produce all documents in the department's possession that pertained to the February 5, 2004 speedy trial motion.
This subpoena was entered as a full exhibit in the habeas proceeding. Respondent's Exhibit B. The subpoena indicates that the date and time of the hearing was December 14, 2004. The transcripts from the criminal trial show, however, that Judge Callahan took up the motion to dismiss on December 13, 2004. Although it appears that the subpoena was properly served, the keeper of the records and the warden were not obligated to appear until the date indicated on the subpoena.
Deputy Chief Clerk Louis Pace testified about the procedures employed by the clerk's office at the time the petitioner filed his speedy trial motion. According to Pace, the mail would have been opened, the contents date stamped, and then put in the corresponding file. Although the procedure now is to immediately docket speedy trial motions, then such motions were not scheduled for hearings within one week. Pace identified the individuals responsible for various stages of the process, which eventually would have resulted in him or one other staff member receiving the speedy trial motion. The petitioner's speedy trial motion did not make it to either of these two individuals. Pace testified that the events surrounding the petitioner's speedy trial motion were significant to him, and have resulted in procedural changes being implemented in the clerk's office, but that he has never discovered anything that indicates that the clerk's office committed an error.
Department of Correction employee Kimberly Such testified and brought to court the petitioner's master file maintained by the records department, as well as the manual on speedy trials used by the department. Department of Correction District Administrator Wayne Choinski, who was the warden of the facility in which the petitioner was confined at the time he filed the speedy trial motion, also testified about the department's procedures. Choinski himself had no direct responsibility over speedy trial motions and could not present any testimony about what happened to the petitioner's speedy trial motion. Choinski neither was responsible for completion of forms nor the communication with inmates about speedy trial motions, nor did he personally ever have possession of the petitioner's motion, nor did he handle the motion. Choinski also did not have personal knowledge whether the department sent the speedy trial motion to the clerk's office and the Office of the State's Attorney. Choinski further testified that he was unable to determine whether the petitioner's motion was sent via certified mail to the clerk's office and the State's Attorney. While it appears as though the motion was sent, the return receipt does not specify which office signed for the letter and merely says "GA." Choinski could not determine whether the petitioner's motion was or was not sent to the Danbury State's Attorney, and he was unable to conclude that the department failed to properly handle the petitioner's motion.
Assistant State's Attorney Anthony Bochicchio testified at the habeas corpus trial that he could not recall when he first became aware of the petitioner's speedy trial motion, although he was given a copy of the pro se motion to dismiss around the time the petitioner filed said motion toward the end of July. Bochicchio recalled that there were continuances and delays in the onset of trial due to attorney Romanello being ill and not present at court due to inclement weather. McDonough's replacement of Romanello resulted in additional delays to permit him to prepare for trial. Bochicchio testified that he was not aware of any speedy trial motion until the petitioner filed his pro se motion to dismiss in late July, nor could he recall any discussions about a speedy trial until the petitioner's own motion to dismiss was filed.
The petitioner also presented testimony from Warden Jeffrey McGill, who in 2004 was the Major in charge of Operations, who was unable to indicate whether the petitioner's speedy trial motion had been properly handled. Esther Torres, a Major in charge of Programs and Treatment at Northern Correctional Institution, where the petitioner submitted his speedy trial motion in 2004, also could not tell whether the department had properly handled the documents at issue. Torres also could not indicate whether the certified envelope was sent to the clerk's office or the Office of the State's Attorney. Torres stated it appears that the petitioner's motion was properly delivered to the records department, which then was required to send the motion via certified mail to both the clerk's office and the Office of the State's Attorney. However, Torres herself did not have any involvement in the petitioner's effort to obtain a speedy trial.
Former counselor Chris Kay testified that he also worked at Northern C.I. in 2004 and assisted the petitioner at that time with the speedy trial motion. Kay testified that the petitioner wanted a speedy trial form. According to Kay, the records department prepared the form upon his request, delivered them to the petitioner and witnessed the petitioner's signature. Kay then turned the form over to someone in the records department.
The final witness was Tracy Hannon, a Records Specialist I in 2004. Hannon identified her signature on the speedy trial notification form, as well as another employee's handwriting on the return receipt form that was prepared by the records office before the speedy trial was mailed. Hannon testified that the normal procedure would lead to the sending of separate envelopes to the clerk's office and the Office of the State's Attorney, and that it would have been improper to send one envelope containing both documents to those offices. Hannon could not indicate how the envelopes were addressed, nor could she tell what the return receipt had been affixed to prior to its eventual return to the records department.
Discussion
Albeit extensive, the foregoing summary of the evidence presented to this court fails to affirmatively demonstrate that there was negligence or malfeasance by either the Danbury clerk's office or the Office of the State's Attorney. Put somewhat differently, while the petitioner has presented a plethora of evidence, there is paucity of proof. Furthermore, given that the petitioner's allegations pertain to attorney McDonough's representation and purported failures in prevailing on the motion to dismiss, the court fails to discern any evidence that shows how the petitioner was prejudiced. The petitioner here first has to prove that McDonough's performance fell below that of a reasonably competent criminal defense attorney, which he has not proven, and then that any such deficient performance prejudiced the petitioner. Given the testimonial and documentary evidence, the court simply cannot conclude that either Strickland prong has been proven by a preponderance of the evidence.
As the Appellate Court underscored in the petitioner's direct appeal, the Supreme Court has required strict compliance with the statutory notice procedures. The Appellate Court furthermore concluded that under the circumstances of this case, any alleged negligence or malfeasance on the part of the warden or state's attorney did not eliminate the statutory requirement that notice be received by both the court and the state's attorney in order to trigger the commencement of the 120-day period. The Supreme Court in State v. McCarthy, supra, explicitly declined to create an implied exception to the commencement date of the 120-day period when a defendant has done all things required of him to secure his right to a speedy trial under § 54-82c. This is so even when the only failure to comply with the statute has been on the part of the warden who, due to inadvertence or malfeasance, has failed to notify the appropriate officials of the defendant's request.
The Supreme Court in McCarthy noted that the defendant there had failed to offer any evidence indicating that the delay was caused by the inadvertence or malfeasance of the warden in violation of the warden's statutory duty to promptly forward a speedy trial request. The Supreme Court held that the warden is presumed to have properly performed the statutory duties unless there is evidence to the contrary and there has been a showing that a prison official was in derogation of a duty. There is no presumption that an official acted improperly in the absence of such a showing.
McDonough did not, as the Appellate Court noted, call the warden to testify at the hearing on his speedy trial motion or otherwise offer any evidence concerning the cause of the lack of delivery of the request to the state's attorney. As with the January 13, 2005 hearing itself, during which McDonough indicated that there was no proof that the Department of Correction sent the petitioner's request to the Office of the State's Attorney, and that the prosecutor never received the request, the evidence presented to this court goes no further in proving the cause of the lack of delivery to the prosecutor.
There is no evidence that any official acted improperly. This court may not infer that because the prosecutor did not receive the petitioner's request, there was negligence or malfeasance by any official of the Department of Correction or the prosecutor or the clerk's office. Similarly, this court will not infer that the petitioner did anything either affirmatively or through neglect, to gain some advantage in his criminal proceedings in an effort to have the charges dismissed. For example, there are potential and reasonable inferences that could be made from the petitioner's failure to apprise counsel of the February 2004 request until such time as the 120 days had expired. Again, there is no evidence of any manipulation by the petitioner and, as with the officials at issue in this habeas corpus, this court cannot make such an inference to the petitioner's detriment.
The petitioner has failed to show that McDonough failed to adequately research the law, conduct an adequate factual investigation, present evidence that the agents for the respondent intentionally or negligently failed to comply with their statutory duties, present other evidence in the custody of the respondent and agents of the Chief State's Attorney that the petitioner's right to a speedy trial was violated, and adequately argue that the information should have been dismissed under General Statutes § 54-82d. The petitioner also has not shown that there is a reasonable probability that, but for trial counsel's purported deficient performance, the trial court would have granted the petitioner's motion to dismiss the information.
CONCLUSION
The petitioner's claims of ineffective assistance of counsel are unproven. Accordingly, the petition for a writ of habeas corpus must be denied. Judgment may enter in favor of the respondent. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days of the date of this decision.