Opinion
CV154007403S
10-17-2018
Lawrence RUSCOE #70314 v. WARDEN
UNPUBLISHED OPINION
OPINION
Bhatt, J.
In his Amended Petition, petitioner alleges that his trial counsel and prior habeas counsel were both ineffective and but for this ineffective assistance of counsel, the outcome of prior proceedings would have been more favorable to him. For the reasons set forth below, the petition is DENIED.
I. FACTUAL BACKGROUND
The petitioner was charged in a substitute information with possession of marijuana with intent to sell or dispense in violation of General Statutes § 21a-277(b), possession of marijuana with intent to sell or dispense within 1,500 feet of a public housing project in violation of General Statutes § 21a-278a(b), possession of narcotics with intent to sell or dispense in violation of General Statutes § 21a-277(a), and possession of narcotics with intent to sell or dispense within 1,500 feet of a public housing project in violation of General Statutes § 21a-278a(b). The petitioner proceeded to a jury trial. The jury returned guilty verdicts on all four charges. The petitioner was sentenced by the court, Bellis, J., to a total effective sentence of eight years and one day of incarceration, of which five years is a mandatory minimum, followed by eight years of special parole.
The Appellate Court summarized the underlying facts and procedural history. "On October 29, 2004, Norwalk police officers arrived at 6 South Smith Street, Norwalk, to execute a search and seizure warrant for that location. Upon arriving, officers found the [petitioner], arrested him pursuant to an outstanding arrest warrant and conducted a search of the [petitioner’s] person. A cellular phone and $2,127 in United States currency were recovered. Police then searched an office area attached to a garage on the premises, pursuant to the search warrant, where they found small ziplock bags inside a desk drawer. Inside another drawer, officers found a locked metal box. The [petitioner] gave the officers the correct combination for the locked box. Inside of the locked box, the officers found nineteen small plastic bags containing a green leafy substance, a plastic container holding 111 pills, all marked ‘Myelin 4-7-7,’ mail addressed to the [petitioner] and a small digital scale. A later scientific analysis by the state toxicology lab determined that the green leafy substance was marijuana, and that the pills were diazepam, a generic version of the narcotic valium.
"On November 1, 2004, the [petitioner] was charged with eight counts relating to possession of various illegal substances. On the same date, attorney James M. Lamontagne of the public defender’s office was appointed to represent the [petitioner]. On November 10, 2004, while incarcerated for unrelated charges, the [petitioner] sent a request for a speedy trial to the clerk’s office. On November 16, 2004, the court denied the [petitioner’s] motion for a speedy trial.
"On October 6, 2006, the state filed a four-count substitute information which also related to the [petitioner’s] possession of various substances."
"On October 30, 2006, the [petitioner] filed a motion to dismiss on the ground that he was denied a speedy trial. On November 2, 2007, after an evidentiary hearing, the court rejected the [petitioner’s] argument that was effectively denied a speedy trial and denied the [petitioner’s] motion to dismiss." (Footnote renumbered.) State v. Ruscoe, 119 Conn.App. 834, 837-38, 989 A.2d 667, cert. denied, 296 Conn. 903, 992 A.2d 330 (2010).
The petitioner’s direct appeal raised three claims: " ... that the trial court improperly (1) denied his motion to dismiss, which was based on the denial of his request for a speedy trial, (2) excluded evidence during the hearing on his motion to dismiss, and (3) upheld the validity of a warrant for the search of a Norwalk garage in which he had sold narcotics." (Footnote omitted.) Id., 836-37. The Appellate Court denied these claims and affirmed the judgment of conviction. Id., 847.
The petitioner filed a prior habeas corpus petition, docket number CV08-4002454-S, judicial district of Tolland, challenging his convictions. Attorney Thomas P. Mullaney, III, who represented the petitioner in his prior habeas matter, amended the petition and raised a single claim, namely that the petitioner’s right to due process was violated when his speedy trial motion was denied without a hearing or his appearance. The respondent’s return asserted the defenses of res judicata and that the petition failed to state a claim upon which habeas corpus relief can be granted. The respondent filed a motion to dismiss premised on the ground that the petition failed to state a claim upon which habeas corpus relief can be granted, to which the petitioner objected. The first habeas court, Schuman, J., granted the motion to dismiss. The petitioner appealed from the judgment of dismissal; however, the appeal was dismissed on December 5, 2015. The petitioner then initiated the present matter.
2. FINDINGS OF FACT
Attorney Mullaney represented the petitioner in his prior habeas. The sole issue he raised in the amended petition was a "pretrial" issue that challenged a trial court ruling. Attorney Mullaney was aware of procedural default, which could apply to the petitioner’s claim, but the respondent did not raise that affirmative defense in the return. Although Attorney Mullaney represented the petitioner in his first habeas corpus petition after both a jury trial and direct appeal, he raised no claims of ineffective assistance of counsel. Attorney Mullaney advised the petitioner to file a separate habeas corpus petition regarding any claims that arose from his trial and conviction, choosing instead to focus only on the one "pretrial" issue.
Attorney James Schultz, who represented the petitioner during his criminal trial, was retained by the petitioner subsequent to his release from pretrial confinement. The petitioner was held in pretrial confinement in lieu of bond, but then posted bond, which resulted in the public defender’s office determining that he was no longer indigent. The petitioner represented himself for a period of time until he was able to retain Attorney Schultz to represent him during the criminal jury trial.
According to Attorney Schultz, the state attempted to resolve the matter one final time on the eve of trial by offering the petitioner a sentence of five years to serve. The petitioner did not accept that offer although Schultz viewed the five-year offer as a "homerun" for the petitioner. Attorney Schultz’s strategy was to attack the search warrant on the basis of lack of probable cause. Judge Bellis denied the motion to suppress, after a hearing, for the reasons articulated in her memorandum of decision dated November 2, 2007. Attorney Schultz’s trial strategy mirrored the strategy he employed in the motion to suppress: attacking the strength of the state’s case and thereby showing that the state had failed to meet its burden of proof.
Attorney Schultz did not utilize an investigator, nor did he investigate the case himself and speak to any potential witnesses, including Frank Corcoran, the police informant who also was an acquaintance of the petitioner’s. According to Attorney Schultz, a witness such as Corcoran potentially could expose the petitioner to even more criminal liability or negatively impact the defense. It would have been, according to Attorney Schultz, akin to "kicking a hornet’s nest." Attorney Schultz testified that concerns about witness tampering, which the prosecutor cautioned Attorney Schultz about, also factored into not speaking with Corcoran. Attorney Schultz did not seek funding from the court to pay for an investigator. The petitioner did not, according to Attorney Schultz, have any verifiable income for several decades prior to the charges at issue. Additional facts will be set forth as necessary.
3. LEGAL ANALYSIS
"A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [ 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]. This right arises under the sixth and fourteenth amendments to the United States Constitution and article first, § 8, of the Connecticut Constitution ... It is axiomatic that the right to counsel is the right to the effective assistance of counsel ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law ... To satisfy the prejudice prong, [the petitioner] 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 ..." Gonzalez v. Commissioner of Correction, 308 Conn. 463, 470, 68 A.3d 624, cert. denied sub nom., Dzurenda v. Gonzalez, 134 S.Ct. 639, 187 L.Ed.2d 445 (2013).
It is now also undisputed that a petitioner may challenge first habeas counsel’s performance via a second petition for writ of habeas corpus. Our Supreme Court has determined that "a second habeas petition is an available remedy to vindicate a claim of ineffective assistance of counsel in prosecuting a first habeas petition claiming ineffective assistance at trial or on direct appeal." (Internal citations omitted.) Kaddah v. Commissioner of Correction, 324 Conn. 548, 560, 153 A.3d 1233, 1240 (2017).
The application of Strickland to a claim of ineffective assistance of prior habeas counsel requires the petitioner to demonstrate that his prior habeas counsel’s performance was ineffective and that this ineffectiveness prejudiced the petitioner’s prior habeas proceeding. A petitioner further has to prove effective representation by prior habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial. Harris v. Commissioner of Correction, 108 Conn.App. 201, 209-10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). Therefore, a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice: he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992); Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 388, 966 A.2d 780 (2009).
The petitioner alleges that Attorney Mullaney was ineffective for failing to allege that trial counsel rendered ineffective assistance for failing to: (1) investigate and obtain evidence essential to the defense at trial, including, but not limited to, the statements and/or potential testimony of the state’s informant Frank Corcoran; (2) file a motion for speedy trial pursuant to General Statutes § § 54-82c and/or 54-82m.
The amended petition also alleged that Schultz was ineffective for failing to pursue sentence review. This allegation was withdrawn.
Failure to Investigate
Attorney Mullaney raised a single pretrial claim that he viewed as one of first impression, did not raise any other classic habeas corpus claims (e.g., ineffective assistance of trial and/or appellate counsel), and simply told the petitioner to file another habeas corpus petition to raise any other claims relating to his conviction and sentence. Piecemeal litigation in post-conviction proceedings is discouraged, not encouraged. See, e.g., State v. Leecan, 198 Conn. 517, 542, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986) (habeas claims should not be resolved in piecemeal fashion). The single pretrial claim raised by Attorney Mullaney was subject to a defense of procedural default. Attorney Mullaney’s strategy of excluding all claims of ineffective assistance of counsel was neither sound nor reasonable. The court finds that Attorney Mullaney rendered deficient performance by excluding, for no valid strategic decision, all other potentially viable habeas corpus claims.
The petitioner alleges that Attorney Mullaney should have pled a claim of ineffective assistance of Attorney Schultz for failing to investigate Frank Corcoran. The petitioner argues that Attorney Schultz should have attempted to investigate and interview Frank Corcoran, who, if contacted, would have provided information beneficial to the petitioner. Corcoran did not testify in the present matter. The petitioner did present the testimony of Joseph Demarco, formerly an investigator, who spoke with Corcoran in mid-March 2017. Corcoran was incarcerated at the time. The petitioner also submitted into evidence an affidavit from Edwin Rosado, an investigator with the Division of Public Defender Services, which attests to his efforts to locate and serve Corcoran with a subpoena. Petitioner’s Exhibit 3. Those efforts, however, were unsuccessful.
Demarco did not testify as to the contents of his conversation with Corcoran. The petitioner sought to have Demarco testify as to what Corcoran told him during their interview. The petitioner claimed that this was admissible pursuant to Code of Evidence Sections 8-6(4)- statement against penal interest- and 8-9- the residual exception. This court disagreed, concluding that while Corcoran was unavailable, the statement was not against penal interest and did not meet the guarantees of trustworthiness required to be admitted pursuant to Section 8-9.
Attorney Schultz testified that he did not have an investigator working on the petitioner’s case, nor did he interview any witnesses himself. Attorney Schultz testified that the petitioner had no financial resources and thus could not hire an investigator, but he did not make a motion to the court seeking funding from either the Office of Chief Public Defender or the Judicial Branch to hire an investigator. Thus, he did not meet or speak to Corcoran, but did discuss Corcoran with the petitioner. The petitioner asked him to call Corcoran because they were friends but did not say what information he expected Corcoran to provide. He told the petitioner that he was hesitant to contact "state’s informants" directly, because when he has been contacted by informants in other cases, he has been threatened with "potential allegations of witness tampering." Attorney Schultz was never contacted by Corcoran. He did not want to approach Corcoran directly; had Corcoran contacted him, he would have talked to Corcoran. He asked the petitioner if the petitioner thought Corcoran would recant. The petitioner did not think so. Attorney Schultz testified that his main concern was that it would open the door to "unexpected things that would be harmful to [the petitioner]." His concern was also that Corcoran may know things he never said to the police and by talking to Corcoran, Attorney Schultz would expose the petitioner to further criminal liability. Attorney Schultz was very concerned that he was kicking a hornet’s nest by contacting Corcoran. He was aware that Corcoran had been involved with the petitioner in other illicit matters and, by contacting Corcoran, those other illicit matters would eventually come to the court’s attention and expose the petitioner to further criminal liability. Corcoran did not testify at the criminal trial.
This court need not decide whether Attorney Schultz’s performance in this regard was deficient, however, since the petitioner has failed to prove any prejudice from this failure to contact Corcoran. In support of his allegations, the petitioner has not presented any evidence of what any investigation of Corcoran would have disclosed to the defense or prior habeas counsel. See, e.g., Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, 774 A.2d 148 (2001) ("The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner"); Burke v. Commissioner of Correction, 90 Conn.App. 370, 378, 877 A.2d 885, cert. denied, 275 Conn. 926, 883 A.2d 1241 (2005) ("Mere conjecture and speculation are not enough to support a showing of prejudice"). Even if this court assumes that Attorney Schultz’s proffered rationale for not attempting to locate or interview Corcocan "was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law," the petitioner has provided no evidence to this court from which it can conclude that Corcoran would have testified favorably and such testimony would have affected the outcome of his criminal trial. Therefore, the petitioner’s first claim of ineffective assistance by Attorney Mullaney must be denied because he has not shown how he was prejudiced by Attorney Schultz’s failure to investigate and present evidence through Corcoran.
Failure to Seek a Speedy Trial
Attorney Mullaney’s sole allegation in the prior habeas was that the petitioner was denied due process when his own motion for a speedy trial was denied without a hearing. The petitioner’s second claim in the instant petition is that Attorney Mullaney was deficient for failing to allege that Attorneys Schultz and Lamontagne, who had represented the petitioner prior to Attorney Schultz’s appearance, rendered ineffective assistance of counsel for failing to file a motion for speedy trial pursuant to General Statutes § § 54-82c and/or 54-82m. The evidence at the habeas trial does not bear out that claim.
"The Supreme Court of the United States and [the Connecticut Supreme Court] have identified four factors which form the matrix of [a] defendant’s constitutional right to speedy adjudication: ‘[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’ Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, [2192] 33 L.Ed.2d 101 (1972); State v. Lloyd, 185 Conn. 199, 208, 440 A.2d 867 (1981); State v. Nims, 180 Conn. 589, 591, 430 A.2d 1306 (1980). A balancing test is to be applied on a case by case basis. None of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant’s right was violated. State v. Nims, supra, 180 Conn. at 591-92, 430 A.2d 1306. State v. Johnson, 190 Conn. 541, 544-45, 461 A.2d 981 (1983); State v. Foshay, 12 Conn.App. 1, 13-14, 530 A.2d 611 (1987)." Pelletier v. Warden, 32 Conn.App. 38, 46-47, 627 A.2d 1363 (1993), cert. denied, 227 Conn. 920, 632 A.2d 694 (1993).
Attorney Lamontagne was not called to testify at the habeas trial. A November 2, 2007 memorandum of decision Judge Bellis articulates the bases for her denial of the petitioner’s motion to dismiss the pending charges because he was deprived of his right to a speedy trial. Petitioner’s Exhibit I. "Based on the evidence presented at the [evidentiary hearing on the motion to dismiss], ... [the petitioner] was appointed a public defender in this matter by Judge Hickey on November 1, 2004. Attorney James M. Lamontagne of the Norwalk Public Defender’s Office filed his appearance on November 3, 2004. On November 10, 2004, the [petitioner], attempting to act on his own behalf, moved for a speedy trial; that motion was denied by the court, Jennings, J., in a written decision on November 16, 2004, on the basis that the motion violated the rule against hybrid representation. Attorney Lamontagne, who made a very credible witness at the hearing, received notice of the decision on the motion for speedy trial on or about November 16, 2004, and he personally informed the [petitioner] of the denial of the motion on November 29, 2004." Id.
Attorney Lamontagne represented the petitioner while he was in presentence confinement and then released on bond. The petitioner’s case and trial had been continued many times so he could obtain counsel. On October 6, 2006, Attorney Schultz filed an appearance and assumed the petitioner’s representation. Attorney Schultz filed a motion to dismiss the matter premised on the petitioner’s denial of a speedy trial, which was decided by Judge Bellis as previously indicated, and also filed a motion to suppress. Attorney Schultz testified at the habeas trial that he saw no advantage to the petitioner from filing a speedy trial motion, that he did not recall the petitioner mentioning a speedy trial motion to him, and that he was on a six-week vacation between his appearance for the petitioner and the onset of trial. The petitioner’s jury trial commenced on May 8, 2007.
"The petitioner bears the burden of showing that [counsel’s] actions fell below an objective standard of reasonableness. See Williams v. Commissioner of Correction, 142 Conn.App. 744, 752, 68 A.3d 111 (2013). Furthermore, ... ‘[t]here are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way ... Likewise, there is no expectation that competent counsel will be a flawless strategist or tactician ...’ (Citations omitted; internal quotation marks omitted.) Id., at 753, 68 A.3d 111; see also Mozell v. Commissioner of Correction, 291 Conn. 62, 79, 967 A.2d 41 (2009) (‘[a]s a general rule, a habeas petitioner will be able to demonstrate that trial counsel’s decisions were objectively unreasonable only if there [was] no ... tactical justification for the course taken’ [internal quotation marks omitted] )." Smith v. Commissioner of Correction, 148 Conn.App. 517, 527, 85 A.3d 1199, cert. denied, 312 Conn. 901, 91 A.3d 908 (2014).
Given Attorney Mullaney’s deficient performance, the petitioner must also show that he was prejudiced by Attorney Mullaney not raising a claim that the petitioner was denied his right to a speedy trial. A criminal defendant does not have a constitutional right to hybrid representation under either the federal or the state constitution. See, e.g., State v. Gethers, 197 Conn. 369, 383-88, 497 A.2d 408 (1985). Thus, the legal basis for the denial of the petitioner’s motion for a speedy trial because it violated the rule of hybrid representation comports with the established legal standards. The petitioner was represented by Attorney Lamontagne for a period of time during which the petitioner was held in lieu of bond and then was released on bond, the latter of which also resulted in his loss of eligibility for public defender representation. The petitioner was given numerous continuances to obtain counsel and then, after Attorney Schultz filed his appearance, proceeded to trial. The petitioner presented no evidence that he asked Attorneys Lamontagne or Schultz to file a speedy trial motion. Furthermore, Attorney Schultz’s credible testimony supports the finding and conclusion that there was no benefit to the petitioner by filing a speedy trial motion. In fact, Attorney Schultz filed his appearance on October 6, 2006 and immediately filed a motion to dismiss and a motion to suppress. Jury selection in the petitioner’s matter commenced on April 3, 2007, less than five months after Attorney Schultz filed his appearance. There is no evidence that demonstrates Attorney Schultz’s decision not to file a speedy trial motion was objectively unreasonable. Further, the petitioner has presented no evidence as to how counsel’s failure to file a speedy trial motion prejudiced him in any fashion.
The court concludes that the Barker test is not satisfied because there is no credible evidence that the petitioner asserted his right to a speedy trial to either Attorneys Lamontagne or Schultz, nor that there was any prejudice to the petitioner. Because the petitioner cannot prove that either Attorney Lamontagne or Schultz were ineffective for failing to pursue a speedy trial motion, the claim that Attorney Mullaney was ineffective for failing to claim that Attorneys Lamontagne and Schultz were ineffective because they failed to file a motion for a speedy trial fails. The petitioner has not proven that he was prejudiced by Attorney Mullaney’s deficient performance.
Accordingly, the petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent.