Opinion
CV134005475S
04-08-2016
Anwar Shakir (Inmate #371637) v. Commissioner of Correction
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Stanley T. Fuger, Jr., Judge.
The petitioner, Anwar Shakir, Inmate #371637, alleges in his petition for a Writ of Habeas Corpus initially filed on June 19, 2013 and amended for the final time on July 31, 2015, that his confinement under the custody of the Commissioner of Correction is illegal and that consequently, he is entitled to be released. Specifically, the petitioner in his two-count complaint alleges that both of his trial defense counsel, Atty. John Gulash and Atty. Diane Polan, were ineffective in their respective representation of the petitioner.
During the trial on the merits of this habeas petition the Court received testimony from the petitioner; both of his trial defense counsel, Attys. Gulash and Polan; DOC Records Specialist Michelle Deveau; Atty. Michael Blanchard; and Dr. Nina Livingston, M.D. Finally, the Court received various pieces of documentary evidence into evidence.
The petitioner alleges that Attys. Gulash and Polan were ineffective in their representation by failing to adequately advise him in regard to: a plea offer that had been extended by the state and rejected by the petitioner; the concept of " dead time" in relation to the calculation of jail credit; and failed to ask the sentencing Court to award what he calls " Judge Ordered Jail Credit" (hereafter JOJC). Further, the petitioner alleges that Attys. Gulash and Polan failed to investigate, consult with, and call expert witnesses in the field of child sexual abuse during the petitioner's trial. In consequence of these alleged ineffective representations, the petitioner asserts that he is entitled to have his 2011 convictions and resultant twenty-two-year sentence vacated.
Findings of Fact
1. The petitioner was a defendant in two criminal cases, all proceeding in the Judicial District of Ansonia/Milford. He was charged in the first of these cases with a Violation of Probation under Docket Number AAN-CR07-0241116-0. On October 7, 2009, the Court, having five days previously found that the petitioner had violated his probation, sentenced him to serve two years. In the second case, captioned State v. Anwar S., Docket Number AAN-CR09-0138673, the petitioner was found guilty, after a trial of the case to a jury, of: (a)one count of Sexual Assault in the 1st Degree in violation of CGS § 53a-70(a)(2); (b)one count of Risk of Injury to a Minor in violation of CGS § 53-21(a)(2); and (c) one count of Risk of Injury to a Minor in violation of CGS § 53-21(a)(1). The Court (Keegan, J.) sentenced the Petitioner to a sentence of fifteen years confinement to be followed by ten years of special parole.
The initial sentence was adjudged on April 25, 2011 and was for 20 years incarceration, suspended after the service of 15 years, to be followed by 25 years probation. On July 28, 2011, the Court re-sentenced the Petitioner to the current sentence in accordance with State v. Victor O., 301 Conn. 163, 20 A.3d 669 (2011).
2. The Petitioner was, at all times relevant, represented by Attys. John Gulash and Diane Polan.
3. All efforts at reaching a pretrial plea agreement were ultimately unsuccessful and the petitioner ultimately had his case presented to a jury, Keegan, J. presiding. The Petitioner was adamant that he would not accept any plea agreement that required him to serve any jail time beyond time served. He was further adamant that while he would take a pragmatic plea, if necessary, the offenses to which he pled could not be sex offenses and he would never accept registration as a sex offender. The prosecution was equally adamant that any plea deal would have to require sex offender registration. As far as incarceration, the state initially offered time in the ten-year range, but ultimately came up with a final offer of three years. Notwithstanding, the prosecution never backed off from the requirement of sex offender registration. All plea deals were rejected by the Petitioner.
4. The jury reasonably could have found the following facts. " In 2008, T. was residing in Connecticut along with her mother, her half-brother and her stepfather, the defendant. In or about March 2008, T.'s mother found her masturbating and asked T. what she was doing. T. stated in response, 'Mom, don't get mad [at dad], but it only happened one time . . .' An argument then ensued between T.'s mother and the defendant regarding whether he had engaged in inappropriate sexual conduct with T. Shortly thereafter, T. and her mother moved out of the family residence, while T.'s half-brother remained with the defendant.
5. " In July 2008, T. returned to the defendant's home to spend time with the defendant and her half-brother. During this visit the defendant sexually assaulted T. by engaging in penile-rectal intercourse. After the July 2008 visit, T. relocated with her mother to Kansas and then ultimately relocated to California. Once in California, T. told her mother that the defendant had assaulted her not just once, but multiple times during the three preceding years.
6. " In December 2008, T. and her mother returned to Connecticut, and in January 2009, T.'s mother filed a complaint against the defendant with the police. The police department made an appointment for T. to be seen at the Yale Child Sexual Abuse Clinic (clinic) for a forensic interview with a social worker. Because T. reported information indicating that a medical examination should be performed, the social worker made another appointment for T. to receive a medical examination at the clinic.
7. " Janet Murphy, a pediatric nurse practitioner and the associate medical director for the clinic, conducted a medical examination of T. Murphy testified that she is a member of a multidisciplinary team (team), which is a group of professionals from different disciplines involved in the investigation and evaluation of child abuse and sexual abuse. Murphy's role on the team is to conduct medical evaluations of the children at the clinic. Because T. reported penile penetration, Murphy obtained specimens from T.'s genital area to screen for sexually transmitted infections. The vaginal screening was done via a urine specimen, and the rectal screening was completed with a swab. T.'s urine and rectal test results indicated that she tested positive for chlamydia, a sexually transmitted infection usually acquired from sexual contact.
8. " Murphy stated that treatment, in a case involving possible sexual abuse, requires a confirmatory test to ensure that the results were not a false positive. Accordingly, Murphy contacted T.'s mother, who had already returned to California, to inform her of T.'s positive test results and to make arrangements for T. to be seen at a clinic in California. To facilitate T.'s tests, Murphy spoke with Fred Bruhn, a physician at a clinic in California, regarding T.'s positive results. Bruhn then set up an appointment to have T. evaluated, during which she underwent confirmatory tests consisting of a vaginal swab for chlamydia culture, a rectal swab for chlamydia culture, and a repeat of the urine tests also conducted in Connecticut. The vaginal swab culture was positive, the rectal swab was negative, and the urine test was positive. Murphy received a verbal report of these results from the physicians who examined T. in California. According to Murphy, ' [t]he fact that the [California] tests were positive tells me chlamydia was present in the genital location of her body.'
9. " Before trial, the defendant filed a motion in limine to preclude evidence of the laboratory tests performed on T. The court denied the defendant's motion, holding that the evidence was relevant and that the probative value outweighed the danger of unfair prejudice. In so holding, the court found that '[t]he defendant's objections, as to the testing . . . the nature of the testing . . . who did the testing, and the protocols . . . [go] to the weight of the evidence . . . but does not go to the admissibility.' The results of the Yale clinic tests were admitted as business records, and the results of the California tests were admitted through Murphy's testimony."
State v. Anwar S., 141 Conn.App. 355, 357-60, 61 A.3d 1129 (2013), cert. den., 308 Conn. 936, 66 A.3d 499 (2013).
10. Both Attorneys Polan and Gulash conducted a vigorous defense of the Petitioner.
11. Additional facts will be discussed, as necessary, in subsequent portions of this decision.
Discussion
The Petitioner now comes before this Court seeking the issuance of a writ of habeas corpus. The thrust of the Petitioner's argument is that his trial defense counsel were constitutionally deficient in their respective performance of duties surrounding the plea bargaining phase of the trial primarily, and during trial on the merits. Therefore, the Petitioner alleges, he was deprived of the assistance of the competent counsel guaranteed to him by the sixth Amendment to the United States Constitution. As a result, the Petitioner asserts this renders his continued confinement by the Respondent, illegal.
Notwithstanding the arguments raised by Petitioner and his current assigned counsel at this habeas trial, the Court disagrees with the position of the Petitioner and will deny the petition and decline to issue a writ of habeas corpus.
It is important to understand that this instant proceeding is an action seeking the issuance of a writ of habeas corpus. This case is now in what is often termed the " court of last resort." A petition for a writ of habeas corpus is, therefore, an application for extraordinary judicial relief in which, contrary to the criminal trial court, the burden rests with the petitioner.
This may seem to be difficult for a layman to accept, given the oft-repeated phrase that " one is innocent until proven guilty." However, in a habeas corpus proceeding, the petitioner is not innocent and has, in fact been already proven guilty beyond all reasonable doubt. Moreover, a habeas petitioner has more likely than not had the opportunity to have at least one appellate court review the case to determine of there have been any errors of law that were made by the trial court. Given that a habeas petition is often called the " court of last resort" it should not be unexpected that the burden of showing an irregularity must now rest with the petitioner.
At the outset, one must understand that there is a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime (i.e., a defendant) is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. " It is undoubtedly true that '[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial." Summerville v. Warden, 229 Conn. 397 at 422-23, 641 A.2d 1356 (1994). Consequently, the burden of proving entitlement to the grant of a writ of habeas corpus rests with the petitioner. " Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is Innocent, ' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, infra . at 422. The Petitioner is not, therefore in the role of a " defendant, " but is instead, a " convict."
The writ of habeas corpus is an ancient and time-honored component of our Anglo-American jurisprudence. " We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence: 'the most celebrated writ in the English law.' 3 Blackstone Commentaries 129. It is 'a writ antecedent to statute, and throwing its root deep into the genius of our common law . . . It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I." Fay v. Noia, 372 U.S. 391 at 399, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). When the United States achieved independence from England, the writ made the Trans-Atlantic voyage and became embodied in our law as well. " Received into our own law in the colonial period, given explicit recognition in the Federal Constitution, Art. I, § 9, cl. 2, incorporated in the first grant of federal court jurisdiction, Act of September 24, 1789, c. 20, § 14, 1 Stat. 81-82, habeas corpus was early confirmed by Chief Justice John Marshall to be a 'great constitutional privilege.' Ex parte Bollman and Swartwowt; 8 U.S. 75, 4 Cranch 75, 95, 2 L.Ed. 554." Fay v. Noia, infra at 400 (1963).
Edward I reigned in England in the late 13th century AD.
Issuance of a writ of habeas corpus is a remedy whose " most basic traditions and purposes are to avoid the grievous wrong of holding a person in custody in violation of the federal constitution and thereby protect individuals from unconstitutional convictions and help guarantee the integrity of the criminal process by ensuring that trials are fundamentally fair." O'Neal v. McAninch, 513 U.S. 432, 442, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). Moreover, when a court reviews a petition for habeas corpus, " it must decide whether the petitioner is in custody in violation of the Constitution or laws or treaties of the United States. The court does not review a judgment, but the lawfulness of the petitioner's custody simpliciter." Coleman v. Thompson, 501 U.S. 722 at 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). So, the writ of habeas corpus " has been for centuries esteemed the best and only sufficient defense of personal freedom." Lonchar v. Thomas, 517 U.S. 314, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996).
A criminal defendant, of course, has an absolute Constitutional right to persist in a plea of not guilty, even in the face of what some might think to be seemingly insurmountable obstacles and overwhelming evidence. He or she has an absolute right to hold the government to its justifiably high burden of proof and take the matter to a jury of his or her peers. The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers. Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt . Moreover, all criminal defendants are entitled to the representation of counsel. The Sixth Amendment to the United States constitution provides in relevant part: " In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . and to have the assistance of counsel for his defense." The sixth amendment right of confrontation and right to counsel is made applicable to the states through the due process clause of the fourteenth amendment. See Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), respectively. The Sixth Amendment right to counsel is necessarily the right to an effective counsel. Notwithstanding, our Constitutions do not require that a criminal defendant receive perfect representation.
" The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The 'demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.'" In re Winship, 397 U.S. 358 at 361, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
It is not, and never has been, for the trial defense counsel to make the decisions that a client must make. The defendant decides how to plead, whether to testify, whether to waive the right to trial by jury, etc. Nevertheless, effective representation by counsel is crucial. " Because a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the 'right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction.' Copas v. Commissioner of Correction, 234 Conn. 139, 154, 662 A.2d 718 (1995)." See Baillargeon v. Commissioner of Correction, 67 Conn.App. 716 at 721, 789 A.2d 1046 (2002). Consequently, an attorney who fails to offer his or her client proper counsel at critical junctures in the trial may well be providing ineffective representation.
In order that a Petitioner prevail in a claim of ineffective assistance of counsel the proof must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 L.Ed.2d (1984), before the Court can grant relief Specifically, the petitioner must first show " that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving " that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
As already noted, a criminal defendant is entitled to the representation of trained and competent legal counsel. Notwithstanding, " [t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight. See Bell v. Cone, 535 U.S. 685 at 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674; United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)." Yarborough v. Gentry, 540 U.S. 1, 124 S.Ct. 1, 157 L.Ed.2d 1 (October 20, 2003). " To prove that his counsel's performance was deficient, the petitioner must demonstrate that trial counsel's representation fell below an objective standard of reasonableness . . . Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Smith v. Commissioner of Correction, 148 Conn.App. 517, 523-25, 85 A.3d 1199 (2014).
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. A habeas court " may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Corrections, 47 Conn.App. 253, 264, 704 A.2d 807 (1979), cert. den. 243 Conn. 967, 707 A.2 d 1268 (1998). " A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317, 759 A.2d 118 (2000).
Turning now to the specific complaints of the Petitioner and the specific deficiencies alleged in the complaint, this habeas court will find that there is no merit to any of the points raised by the Petitioner. The petitioner makes the mistake of thinking that as a criminal defendant, he is in the position of dictating what type of pretrial agreement might result. Of course, ultimately, it is the defendant who must accept any proposed offer of a plea bargain for there to be such an agreement. Notwithstanding, it is the prosecution that sits in the position of having the burden to prove the case against the defendant, and contrary to the belief of some defendants, there is no obligation on the part of the prosecution to even suggest, much less enter into, a pretrial plea bargaining arrangement. In the instant case, given the positions of the state and the defendant, it is clear that there was no likelihood of this case resolving with a pretrial agreement.
A large amount of habeas litigation involving pleas of guilty has arisen in the wake of the decisions of the United States Supreme Court's decisions in Frye and Lafler and our state Supreme Court in Ebron v. Commissioner of Correction, 307 Conn. 342, 53 A.3d 983 (2012). In the latter case at page 357, our Supreme Court found that where by reason of deficient performance by trial defense counsel there is a lapsed pretrial plea bargain, " to establish prejudice, a petitioner need establish only that (1) it is reasonably probable that, if not for counsel's deficient performance, the petitioner would have accepted the plea offer, and (2) the trial judge would have conditionally accepted the plea agreement if it had been presented to the court." In Frye, the trial defense counsel committed one of the cardinal sins of representation by not conveying a pretrial offer of pleading to a misdemeanor to his client who then ended up being found guilty of a felony. In Lafler, that trial defense counsel offered his client a patently erroneous explanation of what the law regarding the alleged offense was to the client's detriment who rejected a more favorable plea bargain, opting to go to trial. These were egregious acts on the part of trial defense counsel leading the Supreme Court to conclude that given the extraordinarily high percentage of cases that resolve with plea bargains that this is a critical stage of the proceedings and a criminal defendant is entitled to the effective representation of counsel at the plea bargaining stage even if the defendant then went on to have a trial on the merits in which all of his constitutional rights were properly protected and afforded.
Missouri v. Frye, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) and Lafler v. Cooper, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).
The duties of trial defense counsel in this critical stage of pretrial bargaining has been addressed several times by our Appellate courts here in Connecticut. In Ebron, infra, an attorney was found to have been ineffective in his representation by not offering the defendant advice as to whether he should or should not accept the pretrial offer. In Barlow v. Commissioner of Correction, 150 Conn.App. 781, 93 A.3d 165 (2014) a " barebones" transmission of the state's offer of a plea bargain with no further explanation or advice was found to be ineffective assistance of counsel. In Melendez v. Commissioner of Correction, 151 Conn.App. 351, 95 A.3d 551 (2014), a more detailed explanation by trial defense counsel to his client of the proposed plea bargain in which counsel offered explanations, pros & cons, and a recommendation was upheld. In Palmenta v. Commissioner of Correction, 152 Conn.App. 702, 99 A.3d 1254 (2014) an allegation that the trial defense counsel failed to adequately explain parole eligibility rules to the petitioner before he accepted a plea bargain was rejected upon a finding that counsel had adequately researched and evaluated the issue of parole eligibility.
A plea of guilty by a criminal defendant is among the highest forms of proof known to the law. After all, the one person who is in the best position to know that facts of what may or may not have taken place is the defendant. Unless the defendant was suffering from sort of psychotic break at the time of the alleged incident, he or she should be aware of what he or she was doing at the operative time. While a criminal defendant may or may not be in the position to accurately evaluate whether those actions did or did not constitute the offense charged (hence, the importance of advice furnished by counsel), no one is in a better position to know the factual situation better than the person accused of the crime. Where a defendant knows he or she did not factually commit the acts alleged in the information, then a plea of guilty may not be under consideration at all.
This Court would very much like to believe that it is a universal truth that where a defendant knows he or she did not do what the state says he or she did, that a trial would always result in a finding of not guilty. Likewise, where a defendant knows that the state's factual allegations are true, such defendant should always presume that there is some evidence available to prove those facts Notwithstanding, eyewitness accounts are not always reliable, witnesses do commit perjury, people can be mistaken in what they recall having said, seen, or done, and innocent events can sometimes be construed to appear inculcapatory and lead to erroneous conclusions. Of course, this is why it is the defendant, relying upon proper advice of counsel, who always retains the final say as to the plea, guilty or not guilty, that is to be entered.
In the case at bar, it is clear from the testimony and the documentary evidence adduced at trial that both of the petitioner's attorneys provided this petitioner with more than adequate constitutional representation. It is inconceivable from the evidence adduced at this habeas trial to conclude that Attys. Gulash and Polan, both experienced criminal trial attorney, did not adequately explain the pretrial offers and risks that were attendant upon the petitioner's rejecting it. This court has no difficulty in concluding that it was the petitioner who wanted to take the case to trial because he believed he had a chance to win in front of the jury and did not want to be branded as a sex offender.
There is an additional issue of claiming ineffective assistance of counsel for the failure of his trial defense counsel to persuade the trial judge to " award" Judge Ordered Jail Credit. This is a specious argument, at best. It is clear in Connecticut that jail credit is a creature of statute, not some " judicial slush fund" available to be handed out to criminal defendants at will. Moreover, by statute, the responsibility of correctly determining the appropriate amount of jail credit is vested in the Commissioner of Correction. It is true that there has been testimony in this case, as in other cases before this one, that the Commissioner will honor a judicial order of jail credit. Notwithstanding, there is no statutory authority for a judicial authority to issue such credit. Consequently, this court concludes that the award of judicial jail credit is not statutorily authorized. Given this, one cannot accuse a counsel of ineffective representation for failing to ask a judge to do that which the judge is not authorized to do.
There is no basis for this Court to conclude either deficient performance or prejudice on the part of any of the lawyers involved in the Petitioner's representation.
As a result of all of the foregoing, The Petition for a Writ of Habeas Corpus is, therefore, denied and the Petition Dismissed.