Opinion
CV144006018S
11-08-2017
Vance Eric Solman #201308 v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Dawne G. Westbrook, J.
The petitioner, Vance Eric Solman, initiated this petition for a writ of habeas corpus, claiming that his second habeas counsel, and through this his first habeas counsel, appellate counsel and trial counsel, provided him ineffective legal representation. The petitioner seeks an order from the court directing the criminal court to vacate his convictions and release him from confinement. The court heard evidence on July 14, 2017. Having considered the credible evidence, which included testimony by the petitioner and seven exhibits, and the arguments of the parties, the court denies the petition.
I
PROCEDURAL HISTORY
The petitioner stands convicted, after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59(a)(5), burglary in the first degree in violation of General Statutes § 53a-101(a)(1), risk of injury to a minor in violation of General Statutes § 53-21 and criminal possession of a firearm in violation of General Statutes § 53a-217. The petitioner was represented at his criminal trial by Attorney Patricia Buck Wolf.
On January 15, 1999, the trial court, Devlin, J., sentenced the petitioner to a total effective sentence of forty years of imprisonment. The petitioner's convictions were affirmed on direct appeal. State v. Solman, 67 Conn.App. 235, 786 A.2d 1184 (2001), cert. denied, 259 Conn. 917, 791 A.2d 568 (2002). The petitioner was represented at his direct appeal by Attorney William Westcott. The following findings of the Appellate Court are relevant to a disposition of the instant petition:
In September 1997, the victim and his wife were employed at a McDonald's restaurant in Branford and became acquainted with the defendant, who was employed at a nearby Mobile gas station. The defendant's nephew also was employed at the Mobile station and became friendly with the victim's wife. That friendship eventually progressed to the point where the victim felt that it was necessary to intervene and, accordingly, he told the defendant's nephew to leave his wife alone. The victim's brother-in-law also confronted the nephew and recommended a curtailment of the relationship.
Shortly after midnight, on September 24, 1997, as he lay in bed with his wife and child, the victim heard a loud banging at the back door of their apartment. The victim walked to the kitchen to investigate the disturbance when the defendant burst through the door and shot the victim several times before fleeing. Ten .22 caliber shell casings were found at the scene along with a live round. The defendant was apprehended thereafter, and the police discovered a live .22 caliber round at his residence during a search of the premises.
While awaiting trial, the defendant was incarcerated at the Cheshire Correctional Institution, where he became friendly with a fellow inmate, Robert Horrocks. He admitted to Horrocks that he had shot the victim and solicited Horrocks, if released on bond, to kill the victim and his spouse. He wrote out the names of the targets, their descriptions and the address of the victim's mother-in-law.State v. Solman, supra, 67 Conn.App. 236-37.
The petitioner brought his first habeas petition, last amended on September 10, 2004, alleging a claim of ineffective assistance of trial counsel concerning the testimony by the informant, Robert Horrocks, and a due process violation stemming from the state's failure to provide certain exculpatory evidence. The petitioner was represented by Attorney William Westcott. The habeas court, Fuger, J., denied the petition on January 11, 2005. The petitioner appealed the habeas court's decision, and the petitioner's appeal was dismissed. Solman v. Commissioner of Correction, 99 Conn.App. 640, 916 A.2d 824, cert. denied, 282 Conn. 901, 918 A.2d 888 (2007).
The petitioner initiated his second habeas petition on December 30, 2005. In his second amended five count petition, the petitioner raised the following claims: (1) actual innocence; (2) violation of due process and the right to a fair trial due to the prosecution's failure to disclose material favorable evidence; (3) ineffective assistance by trial counsel; (4) ineffective assistance by appellate counsel; and (5) ineffective assistance by first habeas counsel. The petitioner was represented by Attorney Damon Kirschbaum. The habeas court, Nazzaro, J., denied the petition on November 28, 2012. The petitioner appealed the habeas court's decision, and the petitioner's appeal was dismissed. Solman v. Commissioner of Correction, 149 Conn.App. 901, 86 A.3d 1101, cert. denied, 312 Conn. 906, 93 A.3d 156 (2014).
On April 11, 2016, the petitioner filed a pro se petition for a new trial in docket number NNH-CV16-5036679-S. The court, Robinson, J., granted, in part, the respondent's motion for summary judgment on April 24, 2017. The general case remains pending.
The petitioner initiated the present habeas petition, his third petition, on January 14, 2014. In his one-count amended petition, filed on May 24, 2017, the petitioner claims that his second habeas counsel, Attorney Kirschbaum, was ineffective in failing to raise the claims that his first habeas counsel, Attorney Westcott, was ineffective in failing to raise the following claims: (1) that trial counsel was ineffective for failing to effectively investigate the petitioner's case; (2) that appellate counsel was ineffective for failing to raise a sufficiency of the evidence claim on the petitioner's direct appeal; (3) that trial counsel was ineffective for failing to effectively cross examine witnesses and challenge eyewitness identification; and (4) that trial counsel provided ineffective assistance of counsel in the cumulative. The respondent filed a return on June 20, 2017, leaving the petitioner to his proof.
A trial was held on July 14, 2017, at which the petitioner called himself as his only witness. Both parties presented exhibits to the court.
II
DISCUSSION
" 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)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
The petitioner has the burden to establish that " (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, at 466 U.S. 694 .
" 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.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, at 466 U.S. 687 . " It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the 'counsel' guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial." Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008). When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, at 466 U.S. 689 .
Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012). Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, at 466 U.S. 686 .
" The use of a habeas petition to raise an ineffective assistance of habeas counsel claim, commonly referred to as a 'habeas on a habeas, ' was approved by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992). In Lozada, the court determined that the statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51-296(a) includes an implied requirement that such counsel be effective, and it held that the appropriate vehicle to challenge the effectiveness of habeas counsel is through a habeas petition." (Footnote omitted.) Sinchak v. Commissioner of Correction, 126 Conn.App. 684, 686-87, 14 A.3d 343 (2011).
The Appellate Court explained that when the Strickland standard is" 'applied to a claim of ineffective assistance of prior habeas counsel, [it] requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceedings . . . [T]he petitioner will have to prove that one or both of the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by 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, as explained by our Supreme Court in Lozada v. Warden [ supra, 223 Conn. 834], 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.' . . . Ham v. Comm'r of Corr., 152 Conn.App. 212, 230, 98 A.3d 81, cert. denied, 314 Conn. 932, 102 A.3d 83 (2014). 'We have characterized this burden as presenting a herculean task . . .' Alterisi v. Commissioner of Correction, 145 Conn.App. 218, 227, 77 A.3d 748, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013)." Mukhtaar v. Commissioner of Correction, 158 Conn.App. 431, 438-39, 119 A.3d 607 (2015). Therefore, pursuant to the foregoing case law, in order to set forth a prima facie case of ineffective assistance of habeas counsel on the ground of ineffective assistance of underlying counsel, the petitioner must set forth a prima facie case of ineffective assistance of underlying counsel.
A
Failure to Investigate
The petitioner first alleges that Attorney Kirschbaum was ineffective for failing to raise the claim that Attorney Westcott was ineffective for failing to raise the claim that Attorney Wolf was ineffective for failing to properly investigate the petitioner's case. Specifically, the petitioner alleges that Attorney Wolf should have obtained a police photograph depicting the exterior door of the victim's residence, and insisted on DNA collection and testing of a shell casing and blood droplets found on the scene. The petitioner failed to sustain his burden of establishing either deficient performance or prejudice with respect to this claim.
" [T]he presentation of testimonial evidence is a matter of trial strategy . . . (Citation omitted; internal quotation marks omitted.) Bowens v. Commissioner of Correction, 104 Conn.App. 738, 744, 936 A.2d 653 (2007), cert. denied, 286 Conn. 905, 944 A.2d 978 (2008). " The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it . . . The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." Norton v. Commissioner of Correction, 132 Conn.App. 850, 858-59, 33 A.3d 819, cert. denied, 303 Conn. 936, 36 A.3d 695 (2012).
Attorney Wolf did not testify at this habeas proceeding. To satisfy the deficient performance prong, the petitioner must overcome the strong presumption that Attorney Wolf's conduct fell within the wide range of reasonable professional assistance that might be considered sound trial strategy. Strickland v. Washington, supra, 466 U.S. 689-90. Because Attorney Wolf did not testify, this court cannot determine whether her failure to obtain the photograph or insist on DNA collection and testing fell within the wide range of professional judgments that could have been made under the circumstances of this case. Without such evidence, this court finds that the petitioner has not produced sufficient evidence to overcome the presumption.
Furthermore, even if counsel's performance had been deficient, the petitioner failed to prove prejudice by establishing that a reasonable probability exists that the outcome of the proceedings would have been different had these issues been further investigated. The petitioner did not produce any police photographs or any DNA test results. Without such evidence, the petitioner cannot sustain his burden of demonstrating what benefit additional investigation would have revealed. Norton v. Commissioner of Correction, supra, 132 Conn.App. 858-59.
The petitioner invites the court to draw an adverse inference against the respondent because the New Haven Police Department has been unable to produce the photograph of the exterior door of the victim's residence. Detective Matthew Caporale testified at the petitioner's criminal trial that he took the photograph, but it has never been located. The petitioner claims that the photograph shows that a black scuff mark was left on the door's exterior when it was kicked in, and that the petitioner was arrested wearing white soled shoes. The court finds that the petitioner did not give the court any basis for concluding that the photograph disappeared under circumstances that would justify such an inference, nor did the petitioner give the court any reason to believe that the discovery of the photograph would be likely to change the outcome of the trial.
As a result, the petitioner has failed to sustain his burden of establishing that Attorney Wolf's investigation constituted deficient performance, and therefore his claim of ineffective assistance against Attorney Kirschbaum as to this issue must be denied.
B
Sufficiency of the Evidence
The petitioner next alleges that Attorney Kirschbaum was ineffective for failing to present the claim that Attorney Westcott, acting as first habeas counsel, was ineffective for failing to present the claim that Attorney Westcott, acting as appellate counsel, was ineffective for failing to present a sufficiency of the evidence claim on appeal. The petitioner also failed to sustain his burden of establishing either deficient performance or prejudice with respect to this claim.
To succeed on a claim of ineffective assistance of appellate counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, supra, 466 U.S. 687. " The first part of the Strickland analysis requires the petitioner to establish that appellate 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; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . The right to counsel is not the right to perfect representation . . . While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions . . . Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues . . . Most cases present only one, two, or three significant questions . . . The effect of adding weak arguments will be to dilute the force of the stronger ones . . . Our Supreme Court has stated that [i]t is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate control under the sixth amendment . . . Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation." (Internal quotation marks omitted.) Bailey v. Commissioner of Correction, 107 Conn.App. 362, 366-67, 947 A.2d 2, cert. denied, 287 Conn. 922, 951 A.2d 568 (2008).
" In order to satisfy the prejudice prong, the petitioner must demonstrate that there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial . . . [T]o determine whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily analyzes the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm." Santaniello v. Comm'r of Corr., 99 A.3d 1195, 99 A.3d 1195, cert. denied, 314 Conn. 937, 102 A.3d 1115 (2014).
Attorney Westcott did not testify at this habeas proceeding. He did testify at the second habeas trial, and the court reviewed the transcript of his testimony at that proceeding. At the second habeas trial, Attorney Westcott testified that he reviewed the entire record in the petitioner's case, and raised issues regarding Horrocks' testimony and the reasonable doubt instruction. There was no testimony discussing why Attorney Westcott chose not to raise a sufficiency of the evidence claim. Thus, the court finds that the petitioner failed to show that Attorney Westcott's decision to not raise such a claim was unreasonable. The available testimony from Attorney Westcott suggests that he strategically chose his claims. The court must apply a strong presumption that Attorney Westcott's conduct falls within the wide range of professional assistance. See Strickland v. Washington, supra, 466 U.S. 689. While this presumption is rebuttable, the petitioner failed to present any affirmative evidence to rebut the presumption of reasonable professional assistance.
Moreover, the petitioner has not met his burden of proving prejudice by demonstrating that there is a reasonable probability that, but for Attorney Westcott's failure to raise the sufficiency of evidence claim on appeal, the petitioner would have prevailed in his direct appeal. " The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt . . . This court cannot substitute its own judgment for that of the [finder of fact] if there is sufficient evidence to support the [finder of fact's] verdict." (Internal quotation marks omitted.) State v. Oberdick, 74 Conn.App. 57, 61, 810 A.2d 296 (2002). Pursuant to the foregoing case law, it is clear from the record that sufficient evidence existed to support the petitioner's convictions.
As a result, the petitioner has failed to sustain his burden of establishing that Attorney Westcott was ineffective for failing to raise a sufficiency of evidence claim on appeal, and therefore his claim of ineffective assistance against Attorney Kirschbaum as to this issue must be denied.
C
Cross Examination and Eyewitness Identification
The petitioner further alleges that Attorney Kirschbaum was ineffective for failing to present the claim that Attorney Westcott was ineffective for failing to present the claim that Attorney Wolf was ineffective for failing to effectively cross examine witnesses and challenge the eyewitness identifications. Specifically, the petitioner's pretrial brief claims that Attorney Wolf ineffectively cross examined Detective Caporale, Yanil Then, Wellington Then and Robert Horrocks. The petitioner also failed to sustain his burden of proving either deficient performance or prejudice as to these claims.
The court notes that a claim regarding Attorney Wolf's alleged ineffective cross examination of Horrocks was raised and denied in the petitioner's first habeas proceeding, and a claim regarding Attorney Wolf's alleged ineffective cross examination of Detective Caporale was raised and denied in the petitioner's second habeas trial.
" [C]ross examination is a sharp two-edged sword and more criminal cases are won by not cross examining adverse witnesses, or by a very selective and limited cross examination of such witnesses, than are ever won by demolishing a witness on cross examination . . . The decision whether to cross examine a witness is peculiarly one for defense counsel and his judgment should be entitled to great respect by the court." (Internal quotation marks omitted.) State v. Clark, 170 Conn. 273, 287-88, 365 A.2d 1167, cert. denied, 425 U.S. 962, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976).
In other words, " '[a]n attorney's line of questioning of a witness is a tactical decision. [As such, this] court will not, in hindsight, second-guess counsel's trial strategy.' . . . Antonio A. v. Commissioner of Correction, [148 Conn.App. 825, 832, 87 A.3d 600]; see also Mitchell v. Commissioner of Correction, 109 Conn.App. 758, 769-70, 953 A.2d 685 (after reviewing record from both criminal and habeas proceedings, Appellate Court agreed that examination of witnesses was exercise of sound trial strategy that would not be second-guessed), cert. denied, 289 Conn. 950, 961 A.2d 417 (2008)." Hilton v. Commissioner of Correction, 161 Conn.App. 58, 71, 127 A.3d 1011 (2015). " The fact that counsel arguably could have inquired more deeply into certain areas, or failed to inquire at all into areas of claimed importance, falls short of establishing deficient performance." (Citation omitted; internal quotation marks omitted.) Velasco v. Commissioner of Correction, 119 Conn.App. 164, 172, 987 A.2d 1031, cert. denied, 297 Conn. 901, 994 A.2d 1289 (2010).
As discussed supra, Attorney Wolf did not testify and therefore the court does not have sufficient evidence to overcome the strong presumption that her tactical decisions as to the cross examination of these witnesses and the manner in which she challenged the eyewitness identifications fell within the wide range of acceptable professional conduct. Moreover, even if counsel's examination had been deficient, the petitioner has failed to establish that he was prejudiced by showing a reasonable probability that the outcome of the proceedings would have been different. None of the witnesses testified at this habeas proceeding so it is not clear how further examination would have impacted the trial. See Cranford v. Commissioner of Correction, 285 Conn. 585, 599, 940 A.2d 789 (2008) (" In a habeas proceeding, the petitioner's burden of proving that a fundamental unfairness has been done is not met with speculation . . . but by demonstrated realities" [internal quotation marks omitted]). Additionally, as to Horrocks' cross examination, the Appellate Court in the petitioner's direct appeal held that " [e]ven if the jury had rejected [his] testimony, it had before it enough evidence to support a guilty verdict." State v. Solman, supra, 67 Conn.App. 241.
As a result, the petitioner has failed to sustain his burden of establishing that Attorney Wolf's cross examination of witnesses and challenge of eyewitness identifications constituted ineffective performance, and therefore his claim of ineffective assistance against Attorney Kirschbaum as to this issue must be denied.
D
Ineffective Assistance of Counsel in the Cumulative
The petitioner further alleges that Attorney Kirschbaum was ineffective for failing to present the claim that Attorney Westcott was ineffective for failing to present the claim that Attorney Wolf provided ineffective assistance of counsel in the cumulative. This claim must also fail.
Our Appellate Court recently addressed the application of the cumulative error doctrine in determining whether a petitioner was prejudiced by counsel's purported deficiencies, noting at the outset that " [o]ur appellate courts . . . have consistently declined to adopt this method of review." Antwon W. v. Commissioner of Correction, 172 Conn.App. 843, 850-51, 163 A.3d 1223, cert. denied, 326 Conn. 909, 164 A.3d 680 (2017)." 'When faced with the assertion that the claims of error, none of which individually constituted error, should be aggregated to form a separate basis for a claim of a constitutional violation of a right to a fair trial, our Supreme Court has repeatedly decline[d] to create a new constitutional claim in which the totality of alleged constitutional error is greater than the sum of its parts.' . . . Anderson v. Commissioner of Correction, 148 Conn.App. 641, 645, 85 A.3d 1240, cert. denied, 90 A.3d 976, 90 A.3d 976, cert. denied sub nom. Anderson v. Dzurenda, U.S., 135 S.Ct. 201, 190 L.Ed.2d 155 (2014); see State v. Tillman, 220 Conn. 487, 505, 600 A.2d 738 (1991), cert. denied, 505 U.S. 1207, 112 S.Ct. 3000, 120 L.Ed.2d 876 (1992). Because it is not within the province of this court to reevaluate decisions of our Supreme Court; Anderson v. Commissioner of Correction, supra, at 645, 85 A.3d 1240; we lack authority under the current state of our case law to analyze the petitioner's ineffective assistance claims under the cumulative error rule. Moreover, application of the cumulative error rule would not entitle the petitioner to relief because not one of [counsel's] purported trial errors constitutes deficient performance under Strickland ." (Footnote omitted.) Id., 851. In the present case, this court also lacks the authority pursuant to the current state of the case law to analyze the petitioner's claim of ineffective assistance of counsel in the cumulative. Furthermore, as in Antwon W., application of the cumulative error rule here would not entitle the petitioner to relief because this court determined herein that none of trial counsel's purported errors constituted deficient performance pursuant to Strickland . As a result, this claim must also fail.
III
CONCLUSION
Accordingly, the petitioner's habeas petition is denied.