Opinion
No. CV06-4000897
January 19, 2011
Memorandum of Decision
This is a petition in which an individual who has been committed to the custody of the Commissioner of Correction in the state of Connecticut seeks release from that commitment by way of a petition for a Writ of Habeas Corpus. The petitioner, Maceo "Troy" Streater, was the defendant in a criminal case, Docket No. CV 632-6268 (Judicial District of New Haven), charged with one count of murder, in violation of General Statutes, Section 53a-54a and one count of carrying a pistol without a permit, in violation of General Statutes, Section 29-35, in connection with the death on May 8, 1990, of Terrance Gamble. A trial to a jury commenced on July 24, 1991, ending in a mistrial on August 13, 1991 after the jury reported it was unable to reach a verdict. A second trial began on January 19, 1993. On February 9, 1993 the petitioner was found guilty of murder and of carrying a pistol without a permit and on March 28, 1993, the petitioner received a total effective sentence of thirty-five years imprisonment for said offense. The petitioner appealed his conviction. The conviction was affirmed on December 13, 1994, State v. Streater, 36 Conn.App. 345 (1994), cert. den. 232 Conn. 908 (1995).
In 1996, the petitioner filed his first habeas petition alleging that there was newly discovered evidence that proved his innocence of the crimes. That petition was tried before the Superior Court, Downey, J., and was denied on December 17, 1998. See Streater v. Commissioner of Correction, No. CV96-0389147S (Dec. 17, 1998). No appeal was apparently ever taken from this decision. On August 26, 1999, the petitioner filed a second habeas petition that was dismissed without trial on July 24, 2002 by the Court, Silbert, J. Once again, no appeal was taken on this dismissal, either. The instant petition, his third habeas petition, was filed on December 29, 2005. In this petition the petitioner, for the first time raises questions of juror impropriety that, he alleges, leads to his conviction being unreliable.
The gravamen of Count I is that Attorney John J. Kelly was hired by the petitioner for the express purpose of preparing and filing a motion with the trial court seeking a new trial. Mr. Kelly did undertake that mission, however was a few days late in getting the motion filed so it was unable to proceed. Notwithstanding, he immediately filed a petition for a writ of habeas corpus in the New Haven Judicial District alleging actual innocence on the same grounds that he had filed the motion for a new trial. While missing the deadline to file a motion for a new trial is more than likely, deficient performance, the petitioner suffered no prejudice as a result since the issues that he had intended to raise were in fact addressed by the court via a petition for habeas corpus. Unfortunately for the petitioner, the issues were decided adversely to him and since no appeal was ever undertaken, are now final and binding. Count I must clearly be denied on the basis of a failure to prove prejudice as required by Strickland v. Washington.
Mr. Streater continues to make full use of the courts. He has two tort cases pending in the Judicial District of Hartford in which he is the plaintiff and another tort case pending in the Judicial District of New Haven.
This instant matter came on for trial before this Court on June 11, 2010 and various other dates thereafter. As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The Court has reviewed all of the testimony and documentary evidence and makes the following findings of fact.
Findings of Fact
The petitioner was the defendant in a case in the Judicial District of New Haven under Docket Number CR90-0326268-T entitled State v. Streater in which he was charged with murder in violation of CGS § 53a-54a, and carrying a pistol without a permit in violation of CGS § 29-35a.
2. Attorney Thomas Uhlman represented the petitioner at trial and Attorney John Williams represented him on his direct appeal.
There was an initial trial at which the petitioner was represented by Attorney William Dow that resulted in a hung jury and a mistrial. The petitioner makes no allegations in connection with that trial.
3. As regards the charged crimes, the jury reasonably could have found the following facts: "[t]he victim, Terrance Gamble, was riding a bicycle in the area of Munson and Dixwell Avenues in New Haven at approximately 9 p.m. on May 8, 1990. The victim was with Donnie Andrews and Teverace Bellamy when they encountered an acquaintance, Joseph Preston. Preston and the victim separated from the others and rode their bicycles up Shelton Avenue. Four young African-American males, including the defendant, approached Gamble on foot. An argument ensued between Gamble and the defendant, while Preston stood fifteen to twenty feet away. Preston recognized the defendant and noted that he was wearing a white shirt and black pants. The argument between the victim and the defendant continued and, at a time that Preston was looking the other way, Preston heard gunshots. When Preston turned, he saw the defendant standing in the middle of the street shooting at Gamble. Gamble died as a result of his injuries. The New Haven police were notified. Detective Joseph Howard observed the body of the victim lying in the street. Howard overheard some onlookers comment that the people responsible for the shooting had fled down Argyle Street toward Dixwell Avenue. While Howard was canvassing the neighborhood for possible witnesses, Carol Cheek motioned him to the rear of a building, and provided him with information that led him to check outside the defendant's home for a faded red compact car. Detectives Anthony DiLullo and John Greene were also dispatched to the shooting scene and arrived at about 9:25 p.m. Howard called DiLullo and Greene over to his car to meet Cheek. Cheek told the officers that earlier in the evening she had heard gunshots and had seen four young black men running from the area where she had heard the shots. The men entered a faded red or maroon automobile parked on Dixwell Avenue. Cheek identified the defendant as one of the men she had seen running. He lived across the street from her, and she had known him for about twenty years. Cheek also told the officers she had seen the defendant with the maroon automobile on other occasions, and that it was normally parked outside his house on Dixwell Avenue. Later that evening, Howard observed a faded Buick Skyhawk in front of the defendant's house. The next evening, at about 11 p.m., Howard stopped the Skyhawk after the defendant and another man entered the vehicle and began to drive away. Howard arrested the defendant, not for the shooting, but on unrelated pending warrants. Preston was contacted by the police several days later regarding the shooting. He reviewed a tray of photographs of black males and selected the defendant's photograph as that of the person who had shot the victim.
4. "On May 10, 1990, DiLullo and Greene tape-recorded a statement from Cheek at her apartment. On May 16, Cheek met with the detectives to read and review her statement. She read and corrected her statement, initialed each correction and signed the last page. At trial, Cheek testified that she did not remember being outside her house on May 8. She also stated that she did not approach Howard that night, that she did not recall whether she gave the police a taped statement on May 10, and that looking at the transcript of the statement did not help because she could not read. She acknowledged that the signature on the statement was hers, although she did not remember signing it. Cheek listened to the tape recording of the statement, but denied that the voice was hers. On cross-examination, Cheek said that two officers were putting pressure on her to provide information about the shooting. On redirect examination, although Cheek said she had no recollection of the events of May 8, she did recall trying to get herself and her children out of the way of gunshots. At trial, Donnie Andrews testified that minutes before the shooting he had seen the defendant with three African-American men in a maroon car. After the victim left, Andrews began walking home when he heard gunshots. He and Bellamy went back to Shelton Avenue, arriving shortly before the police. At about 3 a.m. on May 9, Andrews gave a taped statement to the police. He selected the defendant's photograph from a tray of about 150 photographs of black men as that of the person he had seen arguing with the victim. The defendant testified on his own behalf and raised an alibi defense. He testified that he did not recall all of his activities of May 8, but that, at some time after dark, he drove to First Calvary Baptist Church to look for his brother Chuck. He admitted that he was driving a cranberry Skyhawk. He did not recall the time he arrived at the church. While inside the church, the defendant saw Chuck, Randy Hodges, and the Reverend Boisy Kimber. The defendant knew Hodges, but he was not a friend. On cross-examination, the defendant said that Hodges was in jail at the time of trial."
See State v. Streater, 36 Conn.App. 345 (1994), cert. den. 232 Conn. 908 (1995).
5. The petitioner, after a trial to the jury, was convicted of all counts.
6. The petitioner was thereafter sentenced by the court, Thompson, J., to a total effective sentence of thirty-five years to serve, consecutive to any existing sentence.
7. Following the denial of his appeal, the petitioner and his family hired Attorney John J. Kelly to file a Motion for a New Trial with the trial court. That motion was unsuccessful because it was filed beyond the three-year period in which such a motion may be filed. Notwithstanding, Attorney Kelly converted that motion into a petition for a writ of habeas corpus (e.g. the first habeas petition) that was tried and ultimately denied.
8. Additional facts shall be discussed as necessary.
Discussion of Law
It is important at the outset to understand 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 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. 385, 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 . . . 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, 229 Conn. 397 at 422-23 (1994). The burden of proof in a habeas petition, therefore, rightfully rests upon the petitioner.
In the instant case, the petitioner alleges that his trial defense counsel, his appellate counsel, and his initial habeas counsel were ineffective for a multitude of reasons. In order to prevail on the issue of whether there has been ineffective representation by the petitioner's counsel, the petitioner must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 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 performance may have been substandard, will result in denial of the petition.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate the underlying case in a different manner. It is indisputable fact that many times if one had foreknowledge of certain events; different courses might well have been taken. Likewise, a habeas court, knowing the outcome of the trial, "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 at 264 (1979), cert. den. 243 Conn. 967 (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 (2000). It is not the function of a habeas court to sit as a peer review committee to evaluate the techniques and tactics of how an attorney conducted the representation of the petitioner. Each attorney will try a case differently. Unless the actions of the attorney are so deficient as to have led to the conviction and confinement of the petitioner, then habeas relief cannot lie.
Moreover, "[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client." Strickland v. Washington, 466 U.S. 668 at 688 (1984).
Or, in this case, an attorney who is at least the fifth attorney to have represented this petitioner and one who can, more likely than not, expect to see her own actions questioned in yet another habeas petition.
Justifiably, then, the burden of persuasion in a habeas case rests with the petitioner because of the "fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence." Summerville v. Warden, 229 Conn. 397 at 419 (1994). There is, therefore, a strong societal interest "in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility." Id.
Additionally it is not even necessary to consider whether a trial counsel's performance was deficient if the Habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) (`[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')" Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
The petitioner in this case alleges a large number of what he calls deficiencies in his lawyer's performance. While these complaints are easily raised, they require that the petitioner also provide evidence to support that the allegations he makes are true. It is not enough for a petitioner to come into the habeas court and provide the court with a laundry list of complaints. That, unfortunately, is precisely what the petitioner has done in this case. In essence, the petitioner is telling this court that he should not have been convicted so it must have been his lawyer's fault. Unfortunately for the petitioner, it is clear from the testimony of Attorneys Uhlman, and Kelly, whose testimony the Court specifically credits as being credible, that the representation that Mr. Streater received was more than constitutionally sufficient. In the instant case, the petitioner must first prove that it was deficient performance by Attorneys Uhlman, Kelly, and Williams to fail to do those things that the petitioner alleges they failed to do. If so, then the petitioner must next prove that there is a reasonable probability that, had the actions been properly performed, that he would have been acquitted of these charges had they done so.
Attorney John R. Williams was listed as a witness for the petitioner, however, he testified to having next to no recollection of any of the events in this matter and did not offer any substantive testimony before this court.
Addressing the specifics of the allegations in the instant case, it is abundantly clear that there was no prejudice that inured to the detriment of the petitioner demonstrated at the habeas trial. The petitioner denied committing this crime and elected to plead not guilty and take his case to the jury. His case was, thereafter, duly presented to a jury and the petitioner was, thereafter, duly convicted. The petitioner did not present any evidence at the habeas trial that would lead this court to conclude that there was any likelihood that the outcome of the trial would have been any different. "To mount a successful collateral attack on his conviction, a prisoner must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417, reh. denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962). D'Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984); see also Bowers v. Warden, 19 Conn.App. 440, 441, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989). In order to demonstrate such a fundamental unfairness or miscarriage of justice, the petitioner should be required to show that he is burdened by an unreliable conviction." (Internal quotation marks omitted.) Buckley v. Commissioner of Correction, 222 Conn. 460-61." Summerville v. Warden, 229 Conn. 397 at 419 (1994). The petitioner's evidence fails to overcome that burden. While it may be true that his trial representation may have been a bit less than perfection, it was well within the bounds of Constitutional acceptability.
A standard that is neither constitutionally mandated nor probably capable of attainment.
This admonition from the United States Supreme Court bears reiteration. "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' . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable and professional judgment." (Citations omitted.) Strickland v. Washington, supra, 466 U.S. 689-90. This Court will find that the strategic and tactical decisions of counsel, as well as the manner in which they carried them out to be within the acceptable range of performance. There is, therefore, no finding of deficient performance nor is there any prejudice.
Of course, even though a habeas court is to give great deference to strategic and tactical decisions of trial defense counsel, such decisions must meet an objective standard of reasonableness, "it does not follow necessarily that, in every instance, trial counsel's strategy concerning these decisions is sound." See Bryant v. Commissioner of Correction, 290 Conn. 502 at 521 (2009).
In addition, the Respondent has raised the defense of Procedural Default. "Connecticut law is clear that a petitioner who raises a constitutional claim for the first time in a habeas corpus proceeding must show (1) good cause for the procedural default, i.e., the reason for failing to raise the claim at trial or on direct appeal, and (2) prejudice from the alleged constitutional violation." Solman v. Commissioner of Correction, 99 Conn.App. 640, 644, 916 A.2d 824, cert. denied, 282 Conn. 901, 918 A.2d 888 (2007). "[T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate's procedural rule . . . Cause and prejudice must be established conjunctively . . . If the petitioner fails to demonstrate either one, a trial court will not review the merits of his habeas claim." (Citations omitted; internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 191, 982 A.2d 620 (2009).
"[T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance." (Internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001). "So long as [the petitioner was] represented by counsel whose performance is not constitutionally ineffective under the standard established under Strickland v. Washington, [ 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] . . . [there is] no inequity in requiring him to bear the risk of attorney error that results in a procedural default." Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). That is, "attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of . . . procedure." (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, supra, 294 Conn. 194.
Considering the claims of juror misconduct, it is clear that all of the facts that were adduced surrounding the alleged juror misconduct were known to and available to both the trial defense counsel and the appellate counsel as well as initial habeas counsel.
The petitioner puts forth an interesting position here. The allegation is that the jury in his second criminal trial was somehow intimidated by various incidents into believing that the petitioner was some sort of gang leader in New Haven. Contrary to the normal outcome of such intimidation that would have led to the jury being afraid to convict the petitioner out of concern for reprisals, the theory here is that because of the perceived intimidation, the jury returned a verdict of guilty, thereby engaging in misconduct and depriving the petitioner of the due process of the law. In support of this theory, the petitioner alleges that:
One of more of the jurors believed that members of the Streater family had followed them to their place of employment;
One or more of the jurors was fearful and crying in the jury deliberation room;
One of more of the jurors believed that juror M____'s automobile brakes had been tampered with;
One of more of the jurors believed that the Streater family had followed the jurors to the parking lot each night and wrote down the juror's vehicle information;
A female juror had requested a male juror on more than one occasion to give her a ride home because she was afraid to walk home; and,
One or more of the jurors was fearful that a Streater family member had access to the vending machines in the jury deliberation room.
All of these facts were well known to counsel at the time of the trial. The evidentiary hearing in the habeas proceeding did not produce any new revelations that were not known earlier and could have been raised either with the trial court, on appeal or at the first habeas trial. This issue is, therefore, procedurally defaulted and the petitioner is precluded from raising it for the first time in this habeas petition.
As, indeed, some of these issues were.
Accordingly, the Petition for a Writ of Habeas Corpus is denied.