Opinion
No. CV05-4000294
October 2, 2009
Memorandum of Decision
The petitioner, Scott Swain, alleges in his petition for a Writ of Habeas Corpus initially filed on January 26, 2005 and amended for a final time on April 14, 2009, that his 2004 conviction for two counts of sexual assault in the first degree in violation of CGS § 53a-70(a); two counts of kidnapping in the First Degree in violation of CGS § 531-92; and, two counts of threatening in violation of CGS §§ 53a-62 were obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Constitution of the state of Connecticut. He specifically claims to have been deprived of the effective assistance of Trial Defense Counsel.
This matter came on for trial before this Court on September 23, 2009 at which time testimony was received from the petitioner, his trial defense counsel, Atty. Mark Hauslaib and Atty. Thomas Farver testifying as an expert in criminal trial defense. The transcript of the petitioner's trial; the record on appeal; and other related documents were also received into evidence. 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 evidence and makes the following findings of fact.
Findings of Fact
1. The petitioner was the defendant in a case in the Judicial District of Windham, under Docket Numbers CR02-0116642 and CR03-0119772 both entitled State v. Swain. The petitioner, after a trial to the jury in which both docket numbers were joined for trial, was convicted of two counts of sexual assault in the first degree in violation of CGS § 53a-70(a); two counts of kidnapping in the First Degree in violation of CGS § 53l-92; and, two counts of threatening in violation of CGS §§ 53a-62.
2. The court, Koletsky, J., sentenced the petitioner to a total effective sentence of forty-five years incarceration, consecutive to a previously imposed sentence.
As per the Department of Correction Inmate Information Web site, http://www.ctinmateinfo.state.ct.us, the petitioner's maximum release date has been calculated as August 25, 2052.
3. Attorney Mark Hauslaib represented the petitioner at all pertinent stages of the proceedings.
4. The jury could reasonably have found the following facts pertaining to the offenses of which the petitioner was convicted to be true. "On August 5, 2001, B was staying at the residence of a friend in Willimantic. B was a heroin addict who earned money by means of prostitution. At approximately 3:45 a.m., she left her friend's residence to purchase heroin. While she was walking along Main Street, the defendant drove by her several times in his automobile. The defendant ultimately stopped his automobile, conversed with B and asked her to get into his automobile. B recognized the defendant as someone who, on several prior occasions, had paid her to perform oral sex. One such occasion had occurred as recently as eight months prior to this encounter. B got into the defendant's automobile, and the defendant drove B away from Main Street.
5. "The defendant agreed to pay B $60, and B agreed to perform oral sex and to permit the defendant to engage in vaginal intercourse with her. The defendant drove to a desolate, wooded area in Windham, off Old Mansfield Road, and parked his automobile. The defendant and B got out of the automobile, and B began to perform oral sex on the defendant. The defendant asked B to stop, grabbed her by the hair with his left hand and held a knife against her neck with his right hand. The defendant instructed B to do as he said, threatening to stab her if she did not.
6. "The defendant ordered B to undress and, while she resisted, attempted to engage in anal intercourse with her. Ultimately, the defendant forced B to her knees and instructed her to perform oral sex. Following the sexual assault, the defendant told B to get dressed and to walk into the wooded area, threatening to kill her if she looked back. The defendant drove away. B eventually walked to a traveled roadway, where a bystander provided assistance and took B to the workplace of one of B's friends in Willimantic. The bystander later reported the incident to the police and, while a police officer was in the process of investigating the reported incident later that morning, B approached him and related what had occurred.
7. "Less than one year later, on July 16, 2002, P, a heroin addict who engaged in prostitution, left her Willimantic residence at approximately 2 a.m. to earn money to purchase heroin. P walked toward Main Street in Willimantic. The defendant approached P in his automobile and inquired if she was working as a prostitute. P responded affirmatively and got into the defendant's automobile. The defendant inquired how much P would charge him for specific sexual acts, but the parties did not reach an agreement in this regard.
8. "The defendant drove P to approximately the same area off Old Mansfield Road in Windham where he had sexually assaulted B. Soon after he parked his automobile in a wooded clearing, the defendant forced P to perform oral sex. He grabbed her hair and told her he was armed with knife and a gun. He also showed her a gun. At one point, he held a knife against her back and threatened to stab her. Later, he struck P's head, partially undressed her and, by means of his fingers or a gun, vaginally penetrated P. After he completed his sexual act, the defendant forcibly removed P from the automobile, pulling her by her hair. The defendant walked P into the wooded area, instructed her to start running and not to look back. The defendant drove away. P made her way out of the wooded area and walked to a residence where she asked for help. Police responded to the scene and assisted P in obtaining medical care."
See State v. Swain, 101 Conn.App. 253 (2007), cert. den., 283 Conn. 909 (2007).
9. 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).
In order to prevail on the issue of whether there has been ineffective representation by the petitioner's Trial Defense 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, CT Page 15962 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 a case in a different manner. It is indisputable fact that if one had foreknowledge of certain events, different courses might well have been taken. Likewise, a habeas court knowing the outcome of the trial, and in this case, the appeal, "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. Commisioner 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).
In the instant case, there are a plethora of allegations involving the failure of the petitioner's counsel to do a number of things, however, there was a paucity of proof at the habeas trial showing that these allegations, in any way, prejudiced the petitioner. In fact, it was the respondent that introduced the transcript of the criminal trial thereby allowing the habeas court to even ascertain what took place at the criminal trial. There is no way that this court can conclude that the petitioner has met his burden of proof that he was the "victim" of ineffective assistance of counsel. A habeas court does not sit as some sort of examiner to evaluate and grade the performance of counsel. To simply suggest areas in which the trial defense counsel could have done things differently all but asks the court to engage in a plenary review and critique of counsel's efforts and thereafter attempt to find something wrong. This is a clear misunderstanding of the role of the habeas court. The burden of proof rests with the petitioner. "Judicial 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).
Thus, one can see that another reason why 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.
Moreover 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).
In the instant case, the petitioner has failed to present any affirmative evidence that would support a finding of ineffective assistance by counsel. The substantive testimony consisted entirely of a statement by the petitioner and his trial lawyer. This will necessarily require a showing that his appellate counsels' performance "was so deficient that it fell below the standard of reasonably effective assistance; and, . . . that these errors deprived the defendant of a fair appeal and caused an unreliable conviction to stand." Valeriano v. Bronson, 209 Conn. 75, at 82 (1988). It is incumbent upon the petitioner to prove that if the issues had been raised on direct appeal, there was a reasonable probability that, but for the deficient performance of his counsel, he would have prevailed at his trial.
The Strickland standard for ineffectiveness has not been met on either of the two prongs, but it is most clear and indisputable that the petitioner failed to demonstrate that there was any prejudice to him as a result of any act or omission by his trial defense counsel. It is indisputable that a criminal defendant is entitled to the representation of trained and competent legal counsel, however, "[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 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382 (1986); Strickland v. Washington, 466 U.S. 668, 689; United States v. Cronic, 466 U.S. 648, 656 (1984)." Yarborough v. Gentry, 540 U.S. 1 (2003).
Accordingly, the Petition for a Writ of Habeas Corpus is denied.