Opinion
No. CV 04 4000228
December 14, 2007
MEMORANDUM OF DECISION ON WRIT OF HABEAS CORPUS PETITION
The petitioner in this habeas corpus case asserts that his incarceration is illegal because his conviction rests upon the deprivation of his constitutional right to the effective assistance of counsel under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Specifically, the petitioner claims that counsel: (1) Failed to adequately investigate; (2) failed to give the petitioner copies of police reports; (3) failed to call two witnesses for the defense; (4) failed to adequately prepare for trial; and (5) improperly used pressure to induce the petitioner to plead guilty.
After a hearing on October September 25, 2007, the court finds no merit to the petitioner's claims.
Findings of Facts
The petitioner was a criminal defendant in the Judicial District of Hartford. He was charged with various offenses in multiple dockets. In docket number CR 01-549717, the petitioner was charged with attempted murder in violation of General Statutes §§ 53a-54a and 53a-49(a)(2), assault in the first degree with a deadly weapon in violation of §§ 53a-59(a)(1) and 53-202k, and criminal possession of a pistol or revolver in violation of § 53a-217c(a)(1). In docket number CR 99-540262, the petitioner was charged with a violation of probation in violation of § 53a-32. In docket number CR 02-562870, the petitioner was charged with two counts of tampering with a witness in violation of § 53a-151 and two counts of witness bribery in violation of § 53a-149.
Attorney Fred DeCaprio represented the petitioner throughout the criminal proceedings. The petitioner's trial commenced on June 7, 2002. DeCaprio and the petitioner discussed the case in detail. There is no credible evidence that DeCaprio failed to show the petitioner copies of police reports or any other evidentiary materials. The petitioner told DeCaprio that he did not shoot the victim, Wayne Tripp. The petitioner testified at the habeas trial that Alvin Wilson shot the victim and that an eyewitness named Germaine Syms could verify this claim. Although DeCaprio testified that the he had no recollection of trying to locate Syms, the petitioner testified that DeCaprio told him that he was not going to call Syms as a witness because Syms told the investigator that he not see anything during the incident. Syms testified at the habeas trial that he spoke to an investigator about the shooting, but that he did not give the investigator any information. Syms backed up the petitioner's claim that the victim was shot by Wilson; however, his testimony was not entirely credible. Syms further stated that he did not see the petitioner with a gun during the incident. Although DeCaprio could not recall many of the details of the petitioner's case, it is apparent that DeCaprio looked at Syms as a potential witness. DeCaprio decided against using Syms when he failed to obtain any useful information.
During the trial, the state produced evidence that the petitioner conspired to stop the victim from testifying. The evidence included two letters and three audio tapes containing conversations between the petitioner and Kendall Bozeman, among others. In the letters and tapes, the petitioner indicated his desire to keep the victim from testifying and willingness to pay the victim to keep quiet. Based on this information, the state brought additional charges against the petitioner, including tampering with a witness, conspiracy to tamper with a witness and bribery of a witness. The state used the evidence at trial to demonstrate the petitioner's consciousness of guilt.
According to DeCaprio, the petitioner's trial was going relatively well until the state produced the consciousness of guilt evidence. Because the evidence would have had a negative impact on the petitioner's chance of receiving a positive outcome at trial, DeCaprio advised the petitioner to accept the state's plea offer, which included a resolution of the additional charges. DeCaprio discussed the development in the case with the petitioner's mother, who in turn spoke to the petitioner. There is no indication, however, that DeCaprio told the petitioner's mother to pressure the petitioner into pleading guilty.
On June 12, 2002, the petitioner pleaded guilty to assault in the first degree and criminal possession of a pistol or firearm. He also admitted a violation of probation stemming from the possession charge. On September 6, 2002, the petitioner pleaded guilty to conspiracy to tamper with a witness, tampering with a witness and conspiracy to commit bribery. Pursuant to a plea agreement on the thee dockets, the trial court imposed a total effective sentence of fifteen years incarceration to be followed by eight years of special parole. The petitioner did not move to withdraw his guilty pleas or file a direct appeal.
Discussion of Law I. Procedural Default
The respondent has raised the affirmative defense of procedural default as to the petitioner's ineffective assistance claims. The respondent contends that the petitioner is defaulted because he failed to make a motion to withdraw his plea or file a direct appeal. In the reply, the petitioner states that the cause for the default was that he was never advised that he could, prior to sentencing, move withdraw his pleas on the ground of ineffective assistance of counsel.
"A petitioner who raises a constitutional claim for the first time in a habeas corpus proceeding must show (1) 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. Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). When a petitioner fails to make the required showing, a court will not reach the merits of his claim. Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991)." Niblack v. Commissioner of Correction, 80 Conn.App. 292, 296 n. 5, 834 A.2d 779 (2003), cert. denied, 267 Conn. 916, 841 A.2d 219 (2004).
The Connecticut Supreme Court has not yet determined whether procedural default applies in cases where a petitioner's ineffective assistance claims stem from a guilty plea. As to the current law on the issue, there are two conflicting lines of cases. One line of cases holds that procedural default should never apply to ineffective assistance claims when those claims are connected to a guilty plea. See, e.g., Fernandez v. Commissioner of Correction, 96 Conn.App. 251, 255 n. 3, cert. denied, 280 Conn. 908 (2006). The other line of cases holds that ineffective assistance claims arising out of a guilty plea are procedurally defaulted when the petitioner has failed to file a motion to withdraw the plea or a direct appeal. See, e.g., Barile v. Commissioner of Correction, 80 Conn.App. 787, cert. denied, 268 Conn. 915 (2004). This court agrees with the Fernandez line of cases; thus, procedural default does not apply to the petitioner's ineffective assistance of counsel claims. The court will therefore proceed to the merits of the petitioner's claims.
The Supreme Court recently heard argument on the issue and, as of this date, no decision has been released. See Romances Crawford v. Commissioner of Correction, SC 17882; Charles Johnson v. Commissioner of Correction, SC 17883.
II. Ineffective Assistance of Trial Counsel CT Page 21349
"In Strickland v. Washington, [ 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], the United States Supreme Court adopted a two-part standard for evaluating claims of ineffective assistance of counsel during criminal proceedings: the defendant must show: (1) that counsel's representation fell below on objective standard of reasonableness . . . and (2) that defense counsel's deficient performance prejudiced the defense . . ."The first part requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the [s]ixth [a]mendment . . . In determining whether such a showing has been made, judicial scrutiny of counsel's performance must be highly deferential . . . The reviewing court must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct . . .
"The second part requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable . . . The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome . . .
"In Hill v. Lockhart, [ 474 U.S. 52, 57-58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)], the court determined that the same two-part standard applies to claims arising from the plea negotiation process and that the same justifications for imposing the prejudice requirement in Strickland were relevant in the context of guilty pleas. Although the first half of the Strickland test remains the same for determining ineffective assistance of counsel at the plea negotiation stage, the court modified the prejudice standard . . . [I]n order to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial . . . The Hill court also stated that the petitioner must show that such a decision to plead not guilty would have been based on the likelihood that the introduction of the evidence or the defense that was not identified because of ineffective assistance of counsel would have been successful at trial." (Internal quotation marks omitted.) Valentin v. Commissioner of Correction, 94 Conn.App. 751, 754-56, 895 A.2d 242 (2006).
Based on the evidence presented, there is absolutely no indication that DeCaprio provided ineffective assistance to the petitioner. It is clear that the petitioner was actively involved in his defense. At the criminal trial, DeCaprio conducted an effective cross examination of the victim's testimony. DeCaprio investigated Syms and Bozeman as potential witnesses for the defense; however, Syms proved to be unhelpful to the petitioner's case and Bozeman could not be located. Moreover, DeCaprio's advice to plead guilty was entirely reasonable due to the likely effect of the consciousness of guilt evidence. The petitioner ended up with a rather good deal overall. Had the petitioner proceeded to trial, he faced a total exposure of forty-nine years incarceration.
See Ex. B, Tr. 6/11/02, p. 101.
"If a prisoner pleads guilty on advice of counsel, he must demonstrate that the advice was not within the range of competence demanded of attorneys in criminal cases." Buckley v. Warden, 177 Conn. 538, 542-43, 418 A.2d 913 (1979). DeCaprio's advice was well within constitutional bounds.
The petitioner's claim also fails on the prejudice prong of the Strickland test. The petitioner demonstrated neither a reasonable probability that he would have pleaded not guilty despite the consciousness of guilt evidence, nor a likelihood of success at trial.
There is no doubt from the plea transcripts that the petitioner was satisfied with the representation of counsel and entered his pleas voluntarily. Although the petitioner claims that Kendall Bozeman's testimony would have sufficiently rebutted the consciousness of guilt evidence, Bozeman did not testify at the habeas trial. There is therefore no way for this court to determine whether Bozeman's testimony would have been helpful to the petitioner's defense. Lastly, the consciousness of guilt evidence presented by the state provided a strong indication that the petitioner was involved in the shooting. It is unlikely that testimony from Syms, whose testimony at the habeas trial was not entirely credible, would have been able to offset the consciousness of guilt and other evidence offered by the state.
To prevail in a habeas action, the petitioner must support his claim with more than mere speculation. See Lewis v. Commissioner of Correction, 89 Conn.App. 850, 860, cert. denied, 275 Conn. 905 (2005).
"The habeas court judge, as the trier of the facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Edwards v. Commissioner of Correction, 88 Conn.App. 169, 173, 868 A.2d 125, cert. denied, 273 Conn. 941, 875 A.2d 43 (2005).
The petitioner has failed to satisfy both prongs of the Strickland test. The petition for a writ of habeas corpus is therefore denied. The petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.