Opinion
CV114004192
11-17-2016
Lance Wargo v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Lance Wargo, seeks habeas corpus relief from a total, effective sentence of fifty years imprisonment, imposed after a jury trial, for the crimes of murder, two counts of arson first degree, tampering with physical evidence, and two counts of risk of injury to a minor. The judgments of conviction were affirmed on direct appeal, State v. Wargo, 255 Conn. 113, 763 A.2d 1 (2000), affirming State v. Wargo, 53 Conn.App. 747, 731 A.2d 768 (1999).
In July 2005, the petitioner filed a third habeas action in a case denominated, Wargo v. Commissioner, Superior Court, Tolland Judicial District, d.n. CV 05-4000584. Attorney Damon Kirschbaum represented the petitioner in that matter. Following ten days of evidence, Judge Schuman issued a memorandum of decision denying the petitioner's claims of actual innocence, false evidence, and ineffective assistance of trial counsel. That decision was also affirmed on appeal, Wargo v. Commissioner, 144 Conn.App. 695, 73 A.3d 821 (2013); appeal dismissed as cert. improvidently granted, Wargo v. Commissioner, 316 Conn. 180, 112 A.3d 777 (2015).
The present case is the fourth habeas action brought by the petitioner. The amended petition sets forth claims of ineffective assistance of habeas appellate counsel; prosecutorial misconduct; ineffective assistance of trial counsel; ineffective assistance of appellate counsel; and ineffective assistance of third habeas counsel. Previously, this court dismissed all counts except for the first claim which attacks the legal assistance provided by Attorney Christopher Duby, the lawyer who represented the petitioner in the appeal of Wargo v. Commissioner, 144 Conn.App. 695, 73 A.3d 821.
A habeas court has subject matter jurisdiction to adjudicate claims that habeas appellate counsel rendered ineffective assistance, Iovieno v. Commissioner, 242 Conn. 689, 701, 699 A.2d 1003 (1997). Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner, 218 Conn. 403, 425, 589 A.2d 1214 (1991); Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different. Id.
As to the performance prong of Strickland, the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner, supra. This standard of reasonableness is measured by prevailing, professional practices. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation. Id.
In order to satisfy the prejudice prong of Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985). Reasonable probability means a probability sufficient to undermine confidence in the verdict. Daeira v. Commissioner, 107 Conn.App. 539, 542-43, 946 A.2d 249 (2008), cert. denied, 289 Conn. 911, 957 A.2d 877 (2008); that is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id.
If it is easier to dispose of an ineffective assistance claim for failure to satisfy the prejudice prong of the Strickland standard, then the habeas court may address that issue directly, Pelletier v. Warden, 32 Conn.App. 38, 46, 627 A.2d 1363 (1993).
" The measure of professional performance of appellate counsel is the same as for trial counsel when evaluating ineffective assistance claims and that is the first prong of the Strickland test, Couture v. Commissioner, 160 Conn.App. 757, 765, 126 A.3d 585 (2015); cert. denied, 320 Conn. 911, 128 A.3d 954 (2015). However, the prejudice prong of that test focuses on the outcome of the appeal rather than the underlying criminal case, Small v. Commissioner, 286 Conn. 707, 720-21, 946 A.2d 1203 (2008). Thus, the petitioner's burden as to prejudice is to establish, by a preponderance of the evidence, that there exists " a reasonable probability that, but for this counsel's error, he would have prevailed on his appeal, " Id.
Specifically, the petitioner now asserts that Attorney Duby performed his appellate tasks deficiently by failing to raise as appellate issues the habeas court's finding that there existed reliable evidence that the fire of November 1994 was intentionally ignited; the habeas court's rejection of the petitioner's due process claims; and the failure effectively to present " the claim that the petitioner's right to effective assistance of trial counsel was violated."
On appeal, Attorney Duby pressed forward two issues, namely that Judge Schuman improperly rejected allegations that trial counsel, Attorney Norris, had a conflict of interest and that Attorney Norris inadequately cross examined the prosecution's expert witness regarding the cause and place of origin of the fatal fire.
A.
As to the allegation that Attorney Duby ought to have pursued a claim that the habeas judge wrongly decided the petitioner's actual innocence claim, it should be noted that the habeas court found that claim wanting because the petitioner produced no newly discovered, affirmative evidence of actual innocence.
The Appellate Court has consistently and repeatedly demanded that affirmative proof of actual innocence be newly discovered, Corbett v. Commissioner, 133 Conn.App. 310, 315, 34 A.3d 1046 (2012); Vazquez v. Commissioner, 128 Conn.App. 425, 444, 17 A.3d 1089 (2011); Gaston v. Commissioner, 125 Conn.App. 553, 558-59, 9 A.3d 397 (2010); Weinberg v. Commissioner, 112 Conn.App. 100, 119, 962 A.2d 155 (2009); Grant v. Commissioner, 103 Conn.App. 366, 369, 928 A.2d 1245 (2007); Johnson v. Commissioner, 101 Conn.App. 465, 469-70, 922 A.2d 221 (2007); Batts v. Commissioner, 85 Conn.App. 723, 726-27, 858 A.2d 856 (2004); Clarke v. Commissioner, 43 Conn.App. 374, 379, 682 A.2d 618 (1996), appeal dismissed, 249 Conn. 350, 732 A.2d 754 (1999); Williams v. Commissioner, 41 Conn.App. 515, 530, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997). The habeas court was, of course, bound by these holdings of the Appellate Court.
" Newly discovered evidence" is " such that it could not have been discovered previously despite the exercise of due diligence, " Skakel v. State, 295 Conn. 447, 466-67, 991 A.2d 414 (2010). Due diligence is reasonable diligence, Id., at 506-07. " Due diligence does not require omniscience, " Id., at 507. It means " doing everything reasonable, not everything possible, " Id. The query to be answered is " what evidence would have been discovered by a reasonable [criminal defendant] by persevering application and untiring efforts in good earnest, " Id.
Attorney Duby cannot be faulted for declining to raise a meritless appellate issue. Consequently, the petitioner cannot prevail on this specification of ineffective assistance of appellate habeas counsel because no such newly discovered evidence was adduced at the earlier habeas trial.
B.
The previous court also denied the petitioner's due process claim that was premised on the prosecutor's use of purportedly false and unreliable scientific evidence elicited from Dr. Malka Shah, the state's Medical Examiner. Judge Schuman found a total absence of evidence that the prosecutor " knowingly presented or failed to correct false testimony." Furthermore, that habeas judge determined that " the petitioner presents only different experts who disagree with the experts who testified at the criminal trial on matters of opinion such as the cause of the fire and the cause of death."
There is a split of authority as to whether the unknowing use of perjured testimony by law enforcement or prosecutorial officers is a denial of due process warranting the reversal of a conviction so obtained via habeas corpus. Gould v. Commissioner, 301 Conn. 544, 570, fn 18, 22 A.3d 1196. While the majority of federal courts have rejected this proposition, the United States Supreme Court has never squarely answered the question. Id.
Our Appellate Court, however, has affirmed a trial court decision in which the " habeas court concluded that because the petitioner had not alleged that the perjured testimony came through any intentional action by the state or through deficient performance of his trial counsel, his perjury claim was an unadorned, newly discovered evidence count that might support a petition for a new trial, but that is not an independent claim on which relief can be granted in a habeas proceeding." Lewis v. Commissioner, 116 Conn.App. 400, 410, 975 A.2d 740 (2009). The Appellate Court added, " We conclude that the court's conclusion is logically and legally correct." Id., at 411.
In the Lewis decision, the Appellate Court also noted that the pro se petitioner had failed to allege a due process violation before the habeas court, nor did he explain how the alleged perjury affected his criminal trial. Id., at 411-12. The court remarked that it was " unaware of any precedent where [that] court or our Supreme Court has held that an allegation of perjury, unaccompanied by an antecedent constitutional violation or an explanation of how that perjury affected the result of a trial, is a proper ground for seeking habeas relief." Id., at 411-12. It is, therefore, somewhat murky whether the Appellate Court rejected the claim because the habeas court's decision was " logically and legally correct" in ruling that an " unadorned" due process claim of unintentional use of false testimony fails to make out a cognizable habeas claim or because the petitioner in that case failed to assert and prove such a claim adequately.
In a footnote, the Appellate Court did remark that its " conclusion that a freestanding perjury allegation is not a proper habeas claim is supported by the Ortega court's statement that 'a claim based on newly discovered evidence has never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding . . .. We have held that a showing of perjury at trial does not in itself establish a violation of due process warranting habeas relief. ' " Id. at 412, fn 9 (emphases in original). The Appellate Court was quoting the Second Circuit case of Ortega v. Duncan, 333 F.3d 102, 103-04 (2d Cir. 2003).
This court construes the Lewis decision as indicating that a habeas petitioner may allege and prove the fact of perjured testimony when asserting some other legal ground for habeas relief, such as ineffective assistance of counsel, prosecutorial misconduct, or a Brady violation, or as the foundation for a motion or petition for a new trial or an actual innocence claim, but not as an independent due process deprivation claim. In other words, a habeas petitioner cannot obtain any remedy in a habeas trial merely by asserting and demonstrating that the jury at his criminal trial arrived at the wrong conclusion because the jury believed false evidence. The writ of habeas corpus affords aid for legal wrongs not factual mistakes nor is it simply a vehicle for successive bites at the apple. See Fernandez v. Commissioner, 291 Conn. 830, 837, 970 A.2d 721 (2009). To permit such a freestanding due process claim to upend a criminal conviction without the need to prove some governmental wrongdoing in the use of what is later alleged to be perjury would eviscerate the concept of finality, expose every criminal conviction to collateral attack, and invite the habeas court to substitute its credibility assessments for those made by the original fact-finder.
This court concludes that the petitioner has failed to prove, by a preponderance of the evidence, that Attorney Duby acted unreasonably in declining to raise such a dubious appellate issue that was bereft of evidence of the knowing use of false testimony by the state.
C.
The petitioner also avers that Attorney Duby's representation was deficient because " he failed to adequately and effectively present the claim that the petitioner's right to effective assistance of trial counsel was violated." This court is perplexed by this allegation of ineffective assistance because Attorney Duby, as appellate habeas counsel, had no advocacy role in proving that Attorney Norris, i.e., trial counsel, provided ineffective assistance in the criminal case. That role, instead, belonged to habeas trial counsel, Attorney Kirschbaum. Therefore, Attorney Duby, as appellate habeas counsel, cannot be found to be professionally derelict for inadequately performing a legal task that was solely the responsibility of habeas trial counsel.
D.
The remaining specification of ineffective assistance asserts that Attorney Duby ought to have raised as an appellate claim that Judge Schuman erroneously found that there existed reliable evidence to support the conclusion that the fire was deliberately set.
" The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous, " Horn v. Commissioner, 321 Conn. 767, 775, 138 A.3d 908 (2016). " A court's finding of fact is clearly erroneous and its conclusions drawn from that finding lack sufficient evidence when there is no evidence in the record to support the court's finding of fact, " State v. Maietta, 320 Conn. 678, 689-90, 134 A.3d 572 (2016), (emphasis added). Every reasonable presumption must be given in favor of the trial court's ruling, Id., 690. Appellate courts must adopt a " high level of deference" when considering claims that the trial court's factual findings were clearly erroneous, Torres v. Waterbury, 249 Conn. 110, 128, 733 A.2d 817 (1999).
For the appellate advocate, obtaining a reversal based on a claim that the trial judge acted clearly erroneously in finding certain facts poses a daunting challenge. Understandably, appellate counsel must consider that hurdle in selecting which appellate issues to pursue.
In the present case, the petitioner contends that the earlier habeas court committed a factual error by not finding that the state's evidence that the fire was purposely set was totally unreliable. In other words, stating this claim in the positive, Judge Schuman's finding of any reliable evidence to support the inference that the fire was intentionally started was clearly erroneous. This court finds that contention meritless.
First Judge Schuman's view of the validity of the scientific evidence concerning the origin of the fire was confined, as the law requires, to looking through the lens of examination aimed at determining whether Attorney Norris represented the petitioner properly. That is, Judge Schuman made no direct or explicit factual finding that some reliable evidence supported the state's allegation that the petitioner committed arson.
Instead, Judge Schuman had to determine whether the petitioner had demonstrated that Attorney Norris failed to cross examine the state's forensic witnesses sufficiently and/or failed to produce defense evidence to counter those experts. The previous habeas court stated, " Rather, the petitioner presents only different experts who disagree with the experts who testified at the criminal trial on matters of opinion . . ."
Second, the determination by Judge Schuman that the fire was intentionally set was supported by some evidence adduced both at the earlier habeas trial and the criminal trial. Dr. Shah opined that the petitioner's wife died before the fire started, based on the absence of traces of combustion in her respiratory tract. Although it is possible for a flashover fire to leave little or no such traces, that mere possibility did not render the Medical Examiner's opinion to the contrary unreliable or unusable. The undisputed point of origin was in the same room where her body lay upon a couch.
A five-to-six-foot line of burned through holes in the floor led straight to that couch. This burn line can be scientifically acceptable evidence of a pour pattern, i.e., a line where a flammable liquid has been poured on the floor before ignition. Again, flashover fires can leave a similar line of holes if the material that burned had a crease, crack, or seam collinear with the pattern. No evidence of such a crease, crack, or seam was discerned in this case, however. Also, electrical fire was eliminated as a source of combustion.
The petitioner was a member of a fire brigade trained in chemical fires and the characteristics of flammable liquids. Law enforcement authorities seized his notebook from his bedroom dresser. The petitioner wrote entries such as " lock box in shed, " " tool box, " " acetone, " " alcohol clorox, " " alm foil, " " dry run, " " rope kds drs, " " straps, " " pillow, " " oil in can, " " rid of stuff, " " glvs, " " hat, " " shirt, " " cigs, " and " ldr." When questioned about these notations, the petitioner had no explanation to offer. Aroused by the screams of the petitioner's children, neighbors rushed across the street to find the petitioner's house ablaze, his children standing on the roof of the front porch, and the petitioner positioned at the bottom of a ladder leaning against that porch.
" The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." Bharrat v. Commissioner, 167 Conn.App. 158, 164, 143 A.3d 1106 (2016). As recounted above, only where no evidence substantiated Judge Schuman's finding that the petitioner had failed to prove more than a disagreement among experts could his factual determination be overturned on appeal as clearly erroneous. Given the Medical Examiner's opinions that the victim's death preceded the fire, that the origin of that fire was within the same room as the victim, that the potential pour pattern led precisely to the couch where her body lay, and that the petitioner's own notes comported with an image of one planning such a fire, it was highly unlikely that attacking Judge Schuman's factual conclusions on appeal would be successful. This court finds that the petitioner has failed to satisfy his burden of establishing, by a preponderance of the evidence, either prong of the Strickland standard as to Attorney Duby's omission of this claim in the habeas appeal.
For these reasons, the amended petition for habeas corpus relief is denied.