Opinion
No. CV 97 4000208
July 6, 2006
RULING ON PETITIONER'S MOTION FOR ARTICULATION
On April 3, 2006, the petitioner filed a motion for articulation of this Court's memorandum of decision denying his amended habeas corpus petition. Specifically, the petitioner requests an articulation as to the dismissal of the claims of ineffective assistance of trial defense counsel, as set forth in count one of the amended petition; the claims of ineffective assistance of appellate counsel, as set forth in count two of the amended petition; and the claim of actual innocence, as set forth in count three of the amended petition.
The petitioner first asserts that this Court failed to address multiple claims concerning the ineffective assistance of trial defense counsel. All of the claims raised in the amended petition concerning trial counsel's representation, however, were fully addressed in the memorandum of decision. As stated in that decision, the numerous and minute complaints made by the petitioner regarding counsel's performance at the criminal trial do not, in and of themselves or in combination, support a conclusion that the petitioner's conviction is unreliable. The petitioner has failed to satisfy the prejudice prong of the test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and as such cannot prevail on his ineffective assistance of trial counsel claim. Id., 697; Valeriano v. Bronson, 209 Conn. 75, 86, 546 A.2d 1380 (1988).
Turning to the petitioner's claim that he was deprived of the effective assistance of appellate counsel, it is well established that the standards for effectiveness of counsel set forth in Strickland v. Washington, supra, 466 U.S. 668, apply with equal force to appellate counsel. In order to prevail, then, the petitioner must prove first that he was denied the effective assistance of appellate counsel in that not only could his appellate counsel have raised an issue on direct appeal, he should have done so as well. This will necessarily require a showing that his appellate counsel's 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, supra, 209 Conn. 82.
"While an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue . . . Our Supreme Court has stated that it is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment. [ Id., 87.]" (Internal quotation marks omitted.) Vivo v. Commissioner of Correction, 90 Conn.App. 167, 171-72, 876 A.2d 1216 (2005). "The seminal case of Bunkley v. Commissioner of Correction, [ 222 Conn. 444, 610 A.2d 598 (1992)], considered the prejudice prong of the Strickland analysis in claims of ineffective assistance of appellate counsel. Rejecting the petitioner's contention that the proper analytical focus is the probable result of the appeal, the Bunkley court explained that the proper focus instead is the result of the trial. Id., 454. To satisfy the prejudice prong, a petitioner must, thus, establish that . . . because of the failure of his appellate counsel to raise a [particular] claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt. Id." (Internal quotation marks omitted.) Vivo v. Commissioner of Correction, supra, 90 Conn.App. 172-73.
Here, even if appellate counsel should have raised the issues concerning the presumptive blood test results and the Connecticut Supreme Court's statement of the facts, there is absolutely no evidence that, as a result of those alleged failures, the petitioner is burdened by an unreliable conviction. Thus, the petitioner has failed to satisfy the prejudice prong as set forth in Bunkley v. Commissioner of Correction, supra, 222 Conn. 444, and as such cannot not prevail on his claim of ineffective assistance of appellate counsel.
Actual Innocence
The petitioner finally alleges that he is actually innocent of the crimes of which he stands convicted. It is well settled in Connecticut that a claim of actual innocence may be raised in a petition for habeas corpus even where that claim does not allege that the petitioner's state or federal constitutional rights have been violated. See Summerville v. Warden, 229 Conn. 397, 422, 641 A.2d 1356 (1994). However, in order to prevail in such a claim, a petitioner must overcome two very large obstacles. "First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence . . . that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty." Miller v. Commissioner of Correction, 242 Conn. 745, 791-92, 700 A.2d 1108 (1997).
Unlike the original criminal trial in which the petitioner enjoyed the presumption of innocence with the burden of proving his guilt beyond all reasonable doubt resting upon the prosecutor, in the habeas proceeding, the burden of proof rests upon the petitioner. This is so 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, supra, 229 Conn. 427. Furthermore, there is 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.
The burden of proof in a habeas proceeding for the claim of actual innocence requires that "the habeas court first must be convinced by clear and convincing evidence that the petitioner is actually innocent. The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt." Miller v. Commissioner of Correction, supra, 242 Conn. 794. Clear and convincing evidence must "induce in the mind of a trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Internal quotation marks omitted.) State v. Bonello, 210 Conn. 51, 66, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S.Ct 2103, 104 L.Ed.2d 664 (1989).
Moreover, there is a threshold question regarding the issue of whether the allegation of actual innocence should even be considered by this Court. Although having been presented with several opportunities to do so, the Connecticut Supreme Court has so far declined to resolve the question of "whether a habeas petitioner's claim of actual innocence must be based on new evidence," therefore leaving it "an open question in our habeas jurisprudence." Clarke v. Commissioner of Correction, 249 Conn. 350, 358, 732 A.2d 754 (1999). The state Appellate Court, however, has concluded that a claim of actual innocence must be supported by newly discovered evidence. Clarke v. Commissioner of Correction, 43 Conn.App. 374, 379, 682 A.2d 618 (1996), appeal dismissed, 249 Conn. 350, 358, 732 A.2d 754 (1999), citing Williams v. Commissioner of Correction, 41 Conn.App. 515, 527, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997). "This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence." (Internal quotation marks omitted.) Batts v. Commissioner of Correction, 85 Conn.App. 723, 726-27, 858 A.2d 856, cert. denied, 272 Conn. 907, 863 A.2d 697 (2004). "Due diligence does not require omniscience . . . Due diligence means doing everything reasonable, not everything possible . . . The petitioner for a new trial must be diligent in his efforts fully to prepare his cause for trial; and if the new evidence relied upon could have been known with reasonable diligence, a new trial `will not be granted." (Citations omitted; internal quotation marks omitted.) Williams v. Commissioner of Correction, supra, 41 Conn.App. 528-29.
Consequently, although the "newly discovered evidence" rule is an open appellate issue, it is not an open issue for a trial court. As a Superior Court, this Court is indeed required to follow the precedent of the Appellate Court. Since Clarke clearly endorses the newly discovered evidence rule, this Court shall apply that rule.
Pursuant to the above standard, the petitioner has not submitted any newly discovered evidence and has therefore failed to even make the threshold requirement by which a claim of actual innocence may be pursued. Despite that, the petitioner asks this Court to set aside the jury's verdict and order a new trial. There is, however, no basis upon which to do so. The petitioner has failed to meet his burden of proving actual innocence with clear and convincing evidence that no reasonable finder of fact would conclude that the petitioner is guilty.