Opinion
TSRCV154007169S
10-29-2018
Luis Williams (Inmate #251994) v. Warden
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Seeley, Hope C., J.
MEMORANDUM OF DECISION
Seeley, J.
The petitioner, LUIS WILLIAMS, brings this second petition for a writ of habeas corpus claiming that his trial counsel in the criminal proceedings, his first habeas trial counsel, and his first habeas appellate counsel provided him ineffective assistance of counsel. The petitioner is seeking to have his convictions vacated and to be released from confinement.
Based on the credible evidence presented and for the reasons stated below, the petition is denied.
I
PROCEDURAL HISTORY
The petitioner was a criminal defendant in the matter of State v. Williams, HHB-CR04-0334185-T, in the judicial district of New Britain. Following a jury trial, he was convicted of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b), possession of a controlled substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a(b), and criminal possession of a firearm in violation of General Statutes § 53a-217. At trial, he was represented by Attorney Paul Bialobrezeski.
On July 26, 2006, the court, D’Addabbo, J., sentenced the petitioner to a total effective sentence of twenty-three years of incarceration to run consecutive to another sentence the petitioner already was serving. Thereafter, on or about September 28, 2009, the petitioner filed his first petition for a writ of habeas corpus, which was amended on or about March 27, 2015. The petitioner alleged the following: (1) his constitutional rights to due process and a fair trial were violated by the state’s failure to disclose material favorable evidence, namely, one of the state’s witnesses, a police officer, was engaged in criminal conduct at the time the petitioner was arrested and during his trial; (2) his constitutional rights to due process and a fair trial were violated by the state’s presentation and failure to correct false testimony by two police officers; (3) his constitutional rights to due process and a fair trial were violated by the state’s improper comments during closing argument; (4) he was denied the effective assistance of trial counsel; and, (5) he was denied the effective assistance of appellate counsel in violation of his state and federal constitutional rights.
The first habeas court, Fuger, J., heard evidence on March 26, 2015. The petitioner was represented by Attorney Michael Brown. Following closing arguments by counsel on April 2, 2015, the habeas court denied the petitioner’s habeas petition in an oral decision. The petitioner filed a petition for certification to appeal, which the habeas court denied.
Thereafter, the petitioner appealed from the habeas court’s denial of his petition for certification to appeal. Attorney Stephanie L. Evans represented the petitioner on appeal. The petitioner argued that (1) his trial counsel provided ineffective assistance of counsel by failing to raise a claim of prosecutorial impropriety that occurred during closing arguments; and, (2) his counsel on direct appeal provided ineffective assistance of counsel by failing to raise a claim of prosecutorial impropriety. The Appellate Court concluded that the habeas court properly denied the petition for certification to appeal and dismissed the appeal. Williams v. Commissioner of Correction, 169 Conn.App. 776, 778, 153 A.3d 656 (2016).
On or about May 5, 2015, the petitioner filed the instant petition, his second petition for a writ of habeas corpus. After counsel was appointed, the petition was amended twice. The operative pleading is the second amended petition dated August 16, 2017, which alleges the following: (1) Habeas trial counsel was ineffective for (a) failing to effectively present a claim that trial counsel was ineffective for inadequately cross examining Harold Setzer; and, (b) failing to effectively present a claim that trial counsel was ineffective for failing to effectively challenge the lawfulness of the search; and, (2) Habeas appellate counsel was ineffective for (a) failing to adequately brief the claim that the habeas court erred in failing to find that trial defense counsel provided ineffective assistance of counsel; and, (b) failing to raise an independent claim that the habeas court erred in failing to find prosecutorial impropriety for failing to disclose exculpatory evidence, permitting and failing to correct false testimony, and for making improper remarks during closing arguments.
On August 22, 2017, petitioner filed a written response to the respondent’s request for a more specific statement and further articulated his claims relating to habeas trial counsel’s conduct.
The court heard the trial on this matter on April 18, 2018. The petitioner called three witnesses in addition to himself: Attorney Paul Bialobrzeski, Josue Williams, Harold Setzer, Peter Massey and Attorney Michael Brown. The petitioner introduced numerous exhibits, including photographs of the location where the petitioner was arrested, various police reports and transcripts from the criminal trial, including the motion to suppress hearing and the sentencing hearing. The petitioner also introduced several exhibits relating to his first habeas proceeding, including the transcripts from the first habeas trial, the first habeas court’s decision dated April 2, 2015 (Docket No. TSR-CV09-4003210-S), the petitioner’s brief to the Appellate Court and the appellate decision in Williams v. Commissioner of Correction, 169 Conn.App. 776, 153 A.3d 656 (2016). The respondent did not call any witnesses, but he did introduce several exhibits, including a certified copy of the court file in the criminal case, several pleadings and court decisions, a police report and transcripts.
The petitioner submitted a thumb drive that contained transcripts from the criminal trial and the first habeas proceeding as Petitioner’s Exhibit 1 in this proceeding. The transcript from the suppression hearing held on May 18, 2006 inadvertently was not included. Petitioner’s counsel filed a motion to supplement the record on October 26, 2018. The respondent did not object and the court granted the motion. The court reviewed the suppression hearing transcript dated May 18, 2006 which had been marked as Exhibit 2 in petitioner’s prior habeas proceeding.
The petitioner filed a post-trial brief on July 2, 2018. The respondent filed a notice of its intent to rely on the evidence at trial in lieu of a post-trial brief. In his brief, the petitioner pursued the following specific claims against prior habeas counsel: (1) he was ineffective for failing to present a claim that trial counsel was ineffective by not calling United States Marshal James Masterson as a witness to counter testimony by two police officers presented by the state as to where the petitioner was located when the police entered the apartment; (2) he was ineffective for not effectively challenging the credibility of one of the state’s witnesses, Sergeant Harold Setzer, and for not presenting a claim that trial counsel was ineffective for not cross examining Setzer about being under investigation for criminal conduct at the time he testified in the petitioner’s criminal trial; and, (3) he was ineffective for not calling an expert in law enforcement to testify at the first habeas trial to establish that the protective sweep in this case was a full search.
The petitioner also stated in his post-trial brief that he raised meritorious issues at his first habeas trial and that his habeas appellate counsel was ineffective for not adequately briefing the claim that the habeas court erred in failing to find that trial defense counsel provided ineffective assistance of counsel and for not raising an independent claim that the habeas court erred in failing to find prosecutorial impropriety for failing to disclose exculpatory evidence, permitting and failing to correct false testimony, and for making improper remarks during closing arguments.
II
FACTUAL BACKGROUND
Based on the credible evidence presented, the court makes the following findings of fact. On September 3, 2004, the petitioner was arrested and charged with possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of § 21a-278(b), possession of a controlled substance with intent to sell within 1500 feet of a school in violation of § 21a-278a(b) and criminal possession of a firearm in violation of § 53a-217. Petitioner’s trial counsel in the criminal case was Paul Bialobrzeski, an attorney in the Waterbury area who began practicing law in 1980 and who steadily represented defendants in serious felony matters beginning in 1987.
On May 16, 2006, the petitioner, through counsel, filed a motion to suppress all tangible evidence recovered from him and the apartment and any resulting statements he made. At the suppression hearing, the court heard testimony from Detective Santopietro, Sergeant Setzer, and the defendant’s brother, Josue Williams. The court (D’Addabbo, J.) denied the motion in a memorandum of decision filed June 20, 2007.
The testimony from the state’s witnesses, Santopietro and Setzer, established the following facts at the suppression hearing held on May 18, 2006: On September 3, 2004, police officers from the New Britain and Waterbury police departments, aided by two United States marshals, executed two arrest warrants for the petitioner at an efficiency apartment at 636 Riverside Avenue in Waterbury. One arrest warrant charged the petitioner with robbery in the first degree in which the petitioner allegedly used a firearm, and the second warrant charged the petitioner with assault in the second degree in which the petitioner also allegedly used a firearm. Additionally, the officers had an arrest warrant for the petitioner’s brother, Josue Williams, for violation of probation.
The police had received intelligence that the petitioner was at this location. The building is a three-floor apartment complex with decks overlooking the rear side. Upon arrival, three officers, including Sergeant Harold Setzer, went to the rear of the residence, while other officers went into the common hallway of the apartment building to the front door of the apartment where they believed the petitioner was located.
One of the officers in the rear indicated through radio transmission that the petitioner had come out onto the rear deck and then moved back inside when one of the officers called to him. At that point, Detective Mark Santopietro knocked on the front door to the apartment and announced that they were in possession of arrest warrants. Because of the nature of the warrants and the fact a firearm had been used in those alleged incidents, the officers forcibly entered the apartment. The apartment was approximately 800 square feet and consisted of a wide open area that included the front entrance area, living room and kitchen, as well as a bedroom and bathroom.
The petitioner was sitting on the couch in the living room, which was located directly in front of the door, and the petitioner’s brother, Josue Williams, was lying on the floor next to the couch. The officers ordered the petitioner off the couch. He got up a little and then slid off the couch to the floor. The petitioner was within one foot of the couch and directly next to him on the floor was the petitioner’s brother. The petitioner was arrested and handcuffed.
Detective Mark Santopietro, who was aware of the nature of the charges in the warrant and that a firearm had been used in those cases, removed the cushions from the couch where the petitioner had been sitting and discovered a pistol. Santopietro immediately notified the other officers of the presence of a firearm. At the time the pistol was located, the petitioner’s brother was not yet handcuffed.
Sergeant Setzer, who had been at the rear of the apartment building, entered the apartment through the front door less than a minute after the officers who made the forcible entry. Setzer saw that one person was secured, but the other person was not yet secured. He heard Santopietro indicate there was a gun. At the same time, Setzer noticed a box of what he believed to be ammunition. Setzer was aware that the arrest warrants for the petitioner involved violent felonies with firearms and that the petitioner was a suspect in a homicide. Concerned that there might be other individuals in the apartment who might be hiding and armed, Setzer moved to do a protective sweep of the apartment. He checked anywhere a person could hide and he also did a cursory look for weapons.
Setzer walked six to eight feet from where the petitioner was located to a kitchen counter. As part of his cursory examination for weapons, he approached the kitchen counter to look at the area between a box on the counter and the wall since there could have been a weapon or firearm in that space. At the counter, he saw a paper cup filled with numerous bags of a substance he believed to be heroin based on the manner in which it was packaged. As part of the protective sweep, he opened a closet door that was located about three to four feet from the living room area and he saw narcotics packaging and a narcotics sifter. Setzer did not seize any of the items he discovered but instead left them in place for the forensic staff. Setzer’s entire sweep took less than one minute.
Petitioner’s criminal trial counsel called the petitioner’s brother, Josue Williams, who testified that when the police knocked on the apartment door, the petitioner stepped out onto the deck, but came back in because there were police present outside. The officers who had knocked then rushed into the apartment. At that time, according to Josue Williams, both he and the petitioner were standing. The petitioner was standing by the sliding glass door as he was coming back inside from the deck. Josue Williams testified that the petitioner was not sitting on the couch when the officers entered the apartment.
The trial court held that lifting up the couch cushions was justified as a search incident to an arrest. The court reasoned that since the petitioner had been sitting on the couch when the police entered the apartment and he was handcuffed very near the couch, the couch was an area in which the petitioner could have tried to grab a weapon. Likewise, the court held that since the kitchen counter was only six to eight feet away, the search of the items on the counter also were justified as a search incident to an arrest. Finally, the court held that the protective sweep of the closet was lawful.
In the petitioner’s direct appeal, he challenged only the trial court’s determination that the contraband seized from the defendant’s kitchen was within the defendant’s immediate control incident to his lawful arrest. The Appellate Court affirmed the trial court’s denial of the petitioner’s motion to suppress. State v. Williams, 110 Conn.App. 329, 954 A.2d 878 (2008).
At the petitioner’s criminal trial, the state introduced into evidence the pistol that had been located under the couch cushion, the heroin located in the cup on the kitchen counter and the drug-related items located in the closet. Additional findings of fact from the evidence presented at the evidentiary hearing held before this court on April 18, 2018 will be discussed below as necessary.
III
DISCUSSION
A
Petitioner’s Claims Of Ineffective Assistance Of Habeas Trial Counsel
This court will address the specific claims that the petitioner argued in his brief against prior habeas counsel, Michael Brown, namely, that: (1) Brown was ineffective for failing to present a claim that trial counsel was ineffective by not calling United States Marshal James Masterson as a witness to counter testimony by two police officers presented by the state as to where the petitioner was located when the police entered the apartment; (2) Brown was ineffective for not effectively challenging the credibility of one of the state’s key witnesses, Sergeant Harold Setzer, and for not presenting a claim that trial counsel was ineffective for not cross examining Setzer about being under investigation for criminal conduct at the time he testified in the petitioner’s criminal trial; and, (3) Brown was ineffective for not calling an expert in law enforcement to testify at the first habeas trial to establish that the protective sweep in this case was a full search.
As recognized by the United States Supreme Court, "the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial." Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court also recognized that, " ... if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and ... judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts." McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Therefore, " ... all defendants facing felony trials are entitled to the effective assistance of competent counsel." Id.
The legal principles in cases involving claims of ineffective assistance of counsel are governed by Strickland v. Washington, supra, 466 U.S. 668. Under Strickland, an ineffective assistance of counsel claim "must be supported by evidence establishing that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance ..." Humble v. Commissioner of Correction, 180 Conn.App. 697, 704, 184 A.3d 804 (2018); see also Skakel v. Commissioner of Correction, 329 Conn. 1, 11, 188 A.3d 1 (2018).
Our courts have recognized that to satisfy the performance prong under Strickland, the petitioner must show "that his attorney’s representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law." Sanders v. Commissioner of Correction, 169 Conn.App. 813, 823, 153 A.3d 8 (2016). The petitioner has the burden of establishing that counsel’s representation fell below an objective standard of reasonableness. Humble v. Commissioner of Correction, supra, 180 Conn.App. 704-05. To establish that counsel’s performance was deficient, a petitioner must show "that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the petitioner by the sixth amendment." Dupigney v. Commissioner of Correction, 183 Conn.App. 852, 859 (2018).
As noted in Strickland, "[t]he object of an ineffectiveness claim is not to grade counsel’s performance ..." Strickland v. Washington, supra, 466 U.S. 697. A trial of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. The Strickland Court cautioned that, "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of 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 ..." (Citation omitted; internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 689; Skakel v. Commissioner of Correction, supra, 329 Conn. 11.
Under the second prong of the Strickland test, the prejudice prong, the petitioner must show that "counsel’s errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." Skakel v. Commissioner of Correction, supra, 329 Conn. 30. "When defense counsel’s performance fails the [first prong of Strickland ], a new trial is required if there exists 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." (Citations omitted; internal quotation marks omitted.) Id., 38. Finally, "the likelihood of a different result must be substantial, not just conceivable." Id., 40.
As noted in Strickland, "[u]nless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable." Strickland v. Washington, supra, 466 U.S. 687. The sixth amendment "does not guarantee perfect representation, only a reasonably competent attorney ... Representation is constitutionally ineffective only if it so undermined the proper functioning of the adversarial process that the defendant was denied a fair trial." (Citations omitted; internal quotation marks omitted.) Harrington v. Richter, 562 U.S. 86, 110, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); see also Skakel v. Commissioner of Correction, supra, 329 Conn. 11.
In this case, the petitioner has claimed that his first habeas counsel was ineffective for not properly raising a claim of ineffective assistance of trial counsel, which is commonly referred to as a "habeas on a habeas." See Adkins v. Commissioner of Correction, 185 Conn.App. 139, 150 (2018). In Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), the court determined that the statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51-296(a) includes an implied requirement that such counsel be effective, and it held that the appropriate vehicle to challenge the effectiveness of habeas counsel is through a habeas petition.
Thus, a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice: he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. See Adkins v. Commissioner of Correction, supra, 185 Conn.App. 151. Our Supreme Court has characterized this burden as presenting a "herculean" task. Lozada v. Warden, supra, 223 Conn. 843; see also Martin v. Commissioner of Correction, 179 Conn.App. 647, 663, 180 A.3d 1003, cert. denied, 328 Conn. 926, 182 A.3d 84 (2018).
1
Habeas Counsel’s Alleged Failure to Present a Claim that Trial Counsel Was Ineffective by Not Presenting a Witness
The petitioner has claimed that prior habeas counsel was ineffective for failing to present a claim that trial counsel was ineffective by not calling United States Marshal James Masterson as a witness to counter the testimony of Detective Santopietro as to where the petitioner was located when the police entered the apartment.
Masterson authored a report in which he wrote that when he entered the apartment, the petitioner and his brother were standing near the couch in the center of the apartment. The petitioner argues that Masterson’s observation that the petitioner was standing, rather than sitting on the couch where the pistol was found, would have supported his claim that the pistol was not found in a location under his immediate control, and therefore, the police did not conduct a lawful search incident to an arrest.
The petitioner has not met his burden of establishing that counsel’s representation fell below an objective standard of reasonableness. The court credits Attorney Bialobrzeski’s testimony that he did not call Masterson as a witness because he didn’t "need another prosecution witness, a U.S. Marshal, piling on evidence against Mr. Williams. It’s probably better to try to handle two witnesses than three witnesses who are all gonna say the same thing. I guess the question is would it have made any difference if I said ah-ha, Marshal Masterson, you said he was standing, the police officers say he was sitting. My guess is Marshal Masterson would shrug, the jury would shrug and the judge would shrug." At the time of the suppression hearing, Attorney Bialobrzeski had reviewed Masterson’s report. While the report stated the petitioner was standing near the couch, it also stated that the petitioner was ordered to get on his stomach, that he was searched for weapons and that the pistol was found approximately a foot from where the subject had been standing.
Bialobrzeski determined that whether the petitioner was standing or sitting, he was still in close proximity to the pistol. Masterson’s report indicated that the pistol was found about one foot away from where the petitioner had been standing which is consistent with Detective Santopietro’s testimony that when the petitioner was being handcuffed, he was within one foot of the couch. As such, pursuant to the exception to the warrant requirement that permits a search incident to a lawful arrest, the police were permitted to search the couch given its close proximity to the petitioner. See State v. Fletcher, 63 Conn.App. 476, 777 A.2d 691 (search of a closet located within four feet of a handcuffed defendant was a lawful search incident to arrest), cert. denied, 257 Conn. 902, 776 A.2d 1152 (2001). Therefore, Bialobrzeski’s explanation that he did not call Masterson because he did not want another prosecution-type witness testifying against his client was reasonable and within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.
See generally
See also
Even if this court had determined that trial counsel’s performance was deficient, the petitioner failed to establish that there exists a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. In other words, even if Masterson had been called as a witness and testified that the petitioner had been standing when Masterson entered the apartment, the result of the proceeding would not have been different given the petitioner’s close proximity to the couch.
In light of the court’s ruling that the petitioner failed to establish that criminal trial counsel was ineffective by not calling Masterson as a witness, the petitioner’s claim against habeas counsel also fails.
2
Habeas Counsel’s Alleged Failure to Effectively Challenge the Credibility of a Witness and for not Presenting a Claim that Trial Counsel Was Ineffective for Not Impeaching the Witness
In his post-trial brief, the petitioner argued that prior habeas counsel was ineffective for not effectively challenging the credibility of Sergeant Harold Setzer, and for not presenting a claim that trial counsel was ineffective for not cross examining Setzer about being under investigation for criminal conduct at the time he testified in the petitioner’s criminal trial.
Based on the credible evidence presented to this court in the present habeas proceeding, the court makes the following findings of fact relevant to this claim. Sergeant Harold Setzer is no longer employed as a police officer because he was convicted of a criminal felony. He was arrested in 2009, which was approximately five years after the petitioner’s arrest in 2004, and three years after Setzer testified in the petitioner’s criminal trial in 2006. There is no credible evidence before this court that Setzer was under investigation at the time the petitioner was arrested or at the time of the petitioner’s criminal trial. Therefore, the petitioner has not met his burden of establishing that criminal trial counsel was deficient in failing to cross examine Setzer about being under investigation for criminal conduct.
The court notes that petitioner introduced Exhibit 11, which consists of police records from the New Haven Police Department regarding Setzer’s arrest. Petitioner’s counsel admitted these documents not for their truth, but to show the effect they had on Attorney Brown.
The petitioner also argued in his post-trial brief that prior habeas counsel was ineffective "for failing to use the tools at his disposal to challenge the credibility of trial defense counsel and Setzer." In light of the court’s ruling that the petitioner failed to establish that criminal trial counsel was deficient under Strickland ’s first prong in not cross examining Setzer about being under investigation for criminal conduct, the petitioner’s claim against habeas counsel also fails.
To the extent the petitioner is arguing that prior habeas counsel did not effectively challenge the credibility of Sergeant Harold Setzer regarding his conviction at the first habeas trial, that claim also is without merit. The court has reviewed the transcripts from the first habeas trial and concludes the petitioner has not met his burden of establishing that counsel’s representation fell below an objective standard of reasonableness. Attorney Brown attempted to cross examine Setzer about whether he sold guns without following the proper procedures in 2004, 2005 or 2006, but Setzer asserted his fifth amendment privilege. Attorney Brown requested the first habeas court to draw an adverse inference from Setzer’s invocation of the fifth amendment. The court finds that Attorney Brown’s representation falls within the wide range of reasonable professional assistance, and as such, the petitioner’s claim that Attorney Brown rendered deficient performance fails.
3
Habeas Counsel’s Failure in not Calling an Expert Witness
The petitioner also has argued that Attorney Brown was ineffective for not calling an expert in law enforcement to testify at the first habeas trial in order to challenge the testimony of Sergeant Setzer by establishing there was no need for a protective sweep in this case, and that the one performed exceeded the scope of a permissible protective sweep.
The protective sweep doctrine is rooted in the investigative and crime control function of the police. Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). The purpose of the doctrine is to allow police officers to take steps "to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack." Id., 333. Thus, " ... as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched. Beyond that, however, ... there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id., 334. See also State v. Kendrick 314 Conn. 212, 230, 100 A.3d 821 (2014).
At the second habeas hearing before this court, the petitioner presented the testimony of Peter Massey, a retired police officer from the Town of Hamden who is a certified instructor at the Connecticut Police Academy and teaches search and seizure law. The court credits only the following portion of his testimony: There is an inherent danger for police officers when serving an arrest warrant for firearm charges on an individual. A protective sweep is done by law enforcement officers while serving an arrest warrant in a home in order to protect the officers from potential harm by other persons who may be present. A protective search is performed immediately. Even when the person has been arrested, a very short sweep to ensure officer safety is justified, including the opening of a door to a closet. Massey was not aware that the protective sweep in this case took less than a minute.
The petitioner has not established that Attorney Brown’s failure to call an expert witness in law enforcement resulted in a constitutionally deficient performance. Massey’s credited testimony simply restates the law on protective sweeps that a court must apply to the facts presented. The presentation of testimony from a former police officer and instructor in search and seizure law was not necessary for the habeas court’s resolution of whether trial counsel adequately challenged the testimony of Setzer regarding the necessity of a protective sweep and its scope. See generally Antonio A. v. Commissioner of Correction, 148 Conn.App. 825, 833, 87 A.3d 600 (there is no per se rule that requires a trial attorney to seek out an expert witness), cert. denied, 312 Conn. 901, 91 A.3d 907 (2014). Furthermore, at the first habeas trial, Attorney Brown challenged Setzer’s testimony regarding the actions he took during the "protective sweep," including going into the kitchen and looking into the cup on the counter. The court does not credit Massey’s determination that the protective sweep went beyond the scope of what it should have. As discussed supra, this court specifically credited Massey’s testimony that even when the person has been arrested, a very short sweep to ensure officer safety is justified, including the opening of a door to a closet. In this case, the evidence established that Setzer conducted a cursory sweep of the apartment in less than a minute, which included looking in the kitchen area, the bedroom area and the closet. As noted by the United States Supreme Court, "[a]n ambush in a confined setting of unknown configuration is more to be feared than it is in an open, more familiar surroundings." Maryland v. Buie, supra, 494 U.S. 333. Therefore, the petitioner’s argument that there was no need for a protective sweep and that the one performed in less than a minute exceeded the scope must fail. See State v. Williams, 110 Conn.App. 329, 335-44, 954 A.2d 878 (2009) (Bishop, J., concurring).
The court notes that the Appellate Court held on direct appeal that the kitchen counter where the drugs were found was within the petitioner’s immediate control, and thus, the search of the kitchen was a lawful search incident to the petitioner’s arrest.
The issue in the present case is whether Attorney Brown’s performance in failing to call a law enforcement expert to testify that Setzer conducted a full search rather than a protective sweep fell below the acceptable range of competence. Based upon this court’s review of the credible evidence, the answer to that question is no, and therefore, the petitioner has not established that Attorney Brown’s performance was deficient.
B
Claims Of Ineffective Assistance Of Habeas Appellate Counsel
In his post-trial brief, the petitioner asserted that his habeas appellate counsel, Stephanie L. Evans, was ineffective by (1) failing to adequately brief the claim that the habeas court erred in failing to find that trial defense counsel provided ineffective assistance of counsel; and, (2) by not raising an independent claim that the habeas court erred in failing to find prosecutorial impropriety for failing to disclose exculpatory evidence, permitting and failing to correct false testimony, and for making improper remarks during closing arguments.
In reviewing claims of ineffective assistance of appellate counsel, the two-part Strickland analysis is applicable. In considering the performance prong, our courts have recognized that "[Although] an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments ... in a verbal mound made up of strong and weak contentions ... Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues ... The effect of adding weak arguments will be to dilute the force of the stronger ones ... [I]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation." (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 131 Conn.App. 805, 808, 29 A.3d 166 (2011).
On appeal from the first habeas proceeding, habeas appellate counsel claimed "the habeas court abused its discretion when it denied his petition for certification to appeal from the habeas court’s denial of his petition for a writ of habeas corpus, where he alleged that (1) his counsel at trial provided ineffective assistance of counsel by failing to take curative measures to remedy prosecutorial impropriety that occurred during closing arguments, (2) his counsel on direct appeal provided ineffective assistance of counsel by failing to raise a claim of prosecutorial impropriety." Williams v. Commissioner of Correction, 169 Conn.App. 776, 153 A.3d 656 (2016).
At the second habeas proceeding before this court, the petitioner did not present the testimony of Attorney Evans as to the process she went through in making the determination to present the appellate issues that she did. Certainly, Attorney Evans did not raise certain of the issues that had been alleged in the amended petition dated November 13, 2014 because prior habeas counsel withdrew some of the claims during his closing argument. For example, in his closing argument on April 2, 2015, Attorney Brown specifically withdrew the claim that the prosecutor permitted and failed to correct false testimony, as well as several of the claims relating to ineffective assistance of counsel (the same ones the petitioner now claims habeas appellate counsel should have included on appeal).
Furthermore, Attorney Brown recognized that his claim that the petitioner’s right to due process and fair trial was violated because Setzer had an obligation to disclose exculpatory evidence that Setzer was engaged in illegal conduct at the time of the petitioner’s arrest and/or during the pendency of the petitioner’s trial was a novel fact pattern. Attorney Brown acknowledged he could not find any supporting authority. Additionally, based on this court’s review of the transcripts, the evidence did not support a finding that Setzer was engaged in illegal conduct at the time of the petitioner’s arrest and/or during the pendency of the petitioner’s trial. Therefore, this claim would have not been meritorious on appeal.
The court also notes that the petitioner failed to offer any expert testimony that appellate counsel rendered deficient performance. Although "[a]n expert witness is not essential to show that an attorney’s performance was so deficient that it fell below the standard of reasonably effective assistance ... in many cases, expert testimony is useful." Small v. Commissioner of Correction, 98 Conn.App. 389, 394, 909 A.2d 533 (2006), aff’d, 286 Conn. 707, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). Since Attorney Evans was under no obligation to raise every conceivable issue, the petitioner has not established that Attorney Evans’ performance was deficient and this claim must fail.
IV
CONCLUSION
For the foregoing reasons, the court denies the petition for writ of habeas corpus. Judgment shall enter for the respondent.
State v. Arline, 74 Conn.App. 693, 700, 813 A.2d 153, cert. denied, 263 Conn . 907, 819 A.2d 841 (2003).
Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) ("[a] gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’- construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence").
State v. Williams, 110 Conn.App. 329, 333, 954 A.2d 878 (2009). This court is bound by that decision.