Opinion
No. CV08-4002127
December 13, 2010
Memorandum of Decision
In his fourth and latest petition for a writ of habeas corpus, the petitioner claims that all of his six former attorneys rendered ineffective assistance of counsel. Although the petitioner has now withdrawn some of these claims, it is nonetheless time to label this petition what it really is: an abuse of the writ.
I
The long and tortuous history of this case began on August 28, 1989 with the shooting death of Orville Grant in Bridgeport. In 1990, the petitioner, represented by attorney Arnaldo Granados, was convicted by a jury of felony murder and acquitted of murder, attempted murder, robbery in the first degree, attempted assault in the first degree, assault in the second degree, and carrying a pistol without a permit. The trial court, Maiocco, J., sentenced the petitioner to sixty years in prison concurrent to a previously-imposed fifteen-year sentence. The petitioner, represented by assistant public defender Suzanne Zitser, appealed to the Supreme Court, which affirmed the conviction. State v. Williams, 220 Conn. 385, 599 A.2d 1053 (1991).
The petitioner filed his first habeas petition in 1991. Represented by attorney Thomas Farver, the petitioner claimed that his trial counsel was ineffective and that he was actually innocent. The habeas court, Sferrazza, J., rejected these claims. The petitioner, represented by special public defender James A. Shanley, Jr., appealed to the Appellate Court. That court affirmed the decision. Williams v. Commissioner of Correction, 41 Conn.App. 515, 677 A.2d 1 (1996). In the process, the court held that a claim of actual innocence must be based on newly discovered evidence. Id., 526-30. The Supreme Court granted certification to appeal on this issue; 238 Conn. 908, 680 A.2d 311 (1996); but then dismissed the certification as improvidently granted. 240 Conn. 547, 692 A.2d 1231 (1997).
In 2002, the petitioner, this time represented by special public defender Damon Kirshbaum, filed a second habeas petition. In this petition, the petitioner alleged ineffective assistance by attorneys Zitser and Farver in failing to challenge the sufficiency of the evidence that the petitioner was guilty of the underlying robbery as an accessory. The habeas court, Hadden, J.T.R., denied the petition, the Appellate Court dismissed an appeal filed by Kirshbaum on the petitioner's behalf, and the Supreme Court denied certification. Williams v. Commissioner of Correction, 67 Conn.App. 909, 792 A.2d 910, cert. denied, 259 Conn. 932, 793 A.2d 1087 (2002).
The petitioner filed his third habeas petition in 2002. On this petition he was represented by attorney William Burns. The petitioner alleged the ineffectiveness of attorneys Farver, Kirshbaum, and Shanley. The petitioner withdrew this petition without prejudice in 2007.
The petitioner filed the present petition in December 2007 and obtained new court-appointed counsel. The latest amended petition, filed on November 1, 2010, challenges the effectiveness of all six of his former attorneys. At trial, however, the petitioner withdrew his claim of ineffective assistance against attorney Burns and, in his post-trial brief, the petitioner withdraws claims of ineffective assistance of counsel against attorneys Zitser and Shanley. The petitioner maintains claims of ineffective assistance against his trial counsel, Arnaldo Granados; his first habeas counsel, Thomas Farver; and his second habeas counsel, Damon Kirshbaum. The petitioner argues that these attorneys were ineffective for failing to raise the issue of whether the petitioner was entitled to a jury instruction on the affirmative defense to felony murder. See General Statutes § 53a-54c. The petitioner also claims that he is entitled to relief because the trial court failed sua sponte to provide the affirmative defense instruction, regardless of whether there was any ineffectiveness of counsel.
Section 53a-54c provides: "A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (1) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (2) was not armed with a deadly weapon, or any dangerous instrument; and (3) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (4) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury."
II
The respondent asserts in its return that the claims of ineffective assistance against attorneys Granados and Farver in counts one and three respectively are precluded by res judicata and Practice Book § 23-29(3) as successive petitions. The court agrees. The petitioner previously litigated claims of ineffective assistance against Granados and Farver in his first and second habeas petitions, respectively. The petitioner's attempt to raise the same ground of ineffective assistance against these same attorneys, especially in the absence of newly discovered evidence, is barred even if the specifications of ineffectiveness differ. See Mejia v. Commissioner of Correction, 98 Conn.App. 180, 187-90, 908 A.2d 581 (2006). Accordingly, there is no basis to consider counts one and three further.
Section 23-29 provides: "The judicial authority may, at any time, upon its own motion or upon motion of the respondent, dismiss the petition, or any count thereof, if it determines that . . . (3) the petition presents the same ground as a prior petition previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition . . ."
III
In count five, the petitioner alleges that his second habeas counsel, Damon Kirshbaum, was ineffective for failing to claim that the petitioner's first habeas counsel was ineffective in failing, in turn, to argue that trial counsel was ineffective in failing, in turn, to request a jury charge on the felony murder affirmative defense. This sort of hall of mirrors litigation strains credulity. It illustrates "the steady accretion of ineffective assistance of counsel claims as each of the petitioner's legal stratagems has failed . . ." Bellino v. Commissioner of Correction, 75 Conn.App. 743, 746 n. 5, 817A.2d 704, cert. denied, 264 Conn. 915, 826 A.2d 1159 (2003). In launching such a "habeas on a habeas;" Toccaline v. Commissioner of Correction, 119 Conn.App. 510, 511, 987 A.2d 1097, cert. denied, 295 Conn. 921, 991 A.2d 566 (2010), the petitioner justifiably faces a "herculean task." Lozada v. Commissioner of Correction, 223 Conn. 834, 843, 613 A.2d 818 (1992). To succeed in his bid for a writ of habeas corpus, the petitioner must prove that both his appointed habeas attorneys were ineffective and that his trial counsel was ineffective. See id., 842.
The petitioner has not come close to doing so. Kirshbaum testified credibly that he did not raise the issue of whether prior counsel were ineffective with regard to an affirmative defense instruction because there was no reasonable possibility of prevailing. As Kirshbaum observed, the petitioner's defense was that he was not a participant in the underlying criminal episode. In contrast, the jury would only have reached the affirmative defense to felony murder if it concluded that the petitioner was a participant. See State v. Small, 242 Conn. 93, 107, 700 A.2d 617 (1997) ("[t]he jury would not have reached the issue of the affirmative defense had it not already determined that the defendant was a participant in the crime, and not merely present during its commission"); General Statutes § 53a-54c, footnote 1 (the affirmative defense applies to any prosecution under this section in which "the defendant was not the only participant in the underlying crime . . ."). Trial counsel could reasonably have concluded that, to present to the jury the theory that the defendant was a participant but only minimally involved would conflict with his theory that the defendant was not a participant at all. From trial counsel's perspective, it was certainly a matter of sound professional judgment to conclude that it would be better to present the jury one consistent defense than two conflicting ones. Thus, Kirshbaum correctly reasoned that the issue had little or no merit.
Further, even assuming that there were some limited merit to the issue, Kirshbaum was not obligated to raise it. Given the fact that Kirshbaum did raise other claims in his petition — namely that attorneys Zitser and Farver were ineffective in failing to challenge the sufficiency of the evidence that the petitioner was an accessory to the underlying robbery — it might have detracted from that petition to raise an additional issue that was weak. If habeas counsel can safely be analogized to criminal appellate counsel, then there is no duty imposed on habeas counsel to raise every nonfrivolous issue. Habeas counsel must instead exercise judgment as to which claims to raise. See Valeriano v. Bronson, 209 Conn. 75, 88-90, 546 A.2d 1380 (1988) (citing Jones v. Barnes, 463 U.S. 745, 750-53 (1983)); Ostalaza v. Warden, 26 Conn.App. 758, 774-74, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). "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 . . ." (Internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn.App. 1, 11, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).
Kirshbaum thus had legitimate reasons for not raising what he regarded as an additional weak ground for trial counsel's alleged ineffectiveness. Hence, the petitioner has not overcome the presumption that counsel acted "in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 290, 883 A.2d 1254 (2005).
In addition, as explained below, the petitioner cannot make the requisite showing that any deficient performance caused prejudice to the defense. See Ziel v. Commissioner of Correction, supra, 89 Conn.App. 376. See also section IV infra.
IV
Count seven, the petitioner's final count, alleges a substantive due process violation from the trial court's failure to provide an affirmative defense instruction sua sponte. Because the petitioner did not raise this claim at his criminal trial, on direct appeal, or in his previous habeas petitions, the respondent has properly alleged in its return that the petitioner is in procedural default. The petitioner can only overcome this default by proving both cause for the default and prejudice relating therefrom. See Henderson v. Commissioner of Correction, 104 Conn.App. 557, 569, 935 A.2d 162, cert. denied, CT Page 1188 285 Conn. 911, 943 A.2d 470 (2007).
The petitioner has not filed a reply, as required by Practice Book § 23-31 in this situation, that might have set forth any cause and prejudice related to his default. See Henderson v. Commissioner of Correction, supra, 104 Conn.App. 568. In any event, the petitioner cannot prove either cause or prejudice. The petitioner claims as his cause the purported fact that the case law did not require trial courts to instruct sua sponte on affirmative defenses until after the time of his murder trial and direct appeal. This point is highly misleading. The petitioner overlooks the fact that our Supreme Court squarely held in the 2009 case of State v. Ebron, 292 Conn. 656, 691-92, 975 A.2d 17 (2009) that "trial courts do not have a duty to charge the jury, sua sponte, on defenses, affirmative or nonaffirmative in nature, that are not requested by the defendant." Thus, there is no more cause to raise the claim now than there was before. See State v. Preyer, 198 Conn. 190, 196-98, 502 A.2d 858 (1985) (rejecting claim "that a trial court always has an independent obligation, as a matter of law, to charge on any theory of defense for which there is a foundation in the evidence"); see also State v. Martin, 100 Conn.App. 742, 749-51 n. 5, 919 A.2d 508, cert. denied, 282 Conn. 928, 926, A.2d 667 (2007) (trial court's failure to provide instruction on affirmative defense to felony murder in absence of written request to charge not reviewable on direct appeal and not plain error). Similarly, because there is no right to an affirmative defense instruction in the absence of a request to charge, the petitioner cannot prove prejudice. Therefore, the petitioner has failed to overcome his procedural default.
Section 23-31 provides: "(a) If the return alleges any defense or claim that the petitioner is not entitled to relief, and such allegations are not put in dispute by the petition, the petitioner shall file a reply. (b) The reply shall admit or deny any allegations that the petitioner is not entitled to relief. (c) The reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default. The reply shall not restate the claims of the petition."
The petitioner's counsel had an obligation to refrain from "knowingly . . . [failing] to disclose to the tribunal such legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." Rules of Professional Conduct 3.3(a)(2). The court will assume that counsel's omission was not knowing. Unfortunately, the respondent also failed to cite Ebron. The respondent also fails to raise the claim of abuse of the writ, notwithstanding the petitioner's attempt to raise a completely unfounded claim of error in his fourth habeas petition twenty years after his conviction.
The petitioner cites to State v. Person, CT Page 1190 236 Conn. 342, 353, 673 A.2d 463 (1996). Person holds simply that "a defendant is entitled to a requested instruction on the affirmative defense of extreme emotional disturbance only if there is sufficient evidence for a rational juror to find that all the elements of the defense are established by a preponderance of the evidence." (Emphasis added.) Id. It does not hold that the court has an obligation to provide an affirmative defense instruction sua sponte.
V
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.