Opinion
CV144006163
12-07-2016
Dennis Adkins v. Warden, State Prison
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Samuel J. Sferrazza, S.J.
The petitioner, Dennis Adkins, seeks habeas corpus relief from thirty-five years imprisonment imposed upon his guilty plea to felony murder. That plea entered under the doctrine announced in North Carolina v. Alford, 400 U.S. 25, 35, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The petitioner filed a previous habeas action in which he unsuccessfully claimed that his defense counsel, Attorney Francis Mandanici, provided ineffective assistance, Adkins v. Warden, Superior Court, Tolland Judicial District d.n. CV 02-003561, (October 10, 2003), Fuger, J.; affirmed, per curiam, Adkins v. Commissioner, 88 Conn.App. 901, 869 A.2d 279, (2005); cert. denied, 281 Conn. 906, 916 A.2d 48 (2007). The petitioner now contends that his previous habeas counsel, Attorney Brian Russell, represented him ineffectively, as well as trial counsel, Attorney Mandanici.
In the first and second counts of the amended petition, the petitioner alleges that Attorney Mandanici failed to advise the petitioner concerning his right to appeal from the trial court's denial of the petitioner's motion to withdraw his guilty plea and that Attorney Mandanici labored under an actual conflict of interest because the petitioner had filed a grievance against Attorney Mandanici while his criminal case was pending, respectively. These claims must be dismissed, pursuant to Practice Book § 23-29(3) because they present the same grounds for relief denied in his earlier habeas case, namely the ineffective assistance of defense counsel and which are not based on new facts or evidence " not reasonably available at the time of the prior petition." The addition of new specifications of ineffective assistance against Attorney Mandanici is insufficient to state a new legal ground different from that raised by the previous habeas petition filed in d.n. CV 02-003561, McClendon v. Commissioner, 93 Conn.App. 228, 230, 888 A.2d 183, (2006); cert. denied, 277 Conn. 917, 895 A.2d 789 (2006).
Of course, the failure by Attorney Russell to assert these specifications of ineffective assistance can form the basis for a claim of ineffective assistance by previous habeas counsel, and the petitioner asserts just such a claim in the present case. 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 habeas 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.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly without reaching the question of counsel's competence. Pelletier v. Warden, 32 Conn.App. 38, 46, 627 A.2d 1363 (1993). In order to satisfy the prejudice prong of the 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 outcome. 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. Thus, the failure of the petitioner to establish, by a preponderance of the evidence, either the allegations against trial counsel or habeas counsel or the requisite prejudice as to both the first habeas case and the criminal trial will defeat a claim for habeas corpus relief in the present action.
Also, in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), our Supreme Court recognized a purely statutory right to raise, in a second habeas action, a claim of ineffective assistance on the part of previous habeas counsel in presenting claims of ineffective assistance of trial counsel. Id., 835. However, the petitioner's burden becomes a two-tiered application of the Strickland standard by which allegations of ineffective assistance claims are gauged. Id., 842. To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective. Id., (emphasis added). Also, the petitioner must prove that, but for the derelictions of habeas counsel, he was prejudiced in the sense that the outcome of the first habeas case was suspect, and that burden demands proof of the existence of a reasonable likelihood that the outcome of the original, criminal trial would have been different. Id., at 842-43. The Supreme Court described this double-layered obligation as " a herculean task." Id., 843.
Conflict of Interest
The petitioner alleges that Attorney Russell represented him deficiently because he failed to raise the claim that Attorney Mandanici had a conflict of interest in continued representation of the petitioner during his criminal case. The purported basis for that conflict of interest claim was that the petitioner had, on February 19, 2000, filed a complaint against Attorney Mandanici with the Statewide Grievance Committee while the criminal case was pending. That grievance was ultimately dismissed because the Committee determined that no misconduct occurred. This allegation of ineffective assistance by habeas counsel fails for multiple reasons.
First, the gist of the petitioner's grievance was that he was dissatisfied with the amount of investigation performed and the lack of communications with the petitioner by Attorney Mandanici. This form of discontent fails to create a conflict of interest requiring the removal of counsel, Morris v. Slappy, 461 U.S. 1, 6, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). " [W]e reject the claim that the Sixth Amendment guarantees a 'meaningful relationship' between an accused and his counsel." Id. The aim of the constitutional right to counsel is to provide an effective advocate " rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." State v. Crespo, 246 Conn. 665, 720, fn.13, 718 A.2d 925 (1998).
Unhappiness with the perceived performance of counsel by a criminal defendant creates no ground for a conflict of interest requiring removal of counsel, State v. Vega, 259 Conn. 374, 391, 788 A.2d 1221 (2002). Insignificant and unsubstantiated criticisms of trial counsel are insufficient to warrant withdrawal by that lawyer, State v. Rodriguez, 93 Conn.App. 739, 747, 890 A.2d 591 (2006). The filing of a grievance based on that perception is likewise " insufficient to implicate violation of the defendant's sixth amendment rights" and does not disqualify the attorney who is the subject of that grievance from continuing to represent the recalcitrant client, State v. Miller, 69 Conn.App. 597, 611-12, 795 A.2d 611 (2002). Consequently, the supposed conflict of interest engendered by the lodging of the grievance against Attorney Mandanici afforded a very shaky legal ground on which Attorney Russell could assert such a claim at the earlier habeas proceeding.
Second, the petitioner's later guilty plea waived any conflict of interest claim even if such the ersatz disqualifying circumstance existed. The petitioner pleaded guilty on April 14, 2000, around two months after he grieved Attorney Mandanici. The general rule is that a guilty plea waives all nonjurisdictional defects antecedent to the entering of the plea, including defects asserting constitutional deprivations, State v. Madera, 198 Conn. 92, 97, 503 A.2d 136; State v. Banks, 24 Conn.App. 408, 412, 588 A.2d 669. Only defects which implicate the subject matter jurisdiction of the court survive a later valid guilty plea, and defects asserting a lack of personal jurisdiction over an accused are waived by a subsequent guilty plea. Reed v. Reincke, 155 Conn. 591, 597, 236 A.2d 909; State v. Baez, 194 Conn. 612, 616, 484 A.2d 236 (1984), McKnight v. Commissioner, 35 Conn.App. 762, 764, 646 A.2d 305 (1994); cert. denied, 231 Conn. 936, 650 A.2d 173 (1994); State v. Niblack, 220 Conn. 270, 277, 596 A.2d 407 (1991). This waiver rule applies equally to matters raised by way of direct appeal or by collateral attack, such as through a petition for habeas corpus relief, Dukes v. Warden, 161 Conn. 337, 343, 288 A.2d 58 (1971), Reed v. Reincke, supra, 601; Cajigas v. Warden, 179 Conn. 78, 81, 425 A.2d 571 (1979).
A claim of ineffectiveness of counsel at an antecedent proceeding is the kind of defect ordinarily waived by a later guilty plea. Our Supreme Court has addressed this issue, also. In Dukes v. Warden, supra, 343-44, the court held that the waiver rule applies to claims of ineffective assistance of counsel as well as other types of pre-plea, constitutional deficiencies. See also McKnight v. Commissioner, supra .
Several federal court cases have arrived at the same conclusions. In Siers v. Ryan, 773 F.2d 37 (CA.3, 1985), cert. denied, 490 U.S. 1025, 109 S.Ct. 1758, 104 L.Ed.2d 194, a federal habeas petitioner attempted to advance a claim that the discontinuity of legal representation resulting from the shifting of his case from one public defender to another during the pre-plea stages of his proceedings denied him the effective assistance of counsel. The petitioner later pled guilty to a robbery charge. The U.S. Court of Appeals held that his subsequent guilty plea barred the raising of the claim of ineffectiveness. Id., 42.
In U.S. v. Greene, 722 F.Supp. 1221 (E.D.Pa., 1989), a federal defendant pled guilty to mail fraud and later filed a habeas petition attacking this conviction based on a claim that he was deprived of the effective assistance of counsel because his counsel failed to raise search and seizure issues and raise the defense of insanity. At p. 1222, the U.S. District Court held the petitioner's guilty plea " bars petitioner from challenging the constitutional validity of governmental conduct that occurred before the plea was entered."
In U.S. v. Winfield, 960 F.2d 970 (CA. 11, 1992), a petitioner tried to attack his conviction, following a guilty plea, based on an allegation that his attorney rendered ineffective assistance by failing to file and argue a motion to dismiss based on the expiration of the statute of limitations. At p. 974, fn.2, the U.S. Court of Appeals regarded this claim as waived by the guilty plea.
In Wilson v. U.S., 962 F.2d 996 (CA.11, 1992), a petitioner entered a guilty plea and later filed a federal habeas petition that his attorney provided ineffective assistance regarding certain pre-plea issues. The U.S. District Court refused to conduct a habeas hearing and dismissed the petition. The U.S. Court of Appeals affirmed the District Court stating, " the court did not err in dismissing [the petitioner's] claim, as it involved pre-plea issues, without conducting an evidentiary hearing." Id., 997.
In Fields v. Maryland, 956 F.2d 1290 (CA.4, 1992), a federal habeas petitioner attempted to overturn his state conviction following his guilty plea. He claimed, inter alia, that he was denied the assistance of counsel at certain critical stages of the proceedings because his public defender was absent during these proceedings. The U.S. District Court dismissed the petition. The U.S. Court of Appeals upheld the dismissal indicating, " [i]t is well-established that a voluntary and intelligent guilty plea forecloses federal collateral review of allegations of antecedent constitutional deprivation." Id., 1294. The court also noted that because the constitutional deprivation asserted, viz, the denial of the assistance of counsel, occurred before the guilty plea and was unrelated to it, the merits of the petitioner's claims need not be reached. Id., 1296.
Finally, in Taylor v. Whitley, 933 F.2d 325 (CA.5, 1991), a federal habeas petitioner attacked his state convictions for murder, armed robbery, and attempted murder, following his guilty pleas, contending, inter alia, that his attorney rendered ineffective assistance by failing to raise a double jeopardy defense. The U.S. Court of Appeals affirmed the U.S. District Court decision denying the petition. The Court of Appeals stated that a " voluntary and intelligent guilty plea does not become vulnerable to habeas corpus review simply because later judicial decisions indicate that the plea rested on a faulty premise or that the legal and factual evaluations of the defendant's counsel were incorrect." Id., 327.
In that case, the petitioner tried to argue that he would never have pled guilty had he realized or been advised that he had a viable double jeopardy claim. The Court of Appeals rejected this argument stating, " the critical issue is whether the defendant understood the nature and substance of the charges against him, and not necessarily whether he understood their technical legal effect." Id., 329 (emphasis added). The court went on to indicate that the absence of advice regarding the double jeopardy issue " does not affect the voluntary and intelligent nature of his pleas." Id., 331.
The Taylor case, supra, is significant in that it points out that a guilty plea may be voluntarily and intelligently entered without disclosure by counsel, or the court, of all possible consequences of a guilty plea. What is required is disclosure and advice as to those consequences concerning the nature and substance of the charge to which the plea is made and the trial rights yielded by entering the plea, such as the right to confront and cross-examine witnesses. There is no constitutional right to be advised of other ramifications which a guilty plea might engender, according to the Taylor case, such as the waiver of pre-plea defects.
The federal cases cited above are consistent with and bolster the holding of Dukes v. Warden, supra, that a later guilty plea waives claims of ineffectiveness of counsel at earlier proceedings unrelated to taking of the plea.
The court notes that the petitioner in Dukes v. Warden, supra, like the petitioner in the present case, contended that his attorney's supposed conflict of interest invalidated his later guilty plea. Id., 343. Unless the conflict rendered the plea itself involuntary or unknowing, a claim of conflict of interest by one's attorney is waived by virtue of a guilty plea and cannot be raised by way of habeas corpus attack. Id.
This court's review of the petitioner's plea hearing transcript discloses that the petitioner entered that plea, under the Alford doctrine, knowingly and voluntarily. Whatever psychological role the petitioner's dissatisfaction with Attorney Mandanici's previous representation may have played in his decision to plead guilty is immaterial. What counts is that the petitioner understood the rights he gave up by pleading guilty, the nature of the charge against him, the strengths and weaknesses of the state's case and his own, the punishments available for that offense, and the terms of the agreed disposition. This court's examination of the record leads it to concur with Judge Fuger's finding on the same point that the petitioner " freely made the choice to give up his constitutional right to a trial in order to obtain favorable consideration upon sentencing, " Adkins v. Warden, supra .
This waiver provides additional support for the conclusion that Attorney Russell acted properly and professionally when he omitted such a dubious claim in the first habeas case.
Failure to Advise re Appeal
The second specification of professional error is that Attorney Russell failed to assert a claim of ineffective assistance by Attorney Mandanici for his failure to advise the petitioner that he could appeal from the trial court's denial of the motion to withdraw his guilty plea. Between plea and sentencing, on May 26, 2000, the petitioner expressed his desire to withdraw his guilty plea to both Attorney Mandanici and the trial judge in the Presentence Investigation report (PSI) and other material sent directly to the court by the petitioner.
Before imposing sentence, the trial judge heard the parties' positions on this request. Attorney Mandanici candidly acknowledged that he knew of no legal basis to grant the petitioner's request. Attorney Mandanici related that the petitioner never articulated to him any reason to withdraw the guilty plea except that the petitioner experienced a change of heart.
The trial judge inquired of the petitioner as to why he should permit the petitioner to withdraw his guilty plea. The petitioner responded by disavowing any knowledge that he pleaded guilty to murder rather than a lesser offense and by repudiating his confessions to the police and admissions to others. The trial court found that no legitimate basis for the withdrawal of the guilty plea existed and denied the petitioner's request.
Attorney Mandanici never advised the petitioner about the opportunity to appeal from that denial, and no appeal was timely initiated. The Appellate Court denied permission to file a late appeal on September 27, 2016, more than sixteen years after the criminal case concluded.
As a preliminary matter, the court observes that two significant changes to the interpretation of the prejudice component of the Strickland standard evolved in Connecticut habeas corpus jurisprudence since the petitioner's first habeas trial in 2003. The case of Small v. Commissioner; 286 Conn. 707, 946 A.2d 1203 (2008), overruled earlier precedent set in Bunkley v. Commissioner, 222 Conn. 444, 610 A.2d 598 (1992); and Carraway v. Commissioner, 317 Conn. 594, 119 A.3d 1153 (2015), partially overruled Copas v. Commissioner, 234 Conn. 139, 662 A.2d 718 (1995).
The Bunkley case, supra, had held that, in order to satisfy the prejudice prong of the Strickland test for failure to appeal an issue directly, the habeas petitioner had the burden to prove that there existed a reasonable likelihood that, eventually, the petitioner would not only have succeeded on appeal but also would have been acquitted at a retrial following that appeal, Id., 454-55. That burden applied to habeas cases when the petitioner's earlier habeas was tried, in 2003, and affirmed on appeal in 2005.
The Small decision, supra, concluded that the element of prejudice requiring proof of an ultimate acquittal was overly burdensome, Id., 723-24. Instead, the correct prejudice analysis need only focus on the outcome of the potential appeal in order for the habeas petitioner to obtain relief in the nature of a new appeal or restoration of lost appellate rights, Id.
However, in evaluating Attorney Russell's performance as habeas counsel in 2003, this court must utilize the appellate standard applicable in 2003. That is, this court assesses Attorney Russell's representation using the Bunkley holding, which governed habeas corpus law in 2003 rather than the law that developed later. The Strickland test requires comparison of counsel's performance with that contemporaneously practiced, and a habeas court cannot hold counsel's representation to legal precedents that arose later.
A similar approach must guide this court with respect to the evolution of the Strickland analysis of prejudice that pertains to ill-advised guilty pleas. As noted, above, in the Copas case, supra, our Supreme Court remarked that habeas petitioner had to prove, that he or she would have wanted to have a trial rather than plead guilty, but for counsel's inept assistance. But also the petitioner needed to prove that the result after a trial would have been more favorable than that produced by the guilty plea; Copas v. Commissioner; supra, 151. The Carraway decision, supra, noted that this remark in Copas was dictum, and, to the extent that the Copas case suggested that that added item of proof of prejudice was necessary, that requirement was erroneous and had been abandoned sub silentio, Carraway v. Commissioner, supra, 596-600, fn.6.
To reiterate, this court will determine whether habeas counsel's representation fell below prevailing standards in failing to raise the claim of Attorney Mandanici's substandard performance in failing to advise the petitioner regarding appealing from the trial court's denial of his request to withdraw his guilty plea. That view necessarily entails the erstwhile interpretation of prejudice under Strickland that placed the added burden upon the petitioner of demonstrating a more favorable outcome after a trial had he prevailed in an appeal of the denial of his request to withdraw his guilty plea. The outcome of the guilty plea was the thirty-five year prison term imposed for the crime of felony murder.
After consideration of all the evidence adduced, the court finds that the petitioner has failed to meet his burden of proving, by a preponderance of the evidence, that Attorney Russell was deficient for failing in the first habeas corpus to raise Attorney Mandanici's failure to advise the petitioner about the possibility of appealing from the denial of his request to withdraw his plea. Judge Fasano's denial of the request was unassailable. Attorney Mandanici provided no goodfaith basis to support that request. The petitioner voiced his complaint that he misunderstood that he pleaded guilty to felony murder, but the transcript of the plea canvass refutes that statement.
The court finds that the petitioner's request to withdraw his guilty plea was simply a change of mind. Reconsideration or regret, standing alone, cannot validly support a motion to withdraw a guilty plea that was otherwise lawfully entered. Judge Fuger found " the petitioner's statement attacking his confession is self-serving and unworthy of belief, " Adkins v. Warden, supra . This court received no credible evidence that Attorney Russell could have presented a stronger case before Judge Fuger to alter that conclusion.
No legal expert testified at the habeas trial that Attorney Russell ineffectively represented the petitioner on that issue or any other issue. The court rules that the petitioner has failed to demonstrate either prong of the Strickland standard with respect to Attorney Russell's assistance at the first habeas trial. Attorney Russell faced the " Herculean task" of showing that, had Attorney Mandanici, advised the petitioner that he could appeal from the denial of his request to withdraw his guilty plea, that appeal would have succeeded and that a trial would have produced a better outcome, utilizing the Copas interpretation of prejudice, which Attorney Russell would have reasonably believed applied to the petitioner's case. A habeas court ought to be reluctant to demand that lawyers recognize a change in the law that occurred " sub silentio, " or be deemed ineffective otherwise.
It is highly unlikely that any habeas counsel would have succeeded in that daunting endeavor. No genuine infirmity surrounding the guilty plea existed. " [A] defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the state's case or the likely penalties attached to alternative courses of action, " State v. Reid, 277 Conn. 764, 788, 894 A.2d 963 (2006).
" [T]he plain language of Practice Book § 39-26 expressly imposes limitations upon a defendant's ability to withdraw his guilty plea after it has been accepted, " State v. Anthony D., Sr., 320 Conn. 842, 850-51, 134 A.3d 219 (2016). " [Section] 39-26 requires the trial court to grant the defendant's motion to withdraw his guilty plea only 'upon proof ' of one of the grounds in Practice Book § 39-27." Id., (emphasis in original). The only colorable ground enumerated in Practice Book § 39-27 is in subsection (4), which ground is that Attorney Mandanici rendered ineffective assistance surrounding decision to plea the guilty. But that claim of ineffective assistance was raised and rejected in the first habeas, Adkins v. Warden, supra, and that rejection was affirmed on appeal, per curiam, Adkins v. Commissioner, supra .
At the time of his request, the petitioner bore " the burden to present facts sufficient to persuade the trial court that his guilty plea should be withdrawn at [that] point in the proceedings, " State v. Anthony D., Sr., supra, 851. There was no credible evidence presented at the habeas trial before this court to support a claim that such proof was available to Attorney Mandanici at the time the petitioner sought to withdraw his plea. Consequently, Attorney Russell had no professional obligation to raise a claim of ineffective assistance for failing to advise the petitioner of the possibility of appealing from that denial of his request because that appeal was very likely to fail.
Also, as mentioned above, Attorney Russell would have to have shown that there existed a reasonable likelihood that the petitioner would have achieved a more favorable outcome after a trial, under habeas corpus law in Connecticut as it was then elucidated by Bunkley v. Commissioner, supra . The previous habeas court employed that rubric and determined " that had the petitioner elected to plead not guilty and take his case to trial, it is likely that he would have been found guilty, Adkins v. Warden, supra . Judge Fuger's decision was affirmed, per curiam, Adkins v. Commissioner, supra .
The petitioner had signed a thirty-seven page written confession, that was also tape-recorded, in which he admitted that, while he attempted to commit and then completed an armed robbery, he encountered and fought with one of the victims and shot that person to death. No witnesses or other evidence was provided at the first habeas trial or at the present one to corroborate the petitioner's assertion that he uttered a false confession. The court finds that he has failed to satisfy his burden of proving, by a preponderance of the evidence, that, had he proceeded to trial, there exists a reasonable probability that he would have been acquitted or received a lesser sentence.
For these reasons, the amended petition for habeas corpus relief is denied.