Opinion
No. CV 07 4001731
October 20, 2011
MEMORANDUM OF DECISION
On May 11, 2007, the petitioner, Maurice Billie, filed a petition for a writ of habeas corpus, which was amended on October 6, 2009, and again on October 21, 2009. Prior to filing the present petition, the petitioner filed at least two other habeas corpus petitions. In the first petition, he represented himself; in the second petition, Attorney Robert McKay represented him. In count one of his present petition, the petitioner alleges that Attorney McKay, his prior habeas counsel, rendered ineffective assistance in the following ways: (1) failing to present expert testimony from a forensic expert who would opine on the effects of a street drug known as "illy" on the petitioner at the time of the underlying crime; (2) failing to present expert testimony from a legal expert who would opine that the petitioner's appellate counsel failed to provide effective assistance of counsel; and (3) failing to present any evidence as to the petitioner's actual innocence. The petitioner alleges that the aforesaid claims are in violation of the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the constitution of Connecticut. In count two of his petition, the petitioner claims actual innocence. For reasons set forth more fully below, the petition is denied.
This matter came to trial on April 20, 2010 and August 31, 2010. The Court heard testimony from Attorney James Streeto, the petitioner's appellate counsel, Attorney Frank Cannatelli, a legal expert, Attorney McKay, the petitioner's prior habeas counsel, Attorney Robert Silverstein, the petitioner's trial counsel, Dr. James O'Brien, a forensic expert, and Andre Cinicola, an inmate who testified about the underlying crime. In addition, the petitioner offered as exhibits the trial transcripts, the petitioner's appellate brief, the State's appellate brief, the petitioner's reply brief, the appellate record, the petitioner's and State's motions to reargue en banc, the petitioner's petition for certification to the Supreme Court, the petitioner's Supreme Court brief, the State's Supreme Court brief, the Supreme Court record, the petitioner's motion to reargue en banc, the State's opposition to reargument, and the notice of expert witnesses filed by Attorney McKay in the prior habeas matter. The respondent proffered a transcript of the petitioner's first habeas trial, a transcript of the petitioner's second habeas trial, a statement of Andre Cinicola dated September 5, 1994, an audio tape of the Cinicola statement, a statement of the petitioner dated September 5, 1994, an audio tape of the petitioner's statement and a New Haven Police Department incident report dated December 2, 1994. The petitioner and the respondent filed post-trial briefs on May 24, 2011 and July 11, 2011, respectively. The petitioner filed a reply brief on July 22, 2011.
The Court has reviewed all of the testimony and evidence and makes the following findings of fact.
FINDINGS OF FACT
1. The petitioner was the defendant in a criminal case in the judicial district of New Haven under docket number CR94-402410. He was charged with one count of capital murder in violation of General Statutes § 53a-54b(8), two counts of murder in violation of General Statutes § 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48(a), use of a firearm in the commission of a Class A, B, or C felony in violation of General Statutes § 53-202k, carrying a pistol without a permit in violation of General Statutes § 29-35 and larceny in the first degree in violation of General Statutes § 53a-122(a)(3).
2. As stated by the Appellate Court, the jury could have reasonably found the following facts: "On September 3, 1994, the defendant spent the evening drinking alcohol and smoking marijuana and illy. The next day, the defendant went to a cookout hosted by friends where he and two friends smoked `blunts.'"
"Illy is the street name for a drug consisting of a nonuniform mixture of phencyclidine (PCP), wood alcohol, methanol and formaldehyde."
"A blunt typically is a small cigar that is hollowed out and filled with illy and smoked in the manner of a marijuana cigarette."
3. "Later in the day, the defendant met his friend Andre Cinicola, who had a .40 caliber semiautomatic pistol in a shoulder holster. The defendant put on the holster and weapon and covered them with a leather jacket. The defendant agreed to purchase marijuana for Cinicola and two female friends. The defendant then borrowed a black Mazda Miata from Marquis Clark, and he and Cinicola drove to Congress Avenue in New Haven to purchase marijuana from curbside dealers. During this time, acquaintances of the defendant drove up in a gray Chrysler and told him and Cinicola that members of a gang known as the Stickup Boys were nearby driving in a blue Mustang. The Stickup Boys were a gang that had recently engaged in a shooting and robbing spree in the inner city neighborhoods and housing projects in the New Haven area. The occupants of the Chrysler stated that they intended to `get' the Stickup Boys and drove off to find them. The defendant and Cinicola followed."
4. "Minutes later, the Chrysler and the Miata came upon a blue Mustang with tinted windows. Believing that the Mustang was occupied by the Stickup Boys, the drivers of the Chrysler and the Miata pulled behind the car, and the occupants of the Chrysler fired several shots at the Mustang. The Mustang fled at a high speed up Sherman Avenue, with the other two cars in pursuit. Attempting to overtake the Mustang, the other cars ran red lights and stop signs, traveling in excess of fifty miles per hour and swerving in and out of oncoming traffic."
5. "The defendant positioned the Miata alongside the driver's side window of the Mustang. Cinicola took the pistol from the defendant and fired two shots at the Mustang. The pistol jammed and Cinicola attempted to clear the weapon while the pursuit continued. Cinicola fired two more shots at the Mustang. One of the bullets struck the driver in the head, either killing or incapacitating him instantly and causing him to lose control of the car. The Mustang crashed into a nearby office building. The defendant also lost control of the Miata, which jumped the curb and skidded sideways along the sidewalk until it collided with a utility pole located seventy feet from the Mustang. The last portion of the chase and shootout was observed by three New Haven police officers who were near the location of the car crashes."
6. "The police officers found Cinicola on the sidewalk next to the Miata. The defendant was trapped in the driver's seat, and rescue personnel had to cut him out of the car before they could transport him to a hospital. Two passengers in the backseat of the Mustang had minor injuries and the two passengers in the front seat each suffered fatal gunshot wounds. The driver, George Goforth, was killed by a single gunshot wound to the head. The front seat passenger, Roshawnda Crenshaw, was killed by a single gunshot wound to the chest. Ballistics testing confirmed that the bullet that killed Crenshaw was fired from Cinicola's gun. The bullet that killed Goforth passed through his skull and was never recovered.
7. "The murder weapon was recovered near the Miata and tests revealed Cinicola's left index fingerprint. Several shell casings were recovered and several live, unfired rounds were found in the passenger compartment of the Miata. No weapon was found in the Mustang, and evidence later revealed that the defendant knew all four occupants and was a close friend of the two who were killed and that none of them was connected to the Stickup Boys. The tinted windows of the Mustang had prevented the defendant and Cinicola from identifying the occupants of the Mustang." CT Page 22149 State v. Billie, 47 Conn.App. 678, 680-82, 707 A.2d 324 (1998), aff'd on different grounds, 250 Conn. 172, 738 A.2d 586 (1999).
8. Attorney Richard Silverstein represented the petitioner at trial.
9. A jury found the petitioner guilty of two counts of the lesser charge of manslaughter in the first degree as an accessory in violation of General Statutes §§ 53a-8 and 53a-55(a)(1), one count of use of a firearm in the commission of a Class A, B, or C felony in violation of General Statutes § 53-202k and one count of carrying a pistol without a permit in violation of General Statutes § 29-35. The petitioner was acquitted of all other charges.
Petitioner's Exhibit [Exh.] 19, pp. 3-9.
10. On August 18, 1995, the trial court, Fracasse, J., sentenced the petitioner to a total effective sentence of forty-five years.
Petitioner's Exh. 20, pp. 14-15.
11. The petitioner appealed from the judgments of conviction. Attorney James Streeto represented him on appeal. The Appellate Court affirmed his convictions. State v. Billie, supra, 47 Conn.App. 678. Although the Supreme Court granted the petitioner's petition for certification from the Appellate Court, it also affirmed his convictions. State v. Billie, 250 Conn. 172, 738 A.2d 586 (1999).
12. Thereafter, the petitioner filed a petition for a writ of habeas corpus in the judicial district of Danbury. In his petition, he alleged that his trial counsel rendered ineffective assistance by picking a juror who knew a relative of one of the victims, failing to present expert testimony regarding his mental condition at the time of the crimes, failing to review the presentence investigation report (PSI) and prepare him for the PSI, attacking his character during closing argument and by failing to inform him of his right to sentence review. He prosecuted the petition pro se. After a hearing on the merits, the habeas court, White, J., dismissed the petition but restored the petitioner's right to sentence review.
Respondent's Exh. A, pp. 10-33.
Exhs. A and B. The Sentence Review Division affirmed the petitioner's sentence. State v. Billie, Superior Court, judicial district of New Haven, Docket No. CR94-402410 (June 7, 2004, Miano, O'Keefe, Espinosa, Js.).
13. On September 10, 2003, the petitioner filed a second petition for a writ of habeas corpus. Attorney McKay represented him in the matter. In his amended petition, he alleged in count one, that his trial counsel rendered ineffective assistance, in count two, that appellate counsel rendered ineffective assistance, in count three, that cumulative errors prevented him from having a fair and impartial trial and in count four, that he was actually innocent. Following a trial, the habeas court, Fuger, J., dismissed counts one and three, denied count two and deemed count four to have been abandoned by the petitioner. The habeas court dismissed the claim against Attorney Silverstein alleging that he had rendered ineffective assistance by failing to adequately prepare the expert called to discuss the general effects of illy on the ground that the petitioner had already litigated the claim in his first habeas petition and had not stated any new facts or proffered any new evidence not reasonably available at the time of the prior petition. The petitioner appealed the decision, and the Appellate Court issued a per curiam opinion dismissing the appeal. Billie v. Commissioner of Correction, 111 Conn.App. 905, 959 A.2d 1092 (2008). The Supreme Court denied the petitioner's subsequent petition for certification for appeal. Billie v. Commissioner of Correction, 290 Conn. 919, 966 A.2d 235 (2009).
Respondent's Exh. C; Billie v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 03 004146 (April 13, 2007, Fuger, J.).
14. Additional facts will be discussed as needed.
DISCUSSION
Ineffective Assistance of Counsel
In count one of his amended petition, the petitioner alleges that his prior habeas counsel rendered ineffective assistance. "A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a petitioner satisfy both a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the [s]ixth [a]mendment . . . To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . The claim will succeed only if both prongs are satisfied . . . It is well settled that [a] reviewing court can find against a petitioner on either ground, whichever is easier." (Citations omitted; emphasis in original; internal quotation marks omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203, cert. denied, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).
"[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding . . . [T]he petitioner will have to prove that . . . the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . ." (Internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 394, 966 A.2d 780 (2009).
The petitioner first claims that Attorney McKay should have presented expert testimony on the effect of the ingestion of illy on the petitioner at the time of the underlying incident in order to demonstrate that Attorney Silverstein rendered ineffective assistance by failing to present such testimony at the petitioner's criminal trial. To succeed in this claim, the petitioner "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." (Emphasis in original; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, supra, 113 Conn.App. 394.
At the petitioner's criminal trial, Attorney Silverstein presented the testimony of Dr. Jeremy August, a psychiatrist, on the general effects of illy but the trial court ordered his testimony stricken as irrelevant. The petitioner initially raised a claim of ineffective assistance against Attorney Silverstein for failure to present expert testimony regarding the effect of the ingestion of illy on him in his first habeas corpus petition. The habeas court dismissed this claim, holding that the petitioner did not meet his burden in proving either deficient performance or prejudice. In doing so, the habeas court noted: "[E]ven though the court struck Dr. August's testimony, the jury still heard about [the petitioner's] claimed intoxication on illy. They heard about it from [the petitioner], they heard about it from other witnesses, the judge gave an instruction to the jury regarding [the petitioner's] intoxication defense and they listened to [the petitioner's] lawyer's arguments . . . I don't think it was [the petitioner's] lawyer's fault that the — Dr. August's testimony didn't get into evidence, because as I can tell from reading the trial transcripts and from the testimony in court, the drug that [the petitioner says that he used] evaporates or dissipates from your system after a short period of time and the doctor wasn't available to even examine [the petitioner] until a long time after [he] had used those drugs. The hospital records that existed did not reflect anything about [the petitioner's] drug use and would not have been helpful to [him] . . . So the bottom line is Dr. August's testimony wouldn't have helped [the petitioner] anymore — In fact, [the petitioner] got the benefit of the instruction that [he] would have gotten had Dr. August testified. Now, you know, perhaps [the petitioner feels] that with the imprimatur of a psychiatrist on [his] claims of intoxication and so on, a jury would have been more impressed and that would have helped [him], but I don't think that that's the case."
Respondent's Exh. B, pp. 16-17.
The petitioner raised this claim again in his second habeas petition. Although this time he alleged that Attorney Silverstein failed to adequately prepare Dr. August to introduce a defense that he had been under the influence of illy at the time of the incident. The habeas court in that case dismissed the claim as successive. It explained: "This alleged deficiency is merely a verbal reformulation of the claim raised in the Danbury habeas and attempts to reassert the same claim with marginally different evidence in support of the claim . . . [Additionally, the claim] fails to state new facts or proffer new evidence not reasonably available at the time of the prior petition." Billie v. Warden, supra, Superior Court, Docket No. CV 03 0004146.
The petitioner's claim against Attorney McKay in the present petition fails because even if Attorney McKay presented expert testimony at the earlier habeas trial regarding the effect of illy on the petitioner at the time of the crime, assuming he even could, the outcome of the second habeas trial would not have been different. As noted above, the habeas court dismissed the claim as successive. "The doctrine of res judicata provides that a former judgment serves as an absolute bar to a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made." (Internal quotation marks omitted.) Kearney v. Commissioner of Correction, 113 Conn.App. 223, 234, 965 A.2d 608 (2009). "A narrowing of the application of the doctrine of res judicata to habeas proceedings is encapsulated in Practice Book § 23-29, which states: `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 proffer new evidence not reasonably available at the time of the prior petition . . .'" Id., 234. The only way the petitioner could have avoided the dismissal of his claim of ineffective assistance against Attorney Silverstein in his second habeas petition was by presenting new facts or proffering new evidence not reasonably available at the time of the prior petition. Since the petitioner could have presented expert testimony regarding the effect of illy on him at the time of his first habeas petition, presenting such evidence at his second habeas trial would not have changed the outcome of his second habeas petition. Accordingly, this claim fails.
Attorney McKay testified at the habeas trial that he could not find a doctor who could provide any more information than Dr. August had at the petitioner's criminal trial. In other words, he could not find a doctor who could opine on the effects that illy had on the petitioner at the time of the underlying incident. Dr. James O'Brien testified at the habeas trial to the general effects that phencyclidine (PCP), a component of illy, has on its users. Most notably he testified that "there's a number of scenarios that can occur" and that he was not giving an opinion on the effect that illy had on the petitioner. Habeas Trial Transcript August 31, 2010, pp. 79, 90.
The petitioner next claims that Attorney McKay rendered ineffective assistance in his prosecution of the petitioner's claim of ineffective assistance against Attorney Streeto. Specifically, he alleges that Attorney McKay should have presented expert testimony regarding Attorney Streeto's alleged ineffective representation of the petitioner on direct appeal. As to Attorney Streeto's alleged ineffective assistance, the petitioner specifically claims that he failed to raise certain issues on direct appeal to the Appellate Court, to wit: the propriety of the trial court's instruction to the jury on how to consider the lesser included offenses, the failure of the trial court to instruct the jury on the defense of duress and the propriety of charging the petitioner with two counts of manslaughter in the first degree as an accessory.
As noted above, to prevail on his claim of ineffective assistance against Attorney McKay, his prior habeas counsel, the petitioner has to prove not only that Attorney McKay rendered ineffective assistance but that Attorney Streeto rendered ineffective assistance. See Lapointe v. Commissioner of Correction, supra, 113 Conn.App. 394. Moreover, "[w]hen a petitioner is claiming ineffective assistance of appellate counsel, he must establish that there is a reasonable probability that but for appellate counsel's error, the petitioner would have prevailed in his direct appeal." (Internal quotation marks omitted.) Turner v. Commissioner of Correction, 118 Conn.App. 565, 568, 984 A.2d 793 (2009), cert. denied, 296 Conn. 901, 991 A.2d 1104 (2010).
Attorney McKay testified at the habeas trial that he believed he had a stronger claim of ineffective assistance against Attorney Silverstein than Attorney Streeto and that after he failed to have Attorney Cannatelli qualified as an expert in criminal defense at the earlier habeas trial, he decided not to try to have him qualified as an expert in criminal appellate matters. Regardless of whether Attorney McKay's failure to present an expert in criminal appellate matters at the earlier habeas trial constitutes deficient performance, the petitioner's claim fails because he has not demonstrated that Attorney Streeto rendered ineffective assistance in the first place.
Attorney Streeto testified at the present habeas trial that he raised those issues that he believed were most likely to succeed on appeal. While he does not particularly like the acquittal first doctrine whereby a trial court instructs a jury to consider lesser included offenses only after first acquitting the accused of the greater offenses, he testified that he may not have pursued it on direct appeal because "this particular issue has been run up the flagpole several times and has gone down in flames." As for the petitioner being charged in two counts as an accessory, Attorney Streeto testified that he was not aware of any case law prohibiting an accused from being charged as an accessory twice where the underlying incident resulted in two deaths. Similarly, Attorney Cannatelli, the petitioner's expert in appellate matters, testified at the habeas trial that one could be charged with multiple counts of manslaughter in the first degree as an accessory. He further testified that Attorney Streeto could have raised other issues on direct appeal but ultimately he testified that he believed that "Attorney Streeto did an excellent job . . ."
Habeas Trial Transcript April 20, 2010, p. 18.
Habeas Trial Transcript April 20, 2010, p. 44.
Based upon the above, this Court finds that Attorney Streeto did not render ineffective assistance as appellate counsel. He raised those issues that he believed had the most merit. "The determination of which issues to present, and which issues not to present, on an appeal is by its nature a determination committed to the expertise of appellate counsel, and not to his client . . . By that determination, appellate counsel seeks to focus the concern of the appellate court on those issues which he deems to be most persuasive, and thus does appellate counsel most effectively present his client's appeal." (Citation omitted.) Valeriano v. Bronson, 12 Conn.App. 385, 390, 530 A.2d 1100 (1987), aff'd, 209 Conn. 75, 546 A.2d 1380 (1988). "[A] habeas court will not, with the benefit of hind-sight, second guess the tactical decisions of appellate counsel. Legal contentions, like the currency, depreciate through over-issue . . . [M]ultiplying assignments will dilute and weaken a good case and will not save a bad one . . . The effect of adding weak arguments will be to dilute the force of the stronger ones." (Internal quotation marks omitted.) Farnum v. Commissioner of Correction, 118 Conn. App. 670, 679, 984 A.2d 1126 (2009), cert. denied, 295 Conn. 905, 989 A.2d 119 (2010). Additionally, the petitioner has not met his burden in demonstrating that had Attorney Streeto raised those issues that the petitioner believes he should have raised on appeal there is a reasonable probability that the petitioner would have prevailed on appeal. Accordingly, the petitioner's claim against Attorney McKay for failure to present expert testimony to establish Attorney Streeto's alleged ineffective assistance fails.
Lastly, the petitioner alleges that Attorney McKay rendered ineffective assistance in his prosecution of the petitioner's actual innocence claim. He claims that Attorney McKay did not present any evidence on the actual innocence claim and that he failed to brief the claim in his post-trial brief. The habeas court in the petitioner's second petition deemed the petitioner's actual innocence claim to have been abandoned for lack of evidence and failure to brief the claim in the post-trial brief. Attorney McKay testified at the present habeas trial that he presented the testimony of Cinicola in support of the actual innocence claim and that he did not believe that he had to touch upon every issue raised in the petition in his post-trial brief. In any event, he conceded that he did not have any case law regarding whether Cinicola's testimony constituted sufficient evidence of the petitioner's actual innocence.
Regardless of whether Attorney McKay's prosecution of the petitioner's actual innocence claim was deficient, the petitioner's claim fails because the petitioner has not demonstrated any resulting prejudice. That is, even if Attorney McKay briefed the issue in his post-trial brief and marshaled the evidence in support thereof, there is no reasonable probability that the habeas court would have found the petitioner actually innocent. The petitioner has presented essentially the same evidence that he presented in his prior habeas action in support of his present claim of actual innocence, and as discussed below, his present claim fails.
Actual Innocence
In addition to alleging that Attorney McKay rendered ineffective assistance, the petitioner has alleged once again that he is actually innocent of the underlying offenses. "[T]he proper standard for evaluating a freestanding claim of actual innocence . . . is twofold. First, the petitioner must establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted. Second, the petitioner must also establish that, after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty of the crime." Miller v. Commissioner of Correction, 242 Conn. 745, 747, 700 A.2d 1108 (1997). "[Our Supreme Court has] equated the clear and convincing burden with an extraordinarily high and truly persuasive [demonstration] of actual innocence . . . one in which the petitioner must unquestionably establish [his] innocence . . . [It] underscored that truly persuasive demonstrations of actual innocence after conviction in a fair trial have been, and are likely to remain, extremely rare . . . Indeed, Miller [ v. Commissioner of Correction, supra, 242 Conn. 745,] remains the only case in which a claim of actual innocence successfully has been established in this state." (Citations omitted; internal quotation marks omitted.) Gould v. Commissioner of Correction, 301 Conn. 544, 560, 22 A.3d 1196 (2011).
"Our Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence . . . [Our Appellate Court], however, has held that a claim of actual innocence must be based on newly discovered evidence . . . [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered . . . 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.) Weinberg v. Commissioner of Correction, 112 Conn.App. 100, 119, 962 A.2d 155, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009).
The petitioner presented the testimony of Cinicola in support of his claim of actual innocence. His testimony is newly discovered, as Cinicola exercised his fifth amendment right to remain silent at the time of the petitioner's criminal trial. His testimony does not, however, unquestionably establish the petitioner's actual innocence.
As noted in this Court's memorandum of decision on the respondent's motion to dismiss "any expert testimony presented regarding the effects of illy simply cannot be considered `newly discovered' evidence . . . given the factual and procedural history of the petitioner's underlying criminal case, the direct appeal therefrom and his two prior habeas corpus petitions." Billie v. Warden, Superior Court, judicial district of Tolland, Docket No. CV 07 4001731 (April 7, 2010, Santos, J.).
Cinicola testified that around eight or ten o'clock at night on September 4, 1994 the petitioner picked him up on the street to go buy some marijuana. He stated that the petitioner had the gun that he had loaned him the previous week in his lap. After they purchased the marijuana, they drove away and ended up next to the Mustang. At that time, he heard some gunshots and took the gun from the petitioner's lap and fired it. He stated that he did not ask the petitioner for the gun; he just took it.
This Court does not find Cinicola's testimony to be credible. Following the petitioner's criminal trial, on account of his involvement in the shooting, Cinicola pleaded guilty to two counts of murder and received a total effective sentence of fifty years. Accordingly, testifying concerning his involvement in the shooting is no longer harmful to him. That is, he can try to help the petitioner, who he has acknowledged is his good friend, by taking full responsibility for the shooting, knowing he will not be subject to any further consequences. Additionally, shortly after the shooting, Cinicola gave the police two separate statements which differ markedly from his present testimony. In his first statement, he stated that the first shots came from the car he was in and that it was the petitioner who fired at the Mustang, believing it was occupied by the people who were responsible for numerous robberies in the neighborhood. He also stated that prior to the shooting, he did not know that the petitioner had a gun because it was in the holster under his jacket. In his second statement to the police, Cinicola stated that the petitioner fired two shots, dropped the gun and that he, Cinicola, picked it up and fired at the Mustang, as the petitioner followed it down the road.
Respondent's Exh. D.
Respondent's Exh. H.
Even if this Court found Cinicola's testimony credible, taking into account all the evidence, including that adduced at the petitioner's criminal trial, the petitioner has not proven his actual innocence or that no reasonable fact finder would find him guilty. At his criminal trial, the petitioner testified that Cinicola gave him the gun that night and that he put the holster and gun on under his jacket. He further testified that he pulled up alongside the Mustang and that after hearing some gunshots, Cinicola unzipped his jacket, took the gun and started shooting. He stated that he tried to avoid the shooting but claimed that he could not control the car. In his statement to the police, he stated that he followed the Chrysler to the Mustang and that he pulled up alongside the Mustang. He further stated that Cinicola asked for the gun, unzipped his jacket, took the gun and fired until the gun jammed. Upon the gun jamming, the petitioner did a U-turn and came up behind the Chrysler and the Mustang. Cinicola fired again and then the petitioner lost control of the car and crashed. In light of this evidence, including Cinicola's testimony, a reasonable fact finder could find the petitioner guilty as an accessory, as the jury did. Irrespective of whether the petitioner played any role in the actual shooting of the gun, the evidence clearly establishes that he enabled Cinicola to shoot at the Mustang by driving close to it. Consequently, the petitioner's actual innocence claim fails.
Petitioner's Exh. 14, pp. 129-202; Petitioner's Exh. 15, pp. 2-65.
Respondent's Exh. F.
CONCLUSION
Based on the foregoing, the petition for a writ of habeas corpus is DENIED. Judgment may enter in favor of the respondent. Should the petitioner wish to appeal, counsel shall submit a judgment file to the clerk within thirty days.
CT Page 22159