Opinion
No. CV07-4001599-S
August 2, 2011
MEMORANDUM OF DECISION
The petitioner initiated this matter by way of a pro se petition for a writ of habeas corpus initially filed on March 6, 2007. After counsel was appointed for the petitioner, the petition was amended for the first time on September 23, 2009. A second amended petition was filed on November 16, 2009. The amended petition asserts a single claim; that is, that he received ineffective assistance by his previous habeas counsel, Attorney Justine Miller. Specifically, the petitioner alleges that Attorney Miller failed to allege in his first habeas petition that: (a) he was deprived of his right to representation in his underlying criminal trial, and, (b) his initial appellate lawyer did not raise this issue on appeal. The respondent's return denies the petitioner's material allegations and that he is entitled to habeas corpus relief. The return also asserts procedural default, res judicata and collateral estoppel as a bar to habeas relief. The petitioner's reply denies those defenses.
Commonly referred to as a "habeas on a habeas."
The parties appeared before this court for trial on various dates between May 2010 and February 2011. The court heard testimony from Attys Thomas Ullman, Justine Miller, Mary Haselkamp and Francis Mandanici. In addition, an investigator for the Public Defender's office, Thomas O'Donnell and the Petitioner also testified. Various other pieces of documentary evidence, including the criminal trial transcripts, were admitted into evidence. After reviewing and considering all the evidence presented, the court concludes that the petitioner has failed to meet his burden of proof Thus, for the reasons stated more fully below, the petition for a writ of habeas corpus is denied.
FINDINGS OF FACT
1. The petitioner was a defendant in a criminal case in the Judicial District of New Haven entitled State v. Brown, under docket number: CR-96-438991 (hereafter, the arson case) in which he was charged with Arson in the 1st degree in violation of CGS § 53a-111(a)(3) and Arson in the 1st degree in violation of CGS § 53a-111(a)(4) and conspiracy to commit Arson in the 1st degree in violation of CGS §§ 53a-111 and 53a-48.
2. The petitioner applied for and, upon a finding of indigency, was granted the services of the Public Defender. He was represented by Asst. Public Defender Mary Haselkamp who was joined in that representation at a later time by Asst. Public Defender, Francis Mandanici.
3. On November 12, 1998, the State's Attorney filed a motion for a judicial determination of the petitioner's eligibility for the services of the public defender. Thereafter, on November 13, 1998, pursuant to CGS § 51-297, the Office of the Public Defender filed a motion to withdraw representation on the ground that the petitioner was not eligible for the services of the public defender.
4. "After the filing of the Motion to Withdraw, an investigator from the Chief Public Defender's Office conducted a determination of eligibility, the results of which he presented to the petitioner.
5. "At the time the motion to withdraw was filed, on November 13, 1998, Attorney Hasselkamp and Attorney Mandanici had a good faith belief that if their motion was granted the Court would grant a reasonable continuance of the trial to allow the petitioner to obtain private counsel.
6. "On November 13, 1998 Attorney Hasselkamp left a message on the petitioner's answering machine indicating that he should come to her office to discuss a motion which had just been filed.
7. "On November 13, 1998, Attorney Hasselkamp mailed to the petitioner a letter informing him of the motion to withdraw and attaching a copy of the motion.
8. "On November 13, 1998 Attorney Mandanici met with the petitioner to inform the petitioner of the pending motions.
9. "A hearing was held on the Motion to Withdraw on November 16, 1998.
10. "The petitioner appeared for the November 16, 1998 hearing.
11. "At the hearing on November 16, 1998 the petitioner did not ask the Court for a continuance.
12. "The Court (Fracasse, J.) granted the Motion to Withdraw on November 16, 1998 and scheduled an evidentiary hearing for November 18, 1998 at which the petitioner could challenge or appeal the Court's decision.
13. "The petitioner waived his right to appeal the granting of the motion to withdraw.
14. "On December 11, 1998 the petitioner filed a pro se appearance in the underlying criminal matter." See: Brown v. Warden, 2003 CT Sup. 9527 (Robinson-Thomas, J.).
15. After a trial to a jury in which the petitioner represented himself, the petitioner was convicted of all counts and in August 1999 was sentenced to a prison term of twenty-five years by the Court, (Fracasse, J.).
16. In his appeal, at which he was represented by Atty. Lisa Steele, the petitioner unsuccessfully raised the issue of prosecutorial misconduct before the Connecticut Supreme Court. His conviction and sentence were thereafter affirmed. See: State v. Brown, 256 Conn. 291 (2001), cert. den. 534 U.S. 1068 (2001).
17. The petitioner filed his first habeas petition in the Judicial District of New Haven in 2001.
18. The petitioner was represented by Atty. Justine Miller in that case. A decision denying habeas relief was delivered by the court on August 19, 2003. See: Brown vs. Warden, 2003 CT Sup. 9527 (Robinson-Thomas, J.).
This is the representation that the petitioner now alleges to be constitutionally defective.
19. An appeal of the habeas decision at which the petitioner was represented by a special public defender, Atty. Sheila Huddleston, followed and it too was unsuccessful. See: Brown v. Commissioner of Correction, 92 Conn.App. 382 (2005), cert. den. 281 Conn. 466 (2007).
The Supreme Court initially denied certification at 277 Conn. 908 (2006). Then later granted certification at 277 court. 922 (2006), before ultimately concluding that the certification had been improvidently granted at 281 Conn. 466 (2007).
20. The petitioner filed the instant habeas petition on March 6, 2007.
21. Additional facts will be discussed as necessary to address the petitioner's claims.
DISCUSSION
The amended petition claims that the petitioner received ineffective assistance of counsel. "`A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of criminal proceedings. Strickland v. Washington, [ 466 U.S. 668, CT Page 17559 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.' Copas v. Commissioner of Correction, 234 Conn. 139, 153, 662 A.2d 718 (1995). `As enunciated in Strickland v. Washington, supra, 687, this court has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel . . . A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate 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 . . . 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.'(Citations omitted; internal quotation marks omitted.) . . ." Bryant v. Commissioner of Correction, 290 Conn. 502, 510, 964 A.2d 1186, cert. denied sub nom. Murphy v. Bryant, 130 S.Ct. 259, 175 L.Ed.2d 242 (2009), citing and quoting Sastrom v. Mullaney, 286 Conn. 655, 662, 945 A.2d 442 (2008).
"`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.' (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 525, 903 A.2d 169 (2006). `In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Prevailing norms of practice . . . are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant . . .
"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . 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; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . .
"Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.' (Citations omitted; internal quotation marks omitted.) Strickland v. Washington, supra, 466 U.S. 688-90." Bryant v. Commissioner of Correction, supra, 290 Conn. 512-13.
Trial in this court of a habeas petition is not an opportunity for new counsel to attempt to relitigate the case in a different manner. It is an indisputable fact that many times if one had foreknowledge of certain events, different courses might well have been taken. Thus, "[a] fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to 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." (Internal quotation marks omitted.) Henry v. Commissioner of Correction, 60 Conn.App. 313, 317, 759 A.2d 118 (2000).
Moreover, "[j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client." Strickland v. Washington, 466 U.S. 668 at 688 (1984).
Justifiably, then, the burden of persuasion in a habeas case rests with the petitioner because of the "fact that in many cases an order for a new trial may in reality reward the accused with complete freedom from prosecution because of the debilitating effect of the passage of time on the state's evidence." Summerville v. Warden, 229 Conn. 397 at 419 (1994). There is, therefore, a strong societal interest "in not degrading the properly prominent place given to the original trial as the forum for deciding the question of guilt or innocence within the limits of human fallibility." Id.
Additionally it is not even necessary to consider whether a trial counsel's performance was deficient if the Habeas Court is satisfied that there was no prejudice to the defendant by the actions of the trial counsel in representing the petitioner. "A reviewing court can find against a petitioner on either ground, whichever is easier. Strickland v. Washington, supra, 697; see Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988) (`[a] court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice')" Valeriano v. Bronson, 209 Conn. 75 at 86 (1988).
Addressing the specifics of the allegations in the instant case, it is abundantly clear that there was no prejudice demonstrated at the habeas trial. The petitioner has been involved in a large amount of litigation surrounding the arsons of which he was convicted. His case and the facts surrounding it have received a great deal of judicial scrutiny over the years. He has been unsuccessful at every stage of the proceedings. In order to prevail on this habeas petition he must ultimately get back to the point where he demonstrates that he was deprived of effective assistance of counsel by every lawyer who represented him throughout the process and that the decision to remove the public defender in 1998 was a violation of his constitutional right to representation. Without even having to address all of the intervening steps, it is clear that the petitioner is procedurally defaulted on this initial issue. The evidence is clear that the petitioner was provided all of his due process rights when the court made its initial determination to allow the public defenders to withdraw. Further, the petitioner never exercised his right to an evidentiary hearing to contest this removal, thereby making it final. There was no evidence presented at this habeas proceeding that would allow this court to conclude that there was any cause or prejudice to override the procedural default. Consequently, the issue of the termination of public defender services has long since been final, the fact is that he was ineligible for the services of the public defender and the petitioner is clearly collaterally estopped from trying to assert otherwise. It was his own choice to represent himself and the consequence of that decision is his as well.
Based on the foregoing, judgment shall enter in favor of the respondent denying the amended petition for a writ of habeas corpus. Petitioner's counsel shall prepare and file the judgment file with thirty days.