Opinion
No. CV95-0002096
July 23, 2003
Memorandum of Decision
The petitioner, Sherman Edwards, alleges in his petition for a Writ of Habeas Corpus initially filed on November 28, 1995 and amended four times, with the final amendment occurring on July 3, 2003, that his 1993 conviction in the Judicial District of New Haven under Docket Number CR6-350114 for one count of manslaughter in the first degree in violation of CGS § 53a-55 (a) (1), was obtained in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Constitution of the state of Connecticut He claims, in Count One, to be actually innocent of the charge of which he was convicted. In Count Two, he claims to have been unconstitutionally deprived of the effective assistance of trial defense counsel. Finally, in Count Three, the petitioner alleges that he was deprived of the effective assistance of appellate counsel. Consequently, the petitioner demands that his conviction be set aside and the matter remanded to the trial court for further proceedings.
This matter came on for trial before this Court on July 1, 2003 and again on July 2, 2003 at which time testimony was received from: the petitioner; his trial defense counsel, Attorney William Tiernan; Sgt. Roger Young of the New Haven Police Department; and, an expert witness, Attorney Thomas Farver. Numerous items of documentary evidence were received into evidence, including, inter alia, the transcript of the petitioner's New Haven trial (two volumes in all), and the decision of the Connecticut Appellate Court, State v. Edwards, 39 Conn. App. 242 (1995), were admitted into evidence and considered by the Court. As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition shall be denied.
The Court has reviewed all of the testimony and evidence and makes the following findings of fact (further facts will be related as necessary to resolve specific claims). CT Page 8453-jk
Findings of Fact
1. The petitioner was the defendant in a case in the Judicial District of New Haven, under Docket Number CR6-350114, entitled State v. Harris, in which he was convicted of one count of manslaughter in the first degree in violation of CGS § 53a-55 (a) (1).
2. Attorney William Tiernan, a special public defender, was appointed to represent the petitioner.
3. The petitioner was arrested in connection with the shooting death of one Andre Moore.
4. A probable cause hearing was held and on March 6, 1992, the Court, Hadden, J. found probable cause to go forward with a charge of murder.
5. The underlying facts of this case show that "Throughout the day on May 31, 1991, shooting erupted at the Quinnipiac Terrace housing project in New Haven as two rival gangs battled for control of the project's drug trade. While responding to a reported shooting at the project, investigating officers encountered sporadic gunfire. As police tried to defuse the situation, [Kevin Guess] and [the petitioner] concealed themselves behind a bush. One of the officers at the scene saw muzzle flashes from shots fired from behind the bush. One of these shots led to the death of Andre Moore, a member of one of the project's gangs.
6. "Police recovered various 9mm and 10mm shell casings from behind the bush, including but not limited to Winchester brand 9mm casings. On June 5, 1991, police executed a search warrant for [Kevin Guess's] apartment at 25 Donna Drive in New Haven. In the apartment, police found a Star 9mm semiautomatic pistol with live ammunition in the magazine, eight live rounds of ammunition, cash, records of drug transactions and a bulletproof vest. After procuring a second warrant, police searched the basement storage bin at 25 Donna Drive and found the following: a 9mm semiautomatic firearm, three boxes of 9mm ammunition, 23,000 empty small plastic bags, and a quantity of cocaine. [Mr. Guess] possessed neither state nor local permits to carry pistols or revolvers.
7. "The fifteen Winchester shell casings found at the scene of the shooting had been ejected from the two weapons seized at the Guess apartment. Moore was probably killed by a Winchester brand bullet fired from one of the fifteen Winchester shell casings found at the scene.
8. "On November 30, 1991, [Kevin Guess] gave a statement to police in which he admitted firing four 9mm shots from behind a bush during the CT Page 8453-jl shootout, but denied that he directly aimed his pistol at anyone. [Mr. Guess] explained that one other individual had been with him behind the bush, but he repeatedly refused to identify that person. [Kevin Guess] further told police that the second individual had fired a weapon, but that he could not identify the type of weapon used, how many shots had been fired from it, or at whom the shots had been aimed." State v. Guess, 39 Conn. App. 224, 226-28 (1995).
9. After a trial to the jury, the petitioner was convicted of manslaughter in the first degree with a firearm. On November 9, 1995, the Court sentenced the petitioner to a total effective sentence of twenty years of incarceration.
The Appellate Court did direct the trial court to set aside the conviction of manslaughter in the first degree with a firearm and to enter a conviction for manslaughter in the first degree.
10. Additional facts shall be discussed as necessary.
Discussion
It is important at the outset to understand a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition, having already been convicted, is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial . . . Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, 229 Conn. 397 at 422-23 (1994).
Count I: Actual Innocence Claim
It is well settled in Connecticut that a claim of actual innocence may be raised in a petition for habeas corpus even where that claim does not allege a claim that the petitioner's state or federal constitutional rights have been violated. See Summerville v. Warden, 229 Conn. 397 (1994), and Clarke v. Commissioner, 43 Conn. App. 374 (1996). However, in order to prevail in such a claim, a petitioner must overcome two extraordinarily large obstacles. "First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, . . . that the petitioner is CT Page 8453-jm actually innocent of the crime of which he stands convicted. Second, the petitioner must establish that after considering all of that evidence and the inferences drawn therefrom . . . no reasonable fact finder would find the petitioner guilty." Miller v. Commissioner, 242 Conn. 745, 791-92 (1997). Unlike the original criminal trial in which the petitioner (then the defendant) enjoyed the presumption of innocence with the burden of proving his guilt beyond all reasonable doubt resting upon the prosecutor, in the habeas proceeding, the burden of proof rests upon the petitioner. This is so 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, supra. Furthermore, there is 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.
This is a particularly salient issue in this case given that the crime of which the petitioner was convicted occurred over twelve years ago.
The burden of proof in a habeas proceeding in which the claim is actual innocence requires that "the habeas court first must be convinced by clear and convincing evidence that the petitioner is actually innocent. The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt." Miller v. Commissioner, supra at 794. Clear and convincing evidence must "induce in the mind of a trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." State v. Bonello, 210 Conn. 51 at 66, cert. den., 490 U.S. 1082, 109 S.Ct. 2103, 104 L.Ed.2d 664 (1989).
Moreover, there is a threshold question regarding the issue of whether the question of actual innocence should even be considered by this Court. "The respondent asserts that a claim of actual innocence, when raised in a habeas corpus proceeding, must be based on newly discovered evidence. To be considered `newly discovered,' `the evidence must be such that it is not cumulative, was not available to the petitioner at his criminal trial and could not have been discovered prior to the criminal trial though the exercise of due diligence.' In Clarke v. Commissioner of Correction, 249 Conn. 350, 375-78 (1999), our Supreme Court has left the absolute requirement of `newly discovered evidence' an open question in our habeas jurisprudence `until the actual outcome of the case is likely to depend on the answer to the legal question.' Id. at 351." LaPointe v. Warden, No. CV 97-0571161 (Sep. 6, 2000, Freed, J.). Although having been presented with several opportunities to do so, our Supreme Court has declined to make the definitive statement. Consequently, while the final CT Page 8453-jn rule in this state may be to the contrary, as it stands at this time, the operative appellate decision on this issue is Clarke v. Commissioner, 43 Conn. App. 374 (1996).
Most notably, in Clarke v. Commissioner, 249 Conn. 350 (1999), the Supreme Court specifically directed that this exact issue be briefed. Notwithstanding, upon decision, the Court declined to reach this issue because Petitioner Clarke did not present a case in which he had established actual innocence.
In Clarke, the Appellate Court "concluded that although no governing standard of proof exists under which a claim of actual innocence should be evaluated, such a claim must nonetheless, be based on newly discovered evidence. Williams v. Commissioner of Correction, supra, 41 Conn. App. 527. [The Appellate Court] concluded that `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.' (Emphasis added.) Id., 530. Moreover, `[it] incorporate[d] the due diligence component of the standard used in determining whether a new trial should be granted because of newly discovered evidence in the determination of whether a writ of habeas corpus should issue as a result of a petitioner's claim of actual innocence.' Id., 528. Thus, [it] held that `a petitioner must demonstrate, by a preponderance of the evidence, that the proffered evidence is such that it could not have been discovered earlier by the exercise of due diligence.'" Clarke, supra at 379.
Subsequent to the Appellate Court's decision in Clarke, the Supreme Court decided Miller v. Commissioner of Corrections, 242 Conn. 745 (1997), in which the standard of proof was discussed. This will be reached later in this decision.
The petitioner has failed to present any newly discovered evidence and has therefore failed to make the threshold by which a claim of actual innocence may be pursued. The only matter that approaches being newly discovered evidence is the testimony provided by the petitioner. The petitioner, as is his right, declined to testify at the original criminal trial. In the absence of some sort of persuasive evidence that the petitioner suffered from a transitory amnesia or some other impediment at the time of his original trial that prevented him from testifying as to the events of May 31, 1991, his own testimony cannot ever be considered to be newly discovered. All of the matters to which the petitioner testified before the habeas court were within his knowledge at the time he was initially tried. He may have had used the ensuing years to put a new "spin" on the testimony, but there is noting in the testimony that could be called "newly discovered evidence." The petitioner has an absolute right to use the protections of the Fifth Amendment as a shield and remain silent, but he cannot use it as a sword to seek a new trial at a significantly later time by deciding to testify years later.
The state has an interest "in maintaining the fairly obtained conviction of one whom it sincerely believes is guilty, and in not being required to maintain that status by way of a second trial years later, when its evidence of guilt may be less reliable than when it was fresh." Miller v. Commissioner, 242 Conn. 745 at 792 (1997).
Moreover, this petitioner has been found guilty following a trial to the jury. In a habeas claim involving the claim of actual innocence, the petitioner asks this Court to set aside that conviction and order a new trial. The "clear and convincing" standard that this Court must apply "should operate as a weighty caution upon the minds of all judges and it forbids relief whenever the evidence is loose, equivocal or CT Page 8453-jo contradictory." Lopinto v. Haines, 185 Conn. 527 at 539 (1981). Here, there is simply no basis upon which to set aside the jury's finding of guilty.
In light of all of this, the petitioner has failed to meet his burden of proving actual innocence with clear and convincing evidence. Not only must the petitioner prove with clear and convincing evidence that he is actually innocent (something that he failed to do) he must also prove that no reasonable finder of fact would find the petitioner guilty. Miller v. Commissioner, 242 Conn. 745 at 802 (1997). The petition is dismissed as to Count One.
Count Two: Ineffective Assistance of Trial Defense Counsel
In order to prevail on the issue of whether there has been ineffective representation by the petitioner's trial defense counsel, the petitioner must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 688, 104 S.Ct 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct 3562, 82 L.Ed.2d (1984), before the Court can grant relief. Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. In this regard, the Court notes that counsel for the petitioner has cited several specific matters he styles as trial defense counsel deficiencies. One must bear in mind that "[t]he right of a defendant to effective assistance [of counsel] is not, however, the right to perfect representation. State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977); Chance v. Bronson, 19 Conn. App. 674, 678, 564 A.2d 303 (1989). He must also show `that this lack of competency contributed so significantly to his conviction as to have deprived him of CT Page 8453-jp a fair trial.' Herbert v. Manson, 199 Conn. 143, 144-45, 506 A.2d 98 (1986). The reviewing court must employ a strong presumption of the reasonableness of that counsel's assistance. Levine v. Manson, supra, 640; Chance v. Bronson, supra, 678. The assistance must be viewed in light of the circumstances that existed at the time, and not with either the benefit or the distortions of hindsight. Levine v. Manson, supra. Even if that assistance is found to have been lacking in competency, the petitioner bears the further burden of showing that there is a reasonable probability that, were it not for the deficiency of counsel, the result of the trial would have been different Aillon v. Meachum, 211 Conn. 352, 357, 59 A.2d 206 (1989)." Williams v. Bronson, 21 Conn. App. 260, 263 (1990).
The petitioner alleges that his trial defense counsel: failed to pursue a Franks v. Delaware hearing; allowed a "mug shot" photograph to be shown to the jury; and failed to keep out a statement by Markease Hill.
It is, therefore, incumbent upon a habeas court, knowing the outcome of the trial "[to] not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but . . . evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commisioner of Corrections, 47 Conn. App. 253 at 264 (1979), cert. den., 243 Conn. 967 (1998). "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." Henry v. Commissioner of Correction, 60 Conn. App. 313 at 317 (2000). This Court will, therefore, examine the totality of the trial defense counsel's representation to determine if his performance, overall, fell below the range of competence expected of attorneys with ordinary training and skill in criminal law. Strickland, supra at 687.
Moreover, 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 or inactions 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).
In the instant case, the petitioner raises multiple complaints about his trial defense counsel that essentially fall into three broad categories. First, the petitioner alleges that Attorney Tiernan failed to CT Page 8453-jq properly pursue an argument that the probable cause hearing received perjured testimony and that relief under Franks v. Delaware, 438 U.S. 154 (1978), was warranted. Second, the petitioner alleges that the introduction of a "mug shot" type photograph was improper. Finally, he alleges that allowing a statement of Markease Hill to be considered under State v. Whelan, 200 Conn. 753 (1986), was ineffective assistance of counsel.
It is inappropriate for a habeas court to examine the performance of a trial defense counsel and put it under microscopic scrutiny. "Some attorneys make a practice of `building a record' by making motions which are doomed to fail, or seeking disclosure which has already been made. Such a practice serves no useful purpose, is not to be encouraged and abstaining from doing so certainly does not indicate ineffective assistance of counsel." State v. Barber, 173 Conn. 153 at 158 (1977). "Judicial scrutiny of counsel's performance must be highly deferential, and a reviewing court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Chace v. Bronson, 19 Conn. App. 674 at 678 (1989).
It is true that Attorney Tiernan did not pursue a " Franks hearing" in connection with the probable cause hearing. In essence, the petitioner wants this court to find that his trial defense counsel should have challenged the probable cause hearing on the ground that one of the witnesses, Marc Boyd, lied at that hearing. As authority, the petitioner relies upon the United States Supreme Court case of Franks v. Delaware, 438 U.S. 154 (1978). Franks is a case that dealt with evidence that was seized pursuant to a search warrant issued by a neutral and detached magistrate. However, in Franks, the applicant for the warrant had knowingly used false and misleading information. Consequently, the Court found that such action vitiated the warrant process and merited suppression of the evidence. Franks is aimed at misconduct by the applicant who, through falsehoods, deceives a neutral and detached magistrate into granting a search warrant, thereby defeating an individual's protections under the Fourth Amendment. There has been no proof adduced at this trial that Detective Dinello in any way engaged in deceit. Moreover, there has not even been any persuasive proof that there were any false statements in the testimony of Marc Boyd. The determination of the credibility of the witnesses who testified at the probable cause hearing was within the province of Judge Hadden who conducted that hearing. Given that he did find probable cause for the charge of murder, it is apparent that Judge Hadden, as was his right and responsibility, determined the issue of credibility against the petitioner. It is clear that any reliance upon Franks v. Delaware is misplaced and Attorney Tiernan's failure to pursue such a hearing is not CT Page 8453-jr deficient performance.
It is of note that neither Detective Dinello nor Marc Boyd was called as witnesses in this habeas proceeding.
The petitioner did testify that the statement attributed to Boyd was not true. The petitioner testified that Boyd was a member of the rival gang involved in the sale of drugs in the Quinnipiac Housing Project.
It is a closer question insofar as the introduction of the "mug shot." Nevertheless, the Court finds that Attorney Tiernan was not ineffective in permitting this photograph to be shown to the jury. The central issue in this dispute revolves around the existence of a placard that the petitioner is holding in the photograph. It is possible that a person viewing this photograph could conclude that this placard is indicative of the petitioner having been previously arrested by the New Haven Police Department. It is also possible that a person could conclude that this photograph was taken at the time of the petitioner's arrest on the instant charge. While it may have been a better practice to have redacted the bottom part of the photograph to exclude the placard, the Court cannot conclude that this fact was such a violation of the petitioner's constitutional right to effective assistance of counsel that retrial is warranted. The effect, if any, that this photograph might have had upon the jury is speculative, at best. It is possible that any actions taken by Attorney Tiernan to have the photograph redacted or to request a curative instruction to the jury may have had the effect of highlighting the significance of the placard, far beyond its original impact.
The Court notes the testimony of Attorney Thomas Farver who testified that in his opinion, the introduction of this photograph was improper. In judging the performance of a defense counsel, it is inappropriate to examine each and every action or inaction of the trial defense counsel to determine if each action or inaction was deficient or not. "The right of a defendant to effective assistance [of counsel] is CT Page 8453-ju not, however, the right to perfect representation." State v. Barber, 173 Conn. 153, 159-60, 376 A.2d 1108 (1977).
The petitioner has emphasized in the trial of this petition that there is some confusion as to his "street name." The petitioner has testified that his real "street name" was "Bam" or "Bam, Bam." The petitioner has testified that when he was interviewed about the shooting by Detective Dinello, that he lied to the detective and told him that his "street name" was "Bootycakes." The petitioner now asserts that this is one indicator that Markease Hill had lied in his statement to the police because Hill incorrectly referred to the petitioner as "Pudacakes." The implication is that, since Hill did not know the petitioner, that the only way he could have referred to him as "Bootycakes," or "Pudacakes" is because Detective Dinello had improperly planted that information. Notwithstanding, the petitioner did admit that his sister had referred to him as "Bam, Bam Bootycakes" in the period preceding the shooting of Mr. Moore. In addition, the petitioner's trial defense counsel testified that the petitioner's girlfriend routinely referred to the petitioner as "Bootycakes" in her dealings with the counsel. Thus, it is apparent that there are ways in which Hill could have found out the nickname of "Bootycakes" from a source other than Detective Dinello. It is clear that the petitioner never brought this issue to the attention of his trial defense counsel at any time before, during or after the trial.
The use of fictitious pieces of information is a valid investigative technique used by police departments and perhaps, most famously, by the United States in the days immediately preceding the battle of Midway in 1942. At that time, military intelligence was aware that a Japanese invasion fleet was at sea, but was unsure of which of the many islands in the Pacific was to be the target. Knowing that the Japanese had cracked the U.S. encrypted code, a message reporting a false water shortage on the island of Midway was broadcast. The interception and decryption of coded Japanese messages identifying the target of the invasion as having a water problem confirmed that the target was Midway. Unlike that situation where the only source of the information about a water shortage was the deliberate misinformation promulgated by military intelligence, there are several other sources by which Mr. Hill could have known to refer to the petitioner as "Bootycakes" or "Pudacakes." Consequently, the use of the term by Hill in his statement is not persuasive evidence that Detective Dinello coerced him into lying in his statement to the police.
Finally, the petitioner is complaining that his trial defense counsel did not call Marc Boyd to the stand during the trial. There was a good, sound tactical reason why Attorney Tiernan did not do so. Mr. Boyd had CT Page 8453-js given a statement to the police that directly implicated the petitioner in the shooting. Even if Mr. Boyd got on the stand and repudiated that statement, the prosecution could have introduced that inculpatory statement into evidence under the authority of State v. Whelan, 200 Conn. 753 (1986). Inasmuch as Boyd was the more articulate of the witnesses, it is clear that the decision to avoid calling Boyd was a good decision.
Markease Hill did testify and his pretrial statement to police was introduced by the prosecutor under Whelan. Attorney Tiernan was wise to avoid having a second such statement placed before the jury.
Given all of the above, the petitioner has failed to meet his burden under the Strickland standard of showing ineffective assistance of trial defense counsel and Count I of the petition must be denied.
Counts III: Ineffective Assistance of Appellate Counsel
The petitioner has raised an allegation of ineffective assistance of appellate counsel in the case that was pending in the Judicial District of New Haven. However, the only evidence introduced on this issue is the decision of the Appellate Court. The petitioner complains that his appellate defense counsel did not raise all of the issues on appeal that she could have done. Even if true, this is a tactical decision that is clearly within the province of the appellate defense counsel.
The standards for effectiveness of counsel set forth in Strickland v. Washington, 466 U.S. 668 (1984), apply with equal force to appellate counsel. In order to prevail in the instant habeas petition, then, the petitioner must prove first that he was denied the effective assistance of appellate counsel in that not only could his appellate counsel have raised the issues alleges in his petition on direct appeal, she should have done so. This will necessarily require a showing that his appellate counsel's performance "was so deficient that it fell below the standard of reasonably effective assistance; and, . . . that these errors deprived the defendant of a fair appeal and caused an unreliable conviction to stand." Valeriano v. Bronson, 209 Conn. 75 at 82 (1988). Then, the petitioner must prove that if the issues had been raised on direct appeal, there was a reasonable likelihood that he would have prevailed upon those issues on direct appeal. As previously discussed that he cannot do.
This Court finds that, as a result of failing to introduce any evidence on the alleged inadequacy of the appellate representation, the petitioner has effectively abandoned the claim contained within Count III.
Accordingly, the Petition for a Writ of Habeas Corpus is denied.
S.T. Fuger, Jr, Judge CT Page 8453-jt