Opinion
No. CV05-4000811-S
November 5, 2007
MEMORANDUM OF DECISION
On November 7, 2004, the petitioner filed a pro se petition for a writ of habeas corpus, which was amended for the final time on June 12, 2006. The second amended petition alleges that petitioner's convictions arising from his guilty pleas are invalid due to ineffective assistance of counsel. Respondent's return denied petitioner's material allegations, that he is entitled to habeas corpus relief and raised the special defense that petitioner has procedurally defaulted. Petitioner filed a reply comprising of a one-word denial of the special defense.
The matter came before this court on August 17, 2007, for a trial on the merits. The court heard testimonial evidence from the petitioner, Clinical Psychologist Daniel Bannish, inmate John T. Morgan, and Assistant Public Defender Fred DeCaprio, who represented petitioner in the underlying criminal matter. The court also received documents into evidence. The court has reviewed all of the testimony and evidence and, including the facts admitted to in respondent's return, makes the following findings of fact. For the reasons set forth more fully below, the petition shall be denied.
FINDINGS OF FACT
1. Petitioner was the defendant in State v. Gaffney, docket number CR 32, 838, in the Judicial District of Bridgeport at Fairfield. After a hearing in probable cause, petitioner initially was charged in a three-count information with capital felony, felony murder and kidnapping in the first degree.
2. Petitioner and a co-defendant, David Toupin, committed the underlying offenses on June 21, 1986. Petitioner gave two statements to police about one year after the murder, on July 3 and 4, 1987. Essentially, petitioner admitted his involvement but denied committing the murder. Co-defendant Toupin also provided a statement to police similar in nature to petitioner's, i.e., admitting involvement but denying the murder.
3. According to petitioner's present-day testimony, although he was under the influence of both alcohol and LSD when he committed the underlying offenses, he no longer was under the influence of those substances when he made his statements to police more than one year after the murder occurred.
4. Petitioner initially was represented in the underlying criminal matter by Assistant Public Defender Holden, and later by both Holden and Assistant Public Defender DeCaprio.
5. On March 28, 1989, after what was described by the prosecuting attorney as "extensive plea negotiations" in a matter in which the state intended to pursue the death penalty, petitioner entered Alford guilty pleas to one count of felony murder, in violation of C.G.S. § 53a-54c, and one count of kidnapping in the first degree, in violation of C.G.S. § 53a-92(a)(2)(b). The agreed recommendation was for petitioner to be sentenced to a term of sixty years to serve
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
6. The court (Damiani, J.) canvassed the petitioner to ensure his pleas were knowing, voluntary, and intelligent. As part of the canvass, Judge Damiani asked the petitioner whether he had taken any drugs, alcohol or medication that day. Petitioner responded that he had not. Judge Damiani also asked petitioner if he was satisfied with his lawyer's representation in the criminal matter, to which petitioner answered "Yes." Petitioner also indicated that he was not forced to plead guilty, had not been threatened to enter his pleas, and that he was doing so of his own free will. Judge Damiani advised petitioner that he would not be able to withdraw his pleas unless the court permitted such withdrawal.
7. After the court's canvass, the prosecutor recited the facts supporting the pleas. Judge Damiani then asked petitioner after the recitation of facts whether he understood that under Alford he was not admitting to the recited facts. Petitioner responded that he understood he was not admitting those facts. Judge Damiani then asked Attorney Holden if he was satisfied petitioner's pleas were voluntary and understandingly made, to which Holden responded he was satisfied and that he knew of no reason why the pleas should not be accepted. Judge Damiani found the pleas to be voluntary and understandingly made, with the assistance of competent counsel. The matter was then continued to May 12, 1989, for sentencing.
8. On March 31, 1989, several days after petitioner entered his guilty pleas, petitioner sought treatment by a Department of Correction psychiatrist. A notation made that day on the evaluation form indicates the following: "Tuesday pled guilty to 60 yrs. for felony murder. Now he's feeling depressed + questioning his decision. Pt is not psychotic or suicidal. Rx Elavil 50y HSX 30 days. To see me in 4 wks. JMAbrahams." Respondent's Exhibit D. The next notation on the psychiatric evaluation form is dated May 2, 1989: "Pt is feeling better + is less depressed. Rx Elavil to 25y HSX 30 days. JMAbrahams." Id.
9. On June 2, 1989, the sentencing proceeding commenced before Judge Damiani. At the outset of the sentencing proceeding Attorney DeCaprio informed Judge Damiani that petitioner wanted to withdraw his plea and that he had counseled petitioner against that course of action. Petitioner then indicated to Judge Damiani that he wanted to withdraw his plea because he was "confused" when he pleaded and only had "minutes" to think about the state's offer. Both Attorneys Holden and DeCaprio advised Judge Damiani that they had extensive discussions with petitioner and that the plea negotiations with the prosecutor had been extensive, spanning "months and months." Holden informed the court that petitioner remained confused on whether or not the statement he gave to police could be suppressed. Judge Damiani recessed the sentencing proceeding to permit petitioner to speak with his attorneys.
10. When the matter reconvened, Attorney Holden asked the court to rule on petitioner's pro se motion to withdraw his guilty pleas. Judge Damiani then denied petitioner's motion. After sentencing arguments by counsel, petitioner was sentenced to a total effective sentence of sixty years to serve.
11. Petitioner filed a prior habeas corpus petition in the Judicial District of Tolland, which was assigned docket number CV 90-0000976. Petitioner alleged in that prior petition that his guilty pleas were invalid due to ineffective assistance of counsel. Petitioner requested and received appointed counsel. An order of the court (Scheinblum, J.) dated July 19, 1991, indicates that an Anders brief was to be filed by September 1, 1991. Thereafter, on September 9, 1991, the court (Klaczak, J.) granted appointed counsel's motion to withdraw appearance and indicated that petitioner was pro se. Judgment of dismissal was rendered by the court (Fineberg, J.) on January 28, 1993, and the court's file was destroyed on December 31, 2003, after the ten-year retention period for habeas corpus matters expired. See Practice Book § 7-11(d)(7).
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ("establishing constitutionally required procedures to be followed by counsel and courts in cases in which counsel believes that appeal is frivolous"). Vazquez v. Commissioner of Correction, 88 Conn.App. 226, 228 n. 2, 869 A.2d 234 (2005).
12. According to Daniel Bannish, a Clinical Psychologist familiar with the effects of Elavil, that medication does not affect a person's judgment or ability to comprehend. On cross examination, Bannish testified that Elavil is an anti-depressant and might help to clear thoughts. Bannish did indicate that there is a potential for overdosing on Elavil, but that an overdose would have had a physiological effect (e.g., sleepiness or drowsiness) rather than a cognitive effect. Additionally, Bannish testified that a patient on Elavil must be weaned off that medication or there can be physiological side effects. Bannish had no personal knowledge of the medications petitioner was taking prior to entering his Alford guilty pleas.
13. Elavil is an anti-depressant prescribed to relieve the symptoms of mental depression. Respondent's Exhibit E, at pg. 1. It may take several weeks of taking Elavil regularly without skipping doses before it becomes fully effective. Id. The side effects of taking Elavil and of dosage reductions are primarily physiological in nature, although Elavil may cause or increase symptoms such as agitation, anxiety, hostility, panic, restlessness, extreme hyperactivity, and suicidal thinking or behavior. Id., at pgs. 2-3. Patients, caregivers and doctors must be especially observant of these potential symptoms at the beginning of treatment or whenever there is a dosage change. Id., at 3. Elavil should not be stopped abruptly and dosages should be gradually decreased so as to minimize the possibility of withdrawal symptoms. Id. An overdose of Elavil may be fatal. Id., at 4. Symptoms of an overdose include: "Abnormally low blood pressure, confusion, convulsions, dilated pupils and other eye problems, disturbed concentration, drowsiness, hallucinations, impaired heart function, rapid or irregular heartbeat, reduced body temperature, stupor, unresponsiveness or coma." Id., at 5.
14. Attorney DeCaprio testified that he could not recall petitioner telling him police beat him before his confession. DeCaprio indicated that would have been important as to the voluntariness of the confession and would lead him to recall it had petitioner told him about any force or coercion. DeCaprio further testified that he advised petitioner to take the plea and the sixty-year sentence because if petitioner had been successful in avoiding the potential death penalty but convicted of a capital felony, petitioner would have received a sentence of life without the possibility of release. Instead, petitioner here received a sentence of sixty years and, with the ability to earn statutory good time, could potentially be released decades before the expiration of the sixty-year sentence. Decaprio also testified that a conditional nolo contendere plea was possible, but that he could not recall if it was bargained away or not to arrive at the sixty-year sentence and the reduced charges. The court credits DeCaprio's testimony.
15. Additional facts will be discussed as necessary.
DISCUSSION OF LAW
"A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice . . . For ineffectiveness claims resulting from guilty verdicts, [courts] apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Levine v. Manson, 195 Conn. 636, 639-40, 490 A.2d 82 (1985). For ineffectiveness claims resulting from guilty pleas, [courts] apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct 366, 88 L.Ed.2d 203 (1985), which modified Strickland's prejudice prong . . .
"To satisfy the performance prong, the petitioner must show that counsel's representation fell below an objective standard of reasonableness . . . A petitioner who accepts counsel's advice to plead guilty has the burden of demonstrating on habeas . . . that the advice was not within the range of competence demanded of attorneys in criminal cases . . . To satisfy the prejudice prong, the petitioner must show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, supra, 474 U.S. 59 . . . Reasonable probability does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, supra, 466 U.S. 693-94 . . . The Hill court noted that [i]n many guilty plea cases, the prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial . . . A reviewing court can find against a petitioner on either ground, whichever is easier . . ." (Internal citations omitted.) McClellan v. Commissioner of Correction, 103 Conn.App. 159, 161-62, 927 A.2d 992 (2007).
Petitioner claims that his plea was not knowingly, voluntarily or intelligently made in that he was taking medication and was confused and stressed out. Petitioner also alleges that he was pressured, manipulated and intimidated into accepting the plea. Additionally, petitioner claims that although defense counsel filed a motion to suppress petitioner's statement, counsel never demanded a hearing. As a result of the foregoing, according to petitioner, he received ineffective assistance of counsel and should be permitted to withdraw his guilty pleas.
Respondent's return raises as a special defense that the claims petitioner is making in the instant petition should have been raised on appeal from the original conviction or in his prior habeas petition. Essentially, respondent's special defense is that procedural default and res judicata prevent petitioner from raising his present claims. Petitioner's reply simply denies the special defense.
As to that aspect of the special defense sounding in procedural default (i.e., failure to raise claims on appeal), petitioner's reply is a one-word denial and does not comply with Practice Book § 23-31(c) because it does not allege any facts or assert any cause and prejudice. "[W]hen a habeas petitioner raises a claim that he could have brought in the context of his direct appeal, he typically must surmount an additional procedural hurdle before that claim may be considered on its merits. Specifically, [b]ecause habeas corpus proceedings are not an additional forum for asserting claims that should properly be raised at trial or in a direct appeal, a petitioner must meet the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), for determining the reviewability of habeas claims that were not properly pursued on direct appeal . . ." (Internal quotation marks omitted.) Quint v. Commissioner of Correction, 99 Conn.App. 395, 402-03, 913 A.2d 1120 (2007).
"Connecticut law is clear that a petitioner who raises a constitutional claim for the first time in a habeas corpus proceeding must show (1) good cause for the procedural default, i.e., the reason for failing to raise the claim at trial or on direct appeal, and (2) prejudice from the alleged constitutional violation. See Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001). When a petitioner fails to make that required showing, a court will not reach the merits of his claim. Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d. 1214 (1991)." Solman v. Commissioner of Correction, 99 Conn.App. 640, 644, 916 A.2d 824, cert. denied, 282 Conn. 902, 918 A.2d 888 (2007).
Practice Book § 39-26 allows a defendant to withdraw a guilty plea after acceptance upon proof of one of the grounds specified in § 39-27. One of the grounds specified in § 39-27 is that the plea was involuntary. Practice Book § 39-27(2). Petitioner's failed pro se effort to withdraw his guilty plea was premised only on his belief that he could prevail on the motion to suppress. Petitioner in no way indicated at that time that the plea was involuntary because he was taking medication and was confused and stressed out. To the contrary, petitioner indicated to Judge Damiani that he had not taken medication and that he fully and completely understood all aspects of the court's plea canvass. Petitioner's present-day effort to undermine the voluntariness and validity of his guilty pleas nearly twenty years after they were entered is, simply put, not credible in any way.
Consequently, and based on the foregoing, the court finds that to the extent petitioner has procedurally defaulted, he has failed to properly allege and show the cause and prejudice for the procedural default. The court also finds that petitioner has not presented any credible evidence in support of his claim that his plea was somehow involuntary. Similar to petitioner's claim in CV 90-0000976, a claim that his guilty plea was rendered involuntary due to ineffective assistance of counsel, and which was found to be frivolous by both appointed counsel and the court, petitioner's instant claim is wholly without merit.
As to that aspect of respondent's special defense sounding in res judicata, the court finds that special defense to be inapplicable. "The doctrine [of res judicata] applies to criminal as well as civil proceedings and to state habeas corpus proceedings." In re Application for Writ of Habeas Corpus by Dan Ross, 272 Conn. 653, 669, 866 A.2d 542, cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (2005). "[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties] on the same claim . . . To determine whether two claims are the same for purposes of res judicata, we compare the pleadings and judgment in the first action with the complaint in the subsequent action . . . The judicial [doctrine] of res judicata . . . [is] based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate . . . [W]here a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding . . ." (Internal citations and quotation marks omitted.) Thorpe v. Commissioner of Correction, 73 Conn.App. 773, 777, 809 A.2d 1126 (2002), citing and quoting Brown v. Commissioner of Correction, 44 Conn.App. 746, 749, 692 A.2d 1285 (1997).
Petitioner's prior petition in CV 90-0000976, filed very shortly after the entry of his pleas and sentencing, was found to have no merit by both appointed habeas counsel and the court. That poses an interesting question of whether or not the eventual judgment of dismissal was on the merits. Petitioner's first petition, which attacked the voluntariness of his guilty pleas by way of ineffective assistance of counsel, had no merit. Petitioner previously had the opportunity to litigate his claim, but he never fully and fairly litigated his claim before a habeas court until the instant matter. While the judgment of dismissal in the former petition may have been a judgment rendered because there was no merit to the claims, it was a judgment as to the merits but not on the merits. Thus, the court concludes res judicata is inapplicable.
The court has already concluded that petitioner's assertions are not credible and that his claims are without merit. Furthermore, petitioner has presented no proof that the nolo contendere plea was, in fact, ever offered or part of a plea bargain. Petitioner has also not proven he would have prevailed on the motion to suppress had there been a hearing or had a court considered such motion on the merits. Petitioner has failed to meet his burden of proof under the Strickland-Hill standard: he has shown neither deficient performance by counsel nor the required prejudice. Petitioner has in no way demonstrated that he would have pleaded not guilty, proceeded to trial and prevailed, nor has he undermined this court's confidence in the outcome of the proceedings.
Based on the foregoing, judgment shall enter denying the petition for a writ of habeas corpus. Further attempts to claim ineffective assistance by Attorneys Holden and DeCaprio shall be considered an abuse of the writ of habeas corpus. Petitioner's counsel shall prepare and file the judgment file with thirty days.