Opinion
No. CV 05 4000421
January 9, 2008
MEMORANDUM OF DECISION ON WRIT OF HABEAS CORPUS PETITION
The Revised Second Amended Petition asserts that petitioner's incarceration is illegal because his convictions rest upon the deprivation of his constitutional right to the effective assistance of counsel under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Specifically, the petitioner claims that counsel: (1) failed to secure, subpoena or otherwise arrange to have a psychiatric examination of his ex-wife prior to trial; (2) did not adequately investigate the factual basis and/or evidence the State planned to submit to the jury during trial; (3) failed to locate and/or contact Emile Concorio as a potential defense witness in preparation for trial; (4) failed to introduce exculpatory evidence as a record of past psychiatric treatment of petitioner's ex-wife to show petitioner's lack of criminal intent; and (5) failed to insure petitioner had an Egyptian interpreter available at all proceedings.
Respondent's return denies that trial defense counsel's performance was deficient as claimed by petitioner. Respondent's return also raises procedural default as a special defense. Additional special defenses raised in the return include that petitioner is using the threat of a psychiatric examination as harassment, that any medical records sought by petitioner are privileged and confidential, that petitioner was provided with an interpreter at all substantive phases of the trial court proceedings, and that the doctrine of res judicata prevents petitioner from relitigating claims already raised on appeal. Petitioner did not, in accordance with Practice Book § 23-31(a), file a reply to the special defenses raised in the return.
The matter came before the court on September 20, 2007, for a trial on the merits. The court heard testimony from petitioner and his former public defender, attorney David Smith. The court also received documentary evidence consisting of transcripts, a copy of the information, and the Supreme Court's decision on petitioner's direct appeal from the criminal conviction. After reviewing the evidence, the court finds no merit to the petitioner's claims.
Findings of Facts
The petitioner was a criminal defendant in the Judicial District of New Haven at Meriden. He was charged in docket number CR02-0215029 with one count of custodial interference in the first degree, in violation of General Statutes § 53a-97, and one count of risk of injury to a minor, in violation of General Statutes § 53a-21(a)(1). Attorney David Smith of the Office of the Public Defender represented petitioner against those charges. The matter was tried to a jury, which found petitioner guilty of both charged offenses.
"The jury reasonably could have found the following facts. The defendant, an Egyptian national, married his wife, Maria Gewily (Maria), in 1994. Shortly after their marriage, the couple began living in Meriden in the home of Maria's mother. In March 1998, Maria gave birth to S, the couple's only child.
"Not long after S's birth, the couple's marriage began to deteriorate, and the defendant became verbally and physically abusive to Maria. On one occasion, Maria called the police after the defendant slapped her and knocked her down. When the defendant learned that Maria had called the police, he threatened to kill her. Although the defendant never was verbally or physically abusive to S directly, S often was present when the defendant was abusive to Maria.
"In December 2000, the defendant and Maria began living apart. Maria continued to reside with S at her mother's home in Meriden, and the defendant moved to West Haven. Maria, however, regularly took S to visit the defendant at his West Haven residence, where Maria and S frequently stayed overnight. According to Maria, her reason for bringing S to stay with the defendant was to ensure that S would continue to have a relationship with his father.
"After the defendant and Maria separated, S became more and more reluctant to spend time with the defendant. On one occasion, while S was waiting at home for the defendant to pick him up for a scheduled visit, S told his grandmother, Maria's mother, that he did not want to go with the defendant. S also informed her that she should not go outside when the defendant arrived because the defendant had told S that he was `going to cut [his grandmother's] head off and [her] stomach with a big knife.' The defendant's threat against S's grandmother was only one of a number of such threats that the defendant had made against Maria and her mother. In fact, the defendant was so upset about his separation and possible divorce from Maria that he told one of Maria's relatives that `he would kill [S] . . . while [Maria] watched, and then he would kill her, and then he would kill himself before the divorce happened.'
"In October 2001, approximately one year after the couple's separation, Maria filed for divorce. Shortly thereafter, on November 9, 2001, Maria obtained a restraining order prohibiting the defendant from entering her home and from threatening, assaulting or otherwise harassing her. Pursuant to the order, Maria was awarded temporary custody of S. The order, however, permitted the defendant unsupervised visitation with S on Sundays from noon until 4 p.m., and on Mondays from noon until 5 p.m.
"On Sunday, December 9, 2001, the defendant picked up S in accordance with the visitation order and informed Maria that he probably would take S to a shopping mall. The defendant, however, did not return with S by 4 p.m. as the order required. Maria finally called the Meriden police department at approximately 7 p.m. and reported that the defendant had not returned with S as the order required. The officer with whom Maria spoke advised her to wait a few more hours to be sure that the defendant was not unavoidably late due to circumstances beyond his control.
"At approximately 10 p.m. that evening, Maria called the Meriden police department again and informed a duty officer that the defendant still had not returned with S. The Meriden police then contacted the West Haven police department, which dispatched an officer to the defendant's apartment. Upon arriving there, the West Haven officer was informed by one of the defendant's neighbors that he had moved out at least one week earlier.
"In the early morning hours of December 10, 2001, Maria received a telephone call from the defendant. When Maria asked the defendant where he was, the defendant implied that he was at a casino. Maria, however, could hear background noises that led her to believe that he was at an airport. Moreover, when the defendant permitted Maria to speak with S, S asked her if she was going to `come on the airplanes . . .' In fact, airline records revealed that the defendant and S had flown from New York to Cairo, Egypt, arriving on December 10, 2001.
"The defendant next contacted Maria on December 15, 2001. He told her that he and S were in California but did not permit her to speak to S. Maria did not hear from the defendant again until December 24, 2001, at which time the defendant informed her that he had taken S to Cairo. The defendant allowed Maria to speak with S, who again inquired of Maria whether she would be `coming over . . .' In an effort to avoid upsetting S, Maria explained that she would see him soon.
"The next day, the defendant telephoned Maria but did not allow her to speak with S. In that conversation, the defendant blamed Maria for the family's separation and threatened to reenter the United States under an alias and kill her.
"From December 2001, until the summer of 2002, the defendant telephoned Maria at least twenty times. Only occasionally, however, did the defendant permit Maria to talk with S. When Maria was permitted to speak with S, their conversation focused on whether she would be `coming over.' Maria repeatedly tried to comfort S by reassuring him that she would be visiting him soon. Although the defendant provided Maria with a telephone number that she could use to contact him in Egypt, Maria was not always able to get through to S when she used that number.
"Maria stopped receiving telephone calls from the defendant in the summer of 2002. Maria also abandoned her efforts to communicate with S because the defendant had made it so difficult for her to do so, emotionally and otherwise. Meanwhile, in March 2002, Maria's divorce from the defendant became final. The divorce decree awarded full custody of S to Maria.
"Approximately one year after taking S from his home in Meriden and relocating to Egypt, the defendant returned to the United States. On December 24, 2002, the defendant was arrested at John F. Kennedy International Airport in New York. He did not, however, have S with him.
"On one occasion following his arrest, the defendant, who was incarcerated in lieu of bail pending trial, placed a telephone call from prison to Esam Awad, a friend and former coworker. During that conversation, the defendant explained to Awad that he was concerned about S's well-being. In light of that concern, the defendant provided Awad with a Cairo telephone number and asked Awad to call it to find out if S was alright. The defendant also instructed Awad to inform the woman who answered the telephone that she was not to release S to anyone without the defendant's prior approval. Awad followed the defendant's instructions and was informed by the woman with whom he spoke that S was `good' and `feeling well' . . ."
Since his arrest, the defendant steadfastly has refused to disclose S's location. Despite efforts by the Federal Bureau of Investigation and the United States Department of State to locate S, his whereabouts remain unknown." State v. Gewily, 280 Conn. 660, 662-66, 911 A.2d 293 (2006).
Petitioner appealed and was represented therein by attorney Sarah Summons. Petitioner on appeal challenged the conviction for risk of injury to a minor, but not the custodial interference conviction. State v. Gewily, 280 Conn. 660, 662 n. 4, 911 A.2d 293 (2006). Petitioner does not allege Summons rendered ineffective assistance of counsel.
Petitioner testified at the habeas trial that he did not recall discussing the case with attorney Smith, that Smith never came to MacDougall Correctional Institution and only met with him in the courthouse lockup, that Smith never gave him a copy of the police report, and that he requested various papers from Smith but only one was provided at the very end of trial. Petitioner also testified that at the time of trial, he was unable to read English, spoke broken English, that he did not understand the interpreter he was provided at trial because the interpreter spoke Iranian Farsi, and not Egyptian Arabic. According to petitioner, he told Smith that he did not understand the interpreter.
Petitioner also testified that has asked to testify at the jury trial, but that Smith advised him not to testify. Smith, according to petitioner, only discussed one of the two charges with petitioner. Thus, petitioner neither knew what he was charged with nor the state's case against him prior to trial, and was surprised by the charges. Petitioner also did not understand the testimony given by witnesses. Petitioner also testified that he did not know what his sentence was and was merely told "fifteen years."
Attorney Smith testified that he started practicing law in 1993. Smith first worked in New Haven as a public defender and then transferred to Meriden, where he worked as a public defender for about ten years before petitioner's case went to trial. Smith initially got to know the petitioner and established a relationship with him, obtained the police reports, and determined if other attorneys has previously been involved in the matter. Smith discussed the case, which was in pre-trial stage for a long time, with the prosecuting attorney and his client. According to Smith, the State made several offers. There also was a court recommended offer that petitioner plead to a capped sentence and, in exchange for returning S, petitioner would serve no time. Petitioner asserted at time that he did not know where S was located at that time. All offers made to petitioner involved the return of S, which petitioner decided he would not do.
Attorney Smith also testified that he discussed with petitioner whether he should testify. Smith had no specific recollection on what he advised petitioner, although he probably recommended that he not testify. Petitioner did not testify during the criminal trial and, with an interpreter assisting, responded to the trial court's canvass about the voluntariness of his decision not to testify. See Petitioner's Exhibit 3, at pgs. 244-46. The court found that petitioner voluntarily and knowingly waived his right to testify. Id., at 246.
Additionally, Smith testified that he spoke to petitioner both with and without an interpreter. According to Smith, he and petitioner were able to talk about anything and spoke to each other in English, and the petitioner was able to articulate in English his point of view. The petitioner filed his own motion for a speedy trial and, when selecting the jury, appeared to read the juror questionnaires. Smith's recollection was that an interpreter was always present during the trial. Furthermore, although petitioner complained to Smith about the interpreter's dialect, petitioner never complained to Smith or the trial court that he did not understand the proceedings.
During the habeas corpus proceeding, for which an interpreter was provided for petitioner, petitioner asked the interpreter to stop interpreting because he wanted to listen directly to Smith's testimony without the interpreter's assistance.
Additional facts will be discussed as necessary.
Discussion of Law I. Procedural default and other defenses
The respondent has raised the affirmative defense of procedural default as to the petitioner's ineffective assistance claims. The respondent contends that to the extent petitioner is raising claims via his petition for a writ of habeas corpus which could have been raised in the trial court or on direct appeal, he has bypassed the opportunity to contest said issues. Petitioner has not filed a reply to the return.
The court first notes that all claims in the operative complaint allege deficient performance by Smith either before or during the jury trial. None of the claims can be raised at the trial level or on direct appeal. Accordingly, the court concludes that the defense of procedural default is inapplicable to petitioner's claims.
Respondent's return also raises several other defenses, namely that petitioner is using the threat of a psychiatric examination as harassment, that any medical records sought by petitioner are privileged and confidential, that petitioner was provided with an interpreter at all substantive phases of the trial court proceedings, and that the doctrine of res judicata prevents petitioner from relitigating claims already raised on appeal. As to the first three of these "defenses," the court finds that they are either not defenses at all (threat of psychiatric examination and records privileged) or merely a denial of an allegation (interpreter). Lastly, as to the claim that res judicata prevents petitioner from relitigating claims already raised on appeal, the petitioner here did not raise any of his claims on direct appeal. Res judicata is, quite apparently, inapplicable.
II. Ineffective Assistance of Trial Counsel
"In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court enunciated the two requirements that must be met before a petitioner is entitled to reversal of a conviction due to ineffective assistance of counsel. First, the [petitioner] must show that counsel's performance was deficient . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversarial process that renders the result unreliable . . .
"The first component, generally referred to as the performance prong, requires that the petitioner show that counsel's representation fell below an objective standard of reasonableness . . . In Strickland, the United States Supreme Court held that [j]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] 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 [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . ." (Citation omitted.) Bowens v. Commissioner of Correction, 104 Conn.App. 738, 741-42 (2007).
Petitioner's first assertion of deficient performance is that Smith failed to secure, subpoena or otherwise arrange to have a psychiatric examination of his ex-wife prior to trial. Scant evidence, if any, was presented to this court as to this failure by Smith. Petitioner has not shown to this court how such a psychiatric examination would have assisted petitioner in defending against the charges of custodial interference and risk of injury to a minor. There was no testimonial evidence presented to the habeas court by petitioner's former wife, nor were any documents submitted into evidence substantiating petitioner's assertions about his former wife. Petitioner in blatant violation of a court order removed S entirely from his mother's custody and care. Petitioner's resorting to removing S was tantamount to vigilantism. Even if this court were to assume that there were some relevance that an examination would have had to a defense, petitioner here has utterly failed to demonstrate that he was prejudiced. Petitioner has shown neither deficient performance nor how he was prejudiced.
The second allegation of deficient performance is that Smith did not adequately investigate the factual basis and/or evidence the State planned to submit to the jury during trial. The court first notes that petitioner's testimony before this court was totally lacking in credibility. Smith's testimony, contrary to petitioner's, was credible. Furthermore, this court must apply the strong presumption that Smith's conduct fell within the wide range of reasonable professional assistance, that he rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Petitioner has not presented any credible evidence to rebut this presumption. Petitioner's claim that Smith failed to properly investigate is, therefore, without merit.
Petitioner's third basis for deficient performance is that Smith failed to locate and/or contact one Emile Concorio, as well as employees and/or records of Connecticut Limousine Service, as potential defense witnesses in preparation for trial. Here again, petitioner makes an allegation that trial defense counsel failed to do certain things, but has in no way presented any real evidence to lend credence to the claim. The court finds, therefore, that the claim is entirely unsubstantiated.
The fourth basis for deficient performance is that Smith failed to introduce exculpatory evidence as a record of past psychiatric treatment of petitioner's ex-wife to show petitioner's lack of criminal intent. The court fails to see how this claim is distinguishable from the first claim. The court relies on its previous discussion regarding the first basis to similarly resolve the fourth basis. Petitioner's final allegation is that Smith failed to insure petitioner had an Egyptian interpreter available at all proceedings. Petitioner did testify that he complained to Smith that the provided interpreter spoke a different dialect. There is no evidence that affirmative shows to this court that petitioner did not understand the proceedings or was unable to assist Smith in his defense. Particularly noteworthy is the trial court's canvass prior to the finding petitioner had knowingly and voluntarily waived his right to testify. The petitioner, with the assistance of the interpreter, was able to satisfactorily answer the court's questions. Especially given Smith's credible testimony that he was able to communicate with petitioner, when viewed together with petitioner's total failure to indicate to Smith or the trial court that he did not understand the proceedings, the court finds petitioner's present day allegation regarding the interpreter to be specious and borderline frivolous. The claim is, therefore, also without merit.
The court notes in closing that in this very tragic case, petitioner has until the present day been the key holder to his own freedom. Judge Tanzer noted just before the sentence was imposed that if petitioner returned his son at any time, the State would cooperate and participate in a modification of the sentence. Petitioner's Exhibit 5, at p. 24-25. The sentencing court further indicated that "[i]t certainly has been the Court's intention in listening to you, to hear today whether you were willing to use those keys; which would have been a major consideration in the Court's decision on sentencing. And it will remain that; should you decide to use the key. In addition to the State's cooperation, it would be the Court's intention to let you use the keys and let yourself out, if you turn over that child, [S]." Id., at 25. Petitioner to date has failed to avail himself of the unique opportunity of determining his own release from confinement. He cannot, in this case, lay any blame on trial defense counsel, who rendered effective assistance of counsel.
Based upon the foregoing, the petition for a writ of habeas corpus is denied. The petitioner shall submit a judgment file within thirty days of the date of this decision. It is so ordered.