Opinion
CV154007052S
07-19-2018
Silas HARRIS (Inmate #109619) v. WARDEN
UNPUBLISHED OPINION
OPINION
Mullarkey, J.T.R.
The petitioner, Silas Harris, initiated the present matter by way of a pro se petition for a writ of habeas corpus filed on March 2, 2015, and which was amended once after the assignment of counsel. The amended petition raises claims in three counts: first, ineffective assistance of appellate counsel, attorney Daniel Fabricant; second, ineffective assistance of prior habeas counsel, attorney David Rozwaski; and third, ineffective assistance of prior habeas counsel, attorney Joseph Barbarie. The respondent’s return denies the petitioner’s material allegations and asserts that the claim in count one is successive and must be dismissed pursuant to Practice Book § 23-29(3). The petitioner’s reply to the return denies that the claim in count one is successive, and asserts that the claim is supported by the claims of ineffective assistance in counts two and three.
The parties appeared before the court on February 13 and 20, 2018, for a trial on the merits. The petitioner testified and presented the testimony of his former trial counsel, attorney David Kritzman, his former habeas counsel, attorney David Rozwaski, and his former appellate counsel, attorney Daniel Fabricant. The petitioner entered numerous documents into evidence, consisting of transcripts, copies of court documents, pleadings and briefs, as well as court decisions. For the reasons articulated more fully below, the petitioner’s claims are denied.
FINDINGS OF FACTS
The Supreme Court’s decision on direct appeal summarized the underlying facts as reasonably found by the jury. "On April 19, 1990, at approximately 8:30 p.m., a fight broke out in the east mess hall of the Connecticut Correctional Institution at Somers, involving seventy-five to one hundred inmates who had gathered to share a meal in honor of the Islamic religious feast, Ramadan. Thirty-five correction officers responded in an attempt to restore order. During the incident, the [petitioner] injured correction officer Craig Jacobsen with a sharp instrument. Correction officer Barry Grant, who had checked inmates entering the hall against the list of those authorized to attend, testified that he had seen the [petitioner] in the mess hall on the night in question. Correction officer David Serkosky testified that, upon entering the mess hall in response to Grant’s call for help, he had noticed the [petitioner] holding a light colored object resembling a toothbrush handle, an object he said inmates often used to fashion weapons. Serkosky, however, failed to mention the toothbrush handle when he gave a written statement a few hours after the incident. He attributed this failure to the fact that when he had made his statement at approximately 1:45 a.m., after returning from having had his wound sutured at the hospital emergency room, he had been distracted and in pain and had wanted to go home.
"Jacobsen testified that he had been standing back from the crowd of inmates trying to restore order when he had been attacked by the [petitioner]. Jacobsen stated that he saw a white object come from behind him along the right side of his neck and he had realized he had been cut. He suffered a six-inch laceration. After he had been cut, he turned his head and saw the [petitioner], approximately three feet away, running away from him towards the crowd of inmates, holding what appeared to be a white toothbrush with a razor blade embedded in the handle. Jacobsen stated that he had seen about one-half of the [petitioner’s] face as he had run off. According to Jacobsen, the entire incident took about six seconds.
"Serkosky, in his statement to the police, however, indicated that he had had to pull Jacobsen out of the crowd."
"Jacobsen had worked at the prison for only about seven months at the time of the incident. Prior to his employment at the prison, he had worked elsewhere as a security guard for eighteen months.
"Jacobsen testified that at the time the [petitioner] cut him, the [petitioner] had been wearing a tan shirt and pants and that he had known the [petitioner] from working in D cell block where the [petitioner] was housed. Jacobsen had, in fact, had a brief encounter with the [petitioner] earlier that same day. Jacobsen also testified that after returning from the emergency room, he had told Detective Thomas Davoren that his assailant was ‘Harris’ in D-90. Davoren, the officer in charge of the investigation, also testified that Jacobsen had identified the cell as D-90, even though Jacobsen’s written statement merely stated that his assailant was "Harris" in D block.
"Officer Daniel Palonis testified that he had seen the [petitioner] wearing a white undershirt just prior to the incident. Palonis searched the [petitioner’s] cell at 2:30 a.m. on April 20, and found a stained white undershirt. Because tests on the stains were inconclusive, the court permitted no evidence to be introduced as to what they were. Jacobsen did not notice if the [petitioner] was wearing a white undershirt under his prison uniform at the time of the attack."
"Jacobsen also identified his assailant as the taller and older Harris brother. In fact, the [petitioner’s] brother, who also lived in D block, is older than the [petitioner]. Consistent with Jacobsen’s description, however, the [petitioner] is four inches taller than his older brother. Jacobsen testified, moreover, that he had always thought that the [petitioner] was the older of the two Harris brothers. Furthermore, Jacobsen picked the [petitioner’s] photograph out of an array that also contained a picture of the [petitioner’s] brother. Davoren testified that he had decided to apply for a warrant for the [petitioner’s] arrest solely on the basis of Jacobsen’s identification of the [petitioner].
"At approximately 12:30 a.m. on April 20, an order was issued by Deputy Warden Christopher Dion to transfer the [petitioner] from D block to F block. Prior to the order, Dion had not told anyone about the pending transfer. The [petitioner’s] cell was searched and no weapons of any type were found." (Footnotes renumbered.) State v. Harris, 227 Conn. 751, 754-56, 631 A.2d 309 (1993).
"Correction officer Andrew LeBlanc testified, however, that he walked by the defendant’s cell shortly after 4 p.m. on April 19, 1990, and noticed boxes stacked up, a sheet obstructing the view, and the walls cluttered with pictures. After the fight in the mess hall, the defendant was locked in his cell. When LeBlanc walked by the defendant’s cell at around 11 p.m. that night, the boxes were gone and the walls were barren."
"The [petitioner] was charged in a substitute information with two counts of assault in the first degree in violation of General Statutes § 53a-59(a)(1) and (3), ... and one count each of assault in the second degree in violation of General Statutes § 53a-60(a)(5), ... rioting at a correctional institution in violation of General Statutes § 53a-179b, ... and possession of a weapon or dangerous instrument in a correctional institution in violation of General Statutes § 53a-174a ... He was found guilty by a jury of assault in the second degree, rioting at a correctional institution, and possession of a weapon or dangerous instrument in a correctional institution. He was also convicted of being a persistent serious felony offender in violation of General Statutes § 53a-40(b). He was sentenced as a persistent serious felony offender to a term of imprisonment of ten years on the assault count and twenty-five years on the rioting count to run consecutively, and to a term of twenty-five years on the possession of a weapon count to run concurrently, for a total effective sentence of thirty-five years imprisonment. Thereafter, he appealed from the judgment of conviction to this court pursuant to General Statutes § 51-199(b)(3) ..." (Footnotes omitted.) State v. Harris, supra, 227 Conn. 753-54.
The court will refer to these convictions as the Tolland convictions.
On appeal, the petitioner claimed that: (1) "that there was insufficient evidence to support his conviction because the record does not contain proof beyond a reasonable doubt of his identity as Jacobsen’s assailant," Id., 757; (2) "the trial court improperly denied him access to Jacobsen’s personnel file. Without access to the file, the [petitioner] asserts that he was denied his constitutional right to impeachment information under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and his constitutional right to confront witnesses against him as guaranteed by the sixth amendment to the United States Constitution and article first, § 8, of the Connecticut Constitution"; State v. Harris, supra, 227 Conn. 759-60; and (3) "that the trial court abused its discretion by failing to read back to the jury certain portions of Jacobsen’s testimony that counsel and the court earlier had agreed would be read. The additional portions were not read because the jury stated to the court that it did not wish to have them read." Id., 769. The Supreme Court denied these claims and affirmed the judgment of conviction. Id., 772.
The petitioner’s first habeas corpus petition challenges these convictions was filed in 1997. After the assignment of attorney Rozwaski as habeas counsel, the pro se petition was amended to allege: ineffective assistance by attorney John Donovan, his trial defense counsel in the New Haven criminal matter, for which the petitioner was incarcerated when the petitioner committed the offenses at issue in the present petition; ineffective assistance of his appellate counsel, attorney Joette Katz, in the appeal from the original New Haven convictions; ineffective assistance of habeas counsel, attorney John Watson, in a petition challenging the original New Haven convictions; and ineffective assistance by attorney Fabricant, his appellate counsel on appeal from the Tolland convictions. The habeas court, Fuger, J., either denied these claims or found them abandoned, and its judgment was affirmed. Harris v. Commissioner of Correction, 92 Conn.App. 903, 884 A.2d 22 (per curiam), cert. denied, 276 Conn. 933, 890 A.2d 572 (2005).
See State v. Harris, 11 Conn.App. 397, 527 A.2d 724, cert. denied, 205 Conn . 801, 529 A.2d 719 (1987).
The petitioner filed a second habeas corpus petition challenging the Tolland convictions. That second petition alleged that the petitioner was illegally sentenced. On May 8, 2014, the habeas court, Cobb, J., dismissed the petition on the ground of procedural default. The petitioner appealed from the denial of the petition for certification to appeal, but the appeal, assigned docket number AC 36890, was withdrawn on September 9, 2014.
The petitioner thereafter initiated the present matter.
DISCUSSION
The trial on the petitioner’s amended petition was held on February 13 and 20, 2018. The petitioner testified and called three witnesses: trial counsel David Kritzman; prior habeas counsel David Rozwaski; and appellate counsel Daniel Fabricant. Brought in three counts are claims of ineffective assistance of appellate and prior habeas counsel. No expert testified. Post-trial briefs were requested and filed by both parties.
The petitioner first claims that Fabricant rendered ineffective assistance of appellate counsel on direct appeal. The petitioner identifies five claims that should have been raised on appeal but were not: (1) that the trial court improperly denied the petitioner’s motion to sever his trial from that of his co-defendant, Shawn Robinson; (2) that the trial court improperly denied the petitioner’s request to transfer the case to another jurisdiction because of pervasive and prejudicial pretrial media coverage; (3) that the trial court erred in denying the petitioner’s multiple objections that the racial composition of the jury pool did not represent a fair cross section of the community; (4) that there was trial court error when it required the petitioner to testify before the jury in handcuffs and leg irons; and (5) that the trial court improperly denied the petitioner’s request to poll the jury immediately following the verdict of guilty. The respondent’s return avers that the claim in count one is successive and that the petitioner is barred from again litigating the claim of ineffective assistance by Fabricant because he previously raised the same legal claim in a prior petition. The petitioner’s reply to the return asserts that no court has previously addressed the merits of his claims and, therefore, they are not successive.
"[A] petitioner may bring successive petitions on the same legal grounds if the petitions seek different relief ... But where successive petitions are premised on the same legal grounds and seek the same relief, the second petition will not survive a motion to dismiss unless the petition is supported by allegations and facts not reasonably available to the petitioner at the time of the original petition." (Internal quotation marks omitted.) Carter v. Commissioner of Correction, 109 Conn.App. 300, 305-06, 950 A.2d 619 (2008); see also Anderson v. Commissioner of Correction, 114 Conn.App. 778, 794, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009).
"Our courts have repeatedly applied the doctrine of res judicata to claims duplicated in successive habeas petitions filed by the same petitioner ... Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights ... the application of the doctrine of res judicata ... [is limited] to claims that actually have been raised and litigated in an earlier proceeding." (Citation omitted; internal quotation marks omitted.) Moody v. Commissioner of Correction, 127 Conn.App. 293, 297-98, 14 A.3d 408, cert. denied, 300 Conn. 943, 17 A.3d 478 (2011). "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 ... The doctrine ... applies to criminal as well as civil proceedings and to state habeas corpus proceedings ... However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner ... Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights ... the application of the doctrine of res judicata ... [is limited] to claims that actually have been raised and litigated in an earlier proceeding." (Internal quotation marks omitted.) Diaz v. Commissioner of Correction, 125 Conn.App. 57, 63-64, 6 A.3d 213 (2010), cert. denied, 299 Conn. 926, 11 A.3d 150 (2011).
In count four of his first habeas, the petitioner alleged ineffective assistance of appellate counsel Fabricant. Petitioner’s Exhibit 10, pp. 7-9. Count four alleged specifically that appellate counsel on appeal from the Tolland convictions failed to raise a claim that it violated the petitioner’s right to be free from double jeopardy to have the New Haven convictions used in the Tolland criminal proceedings to establish that the petitioner was a persistent felony offender. Id., p. 8. As relief the petitioner asked that the habeas court vacate and set aside the Tolland conviction for being a persistent felony offender. Id., p. 9.
In the present habeas, the petitioner’s claims against Fabricant are both more numerous and broader than in the prior habeas corpus petition. The relief sought in the present matter, although it also seeks to have the Tolland judgment vacated in its entirety, also asks the habeas court to restore the petitioner’s appellate rights. The legal basis in the prior and the present petitions- ineffective assistance by Fabricant on appeal from the Tolland convictions- are identical. The five grounds of deficient performance by Fabricant alleged in the present matter could have been raised in the prior habeas, for the five purported failures are based on the trial court record. Although the petitioner now requests that this court restore his appellate rights, the proper relief granted if a habeas corpus petitioner prevails on a claim of ineffective assistance of counsel on direct appeal is not the restoration of the direct appeal. Instead, the conviction/s would be vacated because the petitioner must show that he would have prevailed on appeal, which in turn would result in the correction of the trial court error in the criminal proceedings. See, e.g., Johnson v. Commissioner of Correction, 131 Conn.App. 805, 808-09, 29 A.3d 166 (2011) (petitioner alleging ineffective assistance of appellate counsel must show that there is a "reasonable probability that the petitioner would have prevailed on the appeal").
The court concludes, therefore, that the petitioner is barred by res judicata from again litigating directly that Fabricant rendered ineffective assistance on appeal. This claim was previously raised and litigated by the petitioner, notwithstanding the first habeas court deeming the claim abandoned at trial because the petitioner failed to present supporting evidence. The claim in count one is dismissed pursuant to Practice Book 23-29(3) because it asserts the same ground (i.e., ineffective assistance of appellate counsel Fabricant) previously denied and fails to state new facts or to proffer new evidence not reasonably available at the time of the prior petition. Moody v. Commissioner of Correction, supra, 127 Conn.App. 297-98.
The petitioner’s second and third counts allege ineffective assistance by prior habeas counsel, Rozwaski and Barbarie, for failing to raise the claims in count one. Although the petitioner could have asserted claims against Rozwaski in a prior habeas corpus petition, he only alleged that his sentence was illegal and was found to have procedurally defaulted on that claim. The court will group the claims in counts two and three together for ease of discussion and analysis and view them as the petitioner’s first assertion of ineffective assistance of prior habeas counsel.
" ‘[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland [v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] 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 one or both of 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 ...’ Harris v. Commissioner of Correction, 108 Conn.App. 201, 209-10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel 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 added.) Id., 842; see also Denby v. Commissioner of Correction, 66 Conn.App. 809, 812-13, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002)." Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 388, 966 A.2d 780 (2009).
The petitioner’s claims in counts two and three in turn are premised on the allegations of ineffective assistance by attorney Fabricant, as alleged in count one. Infra ; see also Petitioner’s Post-Trial Brief, p. 10. Thus, to prove prior habeas counsel were ineffective as alleged, the petitioner must prove also that appellate counsel was ineffective.
"It is axiomatic that, in order to establish a claim of ineffective assistance of appellate counsel, a habeas petitioner must establish both deficient performance and the resulting prejudice. See Mozell v. Commissioner of Correction, 87 Conn.App. 560, 562, 867 A.2d 51, cert. denied, 273 Conn. 934, 875 A.2d 543 (2005). The performance prong requires proof that appellate counsel’s performance fell below an objective standard of reasonableness. Id., 563. There is a strong presumption that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. Just as the decision of trial counsel not to object to certain evidence is a matter of trial tactics, not evidence of incompetency; Levine v. Manson, 195 Conn. 636, 648, 490 A.2d 82 (1985); the tactical decision of appellate counsel not to raise a particular claim is ordinarily a matter of appellate tactics, and not evidence of incompetency, in light of the presumption of reasonable professional judgment. Orellana v. Commissioner of Correction, 135 Conn.App. 90, 99, 41 A.3d 1088, cert. denied, 305 Conn. 913, 45 A.3d 97 (2012). This is particularly apt because our courts have frequently chided appellate counsel for not exercising more discriminating judgment in selecting which claims to present on appeal, so as not to dilute the strength of strong arguments by forcing the court to consider weak ones. See, e.g., id., 98; Johnson v. Commissioner of Correction, supra, 131 Conn.App. 809; DaEria v. Commissioner of Correction, 107 Conn.App. 539, 542, 946 A.2d 249, cert. denied, 289 Conn. 911, 957 A.2d 877 (2008).
"The prejudice prong requires proof that, had the prior performance been reasonable rather than inadequate, there is a reasonable probability that the petitioner would have prevailed on the appeal. Johnson v. Commissioner of Correction, supra, 131 Conn.App. 808. A failure to establish either prong will be fatal to a claim of ineffectiveness of counsel. Crawley v. Commissioner of Correction, 141 Conn.App. 660, 665, 62 A.3d 1138, cert. denied, 308 Conn. 946, A.3d (2013)." Alterisi v. Commissioner of Correction, 145 Conn.App. 218, 222-23, 77 A.3d 748, cert. denied, 310 Conn. 933, 78 A.3d 859 (2013).
"[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 ... The right to counsel is not the right to perfect representation ... [Although] an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments ... in a verbal mound made up of strong and weak contentions ... Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues ... Most cases present only one, two, or three significant questions ... The effect of adding weak arguments will be to dilute the force of the stronger ones ... Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation." (Internal quotation marks omitted.) Bailey v. Commissioner of Correction, 107 Conn.App. 362, 366-67, 947 A.2d 2, cert. denied, 287 Conn. 922, 951 A.2d 568 (2008). See also Johnson v. Commissioner of Correction, supra, 131 Conn.App. 808-09.
Attorney Kritzman testified about his representation of the petitioner in 1991, nearly thirty years ago. Kritzman strove to preserve as many issues as possible for the appeal. One such issue was the joint trial of the petitioner and his co-defendant, Shawn Robinson. The prosecutor filed a motion to consolidate the two criminal matters, which was granted. Kritzman filed a motion to sever the petitioner’s criminal case from Robinson’s, but the motion to sever was denied. According to Kritzman’s assessment, the petitioner had a stronger defense case than Robinson, the evidence against the petitioner was weaker than the evidence against Robinson, and the petitioner’s courtroom behavior was calm and Robinson’s was disruptive. Kritzman indicated that only one correction officer (Jacobson) identified the petitioner and that there was no physical evidence that implicated the petitioner. Kritzman contested the jury pool composition, which included no African-Americans, and submitted census data to the trial court. As to the petitioner’s constraints being visible in any way to the jury, Kritzman could not recall if the petitioner’s leg irons were visible to the jury, but that there may have been boxes or a curtain that hid the petitioner’s legs under the table. Kritzman asked that the jurors be individually polled after the verdict because the jury had sent out several notes during deliberations, including a note that the jury was deadlocked five-to-one. The trial court gave a "Chip Smith" instruction and the jury thereafter deliberated and returned its verdicts. Kritzman wanted to have the jurors polled individually to confirm unanimity; however, the trial court denied his motion to have the jurors polled individually.
The Supreme Court affirmed the co-defendant’s judgment of conviction in State v. Robinson, 227 Conn. 711, 631 A.2d 288 (1993).
See, e.g., State v. O’Neil, 261 Conn. 49, 75, 801 A.2d 730 (2002) (affirming "the validity of a Chip Smith charge as an acceptable method of encouraging a deadlocked jury to reach a verdict").
Attorney Rozwaski prepared several amended petitions in the first habeas after reviewing the pro se petition, reviewing the trial record and transcripts, reviewing the appellate record, and discussing the potential habeas claims with his clients. Depending on the claims, he will utilize an investigator as necessary. Rozwaski testified that in his experience litigating habeas claims, supporting a claim with legal argument is stronger without a witness who outlines the strategy for affirmatively not taking a specific action in the course of representation. The testimony outlining such strategy, in Rozwaski’s experience, negates the raised claim. It is for this reason that Rozwaski did not call appellate counsel, attorney Fabricant, to testify in the prior habeas. Rozwaski experienced some difficulties in preparing the habeas case because the petitioner was incarcerated outside of Connecticut and there were difficulties obtaining some transcripts.
Attorney Fabricant testified about his representation as appellate counsel. Fabricant did not recall if he met with the petitioner, nor if that was his standard practice approximately twenty-five years ago. It was his practice as appellate counsel to review the record, although he could not specifically recall reviewing the record in this case, and spot legal issues to raise on appeal. Fabricant acknowledged that reasonable legal minds can differ about which claims to raise on appeal. A trial court’s use of discretion, according to Fabricant, is difficult to reverse on appeal, and appellate claims seeking to do so are not particularly fruitful. Fabricant sometimes did consult with clients or trial counsel, but did not recall if he did so while he handled the petitioner’s direct appeal. On cross examination, Fabricant conceded that appellate claims are limited to the record, even claims not specifically preserved by trial counsel’s objections, and that appellate counsel cannot raise claims unsupported by the record.
The only other witness to present testimony was the petitioner. According to the petitioner, he was transferred to Virginia after his state convictions. Fabricant did not, according to the petitioner, visit or call him, but he did receive a copy of the appellate brief. The petitioner testified that Rozwaski also did not visit or call him while he was in federal custody to discuss potential habeas claims. The petitioner indicated that the claims not raised on appeal that form the basis for all the grounds of ineffective assistance are claims he would have had raised had he been able to discuss them with appellate and prior habeas counsel. The petitioner testified that there was a possibility that the jury saw the restraints used on him during the trial. The petitioner was more certain in his testimony about the Part B proceedings, where he noted that the jury knew about him being handcuffed. Trial counsel made a motion for severance so that the petitioner and Shawn Robinson would have separate jury trials; however, the motion for severance was denied. The petitioner remains steadfast in his belief that he was prejudiced by Robinson’s courtroom antics and outbursts.
The court notes that it is for counsel to decide which claims to raise on appeal or in an amended habeas corpus petition, premised on factual and legal bases assessed by counsel. In the present matter no prior counsel for the petitioner testified that the claims the petitioner testified he wanted raised would have been raised simply because he wanted them raised on direct appeal or in a prior habeas corpus.
The petitioner’s post-trial brief only analyzes one of the five grounds for ineffective assistance: that appellate counsel failed to raise a claim challenging the trial court’s denial of the motion to sever the petitioner’s trial from that of his co-defendant Robinson. While the petitioner’s post-trial brief also incorporates his arguments in the pre-trial brief, and the pre-trial brief analyzes all five grounds, that analysis is in the abstract based on the cold record as it existed prior to the testimony in the present matter. Thus, the court can deem the other four grounds to have been abandoned. See, e.g., Connecticut Light & Power Co. v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) ("[R]eviewing courts are not required to review issues that have been improperly presented to th[e] court through an inadequate brief ... Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly ... Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without discussion or citation of authorities, it is deemed to be abandoned ... These same principles apply to claims raised in the trial court "); Raynor v. Commissioner of Correction, 117 Conn.App. 788, 796, 981 A.2d 517 (2009), cert. denied, 294 Conn. 926, 986 A.2d 1053 (2010) ("The petitioner’s failure to brief his first claim to the habeas court, namely, improper preparation and investigation by trial counsel, resulted in an abandonment of that claim"). However, even if the four grounds not briefed in the petitioner’s post-trial brief are not deemed abandoned, the petitioner failed to prove that any counsel performed deficiently and clearly did not show that the outcome of the direct appeal or a prior habeas would have been different.
As to the claim that the petitioner received ineffective assistance regarding the motion for severance, there was scant testimony presented on that claim. The petitioner’s post-trial brief reiterates mostly the same arguments already made in his pretrial brief. The petitioner’s post-trial brief summarizes the habeas trial testimony as follows: "In this case the Court heard testimony from both trial counsel, Attorney David Kritzman, and the petitioner, Silas Harris. Both witnesses testified to the prejudicial effect that the unruly behavior and frequent outbursts from the petitioner’s co-defendant Shawn Robinson had on the defendant’s case." Petitioner’s Post-Trial Brief, p. 11. Relying on the criminal trial transcripts, the petitioner argues that the trial court’s denial of the motion for severance was an abuse of discretion and resulted in a substantial injustice to the petitioner.
The respondent’s post-trial brief more thoroughly analyzes the severance claim. Respondent’s Post-Trial Brief, pp. 9-15. Some of the transcripts of the underlying criminal proceedings are no longer available, so the trial court’s reasoning for its denial of the initial motion for severance is unknown. Trial counsel renewed the motion to sever the petitioner’s trial, which was also denied. Petitioner’s Exhibit 18 (Transcript, April 30, 1991), pp. 53-60. At the time of the renewed motion for severance, the petitioner, Shawn Robinson, and Perry Herring were codefendants. Each co-defendant was represented by counsel. The transcript reflects that all three had previously filed motions to sever their respective criminal trials from the other two codefendants, but all three prior motions for severance were denied. All three defense counsel joined in the renewed motion for severance and made their respective arguments. Judge Klaczak, relying on his previous denial of the motions for severance, denied the renewed motions. Exceptions were noted as to all three cases. Judge Klaczak indicated that he would give the proper instructions to the jury. Id., p. 59. Herring resolved his criminal charges prior to trial, Robinson and the petitioner were convicted and had their respective appeals decided by the Supreme Court. State v. Robinson, 227 Conn. 711, 716, 631 A.2d 288 (1993) (raising nine claims on direct appeal); State v. Harris, supra, 227 Conn. 752 (raising three claims on direct appeal). Neither of these two direct appeals raised a claim as to the denied motions for severance.
The trial court’s grounds for its initial denial of the motion for severance are unknown because the transcript apparently is no longer available. The renewed motion for severance was denied on the same grounds and, in spite of the fact that exceptions were noted for the record, no claims were subsequently raised on two separate direct appeals to the Supreme Court. The habeas trial testimony from attorney Fabricant evidenced that his strategy as appellate counsel was to not focus on claims where the trial court’s discretion was challenged on appeal. Fabricant’s reasoning and strategy are sound, and the court so finds, because reversing rulings where the trial court has discretion is highly improbable.
The respondent’s brief citing case law applicable at the time of the petitioner’s criminal trial and direct appeal illustrates the exacting standard that would have been applied to such a claim had it been raised on the petitioner’s direct appeal. State v. Pollitt, 205 Conn. 61, 67-68, 530 A.2d 155 (1987) (manifest abuse of trial court’s discretion must be shown for reversal); State v. Edwards, 10 Conn.App. 503, 506 (1987) (clear abuse of trial court’s discretion required for reversal); see also, State v. Perry, 14 Conn.App. 526, 531, 541 A.2d 1245, cert. denied, 208 Conn. 814, 546 A.2d 281 (1988) (citing and quoting "State v. Pollitt, supra, 205 Conn. at 68, 530 A.2d 155; State v. Boscarino, [ 204 Conn. 714, 721, 529 A.2d 1260 (1987); ] On appeal, the defendant must demonstrate that the ‘denial of severance resulted in substantial injustice,’ and also that any resulting prejudice was ‘beyond the curative power of the court’s instructions.’ State v. King, 187 Conn. 292, 302, 445 A.2d 901 (1982); see also State v. Bell, 188 Conn. 406, 410-11, 450 A.2d 356 (1982); State v. Jonas, 169 Conn. 566, 570, 363 A.2d 1378 (1975), cert. denied, 424 U.S. 923, 96 S.Ct. 1132, 47 L.Ed.2d 331 (1976); State v. Smith, 10 Conn.App. 624, 629, 525 A.2d 116, cert. denied, 204 Conn. 809, 528 A.2d 1156 (1987)").
Given all of the foregoing, the court concludes that the petitioner has failed to present evidence affirmatively proving deficient performance by counsel. The petitioner has also failed to show that had a prior habeas raised a claim that appellate counsel was ineffective for failing to challenge the trial court’s ruling on the motion for severance, that the outcome of the appeal would have been different. The claim of ineffective assistance, therefore, is denied.
CONCLUSION
Based upon the foregoing, the court denies the petition for a writ of habeas corpus. Judgment shall enter for the respondent.
It is so ordered.