Opinion
No. CV03 0825394
September 14, 2005
MEMORANDUM OF DECISION
The petitioner, Michael Hilton (aka Jeromie Thorpe), initially filed his petition for a Writ of Habeas Corpus on May 2, 2003, which was first amended on August 2, 2004, and for which leave was granted by this court for a second and final amendment, which was filed on May 23, 2005. The petitioner alleges that he was denied the effective assistance of trial counsel, appellate counsel and habeas counsel. As such, he claims that his confinement is illegal and in violation of his federal and state constitutional rights pursuant to the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 8 of the Connecticut Constitution. As such, he asks that this Court vacate his conviction and remand the matter to the trial court for further proceedings. This matter came on for trial before this Court on April 15, 2005, May 20, 2005, and July 8, 2005 at which time testimony was received from: the petitioner, Arline DaCosta, Yolanda (Moody) Thorpe, and trial and appellate counsel for the petitioner, F. Mac Buckley. Numerous items of documentary evidence were received into evidence, including transcripts from the proceedings in Docket Number CR 92-042854, the appellate record and briefs of the parties in State v. Hilton, 45 Conn.App. 207, cert. denied, 243 Conn. 925 (1997), cert. denied, 522 U.S. 1134, 118 S.Ct. 1091, 140 L.Ed.2d 147 (1998), as well as an affidavit from state's attorney John Massameno and a statement by Yolanda Moody. As is explained in greater detail hereafter, this Court finds that the petitioner has failed in meeting his burden of proof and the petition is granted in part.
The petitioner alleges prior habeas counsel was ineffective for failure "to raise all possible issues (specifically including, but not necessarily limited to, those detailed in Count One) in the two previous Habeas Petitions filed by him on behalf of the Petitioner." Second Amended Petition, at 7. The petitioner presented little if no evidence that bears on the claim of ineffective assistance of habeas counsel. To the extent that this court addresses and denies the ineffective assistance claims against trial and appellate counsel, the court likewise finds there is no basis for an ineffective assistance of counsel claim against habeas counsel.
Findings of Fact CT Page 12949
1. The petitioner was the defendant in a case in the Judicial District of Hartford at Hartford under Docket Numbers CR-92-0429854 and CR 92-0429855, following conviction on one count of Murder in violation of General Statutes § 53a-54a, Possession of Narcotics in violation of General Statutes § 21a-279(a) and Possession of Narcotics with Intent to Sell in violation of General Statutes § 21a-278(b).
2. At some point beginning in 1993, following his arrest on August 23, 1992, the petitioner was represented by F. Mac Buckley. Attorney Buckley represented the petitioner from then on throughout the criminal proceedings as well as in the petitioners appeal under State v. Hilton, supra.
Attorney Robert Pickering was attorney of record on the appeal in State v. Hilton, supra, with Attorney Buckley on the brief; the petition for certiorari to the Supreme Court notes only Attorney Pickering as counsel of record.
3. On October 7, 1989, at approximately 4:20 a.m., Officer Christopher Hopkins of the Hartford police was dispatched to 241 Westland Street in Hartford, where he found the body of the victim, Thomas Byrd, near the curb. The cause of death was a .25 caliber bullet that had entered his chest, lungs and heart.
4. At the time of the shooting, the victim's girlfriend, Stephanie Jones, was living with her children and her mother in one of two apartments on the third floor of 241 Westland Street, a three story building with two apartments on each floor. The victim visited the apartment every evening after work. Jones' grandmother and her grandmother's husband lived in an apartment on the second floor. Yolanda Moody and Sonia Moody lived on the first floor.
5. The defendant was Yolanda's boyfriend and was frequently present in the Moodys' apartment. Drug trafficking occurred in the Moodys' apartment. People often knocked on Jones' grandmother's door at night looking for the Moody sisters and narcotics. Relations were tense between Jones and her relatives and the Moody sisters because Jones' grandmother had informed the landlord that the Moodys were selling drugs out of their apartment.
6. In the early morning of October 7, 1989, Jones was present in her apartment with the victim, her mother and her friend Stephanie White.
7. Between 2:30 and 3 a.m., an argument broke out between Jones and Sonia Moody after a male and a female, who were looking for drugs, knocked first on Jones' door and then on her grandmother's door.
8. Soon thereafter, Jones, her mother and White went downstairs, where they quarreled and fought with the Moody sisters in the inner hallway on the first floor. Three men emerged from the Moodys' apartment and watched the fight from the doorway. The defendant also observed the fight from the doorway of the Moodys' apartment.
9. After approximately five minutes, the defendant ran into the Moodys' apartment and returned with a gun. He pointed the gun at the participants in the fight, waved it around, and then pointed it directly at the victim, who was holding Jones' grandmother on the staircase. The Moody sisters ran back into their apartment. White, the three men and the victim ran outside.
10. The defendant followed directly behind the victim. When the victim was between the inner hallway and an outer hallway, the defendant shot and killed him.
11. The police investigation of the homicide and search of 241 Westland Street resulted in the discovery of evidence concerning not only the homicide, but also drug trafficking. In the inner hallway of that building, there was a pool of blood, blood drops, and a spent .25 caliber cartridge casing. In a hallway leading to the rear bedroom of the Moodys' apartment, the police found a blood stained lactose bottle discarded in a waste basket. In Yolanda's bedroom, the police discovered a set of car keys, a double beam scale, a roll of plastic sandwich bags, a note pad, a pager, a tote bag containing approximately one and one-half pounds of unpackaged raw rice, a photograph in the frame of a dresser mirror of the defendant posing with a rifle, an album of photographs of the defendant and Yolanda Moody and their love letters. In the front bedroom of 241 Westland Street, the police found papers and an address book belonging to Sonia Moody.
12. The police also searched two cars near the scene of the shooting, a Toyota Corolla and a Plymouth Grand Fury. The Plymouth was owned by Sonia Moody, and its keys were found by the police in the rear bedroom of 241 Westland Street. In the Plymouth's trunk the police found a Heckler and Koch MP5 assault rifle and two loaded clips of ammunition. The Toyota was owned by Yolanda Moody, but was driven by the defendant more frequently than by Yolanda.
13. Inside the Toyota's trunk the police found a blue cosmetic bag holding $24,057 in thousand dollar bundles, a triple beam scale, and a box holding a spoon and a plastic bag that was embedded in rice and contained approximately 44 grams or 1.36 ounces of a white powder that was 84 percent cocaine in salt form.
14. Following the homicide, the state attempted but failed to locate the defendant. An arrest warrant was issued for him in February 1990. The police learned in the summer of 1992 that he was incarcerated in a county correctional center in New Jersey. He was brought by automobile back to Connecticut, and, during this trip, he related to the police that he had waited at the scene of the shooting until the arrival of the police but then departed by bus for New York City because there was an outstanding warrant for his arrest in Washington, D.C.
15. The defendant also said that neither the Toyota nor the Plymouth or their contents belonged to him and that the rifle in the Plymouth had been left there by someone he did not know. He commented that he had used the rifle in the Plymouth to pose for the picture that the police found in the rear bedroom of the Moodys' apartment. He also stated that he bad been in the hallway of 241 Westland Street during a fight between the Moody sisters and other individuals and that he had heard a shot, but he did not know who had fired it. The defendant specifically claimed that he did not shoot the victim. State v. Hilton, supra, 45 Conn.App. 209-12.
16. As a result of his convictions, the petitioner was sentenced to serve forty-five years on the Murder conviction, and fifteen years to serve consecutively on the Possession of Narcotics with Intent to Sell conviction, for a total effective sentence of sixty years to serve.
17. The sentencing court compiled with the requirements of General Statutes § 51-195, i.e., the clerk after imposition of sentence provided the petitioner with a notice of the right to sentence review.
18. Additional facts shall be discussed as necessary.
Discussion
The standard which the court must apply to the petitioner's claims of ineffective assistance of counsel is well-established. "A petitioner's right to the effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution, and by article first, § 8, of the Connecticut constitution. The right to counsel is the right to the effective assistance of counsel . . . The right to counsel, however, is the right to effective assistance and not the right to perfect representation.
"In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United Stares Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) 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 adversary process that renders the result unreliable. Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 798, cert. denied, 268 Conn. 907, cert denied sub norm, Toccaline v. Lantz, U.S. 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).
"To establish the first prong of the Strickland test, the petitioner must first establish that his attorney's performance was `not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law . . .' The court must be mindful that `[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." Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 798-99.
"Turning to the prejudice component of the Strickland test, `[i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt . . . A court `hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury . . . [A] court making the prejudice inquiry must ask if the [petitioner] has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.' Strickland v. Washington, supra, 466 U.S. 695-96." (Internal citations omitted.) Lewis v. Commissioner of Correction, 89 Conn.App. 850, 854-56 (2005).
"A court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim . . . In this context, a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case . . . Rather, it merely requires the petitioner to establish a probability sufficient to undermine confidence in the outcome." (Internal citations and quotation marks omitted.) Nieves v. Commissioner of Correction, 51 Conn.App. 615, 620, cert. denied, 248 Conn. 905 (1999).
It is inappropriate for a habeas court to examine the performance of a trial defense counsel and put it under microscopic scrutiny. "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for, a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases and undermine the trust between attorney and client." Strickland v. Washington, supra, 466 U.S. 688.
As to the claim of ineffective assistance of appellate counsel, the petitioner has simply alleged that appellate counsel failed to raise all possible claims on appeal and inadequately briefed the issues that were raised on appeal. The petitioner has not tried to identify what these claims are or how, if somehow differently and presumably more adequately briefed, the outcome of the appeal and underlying proceedings would have been any different. See Bunkley v. Commissioner of Correction, 222 Conn. 444 (1992). The court finds, therefore, that the petitioner has, if not entirely abandoned, failed to meet his burden of proof as to the allegations of ineffective assistance of appellate counsel.
In support of his assertion of ineffective assistance of trial counsel, the petitioner asserts a laundry list of alleged failures: i.e. that Attorney Buckley failed adequately to prepare for trial, failed to prepare the petitioner for trial, failed to respond to petitioner's inquiries regarding the proceedings, failed to introduce and/or emphasize exculpatory evidence, failed to object properly to hearsay evidence, failed to adequately or minimally communicate with the petitioner, and failed to pay due attention to the testimony of witnesses such that counsel failed to object when necessary or appropriate. This glut of claims, however, is accompanied by a dearth of evidence, including no attempt by the petitioner to establish how any of these alleged failings, even if true, would undermine this court's confidence in the outcome.
At most, the petitioner elicited the testimony of Yolanda Moody aka Yolanda Thorpe, the petitioner's wife, in order to establish that her testimony would somehow have been exculpatory at trial or at the motion to sever the murder charge with the drug charges, pursued by petitioner's counsel at the trial and on appeal. The petitioner, however, has failed to establish that trial counsel's failure to call Yolanda Moody, for either the motion to sever, or at trial, was deficient performance. The petitioner did not present either legal authority or expert testimony that supports his claim that a motion to sever requires an evidentiary hearing and that the failure to do so constitutes deficient performance.
Moreover, while Ms. Moody insisted that the drug dealing and the dispute which led to the shooting death were unrelated, the appellate court in State v. Hilton, supra, relied on an entirely different theory with respect to the motion to sever. At trial, the state presented two theories for joinder, first, that the drug dealing was relevant as to motive, but even if it were not, joinder was appropriate based on relevant factors in the case law on joinder. While the trial court agreed that if the state could establish that drug dealing was part and parcel of the crime, then evidence of such would be relevant and therefore, joinder appropriate. The court, however, went beyond that analysis and indicated that even if the state could not establish that drug dealing was relevant as to motive, that joinder would be appropriate given its analysis of the following factors: 1) whether the charges involve discrete, easily distinguishable factual scenarios, 2) whether the crime to be joined involved brutal or shocking conduct, 3) the duration and complexity of the trial, and ultimately, 4) whether the defendant would suffer undue prejudice as a result of joining the two cases.
The appellate court affirmed the trial court's decision and its analysis, invoking those same factors under State v. Chance, 236 Conn. 31 (1996). Given this holding, the petitioner cannot establish how Ms. Thorpe's live testimony, even if credited for purposes of the motion to sever, would have made any difference in the outcome of either the trial court's denial of the motion to sever, or the outcome of any level of appeal.
Moreover, on October 7, 1989, Ms. Thorpe gave a statement in which she implicated the petitioner by describing how he sells drugs for a living, identified one of the photographs in her room as depicting the petitioner with a rifle in his hand, and that he possessed a small, silver gun which he showed her the week before the shooting. In that statement, she specifically stated that she saw the petitioner, with that same gun, shoot it once in the hallway.
Given this statement and then Ms. Thorpe's testimony at the habeas trial, Mr. Buckley had no reason to produce Ms. Thorpe as a witness. Indeed, had he done so, given the case law under State v. Whalen, 200 Conn. 743 (1986), Ms. Thorpe's statement could have easily met the four conditions precedent for its admission for substantive purposes since she testified at the habeas trial that among other things, she would have testified that she did not see who did the shooting. Moreover, while her value as a defense witness is virtually nil given that this testimony can hardly be viewed as exculpatory, her statement introduced via Whalen would have been devastating for the defense.
Ms. Thorpe also testified that the police pressured her to make this statement and that they refused to allow her to get medical treatment until the statement was given. Under State v. Mukhtaar, 253 Conn. 280 (2000), however, it seems highly unlikely that her statement would have been deemed so unreliable that it would not have been presented to the jury. A the habeas trial, Ms. Thorpe testified that she went to the police station at around 4-5 a.m. and was there until 1 p.m. the next afternoon, with stab wounds for which she should have gotten immediate treatment and stitches. Her statement, however, indicates that the dispute started at 4:00 a.m., the melee erupted and that she had been stabbed and had "little cuts" all over her. The police arrived, checked her apartment and then took her and others to the police station. The statement also indicates that the police began taking the statement at 9:05 a.m. and concluded taking the statement an hour later. Just on the face of the statement and Ms. Thorpe's testimony at the habeas trial, there is enough discrepancy surrounding the circumstances of the statement that a court would have left the question of the statement's reliability and Ms. Thorpe's credibility as "grist for the cross-examination mill." Id. Indeed, the petitioner did not even attempt to argue that the statement would have been inadmissible.
The Supreme Court noted in State v. Mukhtaar, supra, 253 Conn. 307, that "because the requirements that we established in Whelan provide a significant assurance of reliability, it will be the highly unusual case in which a statement that meets the Whelan requirements nevertheless must be kept from the jury."
Understandably then, Mr. Buckley testified that he had no intention of calling Ms. Thorpe as his witness. The evidence did not reveal how Ms. Thorpe's testimony would have been exculpatory or helpful to the defense, and if anything, this court finds that her appearance in court could have been extremely damaging. As such, the petitioner has not established that trial counsel's performance was deficient.
The petitioner also attempts to exploit Mr. Buckley's undisputed mental health and substance abuse issues but utterly failed to present credible evidence that Mr. Buckley's acknowledged difficulties were issues at the time of trial or even on appeal. Mr. Buckley testified candidly and credibly, with respect to the timeframe in which he struggled with these issues as well as their impact on him. This court credits Mr. Buckley's testimony that his bi-polar diagnosis as well as his alcohol abuse and gambling addiction, diagnosed in May 1999, did not become acute until late 1998. He also indicated that in 1997, when his mother-in-law and father both died within three months of each other, that he began to go "downhill," although the evidence is unclear as to what Mr. Buckley meant by this or how, if at all, his work as an attorney was affected.
In any event, the transcripts of the petitioner's criminal case reflect a timeframe spanning from February 1995 through to June 1995, while his appellate briefs were filed from April 1996 through to November 1996. The appeal in State v. Hilton, supra, was argued by Attorney Robert Pickering on March 5, 1997 and decided on May 20, 1997. Even the petition for certification, also pursued by Attorney Pickering, was decided and denied on September 30, 1997. As such, there is no indication that Mr. Buckley was even actively involved in the case after he filed the petitioner's reply brief in November 1996, two years before his mental health problems became, in Mr. Buckley's words, acute.
More importantly, the petitioner has failed to indicate where, in the massive trial record, Mr. Buckley's performance manifests the various deficiencies attributed to his mental health state. The petitioner alleges that trial counsel was unable to focus on the prosecution's questions, on the witnesses' responses and court rulings, and that his inquiries were "substantially impaired" by his emotional/mental illness. In the absence of evidence, the petitioner's allegations, while abundant, are nevertheless unavailing.
The petitioner has also alleged that trial counsel was ineffective for his failure to consider seeking a mistrial when the state withheld potentially exculpatory evidence. At habeas trial, Attorney Buckley was questioned briefly on the issue and due to the length of time passed, could not recall specifics as to what he considered in going forward with trial. He did, however, recall that he was not unhappy with the jury selected and also had offered some general considerations he would ordinarily take into account. The petitioner, however, proffered no case law or expert testimony to establish why trial counsel's tactical decisions regarding the handling of a Brady violation should be deprived of the presumption that trial counsel's conduct reflects sound trial strategy. As such, this court finds that the petitioner has failed to meet his burden with respect to this claim of deficient performance.
Lastly, the petitioner has alleged that trial counsel failed to provide the petitioner with an application for sentence review. In fact, the sentencing transcript indicates that the clerk of court specifically noted for the record that the petitioner was provided written notice of his right to sentence review. At the habeas trial, however, Mr. Buckley indicated that he could not recall whether he provided the petitioner with such an application after the sentencing or waited until the appeal was resolved. It is clear, therefore, that neither the petitioner himself nor his attorney timely filed an application for sentence review, which according to § 51-195, must be filed ". . . within thirty days from the date such sentence was imposed . . ."
§ 51-195 states in relevant part that the ". . . form for making such application shall accompany the notice."
In James L. v. Comissioner of Correction, 245 Conn. 132, 144-45 (1998), the Supreme Court had occasion to address ". . . the purpose of sentence review, and the nature of the deprivation occasioned by ineffective assistance of counsel at sentence review . . . the legislature passed the Sentence Review Act in 1957; Public Acts 1957, No. 436; to reduce the disparity in sentences meted out by different judges and, thereby, to quell prisoner discontent. The purpose and effect of the Sentence Review Act is to afford a convicted person a limited appeal for reconsideration of his [or her] sentence . . . It thus gives him [or her] an optional de novo hearing as to the punishment to be imposed.
The Supreme Court also noted the following in discussing the legislative history of § 51-195: "That history suggests that the legislature imposed the thirty day time limit in order to promote finality in sentencing. When asked to comment on the thirty day time limit, Justice Patrick B. O'Sullivan stated: `We had to put a finality to [the period for sentence review]. Conn. Joint Standing Committee Hearings, Judiciary and Governmental Functions, Pt. 2, 1957 Sess., p. 405. He also remarked that the thirty day deadline would `remove any doubt as to time.'" James L. v. Commissioner of Correction, supra, 245 Conn. 146-47.
"Under article first, § 8, of the Connecticut constitution and the sixth and fourteenth amendments to the United States constitution, the petitioner had a right to the effective assistance of counsel with respect to access to sentence review. [T]he sentencing process is a critical stage of a criminal trial. Accordingly, an indigent criminal defendant has a constitutional right to appointed counsel at sentence review. The right to counsel at sentence review would be meaningless unless it also implied the right to effective assistance of such counsel. It would equally be meaningless if it were not afforded at the time when invocation of sentence review is at issue. The constitutional right to the effective assistance of counsel at sentence review is not diminished by the fact that the right to sentence review, like the right to a direct appeal, derives from statute rather than a constitution.
"The commissioner [in James L. did] not contest the habeas court's conclusion that the petitioner was deprived of the effective assistance of counsel at the proper time for access to sentence review. The petitioner's counsel failed to engage him in a meaningful discussion of whether to apply for sentence review. Counsel also failed to file the application for sentence review within the statutory time period. The habeas court, applying the two-pronged test for ineffective assistance of counsel, determined that counsel's performance had: (1) been deficient; and (2) resulted in actual prejudice. Specifically, the habeas court noted that if, as in this case, a petitioner is deprived of sentence review because counsel failed to file the paper's in a timely fashion, prejudice is established by the absence of access to sentence review." (Emphasis added.) (Internal citations and quotation marks omitted.)
Similarly, it does not appear firm the evidence before this court that Mr. Buckley engaged in a meaningful discussion of whether to apply for sentence review. Mr. Buckley's testimony that he could not recall whether he gave the application for sentence review to the petitioner or waited until the appeal was resolved neither indicates a meaningful discussion transpired, nor does it reflect a correct understanding of the requirement under § 51-195 that an application for sentence review must be filed within thirty days from the imposition of sentence.
Given the sixty-year total effective sentence, of which fifteen years is for possession with intent to sell, this court finds that reasonably competent criminal defense counsel would, at a minimum, engage in a meaningful discussion about sentence review and perfect the right to sentence review by timely filing the application for sentence review. This was not done by Mr. Buckley and the petitioner was not able to pursue sentence review. The court finds, therefore, that Mr. Buckley rendered deficient performance by not filing the application for sentence review and that the petitioner was prejudiced thereby.
Accordingly, the relief sought in the Petition for a Writ of Habeas Corpus is denied as to all claims, with the exception that the petitioner's right to sentence review is restored. The petitioner shall have thirty (30) days from the date of this decision to file an application for sentence review.
N. Elgo, Judge