Opinion
CV124004340
12-01-2016
Kyle Baines Inmate #247918 v. Commissioner of Correction
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Stanley T. Fuger, Senior Judge.
The petitioner, Kyle Baines, Inmate #247918, alleges in his petition for a Writ of Habeas Corpus initially filed on September 12, 2011 and amended for the final time on August 29, 2014, that his confinement under the custody of the Commissioner of Correction is illegal. Specifically, the petitioner in his four-count complaint alleges that both his trial defense counsel, Attys. Michael Dolan and Jack O'Donnel and his Appellate Counsel, Atty. Lauren Weisfeld, were ineffective in their respective representation of the petitioner.
This habeas trial is notable in that of the multitude of habeas cases tried by this Court over the past sixteen years, this is one of the few, indeed perhaps the only, case in which none of the attorneys involved in the underlying criminal trial were proffered as witnesses. Neither were there any attorneys called to serve as an expert witness in the area of criminal trial defense or in the field of criminal appellate advocacy.
During the trial on the merits of this habeas petition the Court received testimony from Mr. Jason Barnes, a Mr. Jared See, and Ms. Laura Woodtke. Finally, the Court received various pieces of documentary evidence into evidence.
Mr. See, who resides out of the state of Connecticut, testified via telephone.
Primarily the transcripts of the petitioner's underlying criminal trial.
In Counts One and Two respectively, the petitioner alleges that he was deprived of his Constitutional Right to a unanimous verdict, and that the evidence was insufficient to sustain a verdict of guilty. The respondent denies these allegations and asserts as a special defense thereto, the defense of Procedural Default. This Court, for reasons more fully explained later in this Memorandum does find that the petitioner is procedurally defaulted as to both of these counts and therefore dismisses Counts One and Two on the ground of Procedural Default.
In regard to Counts Three and Four, the petitioner alleges the ineffective assistance of trial defense counsel and appellate counsel respectively. This Court finds that the petitioner has failed in his evidentiary burden of proof in regards to both of these claims and dismisses those Counts as well. As a consequence, the Petition for the Issuance of a Writ of Habeas Corpus shall be dismissed.
Findings of Fact
1. The petitioner was a defendant in a criminal case proceeding in the Judicial District of New Haven captioned State v. Baines. He went to trial before a jury, and was convicted of:
a. One count of Murder as an Accessory, CGS § § 53a-54a(a) & 53a-8,
b. One counts of Conspiracy to commit Murder, CGS § § 53a-54a(a), & 53a-48
c. One Count of Carrying a pistol without a permit, CGS § 29-35.
2. The Petitioner was, at all times relevant, represented by Attys. Michael Dolan and Jack O'Donnel and his Appellate Counsel, Atty. Lauren Weisfeld.
3. Efforts at reaching a pretrial plea agreement were unsuccessful and the petitioner ultimately had his case presented to a jury, Fracasse, J. presiding.
4. The jury reasonably could have found the following facts. " On the evening of August 13, 1996, Laura Woodtke, Kirk McKenzie and the victim, Aubrey Rodney, were sitting outside at 60 Farren Avenue in New Haven, where Woodtke resided. They were approached by Robert Spearman, who said, " [You have] ten minutes to vacate the premises or we're going to kill you." Spearman was joined by Jenkins, Tyrone Kindred, the defendant [petitioner] and another unidentified male. The five men formed a semicircle and, after some conversation, the defendant [petitioner] pulled a wool mask over his face. The five men took out guns at Jenkins' instruction. As Woodtke and the victim ran, approximately five shots were fired, with one bullet entering the victim's back and causing his death.
5. " Although all five were armed, only Jenkins and the defendant [petitioner] fired their weapons. Jenkins shot the victim in the back, and the defendant [petitioner] fired at the fleeing McKenzie. The two fired five or six shots between them. The incident was observed by a witness, Joy Terry, from a second-floor window in her apartment."
State v. Baines, 56 Conn.App. 443, 444, 743 A.2d 666 (2000).
6. Additional facts will be discussed, as necessary, in subsequent portions of this decision.
Discussion
The Petitioner now comes before this Court seeking the issuance of a writ of habeas corpus. The main thrust of the Petitioner's argument is that his trial defense counsel were constitutionally deficient in their performance of duties by not calling three witnesses and that therefore, the Petitioner was deprived of the assistance of the competent counsel guaranteed to him by the sixth Amendment to the United States Constitution. Further, he complains that his Appellate Counsel did not do all that she should have done in his appeal. As a result, the Petitioner asserts that this renders his continued confinement by the Respondent, illegal.
It is important to understand that this instant proceeding is an action seeking the issuance of a writ of habeas corpus. This case is now in what is often termed the " court of last resort." A petition for a writ of habeas corpus is, therefore, an application for extraordinary judicial relief in which, contrary to the criminal trial court, the burden rests with the petitioner.
This may seem to be difficult for a layman to accept, given the oft-repeated phrase that " one is innocent until proven guilty." However, in a habeas corpus proceeding, the petitioner is not innocent and has, in fact been already proven guilty beyond all reasonable doubt. Moreover, a habeas petitioner has more likely than not had the opportunity to have at least one appellate court review the case to determine if there have been any errors of law that were made by the trial court. Given that a habeas petition is often called the " court of last resort" it should not be unexpected that the burden of showing an irregularity must now rest with the petitioner.
Notwithstanding the arguments raised by Petitioner and his current assigned counsel at this habeas trial, the Court disagrees with the position of the Petitioner and will deny the petition and decline to issue a writ of habeas corpus.
At the outset, one must understand that there is a critical difference between the legal status of a person who has been accused of a crime as opposed to one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus petition is not. " It is undoubtedly true that '[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993) . . . The presumption of innocence, however, does not outlast the judgment of conviction at trial." Summerville v. Warden, 229 Conn. 397 at 422-23, 641 A.2d 1356 (1994). Consequently, the burden of proving entitlement to the grant 'of a writ rests with the petitioner. " Thus, in the eyes of the law, [the] petitioner does not come before the Court as one who is 'innocent, ' but on the contrary as one who has been convicted by due process of law." Summerville v. Warden, infra. at 422. The Petitioner is not, therefore in the role of a " defendant, " but is instead, a " convict."
The writ of habeas corpus is an ancient and time-honored component of our Anglo-American jurisprudence. " We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in Anglo-American jurisprudence: 'the most celebrated writ in the English law.' 3 Blackstone Commentaries 129. It is 'a writ antecedent to statute, and throwing its root deep into the genius of our common law . . . It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I." Fay v. Noia, 372 U.S. 391 at 399, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). When the United States achieved independence from England, the writ made the Trans-Atlantic voyage and became embodied in our law as well. " Received into our own law in the colonial period, given explicit recognition in the Federal Constitution, Art. I, § 9, cl. 2, incorporated in the first grant of federal court jurisdiction, Act of September 24, 1789, c. 20, § 14, 1 Stat. 81-82, habeas corpus was early confirmed by Chief Justice John Marshall to be a 'great constitutional privilege.' Ex parte Bollman and Swartwout, 8 U.S. 75, 4 Cranch 75, 95, 2 L.Ed. 554." Fay v. Noia, infra at 400 (1963).
Edward I reigned in England in the late 13th century AD.
Issuance of a writ of habeas corpus is a remedy whose " most basic traditions and purposes are to avoid the grievous wrong of holding a person in custody in violation of the federal constitution and thereby protect individuals from unconstitutional convictions and help guarantee the integrity of the criminal process by ensuring that trials are fundamentally fair." O'Neal v. McAninch, 513 U.S. 432, 442, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). Moreover, when a court reviews a petition for habeas corpus, " it must decide whether the petitioner is in custody in violation of the Constitution or laws or treaties of the United States. The court does not review a judgment, but the lawfulness of the petitioner's custody simpliciter." Coleman v. Thompson, 501 U.S. 722 at 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). So, the writ of habeas corpus " has been for centuries esteemed the best and only sufficient defense of personal freedom." Lonchar v. Thomas, 517 U.S. 314, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996).
A criminal defendant, of course, has an absolute Constitutional right to persist in a plea of not guilty, even in the face of what some might think to be seemingly insurmountable obstacles and overwhelming evidence. He or she has an absolute right to hold the government to its justifiably high burden of proof and take the matter to a jury of his or her peers. The Constitution of the United States, the Bill of Rights, and the Constitution of the State of Connecticut collectively guarantee the fundamental right of a person to plead not guilty and have his or her case decided before a jury of his or her peers. Our common law has interpreted these Constitutional guarantees as requiring that the government seeking to deprive a person of freedom must first prove that person's guilt beyond all reasonable doubt. Moreover, all criminal defendants are entitled to the representation of counsel. The Sixth Amendment to the United States constitution provides in relevant part: " In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . and to have the assistance of counsel for his defense." The sixth amendment right of confrontation and right to counsel is made applicable to the states through the due process clause of the fourteenth amendment See Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), respectively. The Sixth Amendment right to counsel is necessarily the right to an effective counsel. Notwithstanding, our Constitutions do not require that a criminal defendant receive perfect representation.
" The requirement that guilt of a criminal charge be established by proof beyond a reasonable doubt dates at least from our early years as a Nation. The 'demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, [though] its crystallization into the formula 'beyond a reasonable doubt' seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all essential elements of guilt.'" In re Winship, 397 U.S. 358 at 361, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
In order that a Petitioner prevail in a claim of ineffective assistance of counsel the proof must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 L.Ed.2d (1984) before the Court can grant relief. Specifically, the petitioner must first show " that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, infra, at 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving " that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, infra, at 687. In short, the petitioner must show both deficiency and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will result in denial of the petition.
As already noted, a criminal defendant is entitled to the representation of trained and competent legal counsel. Notwithstanding, " [t]he Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight. See Bell v. Cone, 535 U.S. 685 at 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674; United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)." Yarborough v. Gentry, 540 U.S. 1, 124 S.Ct. 1, 157 L.Ed.2d 1 (October 20, 2003). " To prove that his counsel's performance was deficient, the petitioner must demonstrate that trial counsel's representation fell below an objective standard of reasonableness . . . 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." Smith v. Commissioner of Correction, 148 Conn.App. 517, 523-25, 85 A.3d 1199 (2014).
Trial in this Court of a habeas petition is not an opportunity for a new counsel to attempt to re-litigate a case in a different manner. A habeas court " may not indulge in hindsight to reconstruct the circumstances surrounding the challenged conduct, but must evaluate the acts or omissions from trial counsel's perspective at the time of trial." Beasley v. Commissioner of Correction, 47 Conn.App. 253, 264, 704 A.2d 807 (1979), cert. den. 243 Conn. 967, 707 A.2d 1268 (1998). " A fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Henry v. Commissioner of Correction, 60 Conn.App. 313 at 317, 759 A.2d 118 (2000).
This point is particularly important in the instant case. The petitioner's counsel in this habeas case is a well-respected criminal defense counsel who enjoys a good reputation as a trial defense counsel. Unfortunately, given the nature of a habeas corpus petition, it is not sufficient to come in front of the judicial authority and simply point out the many ways that the case could have been tried differently. It pretty much goes without needing to be said that there are probably as many ways to approach a case as there are lawyers who look at it.
Turning now to the specific complaints of the Petitioner and the specific deficiencies alleged in the complaint, this habeas court will find that there is no merit to any of the points raised by the Petitioner. In so doing the Court will bring particular attention to the habeas trial proceedings. As already noted, there were three witnesses who testified before this Court. One of these witnesses, Laura Woodtke, was a witness at the petitioner's underlying trial. At the habeas trial, she offered little of value. She did testify that she had done her best to put any thoughts of the night in question out of her mind during the past twenty years and testified to having little present recollection. The only point she offered that may have been of any use to the petitioner was that the witness who observed him shooting at the victim, Joy Terry, was the " neighborhood crackhead." Jason Barnes, a student at the time, testified in the habeas case that he had been in a car near the crime scene that his mother was driving when he heard some loud popping sounds. He turned in his seat and saw a man leveling his arm and shooting. He did not testify at the petitioner's criminal trial. Finally, Mr. Jared See testified to essentially the same events. Neither of these witnesses were in a location to have a clear view of what was taking place at the crime scene as opposed to the other witnesses who did testify at the petitioner's criminal trial.
This habeas trial lasted a grand total of 25 minutes. Of course, it is not the length of the trial evidence, but the quality that governs. Notwithstanding, where a habeas petitioner strives to overturn a conviction of a twenty-year-old murder, the brevity of the habeas proceeding does not bode well for ultimate success.
It is crystal clear that the testimony of these witnesses do not, in any way, undermine this Court's confidence in the reliability of the petitioner's conviction. Petitioner does attempt to argue that this case is similar to the fact pattern in Bryant v. Comm'r of Corr., 290 Conn. 502, 964 A.2d 1186 (2009). Nothing could be further from the truth. This Court was also the judicial authority in the Bryant case. In that case, the habeas petitioner brought forth four highly credible disinterested witnesses who clearly established that the incident in which that victim was murdered involved a shooting by three males which was diametrically opposed to the state's theory that Bryant alone had beaten the victim to death. Here the alleged missing witness testimony does nothing to undermine the state's theory and does not exonerate the petitioner.
There is no other evidence before this habeas Court to address any of the other remaining claims of deficient performance on the part of the petitioner's trial defense counsel let alone to allow this Court to conclude that there was any prejudice that befell the petitioner's cause. Consequently, Count Three is dismissed.
Count Four is deemed abandoned as there has been no evidence put before this Court that addresses any merits or demerits in the representation of appellate counsel. There simply is no evidence at all upon which this Court can conclude ineffective representation by Atty. Weisfeld.
A determination of the defense of procedural default involves a question of law. From the Amended Petition, it is clear that Counts One and Two allege issues that should have been brought up at the trial court level or upon Appellate review. The failure to do so, if the defense of procedural default is raised and found applicable, will render the habeas court unable to fashion any relief.
Our Supreme Court, in Johnson v. Commissioner of Correction, 285 Conn. 556, 941 A.2d 248, (2008), has stated that " [i]n discussing the principles that govern review of a respondent's affirmative defense that a habeas claim is procedurally defaulted, we have recognized that, as a general rule, [t]he appropriate standard for reviewability of habeas claims that were not properly raised at trial . . . or on direct appeal . . . because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition." (Citations omitted; emphasis in original; internal quotation marks omitted.) At 567.
" [T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate's procedural rule . . . [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . or . . . some interference by officials . . . would constitute cause under this standard . . . A court will not reach the merits of the habeas claim when the petitioner fails to make the required showing." (Citations omitted; internal quotation marks omitted.) Id., 568.
Failure to raise a constitutional claim at the trial level or on direct appeal prior to bringing a habeas action constitutes procedural default. Barile v. Commissioner of Correction, 80 Conn.App. 787, 788, 837 A.2d 827, cert. denied, 268 Conn. 915, 847 A.2d 310 (2004). " When a respondent seeks to raise an affirmative defense of procedural default, the rules of practice require that he or she must file a return to the habeas petition alleg[ing] any facts in support of any claim of procedural default . . . or any other claim that the petitioner is not entitled to relief. Practice Book § 23-30(b). If the return alleges any defense or claim that the petitioner is not entitled to relief, and such allegations are not put in dispute by the petition, the petitioner shall file a reply. Practice Book § 23-31(a). The reply shall allege any facts and assert any cause and prejudice claimed to permit review of any issue despite any claimed procedural default. Practice Book § 23-31(c) . . . The appropriate standard for reviewability of [a procedurally defaulted claim] . . . is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition . . . [t]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . Once the respondent has raised the defense of procedural default in the return, the burden is on the petitioner to prove cause and prejudice . . ." (Alterations in original.) Saunders v. Commissioner of Correction, 137 Conn.App. 493, 498-99, 48 A.3d 728 (2012). " Failing to recognize the factual or legal basis for a claim or failing to raise a claim despite recognizing it does not constitute cause for a procedural default." (Citation omitted; quotation marks omitted.) Chaparro v. Commissioner of Correction, 120 Conn.App. 41, 49, 990 A.2d 1261, cert. denied, 297 Conn. 903, 994 A.2d 1287 (2010). However, " [i]f a petitioner can prove that his attorney's performance fell below acceptable standards, and that, as a result, he was deprived of a fair trial or appeal, he will necessarily have established a basis for 'cause' and will invariably have demonstrated 'prejudice.'" (Alteration in original.) Caban v. Commissioner of Correction, 113 Conn.App. 165, 173, 965 A.2d 601, cert. denied, 292 Conn. 902, 971 A.2d 40 (2009). " Because [c]ause and prejudice must be established conjunctively, [the court may] dispose of this claim if the petitioner fails to meet either prong." (Alteration in original; citation omitted.) Chaparro, supra, 120 Conn.App. at 48.
The petitioner has completely failed in his burden of proving either cause or prejudice for his procedural default. Consequently, Counts One and Two are dismissed forthwith.
There simply is no basis for this Court to conclude that either deficient performance or prejudice on the part of any of the lawyers involved in the Petitioner's representation led to his conviction. There is nothing about this case that, in any way, undermines this Court's confidence in the reliability of the conviction. Likewise, this Court concludes that there is no illegality in the continued confinement of the petitioner under the custody of the Commissioner of Correction.
As a result of all of the foregoing,
The Petition for a Writ of Habeas Corpus is, therefore, denied and the Petition Dismissed.