Opinion
CV104003477
06-26-2019
Jose JIMENEZ #288991 v. WARDEN, State Prison
UNPUBLISHED OPINION
Hon. John M. Newson, Judge
I. Procedural History
According to the allegations, the petitioner was the defendant in matters pending in the New Haven Judicial District under docket numbers CR99-476590 and CR99-4770027. He was represented by Attorney Tara Knight at the trial level for all purposes relevant to this habeas matter, and elected for trial by jury. The jury reasonably could have found the following facts:
In 1998, prior to the events giving rise to the assault charges, the defendant had a brief romantic relationship with the victim’s mother, of which the victim was aware. The victim’s mother terminated the relationship when she discovered that the defendant was married. In June 1998, when the victim was eleven years old, the defendant called for the victim at her school. He told the victim that her mother had sent him. The victim got into the backseat of the defendant’s motor vehicle. Instead of taking the victim home, the defendant drove to a deserted location and sexually assaulted the victim in the backseat of his vehicle. After forcing her to have sexual intercourse with him, the defendant warned the victim not to tell anyone what had happened or she and her mother would be in trouble. The victim previously had witnessed the defendant physically and verbally threaten to harm her mother. The defendant told the victim that he was going to take her to the home of one of her mother’s friends because he claimed that the victim’s mother was not at home.
Prior to meeting the victim at her school, the defendant had placed a telephone call to a friend of the victim’s mother. He explained that the victim’s mother was not at home and he wanted to bring the victim to the friend’s home after school. The friend agreed to care for the victim until her mother returned from work. The defendant took the victim to the friend’s home after his assault of the victim. Before the child got out of his vehicle, the defendant gave her $7.
The victim did not tell anyone what the defendant had done to her until several months later. In September 1998, the victim lived with her aunt temporarily. When the time approached for the victim to return to her mother’s home, the victim asked her aunt to permit her to stay. The aunt questioned the victim, who revealed that she was fearful that her mother would resume a relationship with the defendant. She told her aunt that she was afraid of the defendant and why. When the victim returned to her home, the victim and aunt told the victim’s mother of the defendant’s assault. The victim’s mother took the victim to the New Haven police department to report the incident.
On February 3, 1999, the defendant was due in court to respond to charges alleged in the assault information. On that date, while the victim was waiting to go into school, a man she knew as Cubano approached her. The victim recognized Cubano as the man who, in the past, had accompanied the defendant when he came to her home while the defendant was involved with the victim’s mother. The mother of the victim described Cubano as the defendant’s right-hand man, and the victim described Cubano as "like a brother" to the defendant. Cubano told the victim that if she said something when she went to court, he would kill her and her mother. He also gave her $25. During the school day, the victim was too afraid to tell anyone about the encounter; but when she got home, she reported the incident to her mother. The victim’s mother contacted the police.
Robert Williams, a New Haven police officer, responded to the complaint by going to the victim’s home. The victim explained her encounter with Cubano and described his clothing and appearance to Williams. The victim’s mother suggested that Cubano could be found at the defendant’s apartment. Williams then went to the address provided by the victim’s mother to look for a male known to the victim and to her mother as Cubano. Williams knocked on the door of the defendant’s apartment. The defendant opened the door and invited Williams inside. When he entered, Williams observed two men watching television. One of the men matched the description the victim had given of Cubano, including the clothes he was wearing. Williams asked the defendant if Cubano was present. The defendant said no and that he had never heard of Cubano. The defendant also told Williams that he had been in court that day and everything was settled. Until that moment, Williams had not known of any court appearance concerning the defendant. Williams inquired about the other two men in the apartment; the defendant replied that they were his friends who came to visit regularly. Williams pointed to the man who fit the victim’s description of Cubano and asked if he was Cubano. The defendant shook his head no and gestured to the two men not to speak to Williams.
Williams had conducted his interview in English, but at no time did the defendant indicate that he did not understand Williams. Another New Haven police officer, who is bilingual, joined Williams and repeated in Spanish what Williams had asked. Again, the defendant indicated that Cubano was not in the apartment. Because one of the two men fit the description of Cubano and the defendant denied that either of the men was Cubano, the officers obtained permission to bring the victim and her mother to the apartment for an identification. When the victim and her mother arrived, the officers escorted the three men, one by one, outside. The victim identified one of the men as Cubano, the man who had threatened her that day. The victim’s mother also identified Cubano. The victim and her mother also identified the defendant.
Cubano was charged with tampering with a witness and pleaded guilty to the charge. At the defendant’s trial, the defendant and the state stipulated that Cubano had pleaded guilty, and the stipulation was read to the jury.State v. Jimenez, 74 Conn.App. 195, 197-200, 810 A.2d 848, 852-53 (2002), cert. denied, 262 Conn. 947, 815 A.2d 677 (2003). The jury convicted the defendant of sexual assault in the first degree in violation of General Statutes § 53a-70(a)(2), sexual assault in the third degree in violation of General Statutes § 53a-72a (a)(1), kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A), risk of injury to a child in violation of General Statutes (Rev. to 1997) § 53-21(2), tampering with a witness on the theory of accessory liability in violation of General Statutes § § 53a-8(a) and 53a-151(a) and hindering prosecution in the second degree in violation of General Statutes § 53a-167. On May 25, 2001, the trial court imposed a total effective sentence of 27 years.
The petitioner appealed his convictions, which were affirmed in State v. Jimenez, supra, 74 Conn.App. 195. The petitioner then sought to collaterally attack his convictions in a prior habeas where he was represented by Attorney Jerald S. Barber and alleged ineffective assistance of trial counsel, Attorney Knight. That petition was denied following a trial on the merits in Jimenez v. Warden, Superior Court Judicial District of Tolland, Docket No. CV04-4004345 (Nazzaro, J., March 16, 2009). The petitioner took an appeal from the habeas decision, however, after counsel was allowed to withdraw, the matter was dismissed on delinquency grounds pursuant to a Court order on December 5, 2012. Jimenez v. Warden, AC 31766.
The petitioner commenced the present action on April 1, 2010. The Second Amended Petition filed on October 11, 2018, has three claims. The first alleges ineffective assistance against the petitioner’s prior criminal trial counsel; the second alleges ineffective assistance against prior habeas counsel; and the third raises a Due Process violation claim. The Respondent filed a return on November 5, 2018, generally denying the allegations, and also raising the special defenses of res judicata as to the claim of ineffective assistance of trial counsel and procedural default to the Due Process claim. (See, footnote 1.) The matter was tried before the Court on March 19, 2019. Further factual and procedural background will be provided as necessary throughout the body of this decision.
The petition originally contained a direct claim of ineffective assistance against trial counsel, Attorney Knight, however, the petitioner withdrew that claim prior to trial in the face of both the Court and Respondent raising the issue of res judicata . Counsel indicated that the allegations were only for factual reference to support the ineffectiveness claim against habeas counsel, except that paragraph 33, relating to counsel’s investigation of the motor vehicle involved in this matter, was withdrawn in its entirety. Prior to trial, the petitioner also withdrew the allegations in paragraph 36, which related to his claim of ineffectiveness against habeas counsel, and the entire claim of Due Process violation.
II. Law and Discussion
"The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must 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. Second, the defendant must show 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. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. 688. "[T]he performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances." Id. "Judicial scrutiny of counsel’s performance must be highly deferential. It is all to 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." Id., 689. "Thus, a court ... must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. [The petitioner] must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance ... [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id., 690.
Under the second prong of the test, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id., 691. "[A]ctual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." Id., 693. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. "The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 694. "An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification, ’ and the like." Id., 695. The court "must consider the totality of the evidence before the judge or jury." Id. "In its analysis, a reviewing court may look to the performance [1st prong or to the prejudice [2nd prong, and the petitioner’s failure to prove either is fatal to a habeas petition." (Internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011). In order to prove a claim of ineffectiveness against prior habeas counsel, "the petitioner [bears the] herculean task to prove in a second habeas, under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), (1) that his ... habeas counsel was ineffective, and (2) that his trial counsel was ineffective." (Internal quotation marks omitted.) Kaddah v. Commissioner of Correction, 324 Conn. 548, 562-63, 153 A.3d 1233, 1241-42 (2017).
The sole remaining claim in this petition is that prior habeas counsel was ineffective for failing to allege and prove that trial counsel was ineffective for having failed to call an expert in the area of child sexual assault for the purpose of providing the jury with information on psychological markers that could have made a statement by a child claiming to have been the victim of sexual assault more or less likely to be truthful. The petitioner has failed to prove that either habeas or trial counsel’s performance was deficient. Id.
First, Attorney Barber did not testify in this matter. "It is well established that [a] reviewing court must view counsel’s conduct with a strong presumption that it falls within the wide range of reasonable professional assistance and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time." Boyd v. Commissioner of Correction, 130 Conn.App. 291, 297-98, 21 A.3d 969, 974, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011). While the Court does not insinuate that the testimony of prior counsel is mandatory in every claim of ineffective assistance, the absence of that testimony in the present case makes it impossible for the Court to assess the reasonableness of prior habeas counsel’s decision to pursue the claims he did, instead of the claims that were raised and litigated. Said another way, without prior habeas counsel, there is no evidence about whether he was able to find any expert willing to testify in support of such a claim, or whether he even considered such a claim. There is also no evidence about what, if any, conversations Attorney Barber had with Attorney Knight on the issue of an expert witness or her trial tactics generally. Without any evidence before this Court on the information Attorney Barber possessed, or as to the basis for his decision not to pursue these claims, the petitioner is unable to overcome the presumption that his decision to do so was based on sound and informed legal judgment. Id. Therefore, the petitioner has failed to prove deficient performance or prejudice as to the allegations against Attorney Barber. "In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner’s failure to prove either is fatal to a habeas petition." (Internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).
Additionally, the petitioner offered nothing to contradict the testimony from Attorney Knight that it was not common practice for defense counsel at the time of this trial in 2001 to hire or present their own expert witnesses in child sexual assault cases, as opposed to simply eliciting information through cross examination of the State’s expert. She also testified that she was familiar with the tactics of cross examining State’s experts in the field of child sexual assault and that she used those tactics at the petitioner’s criminal trial. Further, while the petitioner’s expert testified to certain protocols that should be used in interviewing children who are suspected as having been victims of sexual assault, she admitted that Connecticut did not adopt any such standardized protocol until 2007, six years after the petitioner’s trial. Finally, the petitioner could offer nothing as to how the information he could have obtained if Attorney Knight had called her own expert witness would have been materially different from the information she was able obtain through obtaining admissions from the State’s expert on cross examination. Therefore, the Court also finds that the petitioner has failed to prove both deficient performance and prejudice as to Attorney Knight. Hall v. Commissioner of Correction, supra, 124 Conn.App. at 783.
III. Conclusion
Based on the foregoing, the petition for writ of habeas corpus is DENIED.