Opinion
No. CV03-0003960 S
November 29, 2004
MEMORANDUM OF DECISION
On May 15, 2003, the petitioner filed a pro se petition for a writ of habeas corpus, which was amended on April 30, 2004. The amended petition raises a single claim, namely ineffective assistance of trial counsel, though the claim alleges two distinct ways that counsel's performance was deficient. First, counsel allegedly failed to adequately investigate petitioner's case and refused petitioner's request to investigate petitioner's case. Second, allegedly counsel inadequately and incorrectly informed the petitioner regarding the sentence and resultant consequences.
The amended petition claims that, as a result of these deficiencies, the petitioner's conviction was obtained in violation of due process of law under the Fifth and Fourteenth Amendment to the United States Constitution and Article 1, Section 8 and 9 of the Connecticut Constitution, as well as in violation of the constitutional guarantees to effective assistance of counsel under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 8, of the Connecticut Constitution.
The respondent's return denies the claims of ineffective assistance of counsel and raises the affirmative defense that the petitioner is procedurally defaulted from raising the claims asserted in this petition.
The matter came before the court on August 19, 2004, for a trial on the merits. The petitioner, his former trial counsel Attorney Gerald Barber, and inmate David Bridges testified at the trial. Additionally, the court received several court records and transcripts into evidence.
The court has reviewed all of the testimony and evidence and makes the following findings of fact. For the reasons set forth more fully below, the petition shall be denied.
FINDINGS OF FACT CT Page 17999
1. The petitioner was charged in docket number CR99-484232, Judicial District of New Haven, by way of a long-form information, dated October 22, 2001, with two counts of Aiding Aggravated Sexual Assault in the First Degree in violation of General Statutes §§ 53a-8 and 53a-70a(a)(4), two counts of Aiding Sexual Assault in the First Degree in violation of General Statutes §§ 53a-8 and 53a-70(a)(1), one count of Conspiracy to Commit Sexual Assault in the First Degree in violation of General Statutes §§ 53a-48 and 53a-70(a)(1), one count of Sexual Assault in the Third Degree in violation of General Statutes § 53a-72a(a)(1)(A), one count of Aiding Sexual Assault in the Third Degree in violation of General Statutes §§ 53a-8 and 53a-72a(a)(1)(A), one count of Aiding Burglary in the First Degree in violation of General Statutes §§ 53a-8 and 53a-101(a)(2), and one count of Aiding Kidnapping in the Second Degree in violation of General Statutes §§ 53a-8 and 53a-94.2. According to the factual recitation provided by the prosecutor, the foregoing charges resulted from an investigation conducted by the Connecticut State Police Major Crime Squad of "a complaint of a sexual assault of a female prisoner . . . The victim advised police that following her appearance at the Derby courthouse she was handcuffed and placed into the rear of a prisoner holding area in the Sheriff's van to be transported to New Haven. She was handcuffed in front of her body. En route from Derby the van stopped at Milford where the [petitioner] . . . was picked up as well as co-defendants Hubert Plummer and Marcus Gregory and David Bridges. Those four individuals were placed on the same side of the van as the victim. However, [they] were placed in a separate compartment from where the victim was which was basically a metal gate. The rear interior of the Sheriff's van . . . actually contained three separate compartments. One solid metal wall divided the back of the van in half running from the rear of the compartment to the front. This resulting half section on the passenger's side was further divided in half by a metal gate . . . [t]hat runs perpendicular to the solid wall. This metal gate locked shut with metal rods and was open and closed by a latch located on the exterior of the van. It was designed to basically separate one half of that side from the other. That metal gate also had holes in it as well. The compartment that separated the solid metal wall on the driver's side contained thirteen other male inmates. The van left the Milford courthouse. One of the four black male subjects that was placed on the same side of the van as the victim began yelling sexually provocative and threatening remarks to the victim through the hole. That individual would have been identified at trial as the . . . Marcus Gregory. The victim then began yelling for the Sheriffs driving the van before inmates, according to the victim, then began to kick violently at the metal gate, ultimately succeeding in forcing the gate open which separated them from the victim. The four inmates then rushed into the compartment where the victim was, those being Marcus Gregory, [the petitioner], Hubert Plummer and David Bridges. [The petitioner] and Mr. Plummer were handcuffed together with one — each having an arm free. Mr. Gregory and Mr. Bridges were handcuffed together, each of them having a hand free. All four began forcibly grabbing at the victim, touching her breasts, buttocks and elsewhere . . . Gregory pulled up the victim's shirt, yanking at her bra, and pulled it above her breasts. He then began to pull down her pants with the assistance of Mr. Bridges. Mr. Plummer and [the petitioner] continued to grab at the victim's breasts. [The petitioner], according to the victim, placed his penis up against her face, striking her with it as she would indicate, ultimately ejaculating on her hair, her glasses and on her shirt. Mr. Bridges and Mr. Gregory continued to struggle with the victim. Mr. Bridges ultimately inserted his finger into the victim's vagina and rectum. Mr. Gregory placed the victim in a headlock, grabbed her by the neck, bent her over at the waist and penetrated her both vaginally and in the rectum with his penis. During the entire episode obviously the victim, there would be testimony, had been crying and trying to scream. The four prisoners thereafter went . . . back to their compartment and shut the gate. When the van arrived . . . the victim immediately told personnel that she had been sexually assaulted by the four inmates in the adjacent compartment. Authorities observed what looked like semen dripping from her hair and glasses, seized the clothing of all four co-defendants, [the petitioner], Mr. Gregory, Mr. Bridges and Mr. Plummer.
Blood samples were taken as well for testing. DNA testing at the State Lab demonstrated that, among other things, semen stains belonging to the [petitioner] were present on the victim's clothing, on clothing belonging to co-defendant David Bridges as well as on the victim's hair and glasses, that being [the petitioner's] DNA. Mr. Gregory's trousers contained a stain consistent with fecal material as well as containing Mr. Gregory's saliva and saliva from that of Mr. Bridges. Mr. Gregory's pants as well contained, on the rear, a red substance which DNA testing confirmed belonged to the victim in this matter. While processing the Sheriff's van the police also determined that the metal rods used to secure the metal gate in place separating the two compartments had been bent back as the result of the [petitioner's] forceful kicking." Pet'r Ex. 1, at 3-5.
3. On December 11, 2001, the petitioner entered guilty pleas under the Alford doctrine to two counts of Aiding Aggravated Sexual Assault in the First Degree in violation of General Statutes §§ 53a-8 and 53a-70a(a)(4), one count of Conspiracy to Commit Sexual Assault in the First Degree in violation of General Statutes §§ 53a-48 and 53a-70(a)(1), one count of Aiding Sexual Assault in the Third Degree in violation of General Statutes §§ 53a-8 and 53a-72a(a)(1)(A), and one count of Aiding Burglary in the First Degree in violation of General Statutes §§ 53a-8 and 53a-101(a)(2).
North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (accused may consent voluntarily, knowingly and understandingly to imposition of prison sentence even while refusing to admit participation in crime).
4. The court (Fasano, J.) conducted a thorough canvass of the petitioner and found the pleas to be voluntary and understandingly made with the assistance of competent counsel. The court's canvass included questions posed to both the petitioner and his attorney regarding their understanding of the sentences to be imposed in accordance with the plea agreement. The total effective sentence, according to this agreement, was to be for fifteen years to serve followed by ten years special parole. Both the petitioner and Attorney Barber indicated their understanding that the plea agreement corresponded with the terms indicated by the court during the canvass. The court advised the petitioner that he faced a maximum term of eighty-five years and $65,000.00 in fines for the five counts pleas were entered on.
The following noteworthy colloquy transpired between the court and the petitioner:
THE COURT: Are you pleading voluntarily and of your own free will?
MR. JOHNSON: Yes, your Honor.
THE COURT: Has anybody forced or threatened you in any respect to compel you to enter these pleas?
MR. JOHNSON: I'm — Well, the prosecutor is forcing me to take it but I'm gonna take it anyway.
THE COURT: Well, . . . by forcing I don't mean force by reason of either taking a plea or going to trial. I mean any physical threats or anything.
MR. JOHNSON: If I took it to trial, your Honor, I would face a hundred years so I'm not gonna take it to trial and jeopardize myself from being away from my children. I'm gonna do that but if this is going to work out . . . for me to get out and spend time with my children I'll take the time[.]
THE COURT: In other words, has anybody forced or threatened you in any way to compel you to enter the plea? I don't mean by saying that you'd have to go to trial.
MR. JOHNSON: I still say the prosecutor is forcing me into taking it . . . but no. CT Page 18007
THE COURT: Of course you are going to trial if you are not accepting the plea.
MR. JOHNSON: No. No, your Honor. No one is forcing me into it.
THE COURT: Have you had a chance to discuss with your attorney the elements of the charges and the evidence the State claims to have? The nature of the charges. The elements of the charges and the evidence the State claims to have.
MR. JOHNSON: Yes, your Honor. I have.
THE COURT: All right. You understand the elements and the evidence. Counsel, are you satisfied the defendant understands the elements of the offenses and the evidence the State claims to have?
MR. BARBER: Yes, I am, your Honor.
Pet'r Ex. 1, at 6.
5. On February 15, 2002, the court imposed the following sentences: on the first count of Aiding Aggravated Sexual Assault in the First Degree, ten years to serve; on the second count of Aiding Aggravated Sexual Assault in the First Degree, five years consecutive followed by ten years special parole; on the charge of Conspiracy to Commit Sexual Assault in the First Degree, fifteen years concurrent; on the charge of Aiding Sexual Assault in the Third Degree, five years concurrent; on the charge of Aiding Burglary in the First Degree, ten years concurrent. The total effective sentence imposed was fifteen years to serve followed by ten years special parole.
The court notes that there is a discrepancy, based solely on the plea and sentencing transcripts, on the offenses pleaded to and sentenced on. A copy of the judgment mittimus was not entered into evidence. However, counsel for the respondent attached, in accordance with Practice Book § 23-30(a), a copy of the judgment mittimus for docket number CR99-484232 to the return. The court will resolve any discrepancy between the transcripts by relying on said mittimus, which both conveys the sentencing court's order to the warden and establishes the warden's lawful custody over the petitioner.
6. The petitioner originally was represented by Attorney Donald Dakers in the underlying criminal matter. Attorney Dakers provided the petitioner with copies of police reports and witness statements, including statements by the victim and other inmates. Attorney Dakers was replaced by Attorney Barber sometime during the summer of 2000. While Attorney Barber did not hire a private investigator and did not speak with the witnesses. Attorney Barber received copies of the police reports and witness statements. Attorney Barber met with the petitioner and discussed the contents of the reports and statements with the petitioner and reviewed the police reports. After receiving the DNA results, which indicated that the petitioner's semen was present on the victim's clothing, hair and glasses, as well as on clothing belonging to co-defendant David Bridges, the petitioner admitted his involvement in the offenses to Attorney Barber.
Attorney Dakers is not the subject of any ineffective assistance of counsel claims in the instant petition.
7. According to the petitioner's testimony on direct examination at the habeas corpus trial, Attorney Barber told the petitioner that the state was not willing to offer less than fifteen years to serve to resolve the matter via a plea agreement. The petitioner informed Attorney Barber that he wanted less than fifteen years. The petitioner also testified that he did not know that he would get a fifteen-year sentence; instead, the petitioner thought he would receive a ten-year sentence. Nevertheless, the petitioner testified toward the end of the direct examination that he knew he was going to get fifteen years at sentencing. The petitioner further testified that he never wanted to go to trial in this matter and that if he had gone to trial, he would have won. Lastly, the petitioner testified that although he asked Attorney Barber about the withdrawal of his plea, he never advised his counsel that he wanted to withdraw his plea under Alford.
8. Attorney Barber testified that he went over the police reports and witness statements with the petitioner. Additionally, Attorney Barber went over the charges and explained the offense elements to the petitioner. Attorney Barber explained what it meant to aid in committing a sexual assault as well as the other offenses. Attorney Barber also explained special parole to the petitioner. According to Attorney Barber, the petitioner, who was very knowledgeable about the court system, was an intelligent client who understood what was being communicated to him. Attorney Barber had no doubt that the petitioner understood that the plea agreement was for fifteen years to serve followed by ten years special parole.
9. The petitioner did not seek to withdraw his pleas and did not file an appeal. Attorney Barber testified that he could think of no reason why the petitioner would pursue an appeal.
DISCUSSION OF LAW
"The object of an ineffectiveness claim is not to grade counsel's performance . . . Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result." Strickland v. Washington, 466 U.S. 668, 697, reh. denied, 467 U.S. 1267 (1984). "A convicted defendant's claim that counsel's assistance was so defective as to require reversal of the conviction . . . has two components. First, the petitioner 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." Id., at 687. "[T]he defendant must show that counsel's representation fell below an objective standard of reasonableness. The proper measure of attorney performance remains simply reasonableness under prevailing professional norms . . . In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id., at 688.
"Second, the petitioner 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." Id., at 687. "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., at 694. "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." Id., at 687.
"Although Strickland applies generally to the evaluation of whether ineffective assistance of counsel during criminal proceedings has infringed on a petitioner's constitutional rights, the United States Supreme Court has articulated a modified prejudice standard for cases in which the conviction has resulted from a guilty plea. See Hill v. Lockhart, 474 U.S. 52 (1985). Hill requires the petitioner to demonstrate that he would not have pleaded guilty, that he would have insisted on going to trial, and that the evidence that had been undiscovered or the defenses he claims should have been introduced were likely to have been successful at trial." Copas v. Commissioner, 234 Conn. 139, 151 (1995).
"The Hill court also stated that the petitioner must show that such a decision to plead not guilty would have been based on the likelihood that the introduction of the evidence or the defense that was not identified because of ineffective assistance of counsel would have been successful at trial. The court stated that in many guilty plea cases, the prejudice inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial." Id., 156.
The respondent has raised, in accordance with Practice Book § 23-30(b), the affirmative defense of procedural default as to both claims asserted in the amended petition. "The 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. The 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. Because cause and prejudice must be established conjunctively, . . . [a] claim [may be disposed] if the petitioner fails to meet either prong.
"Cause turns on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule. 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." (Internal citations and quotation marks omitted.) Thorpe v. Commissioner Of Correction, 73 Conn.App. 773, 780, 809 A.2d 1126 (2002).
In Barile v. Commissioner of Correction, 80 Conn.App. 787, 789, 837 A.2d 827 (2004), cert. denied, 268 Conn. 915, 847 A.2d 310 (2004), "[t]he petitioner sought habeas corpus relief, alleging that his guilty plea was not made knowingly, intelligently and voluntarily because he was denied the effective assistance of counsel due to counsel's failure to obtain copies of the victims' statements for him to read."
"The petitioner [in Barile] ha[d] challenged his sentence for the first time in his amended habeas petition. He did not file a direct appeal and did not file a motion to correct his sentence pursuant to Practice Book § 43-22. The petitioner could have filed such a motion at any time, including the present. See Cobham v. Commissioner of Correction, 258 Conn. 30, 39, 779 A.2d 80 (2001). Furthermore, the record does not reveal that the petitioner ever filed a motion to withdraw his guilty plea or to challenge his sentence." Barile v. Commissioner of Correction, supra, 80 Conn.App. 789-90.
It is clear that under Practice Book § 39-27, the "grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance [include] . . .: (2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed; (3) The sentence exceeds that specified in a plea agreement which had been previously accepted . . .; [and] (4) The plea resulted from the denial of effective assistance of counsel."
"In habeas proceedings, it has become axiomatic that a petitioner may not raise collaterally though a habeas proceeding issues that could have been raised on direct appeal. See Bowers v. Commissioner of Correction, 33 Conn.App. 449, 450-51, 636 A.2d 388, cert. denied, 228 Conn. 929, 640 A.2d 115 (1994). Here, the petitioner made no allegations in his pleading and offered no evidence to prove that he was unable to avail himself of Practice Book § 39-27(4), which permits a defendant to seek to withdraw a guilty plea on the ground of ineffective assistance of counsel. The allegation in the petition that the petitioner did not deliberately bypass the remedy of an appeal is merely a conclusory statement. Without evidentiary support, such a statement is an inadequate shield against the application of the rule of procedural default embedded in the cause and prejudice standard applicable to habeas petitions. Cf. Johnson v. Commissioner of Correction, 218 Conn. 403, 422, 589 A.2d 1214 (1991)." Gray v. Commissioner of Correction, 84 Conn.App. 515, 518, 854 A.2d 45, cert. denied, 271 Conn. 930 (2004).
The petitioner's claim that counsel inadequately and incorrectly informed the petitioner regarding the sentence and resultant consequences is, in fact, a claim that falls within the ambit of Practice Book § 39-27. The petitioner has shown neither cause for the procedural default nor actual prejudice resulting from the claimed error. Consequently, and based on the foregoing, the court finds the claim that Attorney Barber inadequately and incorrectly informed the petitioner regarding the sentence and resultant consequences to be procedurally defaulted. Barile v. Commissioner of Correction, supra, 80 Conn.App. 789-90.
As to the claim that Attorney Barber was deficient in investigating the underlying case, "[w]hile it is incumbent on a trial counsel to conduct a prompt investigation of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction, counsel need not track down each and every lead or personally investigate every evidentiary possibility. In a habeas corpus proceeding, the petitioner's burden of proving that a fundamental unfairness had been done is not met by speculation, but by demonstrable realities. One cannot successfully attack, with the advantage of hindsight, a trial counsel's trial choices and strategies that otherwise constitutionally comport with the standards of competence." Torres v. Commissioner of Correction, 84 Conn.App. 561, 566-67, 854 A.2d 97 (2004), quoting Ostolaza v. Warden, 26 Conn.App. 758, 765, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).
The petitioner has presented no evidence that takes his claim out of the realm of speculation and makes it a demonstrable reality. Stated differently, the petitioner has not shown in this habeas proceeding that there was — or is — any exculpatory evidence. The petitioner has additionally failed to show that he would have decided to plead not guilty, that he would have insisted on going to trial, and that such decision "would have been based on the likelihood that the introduction of the evidence or the defense that was not identified because of ineffective assistance of counsel would have been successful at trial." CT Page 18006 Copas v. Commissioner of Correction, supra, 234 Conn. 156.
The petitioner persists in maintaining his opinion that the fact that he did not "touch" the victim has some bearing on his convictions. To this end, the petitioner called Mr. Bridges as a witness before this court and submitted an affidavit sworn to Mr. Bridges. The testimony and affidavit attest to the fact that the petitioner did not touch the victim.
The court notes that none of the petitioner's convictions require that he touched the victim or sexually assaulted her. As General Statutes § CT Page 18008 53a-8(a) indicates, "A person, acting with the mental state required for the commission of an offense, who . . . importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender." Furthermore, the forensic evidence established that the petitioner's semen was present on the victim's clothing, hair and glasses, as well as on clothing belonging to co-defendant David Bridges. The victim, who was prepared to testify had the matter gone to trial, reported that the petitioner grabbed her breasts and placed his penis up against her face and struck her with it.
Accordingly, judgment shall enter denying the petition for a writ of habeas corpus.
S.T. FUGER, JR., JUDGE