Opinion
No. TSR CV04 4000088-S
April 30, 2007
MEMORANDUM OF DECISION
Petitioner, Aquil Kamal, alleges in his petition for a writ of habeas corpus, amended on August 30, 2006, that he was denied the effective assistance of trial counsel in violation of the sixth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution. Respondent denies petitioner's claims and avers that counsel's representation was within the constitutional mandate.
Petitioner initially had two open habeas petitions under docket numbers CV 04 4000185 and CV 04 4000088. The cases were consolidated, with docket number CV 04 4000088 as the controlling file.
The matter came before the court in February 2007, for a trial on the merits. Witnesses included petitioner, Thomas Farver, Heather Abel and Dennis Harrigan. The court finds the testimony of Farver, Abel and Harrigan to be highly credible and the testimony of petitioner to be generally not credible. The court has reviewed and considered the testimony, the exhibits and the parties' closing arguments. After applying the law to the facts, judgment enters denying the petition for a writ of habeas corpus.
Neither party filed a memorandum of law.
FINDINGS OF FACT
Petitioner was the defendant in a criminal case pending in the Superior Court, geographical area #2, Docket Number CR03-0195127, in which he was charged with the crimes of sale of narcotics by a non drug dependent person in violation of Gen. Stat. § 21a-278(b); sale of narcotics in violation of § 21a-277(a); sale of narcotics within 1500 feet of a school in violation of § 21a-278a(b); and possession of narcotics, in violation of § 21a-279(a). Petitioner was arrested for these offenses on December 3, 2003.
At all relevant times, petitioner was represented by Attorney Heather Abel. Abel was admitted to the Connecticut bar in 1993. Since that time she has been continuously employed as an assistant public defender. For the past seven years, Abel has been assigned to geographical area #2 and prior to that she was assigned for six years to geographical area #6. Since her admission to the bar, Abel has tried five jury cases and one court case to verdict.
At the outset of her representation of petitioner, Abel filed a motion for discovery and obtained copies of the police reports filed by the investigating officers. After receiving these reports, Abel provided copies to the petitioner so that he could familiarize himself with the state's case. Thereafter on numerous occasions prior to the trial, Abel and petitioner discussed the state's evidence, various defense strategies and the several plea bargains offered by the state. Ultimately petitioner rejected all of the state's offers and the matter went to trial over two days in May 2004.
Abel was aware from petitioner's criminal history that he was a drug user, however, there was no indication in his criminal history that petitioner had a drug dependency. Moreover, at no time during Abel's representation of petitioner did he tell her that he was drug dependent. As a result Abel did not seek a substance abuse evaluation of petitioner and at trial Abel never introduced any evidence of drug dependency.
Petitioner had a pending September 2003 arrest for possession of a glassine pipe. Petitioner also had a prior conviction for sale of narcotics.
Throughout Abel's representation of petitioner, petitioner consistently maintained that he was not the person who sold narcotics to an undercover police officer on December 3, 2003, and that the police were mistaken as to the identity of the seller. Petitioner provided Abel with the names and addresses of two individuals, Reginald Carr and Barbie Colbert, who he claimed were with petitioner on the day of the offense and would act as alibi witnesses. Petitioner further advised Abel that he had filed a civil rights lawsuit against the Bridgeport police in the United States District Court and as a result they had a bias against him. In his lawsuit, petitioner alleged the use of excessive force by members of the Bridgeport police while effectuating a prior arrest of petitioner.
Based on petitioner's disavowal of the state's allegations that he was the individual who sold the narcotics, Abel employed a defense of mistaken identity. The state's evidence showed that a black man in the company of a hispanic female sold a small quantity of cocaine to undercover police officer Joe Curley. Immediately after the transaction, the seller and the female left the location of the sale and entered a multi family house nearby. Approximately ten minutes later, petitioner and a black female exited from the multi family residence and petitioner was immediately arrested. No drugs or drug paraphernalia or other indicia of drug selling or drug usage were found on petitioner. Found in petitioner's front pants pocket, however, was a twenty dollar bill which Curley had marked in the area of the serial number before giving it to the drug seller. Although during the drug transaction there was a surveillance team nearby, the actual exchange of money and narcotics took place out of sight of the surveillance officers. Thus Curley was the state's only eyewitness to the actual transaction.
In cross examination and at closing argument, Abel brought out various inconsistencies and discrepancies between the testimony of the police officers about their observations and actions on December 3, 2003, and their subsequent written reports. These discrepancies included the fact that the time noted in the police report as to petitioner's arrest predated the alleged time of the drug sale; that there were differences in the seller's appearance and apparel from petitioner's appearance and apparel at the time of petitioner's arrest; that the serial number recorded in the police report differed from the serial number of the bill in evidence; and that the race of the female accompanying the seller and the race of the female accompanying petitioner were different. Abel also brought out the fact that although the police claimed they routinely xeroxed drug "buy" money prior to a sting, in petitioner's case no xerox copy could be found. Abel also argued these same points in closing argument.
The habeas court was not provided with a copy of the transcript of the entire trial. Therefore, in light of the fact that Abel argued these discrepancies without objection, the court assumes that these deficiencies in the state's case were adduced from the evidence introduced at the criminal trial.
Petitioner did not testify in his defense. Abel believed that it would not be in petitioner's best interest to testify. Prior to his arrest in the sale case, petitioner had been arrested on at least ten prior occasions. Thus Abel was concerned that if petitioner testified, the state would impeach his credibility with his extensive prior criminal history which included a prior conviction for sale of narcotics. Abel discussed with petitioner the pros and cons of his testimony and also informed him that she did not want to call him as a witness. Petitioner never indicated to Abel that he desired to testify and seemed to understand the rationale as to why he should not testify.
The court does not credit petitioner's testimony that he told Abel he wanted to testify.
At the conclusion of the evidence, the jury convicted petitioner of all four counts charged in the information. Thereafter the trial court merged the conviction of sale of narcotics with the conviction of sale of narcotics by a non drug dependent person. At sentencing Abel argued for a minimal sentence citing the small quantity of narcotics seized, the difficulties in petitioner's life, his intelligence and his work history. In its sentencing remarks, the court noted petitioner's history indicated prior drug usage on his part and petitioner refused to take responsibility for the commission of this offense. Thereafter the court committed petitioner to the custody of the commissioner of corrections, for a total effective sentence of fifteen years execution suspended after nine years and probation for three years.
General Statues § 21a-278(b) carries a mandatory minimum sentence of five years to serve which is non suspendable. Section 21a-278a(b) carries a mandatory minimum sentence of three years to serve which is non suspendable and required to be served consecutive to any sentence imposed for a conviction of § 21a-278(b).
At the habeas trial petitioner reiterated his claim that he never sold drugs to the under cover officer.
Additional facts will be discussed as necessary.
DISCUSSION
For a petitioner to prevail on a constitutional claim of ineffective assistance of counsel, he must satisfy both parts of the test set forth by the United State Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first part of the test, known as the performance prong, requires proof that counsel's representation fell below an objective standard of reasonableness. Id., 687-88. "Competent representation is not to be equated with perfection. The constitution guarantees only a fair trial and a competent attorney; it does not ensure that every conceivable constitutional claim will be recognized and raised . . . 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 . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 798-99, cert. denied, 268 Conn. 907, cert. denied, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).
The second prong of the test, known as the prejudice prong, requires "showing that counsel's errors were so serious as to deprive the defendant of a fair trial." Strickland v. Washington, supra, 466 U.S. 687. "It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings . . . Rather, [t]he [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. A reasonable probability is a probability sufficient to undermine confidence in the outcome . . . When a [petitioner] challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." (Internal quotation marks omitted.) Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 799.
Petitioner raises an inordinate number of claims in the amended petition. Three claims were withdrawn at the habeas trial. Petitioner failed to present evidence in support of five other claims, all of which are deemed abandoned by this court. As for the rest of petitioner's claims, each will be addressed below.
It is apparent "that the [petitioner] has launched a wholesale attack on every aspect of [his defense] . . . This torrent of claimed error . . . serves neither the ends of justice nor the [petitioner's] own purposes as possibly meritorious issues are obscured by the sheer number of claims that are put before [the court].
"Legal contentions, like the currency, depreciate through over-issue . . . Multiplicity hints at lack of confidence in any one [issue] . . . [M]ultiplying assignments of error will dilute and weaken a good case and will not save a bad one . . ." (Citations omitted; internal quotation marks omitted.) State v. Pelletier, 209 Conn. 564, 566-67 (1989).
¶¶ 7(h)(i) and (m).
¶ 7 (c) no evidence was introduced concerning the motion to suppress; ¶ 7 (d) no evidence was introduced that Abel failed to file a motion to dismiss count two of the information; ¶ 7(l) no evidence was introduced that Abel failed to object to the admission of the $ 20 bill and a xerox copy of the bill; ¶ 7 (t) no evidence was introduced that Abel failed to file a motion for production of exculpatory evidence; and ¶ 7(u) no evidence was introduced that Abel failed to file a motion to produce tape recordings.
I. Claims concerning petitioner's drug dependency
¶¶ 7(a), (f), (g), (j), (w), (y) and (z).
The amended petition contains multiple allegations involving petitioner's drug dependency. All of these allegations, however, essentially boil down into two: (1) that Abel did not seek a substance abuse evaluation of petitioner and (2) that Abel failed, in one way or another, to use evidence of petitioner's drug dependency in his defense.
"Effective assistance of counsel imposes an obligation [on] the attorney to investigate all surrounding circumstances of the case and to explore all avenues that may potentially lead to facts relevant to the defense of the case . . . Because a defendant often relies heavily on counsel's independent evaluation of the charges and defenses, the right to effective assistance of counsel includes an adequate investigation of the case to determine facts relevant to the merits or to the punishment in the event of conviction." (Citation omitted; internal quotation marks omitted.) Williams v. Commissioner of Correction, 100 Conn.App. 94, 102-03 (2007). Counsel is not required, however, to "track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it." (Internal quotation marks omitted.) Ricks v. Commissioner of Correction, 98 Conn.App. 497, 502 (2006), cert. denied, 281 Conn. 907 (2007).
Petitioner was charged with sale of narcotics by a non drug dependent person under Gen. Stat. § 21a-278(b). Evidence of drug dependency is an affirmative defense to this crime. Attorney Thomas Farver testified at the habeas trial as an expert witness in the field of criminal defense practice. Farver testified that if a client informs an attorney that the client is drug dependent, an attorney should have the client examined for evidence of dependency or conduct an investigation to determine if there is corroborating evidence of this issue. In Farver's opinion such evidence could possibly be used by the defense during pre trial negotiations, at trial to show drug dependency or in mitigation at sentencing.
General Statutes § 21a-269 provides:" . . . [I]n any action or proceeding brought for the enforcement of any provision of this part, it shall not be necessary to negative any exception, excuse, proviso or exemption contained in said section, and the burden of proof of any such exception, excuse, proviso or exemption shall be upon the defendant." See also State v. Hart, 221 Conn. 595, 609 (1992) ("Section 21a-278(b) requires the defendant to carry the burden of persuading the jury by a preponderance of the evidence that he or she is drug-dependent).
Abel testified at the habeas trial that she did not seek a substance abuse evaluation of petitioner because he never told her that he was drug dependent and there was no evidence of drug dependency in petitioner's criminal history. Petitioner testified to the contrary, stating that he informed Abel that he was drug dependent. The court does not credit petitioner's testimony. "The habeas court judge, as the trier of the facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) Nieves v. Commissioner of Correction, 92 Conn.App. 534, 536 (2005), cert. denied, 277 Conn. 903 (2006). Without any indication that petitioner had a problem, Abel could not reasonably be expected to inquire about an evaluation or pursue a trial strategy using drug dependency in petitioner's defense.
Moreover Abel testified at the habeas trial that she believed evidence of drug dependency would not have helped petitioner. First, Abel believed that evidence of drug dependency would not have been helpful during the pre trial process in that it is the Bridgeport state's attorney's office policy to refuse to plea bargain Gen. Stat. § 21a-278(b) charges in all cases of undercover sales. Thus notwithstanding defense evidence of drug dependency, the Bridgeport state's attorney's office would not substitute a charge of sale of narcotics in violation of § 21a-277(a) for a charge of sale of narcotics by a non drug dependent person in violation of § 21a-278(b).
Abel also did not believe that evidence of drug dependency would have been helpful to petitioner at trial in that if the jury rejected the defense of drug dependency, the jury's knowledge of petitioner's drug usage may have tended to prejudice the jury against petitioner. Additionally such evidence would have undermined the mistaken identity defense in that the jury may very well have concluded if petitioner was involved with drugs as a user, then he likely was the seller in this case. Further even if the jury believed any drug dependency evidence and acquitted petitioner of § 21a-278(b), he may well have been convicted as a second offender of § 21a-277(a) and his maximum exposure would have been greater than if he was convicted of § 21a-278(b). On the other hand, if petitioner was convicted by the jury of both offenses — as he was in this case — the court would merge the § 21a-277(a) conviction into the § 21a-278(b) conviction and his maximum exposure would have been less. For many of these same reasons, Abel decided against seeking a consolidation in one trial of petitioner's September 2003 possession of paraphernalia charge with the sale of narcotics charges.
Petitioner had a prior conviction for possession of narcotics. The maximum penalty for a second conviction of Gen. Stat. § 21a-277(a) is thirty years, while the maximum penalty for Gen. Stat. § 21a-278(b) is twenty years.
Prior to his arrest for the offenses which are the subject of this habeas action, petitioner was arrested in September 2003 for possession of drug paraphernalia. At the time of petitioner's criminal trial, this matter was still pending in geographical area #2, Docket Number CR03-193008. This court does not credit petitioner's testimony that he asked Abel to consolidate his charges.
Given what Abel knew at the time of petitioner's trial, the court finds that her performance was well within the constitutional mandate. In addition, the court agrees with Abel's assessment of how the issue of drug dependency could have affected petitioner's case. There is nothing in the record evidencing a reasonable probability that, had Abel used information concerning petitioner's drug dependency during trial or moved to consolidate petitioner's two files, the outcome of the trial would have been different. Petitioner's claim therefore fails on both parts of the Strickland test.
Petitioner additionally claims that Abel should have used evidence of his drug dependency to mitigate his sentence. As previously stated, the court finds that petitioner never informed Abel that he was drug dependent. It appears from the sentencing transcript that there was information in the pre sentence investigation report (PSI) about petitioner using substances; however, that information was limited and does not support a conclusion that petitioner was drug dependent at the time of the crime. Sentencing Transcript, August 17, 2004, p. 8. At the habeas trial petitioner testified that he told the probation officer who prepared the PSI he was drug dependent. The probation officer, however, was never called to testify. Moreover, the court finds not credible petitioner's testimony that he informed the probation officer of his dependency.
Abel did state on the record at sentencing that there was an indication in the PSI concerning possible substance abuse issues. Sentencing Transcript, p. 4. It appears to the court that Abel did the best she could for petitioner given the information that she had. The trial transcript shows that petitioner conferred with Abel during the sentencing hearing and had a chance to address the court. If there was anything that petitioner wanted to add concerning his drug use, therefore, he could have done so at those times.
Based on the foregoing, the court finds that Abel was not ineffective for failing to obtain a drug dependency evaluation of petitioner. Petitioner's claim, therefore, fails to satisfy the first part of the Strickland test.
II. Claims concerning petitioner's civil rights complaint
¶¶ 7(a), (k), (s) and (v).
Petitioner next claims that Abel failed to investigate the civil rights complaint that he filed against the Bridgeport police department and certain named officers. Petitioner further claims that Abel should have used the complaint in cross examining state's witnesses and in presenting evidence of bias against him.
Petitioner's claim that Abel failed to investigate his civil rights complaint is wholly without merit. Abel testified credibly at the habeas trial that she and her investigator followed up on the information provided to them by petitioner. After several trips to the District Court clerk's office, Abel obtained a copy of the documents contained in petitioner's federal court file. These documents showed that in 1999, petitioner had filed a civil rights complaint against the Bridgeport police department and Officers Lamaine, Long, Montagna, Stolze, Gonzalez, Morgan and Tillson. Other documents showed that sometime in 2000, this lawsuit was dismissed for failure of the petitioner to prosecute. To follow up on this issue of the lawsuit, Abel spoke to the Bridgeport City Attorney. The City Attorney indicated that she had filed an answer to petitioner's federal complaint but had never gone to court to defend the case inasmuch as the case had been dismissed sua sponte. The City Attorney further indicated that she had not informed any of the defendant officers of the pendency of the suit, that she had never spoken to any of the officers about the case and that no depositions were taken. Abel also reviewed the marshal's return of service for the complaint but it gave no indication that any of the named officers had been served with a copy. Further at no time did petitioner ever make Abel aware that any of the defendant officers knew of the pendency of the complaint.
At the time petitioner filed his civil rights complaint, he was known as Michael Reid and filed the action using this name. By the time of Abel's representation of him in 2003-04, petitioner had changed his name to Aquil Kamal.
At trial Abel subpoenaed the Bridgeport police internal affairs records for each of the state's witnesses, but she received no materials from them.
Although Abel fully investigated petitioner's civil rights action, at the criminal trial she did not cross examine any of the police officers or offer any additional evidence concerning bias toward petitioner as a result of the lawsuit. Petitioner asserts that such inaction amounts to deficient performance. The court, however, does not agree. There is a strong presumption "that counsel's professional assistance was reasonable, and the petitioner has the burden to overcome the presumption that his attorney was employing sound trial strategy . . . [The court] evaluate[s] the conduct from trial counsel's perspective at the time . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." (Internal quotation marks omitted.) Bova v. Commissioner of Correction, 95 Conn.App. 129, 137-38, cert. denied, 278 Conn. 920 (2006).
In ¶ 7 (v) petitioner claims that Abel failed to subpoena police Lieutenant Lamaine to question him about his past and present familiarity with petitioner, which led petitioner to file the civil rights complaint. Lamaine was specifically named in the civil rights complaint. Petitioner testified at the habeas trial that the narcotics squad worked for Lamaine; however, there was no other evidence offered to corroborate this claim. Lamaine was also not called to testify at the habeas trial. "The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense." (Internal quotation marks omitted.) Vines v. Commissioner of Correction, 94 Conn.App. 288, 296, cert. denied, 278 Conn. 922 (2006).
Farver testified that the key to whether an attorney is effective or ineffective in pursuing a trial strategy is whether the attorney's decisions were made after a complete investigation and a weighing of the various options. Farver called this informed tactical decision making. Farver testified that as a predicate matter, the admissibility of bias evidence would likely hinge on a showing that the witness had knowledge of the existence of the complaint. Farver went on to state that assuming admissibility whether to use evidence of bias against a witness depends on the significance of the witness to the case and the strength of the evidence of bias. For example if an attorney had evidence in an undercover drug sale case that the undercover officer had a bias against a defendant, then that evidence should probably be used. Farver further testified that a determination whether to use evidence of bias needs to be made on a witness by witness basis and that the key to the use of this evidence is knowing what is available and then deciding how best to use it, if at all. Farver admitted that attempts to impeach for bias can backfire and also that such evidence runs the risk of losing jurors' interest and attention.
In the present case, petitioner sold narcotics to undercover officer Joe Curley. There is no evidence, however, that Curley was a defendant in petitioner's federal civil rights lawsuit or that Curley was aware of the existence of this lawsuit.
Abel testified that she considered using evidence of the lawsuit in cross examination but decided against it. Abel believed that introduction of this evidence would be more detrimental to petitioner's defense than helpful in that it tended to undermine the defense of mistaken identity. More specifically Abel was concerned that the evidence of the civil rights action would demonstrate petitioner's familiarity to the Bridgeport police department and thereby bolster their identification of him as the drug seller. Additionally Abel was concerned that this evidence would alert the jury to the fact of a prior arrest on petitioner's part and would open the door to the state's introduction of the facts underlying the prior arrest. Abel also believed it likely that the trial court would find evidence of the lawsuit to be inadmissible in that the suit had been dismissed three years prior to trial, none of the defendants in the civil suit testified in the drug case and it was highly unlikely that any of the state's witnesses were even aware of the existence of the lawsuit.
As stated above, there is no doubt that Abel thoroughly investigated the petitioner's civil rights complaint. It is also clear that Abel made a carefully considered, tactical decision not to use the complaint in petitioner's defense. The court gives deference to that decision. See Bryant v. Commissioner of Correction, 99 Conn.App. 434, 444 (2007) (deference should be given to trial tactics of counsel). Moreover before deciding not to use the evidence, Abel discussed her strategy with petitioner. Although initially petitioner was not happy with Abel's decision, after she went over her rationale, petitioner appeared to understand and accept the decision.
Petitioner has also failed to show that evidence of his civil rights suit would have been admitted at the criminal trial. None of the officers named in the civil rights suit were witnesses been no showing that any of the witnesses at the criminal trial were aware of the existence of the lawsuit. Without such a foundation, evidence of the lawsuit would have been irrelevant and inadmissible. State v. Johnson, 190 Conn. 541, 551 (1983); State v. Crowley, 22 Conn.App. 557, 560, cert. denied, 216 Conn. 816 (1990).
The first part of the Strickland test, therefore, has not been satisfied. Even if petitioner had overcome this first hurdle, he has presented absolutely no evidence to show a reasonable probability that, but for Abel's alleged deficiencies, the outcome of his trial would have been different.
III. Claims concerning alibi witnesses
¶¶ 7(a), (b), (j), (o) and (x).
Petitioner next claims that Abel failed to investigate potential witnesses and failed to present witnesses in his defense.
Prior to trial, petitioner gave Abel the names and addresses of two potential alibi witnesses, Reginald Carr and Barbie Colbert. Abel pursued petitioner's leads by issuing subpoenas for both individuals. The address which petitioner gave for Carr was, however, inaccurate and Carr was not able to be served. Additionally petitioner was unable to provide any other information for Carr such as a date of birth. As a result further efforts by the public defender's office to locate Carr were unsuccessful. Abel had more success with Colbert in that Colbert was subpoenaed and came to court to meet with Abel. After speaking with Colbert, however, Abel determined that Colbert was not able to provide an alibi for the time of the crime. Moreover Colbert told Abel she did not want to testify. As a result, Abel did not call Colbert in the defense case.
"The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense. Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it." (Internal quotation marks omitted.) Vines v. Commissioner of Correction, 94 Conn.App. 288, 296 (2006).
Petitioner has not submitted any evidence to show that Abel's attempt to locate Carr was unreasonable under the circumstances. There is also no evidence that Abel's decision not to call Colbert as a witness was anything other than sound trial strategy. Hopkins v. Commissioner of Correction, 95 Conn.App. 670, 676, cert. denied, 279 Conn. 911 (2006) ("the presentation of testimonial evidence is a matter of trial strategy"). Thus it is clear to the court Abel investigated petitioner's potential alibi witnesses the best that she could given the information provided to her by petitioner and that she made sound strategic decisions based on the results of her investigation.
Even if petitioner had proven deficient performance, his claim still fails because there is absolutely no evidence of actual prejudice. To determine whether petitioner's alibi witnesses would have impacted the outcome of the criminal trial, the court must assess the potential benefit of their testimony to petitioner's defense. "The burden to demonstrate what benefit additional investigation would have revealed is on the petitioner." Holley v. Commissioner of Correction, 62 Conn.App. 170, 175 (2001). There must be "some showing that the testimony would have been helpful in establishing the asserted defense." (Internal quotation marks omitted.) Vines v. Commissioner of Correction, supra, 94 Conn.App. 296. "Mere conjecture and speculation are not enough to support a showing of prejudice." Burke v. Commissioner of Correction, 90 Conn.App. 370, 378, cert. denied, 275 Conn. 926 (2005).
Here petitioner did not call either witness to testify at the habeas trial. There is, therefore, no way for the court to know what the witnesses would have testified to at the criminal trial and whether their testimony would have been helpful to petitioner's defense. The court cannot address the merits of petitioner's claim based on nothing but mere speculation. Thus petitioner's claim fails on both parts of the Strickland test.
IV. Claims concerning petitioner's right to appeal
¶¶ 7(p), (q) and (r).
Petitioner next claims that Abel failed to preserve his right to appeal, failed to adequately inform him about the procedures for filing an appeal and failed to fully explain the likely merits of an appeal. Farver testified at the habeas trial that it would constitute deficient performance for an attorney to fail to advise his client of his right to appeal, the time limits thereof and the issues for appeal. Farver was never asked, however, to discuss an attorney's obligation to a client who in the face of a request to sign a fee waiver refuses to sign or to review the waiver form.
The United States constitution does not always require trial counsel to consult with a criminal defendant about an appeal. Roe v. Flores-Ortega, 528 U.S. 470, 479, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). "[C]ounsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." (Internal quotation marks omitted.) Ghant v. Commissioner of Correction, 255 Conn. 1, 9 (2000) quoting Roe v. Flores-Ortega, supra, 528 U.S. 480.
The Strickland test applies to ineffective assistance claims involving a petitioner's right to appeal. Roe v. Flores-Ortega, supra, 528 U.S. 477; Ghant v. Commissioner of Correction, supra, 225 Conn. 8. "[N]o particular set of detailed rules for counsel's challenged conduct can satisfactorily take account of the variety of circumstances faced by defense counsel . . . Rather, courts must judge the reasonableness of counsel's conduct on the facts of the particular case, viewed as of the time of counsel's conduct . . . and [j]udicial scrutiny of counsel's performance must be highly deferential . . ." In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken . . . the question whether counsel has performed deficiently by not filling a notice of appeal is best answered by first asking . . . whether counsel in fact consulted with the defendant about an appeal . . . [T]he term `consult' . . . [means] . . . advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes. If counsel has consulted with the defendant . . . [c]ounsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal." (Citations omitted; internal quotation marks omitted.) Id., 8-9.
It is clear from Abel's testimony that she consulted with petitioner about an appeal. Prior to sentencing, Abel had prepared an application for waiver of fees, costs and expenses on appeal (JD-CR-73), setting forth four possible grounds for appeal of petitioner's convictions. After the court imposed sentence, Abel met with petitioner in the courthouse lock up. Abel testified that when she met with petitioner, he was angry and walked away from her as she explained to him his right to appeal and the time limitations for an appeal. Abel requested that petitioner sign the fee waiver to ensure the preservation of his appellate rights and also told him that if he refused to sign the waiver, an appeal would not be filed. In response, petitioner refused to look at or sign the waiver form and told Abel he intended to appeal in federal court on his own. After several additional attempts to convince petitioner to sign the fee waiver form, Abel sought out her supervisor attorney Dennis Harrigan and requested that Harrigan attempt to speak to petitioner.
At the habeas trial Harrigan testified that he separately went to see petitioner in the courthouse lock up. At that time, Harrigan informed petitioner that he had only twenty-one days to appeal or else he would lose his appellate rights. Harrigan further told petitioner that if petitioner did not sign the waiver, the appeal would not be filed and if it was not filed, petitioner would lose his appellate rights. Petitioner told Harrigan that he had no interest in any state appeal and that he intended to file a federal case. Harrigan had never seen a defendant refuse to sign a fee waiver for appeal and so instructed Abel to dictate a memorandum memorializing this incident. Abel's memo, as well as the fee waiver form, were introduced as exhibits at the habeas trial.
Petitioner's claim has not one iota of merit. Petitioner's only evidence that Abel failed to perfect and explain his right to appeal is the bald assertion of his claim. This is belied by the documentary evidence submitted at the habeas trial and the testimony of Abel and Harrigan, which the court finds to be highly credible. Abel and Harrigan advised petitioner of his right to appeal and the time limits of appeal. In addition by requesting that petitioner review and sign the fee waiver, Abel attempted to advise petitioner of probable issues for appeal. It was petitioner who refused to sign the paperwork despite being informed of the consequences. Moreover at the habeas trial, petitioner conceded that although Abel never informed him of such, he was aware that there were time limitations on his right to appeal. Abel did the best that she could under the circumstances to ensure that petitioner's right was protected.
There is absolutely no evidence that counsel's performance fell outside the bounds of reasonable competence. Petitioner's claim therefore fails to satisfy the first part of the Strickland test.
V. Failure to file motion to dismiss all charges
¶ 7 (e).
Petitioner next claims that Abel failed to file a motion to dismiss all charges pending against him or to seek other appropriate sanctions due to the state's failure to fully comply with discovery. Specifically petitioner claims that the state never gave Abel any record of Bridgeport police communications from the incident involving petitioner's arrest or a xerox copy of the "buy" money.
Farver testified that it is not ineffective assistance to forego filing a motion to preserve police communications. When asked whether an attorney would be required to investigate the issue of improperly marked drug buy money, Farver stated it would depend on the defense to be presented at trial.
Petitioner's evidence in support of this claim is woefully inadequate. According to the criminal trial transcript and habeas trial testimony, the police either lost or misplaced the xerox copy of the money. Abel certainly cannot be considered ineffective for failing to compel the state to turn over evidence it did not possess. Also there is no evidence that there were any recorded police communications in petitioner's case or that any such communications would have been exculpatory.
Petitioner has failed to prove either prong of the Strickland test.
VI. Failure to explain the consequences of trial
¶ 7 (n).
Petitioner finally claims that he was denied the effective assistance of counsel because Abel failed to fully explain the consequences of proceeding to trial or entering a plea. Specifically petitioner testified at the habeas trial that Abel never discussed the strengths and weaknesses of the state's case, the likely outcome of the trial or the range of punishments he could receive. Abel testified, however, that she met with petitioner on numerous occasions to discuss the state's case, various defense strategies and the plea bargains offered by the state. Additionally Abel prepared a written "Notification of Plea Bargain" setting out the state's last pre trial offer. On April 27, 2004, petitioner dated and signed this form which was introduced as evidence at the habeas trial.
Petitioner's version of events is simply not credible. See Nieves v. Commissioner of Correction, supra, 92 Conn.App. 536 (habeas judge determines credibility of witnesses). Thus the court finds that petitioner has failed to satisfy the first part of the Strickland test.
Accordingly, the writ of habeas corpus is denied. Petitioner's counsel shall prepare and file the judgment file within thirty days.