Opinion
No. NNH CV00-0439113-S
June 3, 2011
MEMORANDUM OF DECISION
The following factual and procedural history as stated in the Petitioner's Post-Trial Brief are incorporated herein: "On December 19, 1995, the Mr. Kearney pled guilty, under the Alford Doctrine, to the murder of his wife in violation of Conn. Gen. Stat. Section 53a-54a(a). On January 31, 1996 the Court sentenced Mr. Kearney to forty-two (42) years incarceration, suspended after thirty (30) years incarceration with five (5) years probation.
On or about November 13, 1997 Mr. Kearney filed his first petition for writ of habeas corpus, pro se with the Superior Court for the Judicial District of New Haven at New Haven, Docket Number CV98-411311. On or about December 30, 1999 Mr. Kearney filed a second amended petition claiming ineffective assistance of trial counsel, Edward Androski. In its memorandum of decision dated April 20, 2000, the habeas court (Downey, J.) denied Mr. Kearney's habeas corpus petition. Kearney v. Wezner, 2000 WL 640296 (2000).
Mr. Kearney subsequently filed an appeal, appealing the decision of the habeas court, claiming that the court improperly dismissed his claim of ineffective assistance of counsel because (a) trial counsel failed to conduct an adequate investigation into potential mental defect defenses, (b) trial counsel misunderstood the elements of an extreme emotional disturbance defense, and (c) trial counsel failed to include a discussion of potential defenses such as extreme emotional disturbance and intoxication in his discussions with Mr. Kearney involving whether to plead guilty or go to trial. On December 4, 2001 the appellate court issued a per curium decision affirming the judgment of the habeas court. Kearney v. Commissioner of Corrections, 67 Conn.App. 232, 786 A.2d 1180 (2001).
On or about May 9, 2000, Mr. Kearney filed the instant petition for writ of habeas corpus, pro se, in the Superior Court for the Judicial District of New Haven. On October 21, 2005 an amended petition was filed alleging three counts of ineffective assistance of counsel. Count One alleged that trial counsel (Edward Androski) was ineffective; Count Two pertained to the ineffective representation of prior habeas counsel (R. Bruce Lorenzen); and Count Three concerned the ineffective representation of habeas appellate counsel (William Snider). On November 21, 2005 the Respondent filed a return, and Mr. Kearney filed a reply on or about November 25, 2005. On January 5, 2006, Respondent filed a motion to dismiss count one of the amended petition, along with a supporting memorandum. On or about January 17, 2006, Mr. Kearney filed an objection to respondent's motion to dismiss, and on April 24, 2006 a supporting memorandum. After a hearing on Respondent's motion to dismiss, the habeas court (DeMayo, J.) entered a judgment dismissing count one of the amended petition on the ground of res judicata.
On September 13, 2006, the habeas court (DeMayo, J.) issued a memorandum of decision dismissing count two of Mr. Kearney's amended petition on the ground of res judicata.
Subsequently, on December 14, 2006, in exchange for the restoration of his right to a sentence review, Mr. Kearney withdrew count three of the instant amended petition which alleged ineffective assistance of habeas appellate counsel.
Thereafter, in Kearney vs. Commissioner of Correction, 113 Conn.App. 223, 965 A.2d 608 (2009), Mr. Kearney appealed following the denial of his petition for certification to appeal from the judgment of the habeas court dismissing counts one and two of his petition for a writ of habeas corpus. On appeal, Mr. Kearney claimed that the habeas court abused its discretion in denying certification to appeal and that the court (1) improperly denied the petitioner's right to present "new" allegations of ineffective assistance of trial counsel and (2) improperly dismissed the petitioner's claim of ineffective assistance of habeas counsel. The appellate court concluded that the habeas court did not abuse its discretion in denying certification to appeal from the judgment regarding count one, ineffective assistance of trial counsel, but that the habeas court did abuse its discretion in denying certification to appeal from the dismissal of count two regarding the effectiveness of habeas counsel. As a result, the appellate court reversed the judgment only as to the claim of ineffective assistance of habeas counsel and remanded the case back to the habeas court."
Moreover, the following facts and law as stated by Judge Downey in the earlier habeas case are incorporated herein:
In August 1994, the petitioner, John Kearney, was arrested and charged with the murder of his wife, Donna, in violation of General Statutes, Section 53a-54. On December 19, 1995, Kearney entered a plea of guilty, under the "Alford" doctrine, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1969), to the charge of murder. The plea was entered pursuant to a plea agreement, whereby, in exchange for the plea, the state would recommend a sentence of 42 years, suspended after 30 years with a period of probation and special conditions left up to the court, the petitioner retaining the right to argue for a lesser sentence.
At the time of plea, the trial court canvassed the petitioner and found his plea to be made knowingly and voluntarily, with the assistance of competent counsel. On January 31, 1996, the court sentenced the petitioner to a term of imprisonment of 42 years, suspended after 30 years.
A habeas petitioner claiming a deprivation of his constitutional right to effective assistance of counsel has the burden of showing that: (1) the performance of his counsel was "deficient" in that it was outside the range of reasonable professional assistance of a competent trial or appellate lawyer; and (2) that the deficient performance "prejudiced" the petitioner such that there is a reasonable probability that but for the deficient performance of counsel, the result of the proceeding would have been different, Strickland v. Washington, 466 U.S. 668, 687-94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A criminal defendant, moreover, is entitled to adequate and effective assistance of counsel at all critical stages of legal proceedings, Id., at 686. Pretrial negotiations implicating the decision of whether to plead guilty is a critical stage in criminal proceedings, Colson v. Smith, 438 F.2d 1075, 1078 (5th Circuit, 1971). In Hill v. Lockhart, 474 U.S. 52, 57, 56, the United States Supreme Court determined that the Strickland test applied to claims arising from the plea negotiation process, while modifying the prejudice prong as applied to pleas. Under Hill, the petitioner is required to show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial," and, moreover, that there is a reasonable likelihood that the outcome after trial would have been more favorable to the petitioner than the outcome of his decision to enter his Alford plea, id., at 59; Copas v. Commissioner, 234 Conn. 139, 162.
There is a strong presumption that counsel has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, Strickland v. Washington supra, at 689-90. A court deciding an ineffective assistance of counsel claim need not address the question of counsel's performance, if it is easier to dispose of the claim on the ground of insufficient prejudice, Nardini v. Manson, 207 Conn. 118, 124 . . .
"The facts underlying the petitioner's claims include the following: The victim was found dead in her bed at home. She had suffered blunt trauma to the head and two knife wounds. Any of these injuries could have been the cause of death. There were no signs of forced entry. The petitioner stated he had job-related and marital problems. His wife had indicated she wanted a divorce. On the night of her death, the petitioner stated he and his wife had been drinking in an area restaurant. They returned home, she went to bed, while he watched television. He later joined her in bed and awoke in the morning to find her dead beside him. He arose, fed the cats, went out to walk a neighbor's dog, returned home, changed and attended a wedding and the wedding reception, and again returned home, where he wrote two notes, implicating himself in the killing, inflicted some superficial injuries to his wrists and spent the night. On the following day he went to his mother's home, told her what had occurred, and the police were called. While the petitioner generally has conceded that the only reasonable explanation is that he killed his wife, he has consistently maintained he has no recollection of the incident . . . The petitioner spent some forty-seven days in prison before being released on bond. He was represented in the trial court by Attorney Edward Androski. After being released on bond, the petitioner consulted a psychiatrist, Louis Trevisan. Androski undertook plea negotiations with the state's attorney. It was the petitioner's understanding that Androski would seek to persuade the state to agree to a charge of manslaughter. At the habeas hearing, Androski testified the state's attorney would consider a reduced charge only if the defense could produce some psychiatric support for the reduction. Trial counsel informed the petitioner of the state's attorney's position on this issue. Learning of the petitioner's involvement with Trevisan, Androski had contacted Trevisan and discussed the petitioner's case. Trevisan suggested Androski contact Howard Zonana, a forensic psychiatrist. Zonana examined the petitioner and referred him to Mamelon V. Baranoski, Ph.D., for psychological testing. In his report, Zonana stated he was "unable to conclude to any degree of medical certainty whether [the petitioner] was under an extreme emotional disturbance at the time of the homicide" (Petitioner's Exhibit 9, p. 14). Androski was unable to persuade the state's attorney to agree to a plea of manslaughter, but did obtain agreement to recommend the above-cited sentence, 42 years, suspended after 30 years. The state's attorney indicated the offer would soon be withdrawn. Androski discussed the offer with his client and the client's family and recommended acceptance of the offer. After several days, the petitioner decided to take the offer, and subsequently pleaded guilty under the "Alford" doctrine . . .
The petitioner claims ineffective assistance of counsel in that counsel failed to conduct "sufficient" investigation, particularly of the petitioner's competency to stand trial and failed adequately to investigate potential affirmative defenses available to the petitioner, "specifically intoxication and/or extreme emotional disturbance."
The affirmative defense of extreme emotional disturbance is authorized by General Statutes, Section 53a-54a; State v. Person, 236 Conn. 342, 351. The burden is on a defendant to establish such defense by a fair preponderance of the evidence, General Statutes, Section 53a-12(b). Pursuant to General Statutes, Section 53a-55, a defendant who meets this burden is entitled to a conviction of manslaughter in the first degree, a class B felony, instead of a conviction of murder. Here, the petitioner must persuade the habeas court that trial counsel either failed to notify him of the of the availability, or failed adequately to explain the elements of said defense and the burden placed on a defendant to establish such defense; that such failure fell below the range of reasonable professional assistance of a competent trial lawyer, that, had trial counsel adequately advised the petitioner, the latter would have opted to go to trial; and that, had he gone to trial the result would likely have been more favorable to the petitioner than the result actually obtained. The petitioner has failed to meet his burden of persuasion on any of these claims. The petitioner has offered no evidence to establish the standard for reasonable professional assistance insofar as advising one's client regarding the requirements for establishing an affirmative defense of extreme emotional distress. The Court is persuaded that trial counsel did discuss said defense with the petitioner and did give petitioner his opinion that in the circumstances of petitioner's case, it was not a viable defense. The petitioner makes much of trial counsel's lack of experience and the difficulties trial counsel had, during his habeas testimony, in articulating the requirements for establishing such defense. Such difficulties do not suffice to overcome the presumption that trial counsel rendered adequate assistance in advising the petitioner on this issue. As to experience, trial counsel was not a rank novice. Moreover, "Every experienced criminal defense attorney once tried his first criminal case," United States v. Cronic, 466 U.S. 648, 665. Second, the petitioner has failed to establish that, had trial counsel's assistance been adequate, petitioner would have chosen to go to trial. Third, the petitioner has failed to persuade the Court, by a fair preponderance of the evidence, that it is reasonably likely that the result, had he gone to trial, would have been more favorable than that obtained. A habeas petitioner, making such a claim, must do more than postulate such a possibility. He must introduce evidence at the habeas hearing of extreme emotional disturbance at the time of the crime sufficient to persuade the habeas court, that such evidence, if introduced at trial, would be reasonably likely to have produced a more favorable result. This the petitioner failed to do. The petitioner testified merely that he had been under stress in the weeks prior to the murder, that his wife had said she wanted a divorce and that he suspected she was unfaithful. The petitioner could not testify as to his state of mind at the time of his wife's killing since he maintains he has no recollection of the incident. Zonana, the forensic psychiatrist, was unable, after three sessions with the petitioner, to state, with a reasonable degree of medical certainty, that the petitioner had suffered from extreme emotional disturbance at the time of the murder. No other testimony was offered at the habeas hearing regarding the petitioner's state of mind at the time of his wife's slaying and the court may not speculate on what evidence the petitioner might have offered at trial.
Similarly, with regard to the petitioner's claims revolving around the partial defense of intoxication. Recognizing that intoxication is not an affirmative defense, the petitioner still must introduce evidence at a habeas hearing to persuade the court that the claim is sufficiently plausible that, had it been raised at trial there is a reasonable likelihood that the result would have been more favorable for the petitioner. This the petitioner failed to do. Because the petitioner has no recollection of the crime he cannot testify as to his level of intoxication at that time, nor did he offer any other evidence of this to the habeas court . . .
The Court finds that the petitioner has failed to establish, by a fair preponderance of the evidence, any of his claims that trial counsel rendered ineffective assistance in the course of his representation of the petitioner, failed to establish a reasonable likelihood that, but for trial counsel's deficient performance, the petitioner would have opted to go to trial and failed to establish that, but for the deficient performance of trial counsel it was reasonably likely that the outcome would have been more favorable to the petitioner. The petitioner failed to establish that trial counsel's advice, that the petitioner take the state's offer, constituted ineffective assistance of counsel. Given the strength of the state's case, the petitioner's maximum exposure should he have been convicted after trial and the lack of evidence supporting the defenses of extreme emotional disturbance and intoxication, such advice fell within the range of reasonable professional assistance of a competent trial lawyer. The petitioner failed to establish, by a fair preponderance of the evidence, that trial counsel, by the manner and timing with which he consulted the petitioner, exerted undue influence on the petitioner's decision whether to accept the state's offer or go to trial . . . The petitioner having failed to establish any of his claims, the petition is dismissed and judgment may enter in favor of the respondent." John Kearney v. George Wezner, Warden, 2000 Ct.Sup. 4942, 4942-48 (2000).
That habeas proceeding was affirmed by the Appellate Court where it stated the following:
"The petitioner claims that trial counsel's failure to conduct an adequate investigation into potential mental defect defenses, to understand the elements of an extreme emotional disturbance defense and to explain potential defenses such as extreme emotional disturbance and intoxication during his discussions with the petitioner regarding his plea caused his representation to be ineffective and prejudiced the petitioner.
"Our standard of review in a habeas corpus proceeding challenging the effective assistance of trial counsel is well settled. Although a habeas court's findings of fact are reviewed under the clearly erroneous standard of review . . . [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact . . . As such, that question requires plenary review by this court unfettered by the clearly erroneous standard." (Citation omitted; internal quotation marks omitted.) Milner v. Commissioner of Correction, 63 Conn.App. 726, 737-38, 779 A.2d 156 (2001).
"[T]o prevail on a constitutional claim of ineffective assistance of counsel, [the petitioner] must establish both (1) deficient performance, and (2) actual prejudice . . . To prove that his counsel's performance was deficient, the petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness . . . Furthermore, the petitioner must establish not only that his counsel's performance was deficient, but that as a result thereof he suffered actual prejudice, namely, that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Citations omitted; internal quotation marks omitted.) Id. at 738.
In its memorandum of decision, the habeas court stated: "The court is persuaded that trial counsel did discuss [the defense of extreme emotional disturbance] with the petitioner and did give petitioner his opinion that in the circumstances of petitioner's case, it was not a viable defense . . . The court finds that the petitioner has failed to establish, by a fair preponderance of the evidence, any of his claims that trial counsel rendered ineffective assistance in the course of his representation of the petitioner [and has] failed to establish a reasonable likelihood that . . . but for the deficient performance of trial counsel it was reasonably likely that the outcome would have been more favorable to the petitioner."
On the basis of our review of the record, we conclude that the habeas court properly determined that the petitioner failed to satisfy his burden of establishing that he was denied the effective assistance of counsel." Kearney v. Commissioner of Correction, 67 Conn.App. 232, 233-35 (2001).
"On October 21, 2005, the petitioner filed this second petition for a writ of habeas corpus.[footnote omitted] In count one of the petition, the petitioner again alleged ineffective assistance of trial counsel, and, in count two, ineffective assistance of habeas counsel.[footnote omitted] On January 6, 2006, the respondent, the commissioner of correction, filed a motion to dismiss count one of the second petition pursuant to Practice Book § 23-29(3) as a successive petition and an abuse of the writ. [footnote omitted] The respondent also claimed that the petitioner was barred from relitigating the claims set forth in count one due to the doctrines of res judicata and collateral estoppel. On May 2, 2006, the habeas court held a hearing regarding the respondent's motion to dismiss count one of the petitioner's second petition. By memorandum of decision filed May 16, 2006, the habeas court dismissed count one of the petition on the ground of res judicata. The court also, sua sponte, dismissed count two of the petition on the same ground.
Subsequently, on September 22, 2006, the petitioner filed a petition for certification to appeal, which the habeas court denied on September 26, 2006. This appeal followed. Additional facts will be set forth as necessary.
On appeal, the petitioner challenge[d] the denial of his petition for certification to appeal as well as the judgment dismissing his petition for a writ of habeas corpus. [The Appellate Court] conclude[d] that the court did not abuse its discretion in denying certification to appeal from the judgment regarding count one, ineffective assistance of trial counsel, but that the court did abuse its discretion in denying certification to appeal from the dismissal of count two regarding the effectiveness of habeas counsel." Kearney v. Commissioner of Correction, 113 Conn.App. 223, 226-28 (2009).
"` In Strickland v. Washington, [ 466 U.S. 668, 687,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction: . . . That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense . . . Unless a [petitioner] makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable . . . Because both prongs . . . must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong . . . Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim. (Citation omitted; internal quotation marks omitted.) J.R. v. Commissioner of Correction, 105 Conn.App. 827, 830-32, 941 A.2d 348, cert. denied, 286 Conn. 915, 945 A.2d 976 (2008)." Id. at 229.
"The petitioner next claims that the court improperly dismissed his claim of ineffective assistance of his habeas counsel as set forth in the second count of this second habeas petition. We agree and conclude that the court abused its discretion by denying the petition for certification to appeal from the judgment dismissing the petition for a writ of habeas corpus.
The following additional facts relate to our discussion of the petitioner's claim. Count two of the petition claimed, inter alia, that the petitioner's habeas counsel failed (1) to conduct sufficient investigation into any potential affirmative defenses available to the petitioner, (2) to conduct sufficient investigation into witnesses available to support the petitioner's potential defenses and how trial counsel did not investigate those defenses, (3) to provide expert testimony to support habeas corpus issues, (4) to satisfy his burden of proof at trial regarding the issue of trial counsel exerting undue influence over the petitioner regarding the petitioner's decision to plead, (5) to satisfy his burden of proof at trial regarding the issue of violation of the petitioner's right to due process and (6) to preserve adequately the record for appeal." Id. at 237
"[I]n Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), our Supreme Court concluded that this court properly reversed the habeas court's dismissal of a claim of ineffective assistance of habeas counsel and remanded the case for a hearing on that claim. Id., 837-38. In Lozada, the principal issue before our Supreme Court was whether a petitioner could seek a writ of habeas corpus on the ground that his habeas counsel had rendered ineffective assistance. The court first determined that a petitioner is entitled to competent habeas counsel. Id., 838-39. The court then stated: "To succeed in his bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective . . . Only if the petitioner succeeds in what he admits is a herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel. The second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement." (Citations omitted.) Id., 842-43. Finally, the court concluded that "[t]he claim of ineffective assistance of habeas counsel, when added to the claim of ineffective assistance of trial counsel, results in a different issue." Id., 844. The teaching of Lozada is that a habeas petitioner is entitled to make a claim that he or she was deprived of effective habeas counsel in a prior petition, and the petitioner is entitled to advance this claim in an evidentiary proceeding. Regardless of the difficult burden undertaken by a habeas petitioner who claims the ineffective assistance of habeas counsel, such a claim is not subject to dismissal on the ground that an earlier habeas petition that was based on the ineffectiveness of trial counsel had been unsuccessful. See Harris v. Commissioner of Correction, 108 Conn.App. 201, 206, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). We conclude, therefore, that the court incorrectly dismissed the second count of the petition without giving the petitioner an opportunity to provide evidence that he was deprived of the effective assistance of habeas counsel.
The judgment is reversed only as to the claim of ineffective assistance of habeas counsel and the case is remanded for further proceedings in accordance with law. The appeal is dismissed in all other respects." Id. at 238-39.
Law
The well settled standard of review based on a constitutional claim of ineffective assistance of counsel was articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "In Strickland, which applies to claims of ineffective assistance during criminal proceedings generally, the United States Supreme Court determined that [a petitioner's] claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance . . . The first prong is satisfied by proving that counsel made errors so serious that he was not functioning as the `counsel' guaranteed by the CT Page 13034 sixth amendment. The second prong is satisfied if it is demonstrated that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Citation omitted; emphasis in original; internal quotation marks omitted.) Crocker v. Commissioner of Correction, 126 Conn.App. 110, 116, 10 A.3d 1079, cert. denied, 300 Conn. 919, 14 A.3d 333 (2011). In determining both prongs, "[t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony." (Internal quotation marks omitted.) James G. v. Commissioner of Correction, 120 Conn.App. 829, 833, 993 A.2d 474, cert. denied, 297 Conn. 922, 998 A.2d 168 (2010).
As stated above, the Strickland test "consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong . . . the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law." (Internal quotation marks omitted.) James G. v. Commissioner of Correction, supra, 120 Conn.App. 832-33. "[T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment . . ." (Citation omitted.) Iovieno v. Commissioner of Correction, 67 Conn.App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851 (2002). "Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a [petitioner] 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 . . . 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. . . . There are countless ways to provide effective assistance in any given case." (Internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 113 Conn.App. 378, 395, 966 A.2d 780 (2009); see also Ledbetter v. Commissioner of Correction, 275 Conn. 451, 460, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006).
In particular, "[b]ecause 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 . . . Regardless, counsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it." (Citations omitted; internal quotations marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721, 789 A.2d 1046 (2002). "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, 774 A.2d 148 (2001).
"It is not for a court to second-guess matters of strategy and tactics. Ostolaza v. Warden, 26 Conn.App. 758, 774, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992).
Next, in order "[t]o establish prejudice, [i]t is not enough for the [petitioner] to show that the errors [made by counsel] had some conceivable effect on the outcome of the proceeding . . . Rather, [the petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks omitted.) Myers v. Commissioner of Correction, 128 Conn.App. 564, 569-70 (2011). "The claim will succeed only if both prongs are satisfied." (Emphasis in original; internal quotation marks omitted.) James G. v. Commissioner of Correction, supra, 120 Conn.App. 833. "Because both prongs [of Strickland] must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong . . . Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim." (Internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn.App. 1, 11-12, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).
When deciding ineffective assistance of counsel claims arising from guilty pleas, Connecticut courts follow the standard articulated in Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), which modified the prejudice prong from Strickland. See Gonzalez v. Commissioner of Correction, 127 Conn.App. 454, 457, 14 A.3d 1053 (2011). "In Hill, the United States Supreme Court held that the two-part Strickland . . . test applies to challenges to guilty pleas based on ineffective assistance of counsel." (Internal quotation marks omitted.) Ebron v. Commissioner of Correction, 120 Conn.App. 560, 574, 992 A.2d 1200 (2010). To satisfy the performance prong, "[a] petitioner who accepts counsel's advice to plead guilty has the burden of demonstrating on habeas appeal that the advice was not within the range of competence demanded of attorneys in criminal cases . . . Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist." (Citations omitted; internal quotation marks omitted.) Baillargeon v. Commissioner of Correction, 67 Conn.App. 716, 721-22, 789 A.2d 1046 (2002).
Connecticut courts follow the Strickland-Hill test when deciding an ineffective assistance of counsel claim arising from a guilty plea under the Alford doctrine. See Cox v. Commissioner of Correction, 127 Conn.App. 309, 14 A.3d 421 (2011). "The Alford doctrine allows a defendant to plead guilty without admitting guilt. In pleading guilty, however, the defendant acknowledges that the state's evidence against him is so strong that he is prepared to accept the entry of a guilty plea." (Internal quotation marks omitted.) Asif v. Commissioner of Correction, 127 Conn.App. 599, 600 n. 1, 14 A.3d 498 (2011).
"Commentators have estimated that between 80 and 90 percent of criminal cases in Connecticut result in guilty pleas, the majority of which are the product of plea bargains . . . Thus, almost every criminal defendant is faced with the crucial decision of whether to plead guilty or proceed to trial. Although this decision is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial. 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.) Copas v. Commissioner of Correction, 234 Conn. 139, 154, 662 A.2d 718 (1995)
"In discussing the prejudice prong, [the United States Supreme Court in Hill] stated: `[This requirement] focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the `prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'" Ebron v. Commissioner of Correction, supra, 120 Conn.App. 574; see also Pagan v. Commissioner of Correction, 104 Conn.App. 531, 533, 935 A.2d 175 (2007). "Reasonable probability does not require the petitioner to show that counsel's deficient conduct more likely than not altered the outcome in the case, but he must establish a probability sufficient to undermine confidence in the outcome." (Internal quotation marks omitted.) Hunnicutt v. Commissioner of Correction, 83 Conn.App. 199, 208, 848 A.2d 1229, cert. denied, 270 Conn. 914, 853 A.2d 527 (2004).
In addition to a claim of ineffective assistance of trial counsel, our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), approved "[t]he use of a habeas petition to raise an ineffective assistance of habeas counsel claim, commonly referred to as a `habeas on a habeas' . . ." Sinchak v. Commissioner of Correction, 126 Conn.App. 684, 686, 14 A.3d 343 (2011); see also Stevenson v. Commissioner of Correction, 112 Conn.App. 675, 684, 963 A.2d 1077, cert. denied, 291 Conn. 904, 967 A.2d 1221 (2009) (stating that "[a] person convicted of a crime is entitled to seek a writ of habeas corpus on the ground that his attorney in his prior habeas corpus proceeding rendered ineffective assistance"). "In Lozada, the court determined that the statutory right to habeas counsel for indigent petitioners provided in General Statutes § 51-296(a) includes an implied requirement that such counsel be effective, and it held that the appropriate vehicle to challenge the effectiveness of habeas counsel is through a habeas petition." Sinchak v. Commissioner of Correction, supra, 686-87.
Section 51-296(a) provides in relevant part: "In any criminal action, in any habeas corpus proceeding arising from a criminal matter, in any extradition proceeding, or in any delinquency matter, the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant . . ."
"[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding." (Internal quotation marks omitted.) Crocker v. Commissioner of Correction, supra, 126 Conn.App. 116. "Prejudice in this case means that but for habeas counsel's ineffectiveness, there would be a reasonable probability that the habeas court would have found that the petitioner is entitled to a new trial." Harris v. Commissioner of Correction, 108 Conn.App. 201, 210 n. 3, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). "[T]he petitioner will have to prove that . . . the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . ." (Emphasis in original; internal quotation marks omitted.) Crocker v. Commissioner of Correction, supra, 116-17. Therefore, "[t]he second habeas petition is inextricably interwoven with the merits of the original judgment by challenging the very fabric of the conviction that led to the confinement." (Internal quotation marks omitted.) Sinchak v. Commissioner of Correction, supra, 126 Conn.App. 691.
More specifically, "[w]hen . . . the petitioner's claim is that prior habeas counsel did not effectively pursue a claim that trial counsel rendered inadequate representation, the following principles apply: To succeed in his. bid for a writ of habeas corpus, the petitioner must prove both (1) that his appointed habeas counsel was ineffective and (2) that his trial counsel was ineffective." (Internal quotation marks omitted.) Stevenson v. Commissioner of Correction, supra, 112 Conn.App. 684, citing Lozada v. Warden, supra, 223 Conn. 842. Therefore, "a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice . . ." (Internal quotation marks omitted.) Crocker v. Commissioner of Correction, supra, 126 Conn.App. 117; see also Harris v. Commissioner of Correction, 126 Conn.App. 453, 457, 11 A.3d 730, cert. denied, 300 Conn. 932, 17 A.3d 69 (2011). In this situation, our courts are mindful that if a petitioner's claims of ineffective assistance of trial counsel are unavailing, the claims in connection to habeas counsel must also fail. Denby v. Commissioner of Correction, 66 Conn.App. 809, 814, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002), citing Lozada v. Warden, supra, 223 Conn. 842-43; see also Crocker v. Commissioner of Correction, supra, 117. "Only if the petitioner succeeds in [this] herculean task will he receive a new trial. This new trial would go to the heart of the underlying conviction to no lesser extent than if it were a challenge predicated on ineffective assistance of trial or appellate counsel." (Internal quotation marks omitted.) Harris v. Commissioner of Correction, supra, 126 Conn.App. 458.
A recent Appellate Court case illustrates how the effectiveness of trial counsel may be intertwined in deciding whether the habeas counsel satisfies the Strickland test. In Crocker v. Commissioner of Correction, supra, 126 Conn.App. 110, the Appellate Court analyzed a petitioner's eight claims of ineffective assistance of habeas counsel. In particular, the petitioner argued that his habeas counsel failed to raise claims of ineffective assistance of trial counsel. Id., 118. The petitioner attacked the habeas counsel's failure to challenge the trial counsel's decision not to object to a police officer's testimony involving "the out-of-court photographic identification of the petitioner . . ." Id. The petitioner argued that the evidence was unreliable and that the testimony was improper, as the source of the identification was unavailable for cross-examination. Id.
In Crocker, the defendant was charged with murder, manslaughter in the first degree with a firearm, and criminal possession of a firearm. Crocker v. Warden, Superior Court, judicial district of Tolland, Docket No. 05 4000431 (June 26, 2009, dos Santos, J.), aff'd sub nom. Crocker v. Commissioner of Correction, supra, 126 Conn.App. 110. The defendant's first trial ended in a mistrial, as the jury was unable to reach an unanimous verdict. Id. The defendant was retried and subsequently convicted on all three counts. Id.
In deciding this claim, the Appellate Court analyzed the trial attorney's failure to object and held that the identification testimony did not prejudice the petitioner to warrant a new trial. Id., 118-21. The police officer previously testified to this identification at the petitioner's first criminal trial and therefore, that identification testimony transcript was already admitted into evidence. Id. The police officer's testimony at the second criminal trial was "merely served to supplement the transcription testimony and did not prejudice the petitioner." Id., 121. Moreover, the police officer testimony "was far from the only evidence linking the petitioner to the [crime]." Id. As a result, the Appellate Court rejected the ineffective assistance of habeas counsel claim, holding that "the petitioner . . . failed to demonstrate that there was a reasonable probability that, but for [the police officer's] testimony, the result of the trial would have been different." Id.
The petitioner also argued that his habeas counsel was ineffective for failing to investigate two witnesses who allegedly had exculpatory information. Crocker v. Warden, Superior Court, judicial district of Tolland, Docket No. 05 4000431 (June 26, 2009, Dos Santos, J.), aff'd sub nom. Crocker v. Commissioner of Correction, supra, 126 Conn.App. 110. The two witnesses' statements of the incident, however, contradicted other trial witnesses and even the petitioner's own testimony. Id. No other witnesses even placed the two witnesses at the scene of the incident. Id. Therefore, the habeas court rejected this argument, holding that "a claim that [the trial counsel] was ineffective for failing to investigate or call [the two witnesses] was not likely to succeed at the first habeas trial, and [the habeas counsel] was not deficient in failing to investigate this possible avenue of inquiry. Moreover, even assuming deficient performance, the petitioner . . . failed to establish resulting prejudice because he [did not show] that investigating and calling [the two witnesses] at the first habeas trial was likely to have resulted in the granting of habeas relief." Id.
Petitioner asserts the following:
1. Habeas counsel did not conduct sufficient investigation into Petitioner's case, particularly any potential affirmative defenses available to Petitioner, which trial counsel failed to consult with Petitioner on and failed to raise during the time of trial.
2. Habeas counsel did not conduct sufficient investigation into witnesses available to support Petitioner's potential defenses, and how trial counsel did not investigate those defenses.
3. Habeas counsel failed to provide expert testimony to support habeas corpus issues.
4. Habeas counsel failed to satisfy his burden of proof at trial regarding the issue of trial counsel exerting undue influence over Petitioner regarding Petitioner's decision to plea vs. going to trial.
5. Habeas counsel failed to satisfy his burden of proof at trial regarding the issue of violation of Petitioner's right to due process under State and Federal Law relative to Petitioner's plea and plea canvass being neither knowing, voluntary, nor intelligent.
6. Habeas counsel failed to adequately preserve and protect the record for appeal.
7. The above acts and omissions of trial counsel fall below the range of competency displayed by lawyers with ordinary training and skill in the area of criminal law, and there is reasonable probability that, but for counsel's acts and omissions, the penalty imposed would have been significantly different.
8. Petitioner's confinement was illegal and in violation of his federal and State Constitutional rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution in Article 1, Section 8 of the Connecticut Constitution.
As part of the second amended petition Attorney Lorenzen claimed that Attorney Androski failed to raise the defense of extreme emotional distress. Attorney Lorenzen said he thought ". . . there were likely independent witnesses that the defense could have called . . . he could have gone a long way toward establishing the EED defense." (Transcript of this habeas hearing, page 11.)
He said that "the position witnesses were taking and the state was apparently relying on those statements to establish . . . somehow the motive for Mr. Kearney's actions would . . . also have potentially been sufficient to form the request granted for EED by the court had the case come to trial." ( Id. at 12-13.) However, Attorney Lorenzen stated he did not call any of those witnesses at the first habeas trial.
Attorney Lorenzen said ". . . Mr. Kearney could have been better represented . . . either Mr. Kearney would have gone to trial and potentially achieved a better result or there would have been a different outcome to the negotiations for plea . . ." ( Id. at 13.)
Attorney Lorenzen stated that if there had been mitigating factors the charge could have been manslaughter with a maximum charge of 20 years. Instead, Kearney's exposure was 60 years. In fact, as stated earlier, Kearney agreed to a plea bargain sentence of 42 years suspended after 30 years.
Attorney Lorenzen, who has had experience trying murder cases, stated that he did not believe that Attorney Androski was prepared to go to trial.
Also, he stated that if the petitioner had either been found guilty of manslaughter or pled to manslaughter he would be eligible for parole at some point.
In preparation for the first habeas trial, he read the report of Dr. Zonana and Dr. Baronski, the witness statements and the police reports.
Mr. Kearney was being treated by Dr. Trevisian at the time of the trial.
Attorney Lorenzen acknowledged that Attorney Androski believed that Dr. Zonana and Dr. Trevisian were both skeptical that Kearney actually remembered what happened. However, Attorney Lorenzen stated he thought that opinion was unreasonable. ( Id. at 38.)
Attorney Lorenzen believes that evidence of a blackout would have helped to the extent that it might have helped in obtaining an instruction on intoxication at the trial.
Attorney Lorenzen said, "I don't think anybody could predict an outcome of trial, but I think that you could predict reliably that given the factual presentation of the reports [medical and police] the defense could expect to get an instruction both on EED and on intoxication." ( Id. at 91.)
He also said that there could have been an argument made for manslaughter. Although he doesn't know if Attorney Androski failed to make claims for manslaughter because he wasn't privy to his conversations with the state's attorney. ( Id. at 92.)
Robert Bilotti, a friend of the petitioner since the `70s, testified that Kearney often drank to excess and there was a blackout or two he knew about. He saw Kearney at a wedding the day after his wife was killed. He also said that Kearney was disappointed with the plea options.
Kearney said that Attorney Androski was owed money for legal services but was paid later. ( Id. at 114.)
According to Kearney, Attorney Androski did not discuss the defense of extreme emotional disturbance with him. However, he said that Attorney Androski did discuss an insanity defense. Attorney Androski testified otherwise and that is credible.
At the previous habeas trial, the only witnesses were Kearney and Attorney Androski. Attorney Lorenzen did not call any witnesses about the Kearney intoxication. ( Id. at 130.)
Kearney testified that he doesn't recall if Attorney Androski explained the elements of murder to him. He did recall that Attorney Androski explained that a murder charge carried a sentence of 60 years. But, he said Attorney Androski did not explain that he would not be eligible for parole. ( Id. at page 137.)
However, Attorney Androski's testimony during the prior habeas proceeding is helpful.
Attorney Androski, when asked if he understood that the alcoholic black out itself to be a potential defense, responded:
"It was considered. All defenses were considered in this case. This case was a bizarre case because, again, the basic facts were that — that Mr. Kearney woke up with his dead wife in the bed. His wife was — her skull was crushed and there were two fatal wounds to the chest and abdomen. He woke up and subsequently went to a wedding, subsequently he did various things that were normal. He came back the next night, stayed in the apartment with his wife in the — in the bed and attempted to commit suicide, wrote this note, was not successful in attempting to commit suicide, and the next morning he — he calls his mother and said I killed my wife. So this was the — this was the scenario that we were faced with, so this dictated. And one of the main concerns was his mental ability and any — anything that would assist him in minimizing his exposure, and I subsequently did that. I hired a forensic psychologist, put him through tests, and this was our — our main concern was that they would come back with something due to all the bizarre behavior that occurred." (January 12, 2000 transcript at 16-17.)
Attorney Androski, when asked what his understanding was with Doctor Zonana stated: "Doctor Zonana was very interested in Mr. Kearney's case initially because of the bizarre behavior and he — he took a concerted interest in it. And the motive for giving this matter to Doctor Zonana is to see if — if we can find some evidence and find some defense for Mr. Kearney concerning his mental state, this is prior to, during the alcoholic binges, everything was covered and everything was covered in this report . . . I hoped to have some expertise that — that this was a subject of a manslaughter, not a murder, and that was our goal and that was understood by Mr. Kearney and everyone else." ( Id. at 24-25.)
When asked about Mr. Kearney's lack of memory, he said: "In fact, Doctor Zonana attempted to hypnotize Mr. Kearney to obtain that information and it was unsuccessful." ( Id. at 25.)
When asked if Doctor Zonana could render an opinion with respect to Mr. Kearney's mental state or the potential for an EED defense, he said: "Well, Doctor Zonana was — as I said, was very interested in Mr. Kearney's case and we all felt fairly decent about it because he showed a lot of interest. After the testing and after some of the sessions he — he had a marked change of mind, and it's reflected in his last two pages of his report. I think his report devastating to us." ( Id. at 26.)
When asked why he recommended Mr. Kearney not to assert the extreme emotional defense, Attorney Androski said:
"Basically, — When you say specific, counsel, I have to go back and — and — First of all, credibility, evidence at hand, motive; all this had to be taken into consideration and that's basically the entire — entire package that had to be taken into consideration in this. And I — It just wasn't something that — that I think would — And he had to make that decision. He had to make that decision, and I don't think there's any doubt that he decided this, I did not decide this. And, as I told you before, the family also was involved and I — and he did not want, and if you look at the pre-sentence report he indicates that he didn't want to — to have his family and friend go through — go through this anxiety." ( Id. at 52-53.)
This Court finds that both the trial counsel and habeas counsel were within the acceptable range of performance. There is, therefore, no finding of deficient performance. Nor is there any prejudice.
Accordingly, the Court denies the Petitioner's writ of habeas corpus. Judgment may enter in favor of the Respondent.