Opinion
No. CV06-4001319
August 19, 2011
MEMORANDUM OF DECISION
THE COURT: All right. Now, I have heard both parties argue as to all of these claims, and we had some brief repartee between Mr. Biggar, who was dismissed earlier — regarding Claim 5 — from the Attorney General's Office.
So although I would ordinarily start with Claim 5, I think we'll go back — I'm going to go back even farther to a threshold issue that Mr. Diamond raised earlier regarding his request for a continuance.
And with respect to that, I just would like to make it very clear that the Court's position is that — as well as the position of case law in Connecticut — that unless there is a showing of necessity for a transcript, that there is no — that the petitioner would have no right, petitioner's counsel would have no right to have that transcript provided by the Court prior to the argument today.
And in fact, I would go even further in saying that with respect to each and every one of these claims, it is the Court's position that there was no credible evidence that would have been helpful to the petitioner that he could have used in his summation in order to make that argument.
So as far as the continuance matter is concerned, I think that there is no — absolutely no legal basis, regardless of what cases were stated in that motion, that, in fact, there is other case law in the State of Connecticut that would say quite otherwise.
Now, with respect to Claim 1, the actual innocence claim, the Court will find that the petitioner has failed to show by clear and convincing evidence with newly-discovered evidence that he, in fact, was innocent.
The claim that his testimony about relating to the attorney that he had alibi witnesses appears, in fact, to not be newly-discovered evidence; and in terms of argument, Mr. Greenalch did not hear any newly-discovered evidence during the trial, and I would have to agree with him. So Claim 1 is dismissed.
As to Claim 2 — this is the ineffective assistance claim, twenty-three specific allegations. And I'm not going to go through all twenty-three.
I'm simply saying very clearly that there was absolutely no evidence of any prejudice to the defendant, whether or not — and I'm not saying that he did, in fact, prove that there was insufficient or ineffective performance. I don't believe that was proven, either.
However, even assuming there was, I do not believe that there was any evidence that I heard that I could find would relate to the prejudice prong at all; so therefore, on the prejudice prong, I will find that that claim — that the petitioner has not sustained his burden on Claim 2.
Now, as to Claim 3. This is generally the one about the trial Court errors. There, there has been, certainly, procedural default, and in some of these issues, res judicata.
But if we look at the procedural default which was pled in the reply — in the return, there has been no reply, absolutely no reply; and that is the burden of the petitioner, to allege cause and prejudice as to any of those claims of procedural default. Therefore, that particular claim has to go by the wayside.
Even here, had the petitioner affirmatively stated that there was ineffective assistance and that is in general why he couldn't deal with these claims, there certainly is no prejudice here. Now, as to — and he would have failed on the merits, as well. But certainly, there was no reply filed, and that is very clear from the pleadings.
Now, as to Claim 4, we're talking about there the ineffective assistance of appellate counsel. Again, when that was argued both by Mr. Diamond and Mr. Greenalch, and during the trial, there was no evidence in any way — even an argument — that stated that the petitioner would have prevailed on any one or all of these specific claims so that the ineffective assistance of appellate counsel certainly cannot lie.
And as to — just tangentially, as to the fact that the petitioner represented himself and filed a brief, certainly the claim could not lie in that regard. He can't claim he was himself ineffective.
But as to the other two — or at least Suzanne Zitser; there was certainly that listing in terms of the other attorney — but not even mentioned in the petition as to any other counsel, there has not been any showing that anything that that counsel should have claimed would have any merit and would have succeeded on appeal.
And finally, as to Claim 5, the challenge of the transfer to Connecticut; there, I think it's almost embarrassingly clear that the petitioner went to trial, and he was convicted by a jury, well after the fact that he could have done anything; and many things were done.
There was in the return the claim that some of these issues certainly were dealt with before, and the Appellate Court decision relates to, certainly, the issue of litigation.
There were many continuances, in fact, that were requested by the petitioner, so he must have been represented by counsel. It mentions, I believe — in the Appellate Court decision on Page 633, the record reveals that the defendant through his attorney requested and was granted a continuance for a total of seven weeks.
So there were a series of hearings, a series of continuances, certainly the opportunity — which was waived by the petitioner — so that Claim 5 should also be denied as something that should not and could not have been raised in this proceeding.
Now, I will direct the reporter to make a transcript of the Court's remarks, which are relatively brief, and those will be signed and filed as the Court's decision.
It appears the Marshal is now handing the paperwork so that the petitioner may appeal and file his appeal accordingly.
And at this point we will conclude.
(The matter was concluded, and court was adjourned for the day.)