Opinion
No. CV 00 0598367
October 24, 2007
MEMORANDUM OF DECISION
The petitioner, Lloyd Satchwell, alleges in his petition for a writ of habeas corpus, amended for a third time on July 28, 2006, that he was denied the effective assistance of trial defense counsel in violation of the sixth and fourteenth amendments to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution. The petitioner also claims he was denied the right to due process in that the state suppressed favorable evidence and a conflict of interest existed within the Waterbury State's Attorney's office at the time of his criminal trial.
The third amended petition also contained a claim of ineffective assistance of appellate counsel. That claim was withdrawn by the petitioner at the habeas trial.
Trial of this matter was held on July 6, 2006, and May 29, June 7 and July 3 of 2007. Testimony was received from the petitioner, the petitioner's trial defense counsel Attorney Alan McWhirter, investigator Vincent Paolino and Attorney Richard Silverstein. Transcripts of the petitioner's criminal trial and various other documents were admitted into evidence.
For the reasons set forth more fully below, the amended petition shall be denied.
Findings of Fact
Based upon a full review of the testimony and evidence, this court makes the following findings of fact:
1. The petitioner was the defendant in a criminal case, Docket Number CR 93-0216549, in the judicial district of Waterbury. After a trial to a jury, the petitioner was found guilty of four counts of arson murder in violation of General Statutes § 53a-54d and one count each of arson in the first degree in violation of General Statutes § 53a-111(a)(1) and conspiracy to commit arson in the first degree in violation of General Statutes §§ 53a-48(a) and 53a-111(a)(1).
2. On May 3, 1996, the trial court sentenced the petitioner to a total effective term of 120 years imprisonment without the possibility of release.
3. Attorney Alan McWhirter represented the petitioner throughout the criminal proceedings.
4. The jury reasonably could have found the following facts to be true concerning the underlying offense: "The [petitioner's] wife, Esmay Notice, owned a three story duplex located at 85 Crescent Street in Waterbury. At all times relevant to this appeal, two families occupied separate apartments in the duplex: (1) Clarence Winston, Sr., and Barbara Winston, their three children, Tiana, Clarence, Jr., and Tarley, and Tiana's two children, three-year-old Tiana and eighteen-month-old Jostin; and (2) Dwayne Wilson and Laurie Mercer, and their six children.
5. "In early 1993, Notice became upset with Wilson and Mercer because they were not making timely rental payments. Notice also was angry with the [petitioner] because he had been collecting rent from the Winstons and not turning it over to Notice. Due to the difficulty that Notice was having in obtaining the rental payments, she was obliged to use her own savings to make the mortgage payments on the duplex. Unhappy with the situation, Notice resolved to have the duplex burned down in order to have it `out of [her] way,' and to collect the proceeds of the insurance policy on the property.
6. "In late April or early May 1993, Notice sought the assistance of an acquaintance, Valerie Evans, in locating someone who would be willing to set fire to the duplex. In return for Evans' help, Notice promised Evans, who was unemployed, that she `would never [again] be out of work.' Evans agreed to introduce Notice to Donnie Burton, who, Evans thought, might agree to set fire to the building.
7. "Several days later, Evans introduced Notice to Burton. Notice explained to Burton that she was looking for someone to set fire to a house, and she offered Burton cash and crack cocaine if he would do it. When Burton asked whether the home was occupied, Notice responded that the tenants had been evicted. Notice also told Burton that the [petitioner] would meet with Burton later that day.
8. "That evening, the [petitioner] and Evans met with Burton. The [petitioner] asked Burton whether he `knew what was going on, if [Notice had] spoke[n] to [him] already.' Burton responded affirmatively, and the [petitioner] told Burton that he would be notified when it was time for him to `do the job.'
9. "Soon thereafter, Notice telephoned Evans, gave Evans the address of the duplex, and informed Evans that she was `ready to have the [duplex] burned down.' The next day, Notice and Evans again met with Burton. Notice told Burton that she wanted the duplex burned `down to the ground' by the end of the month, and reassured him that she would make it worth his while. Burton, however, was noncommittal.
10. "A short time later, Burton, concerned that the duplex might be occupied, proceeded to the address provided to him by Notice. Observing lights on inside the duplex and a leashed dog and a parked car outside, Burton concluded that the building was occupied. For that reason, Burton decided not to be involved in the plan to burn down the duplex.
11. "Upon learning of Burton's decision, the [petitioner] told Notice that he would set fire to the building. In preparation for doing so, the [petitioner] obtained two one-gallon plastic containers and filled them with gasoline. The [petitioner] also secured a homemade timing device that had been constructed from a `Jello' gelatin box and a book of matches. The [petitioner] explained to Notice that he intended to use the device, along with a lit cigarette, to ignite the gasoline, which he planned to use as an accelerant.
12. "Notice went to bed at approximately 10 p.m. on May 30, 1993. The [petitioner], who had been visiting a friend that evening, returned home between midnight and 1 a.m., awakened Notice, and informed her that he was going back out to burn down the duplex. Notice then went back to sleep.
13. "The [petitioner] returned shortly and informed Notice that he had poured gasoline on the front steps of the duplex and ignited it. Notice detected a slight odor of gasoline on the [petitioner], who showered and went to bed.
14. "At approximately 3 a.m. on May 31, Wilson and Mercer, awakened by their intercom buzzer, proceeded to the first floor of the duplex and observed the front porch ablaze. Wilson and Mercer escaped through a rear door of the building with their children. Upon learning of the fire, Clarence Winston, Jr., and Tarley Winston also managed to escape through a rear exit, and Tiana Winston, their sister, jumped to safety from a rear second floor porch. Clarence Winston, Sr., and Barbara Winston, who, along with their granddaughter Tiana, were observed on the roof of the front second floor porch, refused to jump and, instead, reentered the duplex.
15. "By the time members of the Waterbury fire department arrived, flames were visible in all of the windows of the duplex, and the intensity of the fire prevented the firefighters from entering the building. When they finally were able to gain entrance into the duplex, firefighters found the remains of Clarence Winston, Sr., Barbara Winston, and their two grandchildren, Tiana and Jostin.
16. "At approximately 6 a.m. on May 31, Notice received a telephone call from a former tenant notifying her of the fire. Notice awakened the [petitioner], and they went outside to Notice's car. The [petitioner] removed the two plastic containers from the car and placed them in a toolshed next to the garage. He also retrieved the timing device from the car's trunk, but inadvertently dropped the device on his way to the toolshed. The [petitioner] and Notice thereafter drove to the duplex, informed the Waterbury police that they were the building's landlords and, at the request of the police, voluntarily proceeded to the police station, where they were questioned separately. Notice provided the police with a sworn statement implicating the [petitioner] in the fire.
17. "Later that morning, Waterbury police officers, accompanied by Notice, executed a search warrant at the home where she and the [petitioner] resided. The police seized numerous articles of clothing and other items of personal property from the residence. The police also retrieved the two plastic containers from the toolshed, along with the homemade timing device that the [petitioner] accidentally had left in his yard earlier that morning. Tests conducted by the state forensic laboratory detected the presence of gasoline in the two plastic containers and on a pair of men's black slacks seized from the [petitioner's] residence.
18. "The police also obtained a search warrant for Notice's car. Upon executing the warrant, the police detected a heavy odor of gasoline inside the vehicle. In addition, the floor mat and a piece of carpet retrieved from the front passenger side of the car tested positive for gasoline. Finally, the state tested wood samples taken from the front steps and porch of the duplex. These tests also revealed the presence of gasoline.
19. "On the basis of his review of the fire scene and the evidence collected by the police, Waterbury fire marshal Anthony Zappone concluded that the fire had been set deliberately, and that it had spread from the front porch of the duplex, where an accelerant had been used, to the rear of the building. Autopsies performed on the four victims revealed that they had died of smoke inhalation.
20. "Both Notice and the [petitioner] were arrested and charged in connection with the arson. Prior to trial, Notice pleaded guilty to one count of aiding and abetting first degree arson in violation of General Statutes §§ 53a-8 and 53a-111(a)(1), and to one count of conspiracy to commit first degree arson in violation of General Statutes §§ 53a-48(a) and 53a-111(a)(1). After the conclusion of the [petitioner's] trial, Notice, who had been the state's key witness against the [petitioner], was sentenced to a term of imprisonment of twenty-five years for her involvement in the arson." State v. Satchwell, 244 Conn. 547, 550-55, 710 A.2d 1348 (1998).
21. Vincent Paolino is an investigator with the Office of the State's Attorney in Waterbury. Prior to working in the prosecutor's office, Mr. Paolino worked on the petitioner's case as an investigator with the Office of the Chief Public Defender. Mr. Paolino testified at the habeas trial that he went to work at the state's attorney's office in September of 1994, prior to the start of the petitioner's criminal trial. He further testified that he never discussed the petitioner's case with State's Attorney John Connelly, who tried the petitioner's case, nor with any other person in or connected to the state's attorney's office.
22. Additional facts will be discussed as necessary.
Discussion of Law
It is important at the outset to understand that there is a critical difference between the legal status of a person who has been accused of a crime as opposed to the legal status of one who has been convicted of a crime. While the person who has been accused of a crime is entitled to a presumption of his or her innocence, the petitioner in a habeas corpus action, having already been convicted, is not. "It is undoubtedly true that `[a] person when first charged with a crime is entitled to a presumption of innocence, and may insist that his guilt be established beyond a reasonable doubt. In re Winship, 397 U.S. 385, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970),' Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 859, 122 L.Ed.2d 203 (1993). The presumption of innocence, however, does not outlast the judgment of conviction at trial.
Thus, in the eyes of the law, [the] petitioner does not come before [this] Court as one who is `innocent,' but on the contrary as one who has been convicted by due process of law." (Citations omitted; internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 422-23, 641 A.2d 1356 (1994).
Due Process Claims I. Conflict of Interest
The petitioner alleges that at the time of his criminal trial the Waterbury Office of the State's Attorney had a conflict of interest and should have been disqualified from prosecuting his case. The alleged conflict concerns state's attorney investigator Vincent Paolino. Prior to his employment with the state's attorney, Paolino worked as an investigator for the Public Defender's Office in Waterbury. While at the public defender's office, Paolino assisted Attorney McWhirter in the investigation of the petitioner's case.In State v. Jones, 180 Conn. 443, 429 A.2d 936 (1980), overruled in part on other grounds, State v. Powell, 186 Conn. 547, 442, A.2d 939 (1982), cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S.Ct. 85, 74 L.Ed.2d 80 (1982), the Connecticut Supreme Court addressed the disqualification of the New Haven State's Attorney's Office where the chief assistant state's attorney in that office represented the criminal defendant in a civil action more than a decade earlier. There, although the chief assistant state's attorney had access to the defendant's criminal file, he neither looked at the file nor discussed the case with any of the assistant state's attorneys. Id., 446-47. He also had nothing to do with the defendant's prosecution, which arose out of a murder charge. Id.
The Jones court established a two-part test to resolve the issue of attorney disqualification. Under this test, disqualification is warranted when the defendant "had in the past enjoyed an attorney-client relationship with the attorney" and the attorney "accepted employment adverse to the interests of [the] former client on a matter substantially related to the prior litigation." Id., 449-50. The substantial relationship portion of the test requires "disqualification only upon a showing that the relationship between the issues is patently clear or when the issues are identical or essentially the same." (Internal quotation marks omitted.) Id., 449.
Employing the two-part test, the Court determined that the chief assistant state's attorney's representation of the defendant evidenced a prior attorney-client relationship. Id., 451. Additionally, because the prior case arose out of a car accident, medical information concerning the defendant could have been disclosed, information that "the defendant might reasonably assume would be withheld from the state in his criminal prosecution. In view of the notice given by the defendant that he may rely on a defense of mental disease or defect and the injuries to his head caused by the automobile accident . . . [the Court found] a substantial relationship between [the] criminal prosecution for murder and the prior civil litigation." Id. Both parts of the test were met, thus necessitating the chief assistant state's attorney's disqualification. Id., 452. The disqualification, however, did not extend to the other prosecutors in the New Haven State's Attorney's Office. Id., 452, 456-57.
The instant case presents a situation similar to that addressed by the Court in Jones. Here, Mr. Paolino assisted in matters concerning the petitioner's criminal case while he was employed at the Waterbury Public Defender's Office. Investigator Paolino had a relationship with the petitioner akin to that shared by an attorney and client in that Mr. Paolino engaged in confidential communications with the defendant and Attorney McWhirter about the petitioner's criminal case. Mr. Paolino's prior association with the petitioner was not just substantially related to the matter of the petitioner's prosecution — it was directly related to the petitioner's criminal case. Thus, there is no question that Mr. Paolino should have been expressly barred from working with the state's attorney on the petitioner's case.
Disqualification of the entire Waterbury State's Attorney's Office, however, is not necessarily required. As in Jones, investigator Paolino had nothing to do with the defendant's prosecution nor is there any evidence that Mr. Paolino discussed the petitioner's case with anyone in or connected to the state's attorney's office. Mr. Paolino adamantly denied having any discussions with the state's attorneys about the petitioner's case and this court credits his 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.) Edwards v. Commissioner of Correction, 88 Conn.App. 169, 173, 868 A.2d 125, cert. denied, 273 Conn. 941, 875 A.2d 43 (2005). There is nothing to suggest that the state's attorney's office gained even the slightest advantage from Mr. Paolino's prior association with the petitioner.
Based on the foregoing, there is simply no proof that the petitioner was deprived of a fair trial. Consequently, this due process claim is denied.
II. Brady Violation
The petitioner next claims that he was deprived of a fair trial because the state's attorney failed to disclose favorable evidence concerning Ms. Notice's plea agreement. Specifically, the petitioner claims that his wife was promised a reduction in the charges against her in exchange for her testimony at the petitioner's criminal trial.
The following additional facts are relevant to the petitioner's claim. On July 8, 1993, Ms. Notice was charged with conspiracy to commit arson in the first degree, arson in the first degree and arson murder. On August 10, 1995, Ms. Notice pleaded guilty, under a substituted information, to aiding and abetting arson in the first degree and conspiracy to commit arson in the first degree. Ms. Notice thereafter testified against the petitioner at his criminal trial prior to her sentencing.
During Ms. Notice's testimony, Attorney McWhirter used information about the plea agreement as impeachment evidence. On cross examination Ms. Notice testified that she could not recall many details of the agreement. Attorney McWhirter refreshed Ms. Notice's recollection by using the transcript from her plea hearing, in which the state's attorney stated on the record that cooperation by Ms. Notice would be brought to the attention of the sentencing court. Ms. Notice testified on redirect, however, that the state's attorney never expressly promised her anything in exchange for her guilty plea. During closing argument, Attorney McWhirter highlighted Notice's cooperation with the state:
I introduced a couple of things for you to look at at your leisure when you have the opportunity to have all the exhibits with you. And one of them, of course, is a transcript of a portion of the plea that Esmay took . . . You can decide what it means . . . For almost two years Esamy Notice was charged with four counts of aiding and abetting arson murder. Each count carries life in prison. Those counts get dropped. She agrees to testify and then she pleads guilty. No longer facing the charges or the sentence that she previously faced. Is she looking out for the interests of justice or her own self-interests again?
Ex. 2, Tr. 3/21/96, pp. 118-19. State's Attorney Connelly denied Attorney McWhirter's suggestion that he made a deal with Ms. Notice during the state's closing argument. Ex. 2, Tr. 3/21/96, pp. 127.
Ms. Notice's criminal defense attorney, Attorney Richard Silverstein, testified at the habeas trial. Attorney Silverstein testified that Ms. Notice's plea bargain consisted of a 40-year sentence cap with the right to argue for less. Attorney Silverstein further testified that dropping the arson murder charges in exchange for Ms. Notice's testimony was never part of the plea agreement. Attorney Silverstein stated that he expected Ms. Notice to receive some consideration at sentencing for her cooperation, but he never anticipated a reduction in charges. Attorney Silverstein testified that State's Attorney Connelly made a unilateral decision to reduce Ms. Notice's charges and that the reduction in charges did not affect the length of Notice's sentence.
The petitioner filed a motion for permission to call State's Attorney Connelly as a witness at the habeas trial. Attorney Connelly was the lead counsel representing the respondent in the habeas trial as well as having been the prosecutor at the petitioner's initial criminal trial. The petitioner asserted that it was necessary to question Mr. Connelly concerning, inter alia, the reason why the more serious charges against Ms. Notice were dropped. The court denied the motion due to an insufficient showing that Ms. Notice's plea agreement included a promise to reduce her charges in exchange for testimony against the petitioner.
"In [ Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)] . . . the United States Supreme Court held that the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. To establish a Brady violation, the [petitioner] must show that (1) the government suppressed evidence, (2) the suppressed evidence was favorable to the [petitioner], and (3) it was material [either to guilt or to punishment]." (Internal quotation marks omitted.) Floyd v. Commissioner of Correction, 99 Conn.App. 526, 533-34, 914 A.2d 1049, cert. denied, 282 Conn. 905, 920 A.2d 308 (2007).
"Our Supreme Court has recognized that `[i]mpeachment evidence as well as exculpatory evidence falls within Brady's definition of evidence favorable to an accused.' (Internal quotation marks omitted.) State v. Monteeth, 208 Conn. 202, 213, 544 A.2d 1199 (1988) . . . The purpose of requiring the state to disclose impeachment evidence to a criminal defendant is to ensure that the jury knows the facts that might motivate a witness in giving testimony." (Citations omitted; internal quotation marks omitted.) Walker v. Commissioner of Correction, 103 Conn.App. 485, 492-93, 930 A.2d 65 (2007).
"A petitioner bears the burden of proving the existence of an agreement between the state and a state's witness . . . Any such understanding or agreement between any state's witness and the . . . state's attorney clearly falls within the ambit of the Brady principles . . . An unexpressed intention by the state not to prosecute a witness does not." (Citations omitted.) Id., 493.
Based on the evidence presented, this court finds that the plea agreement between Ms. Notice and the state does not fall "within the penumbra of Brady." Id., 493-94. It is without question that the plea agreement was disclosed to the petitioner. Attorney McWhirter used the existence of the agreement as impeachment evidence against Ms. Notice at the petitioner's criminal trial. Attorney McWhirter also emphasized Ms. Notice's interests in cooperating with the state during closing argument. Although it is conceivable that there might have been some connection between Ms. Notice's cooperation and the state's decision to reduce her charges, that connection is not proof that an element of the plea agreement was kept from the petitioner. See State v. Floyd, 253 Conn. 700, 739, 756 A.2d 799 (2000) (defendant's willingness to testify and state's recommendation concerning that witness is not a connection sufficient to find the existence of an implied plea agreement). The evidence demonstrates that Ms. Notice testified with the hope that she would receive consideration at sentencing, not because she was promised a reduction in charges. In addition, "a prosecutor has wide discretion as to whether to charge, what the charge should be, and whether to pursue a prosecution." Evans v. Commissioner of Correction, 47 Conn.App. 773, 780, 709 A.2d 1136, cert. denied, 244 Conn. 921, 714 A.2d 5 (1998). There is simply nothing to support the conclusion that there was a secret, undisclosed agreement.
Favorable evidence was not suppressed in the petitioner's criminal case. The petitioner, therefore, cannot prevail on his due process claim.
Deprivation of the Effective Assistance of Trial Counsel
Lastly, the petitioner asserts multiple claims that he was deprived the effective assistance of trial counsel. Specifically, the petitioner claims that counsel: (1) failed to present evidence that the petitioner did not commit arson; (2) failed to present evidence that the pants presented as evidence by the state did not belong to the petitioner; (3) failed to present evidence to show that Ms. Notice was given more consideration by the state for her testimony than she admitted to; (4) failed to seek a factual determination by the trial court concerning whether Notice was given more consideration by the state than she admitted to; (5) failed to file a motion in limine to prevent the state from impeaching the petitioner with the written statement attributed to him; (6) incorrectly advised the petitioner not to testify; and (7) failed to request the disqualification of the Waterbury State's Attorney's Office for a conflict of interest.
Many of the ineffective assistance claims set forth in the third amended petition were withdrawn at trial. The court addresses the remaining claims here.
The petitioner also makes various claims that trial counsel failed to address instances of prosecutorial impropriety (Third Amended Petition ¶¶ 13R, 13S, 13T and 13U). None of the claims identified specific acts of misconduct on the part of the State's Attorney and nothing was presented at the habeas trial to clarify exactly what acts Attorney McWhirter failed to address. The court, therefore, concludes that the petitioner has abandoned these claims.
In order to prevail on the claim of ineffective assistance of counsel, the petitioner must satisfy both prongs of the test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, the petitioner must first show "that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the [s]ixth [a]mendment." Id., 687. If, and only if, the petitioner manages to get over the first hurdle, then the petitioner must clear the second obstacle by proving "that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id. In short, the petitioner must show both deficient performance and prejudice. A failure to prove both, even though counsel's trial performance may have been substandard, will necessarily result in denial of the petition.
Trial in this court of a habeas petition is not an opportunity for new counsel to attempt to relitigate the case in a different manner. It is an indisputable fact that many times if one had foreknowledge of certain events, different courses might well have been taken. Thus, "[a] fair assessment of an attorney's performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances to 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." (Internal quotation marks omitted.) Henry v. Commissioner of Correction, 60 Conn.App. 313, 317, 759 A.2d 118 (2000).
The petitioner makes various allegations that Attorney McWhirter failed to offer evidence in support of his defense. Attorney McWhirter testified at the habeas trial that it was the theory of the defense that Esmay Notice committed the arson, not the petitioner. From the criminal trial transcripts, it is clear that Attorney McWhirter aggressively pursued that defense. As Attorney McWhirter testified at the habeas trial, there was no direct evidence of Ms. Notice's guilt. Attorney McWhirter therefore highlighted inconsistencies in Ms. Notice's testimony during cross examination and used Ms. Notice's plea agreement as impeachment evidence against her. Esmay Notice was the state's star witness; assaulting her credibility was a reasonable trial strategy and Attorney McWhirter's execution of that approach falls well within constitutional bounds. Concerning the black pants seized from the petitioner's apartment, no evidence was presented at the criminal trial directly linking the pants to the petitioner. Attorney McWhirter made it clear through his objections and in closing argument that no one ever identified the pants as belonging to the petitioner.
At the habeas trial, the petitioner did not proffer any additional evidence that Attorney McWhirter could have presented at the criminal trial, aside from his own testimony. Even if Attorney McWhirter could have saved the petitioner from impeachment by suppressing the petitioner's voluntary statement to the police, there was nothing in the petitioner's testimony at the habeas trial that would have rendered his conviction unreliable. The petitioner testified at the habeas trial that he did not see Ms. Notice light the fire. He further testified that Ms. Notice never explicitly told him that she burned the house. There is, therefore, simply nothing in the petitioner's testimony that would have persuaded a jury that his version of events was more credible than those testified to by Esmay Notice. In sum, the petitioner failed to demonstrate a reasonable probability that, had he testified, the outcome of the criminal trial would have been different. The above allegations of ineffective assistance of counsel, therefore, fail on both parts of the Strickland test.
The petitioner also claims that Attorney McWhirter was ineffective for failing to show that Ms. Notice was given more consideration by the state than she admitted to and seek a factual determination by the trial court concerning whether Notice was actually given additional consideration. As discussed above, no evidence was presented at the habeas trial in support of the petitioner's contention that Ms. Notice was promised a reduction in her charges in exchange for her testimony against the petitioner. Attorney McWhirter made reasonable attempts at the criminal trial to persuade the jury that Ms. Notice agreed to cooperate with the state because charges would be dropped. Attorney McWhirter effectively utilized the plea agreement to impeach her on cross examination. He was also successful in getting the original and substitute charging informations admitted into evidence, over the state's objection, to bolster his assertion that Notice's decision to testify was influenced by promises made by the state.
The only additional thing Attorney McWhirter could have done to contest the nature of the plea agreement was to put Ms. Notice's attorney on the stand to testify at the criminal trial.
Taking such action would not have been helpful, however, as Attorney Silverstein testified at the habeas trial that a reduction in charges was never part of Notice's plea agreement. There is simply no evidence that trial counsel's performance was deficient, nor that the petitioner was, in any way, prejudiced, due to the manner in which the issue of Notice's plea agreement was addressed at the criminal trial.
The petitioner's final ineffective assistance claim concerns the Waterbury State's Attorney's Office alleged conflict of interest. As discussed above, there would have been no basis to disqualify the entire state's attorney's office. Attorney McWhirter was therefore not ineffective for failing to request such a disqualification.
Accordingly, the petition for a writ of habeas corpus is denied. The petitioner shall submit a judgment file to the Clerk's Office within thirty days of the date of this decision.