Opinion
No. CV 05 4000344
June 25, 2008
Memorandum of Decision
This petition involves a "habeas on a habeas," and thus bears resemblance to a legal hall of mirrors. In 1999, a jury convicted the petitioner of sexual assault in the first degree, sexual assault in the fourth degree, three counts of risk of injury to children, and being a persistent felony offender. The charges stemmed from the petitioner's sexual involvement with a twelve-year-old girl in 1996. The court, Sferrazza, J. sentenced the petitioner to forty years, suspended after twenty-five years in prison, and ten years probation.
On appeal, the petitioner claimed that the trial court improperly permitted an expert witness for the state to offer an opinion about the credibility of the sexual assault victim and the petitioner's guilt. Our Supreme Court affirmed the conviction on the ground that the petitioner had not preserved the claim at trial. State v. Toccaline, 258 Conn. 542, 783 A.2d 450 (2001).
In 2002, the petitioner filed a habeas petition alleging ineffective assistance of trial counsel, attorney Mark Hauslaib, and appellate counsel, attorney Richard Cramer, and actual innocence. The habeas court, Rittenband, J.T.R., found ineffective assistance of trial and appellate counsel and granted the petition, ordering a new trial. On the state's appeal, the Appellate Court reversed the habeas court on both grounds, thus reinstating the conviction, and the Connecticut and United States Supreme Courts denied further review. See Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied, 543 U.S. 854 (2004).
The habeas court rejected the claim of actual innocence.
The petitioner has now filed a second habeas corpus petition alleging ineffective assistance of habeas counsel, attorney Conrad Seifert. Based on the facts and conclusions that follow, the court denies the relief sought.
The petition also included a second count alleging actual innocence. On January 29, 2008, the court granted the respondent's motion to dismiss this count on the ground that the petitioner raised and litigated this claim in the first habeas petition and thus res judicata barred its relitigation. See Thorpe v. Commissioner of Correction, 73 Conn.App. 773, 777-79, 809 A.2d 1126 (2002); Practice Book § 23-29(3).
I CT Page 10564
The Supreme Court's opinion contained the following statement of the facts that the jury could reasonably have found. "The victim, MC, was born on May 7, 1984. In 1996, the defendant, who was thirty-five years old, was the boyfriend of the victim's aunt. The defendant and the victim's aunt lived together in a house near a lake, where MC sometimes visited. Usually, the defendant went to MC's house to pick her up and bring her to her aunt's house. During the visits, MC and the defendant often played video games or went fishing together."Three acts of sexual contact by the defendant occurred during the period from June 1996, through September 1996, when MC was twelve years old. In the first incident, the defendant kissed MC's breasts and vaginal area. In the second incident, which occurred in August 1996, when the defendant and MC were fishing from a boat on the lake, the defendant placed MC's hand on his penis. He then put his hand over hers and manually stimulated himself until he ejaculated. During the third incident, which occurred in September 1996, the defendant invited MC to come to his bed. He then got on top of her, pinned her hands above her head, and penetrated her vagina with his penis. MC did not tell her mother or aunt about the events with the defendant because she was afraid of the defendant. In October 1996, MC and her family moved to another state.
"In February 1998, while cleaning MCs bedroom, her mother found a letter written to MC from a man named W, who was a friend of MC's family. W had begun to baby-sit for MC and her siblings in the summer of 1997. At that time, W was thirty-two years old and MC was thirteen. In the letter, W told MC that he wanted to hold her and take her pain away.
"MC's mother was concerned about the contents of the letter and confronted W about his relationship with MC. Her mother also confronted MC about her relationship with W. Although she denied any sexual contact with W, MC told her mother about the incidents that had occurred with the defendant during the summer of 1996. MC also had told W about the defendant's conduct prior to disclosing this information to her mother.
"The defendant gave a statement to the police in which he responded to MC's allegations of sexual abuse. In the statement, the defendant claimed that he and MC often "horse played" together. The defendant admitted that he may have had sexual contact with MC during this horseplay, although, he claimed, MC never objected to such contact and that the contact did not constitute intercourse. The statement was entered into evidence and read aloud to the jury." (Footnotes omitted.) State v. Toccaline, supra, 258 Conn. 545-47.
II
The petitioner presents three claims of ineffective assistance of habeas counsel. To succeed in proving ineffective assistance of habeas counsel, a petitioner must ordinarily prove both that his habeas counsel was ineffective and that his trial counsel was ineffective. See Lozada v. Warden, 223 Conn. 834, 842, 613 A.2d 812 (1992). "A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense. 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." (Internal quotation marks omitted; internal citations omitted.) Id., 842-43, citing Strickland v. Washington, 466 U.S. 668, 687 (1984). Our Supreme Court has agreed with the description of this burden in attacking the effectiveness of habeas counsel as a "herculean task." Lozada v. Warden, supra, 223 Conn. 843.
At the outset of this habeas trial, the petitioner clarified that he was pursuing only paragraphs 14a, 14c, and 14f of the January 2007 amended petition.
A
To prove deficient performance, the petitioner must show that habeas counsel's representation "fell below an objective standard of reasonableness . . ." Duperry v. Solnit, 261 Conn. 309, 335, 803 A.2d 287 (2002). "[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.) Ziel v. Commissioner of Correction, 89 Conn.App. 371, 376, 873 A.2d 239, cert. denied, 275 Conn. 920, 883 A.2d 1254 (2005).
The petitioner's first specification of ineffective assistance of habeas counsel, as amended during the trial, alleges that Seifert "failed to plead or present evidence to show the ineffectiveness of petitioner's trial counsel for failing to investigate and bring to the trial court's attention newly discovered post-verdict alibi evidence which specifically proved it was impossible for the petitioner to have committed the first degree sexual assault for which he was convicted, and which should have been used by Petitioner's defense attorney to move for a new trial. Attorney Seifert only raised the issue in his post-trial brief, for which reason the Appellate Court refused to address the issue and held that the habeas court should not have addressed the issue and found ineffectiveness on this ground as it did." (Amended Petition, count one, paragraph (para.) 14a.) Applying the appropriate standards, the petitioner cannot establish deficient performance on this claim. The petitioner's legal expert in this second petition, attorney Leon Kaatz, also served as an expert and advisor to Seifert in the first habeas petition. Kaatz wrote an opinion letter to Seifert that identified and commented on areas in which Hauslaib may have been ineffective. Kaatz did not identify Hauslaib's failure to investigate or move for a new trial based on newly discovered post-verdict evidence as a potential claim. Given that the petitioner's own legal expert did not see Hauslaib's failure to investigate or move for a new trial as a basis for an ineffective assistance claim, it follows logically that Seifert's performance on this issue did not fall below an objective standard of reasonableness.
The Appellate Court's discussion of this issue is found at Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 817-18.
On June 10, 2008, after the present habeas trial, the petitioner submitted a further amended petition in which he attempted to allege in paragraph 14a that Seifert was ineffective for failing to allege and prove that Hauslaib failed "to adequately investigate the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case . . ." This attempted amendment is improper. It goes beyond what the court permitted at the present habeas trial by raising the additional issue of failure to conduct additional investigations prior to the verdict. The respondent had no notice prior to the present habeas hearing of this additional allegation. Further, the Appellate Court has already rejected the claim that Hauslaib failed adequately to investigate the case prior to verdict; id., 815-17; and thus res judicata bars its relitigation. See Thorpe v. Commissioner of Correction, supra, 73 Conn.App. 777-79. Accordingly, the court denies the petitioner's attempt to amend the petition after the hearing and confines the allegations of paragraph 14a to those quoted in the text.
Indeed, one of the several ironies of this case is that Seifert, without any prompting from Kaatz, actually raised and then prevailed on this issue — and many others — in the habeas court. The habeas court found that "the failure of Hauslaib to develop this evidence earlier and particularly the failure of Hauslaib to fully present this evidence as part of his motion for new trial is conduct, or lack of conduct, that falls below the level of competence of criminal defense attorneys in the area." (Exhibit (Ex.) 9, p. 26.) In view of the undisputed rarity with which counsel prevail before any court in a habeas case, it is difficult to see how counsel could be labeled ineffective when he does in fact prevail, even if only at the trial court level.
A second reason why Seifert's performance on this issue was not deficient is that further investigation by Hauslaib and submission of a motion for a new trial based on newly discovered post-verdict evidence could not have invalidated the petitioner's conviction at that point. Indeed, because there is no merit as a matter of law to the underlying claim of ineffectiveness against Hauslaib, any failure on Seifert's part to plead or prove this issue could not possibly represent deficient performance. It was settled at the time of the criminal trial that a "motion for a new trial under Practice Book § [42-53] is limited to trial errors, and cannot be based on newly discovered evidence." State v. Jones, 205 Conn. 723, 730, 535 A.2d 808 (1988). Accord State v. Murdick, 23 Conn.App. 692, 704, 583 A.2d 1318, cert. denied, 217 Conn. 809, 585 A.2d 1233 (1991) ("motion for new trial pursuant to Practice Book § [42-53] is limited to trial errors appearing on the record"). Instead, the proper means of bringing newly discovered evidence to the court's attention is to file a petition for a new trial; see State v. Murdick, supra, 23 Conn.App. 704-05; or a habeas petition alleging actual innocence; see Johnson v. Commissioner of Correction, 101 Conn.App. 465, 470-71, 922 A.2d 221 (2007); which, in the latter case, is precisely what Seifert did. Accordingly, because a motion for a new trial was not a proper pleading in this situation, Seifert was not deficient for neglecting to plead or prove that Hauslaib was ineffective in failing to investigate or bring newly discovered post-verdict evidence to the trial court's attention in a motion for a new trial.
During oral argument of the current petition, the petitioner's counsel suggested that, at a minimum, Hauslaib should have raised the newly discovered evidence as a mitigating factor at sentencing. This new theory was not pleaded. It is ironic, in a case in which the petitioner charges his first habeas attorney with ineffectiveness for a failure of pleading, that the petitioner's counsel would commit the same alleged mistake. In any event, it is illogical to conclude that trial counsel was deficient for failure to present evidence to the sentencing court amounting to the petitioner's denial of responsibility for the offenses of which a jury found him guilty. Trial or habeas counsel could reasonably assume that denying responsibility for sexual offenses against a minor would not likely lead to a reduction in the sentence that the defendant would otherwise receive.
B
Next, the petitioner alleges that Seifert was ineffective because "he failed to call an expert to offer testimony regarding false confessions to show the ineffectiveness of the trial attorney for failing to call such an expert to rebut the testimony of the officers who wrote the petitioner's statement . . ." (Amended petition, count one, para. 14c.) Seifert testified that he did not think about calling an expert in this area, although the cost of doing so would have been a factor in any such decision.
The Appellate Court heard only the claim that Hauslaib was ineffective for failing to have the petitioner testify at the hearing on the motion to suppress the statement. The Court rejected that claim, and reversed the habeas court's decision on it, on the ground that the petitioner did not demonstrate a reasonable probability that, with his testimony, the outcome of the suppression hearing would have been different. Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 811-14.
In any case, the real question is whether habeas counsel's representation "fell below an objective standard of reasonableness . . ." Duperry v. Solnit, supra, 261 Conn. 335. Seifert's representation did not. There were several reasons not to charge Hauslaib with ineffectiveness for failing to call an expert on false confessions. First, if habeas counsel can safely be analogized to criminal appellate counsel, then there is no duty imposed on habeas counsel to raise every nonfrivolous issue. Habeas counsel must instead exercise judgment as to which claims to raise. See Valeriano v. Bronson, 209 Conn. 75, 88-90, 546 A.2d 1380 (1988) (citing Jones v. Barnes, 463 U.S. 745, 750-53 (1983)); Ostalaza v. Warden, 26 Conn.App. 758, 774-74, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). In this case, Seifert alleged eleven specifications of ineffective assistance against Hauslaib, one against appellate counsel, and one claim of actual innocence. (Ex. 12.) Seifert could reasonably have concluded that to raise yet another claim of ineffective assistance would be to "[run] the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions . . ." (Internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn.App. 1, 11, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).
Second, a review of the trial transcript reveals that Hauslaib did an effective job at trial in cross-examining the two officers who took the statement from the petitioner. (Ex. 1, 9/15/99 transcript, pp. 83-99, 102-03, 115-18.) Hauslaib brought out many of the factors — such as the possibility of "minimization," the use of the "good guy, bad guy" technique, the similarity of the petitioner's statement to the victim's, and the failure of the police to tape record the statement — that the petitioner's expert psychologist, Solomon Fulero, discussed in his testimony at the present habeas trial.
Fulero described "minimization" as a technique in which the police suggest to a suspect that the incident may or possibly could have occurred, and possibly by accident.
Third, the petitioner testified at the previous habeas trial that he simply did not say much of what the police put down in his written statement. (Ex. 3, 7/9-7/10/2002 transcript, p. 157; 7/23/2002 transcript, pp. 12, 15, 17, 19.) Thus, the case was not one primarily involving allegations that the police tricked or coerced a suspect into saying something unintended, for which a psychologist might arguably have provided relevant testimony. Rather, the case, as Hauslaib would have seen it, was more of a credibility contest between the petitioner and the police as to whether the petitioner actually uttered the words in the written statement. Seifert could reasonably have concluded that Hauslaib had no obligation to hire an expert for such a credibility dispute.
Finally, the notion that defense counsel had an obligation to hire an expert on false confessions in cases of this nature was certainly a novel one at the time of trial in 1999, and perhaps still is. Indeed, Fulero himself did not begin testifying in this area until 2005. Although the petitioner cites two examples of Connecticut trial courts that had permitted such testimony by 1999; see, e.g., Reilly v. State, 32 Conn.Supp. 349, 368-71, 355 A.2d 324 (1976); no Connecticut appellate court had — or has — ever passed on, much less approved of, the admissibility of such evidence. Cf. State v. Kemp, 199 Conn. 473, 475-79, 507 A.2d 1387 (1986) (no abuse of discretion in excluding expert testimony on the reliability of eyewitness identification, as such matters are "within the knowledge of jurors and expert testimony generally would not assist them in determining the question"); see also Commonwealth v. Robinson, 449 Mass. 1, 4-7, 864 N.E.2d 1186 (2007) (upholding the exclusion of expert testimony on the psychology of police interrogations and confessions). "[N]umerous state and federal courts have concluded that counsel's failure to advance novel legal theories or arguments does not constitute ineffective performance . . . Nor is counsel required to `change then-existing law' to provide effective representation . . . Counsel instead performs effectively when he elects `to maneuver within the existing law, declining to present untested . . . legal theories.'" (Citations omitted.) Ledbetter v. Commissioner of Correction, 275 Conn. 451, 461-62, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187 (2006). Accordingly, Seifert was not deficient in declining to challenge Hauslaib's failure to call on expert on confessions.
C
The petitioner's final claim that Seifert was ineffective alleges that: "he failed to move for a continuance to conduct further investigation once new testimony came out at the habeas trial that the alleged crimes had occurred a full year earlier than alleged at the criminal trial. Two of the State's key witnesses, the mother and the aunt of the alleged victim, both recanted their criminal trial testimony which, like the information which charged the petitioner, alleged that the crimes had occurred in June, August, and September of 1996. Accordingly, all investigations undertaken by the petitioner's counsel revolved around the same months in 1996. However, at the habeas trial, these two witnesses completely reversed their criminal trial testimony and claimed that the alleged incidents had actually occurred in 1995, but Attorney Seifert failed to move for a continuance to conduct further investigations in light of the startling new evidence." (Amended Petition, count one, para. 14f.)
Unlike the first two claims of Seifert's ineffectiveness, this claim does not allege that Seifert was ineffective in prosecuting Hauslaib's ineffectiveness. Nonetheless, because an ineffective assistance of habeas counsel petition necessarily attacks counsel's performance in affirmatively proving a cause of action — unlike an ineffective assistance claim attacking criminal trial counsel, which attacks his role in a defensive posture — an ineffective habeas counsel claim must relate to some specific count, cause of action, or other claim.
In this case, the only habeas claim to which this allegation can relate is the actual innocence claim that Seifert alleged. Seifert testified at the present habeas trial that he had no obligation to respond to the testimony that the petitioner may have committed the crimes in 1995 because the petitioner was tried and convicted of charges that the state alleged occurred in 1996 and that he needed only to show that the petitioner was actually innocent of the 1996 charges. In this respect, Seifert was correct. An actual innocence claim requires that the petitioner "establish by clear and convincing evidence that, taking into account all of the evidence — both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial — he is actually innocent of the crime of which he stands convicted."(Emphasis added; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 101 Conn.App. 465, 470, 922 A.2d 221 (2007). Because the petitioner was not convicted of crimes occurring in 1995, Seifert had no obligation to present an actual innocence claim based on uncharged allegations of misconduct occurring in that year. Accordingly, Seifert's performance was not deficient with regard to the 1995 allegations.
An additional element of an actual innocence claim is to "establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime." (Internal quotation marks omitted.) Id.
In an apparent effort to establish that the state actually charged events that occurred in 1995, the petitioner cites the following passage from the Appellate Court opinion. "When her mother confronted her with the letter from W, MC denied that she had had any sexual contact with W, but she then told her mother about the incidents that had occurred with the petitioner in the summer of 1995 and that ultimately gave rise to the underlying criminal charges." (Emphasis added.) Toccaline v. Commissioner of Correction, supra, 80 Conn.App. 806-07. The reference to charges arising from events in the summer of 1995 is the only such reference in an Appellate Court opinion that contains numerous references to charges arising from events occurring in 1996. See, e.g., id., 809 ("The state charged the petitioner with having committed the offenses `on or about' June, August and September 1996 . . ."); id., 810 ("At the habeas trial, the petitioner introduced additional evidence to support his claim that by the summer of 1996 he had moved from his previous address and presented testimony from others providing him with alibis for certain dates during the summer of 1996") Thus, the Appellate Court's reference to charges arising from events in 1995, while ironic given the evidence in the first habeas trial, appears to be a scrivener's error.
In addition, the petitioner has not pleaded this matter properly. The petitioner alleges that, but for habeas counsel's ineffectiveness, "it is reasonably probable that the Appellate Court would not have reversed the habeas court's finding of ineffectiveness and the Petitioner would not have been reincarcerated." (Amended petition, count one, para. 18.) The first habeas court, however, rejected the petitioner's actual innocence claim, and the petitioner did not cross appeal. (Ex. 9, p. 33.) The petitioner does not properly allege that, but for habeas counsel's ineffectiveness, the habeas court would have granted the actual innocence claim and vacated the conviction.
III
Because a habeas petitioner charging ineffective assistance of habeas counsel must prove both deficient performance and prejudice; see Lozada v. Warden, supra, 223 Conn. 842; and the petitioner has failed to prove deficient performance, it is unnecessary for the court to address prejudice. See Peruccio v. Commissioner of Correction, 107 Conn.App. 66, 73 n. 1, 943 A.2d 1143 (2008). Accordingly, the petitioner has failed to prove ineffective assistance.
IV
The remaining issue is the petitioner's renewed motion, made at the end of the habeas trial, for a commission to depose the victim, MC, who apparently now resides in Maryland. The court denied the original pretrial motion "without prejudice to renewal if the court denies the motion to dismiss or the petitioner, prior to or during the trial, makes a sufficient preliminary showing of deficient performance so as to justify consideration of the prejudice prong." (#118; January 17, 2008.) The basis of the court's ruling was as follows. The Practice Book provides in habeas cases that "[d]iscovery as of right is limited to (1) [a] list of witnesses; (2) [a] statement of the subject matter upon which any expert witness is expected to testify, [and] (3) [a] statement of the opinions the expert is expected to render and the ground for each opinion." Practice Book § 23-38(a). The same Practice Book section adds that "[t]he provisions of chapter 13, Discovery and Depositions of the rules of practice, do not apply to habeas corpus proceedings." Practice Book § 23-38(a). The Practice Book does provide for depositions in habeas cases as follows: "Upon leave of the judicial authority, the testimony of any person may be taken by deposition if the testimony will be required at an evidentiary hearing . . ." and it appears that the witness is unavailable for trial for various reasons. When construed together, these rules provide that a habeas petitioner does not have an absolute right to take a deposition, but the court may grant leave to do so if the testimony is "required at the evidentiary hearing" and the witness is unavailable.
As stated, the court granted the respondent's motion to dismiss, which sought dismissal of count two alleging actual innocence. See note 2 supra.
In full, § 23-38 provides as follows:
(a) Discovery, as of right, is limited to: (1) A list of witnesses; (2) A statement of the subject matter upon which any expert witness is expected to testify; (3) A statement of the opinions the expert is expected to render and the ground for each opinion.
(b) The parties may cooperatively engage in informal discovery. The provisions of chapter 13, Discovery and Depositions of the rules of practice, do not apply to habeas corpus proceedings.
[c] Upon motion, the judicial authority may order such other limited discovery as the judicial authority determines will enhance the fair and summary disposal of the case.
In full, § 23-39 provides:
a) Upon leave of the judicial authority, the testimony of any person may be taken by deposition if the testimony will be required at an evidentiary hearing and it appears:
(1) the testimony may not be available at the required evidentiary hearing because of physical or mental illness or infirmity of the witness; or
(2) the witness resides out of this state and cannot be compelled to attend and give testimony; or
(3) the witness may otherwise be unavailable to testify at the required evidentiary hearing.
(b) The admissibility of deposition testimony shall be governed by the rules of evidence.
Given that there is no absolute right to take the deposition of a witness in a habeas case, the court, in deciding whether to grant a request to depose, should take into account the relevant factors. The most relevant factors would seem to be the "need for finality of convictions;" (internal quotation marks omitted). Young v. Commissioner of Correction, 104 Conn.App. 188, 192, 932 A.2d 467 (2007), cert. denied, 285 Conn. 907, 942 A.2d 416 (2008); any concerns of the deponent in having to relive an upsetting or traumatic incident, the availability of alternative remedies, and the need of the petitioner for the testimony in question. Although the court did not have complete information at the time of the original ruling, the respondent did object on the ground that MC was a child victim of sexual assault and that the petitioner did not make an offer of proof concerning the victim's testimony. The court accordingly rendered a conditional denial that allowed the petitioner to renew the motion at the time of trial.
Having heard further argument at trial addressing the various factors that govern the decision to allow the deposition of MC, the court now denies the renewed motion to depose. The petitioner candidly admits that he does not know what MC would say at the deposition and labels the undertaking a "high risk gamble." The petitioner nonetheless asserts that the victim's testimony is relevant to show that Seifert's ineffectiveness prejudiced the petitioner, apparently because, if Seifert had continued the prior habeas trial upon hearing the revised testimony of the state's witnesses concerning the year of the sexual assault and then deposed the victim, the victim might have testified that the sexual assaults took place in 1995 or perhaps did not take place at all. Because the petitioner has not proven any deficient performance by Seifert, however, there is no need to address the prejudice prong. Thus, the testimony of the victim is simply not "required at the evidentiary hearing" under any interpretation of the rule. Accordingly, the renewed motion to depose MC is denied.
Judge Rittenband, however, did not credit the revised testimony of the state's witnesses that the incidents took place in 1995 (Ex. 9, p. 27.)
V
The petition for a writ of habeas corpus is denied. Judgment shall enter for the respondent. Petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.