MEMORANDUM OF DECISION
Vernon D. Oliver, J.
The petitioner, Eric White, initiated this petition for a writ of habeas corpus, claiming that his underlying trial counsel provided him ineffective legal representation relating to his guilty plea. He also asserts a due process violation. He seeks an order of this court vacating his plea and convictions and returning the matter to the criminal court for further proceedings. The respondent denies the claims and asserts the special defense of deliberate bypass. The court finds the issues for the RESPONDENT and DENIES the petition.
In the criminal matter State v. Eric White, FBT-CR03-0193654, in the Fairfield Judicial District, on August 11, 2004, the petitioner, after a plea of guilty under the Alford doctrine, was convicted of one count of felony murder in violation of Connecticut General Statutes § 53a-54c, related to his sexual assault and killing of a two-year-old child. On that same date, the court, Damiani J., indicated an intention to sentence the petitioner to a total effective sentence of fifty years to serve on November 5, 2004 (Ex. 1). On November 5, 2004, the petitioner received the previously indicated sentence (Ex. 2). At all relevant times the petitioner was represented by Attorney Joseph Bruckman. There was no appeal or other relevant post-trial motions.
Standard of Proof
The standard of proof in civil actions, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).
Burden of Proof
" While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it." Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of their cause of action by a fair preponderance of the evidence. Gulycz v. Stop & Shop, 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 527 (1982). Failure to do so results in judgment for the defendant. Id.
" The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005). " It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . it is the quintessential function of the factfinder to reject or accept certain evidence . . ." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). " The sifting and weighing of evidence is peculiarly the function of the trier [of fact]." Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981). " [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to the testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). " The trier is free to accept or reject, in whole or in part, the testimony offered by either party." Smith v. Smith, supra, 183 Conn. 123. " The determination of credibility is a function of the trial court." Heritage Square, LLC v. Eoanou, 61 Conn.App. 329, 333, 764 A.2d 199 (2001).
It is well established that " [i]t is within the province of the trial court, when sitting as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence . . . Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness' conduct, demeanor and attitude . . . An appellate court must defer to the trier of fact's assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom." (Internal quotation marks omitted.) State v. Lawrence, 282 Conn. 141, 155, 920 A.2d 236 (2007) (See also Dadio v. Dadio, 123 Conn. 88, 92-93, 192 A. 557 (1937)). Such observation may include all genuine and spontaneous reactions of the witness in the courtroom, whether or not on the stand, but only to the extent that they bear on the witness's credibility. State v. McLaughlin, 126 Conn. 257, 264-65, 10 A.2d 758 (1939). It is generally inappropriate for the trier [of fact] to assess the witness's credibility without having watched the witness testify under oath. Shelton v. Statewide Grievance Committee, 277 Conn. 99, 111, 890 A.2d 104 (2006).
" The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous . . . Historical facts constitute a recital of external events and the credibility of their narrators . . . Accordingly, [t]he habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given their testimony . . ." Mahon v. Commissioner of Correction, 157 Conn.App. 246, 116 A.3d 331, cert. denied, 317 Conn. 917, 117 A.3d 855 (2015). " It is well established that a reviewing court is not in the position to make credibility determinations . . . This court does not retry the case or evaluate the credibility of witnesses . . . Rather, we must defer to the [trier of fact's] assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude." (Internal quotation marks omitted.) Lewis v. Commissioner of Correction, 117 Conn.App. 120, 126, 977 A.2d 772, 117 Conn.App. 120, 126, cert. denied, 294 Conn. 904, 982 A.2d 647 (2009).
Habeas Corpus Matters--Generally
" The right to petition for a writ of habeas corpus is enshrined in both the United States constitution and the Connecticut constitution. See U.S. Const., art. I, § 9; Conn. Const., art. I, § 12. Indeed, it has been observed that the writ of habeas corpus holds an honored position in our jurisprudence . . . The principal purpose of the writ of habeas corpus is to serve as a bulwark against convictions that violate fundamental fairness . . . The writ has been described as a unique and extraordinary legal remedy . . . It must never be forgotten that the writ of habeas corpus is the precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired." (Citations omitted; internal quotation marks omitted.) Fine v. Commissioner of Correction, 147 Conn.App. 136, 142-43, 81 A.3d 1209 (2013).
" It is well settled that [t]he petition for a writ of habeas corpus is essentially a pleading and, as such, it should conform generally to a complaint in a civil action . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint . . . While the habeas court has considerable discretion to frame a remedy that is commensurate with the scope of the established constitutional violations . . . it does not have the discretion to look beyond the pleadings and trial evidence to decide claims not raised . . . The purpose of the [petition] is to put the [respondent] on notice of the claims made, to limit the issues to be decided, and to prevent surprise . . . [T]he [petition] must be read in its entirety in such a way as to give effect to the pleading with reference to the general theory upon which it proceeded, and do substantial justice between the parties." (Citation omitted; internal quotation marks omitted.) Lebron v. Commissioner of Correction, 274 Conn. 507, 519-20, 876 A.2d 1178 (2005), overruled in part on other grounds by State v. Elson, 311 Conn. 726, 91 A.3d 862 (2014).
The petitioner initiated the instant action with the filing of his pro se petition on January 8, 2014. In the operative pleading, a second amended petition dated May 23, 2016, the petitioner asserts that underlying counsel was constitutionally deficient in the following ways (the court notes the petitioner withdrew, at the start of evidence, the claim alleging inadequate research and investigation relating to an attack on the felony murder charge):
1. Trial counsel " failed to adequately research and investigate the issue of the petitioner's mental state at the time of the August 11, 2004 plea hearing, and to bring information about the petitioner's compromised mental state to the attention of the trial court" (emphasis added).
The petitioner also alleges a due process violation, asserting that his constitutional rights were violated as his " decision to enter a guilty plea under the Alford doctrine to . . . felony murder . . . was not made knowingly, intelligently and voluntarily, because the medication that the petitioner was taking on the date of his plea substantially impacted his ability to understand the plea agreement and the plea proceedings." The petitioner claims that the petitioner would not have entered a guilty plea had he not been medicated to the extent asserted.
The Court heard the trial of this matter on September 19, 2016. The petitioner presented as witnesses himself, a psychiatric expert, and Attorney Bruckman. The petitioner entered four full exhibits into evidence. The court makes the following findings by a fair preponderance of the evidence.
The Court Canvass
Petitioner's Exhibit 1 was entered into evidence as a full exhibit without objection. The exhibit is a transcript of the petitioner's August 11, 2004 guilty plea under the Alford doctrine. This court finds the canvass to be more than constitutionally sufficient. During the canvass, the petitioner responded in the negative when asked if he had taken any " drugs, alcohol or medication today" (Ex. 1). Additionally, the petitioner indicated during the canvass that underlying counsel had discussed the case with him and had explained the elements of the offense. The court, during the canvass, explained to the petitioner the elements of the offense, the maximum possible penalties and parole eligibility. The court also explained potential collateral immigration consequences. Further, the court informed the petitioner of the court-indicated sentence to be imposed on the next court date. Finally, after having presented the petitioner with all of the aforementioned information, the court re-affirmed the petitioner's understanding and his decision to enter his plea and accept the fifty-year sentence. The canvass required responsive answers to specific questions, including the petitioner's age and his highest level of education.
Petitioner's Exhibit 2 was entered into evidence for this court's consideration without objection. The exhibit consists of the transcript of the petitioner's November 5, 2004 sentencing. After having heard from the family of the deceased minor victim, the petitioner was provided his constitutional right to allocution. The petitioner made an impassioned statement accepting responsibility for his actions, acknowledging that " fifty years is not enough" for his crimes. Nearly two months after his plea, the petitioner gave no indication of a desire to withdraw his plea. He also said nothing to give the impression that he was unaware of the consequences of that prior plea. Regarding the effect of any medication, the petitioner said nothing to indicate that he was suffering any cognitive impairment related thereto, stating: " I'm taking medication they should be giving horses, bulls . . . just to fall asleep because I have nightmares [of] this beautiful little girl [that's] gone, that I can't bring back ever. And my life is messed up because I messed it up. Nobody told me to pick up that blunt of angel dust; nobody took a 40-bottle to my lips." Again, there is no indication in either of these transcripts that the petitioner was unaware of the consequences of his plea at either the time of his plea or at sentencing.
Attorney Joseph Bruckman
Attorney Bruckman testified to his representation of the petitioner. He testified credibly to his numerous visits with the petitioner, both at Bridgeport Correctional Center and at the courthouse. He also testified to extensive discussions with the petitioner regarding all aspects of the criminal case throughout the course of the litigation. Counsel testified credibly to more than adequate preparation of the petitioner for the Alford plea, including that the petitioner wished to enter a plea and accept the fifty-year court-indicated sentence. Counsel testified to his usual practice of inquiring if his clients are taking any drugs or medications. Attorney Bruckman testified that he was aware at the time of representing the petitioner that he was prescribed medications by the Department of Correction (the petitioner was in custody during the criminal litigation). Counsel further testified credibly, regarding the petitioner's mental state, that " it was clear to me that he understood what he was doing, " that there were no " red flags" raised concerning the petitioner's mental status, and that he would have inquired further if he had observed anything of concern.
Concerning the petitioner's mental status, the court notes that underlying counsel retained a forensic psychiatrist to interview, assess and evaluate the petitioner while investigating potential defenses to a murder charge (the expert was provided with the petitioner's DOC records). Counsel testified that the oral report of the expert communicated to counsel prior the plea was that there was " no sign of psychosis" and that that there was " no indication" after that psychiatric assessment that the petitioner's mental health was " an issue at all."
Regarding the criminal case itself, counsel testified without challenge that the state had a " very strong case" against the petitioner and that although he left the ultimate decision up to his client, he informed the petitioner that " he was not going to succeed at trial."
Dr. James Phillips
James Phillips, a psychiatrist with extensive experience in the field of forensic psychiatry (although admittedly less expertise in the effects of certain prescribed medications on an individual), testified in the petitioner's case-in-chief. Dr. Phillips testified generally to the effects of Lithium and Remeron, separately and in combination, on an individual. Dr. Phillips testified that he could not render an expert opinion on the petitioner's ability, twelve years ago, to enter a voluntary, knowing and intelligent plea, as there were too many unknowns: including each individual's " metabolic rate" and " blood level." He testified that a reliable opinion on the petitioner's cognitive impairment cannot be rendered simply based on the height and weight of an individual. Finally, the witness had not reviewed the petitioner's DOC records.
The Petitioner testified in the instant matter. His testimony included an admission that he lied to the sentencing court during the plea canvass regarding taking medications as it would make him look " more insane" and " not help my case." He testified that he was not fed the " right" answers to the canvass by underlying counsel. He testified that, at the time of his plea, he felt like a " robot" and a " zombie, " doing the " medication shuffle." He further testified that he understood conversations with his attorney " half the time" and that the medications affected his decision-making ability. The petitioner testified that he did not recall entering his guilty plea but did recall the court's canvass regarding medications.
The petitioner testified that he entered his plea to benefit his family, and to spare his mother from " going through things." He further testified that he made no prior challenges to his convictions, including a motion to vacate his plea or a prior habeas. He testified that he filed the petition giving rise to the instant matter as he has " nothing to lose from wanting [his] freedom back."
Ineffective Assistance of Counsel
" A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). The petitioner has the burden to establish 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." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. 694.
It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, the petitioner must prove, by a preponderance of the evidence, that his counsel's acts or omissions were so serious that counsel was not functioning as the " counsel" guaranteed by the sixth amendment, and as a result, he was deprived of a fair trial. Harris v. Commissioner of Correction, 107 Conn.App. 833, 845-46, 947 A.2d 7, cert. denied, 288 Conn. 908, 953 A.2d 652 (2008). Under the second prong of the test, the prejudice prong, the petitioner must show that " counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." (Internal quotation marks omitted.) Michael T. v. Commissioner of Correction, 307 Conn. 84, 101, 52 A.3d 655 (2012).
When assessing trial counsel's performance, the habeas court is required to " indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland v. Washington, supra, 466 U.S. 689. The United States Supreme Court explained:
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 defendant 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. Even the best criminal defense attorneys would not defend a particular client in the same way.(Citation omitted; internal quotation marks omitted.) Id., 689. Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. 686.
" [A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Internal quotation marks omitted.) State v. Brown, 279 Conn. 493, 525-26, 903 A.2d 169 (2006); see also Elsey v. Commissioner of Correction, 126 Conn.App. 144, 10 A.3d 578, cert. denied, 300 Conn. 922, 14 A.3d 1007 (2011) (" [b]ecause both prongs of the Strickland test must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong" [internal quotation marks omitted]).
" In Strickland, the United States Supreme Court held that [j]udicial 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 . . . [C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . ." Martin v. Commissioner of Correction, 155 Conn.App. 223, 227, 108 A.3d 1174, cert. denied, 316 Conn. 910, 111 A.3d 885 (2015).
" When a habeas petitioner alleges ineffective assistance of trial counsel in connection with his plea of guilty, his failure to move to withdraw his plea or to challenge his plea on direct appeal will not constitute procedural default." (Citation omitted; internal quotation marks omitted.) Merle S. v. Commissioner of Correction, 167 Conn.App. 585, 593, 143 A.3d 1183 (2016).
It is well established that: " A criminal defendant is constitutionally entitled to adequate and effective assistance of counsel at all critical stages of a criminal proceeding. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This right arises under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution . . . As enunciated in Strickland v. Washington, [ supra, 466 U.S. 687], [our Supreme Court] has stated: It is axiomatic that the right to counsel is the right to the effective assistance of counsel . . . A claim of ineffective assistance of counsel 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 . . . To satisfy the prejudice prong, a claimant must demonstrate 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.) Fernandez v. Commissioner of Correction, 291 Conn. 830, 834-35, 970 A.2d 721 (2009).
The United States Supreme Court has held that pretrial negotiations implicating the decision as to whether to plead guilty is a critical stage in criminal proceedings for purposes of the sixth amendment right to effective assistance of counsel. Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); Missouri v. Frye, 566 U.S. 133, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). " In today's criminal justice system . . . the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always a critical point for a defendant." Missouri v. Frye, supra, 132 S.Ct. 1407. Similarly, " our Supreme Court has recognized that pretrial negotiations implicating the decision of whether to plead guilty is a critical stage, and, therefore, a defendant is entitled to adequate and effective assistance of counsel at this juncture of the criminal proceedings." (Internal quotation marks omitted.) Gonzalez v. Commissioner of Correction, 122 Conn.App. 705, 723 n.4, 1 A.3d 170 (2010), aff'd, 308 Conn. 463, 68 A.3d 624 (2013). The decision to plead guilty is " ordinarily the most important single decision in any criminal case." (Internal quotation marks omitted.) Peterson v. Commissioner of Correction, 142 Conn.App. 267, 273, 67 A.3d 293 (2013). Because the plea bargaining process is a critical stage in a criminal proceeding, " criminal defendants require effective assistance of counsel during plea negotiations." Missouri v. Frye, supra, 132 S.Ct. 1407-08; see Lafler v. Cooper, supra, 132 S.Ct. 1385. " Anything less . . . might deny a defendant effective representation by counsel at the only stage when legal aid and advice would help him." (Internal quotation marks omitted.) Missouri v. Frye, supra, 132 S.Ct. 1408.
" Although this decision [to plead guilty] 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." (Internal quotation marks omitted.) Peterson v. Commissioner of Correction, supra, 142 Conn.App. 273. Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. 686.
In the instant matter, the court credits the testimony of underlying counsel in support of a finding that the petitioner has failed to demonstrate ineffective assistance of counsel. Additionally, the court credits the testimony of both underlying counsel and Dr. Phillips in support of a finding that the petitioner has failed to establish either prejudice under Strickland or a due process violation.
Further, the court relies on the transcript of the petitioner's plea and sentencing as compelling evidence that he was made aware by counsel, and subsequently by the court, of all necessary information to make an informed decision as to whether to enter a plea or take his case to trial. " A habeas court . . . may properly rely on the defense attorney's representations, as well as the responses of the petitioner at the time he responded to the trial court's plea canvass, in determining that he was adequately informed of the elements of the offense charged." Bowers v. Warden, 19 Conn.App. 440, 443, 562 A.2d 588, cert. denied, 212 Conn. 817, 565 A.2d 534 (1989).
Finally, while this court cannot say that the petitioner's testimony lacked credibility completely (although his admissions that he lied to the sentencing court during the canvass to benefit his criminal case damages his credibility in the eyes of the court), this court does find, however, that the petitioner's testimony is wholly insufficient to prove any of the necessary elements to establish either a due process violation or a claim of ineffective assistance of counsel. Contrasted with the other, more credible, evidence adduced at trial, the petitioner's proffered evidence in support of his claims borders on the frivolous.
For the foregoing reasons, the court denies the petition for writ of habeas corpus. Judgment shall enter for the respondent.