Opinion
No. CV 05 4000747
February 1, 2008
MEMORANDUM OF DECISION ON WRIT OF HABEAS CORPUS PETITION
Petitioner initiated this matter by way of a pro se petition filed September 30, 2005, which was amended by appointed counsel on February 28, 2007. The amended petition essentially raises claims in two counts: first, actual innocence; and second, ineffective assistance of trial counsel. Respondent's amended return filed April 2, 2007, denies petitioner's material allegations and that he is entitled to the relief he is requesting.
The matter came before the court on July 12, 2007 and September 17, 2007, for a trial on the merits. The court heard testimony from petitioner and his former criminal defense attorneys, Jeffrey B. Cohen and Adam Schlein, as well as Sherelle Owens, and Theresa Ellison. The court also received documentary evidence, primarily consisting of transcripts, but also including copies of various documents from the Department of Motor Vehicles. After reviewing the testimony and documentary evidence, the court finds that petitioner's claims for the most part must be denied. Petitioner's right to appeal from the convictions in dockets H12M-MV03-0387730-S and H12M-CR04-0195599-S is, however, restored.
Findings of Facts
On July 30, 2001, a misdemeanor summons and complaint number MA 617791 was issued, charging one David G. Knight with misuse of a marker plate, in violation of C.G.S. § 14-147(a), driving under suspension, in violation of C.G.S. § 14-215, and improper display of license plates, in violation of C.G.S. § 14-18(c). The summons and complaint indicates, amongst other information, that the recipient resided at 96 Homestead Avenue, had a date of birth of May 15, 1964, was a black male, six foot tall and weighing 180 lbs., and assigned social security number 011-60-3977. The summons and complaint also indicated that the recipient's driver's license number was CT 300563555, and that the vehicle, a 1988 gray Chevrolet Cavalier bearing Connecticut registration number 866-NAA, was owned by one Norma Morales.
The police report for the July 30, 2001 incident contains the following narrative: "The license plate in the rear window was CT Reg. number 866-NAA, which came back on a green 1995 Mazda. The operator of the vehicle was identified through a CT identification card as David Knight. When [the police officer] checked David Knight for a valid CT drivers license, he came back suspended as of 1/19/91." Petitioner's Exhibit 15.
The department of motor vehicles on January 31, 2002, mailed suspension notices dated January 28, 2002, for suspensions effective February 27, 2002. Listed among the drivers whose drivers licenses facing suspension on February 27, 2002 were: David Knight, date of birth May 15, 1964, residing at 231 Ellington Road, East Hartford, CT license number 300563666; and David G. Knight, date of birth May 15, 1964, residing at 96 Homestead Avenue, East Hartford, CT license number 300563555. The duration of each suspension was one year. Petitioner's Exhibits 19, 20 and 21.
The department of motor vehicles issued a restoration notice on June 20, 2003, to David Knight, 231 Ellington Road, East Hartford, date of birth May 15, 1964, indicating that drivers license number CT 300563666 was restored in full effective June 20, 2003, after a $100 fee was remitted. Petitioner's Exhibit 22. One week later, on June 27, 2003, the department of motor vehicles issued a restoration notice to David G. Knight, 231 Ellington Road, East Hartford, date of birth May 15, 1964, indicating that drivers license number CT 300563555 was restored in full effective June 20, 2003, after no fee was remitted. Petitioner's Exhibit 23.
Thereafter, on July 3, 2003, the department of motor vehicles sent a letter to one David G. Knight (date of birth May 15, 1964), at 231 Ellington Road, East Hartford, regarding license number CT 177650119. This letter indicated that the department had received petitioner's $100 restoration fee on June 20, 2003. The letter also noted the following: "A review of [petitioner's] driving record indicates that restoration notices #2085725 on 06/20/03 and #208306 I on 06/27/03 were issued in error and deleted. [Petitioner's] operating privileges remain under suspension until the date indicated above." Petitioner's Exhibit 24. The corrected restoration date indicated in the letter was January 22, 2007.
On September 4, 2003, a misdemeanor summons and complaint was issued, charging one David Knight with improper use of a marker plate, in violation of C.G.S. § 14-147(c), operating a motor vehicle without insurance, in violation of C.G.S. § 14-213b, operating a motor vehicle while under suspension, in violation of C.G.S. § 14-215, and operating an unregistered motor vehicle, in violation of C.G.S. § 14-12(a). The summons and complaint indicates, amongst other information, that the recipient resided at 231 Ellington Road, had a date of birth of May 15, 1964, was a black male, six foot tall and weighing 180 lbs., and assigned social security number 011-60-3977. The summons and complaint also indicated that the recipient's driver's license number was CT 177650119, and that the vehicle, a 1989 gray Nissan pickup bearing Connecticut registration number 866-NAA, was owned by the recipient. The September 4, 2003 charges were assigned docket number MV03-0387730.
The police report for the September 4, 2003 incident contains the following narrative: "The operator, David Knight, was identified by his CT ID card. David told [the police officer] he purchased the pickup truck a couple of hours earlier and was on his way to drop a friend at work before going to DMV to register the truck. The plate on the truck came back registered to a Mazda 626 owned by Sherelle Owens. David said it belonged to his baby's mother's car, and she had given him permission to use it. David and Sherelle live together. According to DMV records, David's license is suspended. David could not provide proof that the truck was insured." Petitioner's Exhibit 15.
Petitioner is known to have used the following names and/or aliases: Darryl Coson, date of birth May 15, 1964; Darreyl Coxson, date of birth June 9, 1954; David Knight, date of birth May 15, 1961; David Knight, date of birth March 15, 1964; David Knight, date of birth May 15, 1964; David G. Knight, date of birth May 15, 1964; and David G. Knight, date of birth May 15, 1069. Petitioner's Exhibit 15. Under his name and these aliases, petitioner has had driver's licenses issued under CT 300563666, CT 300563555 and CT 177650119. Petitioner presented no credible evidence that these various aliases and multiple driver's licenses are not attributable to him.
On October 6, 2003, petitioner appeared in court for docket number MV03-387730. Petitioner was not represented at that time. The prosecutor indicated to the court that petitioner needed more time to get his license restored. Petitioner requested a continuance of about one month so that he could address an apparent mistake by the department of motor vehicles (DMV). According to petitioner, he had done everything to have his license restored but, because DMV records indicated two licenses had been issued to him, the other license issued to him in error still needed to be addressed. The court (Swords, J.) continued the matter for four weeks so that petitioner could straighten out the apparent confusion with DMV.
On November 3, 2003, petitioner again appeared pro se before the court (Swords, J.). The prosecutor at that time indicated petitioner sought an additional continuance so he could retain counsel. Petitioner then retained attorney Jeffrey Cohen. At all times relevant to this petition, petitioner was represented by attorneys Jeffrey Cohen and Adam Schlein. Cohen was in charge of the representation and was assisted by Schlein. This underlying matter was Cohen's first case tried to verdict, although he had tried cases as a student intern.
The court notes that Schlein apparently did file an appearance in addition to Cohen, so that Schlein could be co-counsel. See Petitioner's Exhibit 10, at 19. Schlein unsuccessfully argued the motion for judgment of acquittal after the state completed putting on evidence. See Petitioner's Exhibit 12, at pg. 136. Nevertheless, the claims in the habeas corpus petition are directed only at Cohen.
According to Cohen, he met with petitioner numerous times before trial. Cohen and petitioner had contact both through meetings in lockup and telephone conversations to discuss petitioner's matters. Petitioner at first was charged with unlawful restraint and breach of peace. Cohen testified that several plea offers were made to petitioner, including an offer that would result in a sentence of time served, but that he insisted on taking the matter to trial. Similar offers had previously been made to petitioner and also turned down.
See, e.g., Petitioner's Exhibit 6, at pg. 9. At that time, petitioner was represented by public defender Alfonzo Sirica. The transcript shows that petitioner turned down an offer of ninety days and exposed himself to a potential sentence of three years.
The petitioner presently is in custody pursuant to judgments on six separate offenses under two dockets consolidated for trial to the court, Swords, J. (two counts), and the jury (four counts), as follows:
a. H12M-MV03-0387730-S: (1) misuse of a marker plate, in violation of C.G.S. § 14-147(c); (2) operating under suspension, in violation of C.G.S. § 14-215(a); (3) operating an unregistered motor vehicle, in violation of C.G.S. § 14-12(a); (4) operating a motor vehicle without minimum insurance, in violation of C.G.S. § 14-213b; and (5) failure to appear in the second degree, in violation of C.G.S. 53a-173.
b. H12M-CR04-0195599-S: (1) breach of peace in the second degree, in violation of C.G.S. § 53a-181.
Jury selection began on March 4, 2005, and the trial concluded on March 10, 2005, when petitioner was found guilty of the above offenses. Petitioner thereafter entered a guilty plea to a Part B information charging him as a second offender of operating under suspension, in violation of C.G.S. § 14-215(a).
On March 10, 2005, petitioner was sentenced by the court, Swords, J., on each offense of conviction as follows:
a. Operating an unregistered motor vehicle, in violation of C.G.S. § 14-12(a): $90.00 fine;
b. Operating without minimum insurance, in violation of C.G.S. § 14-213b: $500.00 fine;
c. Breach of peace in the second degree, in violation of C.G.S. § 53a-181: six months incarceration;
d. Operating under suspension, in violation of C.G.S. § 14-215(a): twelve months incarceration;
e. Misuse of a marker plate, in violation of C.G.S. 14-147(c): one month incarceration; and
f. Failure to appear in the second degree, in violation of § C.G.S. 53a-173: twelve months incarceration, execution suspended after the service of five months, followed by three years probation.
The sentencing court ordered all sentences to run consecutively, resulting in a total effective sentence of thirty-one months, execution suspended after the service of twenty-four months, followed by three years probation.
Additional facts will be discussed as necessary.
Discussion of Law I. Actual Innocence
In count one, petitioner alleges that he is actually innocent of the offense of operating under suspension, in violation of C.G.S. § 14-215(a), for which he was convicted in docket number H12M-MV03-0387730-S. According to petitioner, the department of motor vehicles on January 28, 2002 issued notices to him that his driving privileges were suspended effective February 27, 2002. On or about June 20, 2003, petitioner applied for restoration of the suspended licenses and paid a restoration fee of $100. After the department of motor vehicles received and accepted the application, the department on or about June 27, 2003, issued two restoration notices to petitioner apprising him his licenses were fully restored. Petitioner alleges, upon information and belief, that the restoration notices of June 27, 2003, were never effectively revoked.
Petitioner further alleges that during trial, the state presented evidence through Sherrelle Owens that he received a notice that his privilege to operate a motor vehicle within Connecticut was suspended. Also during trial, attorney Cohen stipulated that petitioner's privilege to operate a motor vehicle was suspended on September 7, 2004, and that petitioner had notice of the same. Lastly, petitioner avers that no new evidence was presented at trial regarding the department's issuance of restoration notices to petitioner prior to him being charged with the offense of operating under suspension. Such new evidence, according to petitioner, when considered together with the evidence presented at trial, undermines the reliability of the finding of guilt.
"[A] substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial . . . To prevail on a claim of actual innocence, the petitioner must satisfy two criteria. First, [he] must 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. Second, [he] must also 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 . . ." (Citation omitted.) Johnson v. Commissioner of Correction, 101 Conn.App. 465, 470, 922 A.2d 221 (2007).
"Our Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence . . . Th[e Appellate Court], however, has held that a claim of actual innocence must be based on newly discovered evidence . . . [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered . . . This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner's criminal trial by the exercise of due diligence . . ." (Internal citations omitted.) Id., 101 Conn.App. 465, 470-71, 922 A.2d 221 (2007).
The evidence presented to this habeas court paints a picture very different than the one petitioner attempts to portray. Petitioner over many years amassed a multitude of motor vehicle related offenses. At sentencing, Judge Swords described petitioner's motor vehicle history and criminal history to be "absolutely appalling." Petitioner's Exhibit 13, at pg. 85. "His motor vehicle history goes back to 1990, as does his criminal history. In fact, his criminal history goes back to `84. So since 1984, almost continuously, throughout that `80's, the `90's, and now in the 21st century, this defendant has been involved with the criminal justice system almost non-stop. He has at least fourteen prior convictions on the criminal side. And he has at least five prior operating under suspensions. And even though the defendant claims that he came to court and showed myself and the prosecutor a restoration notice, the motor vehicle history, the certified copy of the motor vehicle history, which Mr. Scott[, the prosecutor,] has given me, indicates that at no time since 1990 has this defendant ever had a valid license or a valid right to operate in the state of Connecticut." Id., at 85-86.
There is no evidence before this court that is newly discovered. In fact, aside from the testimony at the habeas trial, the evidence consists of documentation such as the criminal trial transcripts, true copies of department of motor vehicle documents, and copies of documents contained in attorney Cohen's file and forwarded to petitioner's present habeas counsel. All these documents were available either prior to or at the time of the criminal trial in 2005. Even construing petitioner's allegations in count one liberally, it is more than patently obvious that there is no allegation in count one premised on newly discovered evidence. That flaw aside, petitioner has also presented absolutely no evidence to this court that is either clear or convincing, nor has he demonstrated that no reasonable fact finder would find him guilty of offense of operating under suspension. The claim in count one must, therefore, be denied.
II. Ineffective Assistance of Counsel
In count two, petitioner raises a virtual verbal mound of allegations that attorney Cohen rendered deficient performance. According to petitioner, Cohen failed to: conduct an adequate investigation of the charges and any possible defenses; introduce exculpatory evidence at trial; without consent stipulate at trial that petitioner was guilty of all charged motor vehicle offenses; without consent stipulate at trial that petitioner was guilty of all charged motor vehicle offenses where there existed exculpatory evidence to the contrary; misadvised petitioner concerning the admissibility of his prior criminal convictions had he testified at trial; request that the court rule on his motion in limine to exclude his prior convictions before petitioner decided whether to testify at trial; file a motion in limine to preclude the state from referring to the fact of petitioner's incarceration just prior to his arrest in docket number H12M-CR04-0195599-S; file a motion in limine to preclude the state's witnesses from referring to the fact of petitioner's incarceration just prior to his arrest in docket number H12M-CR04-0195599-S; file a motion in limine to preclude the state from referring to a purported history of illicit drug use by petitioner and to object to the state's raising such assertions in questioning a witness; file a motion in limine to preclude the state's witnesses from referring to a purported history of illicit drug use by petitioner and to object to the state's raising such assertions in questioning a witness; file a motion to sever the criminal and motor vehicle matters for trial; file a motion to sever the charge of failure to appear in the second degree, C.G.S. § 53a-173, from the remaining charges in docket number H12M-MV03-0387730-S for trial; object to the prosecutor questioning the witness Sherelle Owens about petitioner's purported history of drug use; and properly present arguments on petitioner's behalf at sentencing. The court will group these claims and address them accordingly.
Count two lists no less than fourteen ways in which counsel rendered deficient performance. It appears from the extensive allegations that attorney Cohen did very little correctly, at least from petitioner's myopic perspective, aside from filing his appearance in this matter. See, e.g., Vivo v. Commissioner of Correction, CT Page 1626 90 Conn.App. 167, 172, 876 A.2d 1216, cert. denied, 275 Conn. 925, 883 A.2d 1253 (2005) (discussing importance of winnowing out weaker arguments and focusing on key or significant issues).
The court takes this opportunity to underscore the following from Strickland v. Washington, 466 U.S. 668, 688-90, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the seminal case on ineffective assistance of counsel:
In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d ed. 1980) (`The Defense Function'), are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions . . . Indeed, the existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant's cause. Moreover, the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.
Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the 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 . . .
The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.
Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.
(Internal citations omitted.)
A.
The first grouping of allegations challenges attorney Cohen's investigation of the charges and possible defenses, as well as the failure to introduce exculpatory evidence at trial. Cohen filed his in lieu of appearance on or about February 23, 2005. Petitioner's Exhibit 9. At that time, petitioner's matters were on the firm jury list, with jury selection to begin within two weeks. During that short interval, Cohen met with petitioner several times and had approximately seven telephone conversations. According to Cohen, the petitioner told him his license had been restored and Cohen asked that he be provided with the restoration notice. The petitioner's girl friend at that time, Sherrelle Owens, had the restoration notice in a box. Ms. Owens could not find, according to Cohen, the restoration notice and never produced the notice. However, Ms. Owens testified before this court that when Cohen visited her to pick up clothes for petitioner to wear during the trial, Cohen did not ask for the restoration notice. Lastly, Cohen also testified that he had an investigator run a check of petitioner's motor vehicle record and that he had a copy of petitioner's motor vehicle record in his file.
The claims that Cohen failed to conduct an adequate investigation of the charges and possible defenses, as well as introduce exculpatory evidence at trial, are focused on the restoration notices. But the evidence before this court clearly shows that the restoration notices petitioner relies on were issued in error and deleted. See Petitioner's Exhibit 24. Petitioner's operating privileges remained under suspension until January 22, 2007. Petitioner's driving record, a copy of which was in Cohen's file, clearly established that petitioner was driving with a suspended license at the time of his arrest. Even if this court were to assume Cohen's investigation somehow was deficient, which he has not, petitioner has completely failed to show how he was prejudiced. The first grouping of claims is, therefore, denied.
B.
The next grouping of claims asserts Cohen rendered deficient performance by stipulating at trial that petitioner was guilty of all charged motor vehicle offenses, especially in light of petitioner's present day assertion that there was exculpatory evidence. Attorney Cohen stipulated during Sherrelle Owens' testimony on direct examination to the fact that petitioner had a suspended license. See Petitioner's Exhibit 12, at pg. 44. Cohen also stipulated during Officer Jolda's testimony on direct examination to the fact that petitioner had improperly used a license plate. Id., at pg. 110. Later, when Michael Brodeur, a driver analyst with the department of motor vehicles, testified on direct examination, Cohen stipulated that the petitioner had received notice that his license had been suspended. Id., at pg. 120. Lastly, Cohen during closing arguments reiterated that there had been stipulations. Petitioner's Exhibit 13, at pg. 14.
"Exculpatory has been defined to mean [c]learing or tending to clear from alleged fault or guilt; excusing." (Internal quotation marks omitted.) State v. Falcon, 90 Conn.App. 111, 121, 876 A.2d 547, cert. denied, 275 Conn. 926, 883 A.2d 1248 (2005). The evidence before this habeas court, if anything, inculpates and fails to exculpate petitioner.
"To succeed on his claim, the petitioner `must 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 Sixth Amendment [to the United States constitution]. Second, the defendant must show 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.' Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Ghant v. Commissioner of Correction, 255 Conn. 1, 8, 761 A.2d 740 (2000).
"[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. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed . . ." (Citation omitted.) Holley v. Commissioner of Correction, 62 Conn.App. 170, 175, CT Page 1616 774 A.2d 148 (2001).
At the habeas trial, Cohen testified that he told petitioner that the evidence established his license was suspended. Cohen further testified that he advised his former client to stipulate to the fact that his license was suspended, and that petitioner accepted this advice. The basis for Cohen's advice to so stipulate was his concern of petitioner's past charges and offenses being presented to the jury.
A stipulation relieves a party of their burden of proof. See, e.g., State v. Laws, 37 Conn.App. 276, 286, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995); New England Fruit Produce Co. v. Hines, 97 Conn. 225, 230, 116 A. 243 (1922). Cohen's stipulations relieved the state from having to prove the facts enumerated above. Petitioner has in no way demonstrated that the state would not have been able to meet its burden of proof as to those facts stipulated to by Cohen. In fact, the record in the habeas court shows the state would easily have met its burden of proof. Consequently, even assuming deficient performance, petitioner has failed to prove that he was prejudiced thereby. The second grouping of claims must also fail.
C.
Next petitioner alleges Cohen misadvised him regarding the admissibility of his prior criminal convictions had he testified at trial, as well as that Cohen failed to request that the court rule on his motion in limine to exclude his prior convictions before petitioner decided whether to testify at trial. These claims warrant little discussion.
As previously discussed, Cohen was concerned that petitioner's extensive and lengthy negative driving history would come into evidence or be testified to by a witness from the department of motor vehicles. This concern perhaps was not a valid concern, as petitioner's past driving record bore little or no relevance to proving the pending charges, aside from demonstrating that petitioner's license was suspended. Consequently, Cohen's advice may very well have been deficient, but petitioner has nevertheless not affirmatively proven how he was prejudiced. Stated differently, this court's confidence in the outcome of the criminal proceeding has not been undermined.
As to the alleged failure to request that the court rule on the motion in limine, petitioner makes the following argument: because the trial court ordered that the state be prohibited from introducing evidence of prior convictions until after a hearing outside the presence of the jury, Cohen could not properly advise petitioner about which prior convictions would be admissible for impeachment purposes. Petitioner argues that had he been properly advised, he would have elected to testify in his own defense. Thus, following petitioner's argument to its logical conclusion, Cohen's failure to properly advise petitioner essentially resulted in him forfeiting his right to testify. Petitioner's convoluted and tortured rationale glosses over the fact that the trial court did act and rule on the motion in limine by entering an order on March 9, 2005. The court fails to see how Cohen's failure to obtain a ruling strictly granting or denying the motion in limine was deficient performance, nor how petitioner was prejudiced thereby.
The order is as follows: "The court orders that prior to the introduction by the state of any evidence of the [defendant's] prior convictions, the state will alert the court of its intention to introduce such evidence, [and] the court will excuse the jury [and] will hold a hearing on the admissibility of such evidence." Petitioner's Exhibit 18.
D.
The fourth and largest grouping of allegations that Cohen rendered deficient performance arises out of his failure to file various motions in limine. Thus, Cohen failed to seek preclusion of the state and its witnesses from referring to the fact of petitioner's incarceration just prior to his arrest in docket number H12M-CR04-0195599-S or objecting to such assertions; and the state and its witnesses from referring to a purported history of illicit drug use by petitioner and to object to the state's raising such assertions in questioning a witness. As petitioner indicates in his pretrial brief, these allegations pertain to the conviction for breach of peace.
A thorough review of the entire trial transcript shows that petitioner consistently strove to garner understanding for his actions by emphasizing he had just been released from prison. Counsel not filing motions in limine to preclude testimony and not objecting are entirely consistent with petitioner's own statements to the sentencing court immediately preceding the imposition of sentence. Petitioner indicated to Judge Swords the following: "I just bonded out of jail, one hour. Went to go pick my house keys. Asked for them. I told the police officers, I say, listen, I just bonded out of jail one hour ago." Petitioner's Exhibit 13, at pg. 84. Petitioner's present day efforts to attack counsel's actions or inactions are undermined by his own statements at sentencing.
As to statements about petitioner's purported drug history, Ms. Owens testified on direct examination during the criminal trial that she did not want to let petitioner in her house. She and petitioner had been living together prior to the incident that resulted in the breach of peace charge. On cross examination attorney Cohen asked Ms. Owens about petitioner co-habitating with her and that petitioner's clothing and personal belongings were at her house, and that all petitioner was seeking to do was get some clothes and take a shower. On redirect, the prosecutor questioned Ms. Owens as to specifically why she did not want petitioner in the house. In response, Ms. Owens answered that she was certain petitioner was again doing drugs.
Relevant to this particular claim is that attorney Cohen testified at the habeas trial that petitioner told Cohen that he was on crack cocaine at the time of the breach of peace incident. Petitioner also told Cohen that if he testified, he would testify that he was not on crack cocaine. The court also notes that at sentencing Cohen argued to Judge Swords in mitigation that petitioner had been clean and not used drugs for the seven months preceding sentencing.
Ms. Owens' statements are probative as to why petitioner sought to locate her at her place of work, obtain the keys to the house and gain entrance thereto, why Ms. Owens would not give petitioner the keys, and how and why the situation escalated to the point where the police were dispatched and responded to a reported potential assault. While her statements at trial may have had prejudicial effect, this court is unable to conclude that any such prejudice exceeded the probative value. Therefore, the court concludes that petitioner has not proven counsel rendered deficient performance or that he was prejudiced.
E.
The next grouping of allegations of deficient performance focus on Cohen's failure to file motions to sever the various cases. Thus, according to petitioner, Cohen should have filed a motion to sever the criminal and motor vehicle matters for trial, as well as sought to sever the charge of failure to appear in the second degree from the other charges in that docket.
"In Connecticut, joinder of cases is favored . . . Joinder expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once . . .
"Despite this deferential standard, the court's discretion regarding joinder, however, is not unlimited; rather, that discretion must be exercised in a manner consistent with the defendant's right to a fair trial . . . [Our Supreme Court has recognized] that an improper joinder may expose a defendant to potential prejudice for three reasons. First, when several charges have been made against the defendant, the jury may consider that a person charged with doing so many things is a bad [person] who must have done something, and may cumulate evidence against him . . . Second, the jury may have used the evidence of one case to convict the defendant in another case even though that evidence would have been inadmissible at a separate trial . . . [Third] joinder of cases that are factually similar but legally unconnected present[s] the . . . danger that a defendant will be subjected to the omnipresent risk . . . that although so much [of the evidence] as would be admissible upon any one of the charges might not [persuade the jury] of the accused's guilt, the sum of it will convince them as to all . . .
"General Statutes § 54-57 and Practice Book § 829 [now § 41-19] expressly authorize a trial court to order a defendant to be tried jointly on charges arising separately. In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb . . . The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice and that any resulting prejudice was beyond the curative power of the court's instructions . . . [W]hether a joint trial will be substantially prejudicial to the rights of the defendant . . . means something more than that a joint trial will be less advantageous to the defendant . . ." State v. Swain, 101 Conn.App. 253, 258-59, 921 A.2d 712, cert. denied, 283 Conn. 909, 928 A.2d 539 (2007).
"The decision of whether to order severance of cases joined for trial is within the discretion of the trial court, and the exercise of that discretion [may] not be disturbed unless it has been manifestly abused . . . It is the defendant's burden on appeal to show that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court's instructions." Mozell v. Commissioner of Correction, 87 Conn.App. 560, 567, 867 A.2d 51, cert. denied, 273 Conn. 934, 875 A.2d 543 (2005), citing and quoting State v. Boscarino, 204 Conn. 714, 720-21, 529 A.2d 1260 (1987).
Petitioner here has failed to show that a motion to sever would have been granted. Petitioner also has not shown that there was substantial prejudice to petitioner by having the matters tried joined instead of severed. The claims premised on counsel's failure to file motions to sever are, accordingly, denied.
F.
Petitioner's last basis for alleged deficient performance is that attorney Cohen failed to properly present arguments on petitioner's behalf at sentencing. Petitioner's pre-trial brief indicates that attorney Cohen should have both argued for a suspended sentence on some or all of the charges and, for mitigation purposes, that the department of motor vehicles issued restoration notices to petitioner in error prior to his arrest for such offenses.
These claims are sheer speculation. Petitioner has in no way shown that these arguments, if made, would somehow have influenced the sentencing court. It is very evident from the sentencing court's comments, made after reviewing petitioner's long criminal and motor vehicle history, together with the consecutive sentences imposed, that the arguments identified by petitioner had little success of prevailing. The court finds, therefore, even if counsel should have made such arguments at sentencing, petitioner has totally failed to show he was prejudiced by the failure to make these sentencing arguments.
G.
Petitioner's final claim is that as a result of ineffective assistance of counsel, petitioner was deprived of his right to appeal from the judgments of conviction. Petitioner asserts that he specifically indicated to attorney Cohen that he wished to appeal the judgments of conviction in both dockets H12M-CR04-0195599-S and H12M-MV03-0387730-S. Had Cohen filed the notice of appeal, petitioner now proclaims he would have appealed the judgments of conviction in both docket numbers.
The petitioner received notice at the sentencing proceeding of his right to appeal. At the habeas trial, petitioner testified that he asked Cohen about appealing and that Cohen said he would appeal the cases. However, no appeal was ever filed. Cohen testified, contrary to petitioner, that petitioner did not say he wanted to appeal his cases.
"In the context of whether counsel has a duty to advise a defendant of his right to take an appeal, [courts] are guided by Ghant v. Commissioner of Correction, [ 255 Conn. 1, 9, 761 A.2d 740 (2000)]. (Citations omitted; internal quotation marks omitted.) State v. Turner, 267 Conn. 414, 428-29, 838 A.2d 947, cert. denied, U.S., 125 S.Ct. 36, 160 L.Ed.2d 12 (2004); see also Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (same two part standard enunciated in Strickland applies to claims arising from plea negotiation process).
"Our Supreme Court decided Ghant in the wake of Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (clarifying applicable standard of review under federal constitution in determination of whether counsel is ineffective in failing to apprise defendant of right to appeal from guilty plea). A criminal defendant has a sixth amendment right to reasonably effective legal assistance. Ghant v. Commissioner of Correction, supra, 255 Conn. 8. The two part Strickland test `applies to claims . . . that counsel was constitutionally ineffective for failing to file a notice of appeal . . . [N]o particular set of detailed rules for counsel's challenged conduct can satisfactorily take account of the variety of circumstances faced by defense counsel . . . Rather, courts must judge the reasonableness of counsel's challenged conduct on the facts of a particular case, viewed as of the time of counsel's conduct . . . and [j]udicial scrutiny of counsel's performance must be highly deferential . . .' (Citation omitted; internal quotation marks omitted.) Id.
"In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking . . . whether counsel in fact consulted with the defendant about an appeal. We employ the term consult to [mean] . . . advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes. If counsel has consulted with the defendant . . . [c]ounsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal . . . If counsel has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel's failure to consult with the defendant itself constitutes deficient performance . . . And, while States are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented . . . the Federal Constitution imposes one general requirement: that counsel make objectively reasonable choices." (Emphasis added; internal quotation marks omitted.) Id., 8-9.
"The United States Supreme Court has rejected `a bright line test that would require counsel always to consult with a defendant regarding an appeal.' . . . Id., 9. The court held `that counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known . . . Although not determinative, a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings. Even in cases when the defendant pleads guilty, the court must consider such factors as whether the defendant received the sentence bargained for as part of the plea and whether the plea expressly reserved or waived some or all appeal rights. Only by considering all relevant factors in a given case can a court properly determine whether a rational defendant would have desired an appeal or that the particular defendant sufficiently demonstrated to counsel an interest in an appeal." (Internal quotation marks omitted.) Id., 9-10.
"The defendant also must demonstrate prejudice. `[T]o show prejudice [when counsel fails to apprise a defendant of his or her appellate rights], a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed . . . [W]hether a given defendant has made the requisite showing will turn on the facts of a particular case . . . [E]vidence that there were nonfrivolous grounds for appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant in making this determination.' (Citation omitted; internal quotation marks omitted.) Id., 10.
"The standard for determining whether an appeal is frivolous is well known. `[I]n the context of evaluating whether a court has abused its discretion in denying requests for certification or permission to appeal, [our Supreme Court has] applied the criteria set forth in Lozada v. Deeds, 498 U.S. 430, 432, 111 S.Ct. 860, 112 L.Ed.2d 956 (1991) . . . The Lozada inquiry was established in order to determine whether a petitioner has made the requisite substantial showing of the denial of a federal right for the issuance of the required certificate of probable cause to appeal the denial of federal habeas relief . . . In Lozada, the United States Supreme Court held that the required substantial showing was made if the petitioner demonstrate[s] that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further . . . In the federal courts, the probable cause certificate serves the same policy goal as the granting of permission or certification to appeal does in Connecticut, namely, to screen out frivolous appeals while still protecting the litigants' statutory right to appellate review of adverse determinations . . ."[Our Supreme Court] first applied the Lozada criteria in evaluating the frivolousness of an appeal in Simms v. Warden, [ 230 Conn. 608, 616, 646 A.2d 126 (1994)], in which [it] held that, in an appeal under General Statutes § 52-470(b), which governs denials of requests for certification to appeal an adverse habeas corpus ruling, a petitioner will establish a clear abuse of discretion . . . if he can demonstrate the existence of one of the Lozada criteria . . ." (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Turner, supra, 267 Conn. 430-31. "[W]hen a petitioner presents an issue on appeal that satisfies any one of the Lozada criteria, that petitioner ought to have that issue considered on appeal." Id., 431; see also State v. James, 261 Conn. 395, 405-10, 802 A.2d 820 (2002); Seebeck v. State, 246 Conn. 514, 534, 717 A.2d 1161 (1998).
"Our Supreme Court has held that the Lozada criteria similarly should be used to evaluate the frivolousness of an appeal on a defendant's claim that counsel was ineffective for failing to consult with him regarding an appeal. State v. Turner, supra, 267 Conn. 431-32. "[I]f a defendant can demonstrate either that: (1) the issue is debatable among jurists of reason; (2) a court could resolve the issue in a different manner; or (3) the question is adequate to proceed further, then the defendant appeal is not frivolous as a matter of law and, therefore, counsel has a constitutionally imposed duty to consult with the defendant about an appeal under Ghant . . . A defendant, therefore, may prevail on a claim of ineffective assistance of counsel under Ghant if he can satisfy any one of the Lozada criteria. Once he has done so, he must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed.' (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 433." DuPerry v. Kirk, 90 Conn.App. 493, 511-15, 877 A.2d 928 (2005), cert. denied, 277 Conn. 921, 895 A.2d 795 (2006) (Katz and Palmer, Js., dissenting and would grant certification to appeal, and Borden, J., not participating in the consideration or decision).
Petitioner's pre-trial brief argues the following: "At the end of the sentencing proceeding, the clerk handed petitioner a notice of appeal form and indicated to him that his attorney would speak with him about it. Tr. 3/10/05: 89. Contemporaneously, attorney Cohen stated: `It's what I told you about before.' Id. Petitioner contends he specifically instructed attorney Cohen to file a notice of appeal.
"No appeal was filed. Thereafter, petitioner commenced a grievance against attorney Cohen for, inter alia, failing to file a notice of appeal. In his response to the grievance, attorney Cohen claimed, in apparent contrast to the record in this case, that he never discussed the possibility of an appeal with petitioner. He further stated that an appeal was not included within his retainer agreement with petitioner and that he did not believe there were any appealable issues. The grievance panel made a finding of probable cause that attorney Cohen violated Rule 1.3. (diligence) of the Rules of Professional Conduct, for failing to file a notice of appeal. As a result, Attorney Cohen admitted wrongdoing and agreed to cooperate in any habeas corpus proceeding to restore petitioner's right to appeal." Brief, at 30-31.
Petitioner goes on to argue that: "In this case, the record strongly indicates that counsel did, in fact, have a discussion with petitioner about the possibility of appealing, Tr. 3/10/2005: 89, contrary to counsel's statement in the grievance proceeding. In view of this apparent contradiction, attorney Cohen's statement that petitioner did not want to appeal is simply not credible at all. That the grievance panel found probable cause that attorney Cohen violated Rule 1.3, and that he later admitted wrongdoing, supports this assertion. Additionally, it strains reason to believe that petitioner — who received the maximum possible sentence imposed consecutively on nearly every charge following a full trial — would not have wanted to appeal. Equally troubling is attorney Cohen's statement that he did not file a notice of appeal because no appealable issue arose during the trial. Indeed, where, as here, a client has specifically indicated to counsel that he wishes to appeal, counsel cannot choose not to file the notice of appeal merely because, in his opinion, he does not believe there to be any non-frivolous issues. See United States v. Campusano, 442 F.3d 770 (2d. Cir. 2006). In this context, it is important to note that attorney Cohen had little to no appellate experience. And, contrary to counsel's assessment regarding the merits of a possible appeal, there were at least three viable issues in whether (1) there was sufficient evidence to sustain petitioner's conviction for breach of peace in the second degree, C.G.S. § 53a-181, (2) whether the trial court's failure to canvass petitioner following counsel's stipulations at trial violated Boykin v. Alabama, and (3) whether the trial court's instructions on reasonable doubt misstated the law or otherwise confused the jury." Brief, at 31-32.
Attorney Cohen's statement to petitioner when he received the notice of right to appeal does not automatically mean that they discussed the substance of an appeal. Cohen may have simply advised petitioner that he would receive the notice. At the habeas trial, Cohen testified that petitioner did not tell him he wanted to appeal. Petitioner's testimony is to the contrary. Whether or not Cohen was specifically instructed to file an appeal, the three issues identified by petitioner's habeas counsel are not frivolous issues to have raised on appeal from petitioner's convictions. After this court's review of the underlying criminal matter, viewed together with the evidence adduced at the habeas corpus trial, the court finds that these appellate claims meet the Lozada test and, accordingly, Cohen should have discussed the appeal in a meaningful way and perfected petitioner's right to appeal by filing the notice of appeal.
The court concludes that Cohen did perform deficiently by failing to meaningfully discuss an appeal and perfect petitioner's right to appeal. The court also finds that because the grounds identified by petitioner are non-frivolous, the petitioner has shown that he was prejudiced by this deficiency. Accordingly, petitioner's right to appeal from the convictions in dockets H12M-MV03-0387730-S and H12M-CR04-0195599-S is restored. Any notice of appeal shall be filed within twenty (20) days of the date of this decision.
Based upon all of the foregoing, the petition for a writ of habeas corpus is denied as to all claims except the claim that attorney Cohen failed to perfect petitioner's right to appeal, which is granted. Petitioner's right to appeal from the convictions in dockets H12M-MV03-0387730-S and H12M-CR04-0195599-S is restored to permit the petitioner to file a notice of appeal within twenty (20) days of the date of this decision. The petitioner shall submit a judgment file within thirty days of the date of this decision.
It is so ordered.